Document Type


Publication Date



American proponents of legal formalism, such as Supreme Court Justice

Antonin Scalia, worry (quite reasonably) that unfettered judicial discretion

poses a threat to democratic legitimacy, and they offer formalism – the mechanical

implementation of determinate legal rules – as a solution to this threat. I argue

here, however, that formalist interpretive techniques are neither sufficient nor

necessary to impose meaningful constraint on judges. Both the text and the

“original meaning” of legal rules are endemically under determinate, leaving much

room for judicial discretion in the decision of cases. But meaningful judicial

constraint can and does flow from other sources in American adjudication. Judges

are constrained by the dispute-resolving posture of their task, which requires that

they be impartial as between the litigants and responsive to the litigants’

participatory efforts. And they are constrained by the need to be faithful to the

substantive principles that justify legal rules, even when those rules themselves are

indeterminate. Judicial constraint in the American system thus stems not primarily

from formalist interpretative methods, but rather from largely unwritten procedural

principles of judicial impartiality, responsiveness, and faithfulness.

Included in

Law Commons



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.