Document Type
Article
Publication Date
2003
Abstract
The question I explore here, stated in its broadest form, is this: What is the connection between theory and practice between academic claims about how judges should decide cases and the actual behavior of judges as revealed in the opinions they write? More particularly, do theories about the nature of law have any implications for the question whether a judge should adopt an "activist" or a "restrained" approach to deciding cases? As you might infer from my title, I defend here what I call "the skeptical thesis" in answer to both the general and particular questions. Judges pay little or no attention to disputes about the nature of law, even though those disputes purport to be critical determinants of what "the law" is and even though the job of judges, presumably, is to decide cases "according to the law." The reasons for this disconnection between theory and practice raise fascinating questions both about what it means to be a judge as well as about the limits of legal theory.
Recommended Citation
Soper, E. Philip. "Why Theories of Law Have Little or Nothing to Do with Judicial Restraint." University of Colorado Law Review 74, no. 4 (2003): 1379-1407.