Lawfinding's Dilemma: Legal Formalism, or Judicial Neutrality
Document Type
Article
Publication Date
2025
Abstract
Judges wield enormous power. What justifies their exercise of that power? A familiar view is that their legitimacy lies in finding, not making, law. The Supreme Court has recently invoked this view to justify politically charged decisions, presenting itself as a neutral lawfinder. But this defense depends on two incompatible legal epistemologies: one where lawfinding is politically neutral because it rests on shared criteria; and another where the law never runs out, even in very contested cases. These two theories of lawfinding are incompatible, because shared criteria don’t exist where we run into certain kinds of disagreements. Either lawfinding is always neutral, or the law never runs out. Both can’t be true. The Court’s self-image as a neutral “lawfinder” ignores this dilemma. I expose it, calling for a better account of judicial legitimacy.
Recommended Citation
Diamond, Alma, "Lawfinding's Dilemma: Legal Formalism, or Judicial Neutrality" (2025). Public Law & Legal Theory Working Papers. 38.
https://repository.law.umich.edu/pub_law_archive/38