Legal Formalism, Procedural Principles, and Judicial Constraint in American Adjudication

  title={Legal Formalism, Procedural Principles, and Judicial Constraint in American Adjudication},
  author={Christopher J. Peters},
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… 
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