Law Commons^™

Judicial Restraint In The Administrative State: Beyond The Countermajoritarian Difficulty, Matthew D. Adler

Faculty Scholarship

Arguments for judicial restraint point to some kind of judicial deficit (such as a democratic or an epistemic deficit) as grounds for limiting judicial review. ("Judicial review" is used in this Article to mean, essentially, the judicial invalidation of statutes, rules, orders and actions in virtue of the Bill of Rights, or similar unwritten criteria.). The most influential argument for judicial restraint has been the Countermajoritarian Difficulty. This is a legislature-centered argument: one that points to features of *legislatures*, as grounds for courts to refrain from invalidating *statutes*. This Article seeks to recast scholarly debate about judicial restraint, and to …