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The task of the federal judiciary is seriously complicated by the fact that it has to play one role while pretending to play another. We ask the courts to pretend that they are resolving disputes between parties, but what we really want them to do is tell us how to conform our behavior to our fundamental values. Society needs a branch of government to implement its fundamental values, and the federal judiciary is well suited to that task because it possesses the precise balance of autonomy and public accountability needed to perform the function properly.

However, the dispute resolution charade is counterproductive. It frustrates proper implementation of our values by diverting judicial energies to consideration of extraneous, dispute-related concerns. Accordingly, courts should adopt a new model of adjudication more in tune with their important social function.

Publication Citation

131 U. Pa. L. Rev. 585 (1983)

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