Duquesne Law Review


In Dworkin's Rights Thesis, the. ideal judge who decides a "hard" case must determine whether the asserted right exists under the Constitution. The author criticizes this thesis by first contrasting it with an alternative model of adjudication in which the weighing of competing interests is decisive. He then demonstrates that no model is adequate to cover the complexity of "hard" cases. The "hard" case requires the exercise of judgment. The individual Justice makes a judgment based upon all the relevant factors which must be addressed in order to carry out the administration of justice. The content of the judgment cannot be determined in advance. It is indeterminate, yet has a moral quality and is not arbitrary.

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