Antioch Law Journal


Throughout history scholars have attempted to defend myriad conceptions of the judicial role. For instance, Corwin believed that law, embodied in nature, was to be discovered by judges.1 Cardozo also envisioned an active judiciary, responsible for keeping law consistent with the mores of the day.2 Wigmore, on the other hand, felt that personalizing justice through judicial discretion is the "antithesis of the Anglo-Saxon conception of justice."' 3 Rather, justice, if attainable at all, must be achieved through strict rule application. 4 Whereas 19th-century scholarship focused on formal rules, recent authorities have turned to contemplating how legal decisions are made and the impact of those decisions on the behavior of groups and individuals.' Today society is changing so fast that strict rules, rigid by nature and subject to inertia, cannot keep up with values in flux. Two recent theories6 responding to this phenomenon call for an active judiciary to help recognize and refashion rules which have become outdated. This article tests those theories in the context of child abuse adjudication, 7 and questions the legitimacy of using increased judicial activity to identify fundamental values.