Suja Thomas, “How Atypical, Hard Cases Make Bad Law,” Wake Forest Law Review, 2013

In a just-published article, University of Illinois College of Law Professor Suja Thomas examines recent U.S. Supreme Court rulings, including Bell Atlantic Corp. v. Twombly, to argue that the Court, unconstrained by “sufficient effective doctrines of judicial restraint,” made legal change motivated by extraordinary facts. Thomas calls for the adoption of a judicial restraint method, “the atypical doctrine,” to avoid making bad law from hard cases. The doctrine, which would apply to cases with atypical facts involving legal changes inappropriate for typical cases, would advocate judicial restraint through a refusal to grant certiorari, narrower deci- sions, or changes accomplished in other cases or through a different institution, such as Congress or a rulemaking body. Thomas contends that legal change motived by extraordinary facts “threatens the legitimacy of the Court, interferes with the authority of other institutions, and adds unaccounted-for costs to the justice system.”