Abstract

During the past half-century, jurisprudential emphasis has gradually but surely shifted from the consideration of substantive legal questions to those concerning the proper exercise of judicial power. Jurists since antiquity have struggled to permit "justice" to exist side-by-side with the ever-sought-for judicial consistency. Various devices have been employed to prevent a head-on collision between these two goals, for example, the "we look only at the facts presented to us" limitation of judicial responsibility and the "case or controversy" doctrine. Concurrent with the evolution from a mechanistic to a realistic approach to the use of judicial power there has been a decline in the respect paid these two aforementioned devices. Decisions based upon hypotheticals propounded by counsel would be inconsistent with either of these devices.

The aim of this article is to question whether decisions based upon hypothetical fact situations can be faithful to the announced goal of recent American jurisprudence, the seeking after "justice" rather than the operation of a mechanistic jurisprudence. To achieve this aim, it will be necessary to examine two cases where state supreme courts decided, mistakenly I shall contend, that state statutes were unconstitutional on the basis of hypothetical fact situations propounded to them by counsel.

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