Public Policy in Judicial Decisions

A doctrine called public policy is a pervasive element in the rationale of appellate decisions. Indeed, often its assertion is the sole underpinning of a decision. For centuries, the principle of public policy has played a vital role in dispute resolution.

At the outset it is necessary to state that the concern herein is with the use of public policy in appellate decisions. Judicial use is quite different from legislative declarations of public policy. Courts in theory and in fact are constrained by judicial restraint, by the adversary method of proof and, indeed, by legislative determinations of public policy.

On the other hand, only constitutional limitations restrain legislative policy declarations. As the court in State ex rel. Schlarb v. Smith stated, “[d]eclarations of public policy by statutory enactment are, when within constitutional limitations, conclusive.” As a source of guidance in the interpretation of a statute, statutory statements of policy may provide a reference to facts upon which the legislature acted, a guide to legislative intent, and a manifestation of deliberate exercise of the police power by creation or modification of rights, or prohibition or limitations of actions.

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Robert F. Brachtenbach, Public Policy in Judicial Decisions, 21 Gonz. L. Rev. 1 (1985).

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