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Published online by Cambridge University Press: 24 January 2025
There was published in the University of Chicago Law Review some years ago a debate between Professor Dworkin and Judge Posner in the course of which Judge Posner drew a distinction between “top down” and “bottom Up” reasoning. He accused Professor Dworkin of being a “top downer” and professed himself to be an unashamed “bottom upper”.
Let me explain the distinction. In “top down” reasoning the judge or legal analyst adopts a theory about an area of law. The theory is then used to organise and explain the cases; to marginalise some and to canonise others. In “bottom up” reasoning the judge or legal analyst starts with the mass of cases or the legislative text and moves only so far as necessary to resolve the case at hand. According to Judge Posner “[t]he top downer and the bottom upper do not meet”.
The distinction is useful although the dichotomy is not complete. The “bottom upper” would be lost in the wilderness of the single instance without some organising theory.
1 “Legal reasoning from the Top Down and From the Bottom Up: The Question of Unenumerated Constitutional Rights„ (1992) U Chicago L R 433.
2 Ibid.
3 Dicey, AV, Law of the Constitution (1885) at 180Google Scholar.
4 Goodnow, F J, Administrative Law (1893) at 6-7Google Scholar quoted in Davis, K, Administrative Law Treatise (3rd ed 1994) Vol 1 at 7-8Google Scholar.
5 Maitland, F W, Constitutional History of England (1908) at 505-506Google Scholar.
6 (1985) 159 CLR 550.
7 Ibid at 582.
8 Ibid at 584.
9 Ibid at 609.
10 (1986) 162 CLR 24 at 39-42.
11 (1990) 170 CLR 1.
12 Ibid at 35 quoting Beatson, J, “The Scope of Judicial Review for Error of Law” (1984) 4 Oxford Journal of Legal Studies 22CrossRefGoogle Scholar.
13 Ibid.
14 (1975) 134 CLR 338.
15 (1990) 170 CLR 1 at 35.
16 Ibid at 35-36.
17 Ibid at 36.
18 (1996) 185 CLR 259 at 272.
19 (1999) 162 ALR 1 at 54.
20 (1999) 162 ALR 577 at 607.
21 Ibid at 38.
22 (1989) 166 CLR 518 at 580.
23 (1951) 83 CLR 1 at 262-263.
24 5 US 137 at 170 (1803).
25 For a rare reference see Monaghan, H P, “Marbury and the Administrative State” (1983) 83 Columbia L R 1CrossRefGoogle Scholar.
26 Bowen v Michigan Academy of Family Physicians 476 US 667 at 670.
27 9 Pet 8 at 28-29 (1835).
28 St Joseph Stockyards Co v United States 298 US 38 at 84 (1936); Schwartz, B, Administrative Law (3rd ed, 1991) at 482-483Google Scholar.
29 Quick, J and Garran, R, Commentaries on the Constitution (1901) at 788-789Google Scholar.
30 (1945) 70 CLR 598 at 606-607.
31 (1997) 191 CLR 559.
32 Ibid at 631.
33 (1945) 70 CLR 598 at 616.
34 (1993) 177 CLR 378 at 408.
35 Wade, W, Administrative Law (6th ed 1983) at 42Google Scholar.
36 For example, The Queen v Anderson; Ex parte !pee-Air Pty Ltd (1965) 113 CLR 177 at 189.
37 (1986) 162 CLR 24.
38 (1995) 184 CLR 163 at 179.
39 (1996)185 CLR 259.
40 (1998) 194 CLR 355.
41 For example, Council of Civil Service Unions v Minister for Civil Service [1985] AC 374.
42 This point is well made in Aronson, M and Whitmore, H, Judicial Review of Administrative Action (1996) at 110-115Google Scholar.
43 For example, Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.
44 The debate and the emerging common ground is discussed in Jowell, J, “Of Vires and Vacuums: The Constitutional Context of Judicial Review” [1999] PL 448Google Scholar and Craig, P, “Competing Models of Judicial Review” [1999] PL 428Google Scholar.
45 (1985) 159 CLR 550.
46 Ibid at 609.
47 (1990) 171 CLR 1 at 17-18.
48 (1994) 179 CLR 427.
49 Ibid at 437 per Mason CJ, Brennan, Gaudron and McHugh JJ.