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Limits of LegalityThe Ethics of Lawless Judging$
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Jeffrey Brand-Ballard

Print publication date: 2010

Print ISBN-13: 9780195342291

Published to Oxford Scholarship Online: September 2010

DOI: 10.1093/acprof:oso/9780195342291.001.0001

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Introduction

Introduction

Chapter:
(p.3) 1 Introduction
Source:
Limits of Legality
Author(s):

Jeffrey Brand-Ballard (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780195342291.003.0001

This chapter introduces the central dilemma of the book: judges who must decide cases in which the law requires a result that they believe to be morally objectionable or bad public policy. The conventional wisdom is that judges must adhere to the law in such cases, at least in reasonably just systems. Judges are regularly criticized for deviating from the law, and are increasingly threatened with reprisals for doing so. This chapter illustrates the topic with concrete examples and summarizes the arguments ahead. It focuses the discussion on legally clear cases, rather than unclear cases, and distinguishes the question of judicial deviation from the more familiar question of departures from horizontal precedent. Relations between this project and the literatures on political obligation and rule following are explained.

Keywords:   precedent, clear cases, judicial activism, rule following, political obligation

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