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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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The Normative Classification of Legal Results

The Normative Classification of Legal Results

Chapter:
(p.74) 5 The Normative Classification of Legal Results
Source:
Limits of Legality
Author(s):

Jeffrey Brand-Ballard (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780195342291.003.0005

This chapter draws a formal distinction between optimal and suboptimal results and uses that distinction to define suboptimal-result cases: cases in which the judge would have an all-things-considered reason to reach a different result than the result required by law, if the law permitted him to do so. It is explained why a case in which the law requires conviction for a malum prohibitum offense is not typically a suboptimal-result case. Numerous examples that reasonable people might regard as suboptimal-result cases are mentioned. Two assumptions underlying the existence of suboptimal-result cases are identified: that the law is at least partially determinate and that the legal system is imperfect. The chapter also explains why the existence of legal principles would not preclude suboptimal-result cases. It also addresses the question whether all suboptimal-result cases are “hard cases.”

Keywords:   suboptimal results, malum prohibitum, Warren Court, gap cases, indeterminacy, natural law, legal principles, hard cases

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