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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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Guidance Rules

Guidance Rules

(p.233) 14 Guidance Rules
Limits of Legality

Jeffrey Brand-Ballard (Contributor Webpage)

Oxford University Press

This chapter asks what guidance rules judges might use to implement the moderate rule defended thus far (individual policy) The discussion shifts from objective appraisal rules to subjective guidance rules. The chapter responds to Alan H. Goldman’s objections to rules that permit judges sometimes to deviate in suboptimal-result cases, as they attempt to optimize. The chapter defends guidance rules that permit each judge to deviate in a certain percentage of the suboptimal-result cases that she decides over the course of her career. It also defends two priority rules for judges. The first rule assigns deviation priority to cases based on how suboptimal the legally required results are. The second rule assigns priority to suboptimal-rule cases over gap cases. The chapter also defends a default rule that permits judges, after they obey the priority rules, to use any morally permissible criteria as the basis for their selection of suboptimal-result cases for deviation. Finally, it addresses the question of how confident a judge must be that a result is suboptimal before deviation is warranted.

Keywords:   guidance rules, uncertainty, risk, epistemic argument, informational cascades, herd behavior, threshold, Gustav Radbruch, emissions trading, evidentiary standards

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