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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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Treating Like Cases Alike

Treating Like Cases Alike

(p.253) 15 Treating Like Cases Alike
Limits of Legality

Jeffrey Brand-Ballard (Contributor Webpage)

Oxford University Press

In many legal systems, it would be wrong for judges to deviate in all suboptimal-result cases. Often they must choose between two cases in which deviation is equally warranted. This chapter defends the surprising claim that it is not, in principle, morally impermissible for them to choose randomly in such situations. This claim is defended against arguments from comparative justice (treating like cases alike) and Dworkinian integrity. Several different comparative justice principles are distinguished and it is explained when comparative justice is, and is not, an appropriate principle to apply. The emerging theory of adjudication is called selective optimization. Finally, the chapter considers when, if ever, judges should be blamed for adhering to the law.

Keywords:   comparative justice, fairness, equal treatment, integrity, Ronald Dworkin, checkerboard laws, randomizing, mixed strategies

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