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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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(p.270) 16 Implementation
Limits of Legality

Jeffrey Brand-Ballard (Contributor Webpage)

Oxford University Press

This chapter addresses two basic questions about implementing selective optimization: (1) to what extent should judges disclose or conceal the fact that they selectively optimize, and (2) are judges psychologically capable of internalizing selective optimization? It considers some familiar sexual orientation cases decided by the U.S. Supreme Court, including Lawrence v. Texas and Romer v. Evans. It is argued that some of Justice Antonin Scalia’s dissenting arguments demand a response and that selective optimization offers one. The chapter argues that although judges have a pro tanto duty of candor, this duty is often overridden in suboptimal-result cases. It is sometimes permissible, therefore, for judges to advance fallacious legal arguments without admitting it—for them to deviate surreptitiously. Some implications of selective optimization for the treatment of precedent are explored, as is the relationship between selective optimization and Cass Sunstein’s judicial minimalism. Finally, recognizing that consciously obeying selective optimization may be psychologically impossible for some judges, the chapter considers the possibility of unreflective judicial conformity to selective optimization.

Keywords:   judicial candor, esoteric theories, Lawrence v. Texas, Romer v. Evans, incest, Antonin Scalia, Cass R. Sunstein, judicial minimalism, self-effacing theories

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