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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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Theoretical Implications

Theoretical Implications

(p.292) 17 Theoretical Implications
Limits of Legality

Jeffrey Brand-Ballard (Contributor Webpage)

Oxford University Press

This chapter examines more restrictive theories of rule guidance, including those of legal formalists such as Larry Alexander and Frederick Schauer, and that of an exclusive positivist, Scott J. Shapiro. The chapter shows that their arguments do not impugn selective optimization. Shapiro’s constraint model of rule guidance is examined and found to be partially compatible with selective optimization. Shapiro’s practical difference thesis is also reconciled with selective optimization, albeit not in a way Shapiro is likely to favor. The chapter concludes by briefly contrasting selective optimization with Richard A. Posner’s legal pragmatism and Lawrence Solum’s theory of equity.

Keywords:   formalism, Scott J. Shapiro, Larry Alexander, Frederick Schauer, Richard A. Posner, Lawrence Solum, practical difference thesis, exclusive positivism, equity, legal pragmatism

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