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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.308) 18 Conclusion
Limits of Legality

Jeffrey Brand-Ballard (Contributor Webpage)

Oxford University Press

This chapter summarizes the previous chapters and explains how selective optimization casts doubt on the legalistic rhetoric that is common to lawyers, judges, and critics of the bench. The case is made for distinguishing, in many contexts, between the claim that a judge has deviated from the law and the claim that she has acted impermissibly, all things considered. This book makes the case that this distinction is often crucial, and that much criticism of lawless judging is, accordingly, erroneous or misleading. The fact that a judge has deviated is not, in itself, a reason for censure, impeachment, removal, or any form of retaliation against her. It is not even a reason to vote against a judge when she runs for reelection, or a reason for a senator to vote against confirming a presidential nominee to the bench. Only a pattern of excessive deviation provides such reasons. Traditional theories of adjudication constrain judges to an extent that cannot be easily justified.

Keywords:   rule of law, lawlessness, legalism, judicial misconduct, censure

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