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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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Deviating from Legal Standards

Deviating from Legal Standards

(p.35) 3 Deviating from Legal Standards
Limits of Legality

Jeffrey Brand-Ballard (Contributor Webpage)

Oxford University Press

This chapter first discusses judicial incentives to perform their official duties. It then distinguishes between various ways in which judges can take legal standards into account. A judge can deviate from a legal standard or adhere to it. Deviating from a legal standard is not the same as exercising discretion. Nor is it the same as deviating from the law, simpliciter, which is the main subject of the book. Contrasts are drawn with studies by Ronald Dworkin and by Mortimer and Sanford Kadish. The definition of judicial activism is discussed, as are the various mental states that judges have when they deviate from the law.

Keywords:   judicial discretion, principles, legal realism, judicial review, Mortimer and Sanford Kadish, recourse roles, Ronald Dworkin, precedent, knowledge liability, judicial activism

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