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To Deviate or Not to Deviate

To Deviate or Not to Deviate Res Publica (2011) 17:405­410 DOI 10.1007/s11158-011-9149-z Jeffrey Brand-Ballard. 2010. Limits of Legality: The Ethics of Lawless Judging. Oxford University Press: New York, 354 pp. Ronald C. Den Otter Published online: 1 April 2011 Ó Springer Science+Business Media B.V. 2011 In 1987, California voters recalled Chief Justice Rose Bird and two of her colleagues for overturning death sentences on appeal. Those who had opposed what Bird was doing invoked the specter of judicial activism, claiming that she had relied illegitimately upon her own convictions about the morality of capital punishment. Today, the charge of such activism continues to be thrown around indiscriminately, increasingly by liberals who disagree with important decisions of the Roberts Court. The trouble with the distinction between activism and restraint is that what the law requires is often far from self-evident. Thus, especially in hard cases, judges, lawyers, scholars, and others are likely to disagree sincerely and reasonably about the correct outcome. In defending Bird, one could argue that, properly interpreted, the law supported her legal conclusions. Or, more controversially, one could insist that judges may be justified in reaching outcomes that conflict with the law. In Limits of Legality, Jeffrey Brand-Ballard opts for the latter, http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Res Publica Springer Journals

To Deviate or Not to Deviate

Res Publica , Volume 17 (4) – Nov 1, 2011

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Publisher
Springer Journals
Copyright
Copyright © 2011 by Springer Science+Business Media B.V.
Subject
Philosophy; Ethics; Political Philosophy; Philosophy of Law; Philosophy of Religion; Philosophy
ISSN
1356-4765
eISSN
1572-8692
DOI
10.1007/s11158-011-9149-z
Publisher site
See Article on Publisher Site

Abstract

Res Publica (2011) 17:405­410 DOI 10.1007/s11158-011-9149-z Jeffrey Brand-Ballard. 2010. Limits of Legality: The Ethics of Lawless Judging. Oxford University Press: New York, 354 pp. Ronald C. Den Otter Published online: 1 April 2011 Ó Springer Science+Business Media B.V. 2011 In 1987, California voters recalled Chief Justice Rose Bird and two of her colleagues for overturning death sentences on appeal. Those who had opposed what Bird was doing invoked the specter of judicial activism, claiming that she had relied illegitimately upon her own convictions about the morality of capital punishment. Today, the charge of such activism continues to be thrown around indiscriminately, increasingly by liberals who disagree with important decisions of the Roberts Court. The trouble with the distinction between activism and restraint is that what the law requires is often far from self-evident. Thus, especially in hard cases, judges, lawyers, scholars, and others are likely to disagree sincerely and reasonably about the correct outcome. In defending Bird, one could argue that, properly interpreted, the law supported her legal conclusions. Or, more controversially, one could insist that judges may be justified in reaching outcomes that conflict with the law. In Limits of Legality, Jeffrey Brand-Ballard opts for the latter,

Journal

Res PublicaSpringer Journals

Published: Nov 1, 2011

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