Document Type

Article

Publication Date

1985

Abstract

The easiest way to deal with unjust discrimination is to ban it. We could simply adopt a rule that says "unjust discrimination is prohibited" and use it to resolve any discrimination case that happened to arise. Certainly, no one would object to the sentiment expressed in such a rule. But some might find the prohibition, too imprecise to be of much help in resolving particular cases. Such a rule would leave judges with no choice but to fall back on their subjective values in deciding whether given instances of discrimination were or were not "unjust." Indeed, because resolution of legal disputes based upon nothing more than the subjective preferences of judges is inconsistent with our conception of justice, we have chosen to rely on more elaborate doctrinal rules in order to facilitate principled resolution of our legal disputes. In theory, conscious recourse to doctrine permits judges to decide cases in accordance with neutral principles. The principles, in turn, serve as generally agreed-upon bases for decision, which are sufficiently objective to guard against potential judicial bias.

The theory never works perfectly, of course, and it is now widely recognized that even the most neutral-sounding principles both reflect normative preferences and frequently fail to prevent bias from intruding into the decision making process. In fact, some of the most erudite legal scholarship has traditionally been directed at the question of how to reconcile our continuing desire for neutral objectivity with the seemingly inevitable influence of subjective values on legal analysis. My thesis is that no matter how elaborate we make our legal rules, judges are necessarily doing the same thing that they would do if we told them nothing more specific than to prevent unjust discrimination.

Publication Citation

73 Geo. L. J. 1041 (1984-1985)

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