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ABSTRACT. Several philosophers have argued recently that morally optimal rules of law authorize morally suboptimal decisions in certain cases. Should judges in such cases defer to legal rules or deviate from them? Formalists favor deference, particularists favor deviation. This paper partially supports and partially challenges formalism. Some of the arguments for formalism look persuasive at first, but I question two of these, both advanced in Alan Goldman’s (2002) book, Practical Rules. These include an argument from comparative justice (treating like cases alike) and an epistemic argument. I argue that the justice argument is, interestingly, inconsistent with the standard argument for formalism. This leaves the defense of formalism resting on the epistemic argument. Formalists have done little to substantiate the epistemic argument, however, and I argue that they have overstated its force. I conclude that formalists ought to qualify, although not abandon, their commitment to comparative justice. (pp. 73–85)

JEFFREY BRAND-BALLARD
George Washington University
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