He applied the “Page 99 Test” to his new book, Limits of Legality: The Ethics of Lawless Judging, and reported the following:
On page 99 of Limits of Legality, you’ll find a statement that may shock you: Brown v. Board of Education was “impossible to justify in purely legal terms.” But don’t blame me. I’m just quoting a respected liberal law professor. He hastens to add that desegregating public schools was certainly correct from a moral standpoint, as I agree. Thus, page 99 draws you into the central topic of the book, although the focus on such a famous case is atypical.Learn more about Limits of Legality at the Oxford University Press website.
Virtually all legal scholars agree that Brown was morally correct, but they’ve long disagreed about how to characterize it from a legal standpoint. Some insist that the legal reasoning was correct, as well, while others see the decision as legally mistaken, albeit morally correct. A premise of my book is that judges hear cases, Brown perhaps being one, in which the law dictates results that judges might reasonably consider unjust or otherwise unacceptable. They face an ethical dilemma: should they apply the law faithfully or disregard it? My book is one of the few devoted entirely to this question. As a lawyer and philosopher, I treat it as a question in applied philosophical ethics.
For many readers the answer will be obvious: of course judges are duty-bound to uphold the law. It’s their job and they’ve sworn an oath to do it. This position is popular across the political spectrum. Liberals and conservatives may have opposing ideas about what the law requires, but they agree that judges must apply it, whatever it is. I put pressure on this popular assumption. Judges sometimes disregard the law, and most of Limits of Legality argues that they’re not always wrong to do so.
Page 99 goes on to consider the following objection to my position:The fact that a result upholding school segregation is immoral, all things considered, does not entail that the judge acts immorally, all things considered, by reaching that result if the law requires it.The rest of page 99 concedes this point and clarifies my intent. In the first half of the book, I argue that judges sometimes have moral reasons to disregard the law. In the second half, I address the obvious follow-up question: how powerful are these reasons?