Straddling The Fence Between Truth And Pretense: The Role Of Law And Preference In Judicial Decision Making And The Future Of Judicial Independence

Describes the traditional, law-based model of judicial decision making & the emerging preference-based model. It is asserted that a fundamental disagreement over which model bests describes what judges do animates contemporary debates on various legal issues, eg, judicial selection, judicial speech regulation, optimal rules for judicial disqualification, & the judicial independence-accountability relationship. It is contended that the dichotomy between the law- & preference-based models is false because law & preferences have a role to play in judicial decision making. However, it is maintained that the primacy of the law-based model rests on the fear that departing from it threatens to undermine the key justification for judicial independence, ie, that only law informs decision making. It is argued that other justifications for independence exist & ought to be accommodated; six reasons why judicial independence can be defended despite the fact that judges' personal values & policy preferences may influence their decisions are presented. Adapted from the source document.