This article discusses the notion that a judge’s obligation to obey precedent should, if circumstances require, be overridden in an effort to oppose gross injustices and violations. Even in the face of critisicim and outrage, judges, because of their intimate knowledge of the system and unique vantage point, have a duty to speak out against any law that they find morally repugnant and to expose injustices wherever they can. The article analyses the various actions that judges may take to avoid enforcing laws that they believe to be fundamentally unjust, including the option of resignation and the power of lower courts to break away from higher-court precedents. The article also explores the way that sentencing guidelines have led to a paradigm of judicial reaction to unjust laws and discusses the efforts of judges to circumvent the guidelines in overly harsh situations, stating that much more can and should be done to improve sentencing.
Jack B. Weinstein,
Every Day Is a Good Day for a Judge to Lay Down His Professional Life for Justice ,
32 Fordham Urb. L.J. 131
Available at: http://ir.lawnet.fordham.edu/ulj/vol32/iss1/6