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Publication Title

Washington University Law Quarterly

Abstract

We use the term “legitimacy” here in a special way: legitimacy is the willingness of people, for a variety of reasons, to defer to the decisions of judges—even if they lose. People may so defer (grant legitimacy) because they feel that the law in their case was fair and impartial, or, if they do not like the law, because the judge appeared to exercise his discretion to look out for their interests. They may defer because the law in point is politically determined and amenable to change, or because in its application the judge applied generous measures of common sense. In short, the citizen may grant legitimacy to the court for substantive reasons (he wins, he likes the outcome, he feels the law protects his interests), or for procedural reasons (decisions are made honestly, by good men, who arrive at their decisions in widely agreed-upon ways). What follows is an examination of these foundations of legitimacy, of the reasoning employed by legal scholars to explain the wide and powerful support that our courts have enjoyed, and in particular the notion of a “judicial myth” which underpins a procedural foundation for legitimacy.

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