Conceptualization as It Relates to Actual and Recommended Practices

This chapter explores various conceptualizations of what judges do and should do, and how these relate to understandings and evaluations. These conceptualizations, to a large degree, do help us to understand the significant differences between what judges typically do and don’t do, and also between what they should do and should not do. But unfortunately, these categorizations do not tell us exactly what judges do and whether their actions are warranted. There are two difficulties. The first is that like most moral and political concepts, the edges of coverage are not themselves precise, so there are numerous borderline instances of difficult cases for which it is arguable exactly how a particular strategy of resolution fits. The second problem is that one may conclude that a particular form of conceptualization should almost always be used to reach a result, but that in some instances it can be overridden by other considerations.