[jfengel]

What drives me nuts is the way lawyers (of all stripes) keep praising "legal reasoning". None of it strikes me as even vaguely rigorous.

I'm not a lawyer so I could well be completely off base here. But if my perception is correct, I would much rather they admit that it's fundamentally up to someone's gut feeling. That's more honest than telling me that a bit of reasoning is airtight when it's not.

[lanyard-textile]

The true honesty is that judges may rule however they please, regardless of the reasoning. In many cases they require their intuition to guide them. In that sense, it is already up to their gut feeling.

At some point someone needs to weigh the facts, and they are given great discretion to do so. It is generally a good thing, because we have multiple layers of appeal to prevent obviously horrible outcomes.

So this legislation, like all legislation, provides guidance for the good faith judge to help weigh the facts. There is no guidance that will prevent a bad faith judge from ruling badly: You do not need a clause about public safety to get the ruling you want, but there is an argument that your ruling may perhaps be less scrutinized.

There’s a reason an attorney’s answer is always “it depends” :) No legislation is truly airtight from abuse.

[DrewADesign]

A judge can rule however they please, but if it goes against legislated law or precedent, it can (and should) be appealed. Sure, if the highest appellate determines the law says something different than it really does, that’s that, but it’s not like most judges have carte blanche to determine the outcome of any legal entanglement on a whole.