In our view, there are only two plausible methods available to judges when they decide cases as a matter of common law, the ‘natural' model of decision-making and the ‘rule' model of decision-making.
We present these two models not as two competing understandings of judicial decision-making, but as two methods by which judges reach decisions, each of which is appropriate in some circumstances.
At the same time, we reject all other accounts of common law decision-making: the natural model and the rule model are the only two methods of decisionmaking logically available to judges.Within the natural model of judicial decision-making, judges rely on their own moral and empirical judgment to determine what outcome is best in the case before them and what guidance they ought to provide for future actors and judges. When judges operate within this mode of decision-making, prior judicial decisions are entitled to weight only insofar as they appear to reflect sound reasoning (see Moore 1987). Within the rule model of decision-making, judges treat rules announced in prior judicial opinions as authoritative, turning to the natural model of decision-making only when no rule applies or when they conclude that a governing rule is unsound and it is within their power to overrule it.
In some cases, prior opinions may hold that an indeterminate standard rather than a determinate rule is to be applied in future cases. In such cases, the current court will treat the prior decision as authorizing it to engage in natural reasoning within a defined sphere of inquiry. The announced standard may also place limits on the types of reasons the current court may consider in the course of its reasoning. This type of directive, however, does not authorize a different type of reasoning; instead it authorizes natural reasoning - ordinary normative and empirical reasoning - within certain predefined boundaries.
The natural model and the rule model accord different status to precedent decisions. When the natural model is in play, prior judicial decisions are simply facts about the world.
They represent past conclusions reached by judges in certain factual settings, which may have implications for what current judges should do but have no authority over current decision-making. When the rule model is in play, prior decisions are sources of law. In the next chapter, we will explain why we believe that these two models are the only intelligible ways to understand judicial decision-making and judicial treatment or precedent decisions.Judicial rule-making under the rule model of decision-making raises political questions that we will not address here. We assume throughout our discussion that the primary rule-making authority within the relevant community - usually a legislature - has delegated to courts both the task of adjudicating disputes and the power to announce rules that will govern future adjudication in the absence of overriding legislation. In making this assumption, we set aside a variety of questions about the extent to which judicial rule-making is reconcilable with representative democracy or other political ideals. Our point is not a political one but an analytical one: politics aside, nothing about the role of adjudication precludes adjudicators from either formulating rules for future cases or accepting rules set out in prior cases as authoritative.
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