7.2 Some indirect correctives to the problems of judicial rule-making

The method of judicial decision-making we support involves a combi­nation of natural reasoning and deductive reasoning from rules. The rules judges rely on include not only legislated rules but also authorita­tive precedent rules announced in prior cases.

In the sections that follow, we speculate that some of the traditional methods of the common law - methods we have rejected on the ground that they are not logically supportable - may have the unin­tended side effect of improving the quality of judicial rules. We make this suggestion with caution. The methods we discuss do not address the problem of rule-making directly, and the correctives they provide are partial at best.

7.2.1 Searching for analogies, reasons, or legal principles

We have argued that factual analogies between cases provide no guid­ance in legal decision-making: judges who appear to rely on factual analogies are in fact relying on moral principles and empirical con­clusions that establish connections between the facts of two different cases. Similarly, we have argued that the facts and outcomes of prior cases do not yield legal ‘reasons' for decision in current cases. We have also argued that ‘legal' principles constructed from patterns of past decisions do not constrain decision-making in any meaningful way, and that if they did their effect would be to entrench past errors. If we are correct that purely analogical reasoning, reasoning from facts and outcomes, and reasoning from reconstructed legal principles are logically spurious methods of decision-making, then it follows that the only sound way to decide a case is by unconstrained moral and empiri­cal reasoning or deduction from authoritative rules.

Judges nevertheless purport to follow these methods in making deci­sions, and lawyers make related arguments in favor of their client's positions. Although we reject these forms of decision-making and argu­mentation on logical grounds, it is possible that the various practices judges and lawyers engage in in pursuit of factual analogies, reasons, or legal principles have positive effects on the quality of judicial rules. The most serious impediment to effective judicial rule-making is the possibility that judges will be distracted by salient facts of the cases before them and as a result will fail to appreciate the broader effects of the rules they announce. A judge deciding a nuisance case involv­ing a pit bull who recently attacked a child may respond with a rule forbidding pit bulls in residential neighborhoods without giving full and fair attention to statistical evidence about dog behavior. If the judge believes she must look for analogous cases or legal principles immanent in past cases before reaching a decision in her pit bull case, then, whether or not analogies and legal principles are real entities, her search for them may widen her perspective as a rule-maker. She may, for example, study cases in which various dogs have behaved aggressively and various others have not, and as a result conclude that a dog's breed is not the best criterion for assessing whether the dog is a nuisance. The judge may then choose a narrower rule (‘pit bulls with a record of aggressive behavior are nuisances'), a different rule (‘unsupervised dogs are nuisances'), or no rule at all because too many variables are in play.

In situations of this kind, what judges think of as analogical reasoning, legal reasons, or construction of legal principles might be described more accurately as the application of a type of professional ‘know-how' that broadens the judge's inquiry beyond a single salient set of facts.^[62] Lawyers are trained to study and compare intuitively similar past cases, formulating explanatory principles and testing them against examples.

Ideally, analogy-seeking and related decisional processes would not be necessary. Judges would simply engage in natural reasoning about the content of their rules, testing tentative formulations against examples drawn from past cases, other legal and extra-legal sources, and hypo­thetical cases. In practice, however, time pressure, preoccupation with the task of resolving a dispute, and the cognitive effects of readily avail­able facts are likely to cut short the process of deliberation. Under these circumstances, the traditional understanding that analogies to past cases, or legal reasons drawn from past facts and outcomes, can and should guide judicial decision-making, could prompt judges to study a broader array of factual possibilities than they otherwise might, which in turn might improve the quality of judicial rules.

The rule model of judicial decision-making can also help to broaden a judge's perspective beyond current litigation, simply because the judge must consult prior cases to determine whether her own case is covered by a rule. Analogical processes, however, are more effective for this purpose because they require judges to engage with the facts of prior cases, make comparisons, and explain why certain common facts are or are not important. And, of course, analogical techniques come into play even when the current case is not covered by an authoritative rule.

Analogical methods, however, are not without risks. If the judge takes seriously the idea that an unexplained intuition of similarity provides a reason to reach a parallel result, or that past facts and outcomes yield reasons, she may reach a decision without thinking at all: pit bulls are like ocelots because they have pointy ears. Both analogical decision­making and construction of legal principles have the additional prob­lem that, by definition, they entrench past mistakes. Our defense of these techniques, therefore, is cautious and quite limited.

7.2.2 The scope of precedent rules

The obstacles we have described to effective rule-making by judges sug­gest that judges should be cautious in issuing rules. The ideal response would be to avoid rule-making when the distractions and biases that result from their role as adjudicators are particularly likely to affect their judgment in the rule-making role. Distractions and biases, how­ever, are difficult to identify from a subjective point of view. Therefore, the better approach may simply be for judges to limit the scope of their precedent rules. This will not eliminate the dangers associated with judicial rule-making, but it will tend to limit the damage that results from faulty rules.

In fact, judges typically are cautious about rule-making. They tend to limit the scope of their rules to what is reasonably necessary to resolve the dispute before them. In a nuisance action involving a pet bear, the judge might address the status of wild animals in residential areas but is unlikely to lay down rules about lawn-mower noise or other catego­ries of nuisance. When a precedent judge crosses the conventional line between pertinent and irrelevant rule-making, later judges may interpret her statements as non-binding dicta, even if those statements use language associated with rules. If the judge in a case involving a bear discusses optimal lawn-mowing times, later judges will likely treat her statements as thoughts or suggestions rather than as rules.

Apart from conservative judicial conventions in the area of rule­making, analogical methods can also have a limiting effect on judicial rules. In the previous chapter we made the case that, setting aside purely intuitive conclusions about similarity, reasoning by analogy amounts to formulating rules that link together past and present cases and support like outcomes. ‘Analogy-warranting' rules of this type are announced by the second court as a reason to replicate the outcome of a prior case. They tend to be modest in scope both as a matter of convention and because connections between two sets of facts are easiest to articulate in modest terms. If a prior judge held that a pet bear was a nuisance, and a current judge considering the status of a pet ocelot determines that the two cases are relevantly alike, she is more likely to choose a rule such as ‘dangerous wild animals kept in resi­dential neighborhoods are nuisances' rather than a broader rule such as ‘dangerous possessions kept in areas where they might cause harm are nuisances'. From the point of view of the judge, the narrower rule communicates the similarity between cases more effectively and is less likely to conflict with the outcomes of other prior cases. Meanwhile, in terms of rule-making, the narrower rule will do less harm if it turns out to be misconceived.

7.2.3 Distinguishing rules

The rule model of judicial decision-making that we have defended rec­ognizes judicial power to announce authoritative rules that govern not only the case before the rule-making judge but also future cases that fall within the rule's terms. Correspondingly, the rule model recognizes judicial power to overrule precedent rules, or to overrule precedent rules and replace them with new rules. The rule model, however, does not authorize judges to distinguish precedent rules - that is, to leave an existing precedent rule in place but decline to apply it to a set of facts that falls within the rule's terms but was not present in the case in which the rule was first announced.

Logic dictates the position we have just described. Rules are not prin­ciples intended to guide reasoned disposition of cases; they are edicts that are set forth in determinate language and apply to all sets of facts covered by the language of the rule. To exempt a covered case is to abolish the rule and replace it with a different rule. The point of a rule is to preempt natural reasoning in the interest of settlement and coordinated action. If the rule is justified, it is justified as a whole; if it is not justified it should be eliminated.

Judges traditionally have taken a different approach to precedent rules than the rule model supports. They tend to be cautious about over­ruling precedent rules; at least they do not regularly repeal them, as a legislature might. Instead, they claim to distinguish precedent rules, making exceptions based on perceived factual differences between a case currently before them and past cases in which courts have fol­lowed the rule.

In our view, distinguishing rules is not a form of partial rule-following. When a later judge distinguishes a precedent rule, the original prec­edent rule has no impact on the outcome of the pending case and differs in content from the new, ‘modified' rule. Nor do the facts of the precedent case impose any constraint on the pending decision: any factual difference at all between the two cases can be a basis for distinguishing, and thus avoiding, the precedent rule. Maybe the pro­cess of distinguishing is purely intuitive; maybe it depends on some undisclosed principle that, in the mind of the new judge, makes the two cases relevantly different. Either way, distinguishing rules amounts to the elimination of an existing rule and the substitution of something new.

Although we believe that distinguishing precedent rules is not a logi­cally supportable practice, the process of drawing distinctions may have practical benefits similar to the benefits of analogical techniques. In order to distinguish a precedent rule, the current judge must study the facts of the case in which the rule was announced and any subse­quent cases in which courts applied the rule. In the process, the judge is likely to encounter concrete examples of cases in which the rule performed well, and in this way may come to appreciate the benefits of a reliable rule. Alternative factual examples may also help dispel cognitive distortions resulting from the judge's preoccupation with the facts of the case before her. Accordingly, the thought process in distin­guishing the rule may sometimes act as a brake on hasty modification of rules.

For example, suppose a judge has before her a nuisance case involving a gentle retired circus bear who has lived uneventfully in its owner's home for years. A precedent rule holds that ‘bears in residential neigh­borhoods are nuisances'. At first glance, the current judge believes that this rule should be distinguished because the bear before her is well mannered, and its removal would be very hard on both the owner and the bear. Her instinct, therefore, is that the rule should not apply. Under the rule model, it is within her power simply to overrule the rule, so that each nuisance case involving a bear will be judged on its own merits and the bear before her can stay. If instead, the judge follows the more traditional practice of distinguishing precedent rules, she must study the facts of the case that established the rule and the facts of any other cases in which the rule was followed, in order to identify a factual difference in her own case that will support an exception to the rule. Following this course, she may then discover that, in the original case, a pet bear escaped and wandered into a school cafeteria, frightening chil­dren and teachers. She may also find that, in another case to which the rule applied, a previously well-behaved pet bear clawed a representative of a charitable organization canvassing door-to-door. These past facts provide competing narratives that may convince the judge of the value of an unqualified no-bear rule in a way that abstract arguments about the settlement benefits of authoritative rules would not.

The benefits to be gained from the process of distinguishing rules, however, are speculative, and they come at some cost. Distinguishing a rule, as compared to overruling the rule, gives the impression that judges are intervening only modestly with precedent rules. As we have said, this is false. When a judge distinguishes an existing rule, the rule is gone, and the balance it strikes between the inevitable errors of determinate language and the advantages of settlement and coordina­tion is no longer in effect. A new and different rule is substituted in its place. One danger of distinguishing is that the illusion of modesty may encourage judges to intervene more often than they would if they understood that they were in fact overruling existing rules. Another is that the resulting rules may not be well thought-out. For these reasons, we continue to be wary of the practice of distinguishing rules.

7.2.4 Summary: indirect effects of customary practice

In this book, we have suggested that, as a matter of logic, there are no special forms of reasoning available to lawyers and judges. Our ‘rule model' of the common law recognizes only ordinary moral and empiri­cal reasoning and deduction from authoritative rules. In practice, how­ever, judges often purport to use other techniques in reaching their decisions. They seek analogies in the facts of prior cases, they compare facts to reach ‘a fortiori’ conclusions, they deduce legal ‘reasons' from the facts and outcomes of prior cases, they ‘distinguish' precedent rules based on factual differences among cases, and they construct and apply uniquely ‘legal' principles to support their decisions. In our view, none of these is a viable form of reasoning, and none is capable of deter­mining the outcome of cases. They do, however, have indirect effects that can benefit judicial decision-making. In particular, they widen the scope of inquiry beyond a single case and thus counteract the cognitive impact that too great a focus on particular facts may have on the qual­ity of judicial rules. This observation, if correct, may help to reconcile our rule model of the common law with the conventional behavior of lawyers and judges.

7.3