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Rationality and Sustainability of Judicial Practice

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settlement. Distinguishing precedent rules, which is really overruling precedent rules, can undermine the settlement value of existing rules.
Apart from these potential adverse consequences, the conventional practices we have mentioned suffer from two problems of a deeper kind.
First, judges do not consciously adopt these methods as indirect strategies for reducing error; instead, they draw analogies, announce narrow rules,
and distinguish precedent rules because they believe this is the right way to decide cases. In other words, judges have, in a sense, tricked themselves
into adopting what might well be good rule-making habits. This state of affairs is hard to reconcile with the ideal of legal decision making as a
publicly accessible process based on reason.
The element of unreason is most evident in the case of analogical deci- sion making: judges deciding by analogy purport to resolve disputes on
grounds that are logically unavailable. Conventions that restrict judicial rule making to rules that explain the outcome of adjudication are more
straightforward, but they treat a cautionary strategy as a limit on judicial power. The practice of distinguishing precedent rules disguises overrul-
ing as something more modest. In each case, the practice in question is justifiable, if at all, for reasons of which practitioners are unaware.
Indirection and self-deception are common enough in law.
Rules themselves illustrate this point. As we noted in Chapter 1, legal rules serve
moral values indirectly. Rules reduce the errors of natural reasoning by prescribing answers in a form that will sometimes yield the wrong results.
As a consequence, following rules means acting against the balance of reasons in some cases. Acting against the balance of reasons is not rational.
Therefore, to accept the authority of rules, one must convince oneself that following the rule is the right thing to do in every case, even though
it is not.
Self-deception of this kind allows rules to perform the morally valuable function of settling controversy, but it is nevertheless disturbing.
See Larry Alexander, Pursuing the Good – Indirectly, 95 Ethics 315 1985. On the ethical and practical problems of indirection and deception, including self-deception, see, e.g., Alexander
and Sherwin, supra note 3, at 89–91; Thomas Schelling, The Strategy of Conflict Cambridge, Mass.: Harvard University Press 1980; Larry Alexander and Emily Sherwin, The Deceptive
Nature of Rules, 142 U. Pa. L. Rev. 1191, 1211–25; Gregory Kavka, The Toxin Puzzle, 43 Analysis 33 1983; Gregory Kavka, Some Paradoxes of Deterrence, 75 J. Phil. 285 1978.
See Alexander and Sherwin, supra note 3, at 553–95; Schauer, supra note 2, at 128–34; Chapter 1, supra, text at notes 18–25.
Any departure from reasoned decision making, even if justifiable on reasoned grounds, is a cause for regret.
The second problem is a practical one. Because the conventional judi- cial practices we have described involve self-deception and irrationality,
they are also unstable. If lawyers and judges come to understand that con- ventional practices are not rationally defensible on their own terms, they
may cease to accept those practices, and whatever benefits conventional practices hold for rule making will be lost. Analogical reasoning appears
to be firmly established at present: our critical analysis of analogical methods is not likely to prevail over pervasive legal training and profes-
sional acceptance. Careful factual comparisons, however, may eventually give way to quicker word-based searches for applicable rules.
Judicial diffidence in rule making may be more vulnerable, as judges come to
accept that they possess a full complement of rule-making power. There are also indications that courts have become more comfortable with
direct overruling of precedent rules, and therefore may be less likely to search past cases for distinguishing facts.
The common law, therefore, stands on movable ground. The rule model of judicial decision making, which allows the common law to
function as law and to settle controversy, is defensible only when judicial rules are justified as rules, and only when judicial rules are generally
followed. Rule following depends on the willingness of judges and actors to apply rules even when the results the rules prescribe conflict with their
own best judgment. To the extent that practices we have discussed in this chapter are important to the quality of judicial rules, the justification
of precedent rules also depends in part on conventional attitudes and practices of judges. It follows that perfect rationality can subvert the
conditions for sound and effective common law.
See Helen Hershkoff, State Courts and the “Passive Virtues”: Rethinking the Judicial Function, 114 Harv. L. Rev. 1833, 1844–52 2001 discussing advisory opinions in state courts; Tiersma,
supra note 14, at 56–61, 66–68 tracing an increase in explicit judicial “holdings”.
See Zenon Bankowski, D. Neil MacCormick, and Geoffrey Marshall, Precedent in the United Kingdom, in Interpreting Precedents, supra note 8, at 315, 342 discussing English practice;
Tiersma, supra note 14, at 61–62 noting an increase in explicit overruling by American courts.
Reasoning from Canonical Legal Texts
n the previous part we have focused on common-law reasoning by judges and have concluded that there is nothing special about
it. In cases unconstrained by precedent, judges use ordinary moral
reasoning – the method of reflective equilibrium – and ordinary empirical reasoning to decide controversies and to craft precedent rules for future
cases. In cases that are constrained by precedential rules, judges use ordinary deductive reasoning. Reasoning from results in precedent cases
rather than from rules, reasoning by analogy from precedent cases, and reasoning from legal principles that emerge from precedent cases have
all been shown to be illusory as forms of legal reasoning. The results of such special forms of “reasoning” – special in that they are deemed
uniquely emblematic of the legal craft – lack rational force. They are some combination of indeterminate, incoherent, and normatively unattractive.
In a limited sense, what appear to be such types of “reasoning” may reflect some useful heuristics for judicial decision making in certain kinds of
cases. But they do not qualify as forms of reasoning themselves. Legal
reasoning in common-law cases, to the extent it is reasoning at all, is nothing more than ordinary moral, empirical, and deductive reasoning.
Legal training is not required to do it, or to do it well.
In this part we turn our attention to another precinct of legal rea- soning, that of interpreting canonical authoritative rules promulgated by
lawmakers of various types. The lawmakers can be legislators enacting statutes, administrators promulgating rules under either their delegated
or their inherent authority to do so, or judges establishing precedent rules under the rule model of precedent. The lawmakers whose rules are
in question can be solitary natural persons – the president or the mayor, for example – or they may be multimembered institutions such as leg-
islatures, administrative agencies, and appellate courts. We deal with constitutions and those who “enact” constitutions in a chapter devoted
just to those topics and therefore ignore them here.
Governing society by rules requires not only that lawmakers promul- gate rules but also that those rules be understood by those who will be
guided by them, including lawyers helping clients navigate the corpus juris and representing them in legal disputes, and judges adjudicating
cases arising under the rules. Ideally, the meaning of the rules would be clear to all concerned. After all, as we have said, clear guidance is the
rules’ raison d’ˆetre. Realistically, that will never be the case universally. The meaning of some rules will be unclear to some people. Moreover,
even when the meaning of the rules is clear, it is worth reflecting upon how one determines what a promulgated rule means. When a rule’s
meaning is clear, what makes it so? And when a rule’s meaning is unclear, how do we clarify it? It is to these topics that we now turn.
Interpreting Statutes and Other Posited Rules
What kind of “reasoning” or methodology is employed when judges, lawyers, administrators, and ordinary citizens interpret statutes or other
humanly authored and promulgated posited laws? Is the interpretation of laws a special form of reasoning, a methodology learned only in
law schools?
The reader will not be surprised that we do not regard legal interpreta- tion as some special technique that imbues the notion of legal reasoning
with a mystique. Our view is the commonsense, person-on-the-street view: posited laws are nothing more or less than communications from
lawmakers to others regarding what the lawmakers have determined the others should do. If, for example, the legislature passes a statute that
states, “No property owner shall keep a bear within one thousand feet of a private residence,” the statute represents the legislature’s determina-
tion of what property owners should do regarding any bears they might possess and probably what sheriffs, judges, and others should or may do
if property owners do not act accordingly.
Our starting point, therefore, is that, aside from the irrelevancy that it makes a demand rather than a request, such a statute is fundamentally
no different from a letter written by Mom requesting that you put out the dog the next time she comes to visit, or a note signed by your two kids
asking you to rent a movie on your way home. The statute, Mom’s letter, and the kids’ note all refer to some behavior that is either demanded or
requested. And each may pose identical problems of interpretation.

I. The Goal of Legal Interpretation: The Lawmaker’s Intended Meaning

In the cases of Mom’s letter and the kids’ note, what are we seeking when we interpret? When the meaning is clear, what makes it so? When the
meaning is unclear, what clarifies it? The answer seems obvious. What we want to know is what is the meaning that Mom or the kids intended
to convey
– what is called the speaker’s meaning.
Now a moment’s reflection will reveal that most of us, even with- out legal training, are pretty good at divining speakers’ meanings. We
are constantly doing it after all. Of course, in probably a majority of instances we are aided by the fact that those whose intended meanings
we are seeking express their intended meanings felicitously: they choose apt words or other signs and array them in an apt syntactical and gram-
matical manner. But even when they express their intended meanings infelicitously, we are usually pretty adept at figuring out what meaning
they intended. We know something about them and about the context in which they are writing or speaking.
See Stanley Fish, There Is No Textualist Position, 42 San Diego L. Review 629 2005; Steven Knapp and Walter Benn Michaels, Not a Matter of Interpretation, 42 San Diego L. Rev. 651
2005; Larry Alexander and Saikrishna Prakash, “Is That English You’re Speaking?” Why Inten- tion Free Interpretation Is an Impossibility, 41 San Diego L. Rev. 967 2004; Larry Alexander,
All or Nothing at All? The Intentions of Authorities and the Authority of Intentions, in Law and Interpretation: Essays in Legal Interpretation 357–404 A. Marmor, ed., Oxford: Clarendon
Press 1995. See generally Larry Alexander and Emily Sherwin, The Rule of Rules: Morality, Rules, and the Dilemmas of Law Ch. 5 Durham: Duke University Press 2001.
Paul Grice, Studies in the Way of Words 86–137 Cambridge, Mass.: Harvard University Press 1991.
Consider Mom’s request to put out the dog. Given what you know about Mom – that she is an English speaker, who is somewhat afraid of
dogs but loathes cruelty toward them – you would know that you were not honoring her request if instead of sending Rover to the backyard when
Mom arrived, you teased Rover to the point of frustration you “put out” Rover. Similarly with the kids’ request: you would know that you were
not honoring it were you to stop by Blockbuster, slash a DVD with a knife, and then proceed home although you did “rent” a movie. You
know in both cases that you are not honoring the requests because you know the speakers’ intended meanings. If, on the other hand, your Mom
relished cruelty to animals, and your kids were rental movie terrorists, you might well have been honoring their requests.
Or suppose Mom has never mastered the distinction between auto- bahn and ottoman, and she leaves you a note requesting that you pull
up the “autobahn” next to the sofa when she comes to visit. You surely know what to do, and it isn’t to run a German highway through your
We are good at gleaning intended meanings despite infelicities in diction, spelling, grammar, punctuation, and syntax. The reason why
the sign outside the church – “In despair and seeking to end it all? Let the church help” – is funny is because we know the meaning that was
intended. Similarly, we know the ratifiers of the Seventeenth Amendment did not intend that it expire in six years, despite the comma that would
otherwise signal that meaning.
And we know the Arkansas legislators, in enacting an obscure statute, did not intend that “all laws . . . [be]
hereby repealed.”
Our point is the banal one that just as we do with requests or demands from Mom, the kids, and others in daily life, we seek the speaker’s
intended meaning when we wish to interpret a legally authoritative com- munication in the form of a statute or an administrative or judicial rule
or order. Interpretation in law as in life is a search for speaker’s meaning.
See Alexander and Prakash, supra note 1.
“The Senate of the United States shall be composed of two Senators from each state, elected by the people thereof, for six years. . . .” U.S. Const. amend. XVII.
See Cernauskas v. Fletcher, 201 S.W.2d 999 1997 holding that law containing the fractured boilerplate “all laws . . . are hereby repealed” did not in fact repeal all of Arkansas’s laws.
See Fish, supra note 1.

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