Courts, Reasons, and Rules

Abstract

Professor Frederick Schauer's work on legal reasoning is an ideal subject for a collection of critical commentary because it focuses on variations on a single theme: rules and rule-like reasoning. Schauer is not, however, a johnny-one-note. His endorsement of rules is always contingent and contextual. Under some circumstances, he tells us, rules have a certain kind of utility. Schauer's defense of rules is a fox's defense, not a hedgehog' s.

Thus, rather than attempt a global assessment of Schauer's views, I shall, in the spirit of his work, limit my commentary to one subject: the creation of rules by courts (as opposed to legislatures or other institutions). Although I am sympathetic to many of Schauer's views about rule-guided decision-making, I am dubious about Schauer's effort to break down the distinction between legislatures and courts. That effort continues a well-established project of legal realism; and like legal realism more generally, if accepted, Schauer's view would undermine the legitimacy of judicial decision-making. In my view, but apparently not in Schauer's, courts act with greater legitimacy when their opinions do not read like statutes.

Keywords: rules, reasoning, courts, judicial decision making, Schauer