Comparison Excluding Commitments: Incommensurability, Adjudication, and the Unnoticed Example of Trade Disputes

28 Pages Posted: 14 Jun 2014 Last revised: 18 Jul 2016

See all articles by Sungjoon Cho

Sungjoon Cho

Chicago Kent College of Law

Richard Warner

Chicago-Kent College of Law

Date Written: 2016

Abstract

We claim that there are important cases of “incommensurability” in public policymaking, in which all relevant reasons are not always comparable on a common scale as better, worse, or equally good. Courts often fail to confront this. We are by no means the first to contend that incommensurability exists. Yet incommensurability’s proponents have failed to sway the courts mainly because they overlook the fact that there are two types of incommensurability. The first (“incompleteness incommensurability”) consists of the lack of any appropriate metric for making the comparison. We argue that this type of incommensurability is relatively unproblematic in that courts are well-positioned to construct such a metric if necessary. In contrast, the second (“comparison-excluding incommensurability”) consists of a commitment that blocks comparison on a common scale, even if such a scale does exist. Incommensurability of this sort has not been widely acknowledged and does raise deep problems for judicial decision-making. When facing comparison-excluding incommensurability, the courts should not always disregard such commitments, but should acknowledge them in case such commitments are justified in a procedural manner. In this sense, comparison-exclusion incommensurability plays a key constitutive role in the construction of both individual identities and collective identities.

Keywords: incommensurability, incompleteness incommensurability, reason-excluding incommensurability, public policy, courts, judicial decision-making, value conflicts, reason-exclusion, identity

JEL Classification: K19, K39

Suggested Citation

Cho, Sungjoon and Warner, Richard, Comparison Excluding Commitments: Incommensurability, Adjudication, and the Unnoticed Example of Trade Disputes (2016). Southern California Interdisciplinary Law Journal, Forthcoming; Chicago-Kent College of Law Research Paper No. 2014-17. Available at SSRN: https://ssrn.com/abstract=2449575 or http://dx.doi.org/10.2139/ssrn.2449575

Sungjoon Cho (Contact Author)

Chicago Kent College of Law ( email )

565 W. Adams St.
Chicago, IL 60661-3691
United States

Richard Warner

Chicago-Kent College of Law ( email )

565 West Adams St.
Chicago, IL 60661
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
67
rank
329,845
Abstract Views
645
PlumX Metrics