The dilemma of ignorance: PGA Tour, Inc. v Casey Martin

Supreme Court Review

Volumn 2001, Issue , 2001, Pages 267-296

  Schauer, Frederick ^a  

^a NONE

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EID: 0040746577     PISSN: 00819557     EISSN: None     Source Type: Book Series    
DOI: 10.1086/scr.2001.3109690     Document Type: Article

References (140)

1. Hans Kelsen, Pure Theory of Law 349 (M. Knight trans, California, 2d ed 1967) ("[E]very law-applying act is only partly determined by law . . . "). See also Richard H. Fallon, Jr., Ruminations on the Work of Frederick Schauer, 72 Notre Dame L Rev 1391, 1402 (1997) (judicial decision making can be "bound, but not necessarily determined, by law.").
2. Hans Kelsen, Pure Theory of Law 349 (M. Knight trans, California, 2d ed 1967) ("[E]very law-applying act is only partly determined by law . . . "). See also Richard H. Fallon, Jr., Ruminations on the Work of Frederick Schauer, 72 Notre Dame L Rev 1391, 1402 (1997) (judicial decision making can be "bound, but not necessarily determined, by law.").
3. Under a range of antipositivist views, law is not a separate and pedigreed domain, but is better understood in terms of what judges do, and in terms of the ability of judges and other legal decision makers to draw on the full universe of socially recognized political acts. See Ronald Dworkin, Law's Empire (Harvard, 1986); Ronald Dworkin, Taking Rights Seriously (Harvard, 1978); Ronald Dworkin, A Reply by Ronald Dworkin, in Marshall Cohen, ed, Ronald Dworkin and Contemporary Jurisprudence 261-63 (Duckworth, 1984) (describing as "law" all of the standards that judges have a duty to apply). Under this view, of course, every legal act is tautologically entirely determined by law.
4. Under a range of antipositivist views, law is not a separate and pedigreed domain, but is better understood in terms of what judges do, and in terms of the ability of judges and other legal decision makers to draw on the full universe of socially recognized political acts. See Ronald Dworkin, Law's Empire (Harvard, 1986); Ronald Dworkin, Taking Rights Seriously (Harvard, 1978); Ronald Dworkin, A Reply by Ronald Dworkin, in Marshall Cohen, ed, Ronald Dworkin and Contemporary Jurisprudence 261-63 (Duckworth, 1984) (describing as "law" all of the standards that judges have a duty to apply). Under this view, of course, every legal act is tautologically entirely determined by law.
5. Under a range of antipositivist views, law is not a separate and pedigreed domain, but is better understood in terms of what judges do, and in terms of the ability of judges and other legal decision makers to draw on the full universe of socially recognized political acts. See Ronald Dworkin, Law's Empire (Harvard, 1986); Ronald Dworkin, Taking Rights Seriously (Harvard, 1978); Ronald Dworkin, A Reply by Ronald Dworkin, in Marshall Cohen, ed, Ronald Dworkin and Contemporary Jurisprudence 261-63 (Duckworth, 1984) (describing as "law" all of the standards that judges have a duty to apply). Under this view, of course, every legal act is tautologically entirely determined by law.
6. Kelsen, Pure Theory of Law 245 (cited in note 1). See also Hans Kelsen, Introduction to the Problems of Legal Theory 80 (Bonnie L. Paulson and Stanley L. Paulson trans, Clarendon/ Oxford, 1992).
7. Kelsen, Pure Theory of Law 245 (cited in note 1). See also Hans Kelsen, Introduction to the Problems of Legal Theory 80 (Bonnie L. Paulson and Stanley L. Paulson trans, Clarendon/Oxford, 1992).
8. H. L. A. Hart, The Concept of Law 125-30 (Clarendon/Oxford, 1961).
9. Hart did observe that the judge's decision would not simply be arbitrary, H. L. A. Hart, Problems in the Philosophy of Law, in Essays in Jurisprudence and Philosophy 106-07 (Clarendon/Oxford, 1983), an observation that is consistent with Hart's (correct) view that nonlegal judgments can be more or less sound as a matter of morality, politics, or policy. For useful elaboration of Hart on indeterminacy and the discretion that follows from it, see Brian Bix, Law, Language, and Legal Determinacy 18-35 (Clarendon/Oxford, 1993); John Gardner, Concerning Permissive Sources and Gaps, 8 Oxford J Legal Stud 457 (1988). See also Marisa Iglesias Vila, Facing Judicial Discretion: Legal Knowledge and Right Answers Revisited (Kluwer, 2001), especially at 4-76.
10. Hart did observe that the judge's decision would not simply be arbitrary, H. L. A. Hart, Problems in the Philosophy of Law, in Essays in Jurisprudence and Philosophy 106-07 (Clarendon/Oxford, 1983), an observation that is consistent with Hart's (correct) view that nonlegal judgments can be more or less sound as a matter of morality, politics, or policy. For useful elaboration of Hart on indeterminacy and the discretion that follows from it, see Brian Bix, Law, Language, and Legal Determinacy 18-35 (Clarendon/Oxford, 1993); John Gardner, Concerning Permissive Sources and Gaps, 8 Oxford J Legal Stud 457 (1988). See also Marisa Iglesias Vila, Facing Judicial Discretion: Legal Knowledge and Right Answers Revisited (Kluwer, 2001), especially at 4-76.
11. Hart did observe that the judge's decision would not simply be arbitrary, H. L. A. Hart, Problems in the Philosophy of Law, in Essays in Jurisprudence and Philosophy 106-07 (Clarendon/Oxford, 1983), an observation that is consistent with Hart's (correct) view that nonlegal judgments can be more or less sound as a matter of morality, politics, or policy. For useful elaboration of Hart on indeterminacy and the discretion that follows from it, see Brian Bix, Law, Language, and Legal Determinacy 18-35 (Clarendon/Oxford, 1993); John Gardner, Concerning Permissive Sources and Gaps, 8 Oxford J Legal Stud 457 (1988). See also Marisa Iglesias Vila, Facing Judicial Discretion: Legal Knowledge and Right Answers Revisited (Kluwer, 2001), especially at 4-76.
12. Hart did observe that the judge's decision would not simply be arbitrary, H. L. A. Hart, Problems in the Philosophy of Law, in Essays in Jurisprudence and Philosophy 106-07 (Clarendon/Oxford, 1983), an observation that is consistent with Hart's (correct) view that nonlegal judgments can be more or less sound as a matter of morality, politics, or policy. For useful elaboration of Hart on indeterminacy and the discretion that follows from it, see Brian Bix, Law, Language, and Legal Determinacy 18-35 (Clarendon/Oxford, 1993); John Gardner, Concerning Permissive Sources and Gaps, 8 Oxford J Legal Stud 457 (1988). See also Marisa Iglesias Vila, Facing Judicial Discretion: Legal Knowledge and Right Answers Revisited (Kluwer, 2001), especially at 4-76.
13. Hart, The Concept of Law at 125 (cited in note 4).
14. If law consists of everything that judges do or everything that judges should do, see note 2, and if legal education, legal training, legal reasoning, and thinking like a lawyer are defined as anything that would help a judge or lawyer perform that task, then considering what judges do when the law and their legal skills run out is tautologically uninteresting. But if we think of law as at least a partially limited or differentiated domain, in which law school is different from a school of public policy, and a bar examination tests for skills narrower than all of the skills necessary to good decision making, then my distinction between legal and nonlegal decision, a distinction that guides this article and the consciousness of most judges and most lawyers, makes sense. See Frederick Schauer and Virginia J. Wise, Legal Positivism as Legal Information, 82 Cornell L Rev 1080 (1997).
15. 121 S Ct 1879 (2001).
16. 121 S Ct 525 (2000).
17. These rules are discussed in the Court's opinion, 121 S Ct at 1884-85.
18. 42 USC § 12101 et seq (1998).
19. It is important to recognize at the outset that the Americans with Disabilities Act is not simply an antidiscrimination law. It requires that accommodations be made to persons with disabilities, although there is a disagreement within the literature over the extent to which accommodation differs from antidiscrimination. See generally Samuel Issacharoff and Justin Nelson, Discrimination with a Difference: Can Employment Discrimination Law Accommodate the Americans with Disabilities Act? 79 NC L Rev 307 (2001); Christine Jolls, Antidiscrimination and Accommodation, 115 Harv L Rev 642 (2001); Christine Jolls, Accommodation Mandates, 53 Stan L Rev 223 (2000); Pamela S. Karlan and George Rutherglen, Disabilities, Discrimination, and Reasonable Accommodation, 46 Duke L J 1 (1996).
20. It is important to recognize at the outset that the Americans with Disabilities Act is not simply an antidiscrimination law. It requires that accommodations be made to persons with disabilities, although there is a disagreement within the literature over the extent to which accommodation differs from antidiscrimination. See generally Samuel Issacharoff and Justin Nelson, Discrimination with a Difference: Can Employment Discrimination Law Accommodate the Americans with Disabilities Act? 79 NC L Rev 307 (2001); Christine Jolls, Antidiscrimination and Accommodation, 115 Harv L Rev 642 (2001); Christine Jolls, Accommodation Mandates, 53 Stan L Rev 223 (2000); Pamela S. Karlan and George Rutherglen, Disabilities, Discrimination, and Reasonable Accommodation, 46 Duke L J 1 (1996).
21. It is important to recognize at the outset that the Americans with Disabilities Act is not simply an antidiscrimination law. It requires that accommodations be made to persons with disabilities, although there is a disagreement within the literature over the extent to which accommodation differs from antidiscrimination. See generally Samuel Issacharoff and Justin Nelson, Discrimination with a Difference: Can Employment Discrimination Law Accommodate the Americans with Disabilities Act? 79 NC L Rev 307 (2001); Christine Jolls, Antidiscrimination and Accommodation, 115 Harv L Rev 642 (2001); Christine Jolls, Accommodation Mandates, 53 Stan L Rev 223 (2000); Pamela S. Karlan and George Rutherglen, Disabilities, Discrimination, and Reasonable Accommodation, 46 Duke L J 1 (1996).
22. It is important to recognize at the outset that the Americans with Disabilities Act is not simply an antidiscrimination law. It requires that accommodations be made to persons with disabilities, although there is a disagreement within the literature over the extent to which accommodation differs from antidiscrimination. See generally Samuel Issacharoff and Justin Nelson, Discrimination with a Difference: Can Employment Discrimination Law Accommodate the Americans with Disabilities Act? 79 NC L Rev 307 (2001); Christine Jolls, Antidiscrimination and Accommodation, 115 Harv L Rev 642 (2001); Christine Jolls, Accommodation Mandates, 53 Stan L Rev 223 (2000); Pamela S. Karlan and George Rutherglen, Disabilities, Discrimination, and Reasonable Accommodation, 46 Duke L J 1 (1996).
23. 42 USC § 12182(b)(2)(A)(ii) (1998) (emphasis added).
24. On the PGA's requirement that competitors on the PGA and Buy.com tours (and, until recently, their caddies) wear long pants regardless of the weather, see Collin Bessonette, Q & A on the News, Atlanta Journal and Constitution (April 12, 2000), p 2A; Ask Us, St Petersburg Times (Sept 3, 1998), p 12C.
25. On the PGA's requirement that competitors on the PGA and Buy.com tours (and, until recently, their caddies) wear long pants regardless of the weather, see Collin Bessonette, Q & A on the News, Atlanta Journal and Constitution (April 12, 2000), p 2A; Ask Us, St Petersburg Times (Sept 3, 1998), p 12C.
26. The statement appears not in any of Wittgenstein's published writings, but in the recollections of his contemporary, the philosopher John Wisdom. See David Lehman, "Wittgenstein's Ladder," .
27. Martin v PGA Tour, Inc., 994 F Supp 1242 (D Or 1998).
28. PGA Tour, Inc. v Martin, 204 F3d 994 (9th Cir 2000).
29. Olinger v United States Golf Assn, 205 F3d 1001 (9th Cir 2000).
30. Technically, Martin won only the right to an individualized determination and not the right to use a golf cart. 121 S Ct at 1897-98.
31. Id at 1898.
32. Id at 1893.
33. One of the witnesses at trial was Jack Nicklaus, 121 S Ct at 1887 n 14, who testified that "physical fitness" as well as "fatigue" were "part of the game of golf." Nicklaus himself, however, although now plainly fit at age sixty-two, could charitably have been described as portly during the early years of his greatest professional success. Indeed, he was then routinely chided as "Fat Jack" in the press and by jealous competitors.
34. In recent times the most prominent example of this phenomenon is former President Clinton, whose liberties with the rules of golf go well beyond winter rules, mulligans ("do-overs") on the first tee, and other modifications of the rules common among casual golfers of Clinton's skill level. For a sample of published accounts, see Glenn F. Bunting, Game Fits President to a Tee, Los Angeles Times (Nov 13, 1997), p E1; Melinda Henneberger, Tom DeLay Holds No Gavel, but a firm Grip on the Reins, New York Times (June 21, 1999), p A1; Tim Tucker, Shooting a 60 with President Mulligan, Atlanta Constitution (Aug 16, 1999), p 1D.
35. In recent times the most prominent example of this phenomenon is former President Clinton, whose liberties with the rules of golf go well beyond winter rules, mulligans ("do-overs") on the first tee, and other modifications of the rules common among casual golfers of Clinton's skill level. For a sample of published accounts, see Glenn F. Bunting, Game Fits President to a Tee, Los Angeles Times (Nov 13, 1997), p E1; Melinda Henneberger, Tom DeLay Holds No Gavel, but a firm Grip on the Reins, New York Times (June 21, 1999), p A1; Tim Tucker, Shooting a 60 with President Mulligan, Atlanta Constitution (Aug 16, 1999), p 1D.
36. In recent times the most prominent example of this phenomenon is former President Clinton, whose liberties with the rules of golf go well beyond winter rules, mulligans ("do-overs") on the first tee, and other modifications of the rules common among casual golfers of Clinton's skill level. For a sample of published accounts, see Glenn F. Bunting, Game Fits President to a Tee, Los Angeles Times (Nov 13, 1997), p E1; Melinda Henneberger, Tom DeLay Holds No Gavel, but a firm Grip on the Reins, New York Times (June 21, 1999), p A1; Tim Tucker, Shooting a 60 with President Mulligan, Atlanta Constitution (Aug 16, 1999), p 1D.
37. 121 S Ct at 1894.
38. Id. The official rules of golf provide at best ambiguous support for the majority's position, since those rules explicitly permit tournament organizers to require that "[p]layers shall walk at all times during a stipulated round." Id at 1885 n 3.
39. Id at 1902, 1903, 1905.
40. This prompted the rejoinder from Justice Stevens that Justice Scalia was taking an [uncharacteristically] "postmodern" position. Id at 1897 n 57. The charge of postmodernism seems a bit confused, however, since one can in decidedly nonpostmodern fashion believe that certain facts are institutionally contingent without believing that all facts are contingent or socially constructed. John R. Searle, The Construction of Social Reality (Free Press, 1995). Believing that law, golf, the game of bridge, and the Brooklyn Bridge are socially constructed does not entail believing that gravity, giraffes, and the Grand Canyon are social constructions.
41. "Is someone riding around a golf course from shot to shot really a golfer? . . . Either out of humility or out of self-respect (one or the other) the Court should decline to answer this incredibly difficult and incredibly silly question." 121 S Ct at 1902-03 (Scalia, J, dissenting).
42. Id at 1897 n 51.
43. Indeed, the majority's jibes at Justice Scalia might have avoided the misdirected charge of postmodernism, see note 27, and have been better directed against the inconsistency between his reluctance to take the congressional mandate to look at the "fundamental . . . nature" at face value and his oft-stated commitment to the text when engaged in statutory interpretation. See Green v Bock Laundry Machine Co., 490 US 504, 527-30 (1989) (Scalia concurring in the judgment); Chisom v Roemer, 501 US 380, 404-05 (1991) (Scalia dissenting); Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in Amy Guttman, ed, A Matter of Interpretation: Federal Courts and the Law 3, 16-17, 23-37 (Princeton, 1997). See also Bradley C. Karkkainen, "Plain Meaning": Justice Scalia's Jurisprudence of Strict Statutory Construction, 17 Harv J L & Pub Pol 401 (1994).
44. Indeed, the majority's jibes at Justice Scalia might have avoided the misdirected charge of postmodernism, see note 27, and have been better directed against the inconsistency between his reluctance to take the congressional mandate to look at the "fundamental . . . nature" at face value and his oft-stated commitment to the text when engaged in statutory interpretation. See Green v Bock Laundry Machine Co., 490 US 504, 527-30 (1989) (Scalia concurring in the judgment); Chisom v Roemer, 501 US 380, 404-05 (1991) (Scalia dissenting); Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in Amy Guttman, ed, A Matter of Interpretation: Federal Courts and the Law 3, 16-17, 23-37 (Princeton, 1997). See also Bradley C. Karkkainen, "Plain Meaning": Justice Scalia's Jurisprudence of Strict Statutory Construction, 17 Harv J L & Pub Pol 401 (1994).
45. 347 US 483 (1954).
46. See note 55 and accompanying text.
47. As in, most prominently, Muller v Oregon, 208 US 412 (1908).
48. See the discussions in Dean Alfange, The Relevance of Legislative Facts in Constitutional Law, 114 U Pa L Rev 637 (1966); David Bryden, Brandeis's Facts, 1 Const Comm 281 (1984); Kenneth Karst, Legislative Facts in Constitutional Litigation, 1960 Supreme Court Review 75; Jeffrey Shaman, Constitutional Fact: The Perception of Reality by the Supreme Court 35 U Fla L Rev 236 (1983).
49. See the discussions in Dean Alfange, The Relevance of Legislative Facts in Constitutional Law, 114 U Pa L Rev 637 (1966); David Bryden, Brandeis's Facts, 1 Const Comm 281 (1984); Kenneth Karst, Legislative Facts in Constitutional Litigation, 1960 Supreme Court Review 75; Jeffrey Shaman, Constitutional Fact: The Perception of Reality by the Supreme Court 35 U Fla L Rev 236 (1983).
50. See the discussions in Dean Alfange, The Relevance of Legislative Facts in Constitutional Law, 114 U Pa L Rev 637 (1966); David Bryden, Brandeis's Facts, 1 Const Comm 281 (1984); Kenneth Karst, Legislative Facts in Constitutional Litigation, 1960 Supreme Court Review 75; Jeffrey Shaman, Constitutional Fact: The Perception of Reality by the Supreme Court 35 U Fla L Rev 236 (1983).
51. See the discussions in Dean Alfange, The Relevance of Legislative Facts in Constitutional Law, 114 U Pa L Rev 637 (1966); David Bryden, Brandeis's Facts, 1 Const Comm 281 (1984); Kenneth Karst, Legislative Facts in Constitutional Litigation, 1960 Supreme Court Review 75; Jeffrey Shaman, Constitutional Fact: The Perception of Reality by the Supreme Court 35 U Fla L Rev 236 (1983).
52. 121 S Ct at 1895-96, 1897.
53. Id at 1896.
54. On occasion the decision for A rather then B, or vice versa, may be a product of one of the options presenting reasons for deference not presented by the other - a more careful opinion, a more experienced judge, or a more extensive record, for example. But more commonly such characteristics will not be determinative, and a reviewing court deciding which of two conflicting opinions below to prefer will find itself delving into the merits of the controversy.
55. See, for example, Christopher L. Eisgruber, The Most Competent Branches: A Response to Professor Paulsen, 83 Georgetown L J 347, 349 (1994); Edward Hartnett, A Matter of Judgment, Not a Matter of Opinion, 74 NYU L Rev 123 (1999); Thomas Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 Cardozo L Rev 43 (1993). For the contrary view, that the Supreme Court should face directly its role as a lawmaker and think about its processes and its opinion-writing practices in light of that role, see Larry Alexander and Frederick Schauer, Defending Judicial Supremacy: A Reply, 17 Const Comm 455, 478-81 (2000). See also Frank H. Easterbrook, Ways of Criticizing the Court, 95 Harv L Rev 802, 807-11 (1982); Frederick Schauer, Opinions as Rules, 62 U Chi L Rev 1455 (1995).
56. See, for example, Christopher L. Eisgruber, The Most Competent Branches: A Response to Professor Paulsen, 83 Georgetown L J 347, 349 (1994); Edward Hartnett, A Matter of Judgment, Not a Matter of Opinion, 74 NYU L Rev 123 (1999); Thomas Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 Cardozo L Rev 43 (1993). For the contrary view, that the Supreme Court should face directly its role as a lawmaker and think about its processes and its opinion-writing practices in light of that role, see Larry Alexander and Frederick Schauer, Defending Judicial Supremacy: A Reply, 17 Const Comm 455, 478-81 (2000). See also Frank H. Easterbrook, Ways of Criticizing the Court, 95 Harv L Rev 802, 807-11 (1982); Frederick Schauer, Opinions as Rules, 62 U Chi L Rev 1455 (1995).
57. See, for example, Christopher L. Eisgruber, The Most Competent Branches: A Response to Professor Paulsen, 83 Georgetown L J 347, 349 (1994); Edward Hartnett, A Matter of Judgment, Not a Matter of Opinion, 74 NYU L Rev 123 (1999); Thomas Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 Cardozo L Rev 43 (1993). For the contrary view, that the Supreme Court should face directly its role as a lawmaker and think about its processes and its opinion-writing practices in light of that role, see Larry Alexander and Frederick Schauer, Defending Judicial Supremacy: A Reply, 17 Const Comm 455, 478-81 (2000). See also Frank H. Easterbrook, Ways of Criticizing the Court, 95 Harv L Rev 802, 807-11 (1982); Frederick Schauer, Opinions as Rules, 62 U Chi L Rev 1455 (1995).
58. See, for example, Christopher L. Eisgruber, The Most Competent Branches: A Response to Professor Paulsen, 83 Georgetown L J 347, 349 (1994); Edward Hartnett, A Matter of Judgment, Not a Matter of Opinion, 74 NYU L Rev 123 (1999); Thomas Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 Cardozo L Rev 43 (1993). For the contrary view, that the Supreme Court should face directly its role as a lawmaker and think about its processes and its opinion-writing practices in light of that role, see Larry Alexander and Frederick Schauer, Defending Judicial Supremacy: A Reply, 17 Const Comm 455, 478-81 (2000). See also Frank H. Easterbrook, Ways of Criticizing the Court, 95 Harv L Rev 802, 807-11 (1982); Frederick Schauer, Opinions as Rules, 62 U Chi L Rev 1455 (1995).
59. See, for example, Christopher L. Eisgruber, The Most Competent Branches: A Response to Professor Paulsen, 83 Georgetown L J 347, 349 (1994); Edward Hartnett, A Matter of Judgment, Not a Matter of Opinion, 74 NYU L Rev 123 (1999); Thomas Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 Cardozo L Rev 43 (1993). For the contrary view, that the Supreme Court should face directly its role as a lawmaker and think about its processes and its opinion-writing practices in light of that role, see Larry Alexander and Frederick Schauer, Defending Judicial Supremacy: A Reply, 17 Const Comm 455, 478-81 (2000). See also Frank H. Easterbrook, Ways of Criticizing the Court, 95 Harv L Rev 802, 807-11 (1982); Frederick Schauer, Opinions as Rules, 62 U Chi L Rev 1455 (1995).
60. See, for example, Christopher L. Eisgruber, The Most Competent Branches: A Response to Professor Paulsen, 83 Georgetown L J 347, 349 (1994); Edward Hartnett, A Matter of Judgment, Not a Matter of Opinion, 74 NYU L Rev 123 (1999); Thomas Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 Cardozo L Rev 43 (1993). For the contrary view, that the Supreme Court should face directly its role as a lawmaker and think about its processes and its opinion-writing practices in light of that role, see Larry Alexander and Frederick Schauer, Defending Judicial Supremacy: A Reply, 17 Const Comm 455, 478-81 (2000). See also Frank H. Easterbrook, Ways of Criticizing the Court, 95 Harv L Rev 802, 807-11 (1982); Frederick Schauer, Opinions as Rules, 62 U Chi L Rev 1455 (1995).
61. Compare Alexander and Schauer, Defending Judicial Supremacy (cited in note 38); Larry Alexander and Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 Harv L Rev 1359 (1997), with Mark Tushnet, Taking the Constitution Away from the Courts 27-29 (Princeton, 1999); Neal Devins and Louis Fisher, Judicial Exclusivity and Political Instability, 84 Va L Rev 83 (1998); Hartnett, A Matter of Judgment, Not a Matter of Opinion (cited in note 38); Robert F. Nagel, Judicial Supremacy and the Settlement Function, 39 Wm & Mary L Rev 849 (1998).
62. Compare Alexander and Schauer, Defending Judicial Supremacy (cited in note 38); Larry Alexander and Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 Harv L Rev 1359 (1997), with Mark Tushnet, Taking the Constitution Away from the Courts 27-29 (Princeton, 1999); Neal Devins and Louis Fisher, Judicial Exclusivity and Political Instability, 84 Va L Rev 83 (1998); Hartnett, A Matter of Judgment, Not a Matter of Opinion (cited in note 38); Robert F. Nagel, Judicial Supremacy and the Settlement Function, 39 Wm & Mary L Rev 849 (1998).
63. Compare Alexander and Schauer, Defending Judicial Supremacy (cited in note 38); Larry Alexander and Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 Harv L Rev 1359 (1997), with Mark Tushnet, Taking the Constitution Away from the Courts 27-29 (Princeton, 1999); Neal Devins and Louis Fisher, Judicial Exclusivity and Political Instability, 84 Va L Rev 83 (1998); Hartnett, A Matter of Judgment, Not a Matter of Opinion (cited in note 38); Robert F. Nagel, Judicial Supremacy and the Settlement Function, 39 Wm & Mary L Rev 849 (1998).
64. Compare Alexander and Schauer, Defending Judicial Supremacy (cited in note 38); Larry Alexander and Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 Harv L Rev 1359 (1997), with Mark Tushnet, Taking the Constitution Away from the Courts 27-29 (Princeton, 1999); Neal Devins and Louis Fisher, Judicial Exclusivity and Political Instability, 84 Va L Rev 83 (1998); Hartnett, A Matter of Judgment, Not a Matter of Opinion (cited in note 38); Robert F. Nagel, Judicial Supremacy and the Settlement Function, 39 Wm & Mary L Rev 849 (1998).
65. Compare Alexander and Schauer, Defending Judicial Supremacy (cited in note 38); Larry Alexander and Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 Harv L Rev 1359 (1997), with Mark Tushnet, Taking the Constitution Away from the Courts 27-29 (Princeton, 1999); Neal Devins and Louis Fisher, Judicial Exclusivity and Political Instability, 84 Va L Rev 83 (1998); Hartnett, A Matter of Judgment, Not a Matter of Opinion (cited in note 38); Robert F. Nagel, Judicial Supremacy and the Settlement Function, 39 Wm & Mary L Rev 849 (1998).
66. Compare Alexander and Schauer, Defending Judicial Supremacy (cited in note 38); Larry Alexander and Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 Harv L Rev 1359 (1997), with Mark Tushnet, Taking the Constitution Away from the Courts 27-29 (Princeton, 1999); Neal Devins and Louis Fisher, Judicial Exclusivity and Political Instability, 84 Va L Rev 83 (1998); Hartnett, A Matter of Judgment, Not a Matter of Opinion (cited in note 38); Robert F. Nagel, Judicial Supremacy and the Settlement Function, 39 Wm & Mary L Rev 849 (1998).
67. 121 S Ct at 1893 ("essence"), 1894 ("essential").
68. Id at 1894 n 39.
69. Id at 1894 n 40.
70. Id at 1895 n 48.
71. Including the opinions in Olinger, the Seventh Circuit case.
72. I am not so naive as to ignore the possibility, indeed the probability, that the Justices, having made their decision, simply sent the clerks and librarians out to find nonlegal support for a decision already made. But of course much the same could be said about legal sources as well. If we accept (perhaps counterfactually, to the legal realist) that legal sources are decision-guiding rather than just decision-justifying, then it is certainly plausible that much the same can be said about nonlegal sources. To be skeptical about the use of nonlegal sources while not skeptical about legal sources assumes the very matter in issue, which is the question of the sources of judicial guidance in hard cases. Moreover, even if the exact nonlegal sources the Court uses are little more than the product of law clerks and librarians filling in the blanks for decisions already made, the sources found and then used may still provide a useful surrogate for contemplating the question of just how the Court obtains its knowledge of golf, or economics, or anything else. On all of this, see Frederick Schauer and Virginia J. Wise, Nonlegal Information and the Delegalization of Law, 29 J Legal Stud 495 (2000).
73. That expertise is available is not the same as disinterested expertise being available, and a special problem in Martin was the extent to which the available expertise on golf was closely aligned with the PGA Tour, and the available expertise on Klippel-Trenaunay-Weber syndrome was closely aligned with Martin. Specialists in particular diseases rarely take the position that the diseases are not so bad, and specialists in particular sports rarely take the position that the sports are not so demanding.
74. 15 USC § 1 (1998).
75. 18 USC § 1965(5) (1998).
76. For the Supreme Court debate on this very issue, compare the opinions of Justice Brennan for the majority and Justice Scalia, concurring in the judgment, in H.J., Inc. v Northwestern Bell Telephone Co., 492 US 229 (1989). For a sample of resistance to taking on such a statutorily mandated policy-making task, see Georgia Ass'n of Retarded Citizens v McDaniel, 716 F2d 1565, 1581-82 (11th Cir 1983) (Hill, dissenting). See generally Bernard W. Bell, R-E-S-P-E-C-T: Respecting Legislative Judgments in Interpretive Theory, 78 NC L Rev 1253, 1307-17 (2000); Harry T. Edwards, The Role of a Judge in Modern Society: Some Reflections on Current Practice in Federal Appellate Adjudication, 32 Cleve St L Rev 285, 424-27 (1984).
77. For the Supreme Court debate on this very issue, compare the opinions of Justice Brennan for the majority and Justice Scalia, concurring in the judgment, in H.J., Inc. v Northwestern Bell Telephone Co., 492 US 229 (1989). For a sample of resistance to taking on such a statutorily mandated policy-making task, see Georgia Ass'n of Retarded Citizens v McDaniel, 716 F2d 1565, 1581-82 (11th Cir 1983) (Hill, dissenting). See generally Bernard W. Bell, R-E-S-P-E-C-T: Respecting Legislative Judgments in Interpretive Theory, 78 NC L Rev 1253, 1307-17 (2000); Harry T. Edwards, The Role of a Judge in Modern Society: Some Reflections on Current Practice in Federal Appellate Adjudication, 32 Cleve St L Rev 285, 424-27 (1984).
78. See Stephen Breyer, "Closing Address" at Conference on DNA and the Criminal Justice System, John F. Kennedy School of Government, Harvard University, Nov 21, 2000.
79. West Virginia Bd of Educ. v Barnette, 319 US 624, 639-40 (1943).
80. 376 US 254 (1964).
81. Curtis Publishing Co. v Butts, 388 US 130 (1967); Associated Press v Walker, 388 US 130 (1967).
82. See Frederick Schauer, Uncoupling Free Speech, 92 Colum L Rev 1321 (1992).
83. See Yale Kamisar, Does (Did) (Should) the Exclusionary Rule Rest on a "Principled Basis" Rather Than an "Empirical Proposition"? 16 Creighton L Rev 565 (1983).
84. See especially Edmund Cahn, Jurisprudence, 30 NYU L Rev 150 (1955). See also Charles Black, The Lawfulness of the Segregation Decisions, 69 Yale L J 421 (1960); Frank Goodman, De Facto School Segregation: A Constitutional and Empirical Analysis, 70 Calif L Rev 275 (1972).
85. See especially Edmund Cahn, Jurisprudence, 30 NYU L Rev 150 (1955). See also Charles Black, The Lawfulness of the Segregation Decisions, 69 Yale L J 421 (1960); Frank Goodman, De Facto School Segregation: A Constitutional and Empirical Analysis, 70 Calif L Rev 275 (1972).
86. See especially Edmund Cahn, Jurisprudence, 30 NYU L Rev 150 (1955). See also Charles Black, The Lawfulness of the Segregation Decisions, 69 Yale L J 421 (1960); Frank Goodman, De Facto School Segregation: A Constitutional and Empirical Analysis, 70 Calif L Rev 275 (1972).
87. 429 US 190 (1976), in which Justice Brennan's opinion for the Court inferred from a .18 percent arrest rate for females and a 2.00 percent arrest rate for males that the correlation between gender and driving while intoxicated in the relevant age group was only 2 percent.
88. Ronald Dworkin, A Matter of Principle (Harvard, 1987); Ronald Dworkin, Law's Empire (Harvard, 1986); Ronald Dworkin, Taking Rights Seriously (Harvard, 1978).
89. Ronald Dworkin, A Matter of Principle (Harvard, 1987); Ronald Dworkin, Law's Empire (Harvard, 1986); Ronald Dworkin, Taking Rights Seriously (Harvard, 1978).
90. Ronald Dworkin, A Matter of Principle (Harvard, 1987); Ronald Dworkin, Law's Empire (Harvard, 1986); Ronald Dworkin, Taking Rights Seriously (Harvard, 1978).
91. Melvin A. Eisenberg, The Nature of the Common Law (Harvard, 1988).
92. This appears to be the best understanding of Holmes's view that the life of the law is not logic but experience. Oliver Wendell Holmes, The Common Law 1 (Little Brown, 1881). See also Oliver Wendell Holmes, The Path of the Law, 10 Harv L Rev 457 (1897).
93. This appears to be the best understanding of Holmes's view that the life of the law is not logic but experience. Oliver Wendell Holmes, The Common Law 1 (Little Brown, 1881). See also Oliver Wendell Holmes, The Path of the Law, 10 Harv L Rev 457 (1897).
94. See Frederick Schauer, Is the Common Law Law? 77 Calif L Rev 455 (1989).
95. The Court in Bush places some weight on the fact that 2 percent of the ballots in any presidential election fail to select a candidate for President, 531 US at 103, and relies in significant part for that proposition on an article in the Omaha World-Herald on Nov 15, 2000, entitled "Balloting Problems Not Rare But Only in a Very Close Election Do Mistakes and Mismarking Make a Difference." It turns out that the author of the article was one Matt Kelley, a twenty-nine-year-old reporter for the World-Herald who was so junior upon his arrival at the paper a few years earlier that the only office that could be found for him was a quickly converted closet, resulting in his colleagues referring to him as "Closet Boy." See Michael Kelly, 'Closet Boy' Makes History, Omaha World-Herald (Dec 14, 2000), p 19. Closet Boy's information may well have been accurate, but it does give pause about the Court's sophistication in locating nonlegal information, even the nonlegal information that seems important to the Court's decisions.
96. The Court in Bush places some weight on the fact that 2 percent of the ballots in any presidential election fail to select a candidate for President, 531 US at 103, and relies in significant part for that proposition on an article in the Omaha World-Herald on Nov 15, 2000, entitled "Balloting Problems Not Rare But Only in a Very Close Election Do Mistakes and Mismarking Make a Difference." It turns out that the author of the article was one Matt Kelley, a twenty-nine-year-old reporter for the World-Herald who was so junior upon his arrival at the paper a few years earlier that the only office that could be found for him was a quickly converted closet, resulting in his colleagues referring to him as "Closet Boy." See Michael Kelly, 'Closet Boy' Makes History, Omaha World-Herald (Dec 14, 2000), p 19. Closet Boy's information may well have been accurate, but it does give pause about the Court's sophistication in locating nonlegal information, even the nonlegal information that seems important to the Court's decisions.
97. Omychund v Barker, 26 Eng Rep 15, 33 (1744) (Lord Mansfield). See also Lon L. Fuller, The Forms and Limits of Adjudication, 92 Harv L Rev 353, 377-81 (1978).
98. I take Blackstone to be the exemplar of the belief that legal decision is not very much a matter of experience and largely a matter of logic and discovery.
99. See Stephanie Tai, Friendly Science: Medical, Scientific, and Technical Amici Before the Supreme Court, 78 Wash U L Q 789 (2000).
100. See John Ferejohn and Barry Weingast, Limitation of Statutes: Strategic Statutory Interpretation, 80 Georgetown L J 565 (1992); Jonathan R. Macey, Promoting Public-Regarding Legislation Through Statutory Interpretation: An Interest Group Model, 86 Colum L Rev 223 (1986).
101. See John Ferejohn and Barry Weingast, Limitation of Statutes: Strategic Statutory Interpretation, 80 Georgetown L J 565 (1992); Jonathan R. Macey, Promoting Public-Regarding Legislation Through Statutory Interpretation: An Interest Group Model, 86 Colum L Rev 223 (1986).
102. See Hirschey v Federal Energy Regulatory Commission, 771 F2d 1, 7-8 (DC Cir 1985) (Scalia concurring); Wallace v Christensen, 802 F2d 1539, 1559-60 (9th Cir 1986) (Kozinski, concurring in the judgment); Roger H. Davidson, What Judges Ought to Know About Lawmaking in Congress, in Robert A. Katzmann, ed, Judges and Legislators: Toward Institutional Comity 90 (Brookings, 1988).
103. See Jerry L. Mashaw, Greed, Chaos, and Governance: Using Public Choice to Improve Public Law (Yale, 1997).
104. Ashwander v Tennessee Valley Authority, 297 US 288, 347-48 (1936) (Brandeis concurring).
105. The Ashwander rule is better understood as an indirect way of deciding constitutional questions rather than as a way of avoiding them. See Frederick Schauer, Ashwander Revisited, 1995 Supreme Court Review 71. See also Lisa A. Kloppenberg, Avoiding Constitutional Questions, 35 BC L Rev 1003 (1994).
106. The Ashwander rule is better understood as an indirect way of deciding constitutional questions rather than as a way of avoiding them. See Frederick Schauer, Ashwander Revisited, 1995 Supreme Court Review 71. See also Lisa A. Kloppenberg, Avoiding Constitutional Questions, 35 BC L Rev 1003 (1994).
107. See, for example, Bendix Autolite Corp. v Midwesco Enterprises, 486 US 888, 902 (1988) (Scalia concurring).
108. Antonin Scalia, The Rule of Law as a Law of Rules, 56 U Chi L Rev 1175 (1989).
109. See Eisenberg, The Nature of the Common Law (cited in note 59).
110. See Dworkin, Taking Rights Seriously at 190-98 (cited in note 58).
111. Ronald Dworkin, The Rights of Myron Farber: An Exchange, New York Review of Books (Oct 26, 1978), p 34.
112. Ronald Dworkin, Law's Empire (cited in note 58), at 20-23. More recently, Dworkin has, consistent with the view articulated by Justice Stevens in Martin, taken broad legal language as representing a mandate or even a command to take on the tasks encompassed by the broad language. Ronald Dworkin, Freedom's Law: The Moral Reading of the American Constitution 2-9 (Harvard, 1996).
113. Ronald Dworkin, Law's Empire (cited in note 58), at 20-23. More recently, Dworkin has, consistent with the view articulated by Justice Stevens in Martin, taken broad legal language as representing a mandate or even a command to take on the tasks encompassed by the broad language. Ronald Dworkin, Freedom's Law: The Moral Reading of the American Constitution 2-9 (Harvard, 1996).
114. There is a substantial risk, however, that these avoidance strategies will at times turn out to be less successful than their proponents suppose. Will Justice Scalia and those following him mask contested empirical issues as questions of law? Will Dworkin and those following him announce as principle and not policy issues that in fact contain contested empirical and policy judgments? To the extent that these pathologies are possible - if you have a hammer, every problem looks like a nail - the Scalia/Dworkin approach of defining judicial jurisdiction by reference to judicial comparative advantage may turn out to be illusory, and alternative approaches, including muddling through, may turn out at least to bring the benefits of transparency about what it is that the judges are actually doing.
115. Richard A. Posner, Overcoming Law 208-10 (Harvard, 1995); Richard A. Posner, The Problems of Jurisprudence 132-36 (Harvard, 1990). More generally, see Richard Posner, The Problematics of Moral and Legal Theory (Harvard, 1998).
116. Richard A. Posner, Overcoming Law 208-10 (Harvard, 1995); Richard A. Posner, The Problems of Jurisprudence 132-36 (Harvard, 1990). More generally, see Richard Posner, The Problematics of Moral and Legal Theory (Harvard, 1998).
117. Richard A. Posner, Overcoming Law 208-10 (Harvard, 1995); Richard A. Posner, The Problems of Jurisprudence 132-36 (Harvard, 1990). More generally, see Richard Posner, The Problematics of Moral and Legal Theory (Harvard, 1998).
118. General Electric Co. v Joiner, 522 US 136, 147 (1997) (Breyer concurring); Stephen Breyer, The Interdependence of Science and Law, 82 Judicature 24 (1998).
119. It is possible, however, that Justice Breyer, Judge Posner, and many others will misapprehend the nature of the relevant expertise. Is the relevant expertise about science policy, for example, the expertise of the scientist, as the scientists would have us believe, or the policy analyst, as the policy analysts would have us believe, or the science policy specialists, as the science policy specialists (some but not all of whom are scientists) would have us believe? Is the relevant expertise in Martin the expertise of the golfer, the sports physiologist, the physician, or someone else? Given that the identity of the expert is likely to be contested, and that claims of expertise will be clothed with the self-interest of experts in asserting that their expertise is most important, the role of the judge as ignorant but disinterested arbiter may become more appealing.
120. Breyer, "Closing Address" (cited in note 50).
121. Fueled by Justice Breyer, this has been an area of active debate and prescription. See MediaCom Corp. v Rates Technology, Inc., 4 F Supp 2d 17, 29-30 (D Mass 1998); Joe S. Cecil and Thomas E. Willging, Accepting Daubert's Invitation: Defining a Role for Court-Appointed Experts in Assessing Scientific Validity, 43 Emory L J 995 (1994); Thomas M. Crowley, Help Me Mr. Wizard! Can We Really Have "Neutral" Rule 706 Experts? 1998 Detroit Coll L Rev 927; Ellen E. Deason, Court-Appointed Expert Witness: Scientific Positivism Meets Bias and Deference, 77 Or L Rev 59 (1998); Samuel Gross, Expert Evidence, 1991 Wis L Rev 1113, 1220 (1991); Laurel Hooker, Joe S. Cecil, and Thomas E. Willgang, Assessing Causation in Breast Implant Litigation: The Role of Science Panels, 64 L & Contemp Probs 139 (2001). For a more general look at the question, see Scott Brewer, Expert Testimony and Intellectual Due Process, 107 Yale L J 1535 (1998).
122. Fueled by Justice Breyer, this has been an area of active debate and prescription. See MediaCom Corp. v Rates Technology, Inc., 4 F Supp 2d 17, 29-30 (D Mass 1998); Joe S. Cecil and Thomas E. Willging, Accepting Daubert's Invitation: Defining a Role for Court-Appointed Experts in Assessing Scientific Validity, 43 Emory L J 995 (1994); Thomas M. Crowley, Help Me Mr. Wizard! Can We Really Have "Neutral" Rule 706 Experts? 1998 Detroit Coll L Rev 927; Ellen E. Deason, Court-Appointed Expert Witness: Scientific Positivism Meets Bias and Deference, 77 Or L Rev 59 (1998); Samuel Gross, Expert Evidence, 1991 Wis L Rev 1113, 1220 (1991); Laurel Hooker, Joe S. Cecil, and Thomas E. Willgang, Assessing Causation in Breast Implant Litigation: The Role of Science Panels, 64 L & Contemp Probs 139 (2001). For a more general look at the question, see Scott Brewer, Expert Testimony and Intellectual Due Process, 107 Yale L J 1535 (1998).
123. Fueled by Justice Breyer, this has been an area of active debate and prescription. See MediaCom Corp. v Rates Technology, Inc., 4 F Supp 2d 17, 29-30 (D Mass 1998); Joe S. Cecil and Thomas E. Willging, Accepting Daubert's Invitation: Defining a Role for Court-Appointed Experts in Assessing Scientific Validity, 43 Emory L J 995 (1994); Thomas M. Crowley, Help Me Mr. Wizard! Can We Really Have "Neutral" Rule 706 Experts? 1998 Detroit Coll L Rev 927; Ellen E. Deason, Court-Appointed Expert Witness: Scientific Positivism Meets Bias and Deference, 77 Or L Rev 59 (1998); Samuel Gross, Expert Evidence, 1991 Wis L Rev 1113, 1220 (1991); Laurel Hooker, Joe S. Cecil, and Thomas E. Willgang, Assessing Causation in Breast Implant Litigation: The Role of Science Panels, 64 L & Contemp Probs 139 (2001). For a more general look at the question, see Scott Brewer, Expert Testimony and Intellectual Due Process, 107 Yale L J 1535 (1998).
124. Fueled by Justice Breyer, this has been an area of active debate and prescription. See MediaCom Corp. v Rates Technology, Inc., 4 F Supp 2d 17, 29-30 (D Mass 1998); Joe S. Cecil and Thomas E. Willging, Accepting Daubert's Invitation: Defining a Role for Court-Appointed Experts in Assessing Scientific Validity, 43 Emory L J 995 (1994); Thomas M. Crowley, Help Me Mr. Wizard! Can We Really Have "Neutral" Rule 706 Experts? 1998 Detroit Coll L Rev 927; Ellen E. Deason, Court-Appointed Expert Witness: Scientific Positivism Meets Bias and Deference, 77 Or L Rev 59 (1998); Samuel Gross, Expert Evidence, 1991 Wis L Rev 1113, 1220 (1991); Laurel Hooker, Joe S. Cecil, and Thomas E. Willgang, Assessing Causation in Breast Implant Litigation: The Role of Science Panels, 64 L & Contemp Probs 139 (2001). For a more general look at the question, see Scott Brewer, Expert Testimony and Intellectual Due Process, 107 Yale L J 1535 (1998).
125. Fueled by Justice Breyer, this has been an area of active debate and prescription. See MediaCom Corp. v Rates Technology, Inc., 4 F Supp 2d 17, 29-30 (D Mass 1998); Joe S. Cecil and Thomas E. Willging, Accepting Daubert's Invitation: Defining a Role for Court-Appointed Experts in Assessing Scientific Validity, 43 Emory L J 995 (1994); Thomas M. Crowley, Help Me Mr. Wizard! Can We Really Have "Neutral" Rule 706 Experts? 1998 Detroit Coll L Rev 927; Ellen E. Deason, Court-Appointed Expert Witness: Scientific Positivism Meets Bias and Deference, 77 Or L Rev 59 (1998); Samuel Gross, Expert Evidence, 1991 Wis L Rev 1113, 1220 (1991); Laurel Hooker, Joe S. Cecil, and Thomas E. Willgang, Assessing Causation in Breast Implant Litigation: The Role of Science Panels, 64 L & Contemp Probs 139 (2001). For a more general look at the question, see Scott Brewer, Expert Testimony and Intellectual Due Process, 107 Yale L J 1535 (1998).
126. Fueled by Justice Breyer, this has been an area of active debate and prescription. See MediaCom Corp. v Rates Technology, Inc., 4 F Supp 2d 17, 29-30 (D Mass 1998); Joe S. Cecil and Thomas E. Willging, Accepting Daubert's Invitation: Defining a Role for Court-Appointed Experts in Assessing Scientific Validity, 43 Emory L J 995 (1994); Thomas M. Crowley, Help Me Mr. Wizard! Can We Really Have "Neutral" Rule 706 Experts? 1998 Detroit Coll L Rev 927; Ellen E. Deason, Court-Appointed Expert Witness: Scientific Positivism Meets Bias and Deference, 77 Or L Rev 59 (1998); Samuel Gross, Expert Evidence, 1991 Wis L Rev 1113, 1220 (1991); Laurel Hooker, Joe S. Cecil, and Thomas E. Willgang, Assessing Causation in Breast Implant Litigation: The Role of Science Panels, 64 L & Contemp Probs 139 (2001). For a more general look at the question, see Scott Brewer, Expert Testimony and Intellectual Due Process, 107 Yale L J 1535 (1998).
127. See Abram Chayes, Foreword: Public Law Litigation and the Burger Court, 96 Harv L Rev 4 (1982); Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv L Rev 1281 (1976); Owen M. Fiss, Foreword: The Forms of Justice, 93 Harv L Rev 1 (1979). See also Malcolm M. Feeley and Edward L. Rubin, Judicial Policy Making and the Modern State: How the Courts Reformed America's Prisons (Cambridge, 1998); Theodore Eisenberg and Stephen C. Yeazell, The Ordinary and the Extraordinary in Institutional Litigation, 93 Harv L Rev 465 (1980); William A. Fletcher, The Discretionary Constitution: Institutional Remedies and Judicial Legitimacy, 91 Yale L J 635 (1982).
128. See Abram Chayes, Foreword: Public Law Litigation and the Burger Court, 96 Harv L Rev 4 (1982); Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv L Rev 1281 (1976); Owen M. Fiss, Foreword: The Forms of Justice, 93 Harv L Rev 1 (1979). See also Malcolm M. Feeley and Edward L. Rubin, Judicial Policy Making and the Modern State: How the Courts Reformed America's Prisons (Cambridge, 1998); Theodore Eisenberg and Stephen C. Yeazell, The Ordinary and the Extraordinary in Institutional Litigation, 93 Harv L Rev 465 (1980); William A. Fletcher, The Discretionary Constitution: Institutional Remedies and Judicial Legitimacy, 91 Yale L J 635 (1982).
129. See Abram Chayes, Foreword: Public Law Litigation and the Burger Court, 96 Harv L Rev 4 (1982); Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv L Rev 1281 (1976); Owen M. Fiss, Foreword: The Forms of Justice, 93 Harv L Rev 1 (1979). See also Malcolm M. Feeley and Edward L. Rubin, Judicial Policy Making and the Modern State: How the Courts Reformed America's Prisons (Cambridge, 1998); Theodore Eisenberg and Stephen C. Yeazell, The Ordinary and the Extraordinary in Institutional Litigation, 93 Harv L Rev 465 (1980); William A. Fletcher, The Discretionary Constitution: Institutional Remedies and Judicial Legitimacy, 91 Yale L J 635 (1982).
130. See Abram Chayes, Foreword: Public Law Litigation and the Burger Court, 96 Harv L Rev 4 (1982); Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv L Rev 1281 (1976); Owen M. Fiss, Foreword: The Forms of Justice, 93 Harv L Rev 1 (1979). See also Malcolm M. Feeley and Edward L. Rubin, Judicial Policy Making and the Modern State: How the Courts Reformed America's Prisons (Cambridge, 1998); Theodore Eisenberg and Stephen C. Yeazell, The Ordinary and the Extraordinary in Institutional Litigation, 93 Harv L Rev 465 (1980); William A. Fletcher, The Discretionary Constitution: Institutional Remedies and Judicial Legitimacy, 91 Yale L J 635 (1982).
131. See Abram Chayes, Foreword: Public Law Litigation and the Burger Court, 96 Harv L Rev 4 (1982); Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv L Rev 1281 (1976); Owen M. Fiss, Foreword: The Forms of Justice, 93 Harv L Rev 1 (1979). See also Malcolm M. Feeley and Edward L. Rubin, Judicial Policy Making and the Modern State: How the Courts Reformed America's Prisons (Cambridge, 1998); Theodore Eisenberg and Stephen C. Yeazell, The Ordinary and the Extraordinary in Institutional Litigation, 93 Harv L Rev 465 (1980); William A. Fletcher, The Discretionary Constitution: Institutional Remedies and Judicial Legitimacy, 91 Yale L J 635 (1982).
132. See Abram Chayes, Foreword: Public Law Litigation and the Burger Court, 96 Harv L Rev 4 (1982); Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv L Rev 1281 (1976); Owen M. Fiss, Foreword: The Forms of Justice, 93 Harv L Rev 1 (1979). See also Malcolm M. Feeley and Edward L. Rubin, Judicial Policy Making and the Modern State: How the Courts Reformed America's Prisons (Cambridge, 1998); Theodore Eisenberg and Stephen C. Yeazell, The Ordinary and the Extraordinary in Institutional Litigation, 93 Harv L Rev 465 (1980); William A. Fletcher, The Discretionary Constitution: Institutional Remedies and Judicial Legitimacy, 91 Yale L J 635 (1982).
133. See Lon L. Fuller, The Forms and Limits of Adjudication, 92 Harv L Rev 353 (1978); Donald L. Horowitz, Decreeing Organizational Change: Judicial Supervision of Public Institutions, 1983 Duke L J 1265; Robert Nagel, How Useful Is Judicial Review in Free Speech Cases? 69 Cornell L Rev 302 (1984). See also Neal Devins, I Love You, Big Brother (Book Review), 87 Calif L Rev 1283 (1999).
134. See Lon L. Fuller, The Forms and Limits of Adjudication, 92 Harv L Rev 353 (1978); Donald L. Horowitz, Decreeing Organizational Change: Judicial Supervision of Public Institutions, 1983 Duke L J 1265; Robert Nagel, How Useful Is Judicial Review in Free Speech Cases? 69 Cornell L Rev 302 (1984). See also Neal Devins, I Love You, Big Brother (Book Review), 87 Calif L Rev 1283 (1999).
135. See Lon L. Fuller, The Forms and Limits of Adjudication, 92 Harv L Rev 353 (1978); Donald L. Horowitz, Decreeing Organizational Change: Judicial Supervision of Public Institutions, 1983 Duke L J 1265; Robert Nagel, How Useful Is Judicial Review in Free Speech Cases? 69 Cornell L Rev 302 (1984). See also Neal Devins, I Love You, Big Brother (Book Review), 87 Calif L Rev 1283 (1999).
136. See Lon L. Fuller, The Forms and Limits of Adjudication, 92 Harv L Rev 353 (1978); Donald L. Horowitz, Decreeing Organizational Change: Judicial Supervision of Public Institutions, 1983 Duke L J 1265; Robert Nagel, How Useful Is Judicial Review in Free Speech Cases? 69 Cornell L Rev 302 (1984). See also Neal Devins, I Love You, Big Brother (Book Review), 87 Calif L Rev 1283 (1999).
137. Alexander Bickel, The Least Dangerous Branch 16 (Yale, 2d ed 1986). For an example, see Matthew D. Adler, Judicial Restraint in the Administrative State: Beyond the Countermajoritarian Difficulty, 145 U Pa L Rev 759 (1997).
138. Alexander Bickel, The Least Dangerous Branch 16 (Yale, 2d ed 1986). For an example, see Matthew D. Adler, Judicial Restraint in the Administrative State: Beyond the Countermajoritarian Difficulty, 145 U Pa L Rev 759 (1997).
139. For an intriguing look at the history of this pathology, see Laura Kalman, The Strange Career of Liberal Legalism (Yale, 1996).
140. See Gustafson v Alloyd Co., 115 S Ct 1061 (1995), criticized in Edmund W. Kitch, Gustafson v Alloyd Co.: An Opinion That Did Not Write, 1995 Supreme Court Review 99. I use this example only because it strikes me as one in which the skills required to answer the question are much more the skills of close reading and analysis of a highly complex statutory scheme than is the question whether walking is part of the fundamental nature of tournament golf.