Do cases make bad law?

University of Chicago Law Review

Volumn 73, Issue 3, 2006, Pages 883-918

  Schauer, Frederick ^a,b  

^a HARVARD UNIVERSITY   (United States)

^b UNIVERSITY OF CHICAGO LAW SCHOOL   (United States)

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EID: 33749468280     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (220)

1. Oliver Wendell Holmes, Codes, and the Arrangement of the Law, 5 Am L Rev 1 (1870),
2. reprinted in Sheldon M. Novick, ed, 1 The Collected Works of Justice Holmes 212 (Chicago 1995).
3. See also Louis Menand, The Metaphysical Club 338 (Farrar, Straus, and Giroux 2001).
4. "In short, as Professor Eisenberg has reminded us in his book on the common law, courts are legitimately in two businesses: deciding individual disputes and enriching our body of legal norms." Todd D. Rakoff, The Implied Terms of Contracts: Of "Default Rule" and "Situation- Sense," in Jack Beatson and Daniel Friedmann, eds, Good Faith and Fault in Contract Law 191, 195 (Clarendon 1995), citing Melvin Aron Eisenberg, The Nature of the Common Law 4-7 (Harvard 1988).
5. See US Const Art III, § 2.
6. See Allen v Wright, 468 US 737, 752 (1984) (stating that an individual plaintiff lacks standing if his or her fact-specific harm is "too abstract, or otherwise not appropriate, to be considered judicially cognizable"). See also Raines v Byrd, 521 US 811, 839 (1997) (Breyer dissenting) ("[T]here would be no case or controversy here were the dispute before us ... not concrete and focused."); Babbitt v United Farm Workers National Union, 442 US 289, 297 (1979) ("The difference between an abstract question and a 'case or controversy' is one of degree ... and is not discernible by any precise test."); Coleman v Miller, 307 US 433, 460 (1939) (Frankfurter dissenting) (arguing that "traditional" English common law courts adjudicated "concrete, living contest[s] between adversaries," not "abstract, intellectual problems").
7. Northern Securities Co v United States, 193 US 197, 400 (1904) (Holmes dissenting).
8. See, for example, John Austin, 2 Lectures on Jurisprudence 634 (Murray 5th ed 1885) (Robert Campbell, ed) (noting "the childish fiction employed by our judges, that judiciary or common law is not made by them, but is a miraculous something made by nobody, existing, I suppose, from eternity, and merely declared from time to time by the judges"). See also Allen v Jackson, 1 Ch D 399, 405 (C A 1875) (Mellish) (observing that "the whole of the rules of equity, and nine tenths of the rules of common law, have in fact been made by the Judges"); John Chipman Gray, The Nature and Sources of the Law 285 (Macmillan 2d ed 1921) (referring to law being "made by the judges").
9. "The orthodox Blackstonian view, however, is that judges do not make law, but only declare what has always been law." R.W.M. Dias, Jurisprudence 151 (Butterworths 5th ed 1985). See also Willis v Baddeley, 2 QB 324, 326 (C A 1892) (Esher) ("There is, in fact, no such thing as judge-made law, for the judges do not make the law, though they frequently have to apply existing law to circumstances as to which it has not previously been authoritatively laid down that such law is applicable."); In re Hallett's Estate, 13 Ch D 696, 710 (C A 1879) (Jessel) (announcing that "the rules of Courts of Equity are not, like the rules of the Common Law, supposed to have been established from time immemorial").
10. Anyone who thinks the statement in the text to be an inaccurate caricature would be well advised to examine Eugene Wambaugh, The Study of Cases §§ 74-79 at 74-80 (Little, Brown 2d ed 1894) (admitting competing views of the law as either discovered or judge-made but advocating a universal "legal reasoning [that] is the same everywhere"). To the same effect is John M. Zane, German Legal Philosophy, 16 Mich L Rev 287, 338 (1918) ("The man who claims that under [the United States'] system the courts make law is asserting that the courts habitually act unconstitutionally.").
11. See Gerald J. Postema, Classical Common Law Jurisprudence (Part 1), 2 Oxford U Commw L J 155, 166 (2002) ("Classical common law judges did not regard themselves as 'making' law ... any more than rules of English grammar are [] made.");
12. J.H. Baker, The Law's Two Bodies: Some Evidential Problems in English Legal History 3 (Oxford 2001) (noting that "a problem is presented by the fact that there is often a disparity between what courts do ... and what they say they are doing");
13. Morton J. Horwitz, The Transformation of American Law 1780-1960 16-17 (Oxford 1992) (describing "[d]eduction from general principles" as a nineteenth-century tool to allow judges to "distinguish the legal from the political").
14. See Jeremy Bentham, Of Laws in General 166-68, 184-95 (Athlone 1970) (H.L.A. Hart, ed);
15. Jeremy Bentham, An Introduction to the Principles of Morals and Legislation 8 (Athlone 1970) (E.H. Burns and H.L.A. Hart, eds).
16. See also Gerald J. Postema, Bentham and the Common Law Tradition 197 (Clarendon 1986) (noting Bentham's belief that precedent ought not be viewed as binding);
17. Nancy L. Rosenblum, Bentham's Theory of the Modern State 94-98 (Harvard 1978);
18. James Steintrager, Bentham 20, 20-43 (Cornell 1977) ("Bentham's diagnosis of the sickness of the English body politic centred on his analysis of the English common law.").
19. This is the best understanding of Holmes's claim that "[t]he life of the law has not been logic: it has been experience." Oliver Wendell Holmes, The Common Law 5 (Belknap 1967) (Mark DeWolfe Howe, ed).
20. See also William Twining, Karl Llewellyn and the Realist Movement 16 (Weidenfeld 1973) ("[Holmes] recognized that judges can and do make law.").
21. Thus, the word "formalism," when not serving simply as a catchall term of jurisprudential abuse, may denote a belief, indeed a highly plausible one, in the possibility and/or desirability of rule-based constraint. Alternatively, "formalism" may be the vice of denying the extent of judicial choice or discretion when that choice or discretion actually exists. See Frederick Schauer, Formalism, 97 Yale L J 509, 509-11 (1988). It is this latter version of formalism, formalism as the denial of choice, that I discuss in the text.
22. Benjamin Cardozo wrote that: The theory of the older writers was that judges did not legislate at all. A pre-existing rule was there, imbedded, if concealed, in the body of the customary law. All that the judges did, was to throw off the wrappings, and expose the statute to our view. Since the days of Bentham and Austin, no one, it is believed, has accepted this theory without deduction or reserve, though even in modern decisions we find traces of its lingering influence. Benjamin N. Cardozo, The Nature of the Judicial Process 124-25 (Yale 1921).
23. 217 NY 382, 111 NE 1050, 1054-55 (1916) (Cardozo). For discussion and elaboration, see Eisenberg, The Nature of the Common Law at 58-61, 132-35 (cited in note 2).
24. 1932 App Cas 562, 566, 622-23 (HL 1932). For an analysis of Donoghue v Stevenson and other cases as decisions choosing among alternative legally justifiable outcomes, and thus making law, see Neil MacCormick, Legal Reasoning and Legal Theory 69-70, 234-35, 246-58 (Clarendon 1978) ("[T]here may be more than one set of normative generalizations which can be advanced in rationalization of the rules which 'belong' to the [legal] system."). As is well known, the most prominent contemporary defender of the view that judges find law and do not make it is Ronald Dworkin, especially in Ronald Dworkin, Law's Empire 410-12 (Belknap 1986), and Ronald Dworkin, Taking Rights Seriously xi (Harvard 1977). But although Dworkin wishes to understand as "finding" or "interpreting" what others would call "making," those differences have little pertinence to the themes of this Article. Even if we understand Dworkin to be correct and his opponents mistaken, my central point about the distorting dominance of the particular case before the judge would be no less applicable.
25. 15 USC § 1 (2000).
26. See, for example, United States v Socony-Vacuum Oil Co, 310 US 150, 228 (1940).
27. See, for example, United Shoe Machinery Corp v United States, 258 US 451, 457 (1922).
28. US Const Art I, § 8.
29. US Const Amend I.
30. Id.
31. US Const Amend V; US Const Amend XIV, § 1.
32. US Const Amend XIV, § 1.
33. US Const Amend IV.
34. US Const Amend VIII.
35. See David A. Strauss, Common Law Freedom of Speech and the Common Law Constitution, in Lee C. Bollinger and Geoffrey R. Stone, eds, Eternally Vigilant: Free Speech in the Modern Era 32, 59 (Chicago 2002) ("The content of [First Amendment] law has not emerged from the text [but instead] by a [common law] process.");
36. David A. Strauss, Common Law Constitutional Interpretation, 63 U Chi L Rev 877, 877 (1996) ("[I]n the day-to-day practice of constitutional interpretation, ... the specific words of the text play at most a small role.").
37. See also Adrian Vermeule, Constitutional Amendments and the Constitutional Common Law 23 (Chicago Public Law and Legal Theory Working Paper No 73, 2004), online at http://www.law.uchicago.edu/academics/publiclaw/ resources/73-av-amendments.pdf (visited June 11, 2006) (discussing "judgemade constitutional law").
38. See Duncan Kennedy, Legal Formality, 2 J Legal Stud 351, 378 (1973) (arguing that judges necessarily exercise choice in every decision, even when it appears they are simply following the law).
39. Even earlier, Theophilus Parsons observed that judges in nineteenth-century America "appear[ed] to take the opportunity which each case afforded, not only of deciding that case, but of establishing rules of very general application." Theophilus Parsons, Memoir of Theophilus Parsons 239 (Ticknor and Fields 1859).
40. 384 US 436, 467-74 (1966) (providing virtually the exact language that police were to use in alerting suspects of their Fifth Amendment rights).
41. See, for example, United States v Socony-Vacuum Oil Co, 310 US 150, 222 (1940) (holding that price-fixing per se violates antitrust laws); Times-Picayune Publishing Co v United States, 345 US 594, 605 (1953) (holding that tying arrangements per se violate antitrust laws).
42. See Michael C. Dorf, Courts, Reasons, and Rules, in Linda Meyer, ed, Rules and Reasoning: Essays in Honour of Fred Schauer 129, 130-31 (Hart 1999).
43. On the rule-standard distinction, see Russell B. Korobkin, Behavioral Analysis and Legal Form: Rules vs. Standards Revisited, 79 Or L Rev 23, 24 (2000);
44. Louis Kaplow, Rules versus Standards: An Economic Analysis, 42 Duke L J 557, 559-60 (1992);
45. Kathleen M. Sullivan, The Supreme Court 1991 Term: Foreword: The Justices of Rules and Standards, 106 Harv L Rev 22, 26-27 (1992);
46. Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harv L Rev 1685, 1776 (1976). Ronald Dworkin has fostered a not inconsiderable amount of confusion by distinguishing rules from principles, and then defining rules as precise and absolute and principles as vague and overridable.
47. Ronald Dworkin, Taking Rights Seriously at 22-28 (1978) (explaining that rules are "all-or-nothing," while principles may not apply in a particular case and yet remain valid). Dworkin's error lies in part in assuming that the dimensions of precision and weight operate in tandem, when in fact they appear to be largely independent of each other. There are precise but overridable rules, and there are vague but highly stringent standards (or even absolute standards, as with Kant's vague but nonoverridable categorical imperative), and even if we assume equivalence between what Dworkin means by "principles" and others mean by "standards," it is still not the case either that the precision of rules is a marker of their stringency or that the vagueness of standards is a marker of their overridability. Joseph Raz has observed, against Dworkin, that "we do not normally use the rule/principle distinction to mark the difference between prima facie and conclusive reasons or between the standards which establish them,"
48. Joseph Raz, Legal Principles and the Limits of Law, in Marshall Cohen, ed, Ronald Dworkin and Contemporary Jurisprudence 73, 82 (Rowman & Allanheld 1983), and Raz seems plainly correct.
49. See also Frederick Schauer, The Convergence of Rules and Standards, 2003 NZ L Rev 303, 306 (noting that Dworkin "mistakenly ... conflates the dimension of specificity with the dimension of stringency");
50. Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life 13-14 (Clarendon 1991) (preferring a distinction between "conclusive and overridable rules" to the one drawn by Dworkin).
51. The slightly more common version is "all things considered" decisionmaking, see Margaret Jane Radin, The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings, 88 Colum L Rev 1667, 1680 (1988) (referring to "all-things-considered intuitive weighing" as lying at the heart of pragmatism), and some would put open-ended "balancing" into the same category.
52. See Stephen E. Gottlieb, The Paradox of Balancing Significant Interests, 45 Hastings L J 825, 826 (1994);
53. T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L J 943, 944 (1987).
54. On these questions of strength as opposed to scope, see Frederick Schauer, A Comment on the Structure of Rights, 27 Ga L Rev 415, 433 (1993).
55. See Frederick Schauer, Giving Reasons, 47 Stan L Rev 633, 635 (1995).
56. The alternative view-that announced reasons have virtually no normative weight in subsequent litigation, see Edward A. Hartnett, A Matter of Judgment, Not a Matter of Opinion, 74 NYU L Rev 123, 126 (1999) - is stunningly at odds with the realities of actual legal practice. For the three-month period from October 1, 2004, through December 31, 2004, for example, 222 briefs were filed in the Supreme Court of the United States, and every one of those briefs quoted from a previous Supreme Court decision (Lexis Supreme Court Briefs database, search conducted on Feb 9, 2005). This would be an odd practice indeed unless the writers of those briefs had reason to believe that what the Court had said in previous cases might make a decisional difference in subsequent ones. Consequently, one traditional understanding of common law decisionmaking, in which opinions are seen as highly transient and highly defeasible, appears these days to be in substantial decline. The less that particular decisions exert force on the future, the less my argument tells against common law method. But the more that particular decisions genuinely constrain the future-and that is the whole point of precedent-the more the phenomenon I address here is genuinely problematic.
57. The static model is artificial if we are considering the essentially continuous nature of the common law itself. But the static model begins to resemble reality whenever we consider the numerous contexts - rulemaking in families, private associations, and often in administrative agencies, for example - in which, realistically, a single discrete event or decision prompts the process of rule creation.
58. This account of rule-based decisionmaking is developed at length in Schauer, Playing By the Rules at 17-37 (cited in note 32).
59. I ignore the interesting phenomenon of person-specific "special" legislation. Special laws, typically granting some privilege or exemption to (or prohibition on) an identified individual or entity, and commonly prohibited by state constitutions although not by the Constitution of the United States, are not general and are not rules. See Norman J. Singer, 2 Statutes and Statutory Construction § 40.01 (Clark Boardman Callaghan 5th ed 1993) (noting that the Alabama Constitution is representative in prohibiting legislation "[e]xempting any individual, private corporation, or association from the operation of any general law").
60. See, for example, Richard A. Posner, The Problems of Jurisprudence 247-61 (Harvard 1990) (devoting a chapter to contrasting common law versus statute law).
61. But see Paul H. Rubin, Common Law and Statute Law, 11 J Legal Stud 205, 222 (1982) (arguing that the "sharp distinction[] between statute and common law... is often overdrawn").
62. See, for example, Thomas Lundmark, Book Review, 46 Am J Comp L 211, 214-15 (1998) ("One of the classic differences between civil-law and common-law jurisdictions is that the former ... do not recognize judicial precedent as an independent source of law."),
63. reviewing D. Neil MacCormick and Robert S. Summers, eds, Interpretive Precedents: A Comparative Study (Dartmouth 1997).
64. But see Katharina Pistor and Chenggang Xu, Incomplete Law, 35 NYU J Intl L & Polit 931, 946-47 (2003) (noting that although many believe civil law judges interpret law and common law judges make law, "[t]he line between lawmaking and law interpretation [] is often difficult to draw").
65. See, for example, Robert W. Gordon, Book Review, 36 Vand L Rev 431, 431 (1983) ("[M]odern historians have turned the debates over codification into a 'movement' ... resisted by a countermovement to preserve the common law."),
66. reviewing Charles M. Cook, The American Codification Movement: A Study of Antebellum Legal Reform (Greenwood 1981);
67. Samuel Stoljar, Codification and the Common Law in S.J. Stoljar, ed, Problems of Codification 1, 1 (Australian Natl U 1977) (describing a longstanding split between "common law traditionalists and aficionados of [codification]").
68. See also Charles M. Cook, The American Codification Movement: A Study of Antebellum Legal Reform ix-x (Greenwood 1981) (arguing that nineteenth-century debates over common law and codification resulted in compromises that shaped a distinctive, hybridized American legal system).
69. It is worth emphasizing that I am concerned here largely with the soundness (or lack thereof) of a particular argument for case-based rulemaking. There are other arguments for it, and there are arguments against it other than the one I offer here. Thus, my claim, even if sound, cannot be considered a conclusive or all-things-considered argument against case-based rulemaking. Still, if I am right, one of the most prominent arguments for the case-based approach will be significantly weakened, and the overall argument for that approach will be weakened pro tanto.
70. "[L]itigants, after all, are the ones who actually experience the effects of legal rules." Steven Shavell, The Appeals Process as a Means of Error Correction, 24 J Legal Stud 379, 417 (1995) (noting that "appeals courts sometimes can learn about opportunities for lawmaking only from disappointed litigants").
71. The claim is frequently part of a larger appeal for context and on the importance of seeing particular litigants as a way to understand the context. See, for example, Wendy Anton Fitzgerald, Maturity, Difference, and Mystery: Children's Perspectives and the Law, 36 Ariz L Rev 11, 107 n 577 (1994) (arguing that courts that focus on "the concrete context of the litigants" do not "launch forth on a sea of indeterminacy and lawlessness");
72. Martha Minow, The Supreme Court 1986 Term: Foreword: Justice Engendered, 101 Harv L Rev 10, 89 (1987) (arguing that courts should avoid "insulating themselves in abstractions").
73. See note 1 and accompanying text.
74. See Eisenberg, The Nature of the Common Law at 12 (cited in note 2) (arguing that "the particular case" is one of "two basic arenas" in "which the courts are obliged to be responsive");
75. Guido Calabresi, A Common Law for the Age of Statutes 165 (Harvard 1982) ("[Courts'] main job would still be to give us continuity and change by applying the great vague principle of treating like cases alike.");
76. Edward H. Levi, An Introduction to Legal Reasoning 3 (Chicago 1948) (noting that "it cannot be said that the legal process is the application of known rules to diverse facts.... [R]ules are discovered in the process of determining similarity").
77. See also Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court ix (Harvard 1999) (advocating "[j]udicial minimalism," in which a "court settles the case before it, but it leaves many things undecided").
78. See, for example, Flast v Cohen, 392 US 83, 100 (1968) (reviewing precedent standing for the idea that federal courts do not have to review cases that fail to present a concrete controversy). As the Supreme Court put it in Baker v Carr, 369 US 186 (1962), concreteness "sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Id at 204. And in Valley Forge Christian Coll v Americans United for Separation of Church and State, Inc, 454 US 464 (1982), the Court observed that "a concrete factual context" is likely to produce "a realistic appreciation of the consequences of judicial action." Id at 472. See also William A. Fletcher, The Structure of Standing, 98 Yale L J 221, 222 (1988) (noting that one common rationale for standing is that it "ensur[es] that a concrete case informs the court of the consequences of its d ecisions"). Compare Susan Bandes, The Idea of a Case, 42 Stan L Rev 227, 318-19 (1990) (arguing that the Supreme Court's standing jurisprudence "uses contorted logic and tortured language to fit a public rights problem into the private rights mold").
79. I want to make clear that my challenge is to the very requirement of a concrete controversy, and not to the interesting question of whether the standing requirement fosters concreteness. As to the latter, see the important argument in David M. Driesen, Standing for Nothing: The Paradox of Demanding Concrete Context for Formalist Adjudication, 89 Cornell L Rev 808, 811 (2004) (noting that courts do not have to adjudicate based on a case's specific facts, though standing requires those facts to exist).
80. The original insight is in Amos Tversky and Daniel Kahneman, Judgment under Uncertainty: Heuristics and Biases, 185 Science 1124, 1127 (1974) ("[P]eople assess the frequency of a class or the probability of an event by the ease with which instances or occurrences can be brought to mind."),
81. and there is now a voluminous literature, some of the key items being contained in Daniel Kahneman, Paul Slovic, and Amos Tversky, eds, Judgment under Uncertainty: Heuristics and Biases 11-14 (Cambridge 1982) (noting that "the reliance on availability leads to predictable biases," such as those stemming from "retrievability," "the effectiveness of a search set," "imaginability," and "illusory correlation"),
82. and Thomas Gilovich, Dale Griffin, and Daniel Kahneman, eds, Heuristics and Biases: The Psychology of Intuitive Judgment 19-119 (Cambridge 2002) (presenting five articles discussing the representativeness and availability heuristics).
83. See Scott Plous, The Psychology of Judgment and Decision Making 125-26, 178-80 (McGraw-Hill 1993) (noting the similarities between availability, salience, and vividness).
84. See also Robert M. Reyes, William C. Thompson, and Gordon H. Bower, Judgmental Biases Resulting from Differing Availabilities of Arguments, 39 J Personality & Soc Psych 2, 5-12 (1980) (finding that concrete and vivid information has greater effect on decisionmaking than abstract information).
85. There is a dispute in the literature between those who take availability as an often reliable indicator of class characteristics, see Gary Klein, The Fiction of Optimization, in Gerd Gigerenzer and Reinhard Selten, eds, Bounded Rationality: The Adaptive Toolbox 103, 114 (MIT) 2001) (positing that instead of being seen as biases, heuristics are better viewed "as strengths that permit skillful decision making in field settings"), and those opposed to the view that availability is often a biased indicator of an actual frequency distribution,
86. see Amos Tversky and Daniel Kahneman, Extensional versus Intuitive Reasoning: The Conjunction Fallacy in Probability Judgment, in Gilovich, Griffin, and Kahneman, eds, Heuristics and Biases 19, 20-21 (cited in note 50) (noting extensive data that show heuristics to be "errors of judgment").
87. Some of the dispute can be disaggregated by understanding availability solely in terms of ease of recall, independent of the extent to which people may recall on the basis of reliability and not ease. And there is evidence that when we control for the content of the recall, ease of recall itself is often a determinant of judgment. Norbert Schwarz and Leigh Ann Vaughn, The Availability Heuristic Revisited: Ease of Recall and Content of Recall as Distinct Sources of Information, in Gilovich, Griffin, and Kahneman, eds, Heuristics and Biases 103, 118-19 (cited in note 50) ("[I]ndividuals are likely to rely on ease of recall when the judgment task is of low personal relevance."). Understood as ease of recall itself, availability is especially likely to be biased. As shall become clear, there is reason to believe not only that the availability of the immediate case is an unreliable indicator of the array of disputes of that type, but also that, when litigation incentives are taken into account, it may be an especially unreliable indicator.
88. This may or may not be true, but I assume that for certain weather events, like for many disasters, the occurrence of such an event at Time 1 is causally unrelated to the probability of a similar event at Time 2.
89. See Richard E. Nisbett, et al. Popular induction: Information Is Not Necessarily Informative, in John S. Carroll and John W. Payne, eds, Cognition and Social Behavior 113, 128-29 (Lawrence Erlbaum 1976) (noting that "subjects seized on particular concrete details of the experimental situation and related them to similar situations in their own histories").
90. Dolly Chugh and Max H. Bazerman, Bounded Awareness: What You Fail to See Can Hurt You 9 (Harvard Business School Working Paper No 05-037, 2005), online at http://www.people.hbs.edu/mbazerman/Papers/Bounded%20Awareness.pdf (visited June 11, 2006) (classifying this "common tendency to focus too much on a particular event" as "[f]ocalism").
91. See also Max H. Bazerman and Dolly Chugh, Bounded Awareness: Focusing Failures in Negotiation, in Leigh L. Thompson, ed, Negotiation Theory and Research 7, 9-10 (Psychology 2006).
92. The phenomenon is referred to as "focalism" or the "focusing illusion" in David A. Schkade and Daniel Kahneman, Does Living in California Make People Happy? A Focusing Illusion in Judgments of Life Satisfaction, 9 Psych Sei 340, 345 (1998).
93. See John S. Carroll, The Effect of Imagining an Event on Expectations for the Event: An Interpretation in Terms of the Availability Heuristic, 14 J Exp Soc Psych 88, 90-91, 92, 94 (1978).
94. See Abbigail J. Chiodo, et al, Subjective Probabilities: Psychological Theories and Economic Applications, 86 Fed Res Bk of St Louis Rev 33, 35 (2004) ("[P]eople often give too much weight to memorable evidence, even when better sources of information are available.").
95. See Chris Guthrie, Jeffrey J. Rachlinski, and Andrew J. Wistrich, Inside the Judicial Mind, 86 Cornell L Rev 777, 787-94 (2001) (describing how the damage determinations of parties, jurors, and judges are anchored by initial information);
96. Fritz Strack and Thomas Mussweiler, Explaining the Enigmatic Anchoring Effect: Mechanisms of Selective Accessibility, 73 J Personality & Soc Psych 437, 438 (1997) (noting that anchoring occurs regardless of whether the given anchor falls inside or outside a range of neutrally acceptable values);
97. Pious, The Psychology of Judgment and Decision Making at 144-52 (cited in note 51) (noting that "unusually high or low" values are "most likely to produce biases in judgment");
98. Tversky and Kahneman, 185 Science at 1128-30 (cited in note 50) (finding that cognitive "adjustments" from the anchor value "are typically insufficient").
99. See Francisca Fariña, Ramón Arce, and Mercedes Novo, Anchoring in Judicial Decision-Making, 7 Psych in Spain 56, 61-62 (2003) (finding anchoring effects in judicial determinations of guilt and judicial imposition of sentences in criminal cases).
100. See Gretchen B. Chapman and Eric J. Johnson, Incorporating the Irrelevant: Anchors in Judgments of Belief and Value, in Gilovich, Griffin, and Kahneman, eds, Heuristics and Biases 120, 138 (cited in note 50) (describing anchoring as "both prevalent and robust" and observable "in numerous real-world contexts");
101. Timothy D. Wilson, et al, A New Look at Anchoring Effects: Basic Anchoring and Its Antecedents, 125 J Exp Psych: Gen 387, 400 (1996) (finding "anchoring effects even when people were blatantly provided with anchor values and explicitly told not to use these values when answering subsequent questions").
102. See Plous, The Psychology of Judgment at 97-98 (cited in note 51) (describing how framing an outcome as a "gain" rather than a "loss" shapes decisionmakers' risk-aversion);
103. Amos Tversky and Daniel Kahneman, Rational Choice and the Framing of Decisions, 59 J Bus S251, S260-61 (1986) (giving the example of how framing the difference between two prices as either a surcharge or a discount impacts preferences);
104. Daniel Kahneman and Amos Tversky, Choice, Values, and Frames, 39 Am Psych 341, 343 (1984) (noting that "two versions of a choice problem that are recognized to be equivalent when shown together should elicit the same preference even when shown separately" but that "the requirement of invariance . . . cannot generally be satisfied");
105. Amos Tversky and Daniel Kahneman, The Framing of Decisions and the Psychology of Choice, 211 Science 453, 457 (1981) (noting that "seemingly inconsequential changes in the formulation of choice problems caused significant shifts of preference").
106. James N. Druckman, Political Preference Formation: Competition, Deliberation, and the (Ir)relevance of Framing Effects, 98 Am Pol Sci Rev 671, 672 (2004).
107. Much of this literature is cited in Druckman, 98 Am Pol Sci Rev at 685-86 (cited in note 62).
108. Jerome Frank, Law and the Modern Mind 102-04 (Brentano's 1930).
109. To the same effect, see Joseph C Hutcheson, Jr., The Judgment Intuitive: The Function of the "Hunch" in Judicial Decision, 14 Cornell L Q 274, 278 (1929) ("[T]he judge, being merely on his way with a roving commission to find the just solution, will follow his hunch wherever it leads him.");
110. Herman Oliphant, A Return to Stare Decisis, 14 ABA J 71, 75 (1928).
111. See Brian Leiter, American Legal Realism, in Martin P. Golding and William A. Edmundson, eds, The Blackwell Guide to the Philosophy of Law and Legal Theory 50, 58-59 (Blackwell 2005).
112. Karl Llewellyn, The Common Law Tradition: Deciding Appeals 121 (Little, Brown 1960) (arguing that judges draw "on more than 'common knowledge'" to decide cases; they draw on "'horse sense,' the balanced shrewdness of the expert in the art").
113. See also William Twining, Karl Llewellyn and the Realist Movement at 209 (cited in note 11).
114. Llewellyn's celebration was far less frequent and far more qualified than Frank's, for Llewellyn was most concerned with urging judges to base their decisions on situation types rather than case-specific litigant characteristics. See Leiter, American Legal Realism at 55 (cited in note 66) ("[W]hat more typically determines the course of the decision is the 'situation-type,' that is, the general pattern of behavior."). In this context, it is important to note that the thorough-going particularist - Jerome Frank, perhaps - would not be troubled by the issue I raise here, for the particularist would not suppose that the "law" that is made in one case would have much, if any, effect on the decision of subsequent cases. I use the Realist observations about particularism, therefore, not totally to enlist the Realists in my case, but simply to draw on their highly plausible observations about the way in which the necessity of decision might focus judicial attention more on a particular case than would occur in a less distorted lawmaking process.
115. Reaching the wrong result in order to announce the right rule is the best understanding of Herbert Wechsler's call for decision according to "neutral principles." Herbert Wechsler, Toward Neutral Principles in Constitutional Law, 73 Harv L Rev 1, 34-35 (1959).
116. The word "neutral" is unnecessary and distracting, see Frederick Schauer, Neutrality and Judicial Review, 22 L & Phil 217, 217 (2003), but the basic idea is that a rule announced in the first case should be one a court is willing to follow in subsequent ones.
117. Kent Greenawalt, The Enduring Significance of Neutral Principles, 78 Colum L Rev 982, 983 (1978);
118. M.P. Golding, Principled Decision-Making and the Supreme Court, 63 Colum L Rev 35, 35 (1963). The implication is that if a court is not willing to follow in future cases the rule necessary to decide the first case properly, then deciding the first case improperly would be preferable to having a bad rule, a rule that precisely because it is a bad rule will decide some number of subsequent cases improperly.
119. As with a court that goes out of its way to emphasize the uniqueness of a unique case, as in Bush v Gore, 531 US 98, 109 (2000) ("Our consideration is limited to the present circumstances.").
120. See Sunstein, One Case at a Time at 5 (cited in note 47) ("[A] minimalist path usually ... makes a good deal of sense when the Court is dealing with a constitutional issue of high complexity about which many people feel deeply and on which the nation is divided").
121. Arien Mack, Inattentional Blindness: Looking without Seeing, 12 Curr Dir in Psych Sci 180, 180 (2003) (noting the same phenomenon "even may account for many car accidents").
122. See also Arien Mack and Irvin Rock, Inattentional Blindness 250 (MIT 1998) ("[T]hat the absence of attention causes apparent blindness, deafness, and numbness and perhaps even insensitivity to extreme pain [indicates] that attention is necessary for conscious perception.").
123. Chugh and Bazerman, Bounded Awareness at 5 (cited in note 55) (noting that "significant laughter and disbelief result when inattentive subjects are alerted to a novel stimulus that passed through their visual fields).
124. See Daniel J. Simons and Christopher F. Chabris, Gorillas in Our Midst: Sustained Inattentional Blindness for Dynamic Events, 28 Perception 1059, 1072 (1999) (finding that "'directed ignoring' could inhibit perception of not just the ignored event but of all unattended events").
125. 376 US 254 (1964).
126. See Beauharnais v Illinois, 343 US 250, 266 (1952).
127. See Anthony Lewis, Make No Law: The Sullivan Case and the First Amendment 147 (Random House 1991) (noting that the Court applied its new test to the instant facts, a rare event, in order to prevent the same outcome on remand);
128. Harry Kalven, Jr., The Negro and the First Amendment 53 (Ohio State 1965) ("On its facts, the Times case seems to have been put together by the Devil himself in order to embarrass the legal system.").
129. See Frederick Schauer, The Exceptional First Amendment, in Michael Ignatieff, ed, American Exceptionalism and Human Rights 29, 30 (Princeton 2005) ("[T]he American First Amendment... remains a recalcitrant outlier to a growing international understanding of what the freedom of expression entails.");
130. Michael Chesterman, Freedom of Speech in Australian Law: A Delicate Plant 101 (Ashgate 2000) ("[In Australia,] the defendant [in an action for libel] must normally prove that ... reasonable grounds warranting belief in the truth of the defamatory imputation existed at the time of publication.");
131. Ian Loveland, Political Libels: A Comparative Study 4 (Hart 2000) (noting that in England, the plaintiff in a libel case must only "prove that the publication complained of was libellous");
132. Leonard Leigh, Of Free Speech and Individual Reputation: New York Times v. Sullivan in Canada and Australia, in Ian Loveland, ed, Importing the First Amendment: Freedom of Expression in American, English, and European Law 51, 66 (Hart 1998) ("In neither [Australia nor Canada] do courts welcome the American extension [of libel] from matters of a political nature ... to matters of public interest.").
133. I do not claim that Sullivan was wrongly decided, nor that the Sullivan actual malice rule was the wrong rule. Both of those might be true, see Richard Epstein, Was New York Times v. Sullivan Wrong?, 53 U Chi L Rev 782, 784-85 (1986) (noting that the post-Sullivan period has brought increased numbers of libel suits and increasing unease about libel law), but my point is only that the particular facts of the case produced a rule almost certainly different from what the same justices of the same Court would otherwise have done were they asked simply to make a public figure libel rule, and different from what every other open liberal democracy in the world has subsequently decided to do. Sullivan may be a fortuitously distorted decision, but the distortion seems nevertheless plain.
134. 462 US 919, 967 (1983) (White dissenting).
135. Id at 974.
136. 379 US 294 (1964) (upholding the Civil Rights Act of 1964 as a valid congressional exercise of the Commerce Power even as applied to primarily local entities).
137. 383 US 131 (1966) (upholding the First Amendment right to protest, even in a public library).
138. 526 US 137 (1999) (increasing the degree of judicial scrutiny over the qualifications of expert witnesses).
139. 509 US 579, 597 (1993) (holding that "the Rules of Evidence ... assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant").
140. To be exact, 83 out of 7781 in the Supreme Court's October 2003 Term. The Supreme Court 2003 Term: The Statistics, 118 Harv L Rev 497, 504-05 (2004) (excluding fifty cases summarily decided from the eighty-three decided by full opinion).
141. See Shavell, 24 J Legal Stud at 416-17 (cited in note 44) (noting that appellate courts that screen their own caseload may be able to engage in lawmaking with less attention to the error correction process).
142. 68 Cal 2d 319, 438 P2d 33 (1968) (disallowing the testimony of a statistician in a criminal case where there had been no foundational evidence of the probabilities and no evidence that the several probabilities were statistically independent). That the use of statistics in Collins was particularly inept is accepted both by those sympathetic and hostile to the use of statistical evidence generally. Compare Michael O. Finkelstein and William B. Fairley, A Bayesian Approach to Identification Evidence, 83 Harv L Rev 489, 489-90 (1970) (criticizing Collins but expressing sympathy to statistical evidence), with Laurence H. Tribe, Trial By Mathematics: Precision and Ritual in the Legal Process, 84 Harv L Rev 1329, 1393 (1971) (criticizing use of statistical evidence as evidence at civil or criminal trials).
143. See Christopher B. Mueller and Laird C. Kirkpatrick, Evidence § 7.18 at 667 (Aspen 3d ed 2003) (noting that, in both criminal and civil cases, "the objections to statistical inference have prevailed"); Neil B. Cohen, Comment, The Costs of Acceptability: Blue Buses, Agent Orange, and Aversion to Statistical Evidence, 66 BU L Rev 563, 569-70 (1986) (contending that the use of statistical evidence, although rarely accepted by courts, enhances the distributive aspects of tort law).
144. See Cooney v Osgood Machinery, Inc, 595 NYS2d 919, 612 NE2d 277, 280, 282 (1993) (noting that of "the schools of thought on choice of law, the one that emerged as most satisfactory was 'interest analysis'" and applying it to the case at hand).
145. See Babcock v Jackson, 240 NYS2d 743, 191 NE2d 279, 285 (1963) (applying the law based on which jurisdiction "has the strongest interest in the resolution of [each] particular issue presented"), which applies an approach largely attributable to Brainerd Currie, Married Women's Contracts: A Study in Conflict-of-Laws Method, 25 U Chi L Rev 227, 249 (1958).
146. See Tooker v Lopez, 301 NYS2d 519, 249 NE2d 394, 409 (1969) (Breitel dissenting) (criticizing the New York Court of Appeals for adopting an unworkable rule because of the influence of a "wholly adventitious" set of facts in the case in which the rule was created). See also David P. Currie, Herma Hill Kay, and Larry Kramer, Conflict of Laws 155-62 (West 6th ed 2001) (commenting on the "New York Mess" spawned by Babcock v Jackson); Joseph William Singer, Facing Real Conflicts, 24 Cornell Intl L J 197, 198 (1991) (arguing that interest analysis does not describe courts' actual practice, which is closer to "a rebuttable presumption that forum law applies"); Lea Brilmayer, Interest Analysis and the Myth of Legislative Intent, 78 Mich L Rev 392, 393 (1980) (arguing that "[i]nterest analysis is simply too unpredictable and parochial to be a plausible theory of constructive intent").
147. See Meir Dan-Cohen, Harmful Thoughts: Essays on Law, Self, and Morality 58-62 (Princeton 2002).
148. Insofar as the cases arriving in an appellate court are systematically heterogeneous with respect to the classes of which they are members, see Gillian K. Hadfield, Bias in the Evolution of Legal Rules, 80 Georgetown L J 583, 592 (1992), the phenomenon identified here would be amplified. But even if outliers arrive in appellate courts in their proper proportion, the tendency of decisionmakers to see the outliers as nonoutlying exemplars would itself create a substantial problem.
149. As should be apparent, all of this also applies to the original perception of a court that an existing rule needs to be changed. A rule that gets it right 99 percent of the time is, usually, a pretty good rule, but if only the 1 percent gets litigated then courts are likely to believe that the existing rule is far worse than it in fact is. I discuss this issue at greater length in Part IV.A.
150. I return to these comparative issues in Part V.
151. Pub L No 104-145, 110 Stat 1345 (1996).
152. See Daniel M. Filler, Making the Case for Megan's Law: A Study in Legislative Rhetoric, 76 Ind L J 315, 315 (2001) (explaining how seven-year-old Megan's rape and murder spurred New Jersey "to adopt a sex-offender community-notification law in her memory").
153. See generally Symposium on Megan's Law, 6 BU Pub Int L J 29, 29-73 (1996).
154. Omychund v Barker, 26 Eng Rep 15, 23 (Ch 1744) (Mansfield) ("[T]he common law, that works itself pure by rules drawn from the fountain of justice, is for this reason superior to an act of parliament."). See Lon L. Fuller, The Law in Quest of Itself 140 (Foundation 1940) (adopting Mansfield's phrase in saying that "[t]he common law works itself pure and adapts itself to the needs of a new day").
155. The literature, sometimes more or sometimes less supportive of evolutionary explanations, includes Todd J. Zywicki, The Rise and Fall of Efficiency in the Common Law: A Supply-Side Analysis, 97 Nw U L Rev 1551, 1553 (2003) (proposing that changes in the institutional legal framework "have made the common law more susceptible to rent-seeking pressures, which have undermined the common law's pro-efficiency orientation");
156. Douglas Glen Whitman, Evolution of the Common Law and the Emergence of Compromise, 29 J Legal Stud 753, 755 (2000) (using a model of legal process to derive conditions under which the common law will produce convergence on a single rule rather than oscillation between rules);
157. Herbert Hovenkamp, Evolutionary Models in Jurisprudence, 64 Texas L Rev 645, 646 (1985) ("Today every theory of jurisprudence worth contemplating incorporates a theory of change.");
158. R. Peter Terrebonne, A Strictly Evolutionary Model of Common Law, 10 J Legal Stud 397, 398 (1981) (importing "tools of evolutionary analysis from biology" to test the efficiency of law);
159. William M, Landes and Richard A. Posner, Adjudication as a Private Good, 8 J Legal Stud 235, 284 (1979) (arguing that the common law trends towards economic efficiency in some areas but that its overall efficiency is generally "overstated");
160. John C. Goodman, An Economic Theory of the Evolution of Common Law, 7 J Legal Stud 393, 394 (1978) (proposing that the litigants drive the evolution of the common law towards economic efficiency);
161. Paul H. Rubin, Why Is the Common Law Efficient?, 6 J Legal Stud 51, 51 (1977) (arguing that inefficient legal rules will lead to more litigation, and thus greater potential change, than efficient legal rules).
162. See Schauer, Playing by the Rules at 34-35 (cited in note 32).
163. This well-known example comes from H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv L Rev 593, 607 (1958) (positing that rules create "a penumbra of debatable cases" surrounding "a core of settled meaning"),
164. and H.L.A. Hart, The Concept of Law 123 (Clarendon 2d ed 1994) (arguing that "[a]ll rules involve recognizing or classifying particular cases," some of which are easily classified and some of which are ambiguous).
165. The supposed counterexample comes from Lon L. Fuller, Positivism and Fidelity to Law - A Reply to Professor Hart, 71 Harv L Rev 630, 663 (1958) (arguing that the distinction between the core and the penumbra cannot be determined without reference to purpose).
166. 15 USC § 78p(a) (2000) (establishing that "[e]very person who is directly or indirectly the beneficial owner of more than 10 percent of any class of any equity security" is required to file statements in accordance with the statute).
167. See Baruch Fischhoff, Learning from Experience: Coping with Hindsight Bias and Ambiguity, in J. Scott Armstrong, ed, Principles of Forecasting: A Handbook for Researchers and Practitioners 543, 544 (Kluwer 2001) (defining hindsight bias as "the tendency to exaggerate in hindsight what one [would have been] able to predict in foresight");
168. Paul Slovic and Baruch Fischhoff, On the Psychology of Experimental Surprises, 3 J Exp Psych: Hum Perception & Performance 544, 561 (1977) (finding "people to be wrong too often when they are certain that they are right");
169. Baruch Fischhoff, Hindsight ≠ Foresight: The Effect of Outcome Knowledge on Judgment under Uncertainty, 1 J Exp Psych: Hum Perception & Performance 288, 298 (1975) (finding that subjects with outcome knowledge believed the probability of the known occurrence was higher than subjects without outcome knowledge).
170. For the view that hindsight bias is adaptive and not irrational, see Ulrich Hoffrage, Ralph Hertwig, and Gerd Gigerenzer, Hindsight Bias: A By-Product of Knowledge Updating?, 26 J Exp Psych: Learning, Memory & Cognition 566, 579 (2000) ("[W]e do not view hindsight bias as a bias in the first place but as a consequence of learning by feedback.").
171. See Bernt P. Stigum, Econometrics and the Philosophy of Economics: Theory-Data Confrontations in Economics 431-33 (Princeton 2003) (noting, however, that "[b]y how much perceived and objective probabilities differ and how this difference varies with ... individuals are less well documented").
172. See, for example, Paul H. Rubin, Common Law and Statute Law, 11 J Legal Stud 205, 207 (1982) (arguing that the increased efficiency of the common law may be more historical correlation than methodological causation);
173. Richard A. Epstein, The Static Conception of the Common Law, 9 J Legal Stud 253, 275 (1980) ("The simple dichotomy between statutory and common law rules explains nothing.").
174. See generally Larry Alexander, Constrained by Precedent, 63 S Cal L Rev 1, 3 (1989) (naming precedent "one of the core structural features of adjudication in common-law legal systems");
175. Frederick Schauer, Precedent, 39 Stan L Rev 571, 572 (1987) ("Reliance on precedent is part of life in general.").
176. For an economic analysis of why the common law might have incorporated a strong system of precedent, see Ronald A. Heiner, Imperfect Decisions and the Law: On the Evolution of Legal Precedent and Rules, 15 J Legal Stud 227, 227 (1986) (arguing that "uncertainty due to imperfectly using information" drove "certain major procedures that have evolved in the law").
177. The requirement that the constraint be independent of the wisdom of the constraining case is a necessary feature of any nontrivial account of precedent. See Alexander, 63 S Cal L Rev at 4 (cited in note 107) (examining "constraint by incorrectly decided precedents");
178. Schauer, 39 Stan L Rev at 571 (cited in note 107) ("The previous treatment of occurrence X in manner Y constitutes, solely because of its historical pedigree, a reason for treating X in manner Y if and when X again occurs."). Precedents that exert decisional force only when they are perceived to be correct have no weight qua precedents. Only if the essence of precedential constraint is understood to be content independent, and thus only if precedents constrain (even if only presumptively) even when they are perceived as mistaken by the subsequently deciding court, does the force of precedent have genuine bite.
179. See Mark J. Roe, Chaos and Evolution in Law and Economics, 109 Harv L Rev 641, 643-44 (1996) (noting that cultural practices may remain static even after the historical forces that provoked those practices have changed).
180. The literature is vast and growing. Seminal work on the basic phenomenon includes Theodore Eisenberg, Litigation Models and Trial Outcomes in Civil Rights and Prisoner Cases, 77 Georgetown L J 1567, 1569 (1989) (noting a
181. George L. Priest, Reexamining the Selection Hypothesis: Learning from Wittman's Mistakes, 14 J Legal Stud 215, 216-17 (1985) (showing how an all-or-nothing legal rule affects parties' willingness to settle);
182. George L. Priest and Benjamin Klein, The Selection of Disputes for Litigation, 13 J Legal Stud 1, 2 (1984) (noting that the very low proportion of cases that go to trial makes it "very difficult to infer specific characteristics" about all litigants);
183. George L. Priest, Selective Characteristics of Litigation, 9 J Legal Stud 399, 400 (1980) (examining "the effect on the common law process of ... the decision of parties to litigate or settle their dispute");
184. George L. Priest, The Common Law Process and the Selection of Efficient Rules, 6 J Legal Stud 65, 65 (1977) (noting that if "transaction costs in the real world are positive," "inefficient legal rules will impose greater costs" and be more likely to be litigated).
185. Subsequent discussion, analysis, and empirical work includes Daniel Kessler, Thomas Meites, and Geoffrey Miller, Explaining Deviations from the Fifty-Percent Rule: A Multimodal Approach to the Selection of Cases for Litigation, 25 J Legal Stud 233, 235 (1996) (suggesting a multimodal approach to reconcile observed data with the predictions of selection effect);
186. Robert E. Thomas, The Trial Selection Hypothesis without the 50 Percent Rule: Some Experimental Evidence, 24 J Legal Stud 209, 211-12 (1995) (noting that "the relative difference between the two sides' estimates" of fault, as well as how close the dispute is to the legal rule, determines whether the parties will litigate);
187. Keith N. Hylton, Asymmetric Information and the Selection of Disputes for Litigation, 22 J Legal Stud 187, 188 (1993) (arguing that "win-rate patterns can be explained by the informational requirements of the relevant legal standard");
188. Theodore Eisenberg, Testing the Selection Effect: A New Theoretical Framework with Empirical Tests, 19 J Legal Stud 337, 338-39 (1990) (proposing the "50 percent hypothesis," which is an assumption that plaintiffs and defendants will each win half the time).
189. For an excellent analysis of the issues and a more comprehensive survey of the literature, see Leandra Lederman, Which Cases Go to Trial?: An Empirical Study of Predictors of Failure to Settle, 49 Case W Res L Rev 315, 318 (1999).
190. Relatedly, consider Judge Calabresi's famous argument advocating that common law courts either already have or, if not, be given the authority to update clear but obsolete statutes. Calabresi, A Common Law for the Age of Statutes at 170 (cited in note 47) (contending that courts have "authority to interpret statutes honestly, but in ambiguous cases also functionally"). Without coming to a final conclusion on the matter, we would at least want to inquire into the possibility that common law courts considering updating statutes would update statutes (and not just find particular exceptions for particular cases) somewhat more than necessary because of a proclivity to take aberrational but litigated cases as more indicative of a deeper statutory problem than was in fact the case.
191. See notes 97-98.
192. Brady Handgun Violence Protection Act, Pub L No 103-159, 107 Stat 1536 (1993) (restricting the sale, manufacture, import, and export of firearms).
193. See Jeffrey S. Banks and John Duggan, A Bargaining Model of Collective Choice, 94 Am Pol Sei Rev 73, 84-85 (2000) (demonstrating "the existence of stationary equilibria" in a "noncooperative model of multiperson bargaining");
194. Keith Krehbiel, Pivotal Politics: A Theory of U.S. Lawmaking 4-6, 19 (Chicago 1998) (positing "gridlock" and "large, bipartisan coalitions" as defining features of 1990s politics);
195. Gary W. Cox and Mathew D. McCubbins, Legislative Leviathan: Party Government in the House 14-15 (California 1993) (analyzing party behavior in the House of Representatives);
196. R. Douglas Arnold, The Logic of Congressional Action 3 (Yale 1990) (noting that "organized interests ... often triumph" in effectuating their legislative agendas);
197. Morris P. Fiorina, Congress: Keystone of the Washington Establishment 83-84 (Yale 2d ed 1989) (describing changes to the congressional landscape since the 1970s);
198. David P. Baron and John A. Ferejohn, Bargaining in Legislatures, 83 Am Pol Sci Rev 1181, 1199 (1989) (providing "a theory of a majority rule legislature in a context in which the standard institution-free model of social choice theory yields no equilibrium");
199. James Q. Wilson, ed, The Politics of Regulation vii (Basic 1980) (presenting a set of essays on "the relationship between private power and public purpose").
200. But not by me.
201. See notes 48-49 and accompanying text.
202. See Lujan v National Wildlife Federation, 497 US 871, 891 (1990) (defining ripeness as when "the scope of the controversy has been reduced to more manageable proportions, and its factual components fleshed out"); Abbott Laboratories v Gardner, 387 US 136, 148-49 (1967) (holding that the ripeness doctrine prevents courts from resolving abstract disagreements). See also Gene R. Nichol, Jr., Ripeness and the Constitution, 54 U Chi L Rev 153, 155-56 (1987).
203. See Raines v Byrd, 521 US 811, 819-20 (1997) (making a separation of powers argument for a strict standing requirement); United Public Workers of America v Mitchell, 330 US 75, 89 (1947) (alluding to an Article III basis for the ripeness doctrine).
204. See Rescue Army v Municipal Court of Los Angeles, 331 US 549, 583-85 (1947) (refusing a preliminary judgment on the legal issue until a concrete case came before the Court); United Public Workers, 330 US at 89 ("For adjudication of constitutional issues, 'concrete legal issues, presented in actual cases, not abstractions,' are requisite."); Abner J. Mikva, Why Judges Should Not Be Advicegivers: A Response to Professor Neal Katyal, 50 Stan L Rev 1825, 1826 (1998) (arguing that nothing "in judges' status or stature [] qualifies them to give such advice to elected officials"); Felix Frankfurter, A Note on Advisory Opinions, 37 Harv L Rev 1002, 1003 (1924) ("Every tendency to deal with [facts] abstractedly, to formulate them in terms of sterile legal questions, is bound to result in sterile conclusions.").
205. See, for example, Mich Const Art III § 8 (2005) ("Either house of the legislature or the governor may request the opinion of the supreme court ... as to the constitutionality of legislation."); Mass Const Art LXXXV (2004) ("Each branch of the legislature, as well as the governor or the council, shall have authority to require the opinions of the justices of the supreme judicial court.").
206. See, for example, Wolfgang Zeidler, The Federal Constitutional Court of the Federal Republic of Germany: Decisions on the Constitutionality of Legal Norms, 62 Notre Dame L Rev 504, 505-06 (1987) (noting that constitutional challenges in Germany require neither standing nor ripeness).
207. See William M. Landes and Richard A. Posner, The Economics of Anticipatory Adjudication, 23 J Legal Stud 683, 684-86 (1994) (examining the costs and benefits of anticipatory adjudication regimes).
208. See Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 Harv L Rev 1321, 1324 (2000) (concluding "that there is no single distinctive category of facial, as opposed to as-applied, litigation").
209. See Richard H. Fallon, Jr., Making Sense of Overbreadth, 100 Yale L J 853, 855 (1991) ("First Amendment overbreadth is largely a prophylactic doctrine, aimed at preventing a 'chilling effect.'");
210. Henry P. Monaghan, Overbreadth, 1981 Sup Ct Rev 1, 2 (noting that the "various limiting conceptions" of the overbreadth doctrine cause it to be perceived as "erratic and confusing").
211. See, for example, New York v Ferber, 458 US 747, 749, 774 (1982) (holding that a state anti-child-pornography statute was not overbroad because there was no indication that it would be applied to material that did not explicitly depict sexual conduct); Broadrick v Oklahoma, 413 US 601, 616-18 (1973) (upholding state laws restricting the public, but not the private, political speech of state employees).
212. There remains the risk, however, that subsequent cases will still be seen through the lens of the first case because of anchoring and framing effects, and to the extent that this is so then no amount of delay in rulemaking will totally eliminate the distortion of seeing all cases after the first through the lens of the first case. See Matthew Rabin and Joel L. Schrag, First Impressions Matter: A Model of Confirmatory Bias, 114 Q J Econ 37, 38 (1999) (describing "confirmatory bias" as a tendency "to misinterpret ambiguous evidence as confirming [one's] current hypotheses about the world").
213. See text accompanying note 35.
214. See the prescient (from my perspective) analysis in David L. Shapiro, The Choice of Rulemaking or Adjudication in the Development of Administrative Policy, 78 Harv L Rev 921, 972 (1965) ("[A]dministrative efforts to give content to general statutory provisions... should be encouraged rather than thwarted.").
215. See also Peter L. Strauss, The Common Law and Statutes, 70 U Colo L Rev 225, 225 (1999).
216. John Rawls, A Theory of Justice 11 (Belknap rev ed 1999) ("[The veil of ignorance] ensures that no one is advantaged or disadvantaged in the choice of principles by the outcome of natural chance or the contingency of social circumstances.").
217. See also John C Harsanyi, Cardinal Utility in Welfare Economics and in the Theory of Risk-Taking, 61 J Pol Econ 434, 434-35 (1953) ("[A] value judgment on the distribution of income would show the required impersonality ... if the person [chose] in complete ignorance of what his own relative position ... would be.").
218. There are, of course, dissenters. See, for example, Frederick Schauer, Profiles, Probabilities, and Stereotypes ix (Belknap 2003) ("My aim in this book is to challenge the primacy of the particular.... [T]hat this particular case, or this particular event, is what is most important.").
219. See Landes and Posner, 23 J Legal Stud at 685 (cited in note 122) (favoring anticipatory adjudication but admitting that "[t]here is greater risk of deciding a case incorrectly when there is little or no factual record").
220. One such distortion, and one I have not dealt with directly here, is the way in which the common law may simply see too narrow a range of policy options and policy problems, a failing neatly captured in the complaint that the common law "feeds too much upon itself." James McCauley Landis, Statutes and the Sources of Law, in Roscoe Pound, ed, Harvard Legal Essays 213, 213 (Harvard 1934).