Designing Judicial Review: A Comment on Schauer

In his characteristically lucid paper, Neutrality and Judicial Review, Frederick Schauer revisits the meaning and plausibility of Herbert Wechsler’s argument for neutral principles in constitutional adjudication. Unlike some critics, Schauer takes the argument seriously, on its own terms, and does an excellent job of sorting through the different ideas that lie behind it. Schauer identifies four different versions of the argument for neutrality. At least three of these are drawn from Wechsler’s 1959 article. Schauer is particularly interested in a fourth version, which favors neutrality in the design and management of the institution of judicial review

Rule-Oriented Realism

In his new book The Law and Ethics of Restitution, Hanoch Dagan undertakes to explain and justify the American law of restitution. He offers a broad theoretical account of this poorly understood subject, designed not only to fortify the substantive law of restitution but also to clarify the role and methodology of courts in developing the field. Dagan\u27s book also provides lively discussion of the role of restitution in some of the most highly publicized legal developments of recent years. Those who think of restitution as an obscure branch of legal remedies may be surprised to read about the role restitution has played in tobacco litigation, slavery reparations, and rights following the breakup of unmarried cohabitants. Dagan describes himself as a Legal Realist in the style of Karl Llewellyn and Felix Cohen (pp. 3-4). Realism, for Dagan, entails an ongoing (albeit properly cautious) process of identifying the human values underlying existing legal doctrines and trying to promote them in the best way possible. Accordingly, he subjects established rules across the field of restitution to a normative analysis based on the values of autonomy, utility, and community (p. 4). Working within this framework, he sometimes defends existing rules, sometimes proposes refinements to rules, and sometimes argues for significant reforms. Dagan\u27s book is a major contribution. He approaches restitution with a combination of doctrinal expertise and theoretical sophistication that is rare in writing on private law. His arguments are careful, consistent, and, most often, persuasive. Despite the overall success of the project, however, there are ambiguities in Dagan\u27s jurisprudence. In particular, he maintains throughout the book an ambivalent attitude toward legal rules and their role in common law decisionmaking. Dagan is an avowed Realist, yet he is attentive to and respectful of doctrine and often presents his own recommendations in the form of rules. This raises the question: is it possible to be a rule oriented Realist

Rules and Judicial Review

Judicial review of statutes on constitutional grounds is affected by a cluster of doctrinal practices that are generally accepted, but not very well explained, by the courts and not entirely consistent with each other. Courts usually judge statutes “as applied” rather than as written; they favor “severance” of valid applications of statutes from invalid or possibly invalid applications when possible; and they interpret statutes in ways that avoid constitutional difficulty. These overlapping practices presumably are intended to preserve legislation, and hence are associated with a modest conception of the role of courts in government. Yet they are not always modest in operation. The objective of this article is to examine the effect of statute-saving devices such as as-applied adjudication, severance, and narrowing interpretation, and to consider whether a rule-oriented analysis of judicial review can offer any insights about how courts should handle unconstitutional statutes

Property, Rules, and Property Rules

This essay examines two aspects of “property rules” in the sense defined by Judge Guido Calabresi and Douglas Melamed. In each case, the form in which property rules are cast is critically important. The first question addressed is the capacity of property rules to affect behavior prior to and outside litigation. Most economic analysis of property rules and liability rules assumes that the choice between them will guide decisionmaking at the time of a contemplated rights violation, and possibly prior to that time. To have this effect, property rules (and liability rules) must be established by determinate legal rules that define the entitlements to be protected, the conditions on which a property-rule remedy is available, and the extent of the sanction the remedy imposes on takers. They must, in other words, take the form of property rule rules. In fact, “true property rules” that meet this description are scarce. This casts some doubt on the predictions made in literature on the subject. Theory and doctrine may or may not be reconcilable, depending on the desirability and feasibility of determinate rules in the area of remedies. In existing law, most true property rules protect property rights. This leads to the second question addressed here: what relationship, if any, do property rules bear to property? After examining several theories others have proposed to explain the association between property rules and property rights, I suggest that property rules are connected to property in two ways. First, deterrent property rules ensure the continuity that makes property rights valuable to owners and to society. Second, once property rights are securely in place, the value they generate makes property rules a more efficient response to the possibility of unilateral taking. To achieve these results, however, both property rights and property rules must be implemented by general, determinate, and authoritative legal rules

Judges as Rulemakers

In Do Cases Make Bad Law?, Frederick Schauer raises some serious questions about the process of judicial lawmaking. Schauer takes issue with the widely held assumption that judge-made law benefits from the court\u27s focus on a particular real-world dispute. Writing with characteristic eloquence, Schauer argues that the need to resolve a concrete dispute does not enhance the ability of judges to craft sound rules, but instead generates cognitive biases that distort judicial development of legal rules. Schauer\u27s observations about the risks of rulemaking in an adjudicatory setting are very persuasive. Yet his overall assessment of the common law process may be too severe. In this Essay, I shall suggest that common law decisionmaking, at least in its more traditional forms, has features that can counteract the biases that worry Schauer and provide at least some protection from the errors his theory predicts. Specifically, the common judicial practices of consulting precedent decisions and seeking analogies in the facts of prior cases broaden the perspective of judges and allow them to better assess the consequences of proposed rules. This is so even if following precedent and reasoning by analogy are not otherwise defensible