Document Type

Article

Publication Date

2011

Disciplines

First Amendment | Law | Legal Education | Legal History

Abstract

Five years ago, Fred Schauer published an article with the intriguing title: "Do Cases Make Bad Law?" Playing off Holmes' observation that "[g]reat cases like hard cases make bad law," Schauer explored the possibility, as he put it, that "it is not just great cases and hard cases that make bad law, but simply the deciding of cases that makes bad law.” His concern, confirmed and deepened by his characteristically balanced inquiry, was that general principles forged in the resolution of specific legal disputes can suffer by virtue of that provenance. Because such principles by definition are meant to carry some measure of authority in the resolution of future disputes, a principle invoked to justify a particular case outcome needs to be formulated with an accurate understanding of what kinds of cases, in what proportions, are likely to arise in the future that would be subject to the principle that is employed to decide the case at hand. And that understanding, Schauer maintained, more often than not will be distorted by various cognitive biases that derive from the partial and often unrepresentative information generated by the instant litigation and by the pull of equities specific to the case before the court.

My topic in this lecture is not real cases, with their potential to distort the choice of principles, but rather hypothetical cases. Such figments of the human imagination no doubt spring from and perpetuate cognitive biases of their own, biases that could lead to the adoption of principles that are less efficacious than others that might have been adopted but for the distortions introduced by thinking about the hypothetical case. On the other hand, as Professor Schauer has observed, hypothetical cases may exert a less powerful distorting influence than real cases precisely because their lack of flesh-and-blood, on-the-ground facts and parties gives them less salience, and on that account less gravitational pull in the process of principle selection. One might even speculate that because hypothetical cases are invented for their heuristic efficacy, they can provide a countervailing salience that might diminish the distorting effects of the information and equities presented by the case at hand.

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