Judges as Rulemakers

Frederick Schauer has written a very interesting article (http://ssrn.com/abstract=779386) suggesting that judges who announce rules in the course of adjudicating cases are subject to cognitive biases that interfere with their ability to craft sound rules. In particular, the immediacy of a particular dispute may make the facts of that dispute appear more representative of the classes of facts covered by a rule than they actually are. I agree with Schauer's insight. However, I suggest in a brief reply that certain practices traditionally associated with the common law help to counteract the biases that affect judges. The doctrine of precedent exposes judges to a wider range of fact situations, as well as to the reasoning of past judges. So-called analogical reasoning also greatly increases the range of cases judges consider in designing prospective rules. Both these practices are of questionable value as direct means of deciding cases, but can be valuable as indirect strategies to improve judicial rulemaking. As a result, common law rules may suffer less from distortion than Schauer's theory predicts. However, the traditional practices on which my analysis is based depend on judicial habits that have eroded over time.