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