Frederick Schauer

Playing by the rules : a philosophical examination of rule-based decision making in law and in life

This is a philosophical but non-technical analysis of the very idea of a rule. Although focused somewhat on the role of rules in the legal system, it is also relevant to the place of rules in morality, religion, etiquette, games, language, and family governance. In both explaining the idea of a rule and making the case for taking rules seriously, the book is a departure both in scope and in perspective from anything that now exists.

Neuroscience, lie-detection, and the law: contrary to the prevailing view, the suitability of brain-based lie-detection for courtroom or forensic use should be determined according to legal and not scientific standards.

The possibility of using neuroimaging to detect deception in legal settings has generated widespread resistance. Many neuroscientists insist the research is flawed science, containing weaknesses of reliability (the degree of accuracy), external validity (do laboratory results predict real-world outcomes), and construct validity (do studies test what they purport to test). These flaws are real, but although using neural lie-detection in non-experimental legal settings is premature, the critics are mistaken in believing that scientific standards should determine when these methods are ready for legal use. Laws goals differ from sciences, and the legal suitability of neural lie-detection depends on legal standards and not those determining what good science is.

Transparencia en tres dimensiones

The paper addresses the issue of transparency in public decision making, offering a proposed framework for assessing the goals and benefits, and how transparency is related to other principles, including those of the First Amendment. The text discusses the definition of transparency: the degree of transparency is a function of three variables: the possessor of information, the information that is to be made transparent, and to whom access to information will be given. Then, it addresses the aims of transparency, in particular, its regulatory, democracy enhancing, efficiency promoting, and epistemological goals. The text notes how transparency is conservative, seeking to prevent the worst outcomes even at the occasional cost of foreclosing the best ones.

Do Cases Make Bad Law

It is commonly argued that one virtue of common-law rule-making (or law-making) is that the common law judge is enriched in being able to make legal rules while simultaneously seeing one concrete application of such a rule. Under the traditional view, the live dispute before the law-making court gives that court an appreciation of the real people, real facts, and real controversies with which the rule must deal. But legal rules, unlike adjudications, are general, and thus encompass multiple individuals and multiple facts. The task of the common law rule-maker, is therefore to assess the larger field that the putative rule will cover, and the larger array of events that the rule will control. Doing this in the context of a concrete controversy, however, is likely to give the rule-maker a distorted rather than accurate picture of what the larger array looks like. The phenomena of availability, anchoring, and issue framing, each well-documented in modern behavioral economics, social psychology, and political science, will all serve to focus the court’s attention on the immediate case, and at the same time lead the court to believe that the immediate case and its salient features are more representative of the larger array than is in fact the case. The very availability of the concrete dispute, exacerbated by the obligation of having to decide it, may thus be far more distorting than illuminating to a law-making court, and may consequently call into question the traditional respect not only for the value of concrete disputes and concrete parties as providing the best platform for prospective law-making, but perhaps also for the common law method in general.

Why Precedent in Law (and Elsewhere) is Not Totally (or Even Substantially) about Analogy

Cognitive scientists who conduct research on analogical reasoning often claim that precedent in law is an application of reasoning by analogy. In fact, however, laws principle of precedent, as well as the use of precedent in ordinary argument, is quite different. The typical use of analogy in law, including analogies to earlier decisions, involves retrieval of a source analog (or exemplar) from multiple candidates in order to help make the best decision now. But the legal principle of precedent requires that a prior decision be treated as binding even if the current decision maker disagrees with that decision. When the identity between a prior decision and the current question is obvious and inescapable, precedent thus imposes a constraint different from the effect of a typical argument by analogy. The importance of distinguishing analogy from precedent is not so much in showing that a common claim in the psychological literature is mistaken, but that making decisions under the constraints of binding precedent is an important form of decision deserving to be researched in its own right and that it has been ignored because of the erroneous conflation of constraint by precedent with reasoning by analogy.

Nonlegal Information and the Delegalization of Law

Technological changes have made access to nonlegal information such as newspaper reports and general interest books far less costly. As expected, this has increased the citation to such materials, not only absolutely but as a proportion of citations generally and of secondary citations. We document this change through analyses of citation to nonlegal information in the Supreme Court of the United States, in the Supreme Court of New Jersey, and in selected other courts. The increase in the citation to nonlegal information is explainable only by a decrease in the cost of access to such information that is greater than the decreased cost for access to other sorts of information traditionally relied on by lawyers, judges, and law clerks. If this trend continues and signals a change in acceptable authority, it may foreshadow the decreased dominance of the traditional canon of legal information, which may in turn produce the phenomenon we call the “delegalization” of law.

On the Supposed Jury-Dependence of Evidence Law

If there were no juries, would there be a law of evidence? And should there be? These questions are not about whether this or that rule of evidence owes its existence to the institution of the jury, and are thus not about whether particular evidence rules should be modified or eliminated when juries are not present. Nor are they about those many rules of evidence that are premised on such wildly mistaken folk wisdom about jury behavior that they are in desperate need of modification or elimination in light of what we now know from the social sciences about how people in general and juries in particular actually decide and deliberate. Rather, my question is whether the law of evidence, in the large, is so substantially a product of the institution of the jury itself that if juries did not exist, then vast swaths of evidence law would, and should, not exist as well. This question is not merely of academic or historical interest. Numerous American trial judges, echoing what scholars since Jeremy Bentham have urged, essentially discard large chunks of the law of evidence when they sit without a jury. Time and again, especially in civil litigation and more than occasionally even in criminal cases, objections to the admissibility of evidence are met with the judicial re-

The phenomenology of speech and harm

My goal here is to address just one corner of the larger question whether there is a justified principle of free speech distinct from and more stringent than the general principle of liberty that is the hallmark of most liberal societies. The particular corner I explore is whether the negative consequences of a certain category of acts are sufficiently different in kind or degree to justify treating those consequences differently from the way in which seemingly similar consequences are treated. To put it more directly, although possibly misleadingly, I will inquire into whether the harms caused by speech are lesser in degree than other harms, or mediated differently from other harms.

Generality and Equality

One hundred years ago the Supreme Court of the United States decided the case of Plessy v. Ferguson,1 which held, notoriously, that a state mandate of racially separate public facilities (in this case, railroad cars) did not for that reason violate the Equal Protection Clause of the Fourteenth Amendment. In reaching this conclusion, the Court, even more notoriously, refused to accept the contention that social background conditions might render the superficially equal unequal in reality. “We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. The argument necessarily assumes that if, as has been more than once the case and is not unlikely to be so again, the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in that assumption.”2

Statutory Construction and the Coordinating Function of Plain Meaning

The Justices have not been reading their Derrida. Indeed, despite the lengthy importunings of legions of law professors, the Justices have been neglecting to read not only Derrida, but Foucault, Gadamer, Rorty, and Heidegger as well. Instead, as the statutory construction cases of the 1989 Term demonstrate, they have been spending their time reading (Noah) Webster, relying, both in fact and in articulated justification, on notions of plain meaning routinely derided in contemporary legal scholarship. A number of explanations for the move to plain meaning are possible, and there is no reason to suppose that one is true and the others false. Any of these explanations, however, would have to start with the premise that plain meaning is to the Justices a usable tool. Why plain meaning is usable is debatable, but that debate is more about the explanation of a phenomenon than of its existence. Occurrence precedes explanation, and just as the inability to explain the source or composition of the rings of Saturn does not show that they do not exist, so too does the inability of philosophers or linguists or literary theorists yet to explain satisfactorily the deepest nature of the workings of language say little about the ability of language to serve some number of important and obvious social functions. The Justices may not read Foucault or talk to Derrida, but they read the newspapers