Emily Sherwin

Precedents are judicial decisions that form the bases of further judicial decisions by constraining those decisions. There are two aspects to the constraints exerted by precedent decisions: the scope of the constraint and the strength of the constraint. The scope refers to the range of decisions that are affected by the precedent. The strength refers to the conditions under which a court can escape being bound by the precedent. Models of precedential scope are discussed and evaluated, and the question of strength is analyzed.Resumen:Los precedentes son decisiones judiciales que constituyen la base de decisiones judiciales posteriores, al vincularlas. Hay dos aspectos de la vinculación ejercida por las decisiones de precedente: el alcance de la vinculación y la fuerza de la vinculación. El alcance se refiere al rango de decisiones que se ven afectadas por el precedente. La fuerza se refiere a las condiciones bajo las cuales un tribunal obligado por el precedente puede ignorarlo. En este artículo se discuten y evalúan algunos modelos del alcance del precedente y se analiza la cuestión de su fuerza.

Actors may be called on to judge their reasons for action at two different points in time: once when they form an intention to act in the future and again at the time of action. At the time the actor forms her intention, her perspective is a general one, encompassing a range of possible circumstances that cannot be narrowed or fully specified in advance of action. At time of action, the actor's perspective is particularized, with more evidence available about reasons for action. This difference in perspective presents a dilemma for rational agents. In many contexts, reliable advance planning has great value. It allows for intra-personal and interpersonal coordination and minimizes bias in favor of salient or emotionally charged facts. At the time of action, additional evidence about the context of the act clarifies, or appears to clarify, current reasons for action. I describe this dilemma in two contexts: rule-following and promissory commitment. In each case there may be significant practical reasons for agents to stand by their original intentions, treating them as exclusionary reasons for action. Yet, if the agent revisits her intentions at the time of action, her reasons for action may support, or appear to support, a change in course. I begin by examining theories of practical rationality that extend rationality over time and thus permit agents to act on their initial intentions. Understood in this way, practical rationality may require agents to follow rules or honor promises without further consideration of reasons for action. I argue, however, that on a plausible understanding of epistemic rationality and epistemic responsibility to respond to evidence, acting without reflection may be epistemically irrational. If this is correct, then the dilemma of general and particular decisionmaking persists, and affects important aspects of human life. We manage only by being imperfectly irrational.

Liberalism is a wonderful theory, but its adherents have a difficult time explaining why. In his Tanner Lecture entitledFoundations of Liberal Equality, Ronald Dworkin proposes to defend liberalism in a new way. Dworkin is not content to view liberalism as a political compromise in which people set aside their personal convictions in the interest of social peace. Instead, he undertakes to make liberal political theory “continuous” with personal ethics, by describing an ethical position that endorses liberalism as a matter of conviction.

One key premise in Shapiro's book Legality is that rationality requires those who have accepted the master plan for a system of law to obey the system's rules. In this paper, I question this premise, arguing instead that although it may be rational for agents to commit to follow the system's rule in all (or most) cases to which they apply, it is not rational for agents to follow the rules in fact when the rules appear to require the wrong outcomes in particular cases. My argument is based largely on epistemic responsibility, which I view as an element of rationality

This essay examines the ambition to taxonomize law and the different methods a legal taxonomer might employ. Three possibilities emerge. The first is a formal taxonomy that classifies legal materials according to rules of order and clarity. Formal taxonomy is primarily conventional and has no normative implications for judicial decision-making. The second possibility is a function-based taxonomy that classifies laws according to their social functions. Function-based taxonomy can influence legal decision-making indirectly, as a gatekeeping mechanism, but it does not provide decisional standards for courts. Its objective is to assist in analysis and criticism of law by providing an overview of the body of legal doctrine. The third possibility is a reason-based taxonomy that classifies legal rules and decisions according to the moral principles or “legal principles” thought to justify them. Reason-based taxonomy of this type offers courts a set of high-level decisional rules drawn from legal data. Its objective is to guide courts in deciding new cases and evaluating precedents. A predominantly formal taxonomy facilitates legal analysis and communication. A functional taxonomy can assist those who make and apply law by providing a purposive overview of the field. Reason-based taxonomy may be useful to lawmakers but is unhelpful when offered as a guide to adjudication of disputes

Demystifying Legal Reasoning defends the proposition that there are no special forms of reasoning peculiar to law. Legal decision makers engage in the same modes of reasoning that all actors use in deciding what to do: open-ended moral reasoning, empirical reasoning, and deduction from authoritative rules. This book addresses common law reasoning when prior judicial decisions determine the law, and interpretation of texts. In both areas, the popular view that legal decision makers practise special forms of reasoning is false.

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 rather than as written; 1 they favor of valid applications of statutes from invalid or possibly invalid applications when possible; 2 and they interpret statutes in ways that avoid constitutional difficulty. 3 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. 4