Do Cases Make Bad Law

Do Cases Make Bad Law?
FrederickSchauert
"It is the merit of the common law," Oliver Wendell Holmes ob-
served, "that it decides the case first and determines the principle af-
terwards."' That the decision of a particular case holds pride of place
in common law methodology is largely uncontroversial. And indeed so
too is the view that this feature of the common law is properly de-
scribed as a "merit." Treating the resolution of concrete disputes as the
preferred context in which to make law-and making law is what
Holmes meant in referring to "determin[ing] the principle" - is the
hallmark of the common law approach.2 It is true that the common
law's methods and theory were developed at a time when most com-
mon law judges understood themselves to be discovering the law
rather than making it, but Holmes knew better. He fully appreciated
that common law judges made law in the process of deciding cases,
and nowadays few think otherwise. Common law method is not simply
the discovery of immanent law, but rather an approach in which the
decision of live disputes in concrete contexts guides the lawmaking
function. Moreover, so it is said, making law in the context of deciding
particular cases produces lawmaking superior to methods that ignore
the importance of real litigants exemplifying the issues the law must
resolve. Indeed, this belief in the virtue of a crystallized dispute be-
t Frank Stanton Professor of the First Amendment, John F. Kennedy School of Govern-
ment, Harvard University, and Daniel R. Fischel and Sylvia M. Neil Distinguished Visiting Pro-
fessor of Law (Fall 2005), The University of Chicago Law School. Earlier versions of this Article
were presented as a Faculty Enrichment Lecture at the Rogers College of Law of the University
of Arizona, as a Faculty Colloquium at the Chicago-Kent College of Law, and at the Harvard
Law School Seminar on Law and Economics. I am grateful for the comments of Yael Aridor Bar-
Ilan, Elizabeth Chorvat, Richard Fallon, Louis Kaplow, Richard Posner, Steven Shavell, Matthew
Stephenson, David Strauss, Peter Strauss, Mark Tushnet, Adrian Vermeule, Lloyd Weinreb, Mi-
chael Wells, Kenneth Winston, and Ernest Young; for valuable research suggestions from Iris
Bohnet, Alan Ferrell, Jack Goldsmith, and Christine Jolls; and for the generous research support
of The University of Chicago Law School and the Joan Shorenstein Center on the Press, Politics
and Public Policy.
1 Oliver Wendell Holmes, Codes and the Arrangement of the Law, 5 Am L Rev 1 (1870),
reprinted in Sheldon M. Novick, ed, 1 The Collected Works ofJustice Holmes 212 (Chicago 1995).
See also Louis Menand, The Metaphysical Club 338 (Farrar, Straus, and Giroux 2001).
2 "In short, as Professor Eisenberg has reminded us in his book on the common law, courts
are legitimately in two businesses: deciding individual disputes and enriching our body of legal
norms." Todd D. Rakoff, The Implied Terms of Contracts:Of "Default Rule" and "Situation-Sense,"
in Jack Beatson and Daniel Friedmann, eds, Good Faith and Fault in Contract Law 191, 195 (Clar-
endon 1995), citing Melvin Aron Eisenberg, The Nature of the Common Law 4-7 (Harvard 1988).
The University of Chicago Law Review [73:883
tween specific parties as the platform for creating legal rules is so

strong that it is reflected not only in the faith still placed in the com-
mon law as a desirable method of lawmaking, but also in the Constitu-
tion's "case or controversy" requirement,3 which as currently under-
stood embodies a preference that law be made in the context of a con-
crete dispute between genuine adversaries, rather than on the basis of
"abstract" speculation.
Yet although both the common law and the Constitution manifest
a preference for having a genuine case before the lawmaker, this pref-
erence may rest on a fundamentally mistaken premise. If in fact con-
crete cases are more often distorting than illuminating, then the very
presence of such cases may produce inferior law whenever the con-
crete case is nonrepresentative of the full array of events that the en-
suing rule or principle will encompass. Such distortion may rarely be
seen or appreciated by the common law judge, who focuses, as she
must, on the this-ness of this case. But the distortion of the immediate
case may systematically condemn common law lawmaking not only to
suboptimal results, but also to results predictably worse than those
that would be reached by making law in a less dispute-driven fashion.
If this is so, then the entire "merit" of lawmaking in common law fash-
ion may need to be reconsidered, and my goal here is to prompt just
such wholesale reconsideration of the virtues of the common law
method as a desirable way to create the rules and principles that con-
stitute so much of our law.
The tension I explore here becomes even more apparent when we
consider another of Holmes's famous statements, the view that "[g]reat
cases like hard cases make bad law."5 Holmes did not believe that
identifying the problematics of great cases and hard cases was incon-
sistent with his view about the merits of case-based lawmaking, be-
cause for Holmes both great cases and hard cases presented vivid fac-
tual settings whose very vividness made proper resolution of the par-
ticular case especially salient even when that proper resolution would
have negative effects on future and different cases. But such scenarios
3 See US Const Art III, § 2.

4 See Allen v Wright, 468 US 737, 752 (1984) (stating that an individual plaintiff lacks
standing if his or her fact-specific harm is "too abstract, or otherwise not appropriate, to be con-
sidered judicially cognizable"). See also Raines v Byrd, 521 US 811,839 (1997) (Breyer dissent-
ing) ("[T]here would be no case or controversy here were the dispute before us... not concrete
and focused."); Babbitt v United Farm Workers National Union, 442 US 289, 297 (1979) ("The
difference between an abstract question and a 'case or controversy' is one of degree ... and is
not discernible by any precise test."); Coleman v Miller, 307 US 433, 460 (1939) (Frankfurter
dissenting) (arguing that "traditional" English common law courts adjudicated "concrete, living
contest[s] between adversaries," not "abstract, intellectual problems").
5 Northern Securities Co v United States, 193 US 197,400 (1904) (Holmes dissenting).
2006] Do Cases Make Bad Law?
were aberrational, Holmes believed, and he saw no reason why the

distorting effects of great or hard cases would be present for the mine
run of ordinary common law litigation.
Yet in supposing a dichotomy between the attention-grabbing and
the more ordinary cases, Holmes may have ignored the extent to
which even ordinary cases impress their facts on the judges who have
to decide them, and scarcely less than great cases or hard cases appear
to demand proper resolution purely by virtue of their very presence in
the foreground of judicial phenomenology. To the extent that this is so,
then it is not just great cases and hard cases that make bad law, but
simply the deciding of cases that makes bad law. Or at least that is the
disturbing possibility that I examine here.
I. THE COMMON LAW JUDGE AS LAWMAKER

At the time when Holmes wrote about the merits of the common
law method, it was still often (albeit not universally 6) believed that
judges neither do nor should make law.' Common law decisionmaking
was widely understood prior to the twentieth century as the process of
discovering the rules and principles immanent in the existing law, such
discovery being assisted by logical deduction from earlier cases as well
as the less deductive but no less constrained application of that myste-
rious array of skills then and now known as "legal reasoning."' To the
paradigmatic nineteenth-century judge, and perhaps even at times to
Holmes himself, the move from the decision of a particular case to the
6 See, for example, John Austin, 2 Lectures on Jurisprudence 634 (Murray 5th ed 1885)
(Robert Campbell, ed) (noting "the childish fiction employed by our judges, that judiciary or
common law is not made by them, but is a miraculous something made by nobody, existing, I
suppose, from eternity, and merely declared from time to time by the judges"). See also Allen v
Jackson, 1 Ch D 399, 405 (C A 1875) (Mellish) (observing that "the whole of the rules of equity,
and nine tenths of the rules of common law, have in fact been made by the Judges"); John Chip-
man Gray, The Nature and Sources of the Law 285 (Macmillan 2d ed 1921) (referring to law
being "made by the judges").
7 "The orthodox Blackstonian view, however, is that judges do not make law, but only
declare what has always been law." R.W.M. Dias, Jurisprudence151 (Butterworths 5th ed 1985).
See also Willis v Baddeley, 2 QB 324,326 (C A 1892) (Esher) ("There is, in fact, no such thing as
judge-made law, for the judges do not make the law, though they frequently have to apply exist-
ing law to circumstances as to which it has not previously been authoritatively laid down that
such law is applicable."); In re Hallett's Estate, 13 Ch D 696, 710 (C A 1879) (Jessel) (announcing
that "the rules of Courts of Equity are not, like the rules of the Common Law, supposed to have
been established from time immemorial").
8 Anyone who thinks the statement in the text to be an inaccurate caricature would be
well advised to examine Eugene Wambaugh, The Study of Cases §§ 74-79 at 74-80 (Little, Brown
2d ed 1894) (admitting competing views of the law as either discovered or judge-made but advo-
cating a universal "legal reasoning [that] is the same everywhere"). To the same effect is John M.
Zane, German Legal Philosophy, 16 Mich L Rev 287, 338 (1918) ("The man who claims that
under [the United States'] system the courts make law is asserting that the courts habitually act
unconstitutionally.").
announcement of the principle that had determined the outcome of that

case was substantially bounded and significantly backward looking.
The common law judge was engaged, in the eyes of many, in locating
and articulating a preexisting principle, no less preexisting for never
before having been formally articulated. The approach was thus one of
principle-finding rather than principle-making-of discovery rather
than creation. Making law was rarely thought to be part of the process
Even the nineteenth century, however, saw numerous dissenters
from this Blackstonian picture of what the common law judge was
doing in announcing broad legal principles in the context of deciding
concrete controversies. Jeremy Bentham was the earliest and shrillest
of these dissenters," and Holmes himself, although later and less shrill
than Bentham, presaged the Realists by pressing against a picture of
the common law as discovery and quasi-logical legal reasoning." Now,
having for generations bathed in the teachings of Holmes and the Re-
alists, we heed their lessons. We no longer deny the creative and for-
ward-looking aspect of common law decisionmaking, and we routinely
2
brand those who do as "formalists."'
It is thus no longer especially controversial to insist that common
law judges make law." Sometimes this occurs when judges create new
9 See Gerald J. Postema, Classical Common Law Jurisprudence (Part 1), 2 Oxford U
Commw L J 155, 166 (2002) ("Classical common law judges did not regard themselves as 'mak-
ing' law ...any more than rules of English grammar are [ ]made."); J.H. Baker, The Law's Two
Bodies: Some Evidential Problems in English Legal History 3 (Oxford 2001) (noting that "a
problem is presented by the fact that there is often a disparity between what courts do ... and
what they say they are doing"); Morton J. Horwitz, The Transformationof American Law 1780-
1960 16-17 (Oxford 1992) (describing "[d]eduction from general principles" as a nineteenth-
century tool to allow judges to "distinguish the legal from the political").
10 See Jeremy Bentham, Of Laws in General166-68, 184-95 (Athlone 1970) (H.L.A. Hart,
ed); Jeremy Bentham, An Introduction to the Principles of Morals and Legislation 8 (Athlone
1970) (E.H. Bums and H.L.A. Hart, eds). See also Gerald J. Postema, Bentham and the Common
Law Tradition 197 (Clarendon 1986) (noting Bentham's belief that precedent ought not be
viewed as binding); Nancy L. Rosenblum, Bentham's Theory of the Modern State 94-98 (Harvard
1978); James Steintrager, Bentham 20, 20-43 (Cornell 1977) ("Bentham's diagnosis of the sick-
ness of the English body politic centred on his analysis of the English common law.").
11 This is the best understanding of Holmes's claim that "[t]he life of the law has not been
logic: it has been experience." Oliver Wendell Holmes, The Common Law 5 (Belknap 1967)
(Mark DeWolfe Howe, ed). See also William Twining, Karl Llewellyn and the Realist Movement
16 (Weidenfeld 1973) ("[Holmes] recognized that judges can and do make law.").
12 Thus, the word "formalism," when not serving simply as a catchall term of jurispruden-
tial abuse, may denote a belief, indeed a highly plausible one, in the possibility and/or desirability
of rule-based constraint. Alternatively, "formalism" may be the vice of denying the extent of
judicial choice or discretion when that choice or discretion actually exists. See Frederick Schauer,
Formalism, 97 Yale L J 509,509-11 (1988). It is this latter version of formalism, formalism as the
denial of choice, that I discuss in the text.
13 Benjamin Cardozo wrote that:
The theory of the older writers was that judges did not legislate at all. A pre-existing rule
was there, imbedded, if concealed, in the body of the customary law. All that the judges did,
doctrines in traditional common law areas such as contract, tort, and

choice of law. Few would dispute that the New York Court of Appeals
made law in McPherson v Buick Motor Co" when it held that a consumer
of even a product that was not inherently dangerous could recover
against a manufacturer for negligent manufacture despite the absence of
privity between the consumer and the manufacturer, or that the House of
Lords did much the same when it reached more or less the identical out-
come in Donoghue v Stevenson." So too when the venue for lawmaking is
not simply the creation or re-creation of common law rules, but rather
the judicial construction of doctrine against the background of a largely
indeterminate authorizing statute. The Sherman Act's prohibition of
"[e]very contract, combination[,] ... or conspiracy, in restraint of trade or
commerce' ' 6 is the canonical but hardly unique example, and when the
Supreme Court interprets the open-ended language of that Act as pro-
hibiting price-fixing'7 and tying arrangements' 8 its lawmaking role is
scarcely less than that of a common law court. So too when the context
for judicial lawmaking is constitutional interpretation, where the judicial
development of constitutional doctrine against the background of vague
phrases such as "[c]ommerce ... among the several [s]tates,' '9 "freedom
of speech,"' "establishment of religion,"' "due process of law,'' . "equal
protection of the laws,"" "unreasonable searches and seizures,"2 and
was to throw off the wrappings, and expose the statute to our view. Since the days of Ben-
tham and Austin, no one, it is believed, has accepted this theory without deduction or re-
serve, though even in modern decisions we find traces of its lingering influence.
Benjamin N. Cardozo, The Nature of the JudicialProcess 124-25 (Yale 1921).
14 217 NY 382, 111 NE 1050,1054-55 (1916) (Cardozo). For discussion and elaboration, see
Eisenberg, The Nature of the Common Law at 58-61,132-35 (cited in note 2).
15 1932 App Cas 562,566,622-23 (HL 1932). For an analysis of Donoghue v Stevenson and
other cases as decisions choosing among alternative legally justifiable outcomes, and thus making
law, see Neil MacCormick, Legal Reasoning and Legal Theory 69-70,234-35,246-58 (Clarendon
1978) ("[T]here may be more than one set of normative generalizations which can be advanced
in rationalization of the rules which 'belong' to the [legal] system."). As is well known, the most
prominent contemporary defender of the view that judges find law and do not make it is Ronald
Dworkin, especially in Ronald Dworkin, Law's Empire 410-12 (Belknap 1986), and Ronald
Dworkin, Taking Rights Seriously xi (Harvard 1977). But although Dworkin wishes to under-
stand as "finding" or "interpreting" what others would call "making," those differences have little
pertinence to the themes of this Article. Even if we understand Dworkin to be correct and his
opponents mistaken, my central point about the distorting dominance of the particular case
before the judge would be no less applicable.
16 15 USC § 1 (2000).
17 See, for example, United States v Socony-Vacuum Oil Co, 310 US 150,228 (1940).
18 See, for example, United Shoe Machinery Corp v United States, 258 US 451,457 (1922).
19 US Const Art I, § 8.
20 US Const Amend I.
21 Id.
22 US Const Amend V; US Const Amend XIV, § 1.
23 US Const Amend XIV, § 1.
24 US Const Amend IV.
"cruel and unusual punishments"2' is largely untethered by the text." But

whether in the context of pure common law decisionmaking or instead in
the context of the supposed "interpretation" of capacious language in
statutes or the Constitution, it is far too late in the day to deny that judges
are often (some would say "always"') engaged in the process of making
law. Moreover, as Holmes stressed, judges make law in conjunction with
their decision of actual controversies before the lawmaking court.8 Aside
from whether that procedure is a merit or a demerit, there is no longer
much doubt that using the decision of a single case as the platform for
making law is one of the characteristic features of common law method.
II. LAW AS RULE AND PRINCIPLE

Although Holmes referred to "determin[ing] the principle," noth-
ing here turns on any alleged difference between determining a princi-
ple and making law. It is certainly true that at times a court will an-
nounce a crisp and precisely defined rule-as in the Supreme Court's
decision in Mirandav Arizona9 or the Court's creation of various per se
antitrust rules'- and that at other times it will announce a broad and
less determinate principle." In language more familiar these days, some-
times a court makes law by setting forth a rule and at other times by
25 US Const Amend VIII.

26 See David A. Strauss, Common Law Freedom of Speech and the Common Law Constitu-
tion, in Lee C. Bollinger and Geoffrey R. Stone, eds, Eternally Vigilant: Free Speech in the Modern
Era 32, 59 (Chicago 2002) ("The content of [First Amendment] law has not emerged from the
text [but instead] by a [common law] process."); David A. Strauss, Common Law Constitutional
Interpretation,63 U Chi L Rev 877, 877 (1996) ("[Iln the day-to-day practice of constitutional
interpretation, ... the specific words of the text play at most a small role."). See also Adrian
Vermeule, ConstitutionalAmendments and the ConstitutionalCommon Law 23 (Chicago Public
Law and Legal Theory Working Paper No 73, 2004), online at http://www.law.uchicago.edu/
academics/publiclaw/resources73-av-amendments.pdf (visited June 11, 2006) (discussing "judge-
made constitutional law").
27 See Duncan Kennedy, Legal Formality, 2 J Legal Stud 351, 378 (1973) (arguing that
judges necessarily exercise choice in every decision, even when it appears they are simply follow-
ing the law).
28 Even earlier, Theophilus Parsons observed that judges in nineteenth-century America
"appear[ed] to take the opportunity which each case afforded, not only of deciding that case, but
of establishing rules of very general application." Theophilus Parsons, Memoir of Theophilus
Parsons 239 (Ticknor and Fields 1859).
29 384 US 436, 467-74 (1966) (providing virtually the exact language that police were to
use in alerting suspects of their Fifth Amendment rights).
30 See, for example, United States v Socony-Vacuum Oil Co, 310 US 150, 222 (1940) (hold-
ing that price-fixing per se violates antitrust laws); Times-PicayunePublishingCo v United States,
345 US 594,605 (1953) (holding that tying arrangements per se violate antitrust laws).
31 See Michael C. Dorf, Courts Reasons,and Rules, in Linda Meyer, ed, Rules and Reason-
ing: Essays in Honourof Fred Schauer 129,130-31 (Hart 1999).
announcing a standard.32 But whether what a court offers is a rule or a

standard, the court's announcement still serves as the presumptively
governing norm for future cases. Consequently, for all but the most
vacuous of norms- "do the right thing," for example"- a norm set forth
by the deciding court will operate as constraining law for future cases.
The argument offered here is stronger insofar as the announced norm is
precise - a rule and not a standard - and highly stringent - having great
precedential force and significant weight against countervailing inter-
ests -- but the core of the argument is dependent on neither precision
nor great stringency. As long as the announced norm exerts at least
some constraint in and for future cases, the argument presented here
still holds.
To go even further, the argument holds even if the decisionmak-
ing court is understood to be doing no more than giving a reason for
its decision. Because a reason is necessarily more general than the
32 On the rule-standard distinction, see Russell B. Korobkin, BehavioralAnalysis and Legal

Form: Rules vs Standards Revisited, 79 Or L Rev 23,24 (2000); Louis Kaplow, Rules versus Stan-
dards:An Economic Analysis, 42 Duke L J 557, 559-60 (1992); Kathleen M. Sullivan, The Su-
preme Court 1991 Term: Foreword:The Justices of Rules and Standards,106 Harv L Rev 22,26-27
(1992); Duncan Kennedy, Form and Substance in Private Law Adjudication,89 Harv L Rev 1685,
1776 (1976). Ronald Dworkin has fostered a not inconsiderable amount of confusion by distin-
guishing rules from principles, and then defining rules as precise and absolute and principles as
vague and overridable. Ronald Dworkin, Taking Rights Seriously at 22-28 (1978) (explaining
that rules are "all-or-nothing," while principles may not apply in a particular case and yet remain
valid). Dworkin's error lies in part in assuming that the dimensions of precision and weight
operate in tandem, when in fact they appear to be largely independent of each other. There are
precise but overridable rules, and there are vague but highly stringent standards (or even abso-
lute standards, as with Kant's vague but nonoverridable categorical imperative), and even if we
assume equivalence between what Dworkin means by "principles" and others mean by "stan-
dards," it is still not the case either that the precision of rules is a marker of their stringency or
that the vagueness of standards is a marker of their overridability. Joseph Raz has observed,
against Dworkin, that "we do not normally use the rule/principle distinction to mark the differ-
ence between prima facie and conclusive reasons or between the standards which establish
them," Joseph Raz, Legal Principles and the Limits of Law, in Marshall Cohen, ed, Ronald
Dworkin and Contemporary Jurisprudence73, 82 (Rowman & Allanheld 1983), and Raz seems
plainly correct. See also Frederick Schauer, The Convergence of Rules and Standards,2003 NZ L
Rev 303,306 (noting that Dworkin "mistakenly ... conflates the dimension of specificity with the
dimension of stringency"); Frederick Schauer, Playing by the Rules: A PhilosophicalExamination
of Rule-Based Decision-Making in Law and in Life 13-14 (Clarendon 1991) (preferring a distinc-
tion between "conclusive and overridable rules" to the one drawn by Dworkin).
33 The slightly more common version is "all things considered" decisionmaking, see Marga-
ret Jane Radin, The Liberal Conception of Property: Cross Currents in the Jurisprudenceof Tak-
ings, 88 Colum L Rev 1667, 1680 (1988) (referring to "all-things-considered intuitive weighing"
as lying at the heart of pragmatism), and some would put open-ended "balancing" into the same
category. See Stephen E. Gottlieb, The Paradoxof Balancing Significant Interests,45 Hastings L J
825, 826 (1994); T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L J
943,944 (1987).
34 On these questions of strength as opposed to scope, see Frederick Schauer, A Comment
on the Structure of Rights, 27 Ga L Rev 415,433 (1993).
decision that the reason is a reason for,35 any reason (or any statement
of a reason) that has precedential force in future cases operates in
largely rule-like fashion. Once a court announces a reason for its deci-
sion, and once that stated reason is something that future or lower
courts are expected to take seriously as a reason,6 then the troubling
question still arises as to whether the general statement that is the
reason is better or worse by virtue of it having been initially an-
nounced in the context of a concrete dispute that a court is expected
to resolve.
III. THE PROBLEM IN A STATIC MODEL
The basic argument is best approached by initially considering a

static and thus highly artificial model of common law decisionmak-
ing.37 We start with the premise, as explained above, that lawmaking is
rulemaking. And we proceed then to the fact that rules are, of neces-
sity, general and not particular. What makes a rule a rule, and what
distinguishes a rule from a particularized command, is precisely the
way in which a rule builds on a generalization and prescribes for all of
the acts or events encompassed by the generalization." When a law-
maker makes law, she thus sets forth a rule that controls, even if only
presumptively, and even if not precisely, a multiplicity of future in-
stances." The lawmaker, whether judge or legislature or agency, is de-
35 See Frederick Schauer, Giving Reasons, 47 Stan L Rev 633,635 (1995).

36 The alternative view-that announced reasons have virtually no normative weight in
subsequent litigation, see Edward A. Hartnett, A Matter of Judgment, Not a Matter of Opinion,
74 NYU L Rev 123, 126 (1999)-is stunningly at odds with the realities of actual legal practice.
For the three-month period from October 1, 2004, through December 31, 2004, for example, 222
briefs were filed in the Supreme Court of the United States, and every one of those briefs quoted
from a previous Supreme Court decision (Lexis Supreme Court Briefs database, search con-
ducted on Feb 9, 2005). This would be an odd practice indeed unless the writers of those briefs
had reason to believe that what the Court had said in previous cases might make a decisional
difference in subsequent ones. Consequently, one traditional understanding of common law
decisionmaking, in which opinions are seen as highly transient and highly defeasible, appears
these days to be in substantial decline. The less that particular decisions exert force on the future,
the less my argument tells against common law method. But the more that particular decisions
genuinely constrain the future-and that is the whole point of precedent-the more the phe-
nomenon I address here is genuinely problematic.
37 The static model is artificial if we are considering the essentially continuous nature of
the common law itself But the static model begins to resemble reality whenever we consider the
numerous contexts-rulemaking in families, private associations, and often in administrative
agencies, for example-in which, realistically, a single discrete event or decision prompts the
process of rule creation.
38 This account of rule-based decisionmaking is developed at length in Schauer, Playing By
the Rules at 17-37 (cited in note 32).
39 I ignore the interesting phenomenon of person-specific "special" legislation. Special
laws, typically granting some privilege or exemption to (or prohibition on) an identified individ-
ual or entity, and commonly prohibited by state constitutions although not by the Constitution of
20061 Do Cases Make Bad Law?
ciding presumptively how not one but a class of future events or con-
troversies ought to be determined or regulated.
Our question is then one of comparing the lawmaker who sets
forth a rule for a multiplicity of future particulars in the context of
deciding one concrete dispute right now with the lawmaker who also
makes a rule for a multiplicity of future particulars, but who does so in
the abstract, divorced from the obligation to resolve a dispute be-
tween real parties. Plainly the case-based rulemaker, paradigmatically
the common law judge, will perceive her task in terms of determining
both how this case and also other cases of this kind ought to be de-
cided, while the non-case-based rulemaker will also have to decide
how cases of some kind-some set of future cases-ought to be de-
cided, but unencumbered (or unguided) by the necessity of deciding
one of those cases right now. Put differently, the common law judge
has before her a concrete token of the type of case for which she is
making a rule, while other rulemakers make their rules without having
before them in the same immediate way a particular token of the
case-type that the rule will encompass. Our task, therefore, is to com-
pare these two different approaches to and methods of lawmaking.
The contrast between the two types of lawmaking is often pre-
sented as a contrast between common law and statute law, between
common law and civil law," or between common law and codifica-
tion. 2 But however we characterize the difference, I mean to pose a
the United States, are not general and are not rules. See Norman J. Singer, 2 Statutes and Statu-
tory Construction § 40.01 (Clark Boardman Callaghan 5th ed 1993) (noting that the Alabama
Constitution is representative in prohibiting legislation "[e]xempting any individual, private
corporation, or association from the operation of any general law").
40 See, for example, Richard A. Posner, The Problems of Jurisprudence 247-61 (Harvard
1990) (devoting a chapter to contrasting common law versus statute law). But see Paul H. Rubin,
Common Law and Statute Law, 11 J Legal Stud 205,222 (1982) (arguing that the "sharp distinc-
tion[] between statute and common law.., is often overdrawn").
41 See, for example, Thomas Lundmark, Book Review, 46 Am J Comp L 211,214-15 (1998)
("One of the classic differences between civil-law and common-law jurisdictions is that the for-
mer ...do not recognize judicial precedent as an independent source of law."), reviewing D. Neil
MacCormick and Robert S. Summers, eds, Interpretive Precedents:A Comparative Study (Dart-
mouth 1997). But see Katharina Pistor and Chenggang Xu,Incomplete Law, 35 NYU J Intl L &
Polit 931, 946-47 (2003) (noting that although many believe civil law judges interpret law and
common law judges make law, "[tihe line between lawmaking and law interpretation [ is often
difficult to draw").
42 See, for example, Robert W. Gordon, Book Review, 36 Vand L Rev 431, 431 (1983)
("[M]odern historians have turned the debates over codification into a 'movement' ... resisted
by a countermovement to preserve the common law."), reviewing Charles M. Cook, The Ameri-
can Codification Movement: A Study of Antebellum Legal Reform (Greenwood 1981); Samuel
Stoljar, Codification and the Common Law in S.J. Stoljar, ed, Problems of Codification 1, 1 (Aus-
tralian Natl U 1977) (describing a longstanding split between "common law traditionalists and
aficionados of [codification]"). See also Charles M. Cook, The American CodificationMovement:
A Study of Antebellum Legal Reform ix-x (Greenwood 1981) (arguing that nineteenth-century
skeptical challenge to one pervasive argument for the common law

and against its alternatives. 3 And that argument is that one reason
(and not necessarily the only reason, and not necessarily the best rea-
son) to prefer the common law is that rulemaking and lawmaking are
better done when the rulemaker has before her a live controversy, a
controversy that enables her to see all of the real world implications
of making one rule rather than another. When there is no actual dis-
pute, so the argument goes, everything is speculation, and speculation
that is not rooted in real world events is especially likely to be mis-
guided." But when there is a real case, the rulemaker can see in a con-
crete context how the rule will play out in the actual controversies of
real life. It is precisely this perception of at least one actual contro-
versy, the conventional common law wisdom supposes, that systemati-
cally produces better rules. That is the claim that supports the state-
ment from Holmes with which I opened this Article," and it is the
claim that pervades the classic explanations and celebrations of com-
mon law method.7
This argument for the virtues of dispute-guided rulemaking is not
only part of the standard defense of the common law in general, but is
debates over common law and codification resulted in compromises that shaped a distinctive,
hybridized American legal system).
43 It is worth emphasizing that I am concerned here largely with the soundness (or lack
thereof) of a particular argument for case-based rulemaking. There are other arguments for it,
and there are arguments against it other than the one I offer here. Thus, my claim, even if sound,
cannot be considered a conclusive or all-things-considered argument against case-based rule-
making. Still, if I am right, one of the most prominent arguments for the case-based approach will
be significantly weakened, and the overall argument for that approach will be weakened pro tanto.
44 "[L]itigants, after all, are the ones who actually experience the effects of legal rules."
Steven Shavell, The Appeals Process as a Means of Error Correction,24 J Legal Stud 379, 417
(1995) (noting that "appeals courts sometimes can learn about opportunities for lawmaking only
from disappointed litigants").
45 The claim is frequently part of a larger appeal for context and on the importance of
seeing particular litigants as a way to understand the context. See, for example, Wendy Anton
Fitzgerald, Maturity, Difference, and Mystery: Children's Perspectives and the Law, 36 Ariz L Rev
11, 107 n 577 (1994) (arguing that courts that focus on "the concrete context of the litigants" do
not "launch forth on a sea of indeterminacy and lawlessness"); Martha Minow, The Supreme
Court 1986 Term: Foreword: Justice Engendered, 101 Harv L Rev 10, 89 (1987) (arguing that
courts should avoid "insulating themselves in abstractions").
46 See note 1 and accompanying text.
47 See Eisenberg, The Nature of the Common Law at 12 (cited in note 2) (arguing that "the
particular case" is one of "two basic arenas" in "which the courts are obliged to be responsive");
Guido Calabresi, A Common Law for the Age of Statutes 165 (Harvard 1982) ("[Courts'] main
job would still be to give us continuity and change by applying the great vague principle of treat-
ing like cases alike."); Edward H. Levi, An Introduction to Legal Reasoning 3 (Chicago 1948)
(noting that "it cannot be said that the legal process is the application of known rules to diverse
facts... [Riules are discovered in the process of determining similarity"). See also Cass R. Sun-
stein, One Case at a Time: JudicialMinimalism on the Supreme Court ix (Harvard 1999) (advo-
cating "jiudicial minimalism," in which a "court settles the case before it, but it leaves many
things undecided").
also embodied in the "case or controversy" requirement of Article III

of the Constitution. By requiring that constitutional rules be made
only in the context of actual cases and controversies, and not on the
basis of abstract speculation, judges are presumed to be able to make
better rules than they would in the absence of that case-generated
context." So although there might be strong arguments for the "case
or controversy" requirement that emerge out of any number of other
values -separation of powers, democratic theory, the role of the
courts, and the presumption against judicial review, for example-
those arguments are not my focus here. Rather, my concern is with
lawmaking quality and not with lawmaking authority, and thus only
with the argument that one virtue of the "case or controversy" re-
quirement is that its strict observance fosters better (rather than more
legitimate) rules precisely because the court as rulemaker will have
the opportunity to perceive a genuine dispute before it."
A. (Mis-)Surveying the Field

Once we understand rulemaking as the process of setting forth a
prescription couched in general terms and covering a multiplicity of
future instances, we can see that rulemaking also necessarily involves
assessing what those future instances are likely to be and then deter-
mining (at least presumptively, but not necessarily conclusively) how
those future instances ought to be resolved. Any rulemaker, be it court
or legislature or agency or parent or dean, is explicitly or implicitly
engaged in a process of surveying the future and imagining the field of
decisions to be governed by the putative rule. This can be done well or
poorly, but a necessary component of any rulemaking is the process of
48 See, for example, Flast v Cohen, 392 US 83, 100 (1968) (reviewing precedent standing for
the idea that federal courts do not have to review cases that fail to present a concrete contro-
versy). As the Supreme Court put it in Baker v Carr, 369 US 186 (1962), concreteness "sharpens
the presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions." Id at 204. And in Valley Forge Christian Coil v Americans United for
Separation of Church and State, Inc, 454 US 464 (1982), the Court observed that "a concrete
factual context" is likely to produce "a realistic appreciation of the consequences of judicial
action." Id at 472. See also William A. Fletcher, The Structure of Standing, 98 Yale L J 221, 222
(1988) (noting that one common rationale for standing is that it "ensur[es] that a concrete case
informs the court of the consequences of its decisions"). Compare Susan Bandes, The Idea of a
Case, 42 Stan L Rev 227, 318-19 (1990) (arguing that the Supreme Court's standing jurispru-
dence "uses contorted logic and tortured language to fit a public rights problem into the private
rights mold").
49 I want to make clear that my challenge is to the very requirement of a concrete contro-
versy. and not to the interesting question of whether the standing requirement fosters concrete-
ness. As to the latter, see the important argument in David M. Driesen, Standing for Nothing: The
Paradox of Demanding Concrete Context for Formalist Adjudication, 89 Cornell L Rev 808, 811
(2004) (noting that courts do not have to adjudicate based on a case's specific facts, though
standing requires those facts to exist).
trying to get a sense - and it is rarely much more than this - of what
the array of future acts, events, disputes, and decisionmaking occasions
will look like.
The problem, however, is that in attempting to gauge the distribu-
tion of future events that will be encompassed by a rule, there is a sub-
stantial risk that the common law rulemaker will be unduly influenced
by the particular case before her. More specifically, the rulemaker,
seeing a concrete case before her, is likely to believe that this case is
representative of the larger array. If that is so then there is no prob-
lem. But if the immediate case is not representative, it may still be mis-
takenly thought to be representative, a mistake generated precisely by
the fact that this case is before the decisionmaker while other cases
within the class are not.
Thinking rationally, we understand that the case that happens to
be before a court or other case-based rulemaker is not exactly the
same in all respects, and not even in all relevant respects, as others
that might be members of the same larger and generally described
class. And rationally we can understand as well that some of the rele-
vant differences between this case and other members of its class are
such that the right decision for this case might not be the right deci-
sion for some, many, or even almost all of the other members of the
class. A judge acting rationally, therefore, would assess as systemati-
cally and as objectively as she could the extent to which the case be-
fore her was representative of the larger class of which it is a member.
The rational judge creating a rule would create a rule based on an as-
sessment of the nature and preferred resolution of the full set of ac-
tual acts and events encompassed by that rule, and would conse-
quently create the rule producing the best aggregate outcomes for the
entire class. The process would thus necessarily involve determining
the extent to which the larger class did or did not resemble the par-
ticular class member whose immediate presence before the decision-
maker prompted making the rule.
Unfortunately, however, decisionmakers often act with less than per-
fect rationality in making just this kind of assessment. They are mesmer-
ized by the case before them, and consequently often believe that the
most proximate member of a class is representative of the class. The
problem, however, is that decisionmakers make this (mis-)assessment not
on the basis of a rational survey of the class, and not on the basis of sys-
tematic empirical examination, but instead largely on the basis of the
usually irrelevant factors of proximity or ease of recall. This phenomenon
of being overinfluenced by proximate examples is commonly called, in
the heuristics and biases literature, the "availability heuristic."'" Less often
it goes by the names "salience heuristic" or "vividness heuristic,"" but the
basic idea is the same: when decisionmakers are in the thrall of a highly
salient event, that event will so dominate their thinking that they will
make aggregate decisions that are overdependent on the particular event
and that overestimate the representativeness of that event within some
larger array of events." So if when buying insurance I am making a prob-
abilistic decision about the likelihood of, say, a hurricane over the next
ten years, I will make a different decision had there been a hurricane last
week than I would otherwise have made. Although the presence of a hur-
ricane last week ought not rationally to make a difference in predicting
the probability of a hurricane over the next ten years,53 in practice the
50 The original insight is in Amos Tversky and Daniel Kahneman, Judgment under Uncer-
tainty: Heuristics and Biases, 185 Science 1124, 1127 (1974) ("[P]eople assess the frequency of a
class or the probability of an event by the ease with which instances or occurrences can be
brought to mind."), and there is now a voluminous literature, some of the key items being con-
tained in Daniel Kahneman, Paul Slovic, and Amos Tversky, eds, Judgment under Uncertainty:
Heuristics and Biases 11-14 (Cambridge 1982) (noting that "the reliance on availability leads to
predictable biases," such as those stemming from "retrievability," "the effectiveness of a search
set," "imaginability," and "illusory correlation"), and Thomas Gilovich, Dale Griffin, and Daniel
Kahneman, eds, Heuristics and Biases: The Psychology of Intuitive Judgment 19-119 (Cambridge
2002) (presenting five articles discussing the representativeness and availability heuristics).
51 See Scott Pious, The Psychology of Judgment and Decision Making 125-26, 178-80
(McGraw-Hill 1993) (noting the similarities between availability, salience, and vividness). See
also Robert M. Reyes, William C. Thompson, and Gordon H. Bower, Judgmental Biases Resulting
from Differing Availabilities of Arguments, 39 J Personality & Soc Psych 2, 5-12 (1980) (finding
that concrete and vivid information has greater effect on decisionmaking than abstract information).
52 There is a dispute in the literature between those who take availability as an often reli-
able indicator of class characteristics, see Gary Klein, The Fiction of Optimization, in Gerd Gig-
erenzer and Reinhard Selten, eds, Bounded Rationality: The Adaptive Toolbox 103, 114 (MIT
2001) (positing that instead of being seen as biases, heuristics are better viewed "as strengths that
permit skillful decision making in field settings"), and those opposed to the view that availability
is often a biased indicator of an actual frequency distribution, see Amos Tversky and Daniel
Kahneman, Extensional versus Intuitive Reasoning: The Conjunction Fallacy in Probability
Judgment, in Gilovich, Griffin, and Kahneman, eds, Heuristics and Biases 19, 20-21 (cited in note
50) (noting extensive data that show heuristics to be "errors of judgment"). Some of the dispute
can be disaggregated by understanding availability solely in terms of ease of recall, independent
of the extent to which people may recall on the basis of reliability and not ease. And there is
evidence that when we control for the content of the recall, ease of recall itself is often a deter-
minant of judgment. Norbert Schwarz and Leigh Ann Vaughn, The Availability Heuristic Revis-
ited: Ease of Recall and Content of Recall as DistinctSources of Information,in Gilovich, Griffin,
and Kahneman, eds, Heuristicsand Biases 103,118-19 (cited in note 50) ("[I]ndividuals are likely
to rely on ease of recall when the judgment task is of low personal relevance."). Understood as
ease of recall itself, availability is especially likely to be biased. As shall become clear, there is
reason to believe not only that the availability of the immediate case is an unreliable indicator of
the array of disputes of that type, but also that, when litigation incentives are taken into account,
it may be an especially unreliable indicator.
53 This may or may not be true, but I assume that for certain weather events like for many
disasters, the occurrence of such an event at Time 1 is causally unrelated to the probability of a
similar event at Time 2.
very "availability" of the hurricane by virtue of its occurrence last week

will lead people to overestimate the probability of a hurricane in the fu-
ture. For the same reason, people overestimate the probability of their
contracting illnesses that their friends happen to have, and overestimate
the unreliability of automobiles whose failings have been personally de-
scribed to them.' In these and countless other examples, we repeatedly
observe "the human tendency to make judgments based on attention to
only a subset of available information, to overweigh that information, and
to underweigh unattended information.' ' "
Further examples of the availability phenomenon are legion, all
involving decisionmakers required to make decisions that require ei-
ther a probabilistic assessment or an assessment that encompasses a
multiplicity of future instances. And in all of the examples the deci-
sionmakers turn out to be highly prone to exaggerate the representa-
tiveness of a particular instance that happens to be easily recallable
because of its temporal, physical, or mental proximity57 -the word
"vividness" captures the idea. And because judges (and other rule-
makers) in their lawmaking and rulemaking capacity are necessarily
engaged in a process of mapping a large array of future events that
will be governed by the rules they make, the risk is that judges who
have a particular case before them to decide will systematically over-
estimate the extent to which those future events will resemble the one
they are now most immediately confronting.
This misunderstanding of the nature of the field can be exacer-
bated by "anchoring," in which the properties of the first event con-
sidered (or even an irrelevant event) influence the estimation of the
54 See Richard E. Nisbett, et al, PopularInduction:Information Is Not Necessarily Informa-

tive, in John S.Carroll and John W. Payne, eds, Cognitionand Social Behavior 113, 128-29 (Law-
rence Erlbaum 1976) (noting that "subjects seized on particular concrete details of the experi-
mental situation and related them to similar situations in their own histories").
55 Dolly Chugh and Max H. Bazerman, Bounded Awareness:What You Failto See Can Hurt You
9 (Harvard Business School Working Paper No 05-037, 2005), online at http://www.people.hbs~edu/
mbazerman/Papers/Bounded%20Awareness.pdf (visited June 11, 2006) (classifying this "com-
mon tendency to focus too much on a particular event" as "[flocalism"). See also Max H. Bazer-
man and Dolly Chugh, Bounded Awareness: Focusing Failuresin Negotiation,in Leigh L. Thomp-
son, ed, Negotiation Theory and Research 7,9-10 (Psychology 2006). The phenomenon is referred
to as "focalism" or the "focusing illusion" in David A. Schkade and Daniel Kahneman, Does
Living in CaliforniaMake People Happy? A FocusingIllusion in Judgments of Life Satisfaction,9
Psych Sci 340,345 (1998).
56 See John S.Carroll, The Effect of Imagining an Event on Expectationsfor the Event: An
Interpretationin Terms of the Availability Heuristic,14 J Exp Soc Psych 88,90-91,92,94 (1978).
57 See Abbigail J. Chiodo, et al, Subjective Probabilities:PsychologicalTheories and Eco-
nomic Applications,86 Fed Res Bk of St Louis Rev 33,35 (2004) ("[Pleople often give too much
weight to memorable evidence, even when better sources of information are available.").
properties of subsequent events." This phenomenon is well known to

sellers of carpets and automobiles, all of whom (or at least the success-
ful ones) understand the anchoring importance of setting the initial
price. And the phenomenon of anchoring suggests that even the judge
who is aware of the pitfalls of availability may be hindered in her abil-
ity to overcome them,59 especially because there is evidence that an-
choring is particularly resistant to a range of awareness-based debias-
ing techniques.6° So even if the lawmaking common law judge or some
other case-based rulemaker recognizes that future events may differ
from this case, the instant case may still anchor and thus influence the
way in which the future field of disputes is assessed. Even if the in-
stant case is unrepresentative, therefore, its anchoring effect can cause
judges and other rulemakers, including careful ones who are cognizant
of the possibility of bias by availability and even cognizant of the na-
ture of anchoring effects, to imagine a field that is more similar to the
anchor case than the underlying reality would justify.
Related to the availability and anchoring effects produced by the
case looming in front of the judge is the phenomenon of "issue fram-
ing." Unlike "equivalency framing," in which alternative characteriza-
tions of identical acts or events influence how those acts or events are
assessed,' "[i]ssue framing effects refer to situations where, by empha-
58 See Chris Guthrie, Jeffrey J. Rachlinski, and Andrew J. Wistrich, Inside the JudicialMind,
86 Cornell L Rev 777, 787-94 (2001) (describing how the damage determinations of parties,
jurors, and judges are anchored by initial information); Fritz Strack and Thomas Mussweiler,
Explaining the Enigmatic Anchoring Effect: Mechanisms of Selective Accessibility, 73 J Personal-
ity & Soc Psych 437, 438 (1997) (noting that anchoring occurs regardless of whether the given
anchor falls inside or outside a range of neutrally acceptable values); Pious, The Psychology of
Judgment and Decision Making at 144-52 (cited in note 51) (noting that "unusually high or low"
values are "most likely to produce biases in judgment"); Tversky and Kahneman, 185 Science at
1128-30 (cited in note 50) (finding that cognitive "adjustments" from the anchor value "are
typically insufficient").
59 See Francisca Farifia, Ram6n Arce, and Mercedes Novo, Anchoring in Judicial Decision-
Making, 7 Psych in Spain 56,61-62 (2003) (finding anchoring effects in judicial determinations of
guilt and judicial imposition of sentences in criminal cases).
60 See Gretchen B. Chapman and Eric J. Johnson, Incorporatingthe Irrelevant: Anchors in
Judgments of Belief and Value, in Gilovich, Griffin, and Kahneman, eds, Heuristics and Biases
120, 138 (cited in note 50) (describing anchoring as "both prevalent and robust" and observable
"in numerous real-world contexts"); Timothy D. Wilson, et al, A New Look at Anchoring Effects:
Basic Anchoring and Its Antecedents, 125 J Exp Psych: Gen 387, 400 (1996) (finding "anchoring
effects even when people were blatantly provided with anchor values and explicitly told not to
use these values when answering subsequent questions").
61 See Pious, The Psychology of Judgment at 97-98 (cited in note 51) (describing how
framing an outcome as a "gain" rather than a "loss" shapes decisionmakers' risk-aversion); Amos
Tversky and Daniel Kahneman, Rational Choice and the Framing of Decisions, 59 J Bus S251,
S260-61 (1986) (giving the example of how framing the difference between two prices as either a
surcharge or a discount impacts preferences); Daniel Kahneman and Amos Tversky, Choice, Values,
and Frames,39 Am Psych 341,343 (1984) (noting that "two versions of a choice problem that are
recognized to be equivalent when shown together should elicit the same preference even when
898 The University of Chicago Law Review [73:883
sizing a subset of potentially relevant considerations, a speaker leads

individuals to focus on these considerations when constructing their opin-
ions." If in the previous quotation we substitute "case" for "speaker"
and "judges" for "individuals," we can understand the relevance of the
large literature&suggesting that, as with anchoring, the case awaiting
decision will provide the frame by which the features of subsequent
disputes or events will be imagined, potentially in a highly misleading
way. If the case that has prompted the rulemaking exercise has some
number of particularly salient features, even the judge consciously
surveying a larger field of real and predicted cases in order to make a
rule will likely focus disproportionately on those cases containing the
salient features of the first case, even when those salient features are
present to a lesser extent in the larger field.
Availability, anchoring, and issue framing are characteristics of
actual and not ideally rational human decisionmaking, and all rein-
force each other to produce the same problem-the capacity of vivid
and nearby events to distort rather than to enrich decisions that have
the same "multiplicity of instances" character. We take that which is
first or looms largest as being representative of some greater class of
which it might be a member, and we tend to do so even when the
looming event is highly unrepresentative. In the context of common
law decisionmaking, it is the case at hand that is the looming event,
and much that we might learn from the modern social science litera-
ture suggests that the presence of a concrete dispute before the judge
is likely to distort any lawmaking that occurs in that case. That this
distortion occurs, of course, is not inconsistent with the concrete dis-
pute also providing genuine information and thus also enriching the
ability to assess the larger field of future cases and events. But such
potentially informationally advantageous features of the particular
case also exist in the numerous experiments that have produced what
we now know about availability, anchoring, and issue framing. Last
week's hurricane does provide some information about hurricanes
and the possibility of their existence. That my neighbor has had prob-
lems with her particular Volvo does provide some information about
the reliability of Volvos. Nevertheless, the possibly countervailing in-
formational advantages of specific cases and events are already incor-
porated in the existing research, and so, if that research is to be be-
shown separately" but that "the requirement of invariance ... cannot generally be satisfied");
Amos Tversky and Daniel Kahneman, The Framing of Decisions and the Psychology of Choice,
211 Science 453, 457 (1981) (noting that "seemingly inconsequential changes in the formulation
of choice problems caused significant shifts of preference").
62 James N. Druckman, Political Preference Formation: Competition, Deliberation,and the
(Ir)relevanceof Framing Effects, 98 Am Pol Sci Rev 671,672 (2004).
63 Much of this literature is cited in Druckman, 98 Am Pol Sci Rev at 685--86 (cited in note 62).
lieved, the effects under consideration are properly understood as net

effects. It is therefore fair to conclude that the effects of a particular
case are likely, on balance and not just as one potentially outweighed
flaw, to distort the case-based rulemaker's ability accurately to assess
the field of future events that any prospective rule would encompass.
B. The Burdens of Decision

The foregoing is simply about the salience of a proximate event,
and the effect of that salience on the capacity of decisionmakers to per-
ceive the properties of a larger class of which that proximate event is
but one member. Thus, the biases of availability, anchoring, and issue
framing suggest that a rulemaker making rules in the context of a par-
ticular dispute may take that dispute as more representative of the ar-
ray of future events than is actually the case. But there is more to the
matter, for there is also reason to suspect that the risk of taking the un-
representative as representative is increased to the extent that a deci-
sionmaker is compelled not just to observe but to resolve the proximate
event. An additional source of concern, therefore, is one inspired less by
Kahneman and Tversky than by Frank and Llewellyn. As is well known,
Jerome Frank, especially in Law and the Modern Mind," maintained
that judges were incapable of ignoring the immediate equities of the
case before them," and insisted further that it was perfectly acceptable,
precisely because of its inevitability, for them to behave in this way.6 For
present purposes I am less concerned with the latter than the former -
the possibility that it is extremely difficult (but more plausible than a
claim of impossibility) for judges to avoid making what to them appears
to be the correct decision with respect to the particular facts at issue
and the particular parties before them. Karl Llewellyn, in talking about
the "fireside equities" or the power of the "particular," echoed a similar
theme, believing that the psychological force of a particular series of
events had a strong hold on the judicial mind. 6' What Frank and Lie-
64 Jerome Frank, Law and the Modern Mind 102-04 (Brentano's 1930).
65 To the same effect, see Joseph C. Hutcheson, Jr., The Judgment Intuitive: The Function of
the "Hunch" in Judicial Decision,14 Cornell L Q 274,278 (1929) ("[Tlhe judge, being merely on
his way with a roving commission to find the just solution, will follow his hunch wherever it leads
him."); Herman Oliphant, A Return to Stare Decisis, 14 ABA J 71, 75 (1928).
66 See Brian Leiter, American Legal Realism, in Martin . Golding and William A. Ed-
mundson, eds, The Blackwell Guide to the Philosophy of Law and Legal Theory 50, 58-59
(Blackwell 2005).
67 Karl Llewellyn, The Common Law Tradition:DecidingAppeals 121 (Little, Brown 1960)
(arguing that judges draw "on more than 'common knowledge' to decide cases; they draw on
"'horse sense,' the balanced shrewdness of the expert in the art"). See also William Twining, Karl
Llewellyn and the Realist Movement at 209 (cited in note 11).
wellyn celebrated," however, is from a lawmaking perspective more

problematic. If judges have a hard time avoiding what they see as the
right result for the particular case in all of its contextual richness, and if
they are at the same time making law for future cases, then the combi-
nation of the salience of the particular case and the pull to decide it
correctly may produce a rule that is unrepresentative of the full range
of future cases that can be expected to be decided under it. Obviously
under a strong Realist view this is not a problem, for subsequent judges
will simply disregard the rule. But more plausible views will recognize
the constraints of judge-made rules while still being concerned that that
rule will be distorted by the case-specific circumstances under which it
is made. In theory this need not be so. A court could, after all, reach the
wrong result in the case before it in order to announce the right rule for
future controversies. 6 Or courts could recognize the nonrepresentative-
ness of the case before them and then either make less law than they
would otherwise be inclined to do,"0 or announce a rule narrower than
or different from what would appear to flow out of the outcome in the
particular case.7 More commonly, however, the power of the particular
is a power with distorting emanations, with courts often announcing the
decision rule that will most directly produce the correct result in the
68 Llewellyn's celebration was far less frequent and far more qualified than Frank's, for
Llewellyn was most concerned with urging judges to base their decisions on situation types
rather than case-specific litigant characteristics. See Leiter, American Legal Realism at 55 (cited
in note 66) ("[W]hat more typically determines the course of the decision is the 'situation-type,'
that is, the general pattern of behavior."). In this context, it is important to note that the thor-
ough-going particularist-Jerome Frank, perhaps-would not be troubled by the issue I raise
here, for the particularist would not suppose that the "law" that is made in one case would have
much, if any, effect on the decision of subsequent cases. I use the Realist observations about
particularism, therefore, not totally to enlist the Realists in my case, but simply to draw on their
highly plausible observations about the way in which the necessity of decision might focus judi-
cial attention more on a particular case than would occur in a less distorted lawmaking process.
69 Reaching the wrong result in order to announce the right rule is the best understanding
of Herbert Wechsler's call for decision according to "neutral principles." Herbert Wechsler, To-
ward Neutral Principles in Constitutional Law, 73 Harv L Rev 1, 34-35 (1959). The word "neu-
tral" is unnecessary and distracting, see Frederick Schauer, Neutrality and JudicialReview, 22 L
& Phil 217, 217 (2003), but the basic idea is that a rule announced in the first case should be one
a court is willing to follow in subsequent ones. Kent Greenawalt, The Enduring Significance of
Neutral Principles,78 Colum L Rev 982, 983 (1978); M.P. Golding, Principled Decision-Making
and the Supreme Court, 63 Colum L Rev 35, 35 (1963). The implication is that if a court is not
willing to follow in future cases the rule necessary to decide the first case properly, then deciding
the first case improperly would be preferable to having a bad rule, a rule that precisely because it
is a bad rule will decide some number of subsequent cases improperly.
70 As with a court that goes out of its way to emphasize the uniqueness of a unique case, as in
Bush v Gore, 531 US 98,109 (2000) ("Our consideration is limited to the present circumstances.").
71 See Sunstein, One Case at a Time at 5 (cited in note 47) ("[A] minimalist path usually ...
makes a good deal of sense when the Court is dealing with a constitutionalissue of high complex-
ity about which many people feel deeply and on which the nation is divided.").
particular case even though that rule will produce erroneous outcomes
in future cases.
The way in which the obligation to decide the immediate case can
distort a rulemaker's perception of the class of cases to be covered by a
putative rule is again compatible with recent work in the social sciences.
As with airline pilots who fail to see other airplanes because they are
focusing on operating the controls,72 people often ignore that which is
plainly "visible and available" to them because their ability to perceive
the readily available is "competing with a task requiring other atten-
tional resources."73 So when people have a particular task that requires
doing, the focus on the task may increase even further any tendency to4
is in theory available.
fail to perceive or to misperceive even that which
For the typical judge, deciding this case may be just that kind of task,
and thus the obligation to decide may well increase even further the
proclivity to be unduly influenced by the facts of the immediate case.
C. Some Examples
Consider, for example, New York Times Co v Sullivan."' Other
76
than to say that libel was not covered by the First Amendment, the
Supreme Court had never before even considered a defamation case.
Yet despite the Court's lack of experience with the topic, in Sullivan it
was compelled to make a decision in the context of a case in which
protection of the civil rights movement against crippling civil judg-
ments was seen to be important, in which the plaintiff was a powerful
public official using civil litigation as a way of wielding official power,
and in which the verdicts embodied little other than the jury's (and Ala-
bama's) desire to punish what were perceived to be so-called Northern
Agitators. These dimensions of the actual litigation were at the fore-
front of the Court's thinking," and thus it is useful to ask whether, if
72 Arien Mack, Inattentional Blindness: Looking without Seeing, 12 Curt Dir in Psych Sci
180, 180 (2003) (noting the same phenomenon "even may account for many car accidents"). See
also Arien Mack and Irvin Rock, InattentionalBlindness 250 (MIT 1998) ("[T]hat the absence of
attention causes apparent blindness, deafness, and numbness and perhaps even insensitivity to
extreme pain [indicates] that attention is necessary for conscious perception.").
73 Chugh and Bazerman, Bounded Awareness at 5 (cited in note 55) (noting that "signifi-
cant laughter and disbelief' result when inattentive subjects are alerted to a novel stimulus that
passed through their visual fields).
74 See Daniel J. Simons and Christopher F. Chabris, Gorillas in Our Midst: Sustained Inat-
tentional Blindness for Dynamic Events, 28 Perception 1059, 1072 (1999) (finding that "'directed
ignoring' could inhibit perception of not just the ignored event but of all unattended events").
75 376 US 254 (1964).
76 See Beauharnaisv Illinois,343 US 250,266 (1952).
77 See Anthony Lewis, Make No Law: The Sullivan Case and the First Amendment 147
(Random House 1991) (noting that the Court applied its new test to the instant facts, a rare
event, in order to prevent the same outcome on remand); Harry Kalven, Jr., The Negro and the
none of these idiosyncratic features had existed, the extraordinarily

press-protective and plaintiff-restrictive "actual malice" rule, a rule
endorsed by no country in the world in the ensuing forty years,"8 would
have been adopted.79
This characterization of Sullivan bears a close affinity with the
concern expressed by Justice White in his dissenting opinion in INS v
Chadha."° In chastising the Court for invalidating "an entire class of
statutes based on ...
a somewhat atypical and more readily indictable
exemplar of the class,"8 Justice White made clear that he thought that
the unrepresentative nature of the particular facts before the Court
had produced the wrong result for the larger class almost accidentally
encompassing these facts. So too, perhaps, with Katzenbach v McClungn
and Brown v Louisiana,3 both cases in which, like in Sullivan, the
pressing nature of the desegregation concerns presented in the par-
ticular case may well have helped produce doctrinal extensions with
respect to the reach of the Commerce Clause and free speech rights in
government buildings, respectively, that very likely would not other-
wise have come to pass.
FirstAmendment 53 (Ohio State 1965) ("On its facts, the Times case seems to have been put
together by the Devil himself in order to embarrass the legal system.").
78 See Frederick Schauer, The Exceptional First Amendment, in Michael Ignatieff, ed,
American Exceptionalism and Human Rights 29, 30 (Princeton 2005) ("[T]he American First
Amendment ...remains a recalcitrant outlier to a growing international understanding of what
the freedom of expression entails."); Michael Chesterman, Freedom of Speech in Australian Law:
A Delicate Plant 101 (Ashgate 2000) ("[In Australia,] the defendant [in an action for libel] must
normally prove that ...reasonable grounds warranting belief in the truth of the defamatory
imputation existed at the time of publication."); Ian Loveland, PoliticalLibels: A Comparative
Study 4 (Hart 2000) (noting that in England, the plaintiff in a libel case must only "prove that the
publication complained of was libellous"); Leonard Leigh, Of Free Speech and Individual Repu-
tation: New York Times v. Sullivan in Canada and Australia, in Ian Loveland, ed, Importing the
FirstAmendment: Freedom of Expression in American, English, and European Law 51, 66 (Hart
1998) ("In neither [Australia nor Canada] do courts welcome the American extension [of libel]
from matters of a political nature ... to matters of public interest.").
79 I do not claim that Sullivan was wrongly decided, nor that the Sullivan actual malice rule
was the wrong rule. Both of those might be true, see Richard Epstein, Was New York Times v.
Sullivan Wrong?, 53 U Chi L Rev 782, 784-85 (1986) (noting that the post-Sullivan period has
brought increased numbers of libel suits and increasing unease about libel law), but my point is
only that the particular facts of the case produced a rule almost certainly different from what the
same justices of the same Court would otherwise have done were they asked simply to make a
public figure libel rule, and different from what every other open liberal democracy in the world
has subsequently decided to do. Sullivan may be a fortuitously distorted decision, but the distor-
tion seems nevertheless plain.
80 462 US 919,967 (1983) (White dissenting).
81 Id at 974.
82 379 US 294 (1964) (upholding the Civil Rights Act of 1964 as a valid congressional exer-
cise of the Commerce Power even as applied to primarily local entities).
83 383 US 131 (1966) (upholding the First Amendment right to protest, even in a public
library).
Similarly, and outside of the constitutional context, consider the

Supreme Court's 1999 decision in Kumho Tire Co v Carmichael.4The
Court in Kumho Tire was faced with the task of elaborating what kind
of scientific and other expert testimony should be allowed into evi-
dence under Rule 703 of the Federal Rules of Evidence, a line of in-
quiry that had commenced six years earlier in Daubert v Merrill Dow
Pharmaceuticals,Inc." Yet although the question of what counts as
expertise is a broad and important one, the Court in Kumho Tire faced
it in the context of an expert who, testifying in a products liability case
against the manufacturer of a tire that had been driven until bald and
poorly repaired on multiple occasions, offered as his expert opinion
that it was neither the tire's baldness nor its serial poor repair that had
caused the tire failure, but rather a defect in the tire's design and
manufacture. And it is not surprising that in announcing a rule in the
context of a case involving such a flimsy case of expertise, the Su-
preme Court fashioned a rule plainly tailored to the case of the bogus
expert, without having any serious data on the extent to which bogus
experts dominated the array of future cases that would be governed
by the new rule.
The foregoing cases all come from the Supreme Court of the
United States, and that is partly because one might expect Supreme
Court cases to be the ones in which the distortion of the immediate
case would be least present. The Court decides by full opinion after
oral argument slightly over 1 percent of the cases presented to it," and
the process by which it screens 8 and selects the cases it wishes to hear
may generate special resistance to the distorting tendencies of particu-
lar parties and particular issues in the particular case. So if the prob-
lem exists even in the Supreme Court, it is reasonable to suppose that
it exists, a fortiori, to an even greater extent when the special dynam-
ics of Supreme Court case selection are not present.
Thus there are, as would be expected, numerous examples of the
case-driven distortion in judicial rulemaking outside of the Supreme
Court. The particularly botched use of statistical evidence in People v
84 526 US 137 (1999) (increasing the degree of judicial scrutiny over the qualifications of
expert witnesses).
85 509 US 579,597 (1993) (holding that "the Rules of Evidence ... assign to the trial judge
the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant").
86 To be exact, 83 out of 7781 in the Supreme Court's October 2003 Term. The Supreme
Court 2003 Term: The Statistics, 118 Harv L Rev 497,504-05 (2004) (excluding fifty cases summa-
rily decided from the eighty-three decided by full opinion).
87 See Shavell, 24 J Legal Stud at 416-17 (cited in note 44) (noting that appellate courts
that screen their own caseload may be able to engage in lawmaking with less attention to the
error correction process).
Collins" may have led the California Supreme Court, and other courts
dealing with the issue after Collins,' to express a principle of skepti-
cism about statistical evidence that would be justified were Collins
representative of all statistical evidence cases, but much less so if the
case were an aberration. Similarly, the purest and ultimately diluted °
versions of so-called interest analysis in conflicts of law may have
been based on the belief that the seeming irrationality of the tradi-
tional rules when applied to a small number of unusual guest statute
scenarios was typical of choice of law issues." And to the same effect is
the indication that larger principles of criminal intent were distorted
by a series of nineteenth century decisions in which the judges' views
about the issues of sexual morality involved in statutory rape cases led
them to say things about mens rea that they would not have said in
other types of cases."
I emphasize again that all of these cases may be unrepresentative
of the full array of case-based rulemaking decisions, and thus provide
88 68 Cal 2d 319,438 P2d 33 (1968) (disallowing the testimony of a statistician in a criminal

case where there had been no foundational evidence of the probabilities and no evidence that
the several probabilities were statistically independent). That the use of statistics in Collins was
particularly inept is accepted both by those sympathetic and hostile to the use of statistical evi-
dence generally. Compare Michael 0. Finkelstein and William B. Fairley, A BayesianApproach to
Identification Evidence, 83 Harv L Rev 489, 489-90 (1970) (criticizing Collins but expressing
sympathy to statistical evidence), with Laurence H. Tribe, Trial By Mathematics: Precision and
Ritual in the Legal Process, 84 Harv L Rev 1329, 1393 (1971) (criticizing use of statistical evi-
dence as evidence at civil or criminal trials).
89 See Christopher B. Mueller and Laird C. Kirkpatrick, Evidence § 7.18 at 667 (Aspen 3d
ed 2003) (noting that, in both criminal and civil cases, "the objections to statistical inference have
prevailed"); Neil B. Cohen, Comment, The Costs of Acceptability:Blue Buses, Agent Orange,and
Aversion to Statistical Evidence, 66 BU L Rev 563, 569-70 (1986) (contending that the use of
statistical evidence, although rarely accepted by courts, enhances the distributive aspects of tort law).
90 See Cooney v Osgood Machinery, Inc, 595 NYS2d 919, 612 NE2d 277, 280, 282 (1993)
(noting that of "the schools of thought on choice of law, the one that emerged as most satisfac-
tory was 'interest analysis' and applying it to the case at hand).
91 See Babcock v Jackson, 240 NYS2d 743, 191 NE2d 279, 285 (1963) (applying the law
based on which jurisdiction "has the strongest interest in the resolution of [each] particular issue
presented"), which applies an approach largely attributable to Brainerd Currie, Married Women's
Contracts:A Study in Conflict-of-Laws Method, 25 U Chi L Rev 227,249 (1958).
92 See Tooker v Lopez, 301 NYS2d 519, 249 NE2d 394, 409 (1969) (Breitel dissenting)
(criticizing the New York Court of Appeals for adopting an unworkable rule because of the
influence of a "wholly adventitious" set of facts in the case in which the rule was created). See
also David P Currie, Herma Hill Kay, and Larry Kramer, Conflict of Laws 155-62 (West 6th ed
2001) (commenting on the "New York Mess" spawned by Babcock v Jackson); Joseph William
Singer, Facing Real Conflicts, 24 Cornell Intl L J 197, 198 (1991) (arguing that interest analysis
does not describe courts' actual practice, which is closer to "a rebuttable presumption that forum
law applies"); Lea Brilmayer, Interest Analysis and the Myth of Legislative Intent, 78 Mich L Rev
392, 393 (1980) (arguing that "[i]nterest analysis is simply too unpredictable and parochial to be
a plausible theory of constructive intent").
93 See Meir Dan-Cohen, Harmful Thoughts: Essays on Law, Self and Morality 58-62
(Princeton 2002).
only skewed support for what I suspect is a pervasive pathology. I

cannot of course deny that the very same biases I argue may exist for
judges and other case-based rulemakers exist for me as I attempt to
identify the very phenomenon I am discussing. Thus, these cases are
presented as an existence theorem and not with any claim that they
are necessarily representative.- Still, this collection of cases supports
the proposition that the phenomenon of rulemaking distortion caused
by the salience and decisional pressures of the immediate case is both
possible and frequent. Thus these cases serve to illustrate the nature
and possibility of the claim-that making law in the context of a par-
ticular concrete controversy may well produce law that, although
aimed at resolving a range of future controversies, does so with a dis-
torted view of the nature of those controversies and the proper resolu-
tion of them.95
Now of course a legislature or agency might at times be subject to
the same phenomenon,9 and there can be little doubt that legislation
made in the wake of a highly salient disaster, or made in the wake of
legislative hearings featuring sympathetic victims, is subject to the
same distortion. Megan's Law," after all, was largely the consequence
of Megan." But even if we concede this possibility of parallel legisla-
tive distortion, we can still ask the question whether, without the im-
petus to distortion that is common but not necessary in legislative ac-
tion or administrative rulemaking but which is a virtually necessary
component of common law rulemaking, law that is made with the goal
of imagining an array of future cases without a particular case in the
foreground is systematically likely to be less distorted than law that is
made with a focus on one particular situation under circumstances in
which that situation needs to be successfully resolved. And at least in
the static model, there seems to be some reason to believe that this is
exactly what is often likely to transpire.
94 Insofar as the cases arriving in an appellate court are systematically heterogeneous with
respect to the classes of which they are members, see Gillian K. Hadfield, Bias in the Evolution
of Legal Rules, 80 Georgetown L J 583, 592 (1992), the phenomenon identified here would be
amplified. But even if outliers arrive in appellate courts in their proper proportion, the tendency of
decisionmakers to see the outliers as nonoutlying exemplars would itself create a substantial problem.
95 As should be apparent, all of this also applies to the original perception of a court that
an existing rule needs to be changed. A rule that gets it right 99 percent of the time is, usually, a
pretty good rule, but if only the 1 percent gets litigated then courts are likely to believe that the
existing rule is far worse than it in fact is. I discuss this issue at greater length in Part IV.A.
96 1 return to these comparative issues in Part V.
97 Pub L No 104-145, 110 Stat 1345 (1996).

98 See Daniel M. Filler, Making the Case for Megan's Law: A Study in Legislative Rhetoric,
76 Ind L J 315, 315 (2001) (explaining how seven-year-old Megan's rape and murder spurred
New Jersey "to adopt a sex-offender community-notification law in her memory"). See generally
Symposium on Megan's Law, 6 BU Pub Int L J 29,29-73 (1996).
IV. FROM A STATIC TO A DYNAMIC

CONCEPTION OF THE COMMON LAW
A. Changing the Rules at All the Wrong Times

The common law is of course not the static model embodied in
the previous discussion, but is rather a much more dynamic process.
More concretely, one of the arguments for case-based lawmaking has
always been the allegedly self-correcting character of the common law,
a phenomenon that often rides under the banner, in the words of Lord
Mansfield made famous by Lon Fuller, of the common law "work[ing]
itself pure."" In more modern times, many of those who have most
strongly touted evolutionary models of common law change O have
also relied heavily on the way in which common law changes are sys-
tematically even if not universally for the better. The question then is
whether, when we move from an unrealistic static model of case-based
decisionmaking to a more realistic dynamic model, the flaws that were
featured in the previous section can systematically be expected to
evaporate.
Although a dynamic case-based rulemaking system possesses the
capacity for change, it is not clear that those changes take place at the
right time or that those changes are necessarily or even systematically
for the better. Initially, a significant issue is the extent to which rules
may be changed with excess frequency just because the cases that
99 Omychund v Barker,26 Eng Rep 15,23 (Ch 1744) (Mansfield) ("[Tlhe common law, that
works itself pure by rules drawn from the fountain of justice, is for this reason superior to an act
of parliament."). See Lon L. Fuller, The Law in Quest of Itself 140 (Foundation 1940) (adopting
Mansfield's phrase in saying that "[tihe common law works itself pure and adapts itself to the
needs of a new day").
100 The literature, sometimes more or sometimes less supportive of evolutionary explana-
tions, includes Todd J. Zywicki, The Rise and Fall of Efficiency in the Common Law: A Supply-
Side Analysis, 97 Nw U L Rev 1551, 1553 (2003) (proposing that changes in the institutional legal
framework "have made the common law more susceptible to rent-seeking pressures, which have
undermined the common law's pro-efficiency orientation"); Douglas Glen Whitman, Evolution
of the Common Law and the Emergence of Compromise,29 J Legal Stud 753,755 (2000) (using a
model of legal process to derive conditions under which the common law will produce conver-
gence on a single rule rather than oscillation between rules); Herbert Hovenkamp, Evolutionary
Models in Jurisprudence,64 Texas L Rev 645, 646 (1985) ("Today every theory of jurisprudence
worth contemplating incorporates a theory of change."); R. Peter Terrebonne, A Strictly Evolu-
tionary Model of Common Law, 10 J Legal Stud 397, 398 (1981) (importing "tools of evolution-
ary analysis from biology" to test the efficiency of law); William M. Landes and Richard A. Pos-
ner, Adjudication as a Private Good, 8 J Legal Stud 235, 284 (1979) (arguing that the common
law trends towards economic efficiency in some areas but that its overall efficiency is generally
"overstated"); John C. Goodman, An Economic Theory of the Evolution of Common Law, 7 J
Legal Stud 393, 394 (1978) (proposing that the litigants drive the evolution of the common law
towards economic efficiency); Paul H. Rubin, Why Is the Common Law Efficient?, 6 J Legal Stud
51, 51 (1977) (arguing that inefficient legal rules will lead to more litigation, and thus greater
potential change, than efficient legal rules).
prompt change are thought, for the very reasons we are considering
here, to be more representative than they in fact are. Because rules are
necessarily actually or potentially both under- and overinclusive,''
even the best rules will in their normal operation on occasion produce
the wrong results. Precise speed limits will sometimes overconstrain
good drivers under perfect conditions, just as they may unduly em-
power poor drivers in bad conditions. The rule prohibiting vehicles in
the park may keep out benign ceremonial vehicles and also fail to ex-
clude noisy or dangerous instrumentalities that are not vehicles.'O'And'
Act of 1934 3
precise rules such as § 16(b) of the Securities Exchange
may fail to reach inside-trading owners of 9.99 percent of the stock of
a registered company while at the same time the rule constrains the
owner of 10.01 percent of the stock who seeks to sell within six
months of buying even though she possesses no inside information
whatsoever.
Yet although this under- and overinclusion is a necessary feature
of rules, a process that focuses disproportionately on the instances of
under- or (especially) overinclusion may be inclined to take every
such instance as an occasion for changing a rule. A rule that gets it
right 99 percent of the time may well be a very good rule, but a proc-
ess that focuses only on the remaining 1 percent may be a process in-
fluenced to believe that some of these very good rules are in need of
modification. In a variation on the common phenomenon of hindsight
bias, " and also as a manifestation of the common tendency to overes-
101 See Schauer, Playingby the Rules at 34-35 (cited in note 32).
102 This well-known example comes from H.L.A. Hart, Positivism and the Separation of
Law and Morals, 71 Harv L Rev 593, 607 (1958) (positing that rules create "a penumbra of de-
batable cases" surrounding "a core of settled meaning"), and H.L.A. Hart, The Concept of Law
123 (Clarendon 2d ed 1994) (arguing that "[alll rules involve recognizing or classifying particular
cases," some of which are easily classified and some of which are ambiguous). The supposed
counterexample comes from Lon L. Fuller, Positivism and Fidelity to Law-A Reply to Professor
Hart, 71 Harv L Rev 630, 663 (1958) (arguing that the distinction between the core and the pe-
numbra cannot be determined without reference to purpose).
103 15 USC § 78p(a) (2000) (establishing that "[e]very person who is directly or indirectly
the beneficial owner of more than 10 percent of any class of any equity security" is required to
file statements in accordance with the statute).
104 See Baruch Fischhoff, Learningfrom Experience: Coping with Hindsight Bias andAmbi-
guity, in J. Scott Armstrong, ed, Principlesof Forecasting:A Handbook for Researchersand Prac-
titioners 543, 544 (Kluwer 2001) (defining hindsight bias as "the tendency to exaggerate in hind-
sight what one [would have been] able to predict in foresight"); Paul Slovic and Baruch
Fischhoff, On the Psychology of Experimental Surprises, 3 J Exp Psych: Hum Perception & Per-
formance 544,561 (1977) (finding "people to be wrong too often when they are certain that they
are right"); Baruch Fischhoff, Hindsight 7 Foresight:The Effect of Outcome Knowledge on Judg-
ment under Uncertainty, 1 J Exp Psych: Hum Perception & Performance 288, 298 (1975) (finding
that subjects with outcome knowledge believed the probability of the known occurrence was
higher than subjects without outcome knowledge). For the view that hindsight bias is adaptive
and not irrational, see Ulrich Hoffrage, Ralph Hertwig, and Gerd Gigerenzer, Hindsight Bias: A
timate the frequency of low-probability events, 05 an ex post examina-

tion of a rule may lead decisionmakers to believe, erroneously, that
the instances in which the rule produced the wrong result are more
frequent than they are. And rulemakers who thus exaggerate the phe-
nomenon of the rule-generated wrong result-who mistake the edges
of a rule for its center-will have cause to believe, erroneously, that a
better rule would, ex ante, have taken account of such instances. By
focusing on the imperfect applications of even the best rules, there-
fore, a common law process, rather than being designed to make rules
better, is in fact inadvertently designed to encourage continuous tink-
ering with rules, even under circumstances in which the tinkering,
from the perspective of just why we have rules in the first place, is
likely to make things worse.
B. The Entrenchment of Mistakes

Although a dynamic understanding of case-based lawmaking proc-
esses recognizes the theoretical capacity of the common law for self-
correction, the question still needs to be framed in comparative terms.
Case-based lawmakers can and do counteract mistakes, but the issue is
determining whether the common law process is more inclined towards
improvement-the common law "work[ing] itself pure"-than the al-
ternative. So the question is again a process one, and can be framed in
terms of whether a method systematically making its decisions in the
context of live disputes has a greater capacity for self-correction than its
more abstract alternatives. And once we frame the question in this way
the answer is not quite so clear. Indeed, the literature even includes
those who have argued that the alleged efficiency of the common law,
assuming that it in fact exists, is a function of historical coincidence and
various other method-independent factors more than anything intrinsic
to the common law method of making decisions. °6
In addition to the problem of being systematically unwilling to
leave well enough alone-an alternative way of characterizing the
By-Product of Knowledge Updating?, 26 J Exp Psych: Learning, Memory & Cognition 566, 579
(2000) ("[W]e do not view hindsight bias as a bias in the first place but as a consequence of
learning by feedback.").
105 See Bernt P. Stigum, Econometrics and the Philosophy of Economics: Theory-Data Con-
frontations in Economics 431-33 (Princeton 2003) (noting, however, that "[bly how much per-
ceived and objective probabilities differ and how this difference varies with . .. individuals are
less well documented").
106 See, for example, Paul H. Rubin, Common Law and Statute Law, 11 J Legal Stud 205,
207 (1982) (arguing that the increased efficiency of the common law may be more historical
correlation than methodological causation); Richard A. Epstein, The Static Conception of the
Common Law, 9 J Legal Stud 253, 275 (1980) ("The simple dichotomy between statutory and
common law rules explains nothing.").
common law's tendency to fix rules that are in no need of repair-

another reason for supposing that shifting from a static to a dynamic
model of the common law will not cure the availability, anchoring, and
issue framing problems discussed above is that precedential constraint
is as much a part of the common law as is the capacity for change."" As
long as precedent matters-as long as the rule made in the previous
case actually has an influence on the resolution of a subsequent case
independent of the wisdom of the rule made in the previous case" -
there is the omnipresent possibility that any mistake will be systemati-
cally more powerful than any later attempts to correct it. Part of this
power derives from the basic idea of precedent itself. And part of the
power of a precedent is the related but quite different phenomenon of
path dependence, such that cases are likely to have doctrinal emana-
tions independent of their precedential effect in the strict sense.0' So
even if there were no barrier of precedent to the correction of previ-
ous mistakes, earlier mistakes might still not be fully correctable pre-
cisely because some of their harm may already have leaked beyond
the power of correction.
C. The (Wrong) Occasions for Correction

Even apart from questions of precedent and path dependence,
however, some of the inability of the common law to correct itself is a
function of the operation of the selection effect."0 As a result of the
107 See generally Larry Alexander, Constrainedby Precedent, 63 S Cal L Rev 1, 3 (1989)
(naming precedent "one of the core structural features of adjudication in common-law legal
systems"); Frederick Schauer, Precedent,39 Stan L Rev 571,572 (1987) ("Reliance on precedent
is part of life in general."). For an economic analysis of why the common law might have incor-
porated a strong system of precedent, see Ronald A. Heiner, Imperfect Decisions and the Law:
On the Evolution of Legal Precedent and Rules, 15 J Legal Stud 227, 227 (1986) (arguing that
"uncertainty due to imperfectly using information" drove "certain major procedures that have
evolved in the law").
108 The requirement that the constraint be independent of the wisdom of the constraining
case is a necessary feature of any nontrivial account of precedent. See Alexander, 63 S Cal L Rev
at 4 (cited in note 107) (examining "constraint by incorrectly decided precedents"); Schauer, 39
Stan L Rev at 571 (cited in note 107) ("The previous treatment of occurrence X in manner Y
constitutes, solely because of its historicalpedigree, a reason for treating X in manner Y if and
when X again occurs."). Precedents that exert decisional force only when they are perceived to
be correct have no weight qua precedents. Only if the essence of precedential constraint is un-
derstood to be content independent, and thus only if precedents constrain (even if only presump-
tively) even when they are perceived as mistaken by the subsequently deciding court, does the
force of precedent have genuine bite.
109See Mark J. Roe, Chaos and Evolution in Law and Economics, 109 Harv L Rev 641,643-
44 (1996) (noting that cultural practices may remain static even after the historical forces that
provoked those practices have changed).
110 The literature is vast and growing. Seminal work on the basic phenomenon includes
Theodore Eisenberg, Litigation Models and Trial Outcomes in Civil Rights and PrisonerCases, 77
Georgetown L J 1567, 1569 (1989) (noting a selection effect when "cases tried are [ ]a skewed
selection effect, the likelihood that any dispute will wind up in an ap-
pellate court is significantly a function of the existence of two parties
holding mutually exclusive positions each believing that they have a
realistic possibility of prevailing. In such cases-we call them hard, or
indeterminate -the likelihood of litigation and appeal is higher than
the likelihood of litigation and appeal when only one side has a plau-
sible possibility of prevailing. On the strong view of the selection ef-
fect it is only the cases balanced on the knife edge of existing doc-
trine - the fifty-fifty cases, if you will - that go to trial and appeal, but,
even on a weaker view, the cases that a previous decision renders
moderately clear, even if wrongly clear, are systematically less likely to
go to trial and appeal. And as long as this is so, then most cases pre-
senting an opportunity to modify an erroneous rule will simply not
arise, or if they arise will settle before judgment at trial, or if they do
not settle before judgment will settle after judgment but before the
appeal that might modify the erroneous rule. Correcting an erroneous
rule made at Time 1 requires a case at Time 2, but if the cases at Time
2 are unlikely even to reach judgment precisely because of the rule
made at Time 1, then the common law's ability to correct its own mis-
takes will be systematically less than its ability to make them in the
first instance.
From this vantage point, then, we can see that the possibility of
correcting in a subsequent case the lawmaking error in a previous case
sample of cases filed"); George L. Priest, Reexamining the Selection Hypothesis: Learningfrom
Wittman's Mistakes, 14 J Legal Stud 215,216-17 (1985) (showing how an all-or-nothing legal rule
affects parties' willingness to settle); George L. Priest and Benjamin Klein, The Selection of
Disputesfor Litigation, 13 J Legal Stud 1, 2 (1984) (noting that the very low proportion of cases
that go to trial makes it "very difficult to infer specific characteristics" about all litigants);
George L. Priest, Selective Characteristicsof Litigation,9 J Legal Stud 399, 400 (1980) (examining
"the effect on the common law process of ...the decision of parties to litigate or settle their
dispute"); George L. Priest, The Common Law Process and the Selection of Efficient Rules, 6 J
Legal Stud 65, 65 (1977) (noting that if "transaction costs in the real world are positive," "ineffi-
cient legal rules will impose greater costs" and be more likely to be litigated). Subsequent discus-
sion, analysis, and empirical work includes Daniel Kessler, Thomas Meites, and Geoffrey Miller,
Explaining Deviationsfrom the Fifty-Percent Rule: A Multimodal Approach to the Selection of
Cases for Litigation, 25 J Legal Stud 233, 235 (1996) (suggesting a multimodal approach to rec-
oncile observed data with the predictions of selection effect); Robert E. Thomas, The Trial Selec-
tion Hypothesis without the 50 Percent Rule: Some Experimental Evidence, 24 J Legal Stud 209,
211-12 (1995) (noting that "the relative difference between the two sides' estimates" of fault, as
well as how close the dispute is to the legal rule, determines whether the parties will litigate);
Keith N. Hylton, Asymmetric Information and the Selection of Disputesfor Litigation,22 J Legal
Stud 187, 188 (1993) (arguing that "win-rate patterns can be explained by the informational
requirements of the relevant legal standard"); Theodore Eisenberg, Testing the Selection Effect: A
New Theoretical Framework with Empirical Tests, 19 J Legal Stud 337, 338-39 (1990) (proposing
the "50 percent hypothesis," which is an assumption that plaintiffs and defendants will each win
half the time). For an excellent analysis of the issues and a more comprehensive survey of the
literature, see Leandra Lederman, Which Cases Go to Trial?:An EmpiricalStudy of Predictorsof
Failureto Settle, 49 Case W Res L Rev 315,318 (1999).
will be in part a function of the willingness of a party on the wrong

side of a case made easy by the previous ruling to litigate and appeal
notwithstanding the existence of the unfavorable rule. The rule made
in the first case will of course have unclear applications, and we can
expect those unclear applications to be litigated-and appealed. And
we can even expect courts in those cases to use their ability to resolve
cases at the edges of the previous rule to move the rule away from the
mistake generated at the outset. But the rule made in the first case can
also be expected to produce at least some moderately clearly erroneous
results, not erroneous from the perspective of that rule, but erroneous
from the perspective of what the rule would have been had it not been
formulated mistakenly in the first place. Repeat players will have an
incentive to litigate against clear applications of a rule that disadvan-
tages them, but again it can be expected that the opportunities for
correction will systematically be weaker than the force of the rule that
is in need of correction.
As a result of this phenomenon, therefore, there is reason to be-
lieve that even in a dynamic setting the selection effect will cause cor-
rection to lag behind an original mistake, and so on for every subse-
quent iteration. Indeed, the lag in self-correction will be produced not
only by the selection effect, but also because each iteration of the cor-
rection process will be one in which the correcting case will have the
ability to correct, but will also potentially introduce a new mistake. It
should not be forgotten that any occasion for correction will be a sin-
gle case that may distort the need for correction in much the same
way that the original case had the potential for distorting the original
rule. When we see case-based lawmaking from a dynamic perspective,
therefore, we see that mistakes in the first case are not necessarily
permanent, but we see as well that the same availability, anchoring,
representativeness, and issue framing problems that plague any origi-
nal decision will also plague the common law's attempts to correct it.'
111 Relatedly, consider Judge Calabresi's famous argument advocating that common law
courts either already have or, if not, be given the authority to update clear but obsolete statutes.
Calabresi, A Common Law for the Age of Statutes at 170 (cited in note 47) (contending that
courts have "authority to interpret statutes honestly, but in ambiguous cases also functionally").
Without coming to a final conclusion on the matter, we would at least want to inquire into the
possibility that common law courts considering updating statutes would update statutes (and not
just find particular exceptions for particular cases) somewhat more than necessary because of a
proclivity to take aberrational but litigated cases as more indicative of a deeper statutory prob-
lem than was in fact the case.
V. IMPLICATIONS
I want to avoid the common problem of comparing on the one

hand a realistic model with an idealized one on the other. So I want to
avoid comparing a model of case-based lawmaking that recognizes its
flaws and limitations with an idealized model of codification, statute
making, or rulemaking that refuses to recognize the limitations of that
process. Thus, the implications of what I argue here may well be small-
est if we think solely in terms of a contrast between case-based law-
making and actual legislation. And the major reason for this is that the
legislative process is itself hardly devoid of its own pathologies. Some
of these pathologies are similar to the ones we have just been discuss-
ing, for legislation is often prompted by highly salient and potentially
unrepresentative events. That we increasingly label legislation in terms
of a particular event-Megan's Law.. or the Brady Law,"3 for exam-
ple-provides highly visible evidence of this phenomenon, and in ad-
dition there can be little doubt that lobbyists are usually engaged in a
process of offering to legislators vivid examples that the lobbyist be-
lieves will prompt (or, occasionally, forestall) legislative action. More-
over, we cannot ignore the entire category of somewhat different pa-
thologies infecting the legislative process just because legislation is a
product of a multimember, elected, and often-captured legislature."'
So without going into all of these pathologies, it is still safe to say that
we could not compare the net advantages and disadvantages of com-
mon law rulemaking with the net advantages and disadvantages of
legislation without going much further into the full range of patholo-
gies that infect each, and the full array of benefits they allegedly bring.
Moreover, even outside of formal legislation there can be cognitive
deficiencies arising out of any attempt to imagine an array of future acts
112 See notes 97-98.

113 Brady Handgun Violence Protection Act, Pub L No 103-159, 107 Stat 1536 (1993) (re-
stricting the sale, manufacture, import, and export of firearms).
114 See Jeffrey S.Banks and John Duggan, A Bargaining Model of Collective Choice, 94 Am
Pol Sci Rev 73,84-85 (2000) (demonstrating "the existence of stationary equilibria" in a "noncoop-
erative model of multiperson bargaining"); Keith Krehbiel, Pivotal Politics:A Theory of US Law-
making 4-6, 19 (Chicago 1998) (positing "gridlock" and "large, bipartisan coalitions" as defining
features of 1990s politics); Gary W Cox and Mathew D. McCubbins, Legislative Leviathan: Party
Government in the House 14-15 (California 1993) (analyzing party behavior in the House of Repre-
sentatives); R. Douglas Arnold, The Logic of CongressionalAction 3 (Yale 1990) (noting that "or-
ganized interests ...often triumph" in effectuating their legislative agendas); Morris P. Fiorina,
Congress:Keystone of the Washington Establishment83-84 (Yale 2d ed 1989) (describing changes to
the congressional landscape since the 1970s); David P. Baron and John A. Ferejohn, Bargainingin
Legislatures,83 Am Pol Sci Rev 1181,1199 (1989) (providing "a theory of a majority rule legislature
in a context in which the standard institution-free model of social choice theory yields no equilib-
rium"); James Q. Wilson, ed, The Politicsof Regulation vii (Basic 1980) (presenting a set of essays on
"the relationship between private power and public purpose").
and events, but without the (mis)guidance of a single salient controversy.

And here we can include not only the obvious pathology of ignorance,
but also the pathology of the imagined example. When there is no real
example, as there is in the case-based lawmaking scenario, the attempt by
the lawmaker to imagine an array of cases is likely to be distorted by the
excess availability in the lawmaker's mind of examples that come from
prior experience or other similar sources. In other words, the same pa-
thologies of excess preoccupation with a single distorting example that
can plague case-based lawmaking can also plague non-case-based law-
making whenever there is an example in the lawmaker's mind that has
the same features of availability and unrepresentativeness.
Yet although it is undoubtedly true that nondeciding rulemakers
can fall victim to the availability heuristic and related irrationalities,
the fact that such a salient example need not be actually resolved, as is
the case when a court must reach a decision with respect to the actual
parties before it, gives some reason to believe that the negative effects
of the imagined bad example in non-case-based rulemaking will be
systematically less than the negative effects of the nonimagined and
real but nevertheless bad example in case-based rulemaking. And
even without the necessity of actually resolving the question whether
real examples are more salient and more distorting than imagined
ones, there may-and I offer this only as a testable hypothesis"' -be
some reason to believe that all of the trappings of actual parties and
actual litigation and actual facts will make the real single case, ceteris
paribus, more salient than the imagined single case. Holding unrepre-
sentativeness constant, therefore, there may be reason to believe that
the real unrepresentative case will be more distorting than the imag-
ined or recalled unrepresentative case. Insofar as this is true, there
may then be reason to believe that the distortions of case-based law-
making are, ceteris paribus, sufficiently problematic that we can con-
ceive of actual implications even putting aside the possibility of substi-
tuting formal legislation for common law lawmaking.
A. Questions of Justiciability
As I noted at the outset of this Article, the alleged informational
advantages of having a single concrete case before a court have often
been thought to provide a reason for vigorous enforcement of the ex-
isting requirements for standing,16 and, by extension, for ripeness.. as
15 But not by me.

116See notes 48-49 and accompanying text.
117 See Lujan v National Wildlife Federation,497 US 871, 891 (1990) (defining ripeness as
when "the scope of the controversy has been reduced to more manageable proportions, and its
well. With respect to such doctrines of justiciability, the prevailing wis-

dom has been that the concrete case provides information that assists
a court deciding the issue surrounding that case and making law for
future cases as well. But if those informational advantages are illusory,
then at least one set of arguments for strengthening the standing and
ripeness requirements has become weaker. There are other arguments,
to be sure, most involving questions of decisional legitimacy and not
decisional quality, ' but the collapse of one might suggest at the very
least a marginal relaxation of the existing requirements.
A related issue is the question of the advisory opinion. As is well-
known, the federal courts will not issue advisory opinions,"9 although
they are a common feature of many state court systems '2° and are
commonly used by constitutional courts in other countries.'21 Tradi-
tionally the aversion to advisory opinions is, again, based at least in
part on the informational advantages of the concrete case. But once
we see that those informational advantages are not all that they seem,
then the argument for the aversion to advisory opinions is commensu-
rately weakened. This might suggest, as with standing and ripeness,
that there be some relaxation in the existing requirements, and might
suggest as well that, as a matter of institutional design in those juris-
factual components fleshed out"); Abbott Laboratories v Gardner,387 US 136, 148-49 (1967)
(holding that the ripeness doctrine prevents courts from resolving abstract disagreements). See
also Gene R. Nichol, Jr., Ripeness and the Constitution,54 U Chi L Rev 153,155-56 (1987).
118 See Raines v Byrd, 521 US 811,819-20 (1997) (making a separation of powers argument
for a strict standing requirement); United Public Workers of America v Mitchell, 330 US 75, 89
(1947) (alluding to an Article III basis for the ripeness doctrine).
119 See Rescue Army v Municipal Court of Los Angeles, 331 US 549,583-85 (1947) (refusing
a preliminary judgment on the legal issue until a concrete case came before the Court); United
Public Workers, 330 US at 89 ("For adjudication of constitutional issues, 'concrete legal issues,
presented in actual cases, not abstractions,' are requisite."); Abner J. Mikva, Why Judges Should
Not Be Advicegivers: A Response to Professor Neal Katyal, 50 Stan L Rev 1825, 1826 (1998)
(arguing that nothing "in judges' status or stature [ ] qualifies them to give such advice to elected
officials"); Felix Frankfurter, A Note on Advisory Opinions, 37 Harv L Rev 1002, 1003 (1924)
("Every tendency to deal with [facts] abstractedly, to formulate them in terms of sterile legal
questions, is bound to result in sterile conclusions.").
120 See, for example, Mich Const Art III § 8 (2005) ("Either house of the legislature or the
governor may request the opinion of the supreme court ...as to the constitutionality of legisla-
tion."); Mass Const Art LXXXV (2004) ("Each branch of the legislature, as well as the governor
or the council, shall have authority to require the opinions of the justices of the supreme judicial
court.").
121 See, for example, Wolfgang Zeidler, The Federal Constitutional Court of the Federal
Republic of Germany:Decisions on the Constitutionalityof Legal Norms, 62 Notre Dame L Rev
504, 505-06 (1987) (noting that constitutional challenges in Germany require neither standing
nor ripeness).
dictions in which the issue is still open, the sympathy to advisory opin-
ions might be somewhat greater.'22
The same considerations play out in legal doctrine as well, even
after the hurdles of justiciability have been cleared. Courts determin-
ing whether to entertain facial (as opposed to as-applied) challenges
are engaged in a process by which they must imagine the array of
events that will be encompassed by the allegedly unconstitutional
law.", If a court's assessment of that array is likely skewed by the par-
ticular case before it, however, the arguments for entertaining a facial
challenge become weaker, and the arguments for dealing with uncon-
stitutionality on a case-by-case as-applied basis become stronger. So
too with overbreadth. 1' If the basis for determining that a statute is
unconstitutionally overbroad is based, in large part, on a judicial pre-
diction of its likely applications,"' then, again, some reason to believe
that such predictions will be systematically distorted would be one
reason for encouraging reluctance to rely too heavily on overbreadth.
B. The Timing of Rulemaking

Once we look beyond these various particular doctrines, even
larger implications emerge. One would be the possibility of delaying
the very process of rulemaking until enough cases arose such that the
rulemaking body could have the benefit of having seen multiple ex-
amples of some larger problem. When jurisdiction is discretionary, as
with the Supreme Court's certiorari practice, this delay might come
from taking very seriously a practice of delaying the decision on an
issue until there is a fair amount of lower court experience. A consci-
entious reviewing court could then take a case based on a better sense
of its representativeness, because the court would know from having
seen an array of cases whether the case it was taking was or was not
representative of the larger problem. And, having taken a case, the
122 See William M. Landes and Richard A. Posner, The Economics ofAnticipatory Adjudica-
tion, 23 J Legal Stud 683,684-86 (1994) (examining the costs and benefits of anticipatory adjudi-
cation regimes).
123 See Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing,
113 Harv L Rev 1321, 1324 (2000) (concluding "that there is no single distinctive category of
facial, as opposed to as-applied, litigation").
124 See Richard H. Fallon, Jr., Making Sense of Overbreadth, 100 Yale L J 853, 855 (1991)
("First Amendment overbreadth is largely a prophylactic doctrine, aimed at preventing a 'chill-
ing effect."); Henry P Monaghan, Overbreadth, 1981 Sup Ct Rev 1, 2 (noting that the "various limit-
ing conceptions" of the overbreadth doctrine cause it to be perceived as "erratic and confusing").
125 See. for example, New York v Ferber, 458 US 747, 749, 774 (1982) (holding that a state
anti-child-pornography statute was not overbroad because there was no indication that it would
be applied to material that did not explicitly depict sexual conduct); Broadrick v Oklahoma, 413
US 601, 616-18 (1973) (upholding state laws restricting the public, but not the private, political
speech of state employees).
court would then know about exemplars of the problem beyond the
case at hand, thus likely reducing the distorting effect of that case.
This process of delaying can even take place when jurisdiction is
not discretionary. A court deciding a case might decide the case with-
out any opinion at all, as is the common practice in the federal courts
of appeals, or if it decided a case with opinion it could make a choice to
decide narrowly rather than broadly, and in adjudicative mode much
more than rulemaking mode. Virtually any decision can be more or
less narrowly justified, and in that sense genuine common law rule-
making is in some respects itself discretionary. To the extent that a
court was inclined to make a rule, therefore, knowledge of the biases
produced by concrete cases might militate in favor of deciding the first
case narrowly and delaying rulemaking until the court's experiential
base was considerably larger."' And this applies to the practice of giv-
ing reasons as well. As noted above,v the very practice of giving rea-
sons has a rulemaking aspect, and thus a court deciding to delay its
rulemaking can do this not only by not deciding, but also by giving no
reasons for its decision, or giving narrower rather than broader rea-
sons. The arguments here are all ones that, ceteris paribus, will counsel
delay in judicial rulemaking, but the devices of delay turn out in fact
to be quite numerous.
C. The Largest Questions

The largest implications of what I have argued here, however, are
those that go to questions of institutional design. Although delay can
often be useful, as can preferring narrower decisions to broader ones,
the true implication of what I have offered here is that case-deciding
bodies may not be well situated to engage in the large-number, sys-
tematic, and empirical inquiry that effective rulemaking requires. If we
want to know the full reach and import of a particular speed limit, we
do not want to rely solely on instances in which drivers caught speed-
ing challenge their citations, and so too with almost any rulemaking
process. So if the implications of case-based distortion are to be
heeded, the larger implications relate to the comparative desirability
of simply making rules in processes less liable to the distortion and
126 There remains the risk, however, that subsequent cases will still be seen through the lens
of the first case because of anchoring and framing effects, and to the extent that this is so then no
amount of delay in rulemaking will totally eliminate the distortion of seeing all cases after the
first through the lens of the first case. See Matthew Rabin and Joel L. Schrag, FirstImpressions
Matter: A Model of Confirmatory Bias, 114 Q J Econ 37, 38 (1999) (describing "confirmatory
bias" as a tendency "to misinterpret ambiguous evidence as confirming [one's] current hypothe-
ses about the world").
127 See text accompanying note 35.
more suited to engage in the "large n" empirical assessment that effec-
tive rulemaking would require. This would then constitute an argu-
ment, for example, albeit not the only argument and not necessarily a
conclusive argument, for administrative agencies making rules in the
context of formal rulemaking rather than as an adjunct to adjudica-
tion. For the same reasons it would constitute an argument for insti-
tutions such as the Federal Rules of Evidence and the Federal Rules
of Civil Procedure (and the standing committees that take the lead in
their revision) as opposed to letting the rules develop over time in
common law fashion. And it might even counsel congressional hesi-
tance when it considered, as it did in enacting the Sherman Act, for
example, relying on a common law process to develop an entire area
of law as opposed to charging an expert agency with the job, or per-
haps, for all of its own pathologies, even doing it itself.
VI. CONCLUSION
My aims here are modest. They are not to claim that civil law le-
gal regimes are better than common law ones, that statute law is better
than common law, that codification is better than case-by-case deci-
sionmaking, that the "case or controversy" requirement is fundamen-
tally confused, or that it is generally better to make decisions under a
"veil of ignorance."' All of these may well be true, but a full compari-
son between common law method and its alternatives would require a
thorough consideration of all of the virtues and pathologies of the
common law as a process and all of the virtues and pathologies of all
of its alternatives, and would need to do so in a multiplicity of institu-
tional contexts. It may well be, after all, that these various virtues and
pathologies would appear in different ways and with different conse-
quences depending on various other institutional features. All of these
considerations, therefore, and more, make the all-things-considered
comparison between common law method and any of a number of
alternatives far more than can possibly be tackled by one person, or in
any one article.
128 See the prescient (from my perspective) analysis in David L. Shapiro, The Choice of
Rulemaking or Adjudication in the Development of Administrative Policy, 78 Harv L Rev 921,
972 (1965) ("[Aldministrative efforts to give content to general statutory provisions ... should be
encouraged rather than thwarted."). See also Peter L. Strauss, The Common Law and Statutes, 70
U Colo L Rev 225,225 (1999).
129 John Rawls. A Theory of Justice 11 (Belknap rev ed 1999) ("[The veil of ignorance]
ensures that no one is advantaged or disadvantaged in the choice of principles by the outcome of
natural chance or the contingency of social circumstances."). See also John C. Harsanyi, Cardinal
Utility in Welfare Economics and in the Theory of Risk-Taking, 61 J Pol Econ 434, 434-35 (1953)
("[A] value judgment on the distribution of income would show the required impersonality ... if
the person [chose] in complete ignorance of what his own relative position... would be.").
Nevertheless, we live in an era of glorification of the particular

and celebration of the immediate factual context.'" Part of that glorifi-
cation comes from the common premise that we make better deci-
sions when we see real events, real parties, real controversies, and real
consequences. And this common premise provides a widely adopted
argument for the virtues of case-by-case decisionmaking and the
rulemaking that comes out of it. Indeed, even those otherwise less
sympathetic to case-based rulemaking do not deny what they see as
the informational benefits of the concrete case.' Yet when we com-
bine the lessons of at least one strand of Legal Realism with some of
the lessons of modern social science, we see as well that real events,
real parties, real controversies, and real consequences may have dis-
torting effects as well as illuminating ones."2 And insofar as this is true,
then at least one of the traditional arguments for common law law-
making becomes less sound, and one of the arguments for the "case or
controversy" requirement becomes less sound as well. Holmes was
partially right. Great cases and hard cases often do make bad law. But
if the distorting effects produced by greatness and hardness are pre-
sent in nongreat and nonhard cases as well just because of the very
immediacy of those cases, then Holmes's insight about great cases and
hard cases is not only broader than he thought, but also supports the
proposition that cases simpliciter make bad law. And if that is so, then
it may turn out to be more of a demerit than a merit that the common
law decides the case first and determines the principle thereafter.
130 There are, of course, dissenters. See, for example, Frederick Schauer, Profiles,Probabili-
ties, and Stereotypes ix (Belknap 2003) ("My aim in this book is to challenge the primacy of the
particular.... [T]hat this particular case, or this particular event, is what is most important.").
131 See Landes and Posner, 23 J Legal Stud at 685 (cited in note 122) (favoring anticipatory
adjudication but admitting that "[tihere is greater risk of deciding a case incorrectly when there
is little or no factual record").
132 One such distortion, and one I have not dealt with directly here, is the way in which the
common law may simply see too narrow a range of policy options and policy problems, a failing
neatly captured in the complaint that the common law "feeds too much upon itself." James
McCauley Landis, Statutes and the Sources of Law, in Roscoe Pound, ed, Harvard Legal Essays
213,213 (Harvard 1934).

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tween specific parties as the platform for creating legal rules is so

3 See US Const Art III, § 2.

were aberrational, Holmes believed, and he saw no reason why the

I. THE COMMON LAW JUDGE AS LAWMAKER

announcement of the principle that had determined the outcome of that

doctrines in traditional common law areas such as contract, tort, and

"cruel and unusual punishments"2' is largely untethered by the text." But

II. LAW AS RULE AND PRINCIPLE

25 US Const Amend VIII.

announcing a standard.32 But whether what a court offers is a rule or a

32 On the rule-standard distinction, see Russell B. Korobkin, BehavioralAnalysis and Legal

III. THE PROBLEM IN A STATIC MODEL

The basic argument is best approached by initially considering a

35 See Frederick Schauer, Giving Reasons, 47 Stan L Rev 633,635 (1995).

skeptical challenge to one pervasive argument for the common law

also embodied in the "case or controversy" requirement of Article III

A. (Mis-)Surveying the Field

very "availability" of the hurricane by virtue of its occurrence last week

54 See Richard E. Nisbett, et al, PopularInduction:Information Is Not Necessarily Informa-

properties of subsequent events." This phenomenon is well known to

sizing a subset of potentially relevant considerations, a speaker leads

lieved, the effects under consideration are properly understood as net

B. The Burdens of Decision

wellyn celebrated," however, is from a lawmaking perspective more

none of these idiosyncratic features had existed, the extraordinarily

Similarly, and outside of the constitutional context, consider the

88 68 Cal 2d 319,438 P2d 33 (1968) (disallowing the testimony of a statistician in a criminal

only skewed support for what I suspect is a pervasive pathology. I

97 Pub L No 104-145, 110 Stat 1345 (1996).

IV. FROM A STATIC TO A DYNAMIC

A. Changing the Rules at All the Wrong Times

timate the frequency of low-probability events, 05 an ex post examina-

B. The Entrenchment of Mistakes

common law's tendency to fix rules that are in no need of repair-

C. The (Wrong) Occasions for Correction

will be in part a function of the willingness of a party on the wrong

I want to avoid the common problem of comparing on the one

112 See notes 97-98.

and events, but without the (mis)guidance of a single salient controversy.

15 But not by me.

well. With respect to such doctrines of justiciability, the prevailing wis-

B. The Timing of Rulemaking

C. The Largest Questions

Nevertheless, we live in an era of glorification of the particular

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