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Articles 1 - 4 of 4
Full-Text Articles in Judges
Judges As Rulemakers, Emily Sherwin
Judges As Rulemakers, Emily Sherwin
Emily L Sherwin
In Do Cases Make Bad Law?, Frederick Schauer raises some serious questions about the process of judicial lawmaking. Schauer takes issue with the widely held assumption that judge-made law benefits from the court's focus on a particular real-world dispute. Writing with characteristic eloquence, Schauer argues that the need to resolve a concrete dispute does not enhance the ability of judges to craft sound rules, but instead generates cognitive biases that distort judicial development of legal rules. Schauer's observations about the risks of rulemaking in an adjudicatory setting are very persuasive. Yet his overall assessment of the common law process may …
The Deceptive Nature Of Rules, Larry Alexander, Emily Sherwin
The Deceptive Nature Of Rules, Larry Alexander, Emily Sherwin
Emily L Sherwin
No abstract provided.
Designing Judicial Review: A Comment On Schauer, Emily Sherwin
Designing Judicial Review: A Comment On Schauer, Emily Sherwin
Emily L Sherwin
In his characteristically lucid paper, Neutrality and Judicial Review, Frederick Schauer revisits the meaning and plausibility of Herbert Wechsler’s argument for neutral principles in constitutional adjudication. Unlike some critics, Schauer takes the argument seriously, on its own terms, and does an excellent job of sorting through the different ideas that lie behind it. Schauer identifies four different versions of the argument for neutrality. At least three of these are drawn from Wechsler’s 1959 article. Schauer is particularly interested in a fourth version, which favors neutrality in the design and management of the institution of judicial review.
A Defense Of Analogical Reasoning In Law, Emily Sherwin
A Defense Of Analogical Reasoning In Law, Emily Sherwin
Emily L Sherwin
This Article defends the practice of reasoning by analogy on the basis of its epistemic and institutional advantages. The advantages identified for analogical reasoning include that it produces a wealth of data for decisonmaking; it represents the collaborative effort of a number of judges over time; it tends to correct biases that might lead judges to discount the force of prior decisions; and it exerts a conservative force in law, holding the development of law to a gradual pace. Notably, these advantages do not depend on the rational force of analogical reasoning. Rather, the author contends that, as open-ended reasoning …