I took a quick look at a paper of Brian Leiter's that he mentions in his web-log. The paper is "Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence" here, appearing this fall in the American Journal of Jurisprudence as part of a symposium on "Law's Moral Foundations: Has It Any?" with papers by Joseph Raz, Timothy Endicott, Matthew Kramer, and John Finnis. I have a hard time getting motivated to read work in this style, but Professor Leiter's paper is a good one to file away for a summary of it (I suppose I should really look at Posner's Problems of Jurisprudence again too). Two of the questions in jurisprudence are (1) How do judges decide cases? and (2) How should judges decide cases?. I found this difficult to follow without examples, and decided that I'd start over with my own example rather than try to figure out what Dworkin and Hart are saying (even Leiter's article couldn't, with a quick read, convince me that those two big names have anything useful to say).

The Hornpipe Hypothetical: Jones sues Smith in a civil case, claiming that Smith burned down Jones's house on behalf of the terrorist Al Quaeda organization. The judge in the bench trial can see that Smith did burn down the house, and he must decide on a remedy. He has four alternatives: enjoin Smith to leave America; make Smith pay money damages; make Smith dance a hornpipe naked in a shopping mall; or impose no penalty on Smith, but make Jones pay Smith's court costs.

Consider four principles a judge might use to decide what to do.

1. Pedigree. Follow statutes, regulations, custom, or previous judicial decisions.

2. Policy. Decide what policy is best, using the judge's own notions of fairness, efficiency, or whatever.

3. Conformity. Do what he thinks other judges would do in his place.

4. Obedience. Do what he thinks the legislators (or the people who vote for them) would want him to do.

Let us add some extra facts to the description of the Hypothetical.

1'. The relevant statute says,"Anyone burning down houses for a terrorist group must dance a hornpipe naked in a shopping mall."

2'. The judge thinks Smith did the right thing to burn down Jones's house, because Jones is a bad person, and he would like to reward Smith and encourage other people to burn down bad people's houses in the same way.

3'. The judge believes other judges would award money damages, ignoring the statute.

4'. The judge knows that the voters and legislature would like Smith expelled from America, because the legislature is about to pass just such a statute.

Two distinct questions are which of the four principles actual American judges would say they follow, and which one they would follow in this particular case. (Two separate questions are which principles they ought to follow and what outcome a judge should choose in this particular case.)

I don't know what judges would say, but my guess is that the most important principle is Conformity, with Policy following in second place, Obedience third, and Pedigree last. In the Hypothetical, the judge would evade the statute, perhaps pleading "cruel and unusual punishment" (although if the Constitution did not have that phrase, it wouldn't matter; he'd find something else). He would hesitate to follow his own Policy preference because he would know it is unusual, and he would value the opinion of his fellow judges and the legal community. There is safety in numbers; if he just does what other every other judge would do and award money damages, he will have their respect, and the respect of others is more important to most people, including judges, than principle is. (People differ as to whose respect they value, but I think most judges would be unhappy knowing that all other judges despised their ruling, even though judges don't worry about what ordinary, ignorant people think of them.)

Policy would come second. If modern judges think a law is stupid, they try to get around it. Judge Holmes was forthright in following Pedigree instead of Policy, as in Lochner, but most judges are very unhappy with following laws. Witness their dissatisfaction with the Federal Sentencing Guidelines for criminal cases, which they follow only because they dislike getting overruled.

Another option, by the way, would be for a judge to recuse himself when two of the four principles come into conflict. A judge who thought the death penalty was bad Policy, for example, but clearly had the Pedigree on its side in a case, might withdraw from any case in which the death penalty might have to be imposed. But I know of no judge who ever did this, despite the strong moral objections of so many judges to the death penalty.

Obedience comes into play indirectly, I think. In theory, judges, like everybody else in America, say they believe in democracy and doing the will of the people, but in practice they don't believe that. The Hypothetical illustrates that. If the judge thinks that what the people unanimously want is a bad policy, and current statutes say to do something different, and other judges would all do something different, what judge is going to follow the will of the people?

Well, of course some judges will anyway. That is for the indirect reason that some judges have to face re-election or hope for appointment to a higher court. My new book with Mark Ramseyer, Measuring Judicial Independence: The Political Economy of Judging in Japan, is all about that.

I wonder what people like Dworkin, Raz, Leiter, and Hart would say about the Hornpipe Hypothetical? Perhaps that it is unsuitable, because judges try to follow all four principles that I've listed. But the point of a hypothetical is precisely to explore which principle is the strongest when principles come into conflict.

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