Loading...
Please wait, while we are loading the content...
Similar Documents
Hard Cases Make Bad Law? A Theoretical Investigation
| Content Provider | Semantic Scholar |
|---|---|
| Author | Shahshahani, Sepehr |
| Copyright Year | 2019 |
| Abstract | This paper uses formal models to probe the famous aphorism that “hard cases make bad law.” The analysis recovers the aphorism's core qualitative intuition but also enriches and extends it. I show that when special hardships exist, difficult cases and important cases are more likely to make bad law, and the effects of difficulty and importance interact. But, conditional on making bad law, more difficult cases make less-bad law. I also show how lawmaking is affected by an entrepreneurial litigator who can influence the selection of cases that the court uses to make law. The litigator moves the law closer to her own preferred rule by strategic case selection that is sensitive to the dynamic of hard cases making bad law, but in doing so she improves the expected rule, even when her preferred rule is at odds with the socially optimal rule. Beyond the single-court context assumed by the aphorism, the paper analyzes strategic interaction in a judicial hierarchy. Here, even cases that do not pose a special hardship may make bad law, and the effect of difficulty is nonmonotonic. Overall, the analysis illuminates the effects of particular case characteristics on general laws. The insights enrich our understanding of judicial lawmaking in common law systems—where general laws are made by particular cases—and may also apply to nonjudicial settings. “Hard cases make bad law” is one of the most famous aphorisms in Anglo-American law, but its precise meaning and logic are not entirely clear. This paper analyzes a series of formal models of adjudication to understand and probe the familiar saying. The analysis recovers the aphorism's core insight—that where strict application of a generally sound law would present an exceptional hardship to someone, the court may be tempted to bend the law to avoid the hardship. But formal analysis also enriches, qualifies, and extends that insight. The concept of special hardship is concretely conceptualized by salient facts that cannot be explicitly reflected in legal doctrine. And the idea of “hard” case is enriched by understanding it to mean not just a case posing a special hardship but also an “important” case or a “difficult” case. It is shown that when a case does not pose a special hardship, importance and difficulty do not make a difference to the quality of laws. But when a case poses a special hardship, important cases are more likely than unimportant cases, and difficult cases are more likely than easy cases, to make bad law. However, conditional on bad law being made, difficult cases actually make less-bad law than easy cases. Importance and difficulty also interact in interesting ways. A case must be sufficiently important for the maginal effect of difficulty to kick in, and a case must be sufficiently difficult for the marginal effect of importance to kick in. These insights capture a critical feature of the common law system—that general laws are made not in abstract anticipation of various future permutations of case facts but in the context of particular facts. The paper also investigates another critical feature of judicial lawmaking—that courts make law by resolving cases brought to them by others. Entrepreneurial litigators can move the law closer to their liking by selecting cases for litigation in a way that is sensitive to how particular case characteristics affect general laws. The process is more conducive to social welfare when the entrepreneurial litigator's preferred rule is closer to the socially optimal rule. But, when a litigator has modest powers of case selection, entrepreneurial litigation improves lawmaking relative to random case selection even when the litigator's preferred rule is far from the ideal rule, because a litigator who cares only about the mass of future cases rather than the particular case at hand will select cases in a way that circumvents the tendency of courts to let hard cases make bad law. The impact of entrepreneurial litigators on the quality of lawmaking is more ambigu- |
| File Format | PDF HTM / HTML |
| Alternate Webpage(s) | https://www.law.nyu.edu/sites/default/files/Sepehr%20Shahshahani%20Hard%20Cases%20Make%20Bad%20Law.pdf |
| Language | English |
| Access Restriction | Open |
| Content Type | Text |
| Resource Type | Article |
