Washington University Jurisprudence ReviewWashington University Jurisprudence Review
Volume 7 Issue 1
2014
Rationality, Legitimacy, & The LawRationality, Legitimacy, & The Law
Daniel Z. Epstein
Cause of Action Washington, D.C.
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1
Washington University
Jurisprudence Review
VOLUME 7 NUMBER 1 2014
RATIONALITY, LEGITIMACY, & THE LAW
DANIEL Z. EPSTEIN
ABSTRACT
American legal realism was committed to examining legal reasoning in
terms of the actual experiences of judges. Because the realist project
sought to use social science tools to examine human nature, the
contemporary rise of cognitive neuroscience provides an occasion for reexamining
legal realism’s foundational critique of the law. Realism’s
attempt to examine “the actual facts of judicial behavior” and to pursue a
“scientific description and prediction of judicial behavior” appears to be
a suitable vehicle for considering the relevance of cognitive neuroscience
for legal theory. Cognitive neuroscience has provided convincing evidence
for rejecting the traditional bifurcation between “reason” and “emotion.”
Moreover, cognitive neuroscience has revealed key heuristic biases in
human reasoning. As such, the dominant form of legal reasoning might
rely on a flawed conception of rationality. Therefore this flawed
understanding may have implications for the legitimacy of judicial
decisions. Rule-based reasoning has informed the image of rational
adjudication that undergirds our conception of the rule of law, but rulebased
reasoning does not appear to be a complete description of how
judges decide cases. Furthermore, the received view of legal rationality
does not appear capable of accounting for alternative theories of
adjudication.
 B.A., Kenyon College. J.D., Emory University. Executive Director, Cause of Action
Washington, D.C.).
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TABLE OF CONTENTS
I. INTRODUCTION ........................................................................................ 2
II. THE RULE OF LAW.................................................................................. 5
A. Rationalism.................................................................................. 6
B. Legal Rationalism ....................................................................... 8
III. THE STANDARD VIEW OF THE RULE OF LAW FAILS AS A THEORY
OF LEGITIMACY................................................................................... 9
IV. THE ALTERNATIVE TO LEGAL RATIONALISM..................................... 15
A. Legal Rationalism Biases Judgment.......................................... 18
B. Functionalism............................................................................ 20
V. HEURISTIC BIAS AND ADMINISTRATIVE LAW...................................... 29
VI. CONCLUSION....................................................................................... 37
I. INTRODUCTION
A judicial decision is a social event. As such, rationality in law—how
judges make decisions and how those decisions are weighed and reasoned
about within legal discourse—is a question not of pure logic, but of social
experience. As such, a full picture of judicial decision-making involves
psychology, economics, and political theory, in addition to law. The social
event of judging can be considered a rational legal process if it achieves
logical and social legitimacy. Legal rationality, then, depends upon
legitimate adjudication. If a theory of legal rationality is to explain how
judges make decisions, why standards of consistency, clarity, and
predictability are appealing, and how (or whether) precedent, rules, and
doctrine make the law work, then a theory that relies upon the science of
human decisions for an account of legal reasoning is essential.
Unfortunately, this depiction of the law does not inform how American
jurisprudence conceptualizes either legal reasoning or the rule of law.
During the turn of the 20th century, the received view of legal theory
was threatened by the foundational challenge posed by the American legal
realism movement. American legal realism (hereinafter “realism”)
critiqued the formalist view of law as a body of rule-based prescriptions.
While realism dealt with questions of legal meaning, judicial deference,
legal positivism, civil procedure, and much more, this article focuses only
on realism as a critique of judicial reasoning. The formalist understanding
of judicial decision-making, with its focus on rule-based reasoning in
particular, involves a special theory of explanation, which I call “Legal
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Rationalism.” Thus, I understand realism as a critique of Legal
Rationalism.
However, the substance of realism did not travel far beyond this
critique of Legal Rationalism.1
American legal realism is said to have
failed because it could not build a constructive system for law.2
Realism’s
lack of a constructive system resulted from first, the realists’ rejection of
the theory that legal rules constrained judicial decision-making, which led
to the impractical conclusion that legal rules lacked relevance,3
and
second, the realists’ inability to propose a workable alternative to their
criticism of judicial decision-making.4
This article revives American legal realism by showing how
contemporary findings in cognitive neuroscience give us reason to revisit
the realists’ major premise that legal rules do not constrain judicial
decision-making, in addition to providing a potential solution to the two
key problems confronted by realism (i.e., (1) maintaining the relevance of
legal rules and (2) providing a workable alternative to Legal Rationalism).
Consistent with Felix Cohen’s description of legal realism as offering a
“functional approach,” we may describe the examination of judicial
reasoning in the context of neurocognitive science as functionalism.5
Legal Rationalism, which is the widely accepted view of legal theory,
must be reexamined in light of recent developments in cognitive
neuroscience and their translatability to the work of social science.
Because legal theory must examine cognitive neuroscience in explaining
judicial decision-making both empirically, as a description of how judges
actually make decisions, and normatively, as a description of how judges
ought to evaluate disputes, legal realism’s foundational critique of the law
1. NEIL DUXBURY, PATTERNS OF AMERICAN JURISPRUDENCE 158 (1995).
2. David Marcus, The Federal Rules of Civil Procedure and Legal Realism as a Jurisprudence
of Law Reform, 44 GA. L. REV. 433, 437 (2010).
3. RONALD DWORKIN, LAW’S EMPIRE 36 (1986) (“Some realists . . . said there is no such thing
as law, or that law is only a matter of what the judge had for breakfast.”).
4. RICHARD A. POSNER, FRONTIERS OF LEGAL THEORY 3 (2001) (“Legal realism failed to
deliver on its promises, and by the end of World War II had petered out.”); See also Michael Heise,
The Past, Present, and Future of Empirical Legal Scholarship: Judicial Decision Making and the New
Empiricism, 2002 U. ILL. L. REV. 819, 822 (2002) (“The legal realism movement provided the first
significant and visible forum for the intersection between applied social science and legal scholarship.
Concurrent with the development of legal realism, critical events were unfolding outside law schools
that, in time, enormously influenced empirical legal research. Prominent among these events was the
emergence of the social sciences as discrete fields of study and the development of related
methodologies. As a movement, however, legal realism . . . came and went.”).
5. Felix Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV.
809, 812 (1935) (“[T]he traditional language of argument and opinion neither explains nor justifies
court decisions.”).
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must be reconsidered.6
To say legal theory needs to be rethought is to
argue for a methodological shift, akin to Felix Cohen’s foretelling that
“[c]reative legal thought will more and more look behind the pretty array
of ‘correct’ cases to the actual facts of judicial behavior, will make
increasing use of statistical methods in the scientific description and
prediction of judicial behavior, will more and more seek to map the hidden
springs of judicial decision and to weigh the social forces which are
represented on the bench.”7
The functionalist argument against Legal Rationalism and the argument
proposed herein proceeds as follows: Legal Rationalism, the theory that
rule-based reasoning8
can explain judicial decision-making, is
epistemically suspect. Rule-based reasoning fails as an account of judicial
decision-making for two reasons: First, rule-based reasoning is internally
inconsistent because, in hard cases, judges do not decide cases based on
proposition-like rules. Second, it misunderstands the nature of decisionmaking
by wrongly assuming that reasoning based on proposition-like
rules is possible, rational, or actually occurring. The failure of Legal
Rationalism calls for a new theory, and functionalism ultimately
challenges the logic of the positivistic theory of the rule of law. The claim
of functionalism, consistent with the realist critique, is that neurocognitive
science reveals that there are tacit bases for judicial preferences that
influence decisions, and an ideal theory of law must be able to explain
these preferences. This Article proposes a theory of legitimacy, which
suggests that if judges focused on the “legitimacy” of their decisions as
opposed to the “rationality” of their conclusions, they would have a basis
for either accounting for or constraining those non rule-like (propositional)
elements of legal reasoning, which I suggest are heuristic biases. In the
most casuistic of terms, legal rationalists (positivists) believe that reason is
the core of the rule of law because rationality protects political legitimacy.
Functionalism, on the contrary, holds that empirically legitimate judicial
decision-making guarantees the rationality of those decisions and thus
grounds the rule of law in legitimacy.
6. It is beyond the scope of this Article to fully evaluate the implications of neuroscience for the
law. Instead, this paper seeks to make the case that studying neuroscience is relevant to the study of
law, not merely for the practical utilities of presenting new evidence in criminal cases, but from a
foundational perspective of evaluating the judicial decision-making process in the abstract.
7. Cohen, supra note 5, at 833.
8. While rule-based reasoning appears merely to be a theory about how judges think, the theory
also suggests a political philosophy about the rule of law—one that holds that rationality secures
legitimacy. I call this the theory of rationalism.
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There is a high impact to the idea that judges must concern themselves
with what is legitimate as opposed to what is rational: it proposes a better
descriptive theory of judicial decision-making by accounting for nonpropositional
influences while at the same time prescribing a more
workable theory of law. Functionalism is something more than a mere
academic appreciation for the natural sciences by lawyers. Ultimately,
functionalism buttresses legal realism’s critique of Legal Rationalism by
using the natural sciences to investigate the heuristic biases implicit within
judicial reasoning.
In Part I of this Article, I outline the received understanding of the rule
of law and explain why this traditional theory supports Legal Rationalism
as a theory about law. Part II explains how Legal Rationalism fails to be a
workable theory of jurisprudence. In Part III, I argue that a functional
approach to jurisprudence can explain bias in judicial decision-making and
help build theories about judging that can help minimize judicial bias and
resolve issues presented by Legal Rationalism. In Part IV, I apply the
problem of jurisprudential bias to administrative law, arguing that
functionalism motivates an approach to judging that advances a principle
of political legitimacy.
II. THE RULE OF LAW
The guiding concept of the legitimacy of legal institutions is the rule of
law. In America, the rule of law has special significance for the role of
judges in legal interpretation. We say that our judges are guided by the
rule of law and what we mean by that is that our judges will issue fair,
balanced, and truth-concerned opinions when resolving disputes. The rule
of law ensures a society ruled by law, order, and justice—not executive
whim, not financial influence, and not partisan zealotry. The standard view
of the rule of law is that law preserves political legitimacy.
The rule of law is a statement on legitimate political authority. The
“rule of law requires that the state only subject the citizenry to publicly
promulgated laws, that the state’s legislative function be separate from the
adjudicative function, and that no one within the polity be above the law.”9
The rule of law is often contrasted to the “rule of men,” which “generally
connotes unrestrained and potentially arbitrary personal rule by an
unconstrained and perhaps unpredictable ruler.”10
The rule of law, then, is
9. Michel Rosenfeld, The Rule of Law and the Legitimacy of Constitutional Democracy, 74 S.
CAL. L. REV. 1307, 1307 (2001).
10. Id. at 1313.
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understood as bastion against a structure of law that can be changed
unilaterally and arbitrarily.11
As a principle of legitimate political
authority, the rule of law “requires fairly generalized rule through law; a
substantial amount of legal predictability (through generally applicable,
published, and largely prospective laws); a significant separation between
the legislative and the adjudicative function; and widespread adherence to
the principle that no one is above the law.”12
Whether the rule of law is
defined as a series of principles about the separation of the state from the
society,13
the public nature of law,14
or the notion that the law is somehow
immune to political or personal preferences,15
the rule of law aims to
ensure legitimacy in political affairs. But does it?
The rule of law is both a theory of institutions and a theory of
institutional actors. The former theory demands the types of socialscientific
inquiries involved in the study of bureaucratic rule-making,
legislative bargaining, and democratic federalism, while the latter theory
concerns judges and how they make decisions. When legal scholars argue
that the “rule of law was historically defined almost entirely in terms of
the judicial enforcement of legal rights and duties[,]” they are describing
this institutional actor theory of the rule of law.16
Under the institutional
actor theory, legitimacy is concerned with how legal actors reason. The
rule of law’s political concerns also shape certain epistemic concerns,
which is why the rule of law entails a theory of judicial reasoning. This
rule-based theory of judicial reasoning is Legal Rationalism. Implied
within the rule of law, then, is a theory of rationality.
A. Rationalism
The backdrop behind the American brand of the rule of law is the
Enlightenment: the intellectual period of the West where philosophers,
scientists, and political thinkers joined together in the insight that reason
elevated politics towards the pursuit of truth. The Enlightenment view of
11. Id.
12. Id. (emphasis added).
13. See THE RULE OF LAW UNDER SIEGE: SELECTED ESSAYS OF FRANZ L. NEUMANN AND OTTO
KIRCHHEIMER (William E. Scheuerman ed., 1996).
14. Cf. BRIAN TAMANAHA, ON THE RULE OF LAW: HISTORY, POLITICS, THEORY 119 (2004)
(“The rule of law in this sense entails public, prospective laws, with the qualities of generality, equality
of application, and certainty.”).
15. See Judith N. Shklar, Political Theory and the Rule of Law, in THE RULE OF LAW: IDEAL OR
IDEOLOGY 1 (Allan C. Hutchinson & Patrick Monahan eds., 1987) (Aristotle equated the rule of law
with the rule of reason).
16. GLEN O.ROBINSON, AMERICANBUREAUCRACY:PUBLIC CHOICE AND PUBLIC LAW 151 (1991).
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reason understood the human mind as a filter of sorts—one that was
capable of applying an abstract quality of “reason” to facts in order to
filter out the pure from the contaminated and to hone in upon those clear
and distinct ideas that could be properly called knowledge. Reason, in this
view, was a power of the mind and one that could uniquely filter out the
relevant from the irrelevant. It is not surprising, then, why this
Enlightenment view has strong appeal to the judiciary. If reason was
capable of deciphering true knowledge and relevant ideas, then reason
could likewise be applied to legal disputes to generate the correct theory of
a case. Judges, when exercising their reason, would be objective and just
and their opinions would arrive at the clear and distinct truths of the law.
The way judges would apply reason to law is through rules. Rules, like
clear and distinct ideas, are proposition-like and can be applied to any set
of facts in a consistent and technical manner. Rules can help filter out
relevant evidence from the irrelevant; rules can distinguish proper
procedure from improper procedure and so forth. Therefore, when a judge
reasons by the rules, that judge is not only ensuring an objective, fair, and
rational resolution of a dispute, but that judge is also upholding the rule of
law. This moral and political logic has informed the tradition of
jurisprudence practiced by lawyers and judges today.
The tradition of legal philosophy ranging from Jeremy Bentham to J.L.
Austin to H.L.A. Hart to Ronald Dworkin, Jeremy Waldron, and Joseph
Raz is concerned with how judges reason. A legal opinion, after all, is an
explanation of a judge’s reasoning.17
This legal tradition is committed to
the Enlightenment project of linking rationality with legitimacy. This
project has become commonplace for the institutional actors of law today.
It remains an attractive project precisely because it claims that rational law
is necessary and sufficient for political legitimacy. The theory holds that
good government can be guaranteed when judges make well-reasoned
decisions. Legal rules, under this tradition, are both a check against and an
antidote to arbitrary power.
This conception of law and perspective on the acquisition of legal
knowledge; however, is premised upon a picture of rationality that is
heavily biased towards rationalism. Rationalism suggests that something is
really only knowable or known to the extent that it can be conveyed by
rule-like propositions. That is to say, if something cannot be translated into
17. Michael Heise, Symposium: Empirical and Experimental Methods of Law: The Past, Present,
and Future of Empirical Legal Scholarship: Judicial Decision-Making and the New Empiricism, 2002
U. ILL. L. REV. 819, 839 (2002) (“[T]he actual judgment process [is] reflected in judges’ explanation
of their reasoning.”).
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a rule-like proposition, that thing is not a proper candidate for knowledge.
Rule-like propositions, because of their ability to convey what is rational,
then serve also to convey what is not rational (i.e., whatever is nonpropositional).
This has high stock value politically: if a leader’s
commands cannot be translated into rule-like propositions, that leader can
be said to have exercised arbitrary authority (e.g., murdering first-born
male children without explanation because the leader did not want to be
dethroned). If, on the other hand, that leader’s commands can be
understood in terms of rule-like propositions, whether those propositions
are accepted or rejected, the potential for the public critique of them
credits those commands as rational and therefore legitimate (e.g., “If one
has a child who is both first-born and a male, then that child must be killed
because doing so protects the King.”). We obviously all think both
justifications may be arbitrary, but there is a cognitive difference between
decisions which can be justified propositionally and those that cannot. The
former, as a psychological matter, more often than not become palpable
candidates for legal authority.18
B. Legal Rationalism
The theory of knowledge that regards reason as the source of
knowledge has been described by philosophers as Rationalism. The
application of Rationalism to law has been described by legal thinkers as
positivism or formalism, but, for purposes of simplicity, let us call it Legal
Rationalism. Legal Rationalism is the philosophy subscribed to by
American lawyers and judges. Legal Rationalism is the theory that judges
resolve legal disputes through legal rules, applied to facts. Legal rules,
much like rules of reason, are capable of filtering out the legally relevant
from the legally irrelevant in order to decipher clear and distinct legal
ideas that become articulated as objective, fair legal conclusions that
determine the outcome of a dispute. For the legal community, Legal
Rationalism not only appears as a sensible approach, but it is the
guidebook for how lawyers and judges understand the rule of law to
function.
Independent of whether one argues that legal rules are normative or
positive, it is clear that legal reasoning involves the use of legal rules. This
is a matter of common sense once we consider that our jurisprudential
18. See, e.g., TOM R. TYLER, WHY PEOPLE OBEY THE LAW, 282 (2006) (“[W]idespread views
that existing authorities and institutions are legitimate . . . promotes acceptance of its decisions and the
rules it promulgates.”).
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objections to many legal decisions often focus on a perceived
misapplication of legal rules—or, worse, obliviousness toward them.
Under the “Enlightenment tradition” mentioned above, legal reasoning
must yield conclusions that are clear, predictable, and consistent, which
are held to constitute objective legal standards. These conclusions become
interpreted, shared, and expressed as legal rules.
There are a number of claims that arise from this tradition’s adherence
to rationality: (1) legal reasoning is reasoning with rules; (2) all legal
conclusions are derived from legal rules; (3) law is rational because judges
can articulate the law by means of general rules; and (4) the rule of law is
the position that law is rational because judges can articulate the law with
rules.19
Criteria (1), (2), (3), and (4) are the general indicators that the rule
of law is functioning during the adjudication process. Even when legal
actors disagree about the scope of any one of these criteria, these
disagreements tend to be matters of degree. They are not foundational
disagreements concerning the role rules play in legal reasoning. Thus, if
we accept rule-based reasoning as what judges actually, or should, do, and
this form of reasoning is central to how the rule of law is enforced, then
the rule of law can be accurately described as a statement about rationality.
As such, the rule of law subscribes to the position that the rationality of
legal decision-making guarantees its legitimacy. The theory of rationalityas-legitimacy,
whether stated as positivism or formalism, is a theory of
Legal Rationalism. The result of this rationalist theory of knowledge is a
positivistic theory of law.
III. THE STANDARD VIEW OF THE RULE OF LAW FAILS AS A THEORY OF
LEGITIMACY
Legal Rationalism was challenged by an academic movement, which
spanned the late nineteenth century until the mid-twentieth century, called
American Legal Realism. American Legal Realists challenged the idea
that judges were constrained by legal rules. They did this, in large part, by
looking at the hard cases that were politically or socially contentious. In
the hard cases, the application of legal rules does not clearly lead to an
objective outcome; instead, the rules appear to conflict. Take for instance,
regulatory matters where the government and an individual or company
may be involved in a dispute about an agency’s regulation. The judge
might look at the relevant legal materials, which include legislation, other
19. Gerald B. Wetlaufer, Systems of Belief in Modern American Law: A View From Century’s
End, 49 AM. U.L. REV. 1, 10–12 (1999).
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court precedents, and legal holdings relevant to the dispute at issue, but
those legal materials may ultimately lead to two conflicting rules: one rule
says that the judge should defer to the agency’s expertise if the agency’s
interpretation of the statute was “reasonable,” while another rule states that
the judge should overturn the agency interpretation if such an
interpretation was “arbitrary and capricious.”
These cases are “hard” because they cannot be resolved simply by the
rules—they require the judges to exercise discretion and judgment that
may involve extra-legal considerations. What is “reasonable” or
“arbitrary” is something that does not involve clear and distinct
propositional statements that can be logically ordered and deduced but
instead requires judgment—the kind that an individual human judge will
have to make. And judges are not logic-limited computers. What the
American Legal Realists pointed out was that in these hard cases, the
judges crafted solutions that appeared rule-like (e.g., “The agency’s
interpretation is reasonable/arbitrary when [factors].”) when in reality
these judgments reflect certain policy preferences or cannot be explained
by the rules or holdings of formal legal materials (cases, statutes,
regulations).
No one is likely to disagree that the American Legal Realist criticism
of Legal Rationalism has a strong point to make. But ultimately this
criticism failed to change American legal culture because it offered little in
the way of a workable alternative (i.e., judges don’t apply the rules all the
time—so what? Should judges stop following the rules? Should lawyers
stop applying legal rules in practice?). The system would appear to break
down. But these practical objections may not be sufficient for throwing
out the Realist project.
Consider what I call the “functional argument”: rule-based reasoning is
internally inconsistent because in hard cases, judges engage in gap-filling
which cannot be explained in terms of legal rules. These non-propositional
justifications ultimately involve the use of heuristics—tacit cognitive tools
for decision-making. These heuristics create biases in the reasoning
process. Legal Rationalism either cannot account for heuristic bias or is
committed to holding that such heuristic bias, being non-propositional,
fails on legal rationalist grounds. Moreover, because Legal Rationalism
fails to understand the nature of legal decision-making, heuristic bias
appears to involve the arbitrary selection of rules contrary to rule of law
principles of non-arbitrariness. Legal Rationalism therefore breaks down
into skepticism because it cannot provide a rational way to select values.
This threatens the rule of law as a theory of political legitimacy. We shall
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now proceed in unpacking the methodology behind the functional
argument.
According to Jeremy Waldron, “[l]aws should be clear, public, and
prospective, they should take the form of stable and learnable rules, they
should be administered fairly and impartially, they should operate as limits
on state action, and they should apply equally to each and every person, no
matter how rich and powerful they are.”20
These standards for the rule of
law are, on their face, epistemological (in the sense that they have validity
as criteria of knowledge, in the rule-like propositional sense described
above) criteria for certainty in the law. And yet these standards also serve
a normative function in the sense that they allow the public and
institutional actors to assign praise and blame for a judge’s fidelity or
infidelity to these standards in his or her reasoning.
Paradoxically, these criteria, which serve to free judicial reason from
biasing modes of experience, preference, or politics, are at the same time
instrumental to a form of morality about the law. Implicit, therefore,
within these rational standards for the rule of law is an inherent ascription
to a plurality of epistemological norms such as reasonableness, neutrality,
generality, clarity, publicity, prospectiveness, certainty, consistency,
forward-lookingness, non-arbitrariness, fairness, finality, efficiency,
predictability, constancy, stability, intelligibility, clear-statement rules,
non-retroactivity, judicial deference, and, finally, judicial discretion.21
Moreover, most legal actors understand principles of clarity, predictability,
and consistency as standards for appropriate or “good” judging. But the
fact that judges often use these standards for evaluating whether an
opinion is valid or sound implies that these standards confirm a sense of
rationalistic legitimacy to judges.
The discussion of “clear-statement rules” reflects the sense that rules
which are clear, predictable, and consistent are those that are most
effective at ensuring the formal theory of the rule of law: ensuring
impartiality and protecting against arbitrariness and abuse. The clearer the
statement of law, the more effortlessly the public can comprehend the rule
and thus modify its behavior to meet the rule’s demands. The fact that
legal standards structure a judge’s mental process in selecting
20. Jeremy Waldron, The Hamlyn Lectures 2011: The Rule of Law and the Measure of Property
27 (NYU Sch. of Law, Public Law & Legal Theory Research Paper Series, Working Paper No. 11-47,
2011), available at http://dx.doi.org/10.2139/ssrn.1866357.
21. LON FULLER, THE MORALITY OF LAW (1964); RICHARD A. EPSTEIN, DESIGN FOR LIBERTY:
PRIVATE PROPERTY, PUBLIC ADMINISTRATION, AND THE RULE OF LAW (2011). See also Vallejo v.
Wheeler (1774) 1 Cowp. 143, 153 (Eng.).
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“appropriate” rules while also empowering third-parties to scrutinize
whether the judge’s conclusions are valid or sound implies that legal
reasoning depends upon a theory of what constitutes legitimate reasoning.
In other words, legal reasoning depends upon a theory of rationality.
The theory of legal rationality necessary for rule-based reasoning
requires judges to reason in such a way so that their conclusions are clear,
predictable, and consistent. This says something not merely about the
selection and crafting of legal rules, but the way those rules are applied as
well.
Legal Rationalism as such is set forth as a mechanical depiction of the
legal decision process—one that even legal formalists might not accept as
an accurate account of jurisprudence. One might contend that Legal
Rationalism is concerned less with the rationality of legal rules than the
rationality of the application of rules to a given dispute. Legal rules
originate from judges and therefore incorporate human values and
preferences in virtue of being human expressions, but law is said to be a
rational process because it involves a system dependent upon correct
applications of legal rules to facts. The rationality of this system is either
agnostic about or foundationally independent from the rationality or
correctness of the legal rules themselves.
To take this objection one step further, one might claim that legal rules
have no rational value at all but that the rationality of legal rules is merely
an after-the-fact attribute of the judicial application of those rules to facts
in the form of a final decision. Under this view, such a final decision
becomes authorized as correct and thus legitimizes the correctness of its
component parts, including the legal rules and principles at issue.
There is obvious discretion in the judicial interpretation and application
of legal rules, but rationalism is committed to the belief that the correct
application of legal rules involves norms of reasoning that are limited
merely to premises and conclusions that can be reduced to rule-like
propositions. A judicial opinion that cannot be digested into rule-like
propositions is suddenly suspect as arbitrary, political, over-engaged, or
activist.
The rule of law in the United States, as a practical matter, is the
requirement that judicial decisions result from rule-based reasoning. Legal
knowledge is characterized by the rule-based reasoning that creates it.
Rule-based reasoning is a rational theory of jurisprudence because legal
rules both exhaust and explain the legal decision-making process. As
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Judge Posner has stated, “judges discipline themselves to respond to the
problems before them with careful, linear rationality.”22
Rationality concerns how human beings make decisions.23
Legal actors
tend to label as “rational” those decisions or actions by judges that appear
intuitively legitimate. The judge’s opinion, his or her use of precedent, the
clear articulation of the rules of law, a reasoning process employed in
analyzing those rules, and an argument-based form are all lodestars of
rationality that are deemed necessary for a legitimate legal outcome.
Surely rationality, for lawyers, is not simply a question of what sounds
good; yet, legal decision making is deeply dependent upon emotion and,
therefore, not the sort of epistemological concept that a pure rationalist
would deem a relevant candidate for knowledge. The judicial method of
selecting, applying, and delineating legal rules based upon standards such
as clarity, consistency, and predictability is not clearly rational under the
rule-based reasoning model. For one, according to Dworkin, these
standards are informed by policy values that are not themselves sufficient
grounds for rational justification under (strict, rule-based reasoning-based)
Legal Rationalism, which seeks to filter out non-propositional
justifications as irrational.
Rule-based reasoning thus lacks a rational means of certifying the
rationality of its stated legal standards. If the selection of a standard cannot
be certified in a clear statement, then it fails rationalism’s stated mode of
justification. In other words, while judges might incorporate policy into
decisions in a manner that appears propositional-like, nothing intrinsic to
this reasoning process ensures that these incorporations or uses of political
or moral values is a rational form of jurisprudence.24
Because, as a
technical matter, the rule of law fails to be “rational” on its own account,
judges must do something to legitimate their decision-making. Judges
therefore fill logical gaps in the evaluation of a dispute with tools that do
not originate from legal rules.
The result is that legal inquiry is a question of how to heuristically
weigh values, without concern for the rational validity of those values.25
This failure of rules to confirm their own validity means legal rules are
22. Kathryn Abrams & Hila Keren, Who’s Afraid of Law and the Emotions?, 94 MINN. L. REV.
1997, 2005 (2010).
23. 3 HERBERT A. SIMON, MODELS OF BOUNDED RATIONALITY 291 (1997). See also Heller v.
Doe, 509 U.S. 312, 320 (1993) (describing rationality as speculative and not based on empirical
evidence).
24. See MICHAEL POLANYI,THE TACIT DIMENSION 17 (1966).
25. RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 7 (1977) (“[J]urisprudential issues are at
their core issues of moral principle, not legal fact or strategy.”).
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“nonepistemic.”26
In other words, legal rules are not complete accounts of
knowledge. If something beyond the rules and the judges’ strict, nondiscretionary
reasoning based on these rules is required to certify the
rationality of jurisprudence, then either Legal Rationalism is an
incomplete theory of jurisprudence, or, conceding the rationalist
conception of rationality, judicial decision-making is not merely a rational
process. In these cases, the rule of law fails to meet its own “rational”
standards of clarity, consistency, and predictability.
Whether reasoning through values or employing rule-like heuristics in
these cases, judges are not merely reasoning through rules. Judges often
exercise “discretion,” which is a euphemism for judicial prerogative.
Moreover, the fact that hard cases cannot be strictly resolved by rules
reflects the indeterminacy or incompleteness of a theory of legal
rationality bound by rules. It would be naïve to suggest that an individual
judge is rationally capable of articulating all legally relevant facts in
propositional terms. That is to say, not only is rule-based reasoning
rationally insufficient, it is practically impossible.
From these observations a number of conclusions follow, namely,
(1) legal rules are not sufficient for legal conclusions; (2) gap-filling by
judges cannot be explained by rules; and (3) processes of legal reasoning
are not clear, consistent, or predictable. Based on these conclusions, it
appears that rule-based reasoning (the rule of law) provides an inadequate,
and indeed incomplete, account of legal reasoning. Therefore, if we wish
to avoid errors in developing a more comprehensive and practical
understanding of legal rationality, we need to look elsewhere.
But these justifications lose their legitimacy on the grounds that, first,
as a descriptive matter, emotions are impossible to filter out because
reasoning is not rational without emotion and second, as is visible in hard
cases, “emotions already infuse decisionmaking whether or not they are
recognized by legal actors.”27
Emotions “have a vital role to play in legal
thought and decisionmaking.”28
The rationalism of rule-based reasoning
represented “a long intellectual tradition that dichotomized reason and
emotion and construed legal thought as a professionally instilled cognitive
process, which could be powerfully unsettled by affective response.”29
Neuroscientists recognize emotion as a part of intelligence “just as
26. LARRY LAUDAN, TRUTH, ERROR,AND CRIMINAL LAW:AN ESSAY IN LEGAL EPISTEMOLOGY 3
(2006).
27. Abrams & Keren, supra note 22, at 2004.
28. Id. at 2003.
29. Id.
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cognitive as other precepts.”30
“[T]he process of cognitive decisionmaking
embodies vital affective components.”31
Ironically, “[t]he detachment of legal rationality reflected the historic
view of law as a quasi-science: a process of deducing, from a framework
of legal principles, the rule to be applied to a particular case.”32
Ironic, of
course, because legal formalism today rejects functionalism, which is
informed by recent developments in neuroscience that dispute the antiscientific
bifurcation of reason and emotion in the cognitive decisionmaking
process.33
There were ostensibly practical reasons for being fearful
of the role of emotions in a presumably objective system of law. The
relationship between emotions and political life was captured by the
ancient Greek concept of thumos, spiritedness, which, in an ideal form,
explains the power of democratic sentiment but can also serve as the seat
of mob rule.34
In addition to concerns about politicization, emotions led to
unpredictable discretion, fickle reasoning, and arbitrary decision-making.
IV. THE ALTERNATIVE TO LEGAL RATIONALISM
American Legal Realism may arguably be salvaged by recent findings
in cognitive neuroscience, which provide an alternative to the critique of
Legal Rationalism. In short, cognitive neuroscience tells us some new
things that challenge the picture of the mind presented to us by
Enlightenment-era Rationalist philosophy.35
The mind is not capable of
separating reason from emotion to derive clear and distinct truths; instead,
emotion is not only relevant to rational functioning—it is necessary to it.36
This is why someone whose amygdala is damaged will fail to act
rationally even if his logic center—the prefrontal lobe—is intact.
Moreover, cognitive neuroscience reveals that human beings have
bounded rationality—that is to say, we are prone to make errors when
30. Id. at 2044 (quoting ANTONIO D’AMASSIO, DESCARTES’ ERROR at xv (1994)).
31. Id. (citing Jonathan Haidt, The Emotional Dog and Its Rational Tail: A Social Intuitionist
Approach to Moral Judgment, 108 PSYCHOL. REV., no. 4, 2001, at 815).
32. Id. at 2003.
33. Id.
34. See, e.g., FRANCIS FUKUYAMA, THE END OF HISTORY AND THE LAST MAN 204–06 (1992).
35. See, e.g., PATRICA CHURCHLAND, NEUROPHILOSOPHY: TOWARD A UNIFIED SCIENCE OF THE
MIND-BRAIN 273 (1986) (responding to the tradition of distinguishing between mental processes and
brain processes).
36. ANTONIO R. DAMASIO, DESCARTES’ ERROR: EMOTION, REASON, AND THE HUMAN BRAIN
200 (Quill 2000) (1994) (“[T]he action of biological drives, body states, and emotions may be an
indispensable foundation for rationality.”).
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forced to make judgments given limited information.37
As we are given
more information, our judgments become improved. Take, for instance,
Daniel Kahneman’s psychological experiment where he presents the
challenge: “A bat and a ball cost $1.10 in total. The bat costs $1 more than
the ball. How much does the ball cost?”38
Almost everyone studied by
Kahneman and his colleagues reported an initial tendency to answer “10
cents” because the sum $1.10 intuitively separates into $1 and 10 cents.
Kahneman uses this example to show that human beings are biased in their
reasoning, “often content to trust a plausible judgment that quickly comes
to mind[,]” thus reflecting a heuristic bias in the way we conceptualize and
reason through problems.39
In the same sense, judges, when resolving a dispute, say, between
agency reasonableness and agency arbitrariness, may be biased by certain
heuristics they are accustomed to applying to a case—whether from their
experience as lawyers or judges or whether from their own ideological
preferences. There are ways to frame issues or questions to avoid bias.
Consider: “A bat and a ball cost $1.10 in total. The bat costs $1 more than
the ball. The ball is not 10 cents. How much does the ball cost?” By
framing the issue with information provided to avoid error, the problem
solver’s biases can be reduced. By providing more information, one can
challenge the heuristic bias of the problem solver to think the ball costs 10
cents. The probem solver’s rush to judgment or arithmetic bias is
essentially slowed in its tracks by new information that informs him that
his preconceived solution to the problem is wrong.
If we know that judges are likewise prone to error—whether via
heuristic biases, limited knowledge, or their bounded rationality—why,
then, do we limit their judgment to legal rules? Would a rational judge not
seek to minimize his risk of error or reliance on bias by consulting
materials that may challenge his preferences or views and effectively
debias him or present him with additional knowledge to make a more
informed decision? This was what American Legal Realism sought to do
but did not accomplish because its theories lacked an empirical
foundation. We now get that foundation through cognitive neuroscience,
and this neuroscientific foundation is not one that transforms the task of
37. HERBERT A. SIMON, ADMINISTRATIVE BEHAVIOR 323 (4th ed. 1997) (An individual’s
rationality is “limited by the extent of his knowledge and information.”).
38. Daniel Kahneman & Shane Frederick, Representativeness Revisited: Attribute Substitution in
Intuitive Judgment, in HEURISTICS AND BIASES: THE PSYCHOLOGY OF INTUITIVE JUDGMENT 49, 58
(Gilovich et al. eds., 2002).
39. Id.
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judging into one that is reducible to cognitive neuroscience. Instead, it
allows us to reexamine Legal Rationalism as having a rationalistic bias in
its understanding of the rule of law. Most simply, Legal Rationalism
endorses positivism: the theory claims that rationality (rule-based
reasoning) guarantees legitimacy (the rule of law). If the rule of law
represents the fairness and objectivity that defines political legitimacy and
if the Rationalist approach of getting to legitimacy through reason is one
that is flawed, why not consider reversing the logic of the rule of law? The
Legal Rationalist theory of the rule of law is biased. What if legitimacy
(reducing errors in judgment, minimizing bias) guarantees rationality
(informed decision making)? This approach appears a more rational and
legitimate defense of the rule of law given a foundation of cognitive
neuroscience. Is legitimacy-as-rationality a better judicial philosophy?
In the hard case of reasonableness poised against arbitrariness, instead
of crafting a dubious rule, why not consider which interpretation is
legitimate—a consideration that requires consulting empirical and legal
materials? Legal Rationalism misunderstands human nature and is
internally inconsistent. The rationality of heuristics which bias judicial
decision-making (clear statement rules) must be understood in the context
of cognitive neuroscience. Legal Rationalism encodes a series of heuristics
upon legal actors in its bias towards rule-based reasoning. Functionalism
thus entails a methodological shift in jurisprudence that redefines legal
rationality. Functionalism means that judges must focus on the empirical
validity of the decision-making process. Cognitive neuroscience can help
legal actors determine if heuristics, which are non-propositional, are part
of a rational jurisprudence or not. Legal theory and cognitive neuroscience
can reach consilience in proposing research questions: whether the rule of
law requires (1) accounting for or constraining heuristic biases or
(2) either (a) eliminating heuristic biases, (b) determining which heuristic
biases are valid, or (c) delimiting decision-making from any heuristic or
doctrinal factors. These are the sorts of jurisprudential questions cognitive
neuroscience can help answer.
Legal Rationalism is an epistemological theory. As such, rationalism
makes prescriptive claims on how judges ought to reason. And, as
suggested in Part II, these prescriptive claims form biases in the ways
judges actually reason. As Gary Peller observes, legal concepts “are
supernatural entities which do not have a verifiable existence except to the
eyes of faith.”40
Legal rules “which refer to these legal concepts, are not
40. Gary Peller, The Metaphysics of American Law, 73 CALIF. L. REV. 1151, 1226 (1985).
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descriptions of empirical social facts . . . nor yet statements of moral
ideals, but are rather theorems in an independent system.”41
We will
examine the biasing effect of Legal Rationalism in more detail.
A. Legal Rationalism Biases Judgment
The received theory of the rule of law, committed to rational standards
of clarity, predictability, and consistency, is bound up by a folk
psychological conception of rationality.42
Under this theory, reason is
understood as a force capable of subsuming the complexities of law into
cogent, enunciable legal propositions. Rule-based reasoning requires that
choices “be adequately represented, conceptualized, and considered[]”
within the confines of legal rules.43
Legal rules are certain,
commensurable, and universal by being articulated as clear statements
(propositions) of law. Rationality is thought to be expressible and
accessible through propositions.44
Rational judging is reasoning through
rules. These maxims are central to Legal Rationalism.
The rule-based reasoning view of legal rationality cannot be defended
as a complete rendering of legal decision-making. The fact that we know
more than we can say presents problems for the notion that all knowledge
is propositional or rule-like.45
Knowledge that is tacit (e.g., experiential
judgment, habit, or skill) is a legitimate candidate for rationality and yet is
excluded from the rule-based model of legal rationality.46
Moreover, the
rule of law should be able to more fully account for gap-filling behavior
by judges.
If rule-based reasoning is a weak characterization of legal decisionmaking,
then the rule of law may be an incomplete theory of rationality.
Judges, who use heuristics in legal reasoning, are seeking to make rational
decisions. But this decision-making process is often neither legitimate nor
rational under the strict Legal Rationalism definition of rationality
41. Id. at 1226–27.
42. See Cohen, supra note 5, at 821 (“How are we going to substitute a realistic, rational,
scientific account of legal happenings for the classical theological jurisprudence of concepts?”).
43. PIERRE SCHLAG,THE ENCHANTMENT OF REASON 45 (1998).
44. MICHAEL OAKESHOTT, Rationalism in Politics, in RATIONALISM IN POLITICS AND OTHER
ESSAYS 5, 16, 22 (Timothy Fuller ed., Liberty Press new and expanded ed. 1991) (1962); see also
POLANYI, supra note 24, at 17.
45. See POLANYI, supra note 24, at 17.
46. Consider, e.g., Cohen, supra note 5, at 822 (“[T]he term ‘functional approach’ is sometimes
used to designate a modern form of animism, according to which every social institution or biological
organ has a ‘purpose’ in life, and is to be judged good or bad as it achieves or fails to achieve this
‘purpose.’”).
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described above. Judges use standards (consistency, clarity, predictability)
as heuristics to legitimize their opinions; but if the function of heuristics is
to fill gaps (“gap-filling”) in the legal reasoning process, can these
justifications be considered rationally legitimate?
The phenomenon of “gap-filling” in legal reasoning reflects the limits
of the Rationalist theory of law. Gap-filling occurs when a judge is
presented with a series of facts that support two mutually exclusive rules.
Judges often cannot resolve these “hard cases” by appealing to principles
of clarity, predictability, and consistency. In novel situations, the
appropriate legal rules are not clear, and the lack of precedent makes any
legal conclusion in the case difficult to predict and apply. Judges therefore
use heuristics to fill the gap between the rules.47
What is clear is that the
rules alone cannot resolve the dispute in these hard cases. So in practice,
the judge is using legal tools to make his or her conclusion appear legally
valid.48
The result is that a rule or a rule-like principle appears to be
invented.
For Ronald Dworkin, the legal rules themselves necessitate certain
underlying principles and policies that ultimately direct the judge’s
decision in the case. Under Dworkin’s “best constructive interpretation”
theory, judges first decide cases by determining which principles best fit,
or make sense of, the institutional history of the legal system and then,
second, decide the case by selecting the principles that best reflect that
institutional history “from the standpoint of political morality.”49
In other
words, legal rules only become meaningful after a judge has made a
decision that comports with good policy. Those rules then become defined
in the form of an opinion that justifies these rules as serving an
instrumental role in arriving at a particular legal conclusion.
What is necessary is an approach that allows for the “redefining [of]
concepts and problems in terms of verifiable realities. . . .”50
Indeed, “[o]ur
47. RONALD DWORKIN, TAKING RIGHTS SERIOUSLY (1977); Cf. Oliver Wendell Holmes, The
Path of the Law, 10 HARV. L. REV. 457, 461 (1897) (“The prophecies of what the courts will do in
fact, and nothing more pretentious, are what I mean by the law.”).
48. SCHLAG, supra note 43, at 31–35. Cf. KENT GREENAWALT, STATUTORY AND COMMON LAW
INTERPRETATION 43 (2013) (“‘The hard truth of the matter is that American courts have no
intelligible, generally accepted, and consistently applied theory of statutory interpretation,’ remains
true for our federal courts.”) (quoting ALBERT M. SACKS & HENRY M. HART, JR., THE LEGAL
PROCESS 1169 (William N. Eskridge, Jr. & Philip Frickey eds., 1994); Karl Llewellyn, Remarks on the
Theory of Appellate Decision and the Rules or Canons about How Statutes are to be Construed, 3
VAND. L. REV. 395, 396 (1950) (Judges create the illusion of rational decision making when choosing
among conflicting interpretations).
49. DWORKIN,supra note 3, at 256.
50. Cohen, supra note 5, at 822.
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legal system is filled with supernatural concepts, that is to say, concepts
which cannot be defined in terms of experience, and from which all sorts
of empirical decisions are supposed to flow.”51
The confusion about rationality in the law is responsible for the
confusions in the rule of law as a theory. If we are to look at the best
candidate for understanding the rationality of individuals making
decisions, that locus is not legal theory but social science, particularly the
science of the brain.52
While legal theory gives rationality an emotive
function (whether explicitly or implicitly), neuroscience views rationality
as a mere description of how the brain works. If it turns out that human
reasoning involves logical, emotional, analytic, and sensory processes,
inclusive, then a complete account of the rationality of legal reasoning
yields a definition of rationality in stark distinction from the traditional
conception of rationality that our legal tradition has inherited from the
Enlightenment.
B. Functionalism
Functionalism’s commitment to a theory of legitimacy is informed by
the key neuroscientific finding that the rationalist bifurcation of “reason”
and “emotion” is untenable.53
By recognizing that actual decision-making
involves processes categorically deemed to originate in both “reason” and
“emotion,” functionalism suggests that rationality in legal decisions is the
product of legitimate judicial decisions—ones that recognize the role
underlying emotional considerations play in human reasoning. On a more
formal level, the approach to legitimacy rationalizes the legal process by
recognizing (and avoiding) bias, particularly those biases informed by the
reasoning model that bifurcated reason and emotion.
In the history of political thought, the focus on legitimacy was an
artifact of Enlightenment thinking concerned with the non-arbitrariness of
legal authority. Positivism represents Enlightenment rationalism for law:
what is rational or reason-based guarantees against non-arbitrariness and
therefore suffices for political legitimacy. While legal positivists tended to
focus on the “rationality” or reasoning of judicial decisions, they aimed to
produce a scientific account of law—the results of which were both non-
51. Id. at 823.
52. ANTONIO R. DAMASIO, DESCARTES’ ERROR: EMOTION, REASON, AND THE HUMAN BRAIN
34–37, 41–45 (Quill 2000) (1994).
53. Contemporary legal theorists distinguish between social and moral facts. See, e.g., SCOTT J.
SHAPIRO, LEGALITY 275 (2011). The neurosciences suggest that these sorts of bifurcations are not
only meaningless but lead to potentially erroneous decisions.
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scientific and irrational. The cognitive and neurological sciences, as a
principle of decision-making, suggest that good decisions are the result of
both “reason” and “emotion,” which involves minimizing bias,
supplanting information, and recognizing error. Functionalism is thus a
marked improvement from current theories of legal decision-making.
The judiciary is biased by rule-based reasoning and the foundations of
rationalism. If the rule of law is aimed at ensuring fair play and substantial
justice and if rule-based reasoning cannot fully ensure this goal nor
account for bias, then a more muscular theory of law would be one that
can account for those heuristic biases. Contemporary legal scholars have
recognized the “large and growing body of scholarship [which] exhibits a
willingness to modify the rationality assumption by using cognitive
science, behavioral psychology, and experimental economics.”54
That is
perhaps what neuroscience offers to the law as a foundational matter—it
can provide evidence of preferences or biases that affect judicial
reasoning, but it is up to the jurists to announce whether those biases
should be eschewed from judicial calculation or somehow accounted for.
Yet, as scholars working at the juncture of law, neuroscience, and
economics have observed, the model of rationality inherited from the
rationalist conception of the rule of law is flawed. “[T]he assumptions that
humans always follow their rational self-interest or that preferences can
necessarily be stated in a coherent way are incorrect, and therefore the
conclusions that follow from them are questionable.”55
Indeed, the rule of
law virtues—neutrality; generality; clarity; publicity; prospectiveness;
certainty; consistency; forward-lookingness; non-arbitrariness; fairness;
finality; efficiency; predictability; constancy; stability; intelligibility;
clear-statement rules; non-retroactivity; judicial deference; and judicial
discretion—which judges depend upon for the legitimacy of their
reasoning—are precisely those assumed premises that have yielded
questionable conclusions.
54. John N. Drobak & Douglass C. North, Understanding Judicial Decision-Making: The
Importance of Constraints on Non-Rational Deliberations, 26 WASH. U. J.L. & POL’Y 131 (2008). See
Thomas J. Miles & Cass R. Sunstein, The New Legal Realism, 75 U. CHI. L. REV. 831, 834 (2008)
(“We believe that much of the emerging empirical work on judicial behavior is best understood as a
new generation of legal realism.”).
55. Kevin McCabe, Vernon Smith & Terrence Chorvat, Lessons from Neuroeconomics for the
Law, in THE LAW AND ECONOMICS OF IRRATIONAL BEHAVIOR 68 (Francesco Parisi & Vernon L.
Smith eds., 2005).
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The fact that the rule-based reasoning aspect of the Rationalist theory
breaks down in hard cases proves important to legal theory.56
For legal
theorists, “[t]he law functions not only to resolve typical cases but also to
extend existing concepts and categories to new facts.”57
Moreover, it is
these hard cases which best exemplify the inutility of these rule-of-law
virtues, that is, the “metaphysics” or “transcendental nonsense” of
jurisprudence itself. Or, as Felix Cohen has argued:
Valuable as is the language of transcendental nonsense for many
practical legal purposes, it is entirely useless when we come to
study, describe, predict, and criticize legal phenomena. And
although judges and lawyers need not be legal scientists, it is of
some practical importance that they should recognize that the
traditional language of argument and opinion neither explains nor
justifies court decisions.58
Cohen critiqued those legal concepts which informed legal theory yet
which could not be defined through experience.59
For Cohen,
jurisprudence’s tendency to rely on theoretical, non-empirical concepts
distracts judges from being realists about legal decision-making (i.e.,
viewing their decisions as based on social policy, economics, and other
extralegal considerations).60
The “mechanical jurisprudence” Cohen
attacked represents the system of rule-based legal reasoning upheld by
legal rationalists.
Critics of legal formalism believe that the rationalist position relies
upon a certain metaphysical picture that presents law as rationalistic when,
in reality, jurisprudence is really an exercise in social policy.61
The
challenge is whether the claim that “law is about social policy” is
necessarily inconsistent with the proposition that “the rule of law depends
upon a rational theory of law.” It may be the case that judges making
decisions on the basis of social policy is a rational approach to law once
the judiciary accepts the functional argument as a theory of rationality and
debiases itself from Legal Rationalism.
Functionalism redefines the limits of rationality. It does not merely
substitute the empirical for the rational. Recent work in neuroscience
56. Jens David Ohlin, Is the Concept of the Person Necessary for Human Rights?, 105 COLUM.
L. REV. 209, 230 (2005).
57. Id.
58. Cohen, supra note 5, at 812.
59. Id. at 823.
60. Id. at 842.
61. Id. at 812.
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reveals that emotions are central to human rationality.62
This research
suggests that rationality in decision-making and emotion are
complementary.63
In fact, emotions have been shown to be crucial for the
facilitation of cost-benefit analysis reasoning in decision-making.64
At the
same time, understanding the neuroscience behind decision-making helps
point to biases, both heuristic and physiological, that influence (or impair)
decision-making. Neuroscience reveals that emotion is the “first response”
in that we exhibit emotional reactions to objects and events far more
readily than we can articulate what those objects and events are or mean.65
Strong stimuli to the amygdala inhibit activity in the prefrontal cortex, the
region of the brain associated with logical deliberations and reasoning
ability, which suggests that extreme emotional reactions can “shortcircuit”
rational deliberation.66
Andrew Lo argues that the sorts of
“threats” identified by the amygdala are not actually life-threatening: even
if “our physiological reactions may still be the same[,] . . . the suppression
of our prefrontal cortex may be unnecessary and possibly
counterproductive . . . .”67
Once we disabuse ourselves of the commitment to a normative theory
of rationality and instead realize that rationality is merely a description of
how the brain, or the human organism, or the body politic, works, then we
can stop trying to determine what makes law rational.
If rationality is a question of “working well,” then law is rational if it is
able to account for the empirical data at issue in a dispute or for any other
material facts relevant to the judge’s ability to make a legitimate decision.
If legal disputes could be reduced to the black letter law, all disputes
would end at the summary judgment stage: the judge would be entitled
62. See, e.g., DAMASIO, supra note 52. See also Edmund T. Rolls, A Theory of Emotion, and Its
Application to Understanding the Neural Basis of Emotion, 4 COGNITION & EMOTION, no. 3, 1990, at
161; Edmund T. Rolls, Neurophysiology and Functions of the Primate Amygdala, in THE AMYGDALA:
NEUROBIOLOGICAL ASPECTS OF EMOTION, MEMORY, AND MENTAL DYSFUNCTION 143 (John P.
Aggleton ed., 1992); Edmund T. Rolls, A Theory of Emotion and Consciousness, and Its Application
to Understanding the Neural Basis of Emotion, in THE COGNITIVE NEUROSCIENCES 1091 (M.
Gazzaniga ed., 1995).
63. Stephen Grossberg & William E. Gutowski, Neural Dynamics of Decision Making Under
Risk: Affective Balance and Cognitive-Emotional Interactions, 94 PSYCHOL. REV. no. 3, 1987, at 300.
64. EDMUND T. ROLLS, THE BRAIN AND EMOTION ch. 10.3 (1999).
65. See GAVIN DE BECKER, THE GIFT OF FEAR: SURVIVAL SIGNALS THAT PROTECT US FROM
VIOLENCE (1997); R. B. Zajonc, Feeling and Thinking: Preferences Need No Inferences, 35 AM.
PSYCHOL., no. 2, 1980, at 151; R. B. Zajonc, On the Primacy of Affect, 39 AM. PSYCHOL., no. 2, 1984,
at 117.
66. ROY F. BAUMEISTER ET AL., LOSING CONTROL: HOW AND WHY PEOPLE FAIL AT SELFREGULATION
(1994).
67. Andrew W. Lo, Fear, Greed, and Financial Crises: A Cognitive Neurosciences Perspective,
in HANDBOOK ON SYSTEMIC RISK 622, 642 (Jean-Pierre Foque & Joseph A. Langsam eds., 2013).
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only to evaluate material issues of fact and render judgments based on
those facts, as a matter of law. Appeals would not be necessary because
they would suggest that the law is unclear or that a trial judge misapplied
the law, which would be impossible if the law was clear and propositionlike.
And yet judges are engaged in deciding what the law is, which entails
that the question, “What is the law?” is not clear, a priori. The rationality
of law, then, derives from the legitimacy of the reasoning and analysis, not
some formulaic ordering of black-letter rules.
Findings in cognitive neuroscience can help judges recognize bias
within their decision-making process. Some might interpret the results of
functionalism as implying judicial conservatism by recognizing that
certain external preferences might bias decision-making, and, therefore,
that recognition of bias encourages judicial deference to strict propositionbased
reasoning; however, on the contrary, some might interpret
functionalism as suggesting an engaged decision-making process which
looks at propositional thinking as overly biased in ways that ignore
relevant experiential factors that may increase precision and accuracy in
the decision-making process. Whether the option is to overcome bias or
merely determine which biases are relevant or useful, functionalism
provides unique conceptual tools for judicial decision-making and sets the
foundation for theorizing about jurisprudence.
This is not to say that jurisprudence becomes merely one branch of
neuroscience or that law is reducible to cognitive neuroscience.
Functionalism merely probes the relationship between the nature of human
reasoning and the structure of law—the goal of jurisprudence and legal
philosophy. No one is likely to disagree that cognitive neuroscience
reveals deep insights about the nature of reasoning. And this has
implications for the nature of legal reasoning. Legal Rationalism, inclusive
of positivism and formalism, purportedly focuses on the rationality of
legal decision-making with the end-goal of ensuring a legitimate, nonarbitrary,
and deferential system of jurisprudence. But, as has been shown
above, the backdrop of rationality and the system of rule-based reasoning
are deeply confused. Functionalism, if anything, seeks to minimize the
obvious errors involved in rationalistic legal reasoning. As a practical
matter, because functionalism is concerned with the validity of the
reasoning process, it promotes a jurisprudence focused on legitimacy, with
the end goal of ensuring the rationality of the decision-making process.
Neurocognitive insights into decision-making are of practical help to
judges. By approaching legal questions from the background of
neuroscientific insight into the tacit bases for judicial preferences that
influence decisions, judges can be more attuned to their own reasoning
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process. Functionalism means that an ideal theory of law must be able to
either account for or constrain these preferences. Formalists might find the
idea of constraining tacit judicial preferences appealing as a form of
judicial restraint; critical theorists might find the idea of jurisprudence
accounting for the universe of preferences attractive as a form of judicial
openness or integrity; yet, whichever judicial ideology one finds attractive,
both views would be uninformed without recognizing the relevance of
cognitive neuroscience. A judge who focuses on legitimacy would ask him
or herself whether there are background influences involved in his or her
decision-making process and would seek to articulate why—or why not—
those influences are important for a valid decision. This kind of selfreflectiveness,
I would argue, rather than a strict concern for formulaic or
canonized jurisprudential structure, is actually necessary for rational legal
thought. The heuristic bias towards rationalism is itself non-rational.
Functionalism provides a more workable theory of law and provides a
stronger foundation for debates about judicial discretion.
Evaluating how judges decide cases is not a question of formal rules,
but of cognitive legitimacy. The social-political event of judging, when
legitimate, effectively rationalizes the legal process itself. Instead of
conceiving of the rule of law in terms of an antediluvian notion of
rationality, one that makes judges susceptible to the heuristic bias that
rule-based reasoning is accurate, complete, or, most importantly, nonarbitrary,
a better jurisprudential bias is one where judges concern
themselves with the apparent legitimacy of their reasoning and decisionmaking.
If judges were to concern themselves with empirical validity,
judicial determinations would be better, more accurate, and less arbitrary.
In other words, they would be more legitimate and rational.
Functionalism does not need to make the realist move (i.e., to use fMRI
studies to determine how judicial brains work). Neuroscience and
cognitive psychology best contribute to jurisprudence in revealing facts
about human behavior and human decision-making that help judges
minimize bias in their reasoning. While the concern of Enlightenment
liberalism was fighting political arbitrariness and elevating reason in
society, the concern of functionalism is fighting heuristic bias in the law.
The end of functionalism is ultimately one shared by liberalism: political
legitimacy and the promotion of rationality in law.
Functionalism theorizes about neuroscience in terms of social events,
and judicial events in particular. Functionalism advocates a judicial
approach that recognizes the potential for error in legal reasoning and
humbly seeks to reduce error by recognizing the value of empirical
research. So long as there are reasons to accept that judge-made law ought
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be a rational, as opposed to arbitrary, process, and so long as there are
legitimate reasons to believe that legal formalism may subject judges to err
in their decisionmaking, then a jurisprudence of functionalism should help
to redefine how we understand the law as a rational process.68
Functionalism is a special theory of judicial outcomes, as opposed to
legislative determinations. The legislative process, while incorporating
legal analysis, is chiefly not concerned with the reasoning process of
legislators as much as the bargaining process amongst interested parties.
Legislative error is corrected by the people who elect legislators. Judicial
error must be corrected by judges; as a practical matter, when legislative
bodies overturn judicial decisions, it is less because of the errors in
reasoning or judgment about what the law is so much as the perceived
error in judgment of what the law should be given a certain political
preference or context.
Just as Plato sought to define “justice” by assessing the activities of a
just state,69
and Aristotle conceived of the soul as the way a living body
behaves,70
functionalism’s skepticism towards rule-based reasoning helps
to redefine legal rationality as the phenomenon of legitimate judicial
decision-making. Felix Cohen recognized that creative legal thought looks
“behind the pretty array of ‘correct’ cases to the actual facts of judicial
behavior” and makes “increasing use of statistical methods in the scientific
description and prediction of judicial behavior.”71
The received theory of the rule of law suggests that the rational judge
obfuscates social policy via technical rules. While realism sought to place
social policy as the foundation “that gives weight to any rule or
precedent,”72
functionalism suggests that it would be an error for judges to
a priori reject social policy foundations to legal outcomes as irrational,
“activist,” or an abuse of discretion.
Evaluating how judges decide cases is not a question of formal rules,
but of social science. The social act of resolving a dispute, if a normatively
and empirically legitimate assessment of the relevant information before
68. 5 CHARLES SANDERS PEIRCE, COLLECTED PAPERS OF CHARLES SANDERS PEIRCE 1, 6
(Charles Hartshorne & Paul Weiss eds., 1934) (“In order to ascertain the meaning of an intellectual
conception one should consider what practical consequences might conceivably result by necessity
from the truth of that conception; and the sum of these consequences will constitute the entire meaning
of the conception.”).
69. PLATO, THE REPUBLIC OF PLATO (Allan Bloom ed. & trans., 2d ed. 1968).
70. 3 ARISTOTLE, De Anima, in THE WORKS OF ARISTOTLE 402 (W.D. Ross & J.A. Smith eds.,
1931).
71. Cohen, supra note 5, at 833.
72. Id. at 834.
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2014] RATIONALITY, LEGITIMACY, & THE LAW 27
the court, guarantees the rationality of the legal process. Instead of
conceiving of the rule of law in terms of Rationality (rule-based reasoning)
guaranteeing Legitimacy (non-arbitrariness), it appears that a better theory
of law is one of functionalism—that is, where Legitimacy (examining all
relevant information) guarantees Rationality (optimal decisions).
Functionalism theorizes about neuroscience in terms of social events, and
judicial events in particular. The study of neuroscience as a social science
leads to better predictability for assessing adjudication than does the
rationalistic approach of rule-based reasoning.
John Drobak and Douglass North acknowledge the rationalism of
contemporary legal reasoning, claiming, “[t]he dominant model of judicial
decision-making is an outgrowth of rational choice theory: the judge is a
rational actor who reasons logically from facts, previous decisions,
statutes, and constitutions to reach a decision.”73
And yet Drobak and
North explain that “[e]veryone knows, however, that this model explains
only part of the process.”74
While legal realism and its progeny critiqued rule-based reasoning for
“failing to include non-doctrinal factors that affect the outcome of
cases[,]”75
this response well recognizes the symptoms of rule-based
reasoning without diagnosing the pathology. Drobak and North recognize
the underlying heuristic biases involved in judicial decision-making,
ultimately supporting a functional approach: “[i]n order to understand
fully how judges decide cases, we need to understand how the mind
works.”76
Ultimately, debiasing legal reasoning and broadening legal reasoning
to account for a fuller picture of experience suggests that “[w]e need to
know how judges perceive the issues involved in lawsuits, how they see
competing priorities and available choices, and how they make their
decisions.”77
One of the key problems with propositional accounts of legal decisionmaking
is the question of discretion. While judicial discretion is often
justified on the basis of definitive rules and principles, “the non-doctrinal
factors that make up discretion are an invisible part of judicial decisionmaking
that cannot be explained with any precision . . . .”78
Ultimately
73. Drobak & North, supra note 54, at 131.
74. Id.
75. Id. at 132.
76. Id.
77. Id.
78. Id. at 134.
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28 WASHINGTON UNIVERSITY JURISPRUDENCE REVIEW [VOL. 7:1
Drobak and North argue that “we cannot understand all the hidden factors
that influence judicial outcomes.”79
A contemporary legal realist cannot ignore the science of the brain.
This realist turn in legal theory, that is to say, the attempt to justify
jurisprudence empirically, is deeply pragmatic, for the meaning of law
becomes derived from the description of its processes: “[i]n order to
ascertain the meaning of an intellectual conception one should consider
what practical consequences might conceivably result by necessity from
the truth of that conception; and the sum of these consequences will
constitute the entire meaning of the conception.”80
Functionalism, as a
jurisprudential method, demands the debiasing of the judiciary from rules
and principles that eschew empirical research from meaningful
incorporation into the legal reasoning process.
One might wonder why functionalism is a distinctly jurisprudential,
versus, say, legislative approach to decisionmaking. Or, one might suggest
that the formalism of jurisprudence works to preserve the coordination
between the different branches and that empirical evaluation and
pragmatic considerations are better suited for the legislative branch or
administrative agencies, but only the judiciary is intrinsically concerned
with legal reasoning. Legislation is the result of accumulated political
interests, and administrative rules serve a regulatory purpose within a
field—these laws are not governed by any particular type of legal
reasoning and are designed to serve either niche public policy concerns or
constitutional interests under the spending, commerce, and general welfare
clauses. The Constitution specifies that Article III lawmakers are resolving
disputes between parties, in the form of an actual case or controversy.
How these disputes are resolved have public policy consequences and
rational, predictable, and pragmatic resolutions of these disputes are
necessary to the United States’ constitutional preservation.
Functionalism’s rejection of the canon of rule-based reasoning seeks to
redefine legal rationality as the phenomenon of legitimate judicial
decision-making. Felix Cohen recognized that creative legal thought looks
“behind the pretty array of ‘correct’ cases to the actual facts of judicial
behavior” and makes “increasing use of statistical methods in the scientific
description and prediction of judicial behavior.”81
The received theory of
the rule of law suggests that the rational judge obfuscates social policy via
technical rules. Functionalism instead places social policy as the
79. Id. at 135.
80. C.S. PEIRCE, supra note 68, at 6.
81. Cohen, supra note 5, at 833.
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foundation “that gives weight to any rule or precedent.”82
And
neuroscience, with its ability to explain the phenomenon of human
decision-making, can prove useful in determining whether placing social
policy within the foundations of law is, in fact, a rational approach to
judging. Functionalism offers more than just the creative destruction of
dusty canons and ratiocinated modes of thinking. It offers a chance for law
to be truly rational and truth-tracking, which was the project of
Enlightenment liberalism from the start.
V. HEURISTIC BIAS AND ADMINISTRATIVE LAW
As cognitive neuroscience is a relatively new field, especially as its
insights apply to law, functionalism, at best, can do little substantive work
in legal reform. However, what it does do is allow us to admit that
heuristic biases exist in the legal decision-making process. And it suggests
that an experientially-informed approach, one that rejects the rationalistic
fantasy of bifurcating objective reason and subjective emotion, is best
suited to preserving the liberal understanding of the rule of law. That is to
say, recognizing heuristic biases and debiasing judicial reasoning via
evidentiary openness is crucial to jurisprudential legitimacy—the
touchstone of the rule of law. And it is exercising a jurisprudence of
legitimacy that ultimately ensures the legal process is rational.
A hallmark of administrative law is the Administrative Procedure Act
(APA),83
which usually requires that the public be placed on notice of a
proposed administrative rule, as well as be given the opportunity to
comment on the proposed rule (“notice and comment”). The legislative
justification for the notice and comment provision is to ensure basic due
process protections and fairness in the rulemaking process, especially
when, as opposed to legislative rules, administrative rules are derived from
federal agency employees who are not elected, and therefore not directly
accountable to the people.
Functionalism is particularly relevant in administrative law matters
where courts tend to defer to the administrative expertise of federal
agencies. Federal agencies generally act by engaging in informal
rulemaking or adjudications.84
But consider the empirical evidence
82. Id. at 834.
83. 5 U.S.C. §§ 500–706 (2013); see also W. Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d
1116, 1123 (9th Cir. 2009).
84. Compare Bi-Metallic Inv. Co. v. State Bd. of Equalization of Colo., 239 U.S. 441 (1915)
(discussing general rulemaking standards) with Londoner v. City and County of Denver, 210 U.S. 373
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30 WASHINGTON UNIVERSITY JURISPRUDENCE REVIEW [VOL. 7:1
showing discretionary decisions in federal agencies, including those about
spending, are susceptible to capture by the political interests of Congress
and especially the President.85
Politicized spending would appear to raise a
problem of democratic legitimacy. Agency discretionary spending
decisions have been reviewed, if at all, as informal adjudications,86
yet our
system of administrative law provides limited remedies for challenging the
discretion-based decisions of the government. Neither the courts nor
Congress have articulated a remedial scheme for recognizing an injury that
results from political or other biases that influence spending decisions
committed to agency discretion.
The APA allows aggrieved parties to seek judicial review of final
“agency action” so long as review is not precluded by another statute or
“committed to agency discretion by law.”87
Such decisions are
unreviewable when courts lack “meaningful standard[s] against which to
judge the agency’s exercise of discretion.”88
However, courts will
invalidate actions that are arbitrary, capricious, or an abuse of discretion;
contrary to a constitutional right; or in excess of statutory jurisdiction or
authority.89
Courts have established that political interference in the
discretionary decision-making process does run afoul of the APA’s
standards.90
(1908) (discussing general adjudicatory standards); see also ANDREW F. POPPER ET AL.,
ADMINISTRATIVE LAW: A CONTEMPORARY APPROACH 25–31 (2d ed. 2010).
85. Sanford C. Gordon, Politicizing Agency Spending Authority: Lessons from a Bush-Era
Scandal, 105 AM. POL. SCI. R. 717–34 (2011).
86. See A GUIDE TO FEDERAL AGENCY ADJUDICATION § 9.02, at 146 (Michael Asimow ed.,
2003) (stating decisions regarding “grants, benefits, loans, and subsidies” are informal adjudications).
87. 5 U.S.C. § 551(13); 5 U.S.C. § 701(a). The Supreme Court has held that a decision is
committed to agency discretion when “there is no law to apply,” Citizens to Preserve Overton Park,
Inc. v. Volpe, 401 U.S. 402, 410 (1971) (quoting S. Rep. No. 79-752, at 26 (1945)).
88. Heckler v. Chaney, 470 U.S. 821, 830 (1985).
89. 5 U.S.C. § 706(2). The Supreme Court gave more definition to this test in Motor Vehicles
Mfrs. Ass’n of U.S. Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983):
[T]he agency must examine the relevant data and articulate a satisfactory explanation for its
action including a “rational connection between the facts found and the choice made.” . . .
Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors
which Congress has not intended it to consider, entirely failed to consider an important aspect
of the problem, offered an explanation for its decision that runs counter to the evidence before
the agency, or is so implausible that it could not be ascribed to a difference in view or the
product of agency expertise.
90. In D.C. Federation of Civic Ass’ns v. Volpe, the D.C. Circuit Court of Appeals found that the
Secretary of Transportation moved a bridge project forward too quickly because of undue pressure
from a member of Congress. 459 F.2d 1231 (D.C. Cir. 1972). The court refused to allow the action to
stand “because extraneous pressure intruded into the calculus of considerations on which the
Secretary’s decision was based.” Id. at 1246.
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But the remedies for political interference in discretionary spending
decisions are limited.91
Reviewing courts will remand to the agencies and
instruct them to make new determinations limited to the merits and with
regard to only those considerations made relevant by Congress.92
This
approach recognizes that not all political contacts with a decision maker
per se taint the final decision. In determining whether political pressure
overwhelmed an agency’s process, the D.C. Circuit has established a
bright-line standard instructing agencies to establish a “full-scale
administrative record,” such that if a decision is challenged, the agency
can rely on the record to support its decision.93
Under this standard,
reviewing courts will provide the agency an opportunity to cure its
politically tainted decision. Remand, “rather than a reinstatement of the
untainted decisions, is the proper remedy” because, in these cases, courts
cannot predict how a decision would have been properly decided on the
merits, and there is no reason to think that on remand the taint would
necessarily occur again.94
A legal rationalist might approach the issues of politicized spending as
ones where a certain amount of politicization involved in agency decisionmaking
ought to be accorded deference, thus eschewing the notion that
politicized decision making is somehow arbitrary. In fact, several scholars
and legal commenters have found the federal courts’ consideration of
political influence in an arbitrary-and-capricious analysis to be
unwarranted.95
These scholars have instead advocated that reviewing
91. See Daniel Z. Epstein, Redressing Politicized Spending, 15 ENGAGE, no. 1, Feb. 2014, at 4,
available at https://www.fed-soc.org/publications/detail/redressing-politicized-spending.
92. See id. Compare Portland Audubon Soc. v. Endangered Species Comm., 984 F.2d 1534,
1546 (9th Cir. 1993) (where the Ninth Circuit held that political interference in a formal adjudication
violated the APA) with ATX, Inc. v. U.S. Dep’t of Transp., 41 F.3d 1522, 1527 (D.C. Cir. 1994)
(where the D.C. Circuit found political pressure did influence the decision maker but instead focused
not on the content of the political pressure but on “the nexus between the pressure and the actual
decision maker.”).
93. Aera Energy LLC v. Salazar, 642 F.3d 212, 221 (D.C. Cir. 2011). In Aera Energy LLC, the
D.C. Circuit upheld a regional director’s politicized decision to exclude certain oil deposits from a
leasing scheme because the director admitted that if there was no political influence then he would
have included the deposits based on criteria not in the statute. The court reasoned that when politics
infects a decision, the remedy is not to simply provide the plaintiff with the opposite decision, but
instead to remand the decision to an unbiased appeals board or administrative law judge. Id. at 212.
94. Id. at 220 (internal brackets and quotation marks omitted) (citing Koniag, Inc., Uyak v.
Andrus, 580 F.2d 601, 611 (D.C. Cir. 1978)).
95. See Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2380 (2001) (“A
revised doctrine would acknowledge and, indeed, promote an alternative vision centered on the
political leadership and accountability provided by the President. This approach, similar to the one I
have considered in discussing the Chevron doctrine, would relax the rigors of hard look review when
demonstrable evidence shows that the President has taken an active role in, and by so doing has
accepted responsibility for, the administrative decision in question.”).
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courts defer to agency decision-making when presidential influence is
involved.96
These scholarly approaches—unlike the courts’ approach to
insulate decision makers from political pressure—embrace the inherent
political nature of the executive branch’s discretionary decisions, under a
policy rationale that the President, like Congress, is accountable in ways
courts are not.97
Indeed, the APA sets forth a general principle that courts,
when reviewing agency decisions, should defer to the agency given its
expertise.98
Section 10(e) of the APA allows reviewing courts to set aside
only agency action that is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.”99
These sections of the APA have
been interpreted by courts in the form of a rule articulated by the Supreme
Court in Chevron USA, Inc. v. Natural Resource Defense Council
(“Chevron”).100
Chevron established the doctrinal rule explained as a
“test” for reviewing administrative determinations. Under the Chevron
test, step one, courts review questions of statutory interpretation de novo
by applying “traditional tools of statutory construction.”101
Statutory
interpretation involves certain rules, described as canons of construction.
Courts begin with the “plain language” meaning of a statute, but can then
apply canons of construction involving the examination of the “structure,
purpose, and legislative history” behind the law.102
If the statute is clear,
the agency’s construction is not entitled to deference; the Court’s sole task
96. Id.; see also Richard H. Pildes & Cass R. Sunstein, Reinventing the Regulatory State, 62 U.
CHI. L. REV. 1 (1995); Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94
COLUM. L. REV. 1 (1994); Peter L. Strauss & Cass R. Sunstein, The Role of the President and OMB in
Informal Rulemaking, 38 ADMIN. L. REV. 181 (1986). Similarly, Yale Law Professor Kathryn Watts
urged the courts to consider “the content and the form of the political influence” and engage in line
drawing “between permissible and impermissible political influences” because “not all political
influences should be treated as equal.” Kathryn A. Watts, Proposing a Place for Politics in Arbitrary
and Capricious Review, 119 YALE L.J. 2, 83 (2009); see also Nina A. Mendelson, Disclosing
“Political” Oversight of Agency Decision Making, 108 Mich L. Rev. 1127 (2010). Watts advised
courts to distinguish between “valid ‘political’ factors . . . [such as] political actors that speak to policy
judgments or value-laden judgments [and less-valid] raw partisan politics . . . .” Watts, supra, at 83.
97. Chevron USA, Inc. v. Natural Resource Defense Council, 467 U.S. 837, 865–66 (1984)
(“While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely
appropriate for this political branch of the Government to make such policy choices—resolving the
competing interests which Congress itself either inadvertently did not resolve, or intentionally left to
be resolved by the agency charged with the administration of the statute in light of everyday
realities.”).
98. Pillai v. Civil Aeronautics Bd., 485 F.2d 1018, 1027 (D.C. Cir. 1973). See Robert L. Rabin,
Federal Regulation in Historical Perspective, 38 STAN. L. REV. 1189, 1197–1208 (1986).
99. 5 U.S.C. § 706(2)(A) (2012).
100. Chevron, 467 U.S. at 837.
101. Id. at 843 n.9.
102. Nat’l Cable & Telecomms. Ass’n v. FCC, 567 F.3d 659, 663–64 (D.C. Cir. 2009).
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is to enforce the statutory language “according to its terms.”103
Under
Chevron step two, if, after exhausting traditional tools of statutory
interpretation, the court concludes that a statute is ambiguous, then the
Court will defer to the agency’s interpretation of the statute so long as that
determination is reasonable.104
But even when an agency’s interpretation
of a statute satisfies Chevron, a court must reject that interpretation if it is
otherwise arbitrary and capricious.105
The arbitrary-and-capricious
standard requires that an agency’s decision be reasonable and reasonably
explained.106
However, the scholarly approaches identified above are unlikely to
persuade courts that have held that agency authority to act comes only
from Congress.107
In fact, the Supreme Court has recently held that a
decision is “arbitrary and capricious if the agency has relied on factors
which Congress has not intended it to consider . . . .”108
The federal courts
are likely to hold that if Congress wanted presidents and other executive
branch officials to incorporate political motivations into their decisionmaking
process, Congress would have included intelligible criteria in its
authorizing statutes.
A legal rationalist can rather fluidly apply Chevron in a case of
politicized decision making because such agency’s interpretation of its
own rules is likely to be reasonable and reasonably explained. In other
words, judicial deference is given to a discretionary fiction of the
administrative agency—an interpretation by an unelected political
appointee receives deference so long as an unelected reviewing judge
believes the interpretation is itself “reasonable.”109
That legal rationalism
can legitimate the illegitimate (politicized decision making) strikes at the
heart of both the rule of law and the notion of judicial rationality.
What is typically not used in the opinion-based justifications of judicial
decision-making is the empirical public policy data that supports certain
legal conclusions. “Research from the Congressional Research Service
(CRS) suggests that the President will use agency budget requests to
103. Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 126 S. Ct. 2455, 2459 (2006).
104. Nat’l Cable & Telecomms. Ass’n, 567 F.3d at 663.
105. Int’l Union v. MSHA, 626 F.3d 84, 90 (D.C. Cir. 2010) (citing Chevron, 467 U.S. at 842–
44).
106. Mobil Pipe Line Co. v. FERC, 676 F.3d 1098, 1102 (D.C. Cir. 2012).
107. Am. Library Ass’n v. FCC, 406 F.3d 689, 691 (D.C. Cir. 2005) (“It is axiomatic that
administrative agencies may . . . [act] only pursuant to authority delegated to them by Congress.”).
108. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
109. Jerome Frank describes such decision making as follows: “[The judge’s decision] is, in every
sense of the word, ex post facto.” JEROME FRANK, LAW AND THE MODERN MIND 125 (Anchor Books
1963) (1930).
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34 WASHINGTON UNIVERSITY JURISPRUDENCE REVIEW [VOL. 7:1
influence agency-based discretionary spending in order to reward
members of Congress for their votes on a presidential priority.”110
Thenchairwoman
of the powerful House Appropriations Committee
Congresswoman Nita Lowey (D-NY) submitted a committee report that
stated that “[e]armarking or directed spending of Federal dollars does not
begin with Congress. It begins with the Executive Branch. . . . The
Administration determines these projects through a process that is the
functional equivalent of earmarking.”111
“That federal agencies make
spending and other discretionary decisions based on the political interests
of the President is well-established in the political science literature. John
Hudak, a fellow at the Brookings Institution, found that discretionary
authority over the allocation of federal dollars provides presidents with the
opportunity to engage in pork barrel politics, strategically allocating funds
to key constituencies at critical times.”112
Public policy data that can help
justify the legitimacy of legal conclusions is not law, but it is a rationally
appropriate way to provide explanation for decision-making that may
otherwise rely upon vague legal fictions.
As the issue of politicized spending shows, questions in administrative
law reach incommensurable tensions between what is “reasonable” or
what is appropriate “discretion”—tensions which surrender to further
biases (policy judgments, formalism, or analytic tests), rather than the
logical application of legal rules to relevant facts. Ultimately, rule-based
reasoning is not able to rationally certify what is “reasonable”—that is a
task for the wisdom of the judiciary. But, so long as that wisdom is
couched in a milieu of proposition-like erudition, it will be assumed to be
rational.
Functionalism, as a jurisprudential explanation, understands that
judges, in hard cases, seek to determine, “What is a legitimate
understanding of this case?” Functionalism explains that judges tend to
110. Epstein, supra note 91, at 5.
111. H.R. REP. NO. 110-197, at 3 (2007). See also CLINTON T. BRASS ET AL., CONG. RESEARCH
SERV., RL34648, BUSH ADMINISTRATION POLICY REGARDING CONGRESSIONALLY ORIGINATED
EARMARKS: AN OVERVIEW 4 n.13 (2008), http://fpc.state.gov/documents/organization/110375.
pdf (citing Chuck Conlon & David Clarke, “‘War’ on the Floor,” Cong. Qrtrly BudgetTracker, (June
12, 2007), available at http://www.cq.com/budgettracker.do (click “Obey’s Prepared Briefing
Material”)).
112. Epstein, supra note 91, at 5 (citing John P. Forrester, Public Choice Theory and Public
Budgeting: Implications for the Greedy Bureaucrat, in 6 RESEARCH IN PUB. ADMIN.: EVOLVING
THEORIES OF PUB. BUDGETING 101 (John Bartle ed., 2001); Christopher R. Berry et al., The
President and the Distribution of Federal Spending, 104 AM. POL. SCI. REV. 783 (2010); John
J. Hudak, The Politics of Federal Grants: Presidential Influence Over the Distribution of Federal
Funds 28 (Ctr. for the Study of Democratic Insts. Working Paper No. 01-2011, 2011), available at
http://www.vanderbilt.edu/csdi/research/CSDI-WP-01-2011.pdf.
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consult the evidence, both legal and extra-legal, that provides the best
explanation for an ultimate decision on the matter. It views legal materials
as conceptual tools which hold weight in the decision-making process. In
matters like the above, a judge would look at precedent and formulaic
criteria like interpretive canons and holdings from similar cases;
congressional intent and the agency’s expertise should be considered as
well. But a fundamental criterion of the judge’s decision-making will be
whether the agency’s decision-making was legitimate given the available
evidence. Judges tend to be conscious of the inability of legal rules to
resolve the tensions implicit in hard cases, and in order to avoid the biases
involved in analytic gap-filling, judges are drawn to consulting what rule
or principle can be legitimately justified. Determining legitimacy is not
making a judgment about whether an agency head was rational or
exercised proper discretion—our judiciary is often conscious of the biases
that enter this sort of calculus. Judges ultimately confront the public policy
arguments and tacit biases employed within the administrative process,
weighing them as evidence; in doing so, the judge recognizes his or her
own biases that defer to agency expertise, finding analogical reasoning to
similar cases appealing and viewing empirical research on the legal issue
as often irrelevant or merely persuasive authority. In exercising
functionalism, the judge will want to consider the available rules and
methods useful in resolving the above dispute; this judge will be less
concerned with ensuring the rationality of his or her decision, so much as
ensuring the legitimacy of that decision—both as a matter of consulting
the relevant materials which help provide validity to his conclusions, as
well as ensuring, as a cognitive matter, that the errors that arise when an
individual human determines what is “reasonable” are as minimal as
possible.
An important consideration for discretionary matters in administrative
law is the extent to which an agency “[is] vested with discretion”113
to
determine whether adverse comments may provide a reasonable basis for
withdrawing a rule. As such, the “agency must exercise that discretion in a
well-reasoned, consistent, and evenhanded manner.”114
The agency’s
113. Martin v. Wilks, 490 U.S. 755, 781 n.19 (1989) (Stevens, J., dissenting).
114. Portland Cement Ass’n v. EPA, 665 F.3d 177, 188 (D.C. Cir. 2011) (citation omitted).
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refusal to remove the political taint of a biased adjudication may suggest
“too closed a mind”115
and be inconsistent with sound public policy.116
Moreover, the judiciary will recognize the empirical research on the
question of deference to agency expertise, which suggests that judicial
review of agency decision-making is unstable, with reviewing courts often
deferring to agency expertise on grounds of political accountability.
Research has shown that:
[i]n assessing how much to defer to an agency’s decision, courts
perhaps should focus less on the procedures used by the agency (for
example, notice-and-comment rulemaking, informal adjudication,
guidance documents) and more on the type of agency, the agency’s
track record, the agency’s expertise, the level of presidential and
congressional control over the agency, and the timing of the
agency’s action.117
Judicial consideration of these non-rule-like factors, including which party
is in control of the White House and Congress, may track certain legally
relevant considerations that affect agency rulemaking (e.g., political
independence).118
By using this kind of evidence to debias the
decisionmaking process, one is making more legitimate, and therefore
rational, decisions. As one scholar has suggested,
[i]f an agency faces considerable oversight from Congress and the
White House, then perhaps courts should defer to that agency’s
reasonable decisions, no matter how they are reached (that is, with
or without particular procedures) and irrespective of whether the
agency possesses specialized expertise. . . . [i]f an agency receives
minimal political scrutiny but has extensive expertise, then perhaps
courts should also defer to that agency’s reasonable actions.
However, if an agency confronts little oversight from these actors
and does not possess special expertise, then courts should scrutinize
that agency’s decisions more carefully.119
115. McLouth Steel Prods. Corp. v. Thomas, 838 F.2d 1317, 1323 (D.C. Cir. 1988); see Grand
Canyon Air Tour Coal. v. FAA, 154 F.3d 455, 468 (D.C. Cir. 1998) (“the agency’s mind must be open
to considering” comments).
116. Anne Joseph O’Connell, Political Cycles of Rulemaking: An Empirical Portrait of the
Modern Administrative State, 94 VA. L. REV. 889, 980–81 (2008).
117. Id. at 980.
118. Id. at 980–81.
119. Id. at 981.
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VI. CONCLUSION
This Article argued that Legal Rationalism is an insufficient
explanation for judicial decisions because it fails to include relevant
information or modes of understanding. Legal decision-making as an
explanation of the application of law includes rule-based reasoning, social
and policy preferences, and empirical analysis. Both Legal Realism (social
sciences) and Functionalism (cognitive neuroscience) are necessary to
compensate for the insufficiency of Legal Rationalism in explaining
judicial decisions. Ultimately, functionalism does not give us a “right
answer” to jurisprudential matters, but it does better explain what makes a
judicial decision rational.
This Article supports a legitimacy-based approach to jurisprudence—
and that approach is controversial and refutable. Even assuming that the
approach were to gain general acceptance, an empirical question arises: if,
as a factual matter, judicial reasoning is not constrained by rules, then
what is to say that judges do not, in practice, resolve disputes by
determining which legal conclusion is most legitimate? In other words,
there may be no normative issue involved because judges may already be
applying a theory of legitimacy in their actual resolution of cases.
Functionalism, then, may be only a descriptive account of judicial
reasoning and the theory that judges do not act legitimately in resolving
disputes may be highly suspect as an empirical matter. Legal realism
suggested that if judges were not constrained by legal rules, then
something other than rules must guide their reasoning. Legal realists
argued that this other thing was policy, but what if this “something other”
was a more descriptive theory of legitimacy, which may or may not
involve policy arguments? It might be the case that judges are not deeply
biased, as functionalism suggests, but that instead they use reasonable
heuristics to resolve disputes, and those heuristics, in practice, may
involve an exercise of determining what is, in fact, the legitimate
approach. And are we not merely equivocating here between “rationality”
and “legitimacy”: perhaps judges tend to label as “rational” those
decisions that appear intuitively legitimate to them?
This Article, then, expressly advocates a specific theory of legitimacy,
one that suggests the possibility of normatively debiasing the judiciary.
This theory may be wrong. What the functionalist approach does is
examine whether the judicial exercise of discretion is empirically
legitimate. Some scholars might agree with the functionalist approach and
agree that judges look to legitimize their conclusions in the reasoning
process, but they might disagree on what constitutes a valid theory of
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legitimacy—in other words, to say that the legitimacy of judicial
discretion must be an empirical matter is to go too far. Law is not a
science, and legal argument is the forum for checking the legitimacy of
judicial opinions—not the experiment room. The goal, then, is to test the
theory such that even if the theory fails, the exercise yields insight into the
practice of jurisprudence. Functionalism motivates legal thinkers to
engage in just this exercise.
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