Title: When Judges Have Reasons Not to Give Reasons: A Comparative Law Approach
Abstract: Influential theories of law have celebrated judicial reasongiving as furthering a host of democratic values, including judges’ accountability, citizens’ participation in adjudication, and a more accurate and transparent decision-making process. This Article has two main purposes. First, it argues that although reasongiving is important, it is often in tension with other values of the judicial process, such as guidance, sincerity, and efficiency. Reason-giving must, therefore, be balanced against these competing values. In other words, judges sometimes have reasons not to give reasons. Second, contrary to common intuition, common law and civil law systems deal with this tension between reasons for and against reason-giving in increasingly similar ways. By combining theories of democratic legitimacy with empirical, doctrinal, and historical evidence of judges’ concrete reason-giving practices in the United States and Europe, the Article argues that rather than being in opposition, these two legal cultures are converging toward a common methodology. No longer can it be assumed that civil law judges and common law judges are on opposite ends of the spectrum. * Associate Professor of Law, University of Connecticut School of Law. For helpful suggestions and comments, I thank Hawa Allan, Ittai Bar-SimanTov, Lenni Benson, Jessica Clarke, Ashley Deeks, Erin Delaney, Elizabeth Emens, John Ferejohn, Kent Greenawalt, Bert Huang, Michael Kavey, Lewis Kornhauser, Alexi Lahav, Molly Lands, Joseph Landau, Gillian Metzger, Henry Monaghan, Trevor Morrison, Anthony O’Rourke, Tanusri Prasanna, Daniel Richman, Jessica Roberts, Carol Sanger, Elizabeth Sepper, Eva Subotnik, Irene Ten Cate, and participants of the Columbia Law School Associates and Fellows Workshop. 484 72 WASH. & LEE L. REV. 483 (2015)
Publication Year: 2015
Publication Date: 2015-04-01
Language: en
Type: article
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Cited By Count: 7
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