Our Informationally Disabled Courts Frederick Schauer

Our Informationally Disabled Courts Frederick Schauer Abstract: In order to carry out their functions of deciding particular cases and developing legal rules and principles, courts need information: not just information about the law, but also factual information about the particular matter in controversy and about the world in general. The way in which courts are structured, however, makes it more dif½cult for them to obtain the information they need than it is for most other public decision-making institutions. As the world becomes more complex, and as sophisticat- Downloaded from http://direct.mit.edu/daed/article-pdf/143/3/105/1830480/daed_a_00292.pdf by guest on 29 September 2021 ed scienti½c, technical, and ½nancial information becomes more central to litigation and to the judicial function, the systemic disabilities of the courts in obtaining the information they need become more apparent and increasingly more problematic. What makes a court a court? The question is im - por tant, but it lacks an obvious answer. We might distinguish courts from other decision-making institutions in terms of being staffed principally by those with legal training. And thus insofar as lawyers and judges occupy a sociologically discrete segment of professional culture,1 courts can be distinguished by virtue of their sociological differentiation. Or we might begin with the fact that courts make decisions with procedures unlike those of FREDERICK SCHAUER, a Fellow of other decision-making environments. The modal the American Academy since 1993, number of parties in a court case is two; the modal is the David and Mary Harrison outcome has a winner and loser; and decisions are Distinguished Professor of Law at typically made by judges or other arbiters with no the University of Virginia. Previ- interest in the outcome. In these and various other ously, he was for eighteen years the Frank Stanton Professor of the ways, courts’ procedures differ from those of legis- First Amendment at the Harvard latures, administrative agencies, executive of½cials, Ken nedy School. His publications the military, and private corporations. Additionally, in clude Free Speech: A Philosopical or perhaps alternatively, law schools purport to train Enquiry (1982), Playing By the Rules: their students in the arcane art of thinking like a A Philosophical Examination of Rule- lawyer,2 and so what differentiates courts may be the Based Decision-Making in Law and in fact that they reach their decisions via methods of Life (1991), Pro½les, Probabilities, and Stereotypes (2003), Thinking Like a thinking and reasoning that differ from those we see Lawyer: A New Introduction to Legal in other environments. Reasoning (2009), and The Force of Each of these ways of differentiating courts–socio - Law (forthcoming 2014). logical, procedural, and methodological–constitutes © 2014 by the American Academy of Arts & Sciences doi:10.1162/DAED_a_00292 105 Our part of a complete account of how we have been stipulated or decided long be - Informa - should characterize and understand them, fore a case gets to the highest courts. But we tionally Disabled but my focus here will be on still another ought not to forget, for reasons we will Courts criterion, one we can call informa tional explore, that basic controversies of raw fact dif ferentiation: the array of information must be resolved before appellate deci- courts use in making decisions. This es - sion-making can take place. Long before say will concern a particular di men sion of Miranda v. Arizona reached the Su preme informational differentiation–the meth- Court and provided the platform for the ods by which courts obtain factual, scien- Court’s holding that suspects must be ti½c, and technical in for mation, and the informed of certain constitutional rights potential flaws inherent in those methods. prior to questioning, someone had to de - It is common to think of courts in terms cide that it was Ernesto Miranda who had Downloaded from http://direct.mit.edu/daed/article-pdf/143/3/105/1830480/daed_a_00292.pdf by guest on 29 September 2021 of their outputs: the decisions they make been arrested, that Mr. Miranda had made and the opinions they write. But these deci - statements that were used against him to sions are based on inputs, which fall into his disadvantage, and that he had not in two broad categories. The ½rst of these is fact been given the warnings that the the law. For some lawyers, judges, and Supreme Court held were constitutionally schol ars, the category of law is (and should mandated.5 Beneath virtually all appellate be) narrow, encompassing little more than decisions, therefore, are seemingly mun- statutes, constitutional provisions, report- dane factual questions that comprise most ed court cases, and the conventional meth - of what the courts do: determining just ods of legal reasoning and interpretation who did what; and how, why, and when of standard legal materials.3 Others under - they did it. stand the law as including not only the Often the factual inputs to judicial de - fore going, but also a broad range of moral, cisions also include those matters of sci- political, and pragmatic factors.4 And al - enti½c and technical knowledge that en - though the divisions be tween those hold- able judges and jurors to draw inferences ing broad and narrow conceptions of law from the more basic who-did-what kind of are profoundly important, this should not fact. Does exposure to certain substan ces ob scure the equal or greater importance of cause cancer, and if so, in whom and un - the other broad category of court inputs: der what circumstances? If a ½n ger print the world of fact. resembling that of the defendant is found The factual inputs to judicial decisions at the scene of a crime, how likely is it fall into two broad types. The one most that the defendant was there when the familiar to the public–largely from tele- crime was committed? Do certain exter- vision and other media, but sometimes nal features of an automobile tire indicate from personal experience–is the simple defective manufacture and an in creased question of what happened. Who was it likelihood of tire failure under normal that approached the bank teller with a gun driving conditions?6 and demanded money? Who started the It is profoundly important to ask wheth er ½ght? Did the Ford enter the intersection courts as presently constituted–especially ½rst, or was it the Toyota? And how fast courts in common-law systems such as the was the Ford going at the time? If we United States–are the institutions best spend too much of our time focusing only suited to make factual determinations of on Supreme Court cases, or even on appel - the two types just sketched, especially the late litigation more broadly, we may ig nore determination of general scienti½c, techni - factual issues of this variety, for often they cal, ½nancial, and related fact.7 This ques - 106 Dædalus, the Journal ofthe American Academy of Arts & Sciences tion is crucial in part because it raises issues For all of these reasons, therefore, it is es - Frederick of how to allocate social and public deci - sential to examine whether courts are well Schauer l sion-making among institutions of var ious equipped to make the factual determina- t types; for example, is regulatory policy best tions that have important consequences made administratively or through litiga- for individual litigants and, increasingly, tion?8 However, we cannot even begin to for social policy as well. There are several address such questions un less we can reasons to be lieve that courts may not be evaluate the respective competences of the suited to the task of adequate factual deter - various can didate institutionsin making mination; I will discuss ½ve of them here. the factual, technical, and scienti½c determinations on which sound policy -making First, courts–especially common-law d must rest. courts operating with rules developed in Downloaded from http://direct.mit.edu/daed/article-pdf/143/3/105/1830480/daed_a_00292.pdf by guest on 29 September 2021 The question of fact-½nding competence the context of a system in which juries among institutions is also relevant to con - were prevalent12–make their factual de - cerns about the shrinking number of trials terminations in accordance with rules of in the United States and about the decreas - evidence that frequently make inadmissi- y ing access to courts as venues for dispute ble that which in other contexts would be resolution (concerns at the center of sever- relevant information.13 For example, al other contributions to this volume). Tri- while the exclusion of hearsay evidence t als serve many purposes,9 most of which ensures the opportunity to confront and t are predicated on the view that litigation in cross-examine opposing witnesses and general, and trials in particular, have large - guards against the risk of overvaluation ly positive epistemic foundations: they get of potentially unreliable evidence, it nev- the facts right. But if the epistemic advan- ertheless excludes a considerable amount tages of courts are smaller than is often of evidence that investigators in other supposed, the concerns about fewer trials contexts would ½nd to be of at least some and limited ac cess need to be seen in a dif - use. Similarly, the rules of evidence typi- f ferent light. And even though trials (espe- cally preclude evidence of character and cially civil trials10) are becoming few er in evidence of past practices from being used number, they are increasingly used as the to establish what someone may have done t venue for making broad determinations of on a particular occasion.

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