Washington and Lee Law Review Volume 72 | Issue 2 Article 3 Spring 3-1-2015 When Judges Have Reasons Not to Give Reasons: A Comparative Law Approach Mathilde Cohen University of Connecticut School of Law Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Judges Commons Recommended Citation Mathilde Cohen, When Judges Have Reasons Not to Give Reasons: A Comparative Law Approach, 72 Wash. & Lee L. Rev. 483 (2015), https://scholarlycommons.law.wlu.edu/wlulr/vol72/iss2/3 This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. When Judges Have Reasons Not to Give Reasons: A Comparative Law Approach Mathilde Cohen* Abstract Influential theories of law have celebrated judicial reason- giving 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 reason- giving 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-Siman- Tov, 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. 483 484 72 WASH. & LEE L. REV. 483 (2015) Table of Contents I. Introduction .....................................................................484 II. Reasons for Reason-Giving ..............................................496 A. Judges as Model Reason-Givers ................................498 1. Rawls’s Doctrine of Public Reason ......................500 2. Dworkin’s Conception of Constitutional Democracy ............................................................502 B. Reasons for Judicial Reason-Giving ..........................504 1. Participatory Reasons ..........................................504 2. Accountability Reasons ........................................506 3. Accuracy Reasons.................................................511 III. Reasons for Not Giving Reasons .....................................514 A. Institutional Reasons ................................................514 B. Cognitive Reasons .....................................................518 C. Efficiency Reasons .....................................................522 IV. Federal Courts Balance and Require ..............................525 A. No Affirmative Duty in the Federal Courts ..............526 1. Administrators Must Give Reasons, Not Judges ..................................................................528 2. The Only Judicial Duty Is to Enable Review ......532 B. Yet Courts Balance and Require ...............................536 1. Context 1: Immigration .......................................538 2. Context 2: Sentencing ..........................................549 V. Civil Law Courts Require and Balance ...........................557 A. Civil Law Theory: Affirmative Duty .........................557 B. Civil Law Reality: De Facto Balancing .....................562 VI. Conclusion ........................................................................570 I. Introduction We are in the “age of reasons.”1 Never before have reasons been so praised, cherished, advocated, and promoted in public 1. See Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 19–20 (1959) (“The virtue or demerit of a judgment turns, therefore, entirely on the reasons that support it.”). WHEN JUDGES HAVE REASONS 485 discourse as well as in academic circles.2 Buzzwords and catch- phrases such as “reason-giving requirement,”3 “reasoned elaboration,”4 “public reason,”5 and “public justification,”6 have, along with a host of others, become major themes of the legal and political lexicon.7 Influential theories of law have celebrated reason-giving as the new paradigm of democratic legitimacy.8 According to these theories, public institutions and the State are legitimate to the extent that their decisions are justified by reasons.9 The discussion in law and jurisprudence focuses on the liberal- democratic virtues of reason-giving.10 Within a liberal-democratic 2. See id. at 19 (“A principled decision, in the sense I have in mind, is one that rests on reasons with respect to all the issues in the case, reasons that in their generality and their neutrality transcend any immediate result that is involved.”). 3. See Jeremy Waldron, Theoretical Foundations of Liberalism, 37 PHIL. Q. 127, 128 (1987) (noting that liberal political theories require reasons to accompany State actions). 4. See Weschsler, supra note 1, at 16 (emphasizing the role of reason in the judiciary). In the 1950s, partly as a reaction against the activism of the Warren Court, legal process scholars developed a theory of legal decision making centered not on the outcomes of legal decisions but on the processes by which courts decide. Against legal realists, they argued that courts should strive to make principled decisions by focusing on “reasoned elaborations,” i.e., justifying their determinations on the basis of neutral principles of law. See HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW 427 (1958) (suggesting different starting points for judicial reasoning, such as custom). 5. See JOHN RAWLS, POLITICAL LIBERALISM 216–20 (1993) (reviving the notion of “public reason” as a reciprocity requirement demanding that citizens be able to justify their political decisions to one another using publicly available values and standards); see also John Rawls, The Idea of Public Reason Revisited, 64 U. CHI. L. REV. 765, 766 (1997) (“Central to the idea of public reason is that it neither criticizes nor attacks any comprehensive doctrine, religious or nonreligious, except insofar as that doctrine is incompatible with the essentials of public reason and a democratic polity.”). 6. See generally FRED D’AGOSTINO & GERALD F. GAUS, PUBLIC REASON (1998) (arguing that the idea of public justification is the key idea in contemporary liberal-democratic political theory). 7. See id. (emphasizing the reliance of legal and political lexicon on reason). 8. See id. (citing contemporary liberal-democratic political theory as an example of an influential theory of law that celebrates reason-giving). 9. See RAWLS, supra note 5, at 216–20 (arguing that “public reason” requires justification by reason). 10. See generally D’AGOSTINO & GAUS, supra note 6 (explaining the liberal- 486 72 WASH. & LEE L. REV. 483 (2015) regime, courts are defined by the very fact that they give reasons to explain what the law is and how it applies in each particular instance.11 More than other branches of government, judges are expected to be model reason-givers.12 The purpose of judicial reasons is to set forth an explanation for a decision on questions presented before a court.13 These reasons may include the court’s articulation of the factual and legal basis for its decision as well as its interpretive and policy analysis of the law it is applying.14 Judicial reason-giving has not, however, always been considered so clearly desirable.15 Reason-giving is a typically modern idea.16 There have been historical moments when it was deemed valuable not to give reasons.17 For instance, Roman courts,18 ecclesiastical courts,19 and a number of aristocratic democratic political theory). 11. See id. (emphasizing that reason is a key virtue of the liberal- democratic political theory). 12. See Mathilde Cohen, Sincerity and Reason-Giving: When May Legal Decision Makers Lie?, 59 DEPAUL L. REV. 1091, 1097 (2010) (arguing that judges are held to a higher sincerity standard than other branches of government when giving reasons). 13. See id. at 1091 (“The lawfulness of state actors’ decisions frequently depends on the reasons they give to justify their conduct, and a wide range of statutory and constitutional law renders otherwise lawful actions unlawful if they are not justified by reasons or are justified by the wrong reasons.”). 14. See id. at 1092 (noting that judges