Article by David E. Van Zandt
In most litigated cases, judges must make decisions even though they do not have the full range of information that a fully informed choice would require. Of course, all of us face this problem on a daily basis: decision under conditions of uncertainty is the human condition. The difference is that judges' choices affect large numbers of people besides themselves. One response to this problem is to limit the number of occasions in which judges must make these types of decisions to the absolute minimum. Another response is to encourage judges to engage in a more systematic collection of information. Most people, however, see decisionmaking under such suboptimal conditions as inevitable, if not desirable.
Given this imperfect state of affairs, how do judges make decisions and how should they make them? A number of authors have recently attempted to answer these questions with the concept of “practical reason.” While the proponents of this “practical reason view” (as I will call it) differ in emphasis, they all argue that judges do not apply comprehensive, academic, and fully informed theories, but instead rely on a special faculty called “common sense” or “practical reason” to reach a result based upon the facts of each case. Moreover, they claim, this is not only inevitable, but it is desirable because a legal world ruled by the theories of legal academics would lack something important.
In this Article, I analyze these claims. After summarizing the practical reason view, I propose my own theory of practical reason that explains the phenomenon of practical reason or common sense in judicial decisionmaking. Rather than some specially acquired faculty, I hypothesize that common sense is a body of socially produced information, available to all members of society, on which judges can call in deciding cases. Because its production is subject to the factors that constrain the production of any information, the information provided by common sense suffers from quality problems.
Instead of relying on abstract argument, I test these competing views by examining the way judges actually apply practical reason. From this, I conclude that as a positive matter, my theory is a more accurate explanation of the role of practical reason. Finally, I argue that despite the quality problems that plague common sense, judges should rely on it in certain circumstances.
About the Author
David E. Van Zandt. Associate Professor of Law, Northwestern University.
Citation
65 Tul. L. Rev. 775 (1991)