Aditi Bagchi (Fordham University School of Law) has posted Conflict, Consistency and the Role of Conventional Morality in Judicial Decision-Making (Yale Journal of Law and the Humanities, Forthcoming) on SSRN. Here is the abstract:
This article is part of a symposium on Cardozo's classic text, "The Nature of the Judicial Process." In his 1921 lecture, Cardozo defends a pragmatic approach to judicial decision-making. Judges should apply and develop legal rules with an eye toward their social function. “Public policy” at this stage of decision-making theoretically could be rooted in a social scientific exercise or some other direct attempt to come up with the optimal rule. Cardozo instead directs judges to conventional morality.
Conventional morality is an unlikely solution given the specter of inconsistency that it raises. But in the disagreement and conflict about conventional morality that seem to render it unstable lie the resources for self-correction over time. Judicial decision-making is inevitably inconsistent, however judges might try to fill in gaps after traditional decision-making criteria run out. Alternatives like custom, culture and attempts to decipher the “best rule” directly by way of philosophy or economics, each have their limitations.
I offer two examples of how Cardozo’s account of the role of conventional morality plays out, in contract and tort, respectively. In each case, precedent and custom leave room for further decision. In contract, formalists and legal economists might direct us to rely on language and efficient defaults to deliver the value of private ordering. In tort, legal economists will point to cost-benefit analysis. Cardozo points to a more humble alternative, and one that in fact accords with what we see judges do: They take into account what people think is fair. The mystery of fairness turns out to be no less intractable than the mystery of efficiency and its discourse allows for more open contestation. Conflict over time revises our understanding of fairness in contract and tort. That is how the law gets better.