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47 Stan. L. Rev. 633 (1994-1995)
Giving Reasons

handle is hein.journals/stflr47 and id is 659 raw text is: Giving Reasons Frederick Schauer* The practice of providing reasons for decisions has long been considered an essential aspect of legal culture. In this article, Frederick Schauer explores the logic of giving reasons. What is the structural relationship between a rea- son and the result that it is a reason for? What commitments, if any, attach to giving a reason? Professor Schauer concludes that giving reasons involves committing, and that this insight can inform our understanding of why giving reasons might be encouraged in some spheres yet discouraged in others. Sometimes people who make decisions give reasons to support and explain them. And sometimes they do not. The conventional picture of legal decision- making, with the appellate opinion as its archetype and reasoned elaboration as its credo,' is one in which giving reasons is both the norm and the ideal. Results unaccompanied by reasons are typically castigated as deficient on pre- cisely those grounds.2 In law, and often elsewhere, giving reasons is seen as a * Frank Stanton Professor of the First Amendment, John F. Kennedy School of Government, Harvard University. Earlier versions of this article were presented at faculty symposia at the Harvard Law School, the Boston University School of Law, the Faculty of Law of the Australian National Uni- versity, and the Faculty of Philosophy at Monash University. More formal versions were delivered at the New York University Colloquium on Law and Philosophy, at a philosophy colloquium at the Uni- versity of Miami, and as the Clason Lecture at the Western New England College of Law. I am grateful to numerous commentators at these events, and in particular for the prepared commentaries of Scott Brewer, Lewis Komhauser, and Larry Sager. I have also profited greatly from conversations with Philip Pettit, Walter Sinnott-Armstrong, and Alan Wertheimer, and from the written comments of James Hines, Mark Moore, and Cass Sunstein. 1. The phrase reasoned elaboration originated in HENRY M. HART, JR. & ALBERT M. SACKS, Ti LEGAL PRocass: BAsic PROBLEMS IN THE MAKING AND APPLICATION OF LAW 143-52 (William N. Eskridge, Jr. & Philip P. Frickey, eds., 1994). For useful commentary, see Michael Wells, Behind the Parity Debate: The Decline of the Legal Process Tradition in the Law of Federal Courts, 71 B.U. L. Ray. 609, 621-29 (1991); G. Edward White, The Evolution of Reasoned Elaboration: Jurisprudential Criticism and Social Change, 59 VA. L. Ray. 279 (1973); Mark Yudof, School Desegregation: Legal Realism, Reasoned Elaboration, and Social Science Research in the Supreme Court, LAW & CoNTrEm. PROBS., Autumn 1978, at 57; Joseph William Singer, Legal Realism Now, 76 CAL. L. RaE. 467, 505-08 (1988) (book review). 2. The Court's product has shown an increasing incidence of the ... formulation of results accompanied by little or no effort to support them in reason.., and of per curiam orders that quite frankly fail to build the bridge between the authorities they cite and the results they decree. Alexander M. Bickel & Harry H. Wellington, Legislative Purpose and the Judicial Process: The Lincoln Mills Case, 71 HAIv. L. Rav. 1, 3 (1957). For other critiques of the Supreme Court's use of summary opinions, see Ernest J. Brown, The Supreme Court, 1957 Term-Foreword: Process of Law, 72 HARV. L. Ray. 77 (1958); Henry M. Hart, Jr., The Supreme Court, 1958 Term-Foreword: The Time Chart of the Justices, 73 HARv. L. Ray. 84, 100-01 (1959); Albert M. Sacks, The Supreme Court, 1953 Term- Foreword, 68 HARv. L. Rav. 96 (1954); see also Paul R. Verkuil, Crosscurrents in Anglo-American Administrative Law, 27 WM. & MARY L. Ray. 685, 701-05 (1986) (maintaining that Americans find a conception of natural justice or due process without a requirement that decisionmakers give reasons inexplicable, and criticizing the failure of English courts to embrace such a requirement); Anthony

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