Courts frame policy issues in terms of legal rights, not costs and benefits

Evidence

Once we understand judicial opinion-writing as the practice of offering legal support for decisions often involving elements other than the formal law-justice, for example, or efficiency, or wise policy, or even mercy or pity-we can see that many, maybe even most, judicial opinions are not fully candid. They read in the language of legal or rule-based motivation or compulsion, but their goal is to provide support or justification for decisions reached for different reasons. Perhaps it would be good if this were otherwise. Perhaps judicial opinions should describe accurately how the judge reached the decision she did. But as long as the idea of a judicial opinion as the accurate report of a decision-making process remains far more an aspiration than reality, the alleged importance of judicial candor turns out to be a substantial exaggeration. — Frederick Schauer, Thinking Like a Lawyer, 320 (#corroborates, via linked claim)

The more flexibility policymakers have in devising solutions to problems, the more likely they are to solve them. According to Horowitz, courts have far fewer options than do other policymakers. Because courts must decide cases on the basis of law, they cannot impose a compromise solution on disputants, no matter how desirable such a compromise may be. Further, if people have a legal right, they have it regardless of cost, and thus cost—benefit analysis—the prime approach to contemporary policymaking—plays little role in judicial policymaking. Finally, courts have fewer means of remedying illegal situations than do other governmental institutions. They can forbid, permit, or require actions, but they can neither tax nor spend (although their orders may require expenditures by other branches). They can neither create new agencies to administer their directives nor appoint officials to oversee their implementation. — G. Alan Tarr, Judicial Process and Judicial…, 2871 (#builds-on, via linked claim)

Categorization

• XREF: connects to: Courts lack the remedial flexibility and cost-benefit tools of other policymakers — G. Alan Tarr, Judicial Process and Judicial…, 2871; Judicial rulings can set legal obligations without settling disputed public policy — G. Alan Tarr, Judicial Process and Judicial…, 207; Courts lack the power to dictate public policy and depend on political support — G. Alan Tarr, Judicial Process and Judicial…, 212 (+3 more)

Broader Connections

• Judicial opinions typically provide legal support for decisions reached on nonlegal grounds #corroborates (0.80) — Frederick Schauer, Thinking Like a Lawyer, 320