NOTES

I. HOW TO DO THINGS WITH PRINCIPLES
1
A weaker assumption would maintain, not that every correct judgment is yielded by an acceptable principle, but that some or most are. Still, finding an acceptable general principle that yields a particular judgment would (tend to) show that judgment was correct. Failure to find one, however, would not be a conclusive reason for abandoning the judgment, for it might be one of those that stands alone, no consequence of any acceptable principle.
2
Mark Tushnet has argued that in the legal arena the requirement of principled decision constitutes no constraint upon the result a judge can reach; if the previous cases fit a principle (even an established one) whose result the judge wishes to avoid in the present case, this case always can be distinguished from the others by some feature or other. See Tushnet, “Following the Rules Laid Down: A Critique of Interpretavism and Neutral Principles,” Harvard Law Review 96 (1983): 827–827. However, merely to distinguish the case (at best) allows the new judgment; it does not support it. To support it, the judge would have to formulate a new principle, plausible on its face, that fits (most of) the old cases, this new one, and some obvious hypothetical ones as well; that is, she would need a principled rationale for the distinction she wishes to make and for why that distinction should make a difference. It is no easy matter to formulate acceptable principles, much less to do this as frequently as one's desires about new cases would mandate.
3
See C. G. Hempel, Aspects of Scientific Explanation (New York: Free Press, 1965), pp. 272–272, and Ernest Nagel, The Structure of Science (New York: Harcourt, Brace and World, 1961), pp. 78–78.
4
Abstract principled reasoning lends support to a particular position by recruiting other accepted judgments as support. Some writers have suggested that this abstract and impersonal mode is only one particular mode of justification.
5
I have not checked to see what empirical studies of people's decisions exist to support this empirical claim by the legal theorists, what alternative legal structure functioned as the control, and so on.
6
All of the small number of data points we possess seem to fall on a straight line, but for all related phenomena we have found that a linear relationship does not hold. Perhaps here it is an accident of the particular data we happen to have.
7
See the list of factors in Thomas Kuhn, “Objectivity, Value Judgment and Theory Choice,” in his The Essential Tension (Chicago: Univ. of Chicago Press, 1977), pp. 339–339, and W. V. Quine and Joseph Ullian, The Web of Belief, 2ded. (New York: Random House, 1978), pp. 82–82. The need for such additional criteria may result not just from the finiteness of our data. Quine has claimed that the totality of all possible observations does not uniquely select an explanatory theory. (See his “On the Reasons for Indeterminacy of Translation,” Jour

-183-

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