Judges, Policymakers and Rationality

This article uses insights from cognitive psychology to contrast judge-made law with legislative and executive policy-making. I argue that the predominant narrow conception of reason and rationality have led to overly optimistic views of deliberate policymaking at the expense of traditional judge-made law. However, alternative views of what constitutes rationality suggest that judge-made law may have some often overlooked advantages to deliberate policymaking.