Similar reasoning applies to other restrictions on other values not expressed in money terms. Changing expectations of future social relationships of school children bring forth varying present reactions of parents. In some cases, these present reactions may be more vehement than after the future event actually arrives — as claimed by some supporters of “busing,” for example — but this merely illustrates the correspondence between economic and noneconomic translation (or inherent equivalence) of future expectations into present costs or benefits.

JUDICIAL PROCESSES

Judicial decision making is made necessary by the insufficiencies of language, even if everyone were willing to obey the law as he understood it. Political leaders cannot exhaustively specify the application of the principles they legislate. Moreover, the people may choose to bind themselves and their political surrogates in advance, during presumably more sober periods, against actions they might take in rash moments. This simply means that, beyond some point, flexibility of decision making is deemed harmful and the rigidities of Constitutional limitations are preferred within that range of decisions. This parallels the economic law of diminishing returns, under which a given input has varying effects on output over different ranges, including — beyond some point — a negative effect. If flexibility is considered as an input in decision-making processes, then it too, clearly, has a range within which it is enormously valuable, another range within which it is more moderately valuable, and another range within which it is positively harmful. Otherwise we would leave ourselves unlimited flexibility to take the most sweeping and drastic actions on the basis of the most transient 51 percent majority. Instead special rigidities — “rights” — are deliberately built into the system to apply to such things as life, liberty, and property, where our primary interest is in security rather than in fine tuning the social mechanism to capture fleeting advantages.

Even as compared to formal economic or political processes, judicial decision making tends to be more categorical, rather than incremental. Not only do criminal cases tend to be dichotomized into guilty or innocent, and appellate decisions into constitutional or unconstitutional, the legal precedents apply to all similarly circumstanced individuals — where the similarity is in those articulated characteristics documentable to third parties, whether or not these are the characteristics most behaviorally determinative or philosophically crucial. By contrast, informal social processes can adjust the time, scope, and degree of specialness of treatment of the salient characteristics of each individual person and each episode, as determined by closer knowledge, unrestricted by the inherent limitations of articulation or of secondhand data filtered through legal rules of evidence.

No such close weighing of incremental costs and incremental benefits can be expected in judicial processes whose social benefits take the rigid form of “rights” applicable to categories, and costs take the form of correspondingly rigid obligations. In short, judicial decision making especially at the appellate level, consists of “package deals,” in which the package is quite extensive in time as well as space, and has contents which are homogeneous only with respect to articulated, documentable variables — and may be quite heterogeneous with respect to all other behavioral or philosophical considerations.

SUMMARY AND IMPLICATIONS