Not-So-Easy Cases

The distinction between easy and hard cases in judicial decision-making is well known from the work of Ronald Dworkin. Dworkin focuses primarily on the challenges posed by hard cases. Easy cases, by contrast, remain relatively under-theorised. This paper begins by exploring how judges decide easy cases by relying on holistic intuitive judgments. I then build on Dworkin’s analysis by introducing a third category of cases, which I call not-so-easy cases. I argue that easy, not-so-easy and hard cases are distinguished by the extent to which the judge’s intuitive judgments about the factual and legal context for the case yield a clear and determinate outcome. Easy cases are fully resolved at an intuitive level and merely require judges to articulate their decisions; not-so-easy cases are tentatively resolved at an intuitive level but require judges to explain their decisions; and hard cases are unresolved at an intuitive level and require judges to justify their decisions. I offer an account of the decision procedures involved in each type of case. I further contend that most cases heard by appellate courts are not-so-easy cases. This suggests that the primary task of such courts is explanation (rather than justification, as Dworkin proposes).