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Wednesday, July 26, 2006

Can a decision be made "for no reason at all"?

A draft article I read about prosecutorial discretion noted that courts are disinclined to scrutinize choices not to prosecute.  One court was quoted as declaring that prosecutors could decline to prosecute "for any reason or for no reason at all."   This phrase rang a bell; I recall other areas in which courts say some decision may be made "for any reason or for no reason at all."  This phrase also led me to ponder a (silly?) metaphysical question:  is it really possible to make a decision for no reason at all?

Obviously, one can make decisions for no good reason or no clear reason or no articulable reason or no sensible reason or no identifiable reason.  Indeed, lots of mundane decisions --- which gas station to stop at, what size coffee to order, which plumber to select from the yellow pages --- are surely the product of hard to explain feelings or instincts.  Still, if pressed, I can always give some account of why I made even the most mundane of decisions. 

Because I cannot fully grasp the notion of a decision made for no reason at all, I am wondering if such a decision is even possible.  And if it isn't, should courts in the future just say that certain decisions can be made "for any reason"?

Posted by Douglas A. Berman on July 26, 2006 at 08:35 AM in Legal Theory | Permalink


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I hate to quibble with yclipse when we seem to be agreeing, but of course it's not just that the court won't second guess reasons the employer gives, it's that the employer doesn't have to give any reason.

Again, whether the employer has reasons, or whether it's possible to fire somebody "for no reason" is a different question, but if it were possible to fire somebody for no reason at all, that would be fine.

Posted by: Joseph Slater | Jul 26, 2006 6:04:13 PM

>The easy answer is that the rule simply means employers need not prove or even articulate a reason to justify discharge.

Exactly. The formulation is a bit of shorthand that underscores the point that the court will not attempt to second-guess the validity or the strength of the reason given by the defendant for the action he took.

Posted by: yclipse | Jul 26, 2006 4:37:58 PM

It seems to me that "decision" implies "reason" in a way that "action" does not. So we can imagine actions that happened for no reason at all (the epileptic boss has a seizure causing him/her to sign the pink slip, which is picked up and executed by a subordinate before the boss has a chance to take it back). But the notion of a decision suggests some kind of human conscious agency, even if it's only "this is my whim."

Posted by: Paul Gowder | Jul 26, 2006 2:04:47 PM


Hmm, should I say I didn't consider the "50 First Dates" hypo because it's unrealistic, or should I admit I never saw it, thus risking my pop culture street cred? I did like "Memento" ...

Anyway, sure, in employment-at-will, if an employer suffers amnesia and that amnesia caused a discharge, there's no valid claim by the employee. Again, the employer doesn't have to prove a good reason, or even that there was a reason: the employee only wins if she can prove an illegal reason. And I can't think of any statutory or common law exception to at-will that would bar a discharge that was caused by a mental disability of the employer.

The more I waste time writing ... er, um ... the more I think about this, the more I think that the "no reason at all" language is to emphasize that the employer need not even articulate a reason for a firing for it to be valid under at will rules.

Which is why maybe those French kids had a point a few months ago. . . /ducks/

Posted by: Joseph Slater | Jul 26, 2006 2:00:58 PM

Is there a philosopher in the house? This sounds like a standard philosophy of mind problem.

Posted by: Bruce Boyden | Jul 26, 2006 12:24:36 PM

I think decisions can be made for no reason at all if they are the result of one of more causes none of which constitutes a reason.

Posted by: Elliot Reed | Jul 26, 2006 11:50:39 AM

Joe, the hypothetical on "no reason at all" would be something like the protagonists in the movies Memento or 50 First Dates as employers. Because of short-term memory loss, Guy or Drew comes in each morning and randomly dismisses the employees as follows: "who are you? what are you doing here? Get out." I think that's as close to no first person reason as you can get. In employment at will, is that a valid dismissal?

Posted by: Jeff Lipshaw | Jul 26, 2006 11:32:38 AM

I got into pretty much the exact same discussion with a student in Employment Law, when I was explaining employment at-will. The pure at-will rule, of course, is that an employer can fire an employee for "a good reason, bad reason, or no reason at all." A student asked, "employers never fire people for NO reason at all, do they?"

The easy answer is that the rule simply means employers need not prove or even articulate a reason to justify discharge -- or, I suppose, that even if plaintiff could prove there was no conscious reason for the firing, that wouldn't state a claim. Given that, at least in this case, saying "any reason" might not be good enough -- that arguably implies the employer must articulate a reason.

But even though I've seen and read about employers firing people for lots of absurd, trivial reasons, it is hard to imagine a firing for literally NO reason. Even flipping a coin to decide which of two equally qualified employees must be fired arguably has a "reason" to it, in that it is a very quick and cheap way to make a decision where it arguably would be inefficient to spend lots of time and resources on it.

Posted by: Joseph Slater | Jul 26, 2006 11:19:23 AM

I'll rely on realism gleaned from Prof. Markel's Criminal Procedure class to observe that it probably means "for any reason, related or not to the merits of the particular case." Prosecutors don't like to admit that they are not prosecuting not because the case is a weak one but rather because they don't have the resources. On the other hand you have Polnius to his son, "Nothing can come of nothing, mend thy speech lest it mar thy fortunes."

Posted by: Bart Motes | Jul 26, 2006 10:23:23 AM

Though I'd like to think existentialist thinking was behind the phrase ("we are the product of our choices" "not to decide is to decide" blah blah blah), I suspect the simpler answer is that it means that the prosecutor is not obliged to articulate a reason for not prosecuting, and the impact of the reason is not on the first person thinker/speaker but on the third person listener. So you could announce: "we have decided not to prosecute Mr. X because the DNA evidence exonerates him." Or: "we have decide not to prosecute Mr. X because there is insufficient evidence at this time." Or: "We have decided not to prosecute Mr. X at this time, but have no further comment." Or don't say anything at all. Seems to me, from the third person perspective, two of these are for a reason, and two are for no reason at all.

Posted by: Jeff Lipshaw | Jul 26, 2006 9:57:22 AM

As an abstract matter, decisions made by chance lack reason. If you're faced with two equal or noncomparable goods (which seems possible) but need to choose one or the other, you can toss a coin to decide. When asked why you chose the one item, you can say, "I needed one of those things." But then someoneone might ask, "Why did you choose that particular one?" The fact that the coin turned up heads doesn't seem like a reason -- only an explanation of how you made the decision. Of course, there's some reason in this example, because presumably you had a reason for needing one of the two objects. But you had no reason "at all" to prefer one over the other.

Posted by: micah | Jul 26, 2006 9:55:25 AM

First, I think the phrase may be more of a rhetorical device used where the discretion is broad enough to preclude challenge. If the discretion were limited it to "any reason," presumably a challenge based on a decision with no reason could be made. Requiring no justification also does not evince the breadth of any or no reason either.

Second, the possibility of attaching reasons post hoc to decisions based on whimsy does not, to me, preclude the possibility that the decision was truly made for other reasons or even without reason, assuming that is possible.

It seems to be a linguistic question. Does a decision, by definition, require a reason? If so, when a court says any or no reason it includes nondecisions as acceptable and thus conveys the scope of discretion.

A lost and forgotten file may not be encompassed under the any reason or no justification standard but would definitley fall within the any or no reason standard. It seems more likely to require judicial resources to determine whether a lost file is included within the any reason and no justification standards than it would be to determine that it is included in the any or no reason standard. Perhaps it's all about judicial resources in the end. "Any reason or no reason at all," really means, "don't even think about it, buddy!"

Posted by: Jim Green | Jul 26, 2006 9:46:55 AM

Many decisions by default are made for no reason at all.

Posted by: James Grimmelmann | Jul 26, 2006 9:27:21 AM

Perhaps "for no reason at all" is intended to include cases when the prosecutor didn't get around to it or simply moves the file to the decline-to-prosecute box (if there is such a thing). I agree that failure even to consider or review the case is a reason a case was not prosecuted (e.g., " I didn't feel like looking at it."). However, it seems to me it may not fall within the scope of the word "reason" the court was using (as in "reasoned judgment"). Thus, if the facts of case were not even considered, there was "no reason at all" with regard to deciding not to prosecute. This, of course, does not address any dereliction of duties issues, but it seems to me the court is saying, as far as it is concerned, a prosecutor can be derelict in deciding not to prosecute. That said, I dislike greatly "for any reason or for no reason at all." I would find it more accurate to say something more along the lines of "no justification is required when a prosecutor declines to prosecute."

Posted by: WaveLaw | Jul 26, 2006 9:07:35 AM

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