Thomas W. Merrill (Columbia University – Law School) has posted Legitimate Interpretation – Or Legitimate Adjudication? Here is the abstract:
Current debate about the legitimacy of lawmaking by courts focuses on what constitutes legitimate interpretation. The debate has reached an impasse in that originalism and textualism appear to have the stronger case as a matter of theory while living constitutionalism and dynamic interpretation provide much account of actual practice. This Article argues that if we refocus the debate by asking what constitutes legitimate adjudication, as determined by the social practice of the parties and their lawyers who take part in adjudication, it is possible to develop an account of legitimacy that produces a much better fit between theory and practice. The decisional norms employed by adjudicators include faithful agent arguments about governing texts, arguments from precedent, and arguments from settled practice, but also, in a more qualified fashion, considerations of morality and social consequences. Adjudicators mix and match these norms in reaching outcomes but do so in a way that is regarded as legitimate by the losers as well as the winners in contested adjudications. A general normative implication of this refocused account of legitimacy is that adjudicators, including high-level appeals courts, should not stray far from their basic function of dispute resolution, as opposed to law declaration.
And from the paper:
[T]he ultimate touchstone will always be what the parties—most critically the loser—regard as legitimate. The loser will be more inclined to accept the legitimacy of the adjudication if he or she perceives that the decision (in addition to having the other qualities previously mentioned) rests on decisional norms that the loser recognizes as being legitimate. In this sense, the ultimate recognitional community is not the adjudicator but the parties who submit their conflict to resolution by the adjudicator.
And from a bit further on in the paper:
One could go further and say that, at least with respect to the choice of decisional norms, the lawyers representing the parties are the critical recognitional community.49 Consider how the matter appears to the parties. The immediate question may be whether to accept a plea bargain or offer of settlement. The parties will seek the advice of their lawyers about the adjudicator’s likely view of the relevant decisional norms, perhaps as foreshadowed by the adjudicator’s response to preliminary motions. The parties will want to know if the adjudicator’s view of the relevant decisional norms is amenable to change after a more complete presentation of argument. If a final judgment is entered, the question for the loser will be whether to file an appeal. The loser will want to hear from her lawyer about whether the adjudicator adopted one or more decisional norms vulnerable to being overturned on appeal.
Highly recommended. A deep, rich, and important paper. Every legal academic should read it.
Here is a bit more from the paper:
The normative concern here is that the Supreme Court, at least in cases where law is highly unamendable and arguments from precedent dominate, is increasingly gravitating toward the Scrabble Board model of precedent. This is particularly true in areas of constitutional law that have a significant political valence, but fly below the radar of general public awareness. Examples might include questions about state sovereign immunity,228 qualified immunity for officials charged with civil rights violations,229 preemption of tort law,230 commercial speech cases,231 the availability of class actions,232 and regulatory takings cases.233 What we increasingly see in these areas are decisions by the Court that leave all relevant precedents undisturbed, but add qualifications or exceptions that move the law in a direction favored by the legal or policy preferences of the Justices in the majority.234
And from a bit later in the paper:
As things stand, although the Court increasingly resolves cases politically salient cases in ways that conform to the majority’s legal and policy preferences, the losers continue to acquiesce in its judgments. But with each decision, a small portion of its reservoir of legitimacy is consumed. Eventually, the reservoir may be depleted, and the losers may regard the Court’s decisions as simply a matter of the “brute force” of two against one.240 When this happens, the Court may face a general crisis of legitimacy.241
To head this off, the Court should strive to resolve cases, as best it can, in accordance with objective decisional norms, meaning settled forms of argument. It is difficult to do this when faithful agent arguments fade away, as has happened in constitutional law and increasingly in statutory and administrative law where political polarization and associated legislative gridlock have made large chunks of statutory law unamendable.
Important insights.
Coincidentally, I was thinking about one of the central moves of this paper just two days ago. Philip Bobbitt's theory of constitutional interpretation emphasizes multiple modalities of constitutional interpretation and construction. Bobbitt's theory has been widely embraced, but it has also morphed into a more general view, which we might call "constitutional pluralism," with different theorists embracing different lists of modalities and different theoretical foundations for their pluralism. That view naturally extends from constitutional interpretation and construction to other contexts, including statutes, regulations, rules of procedure, and so forth.
Another move in the paper is to reframe the debate about the interpretation and construction of constitutional and statutory texts by focusing on dispute resolution as the key locus of theorizing. Dispute resolution is legitimate if it complies with the norms of the legal community (judges and lawyers). Because judges and lawyers embrace a pluralist approach to legal argumentation in statutory and constitutional cases, that practice is legitimate. And the consequence is that pluralist interpretation and construction becomes legitimate when practiced in the context of dispute resolution. This particular argument reminds me of the famous passage from Wittgenstein's Philosophical Investigations ℙ301: "The decisive movement in the conjuring trick has been made, and it was the very one that we thought quite innocent."