There are two Downloads of the Week. The first is Obstructing Precedent by Bill Watson. Here is the abstract:
Critics of the Supreme Court sometimes accuse the justices of disrespecting or being unfaithful to precedent—of severely undermining certain precedents while leaving them formally in place. Yet it remains unclear what exactly these criticisms mean or why they point to anything objectionable. This Article proposes that critics are often drawing attention to a particular practice: obstructing precedent. A better grasp of what obstructing precedent is and when it is legitimate is an important prerequisite to understanding the Roberts Court’s treatment of precedent in a wide range of cases.
Roughly put, a court obstructs precedent when it refuses to cooperate with its prior self in building a coherent body of law. The court reaches a holding in the instant case that cannot be justified by the same rationale—the same weighting of values or purposes—as justified its holding in the precedent case. As a result, the same institution seems over time to speak not with one voice but with multiple discordant voices that reflect no unified political vision. Over the last few years, the Roberts Court has repeatedly obstructed precedent in just this sense in cases spanning diverse areas of the law.
Those who criticize the justices for disrespecting or being unfaithful to precedent usually imply that the justices have thereby acted illegitimately. But that conclusion is too quick. There is nothing inherently illegitimate about obstructing precedent, either legally or politically; obstructing precedent can sometimes be a salutary means of gradual change. At the same time, the Court’s aggressive pattern of obstructing precedent in recent years is cause for concern, given how that pattern undermines the impersonality of the justices’ reasoning and risks further eroding public trust in the Court.
Highly recommended. Download it while it's hot!
And the second is Reasons for Interpretation by Francisco J. Urbina. Here is the abstract:
What kinds of reasons should matter in choosing an approach to constitutional or legal interpretation? Scholars offer different types of reasons for their theories of interpretation: conceptual, linguistic, normative, legal, institutional and reasons based on theories of law. This Article argues that normative reasons, and only normative reasons, can justify interpretive choice. While many believe that normative reasons — such as those related to the realization of justice, fairness, or the rule of law — play some role in interpretive choice, no one holds explicitly that non-normative reasons should be irrelevant. Many find intuitive the idea that, for example, the very concept of interpretation, or the nature of communication or law, constrain interpretive choice. Even scholars who make the case for the role of normative reasons in interpretation grant some independent weight to non-normative reasons. This Article formulates the normative choice thesis explicitly for the first time, and it offers a systematic analysis of the different kinds of reasons usually canvassed to defend theories of interpretation, showing why each type of non-normative reasons cannot justify interpretive choice.
The Article highlights some implications of the normative choice thesis, the most important of which is “contingency.” If interpretive choice cannot be grounded in some immutable truth about the idea of interpretation or language, but only on normative reasons, then it is liable to change with circumstances. There should be no expectation that a single approach to constitutional or statutory interpretation will always be the right one. This challenges some well-established features of our legal culture, such as the common practice of committing to a single approach of interpretation (“I’m an originalist,” “I’m a living constitutionalist”), or of expecting judges to be consistent in their approaches to interpretation.
Highly recommended. Download it while it's hot!