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09/21/2017

Charles Barzun: Justice Souter's Common Law
Michael Ramsey

Charles L. Barzun (University of Virginia School of Law) has posted Justice Souter's Common Law (Virginia Law Review, forthcoming 2018) on SSRN.  Here is the abstract:

The first-year law-school curriculum aims to teach students the “common-law method.” But exactly what sort of judicial reasoning that method permits and requires has long been the subject of debate. There are multiple models of common-law reasoning, not just one. This Article identifies one such model that legal scholars have yet to recognize as a distinct theory of common-law adjudication. It is an approach I ascribe to former Justice David Souter.

Seeing Justice Souter as a common-law judge is hardly novel; it is the conventional wisdom about him. But in my view Souter’s understanding of the process of case-by-case adjudication reflects deeper philosophical commitments – and, for that reason, carries with it more radical implications – than has been appreciated. To support this claim, I compare Souter’s understanding of the common law to two better known rivals – Ronald Dworkin’s “law as integrity” and Judge Richard Posner’s legal pragmatism. I then show how each of the three models flows from its own more general model of practical reasoning. 

The upshot of the comparative analysis is a clearer view of a model of common-law reasoning that combines elements of the other two but that rejects an assumption common to them both. Like Dworkin’s, Souter’s model sees legal principles embodied in case law; but like Posner’s, it is empiricist and pragmatist in spirit. It can coherently combine these elements only because, unlike either of its rivals, Souter’s model treats factual and evaluative forms of reasoning as continuous with each other, rather than dichotomous. In rejecting the fact/value dichotomy, Souter accords a much greater role to history in common-law reasoning than do either Posner or Dworkin. The result is an understanding of common-law adjudication that is at once more traditional and more radical than either of its more famous rivals. I examine that more radical dimension at play in some of Justice Souter’s most famous and controversial opinions, including the joint opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey.

In comparing the Souter approach to originalism, a key question is whether Souter's approach actually imposed any constraints, or whether it merely justified results consistent with the Justice's intuitions.  If the latter, it's really just a version of living constitutionalism, like the Posner and Dworkin varieties.  If the former, it could be a legitimate "third way" alternative to the originalism/living constitutionalism debate.

(But I think it was the latter).