« The CFPB and Absence versus Resignation
Michael Ramsey
| Main | Mark Pulliam on Robert Bork and Judicial Activism
Michael Ramsey »


Donald Drakeman: Consequentialism and the Limits of Interpretation
Michael Ramsey

Recently published in the journal Jurisprudence, Donald L. Drakeman: Consequentialism and the limits of interpretation: do the ends justify the meanings?  Here is the abstract: 

A recent consequentialist resurgence in transnational legal scholarship urges judges in cases involving authoritative texts to make decisions based on which outcomes will be best for society. Some consequentialist scholars assert that judges should openly disclose these reasons, while others advocate replacing them with any plausible argument employing the traditional language of interpretation. This article argues that making consequentialism the primary basis for judicial decision-making runs counter to the long history of legal interpretation, is contrary to the insights of modern decision science, and raises significant separation of powers issues, even when it is fully disclosed. Covert consequentialism is even less likely to lead to good consequences, and it poses substantial threats to both the separation of powers and the rule of law.

Although the abstract doesn't make this clear, the article is an important response to Cass Sunstein's article There is Nothing that Interpretation Just Is (30 Constitutional Commentary 193 (2015)).  From the introduction (footnotes omitted):

Sunstein's title will likely appear whenever someone needs to defend an argument from an attack along the lines of, ‘That's not an interpretation of the law, just your own preferences’. The now obvious response is, ‘Of course it is. Harvard Professor Sunstein has taught us that there is nothing that interpretation just is’.

Sunstein's plea for interpretative flexibility is part of a recent resurgence in transnational scholarship encouraging judges to base decisions primarily on their consequences rather than on the traditional processes of interpretation.  These scholars seek to inform – and perhaps to replace – the age-old arguments about how legal texts should be interpreted with a consequentialist focus on the expected results of judicial decisions. Drawing inspiration from a variety of fields, from macroeconomics to systems biology, they increasingly see constitutions, charters, laws and regulations as an invitation for judges to weigh the likely outcomes of various possible decisions, and then choose the one that, on balance, makes the world a better place.

Surprisingly few of these discussions explore how judicial consequentialism relates to judges’ traditional role as interpreters of authoritative legal texts. When the issue has occasionally appeared, the principal inquiry has been whether the consequentialist reasoning should be ‘open’ or ‘covert’.

Meanwhile, several American scholars have embraced a covert mode in which judges reach decisions for a variety of reasons, but the court's publicly disclosed rationale is written instead in the conventional language of interpretation. Mark Tushnet has written, for example, that if he were a judge, he would consider ‘which result is … likely to advance the cause of socialism’, and then, having picked the desired result, he ‘would write an opinion in some currently favoured Grand Theory [of the Constitution]’. ...

Sunstein's ... goal is to find creative ways to employ traditional forms of legal reasoning to clothe consequentialist decisions. His major theme is that the usually conflicting views of leading theorists and jurists – he cites Ronald Dworkin, Justice Antonin Scalia, John Hart Ely, and others – are all legitimate contenders in the realm of interpretative theory, but they largely miss the point: because these conflicting views are all legitimate modes of interpretation – and, therefore, none has a valid claim to exclusivity – judges can be flexible and pick whichever one plausibly justifies a consequentialist judicial decision.

In ‘not ruling out’ any of the traditional interpretative approaches, Sunstein does not invoke the full degree of postmodernism implied by his title, which would require him to make what he calls the ‘preposterous’ claim that the meaning of a legal text is ‘entirely up for grabs’.  Yet, ‘among the permissible alternatives’, he argues, ‘identification of the proper approach to constitutional interpretation requires attention to whether it would make our constitutional order better or worse’. For Sunstein and other adherents of the covert school of thought, freeing judges to make the best choices means releasing them from the constraints of worrying about methodological purity or interpretative consistency. Since ‘there is nothing that interpretation just is’, covert consequentialists have considerable freedom to select the ideal outcome while retaining the rhetorical value of the time-honoured language of interpretation ...

There are two interrelated questions addressed in this article. The first is whether judges should embrace consequentialism with the level of enthusiasm encouraged by recent scholarship. While consequentialism can appear in a variety of forms, this article will concentrate on the use of consequentialist analyses by apex courts to reach a decision about the interpretation of a statute, constitution, charter, treaty or other element of the written law such that the new meaning establishes a rule that is applicable to future cases. For several scholars, including Flavia Carbonell's discussion of the Chilean Constitutional Court and Sunstein's analysis of US constitutional law, this consequentialism extends to cases involving fundamental rights and other highly contested issues of public policy.   The second question is whether judges who adopt consequentialism in such cases should openly acknowledge that methodology in the publicly available record of the judicial decisions or whether their consequentialism instead should be covert, with a plausible interpretative argument used in its place? ...

And the first substantive section is titled "What Interpretation Is."