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32 posts from November 2017


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."


The CFPB and Absence versus Resignation
Michael Ramsey

In the on-going debate over who now heads the Consumer Financial Protection Bureau (CFPB), the focus has been on whether the statute establishing the CFPB (the Dodd-Frank Act) overrides the Vacancy Reform Act (VRA).  (Marty Lederman has a good discussion here).  The debate highlights a broader point about textualism (and, by extension, originalism).

Dodd-Frank says that the Deputy Director of the CFPB “shall . . . serve as acting Director in the absence or unavailability of the Director.”   The VRA says that  in the case of a vacancy in an office for which Senate advice and consent is required (which includes the Director of the CFPB) “the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity" but also that “notwithstanding [the prior provision], the President (and only the President) may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity ...”  President Trump appointed an Acting Director of the CFPB pursuant to the VRA; but the Deputy Director of the CFPB claims to be Acting Director pursuant to Dodd-Frank.

My view (following Andy McCarthy at NRO) is that President Trump's appointment should prevail, as it is obviously authorized by the VRA and that the Dodd-Frank provision isn't relevant.

The key language from Dodd-Frank again is that the Deputy Director serves as Director "in the absence or unavailability of the Director."  That is not the situation here.  The former director (Richard Cordray) has resigned.  Thus there is no Director.  As McCarthy puts it: "What Cordray has created is a vacancy. He is not merely absent or unavailable in the commonsense, temporary understanding of these words; he is gone."

In ordinary speech, the phrases "absence" and "unavailability" of a person indicate that the person exists but is presently incapable of acting -- for example, because the person is sick, on vacation, or otherwise incapacitated.   Suppose I call an agency and ask to speak to the Director, and I'm told by the receptionist that the Director is "absent or unavailable."  I will assume that there is a Director, but he can't talk to me now, and I might ask the receptionist to have him call me once he is available.  I would be quite surprised if I later learned that actually there was no Director of that agency because the office was vacant, the previous Director having resigned or died.  If that were the case, the receptionist would have said "sorry, there currently is no Director as the office is vacant," not that the Director is "absent or unavailable" (implying that there is a Director who can't come to the phone at the moment).

This reading perfectly reconciles the two statutes.  Dodd-Frank provides for the case in which there is a Director of the CFPB but he cannot perform his duties.  The VRA provides for the case in which there is no Director (a vacancy). 

The current situation is obviously in the latter category.  Cordray is not the Director, having resigned.  The textual counterargument must somehow be that Cordray is actually still "the Director" but he is "absen[t] or unavailab[le]" due to his resignation.  But that is incoherent.  Once he resigns he is no longer the Director, and although he may be "unavailable," he is not the Director and his unavailability does not mean "the Director" is unavailable.  Rather, after his resignation there is no Director.  If the question is, is "the Director absent or unavailable," the answer is no, because there is no Director to be absent or unavailable.

To be sure, it's possible to argue that the phrase "absence or unavailability of the Director" could include a situation in which there is no Director.  (As Professor Lederman notes, the Office of Legal Counsel has taken that position).  But here is my broader point about textualism: Textualism does not contend that statutes (or constitutional provisions) will typically have only one conceivable meaning.  Lawyers will almost always be able to find another conceivable meaning, if it serves their interests (that's how lawyers are trained).  The question for a textualist is whether one meaning is substantially more likely than the other -- if so, it should be preferred, even where there is a conceivable alternative.

In the CFPB debate, I think the ordinary meaning of "absence or unavailability" of the Director is clear and does not include vacancies -- even if the phrase could arguably be stretched to include them.  It's not enough that the stretch is arguable; the question is whether the stretch is the more plausible reading of the language.  I think quite clearly is not.  That should be enough for a textualist conclusion: the VRA, not the Dodd-Frank provision, applies to the current situation.


Originalism and Proportionality Analysis
Mike Rappaport

One of the important differences between American constitutional law and the constitutional law of much of Europe and of many countries throughout the world is the use of proportionality analysis outside of America.  Proportionality analysis can be thought of in several ways, but it is primarily a doctrinal tool used to analyze whether an individual constitutional right can be regulated by the state.

Proportionality analysis generally considers the following aspects:

1. Does the legislation (or other government action) establishing the right’s limitation pursue a legitimate objective of sufficient importance to warrant limiting a right?

2. Are the means in service of the objective rationally connected (suitable) to the objective?

3. Are the means in service of the objective necessary, that is, minimally impairing of the limited right, taking into account alternative means of achieving the same objective?

4. Do the beneficial effects of the limitation on the right outweigh the deleterious effects of the limitation; in short, is there a fair balance between the public interest and the private right?

Clearly, this four part test is similar to, but distinct from the doctrinal tests that the U.S. Supreme Court often uses to analyze rights, such as strict or intermediate scrutiny.  But it differs by allowing for more balancing (under step 4) and in the way the courts apply it.

High courts in Europe and throughout the world have used this approach in breathtaking exercises of judicial power.  And it is sometimes thought to be the opposite of an originalist approach.  But in this short essay (of seven pages), I argue that originalism and proportionality analysis are not opposites.  In fact, some of the time proportionality analysis may be justified under originalism.

Here is the abstract:

While it is often thought that proportionality analysis (PA) and originalism are inconsistent with one another, this essay argues that the two approaches do not necessarily conflict.  The reason is that originalism and PA are focused on different things.  Originalism is an interpretive method that attempts to determine and apply the original meaning of a constitution.  PA, by contrast, is a method mainly for analyzing rights under the fundamental law.  If the original meaning of the constitution requires PA, then the two approaches will coincide.  If the original meaning requires something other than PA, then the two will conflict.

The real question, then, is not whether the two approaches conflict or coincide in general, but whether the original meaning of a particular constitution requires or permits PA.  This essay, which is part of a symposium on originalism published online in the Italian Law Journal Diritto Pubblico Comparato Ed Europeo, develops these points.  It starts by showing that originalism is not necessarily inconsistent with PA.  It then explores the changes in originalism in recent years and some of the different types of originalism.  It then explains how several constitutions throughout the world, that do not explicitly allow PA, might or might not, depending upon the details, be understood to require or permit PA.

Justice Gorsuch on Originalism and Textualism
Michael Ramsey

From the AP's Mark Sherman, Gorsuch establishes conservative cred in 1st year on court.  With these observations on Justice Gorsuch's speech to the Federalist Society's National Lawyers' Convention: 

Gorsuch made no apologies either for the substance of his questions and writing, or his style. He talked at length about the importance of seeking out the meaning of the Constitution and laws as they were understood when they written.

“Originalism has regained its place at the table of constitutional interpretation, and textualism in the reading of statutes has triumphed. And neither one is going anywhere on my watch,” Gorsuch said.

He went on to note that “some pundits have expressed bewilderment” about the questions he asks in court.

“But while I have you here tonight, I thought I might just settle the matter once and for all by taking a poll. ... Should I just keep on asking about the text and original meaning of the Constitution?” he asked.

The response was predictably and overwhelmingly in favor.

(Via How Appealing).



Philip Hamburger on Oil States v. Greene's Energy
Michael Ramsey

Along with Carpenter v. United States (discussed here yesterday; argument on Wednesday), a second important constitutional case at the Supreme Court this week is Oil States Energy Services, LLC  v. Greene's Energy Group, LLC, argued today.  At Notice and Comment, Philip Hamburger has this historically oriented discussion: PTAB, Patents, and the Constitution.  From the introduction:

The question [in Oil States] is whether the PTAB is unconstitutionally extinguishing private property rights in a non-Article III forum without a jury. At stake, therefore, is a range of vital issues, including patents, property, and the right to be heard in a real court, with a jury.


In the seventeenth-century, the Privy Council had invalidated patents for inventions and thus had evaded the regular courts. And it is not unsurprising that, amid royal assertions of absolute power, the Privy Council thus challenged what were understood as property rights. But this soon became a constitutional anomaly, and in the eighteenth-century the Privy Council gradually relinquished its power to recall patents. Thus, notwithstanding the Privy Council, patents remained, in the ideals of the common law, grants made of record, which were vulnerable only in courts of record.

It is therefore no small matter that, since the adoption of the Constitution, Congress has authorized the grant of “patents.” The Constitution authorizes Congress to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The use of the word “patent” echoes the Constitution’s words about “securing” an “exclusive right.” The Constitution evidently was speaking about a right to property—a sort of right protected by the courts. And Congress’s use of the phrase “letters patent” in 1790 and later is powerful evidence as to how the Constitution’s authorization was understood at the founding and for a long time thereafter.

Patents were grants of property rights—rights that could be invalidated only in the courts.

(Via Instapundit).


Orin Kerr on Carpenter v. United States
Michael Ramsey

At Lawfare, Orin Kerr: Four Thoughts on the Briefing in Carpenter v. United States (Carpenter v. United States, the cell-cite records case, will be argued next week, on Nov. 29th).

On the so-called "mosaic" theory: 

The most striking aspect of the briefing in the case is that Carpenter goes all-in on the mosaic theory of the Fourth Amendment. He concedes that short-term monitoring of historical cell-site records -- or rather, collection of historical cell-site records covering a short period of time -- is not a search. In his view, collection of cell-site records becomes a search only when the time period of the collection is "longer term."

I've written, both in an article and in Section III of my brief, about the enormous headaches that such a mosaic approach would create. Notably, Carpenter avoids taking a position on how to implement this theory until the reply brief. In the reply brief, he finally takes a view on just the starting question -- how long is longer term -- by offering a 24-hour standard.


Once you start to answer all the questions that implementing the mosaic approach requires you to answer, it quickly becomes clear that you're really drafting a statute. It would be sort of a Miranda on steroids: You'd need to make a few dozen essentially arbitrary line-drawing calls. You can do that. But you'd look a bit silly. It's hard to announce all of those lines without making clear that you're more legislating than interpreting anything in the Constitution. ...

And on the so-called "equilibrium-adjustment" theory: 

I think Carpenter's position is misguided, but his basic theory is the most direct and clear argument for equilibrium-adjustment that I have seen articulated in a legal brief. As some readers know, I have argued that the Court does and should update Fourth Amendment rules to maintain the balance of government power as technology changes. The idea that is that some technological shifts so transform the level of government investigative power (whether expanding it or restricting it) that they justify new rules to restore the prior level of government power. I have called this "equilibrium-adjustment," as the court adjusts the legal rule to restore the prior equilibrium.

With that background, consider how Carpenter frames his constitutional claim:

As new technology has dramatically lowered the cost of government surveillance and increased the government’s access to private information, this Court has stressed that the reasonable-expectation-of-privacy inquiry must “assur[e] preservation of that degree of privacy against government that existed” prior to the advent of the new technology in question. United States v. Jones, 565 U.S. 400, 406 (Scalia, J.) (alteration in original)

This is a bit of a fudge, as the quote from Jones, in turn quoting Kyllo, was actually that "we must assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted" (emphasis added). The sentence was making an originalist claim, looking back to the 18th century, not making an equilibrium-adjustment claim, looking back to before the technology became widespread. Still, it's a fudge that makes the equilibrium-adjustment argument particularly clear. As I wrote back in 2012, I think the mosaic theory is the wrong way to engage in equilibrium-adjustment. But I personally liked how clearly Carpenter relied on equilibrium-adjustment in his brief.

RELATED:  Professor Kerr also has this Carpenter-related shorter post at Lawfare: The Fourth Amendment Doesn't Recognize a General "Right to be Secure".  Core point:

That text does not provide for some sort of general “right to be secure.” Rather, the text is much more specific. It states that “the people” have a right “to be secure” in particular things (“in their persons, houses, papers, and effects”) against something specific (“unreasonable searches and seizures”). In ordinary language, if you have a right to be secure against some specific bad thing, you don't have a general right to be secure. You just have a right to be secure against that specific bad thing. Your right is violated if the bad thing happens. If the bad thing doesn't happen, your right isn't violated.

Agreed, and I think this suggests (as an originalist matter) that Carpenter should lose: the cell-site data is not his papers or effects -- it belongs to a third party.  (This is the "third party doctrine" adopted by the lower court, see here).  Professor Kerr made this point back when the Court agreed to hear the case -- see here:

Here’s the opening text of the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]

As Justice Antonin Scalia emphasized in his concurrence in Minnesota v. Carter, the word “their” can be understood as important in historical context. It signals that to assert a Fourth Amendment violation, a person’s own self, houses, papers or effects must be unreasonably searched or seized.

But I also think the Court is more likely to favor some sort of updating or "equilibrium-adjustment" approach, and it can appeal to Scalia in the Kyllo case (as Carpenter's brief does) in support.


Josh Blackman on President Trump and Separation of Powers
Michael Ramsey

At NRO, Josh Blackman: Is Trump Restoring Separation of Powers? (commenting on last week's Federalist Society national lawyers' convention).  From the introduction:

Our Constitution carefully separates the legislative, executive, and judicial powers into three separate branches of government: Congress enacts laws, which the president enforces and the courts review. However, when all of these powers are accumulated “in the same hands,” James Madison warned in Federalist No. 47, the government “may justly be pronounced the very definition of tyranny.” The rise of the administrative state over the last century has pushed us closer and closer to the brink. Today, Congress enacts vague laws, the executive branch aggrandizes unbounded discretion, and the courts defer to those dictates. For decades, presidents of both parties have celebrated this ongoing distortion of our constitutional order because it promotes their agenda. The Trump administration, however, is poised to disrupt this status quo.

In a series of significant speeches at the Federalist Society’s national convention, the president’s lawyers have begun to articulate a framework for restoring the separation of powers: First, Congress should cease delegating its legislative power to the executive branch; second, the executive branch will stop using informal “guidance documents” that deprive people of the due process of law without fair notice; and third, courts should stop rubber-stamping diktats that lack the force of law.

From later on:

Every November, the Federalist Society holds its annual meeting in Washington, D.C. But this year, the gathering had a highly unusual dynamic. It is common for scholars to criticize Congress for delegating its power to the executive branch, a violation of what is known as the non-delegation doctrine. It is unprecedented for the executive branch to share that concern. In a keynote speech, Don McGahn, who serves as White House counsel, lamented the fact that Congress gives the White House too much power. “Often Congress punts the difficulty of lawmaking to the executive branch,” he said, “then the judiciary concedes away the judicial power of the Constitution by deferring to agency’s interpretation of what Congress’s vague statutes.” One would think that a lawyer for the president would relish this abdication by Congress and the courts. But no. Instead, McGahn praised a recent concurring opinion by Justice Thomas, in which Thomas “called for the non-delegation doctrine to be meaningfully enforced” to prevent the “unconstitutional transfer of legislative authority to the administrative state.” Again, reflect on the fact that if Justice Thomas’s position gained four more votes, much of Congress’s legislation — which carelessly lobs power to the White House with only the vaguest guidelines — would no longer pass constitutional muster.

And finally:

There is one final but imperative aspect of the Trumpian Constitution: the judiciary. During the 2016 campaign, then-candidate Trump released a list of possible nominees to fill Justice Scalia’s seat. At the time, I wrote on NRO, “I have expressed my serious doubts about Mr. Trump’s vision of constitutional law, but so long as he sticks with this list, I remain cautiously optimistic.” Stick with the list he did, and then some. In addition to his nomination of Neil Gorsuch to the Supreme Court, the Trump administration has set a modern-day record for the number of district- and circuit-court judges confirmed in the first year. More important, the White House is not taking any chances with these picks. McGahn noted that “they all have paper trails, they are sitting judges, there’s nothing unknown about them. What you see is what you get.” And there has been a pervading philosophical consistency to these nominees. McGahn stated it bluntly: “We are committed to nominating and appointing judges that are committed originalists and textualists.” In a not-too-subtle jab at Chief Justice Roberts, McGahn noted, that his office is seeking judges who “possess the fortitude to enforce the rule of law without fear of public pressure,” for “judicial courage is as important as judicial independence.” Trump is looking for “strong and smart judges.” ....


More Originalism Skepticism from Eric Segall
Michael Ramsey

In response to my comments here, Eric Segall writes: 

As usual Mike Ramsey raises interesting points about my criticisms of Justice Scalia. Mike's first point is that Scalia might have felt it impossible to consistently apply originalism in areas like the first amendment where there exists so much Supreme Court case law. That's fair but then Scalia should have admitted that instead of going around the country saying the Constitution is "Dead, Dead, Dead." As David Strauss has pointed out, most of constitutional law is made up of Supreme Court decisions. If that makes Originalism very difficult, Scalia should have said so more directly.

Mike's second point is that I overstate the degree to which Scalia failed to use originalist analysis. This is largely an empirical question and I'll address it at length in my forthcoming book.

Mike's third point is that even if Scalia did not apply Originalism faithfully, that says little about the doctrine itself. Originalists don't claim the doctrine is perfect  just that it is more constraining than other doctrines. But today there are as many different forms of Originalism as there are alternatives, and leading Originalists have said that Originalism justifies Obergefell, Roe, and Brown while others deny that vehemently. The entire doctrine of constitutional construction allows judges to import their normative values into constitutional litigation, something Justice Scalia did throughout his career, in the cases I cited in my original piece.

RELATED:  Professor Segall has this additional post at Dorf on Law: Text and History Fed Soc Style (commenting on last week's Federalist Society National Lawyers Convention in Washington). 

Professors Randy Barnett and Akhil Amar had a fascinating, informative and entertaining debate at the Federalist Society Convention on Saturday. The question was "Resolved: Lochner Still Crazy after all These Years." I recommend you watch the entire debate, but I want to focus on what Barnett said at the very end. In response to a question concerning how far the legal academy has come in accepting the idea that maybe Lochner wasn't all that bad, Barnett attributed the development to the Federalist Society's thirty-year commitment to pushing judges to adopt a textualist-originalist approach to constitutional interpretation. Barnett's explanation echoed the overriding theme of the conference, which was that finally textualist-originalist judges were being appointed to the bench. The White House counsel said at the convention, to everyone's delight, that "The Trump Administration's philosophy on judging can be summarized in two words: "Originalism and Textualism.'"

There are a number of ironies in this Federalist Society call for textualist-originalist judging. First, Barnett using Lochner to support his textualism/originalism thesis is interesting given that there is barely a word about text or history in the entire majority opinion. Moreover, as my forthcoming book "Originalism as Faith" will argue, the founding fathers either believed in the "clear error" version of judicial review, or maybe just a strongly deferential system. There is no plausible argument they believed in an aggressive, Lochner-style form of judicial review. And of course, judicial review is nowhere mentioned in the Constitution. If Barnett and Fed Soc want to defend Lochner's version of judicial review, it will have to be through a living constitutionalism type argument not a textualist-originalist one.

Second, focusing on text gets judges almost nowhere when resolving constitutional cases, just like it was irrelevant to the majority in Lochner. Most constitutional litigation arises under clauses that are hopelessly vague and general such as the First Amendment's speech and religion clauses, the Fourth, Fifth and Sixth Amendment's criminal procedure rules, which are mostly unclear, and the Fourteenth Amendment's equal protection and due process clauses. All judges are textualists in the sense that if the text is clear, the judge will follow it, but that rarely if ever happens in constitutional law.

Maybe what the Federalist Society is devoted to is the idea that judges shouldn't make up rights and principles that aren't enumerated in the Constitution. But that can't be right for two reasons. First, there is considerable support these days among Federalist Society members for the idea that the Privileges or Immunities Clause (and maybe the Ninth Amendment) protect unenumerated rights. Barnett has worked hard to make both of those ideas mainstream among Federalist Society followers. The main focus of the Society seems to have switched from anti-Roe, anti-judicial activism to the thesis that the Justices aren't doing enough to protect the right kind of (i.e., economic) rights, enumerated or not.

Second, although I have no proof, my strong guess is that most of the people clapping wildly for textualist judges at the convention agree with the equal state sovereignty principle the Court espoused in Shelby County, the anti-commandeering principle of Printz v. United States, the color-blind principle advocated so long by the conservatives on the Court in numerous affirmative action cases, and the sovereign immunity principle applicable to suits against states by their own citizens that the Court concocted in Hans and reaffirmed in Seminole Tribe. None of those important constitutional limitations on governmental discretion can be found anywhere in the Constitution's text.

(Thanks to Mark Pulliam for the pointer).


Jonathan Siegel: The Legacy of Justice Scalia and His Textualist Ideal
Michael Ramsey

Jonathan R. Siegel (George Washington University Law School) has posted The Legacy of Justice Scalia and His Textualist Ideal (85 Geo. Wash. L. Rev. 857 (2017)) on SSRN.  Here is the abstract:

The late Justice Antonin Scalia reshaped statutory interpretation. Thanks to him, the Supreme Court has become far more textualist. Nonetheless, Justice Scalia never persuaded the Court to adopt his textualist ideal that “the text is the law.” In some cases, the Court still gives greater weight to other indicators of statutory meaning, such as perceived statutory purpose. Fundamental institutional features of courts and legislatures — particularly the fact that legislatures act generally and in advance, whereas courts resolve particular questions at the moment a statute is applied — justify this rejection of the textualist ideal.

Professor Siegel sketches the highlights of his article on SCOTUSblog: Legal scholarship highlight: Justice Scalia’s textualist legacy.  From the section titled "Assessing Scalia's Influence":

Scalia’s textualist campaign was tremendously influential. He changed the way courts interpret statutes. His influence is visible in virtually every Supreme Court opinion interpreting statutes today. Consider, for example, the 2010 case Bilski v. Kappos, which tested whether a business method can constitute a patentable “process.” For over a century, courts applied patent law with a rich awareness of the history, policies and background understandings of the patent system, which frequently caused courts to gloss, strain and even depart from the patent statute’s text. In Bilski, however, the Supreme Court simply consulted “dictionary definitions,” “common usage” and the interpretive canon against statutory redundancy. Gone were appeals to history, policy and background understandings. Cases like Bilski are far more common today than cases like Monell or Overton Park [non-textualist opinions from the 1970s].

With regard to legislative history, Scalia’s most particular concern, the Supreme Court still consults it, but in a somewhat apologetic way. Often it adds a disclaimer such as “for those who consider legislative history relevant.” The practice of putting legislative history on a par with statutory text has been repudiated.

Nonetheless, the Supreme Court, and federal courts generally, have never fully accepted Scalia’s textualist ideal that “the text is the law.” Justice Elena Kagan, in a lecture at Harvard Law School, recently said that thanks to Scalia, “we are all textualists now.” Kagan, however, is correct only in a relative sense. We are all textualists now compared with the 1960s and 1970s. It is now generally agreed that when interpreting a statute, a court should start by reading the statutory text and should not lightly depart from the text. But we are not all textualists by Scalia’s definition. There is not general agreement that “the text is the law.” Recent cases show that courts are not committed to following statutory text no matter what. ...


Stephen Mouritsen: Objective Plain Meaning in Common Law Contracts
Michael Ramsey

Stephen C. Mouritsen (University of Chicago - Law School; Brigham Young University - J. Reuben Clark Law School) has posted Objective Plain Meaning in Common Law Contracts on SSRN.  Here is the abstract:

When called upon to interpret the undefined language of a common law contract, judges and lawyers have for centuries appealed to the so-called Plain Meaning Rule — a canon of contractual interpretation that states that if the language of the contract is clear and unambiguous, courts cannot consider extrinsic evidence.

This rule is often justified on the basis of objectivity and efficiency. If the parties have committed their agreement to a writing whose terms are plain, it would be unfair and wasteful to consider extra-contractual evidence of meaning. Recent scholarship has questioned the objectivity and efficiency of courts’ plain-meaning analysis. Contract interpretation, the argument goes, has become an inconsistent, unnecessarily complex, and unpredictable enterprise. The question then is how to fix it.

One recent proposal is to borrow the survey methodologies of trademark disputes. This is an attractive approach as it would introduce a measure of objectivity into the analysis of plain meaning. But survey methodologies can be costly and their results may be subject to a variety of response biases.

Another approach, the one advocated here, is to rely on data from corpus linguistics in making judgements about plain meaning and ambiguity in contracts. Like the survey method, corpus linguistics would introduce greater objectivity and predictability into the analysis of contractual meaning. Corpus linguistics draws its data from large, coded, electronic collections of natural text, meaning that the data relied upon in corpus linguistics is free of response bias. Moreover, data from linguistic corpora are freely available and, in many cases, easier to obtain than relevant survey data.

At bottom, I argue that the question of the plain meaning of the words of a contract is an empirical question that calls for an empirically based answer — an answer that is rooted in experimentation and observation and whose results are verifiable and falsifiable. Below I outline how corpus linguistic methods may be applied to the interpretation of contracts.

(Via Larry Solum at Legal Theory Blog, where it is "Download of the Week").