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11/01/2022

William Baude & Stephen Sachs: The Official Story of the Law
Michael Ramsey

[Editor's note: apologies for recent intermittent posting and access.  Our hosting service has been experiencing some issues.]

William Baude (University of Chicago - Law School) & Stephen E. Sachs (Harvard Law School) have posted The Official Story of the Law (Oxford Journal of Legal Studies, forthcoming) (24 pages) on SSRN.  Here is the abstract:

A legal system’s ‘official story’ is its shared account of the law’s structure and sources, which members of its legal community publicly advance and defend. In some societies, however, officials pay lip service to this shared account, while privately adhering to their own unofficial story instead. If the officials enforce some novel legal code while claiming fidelity to older doctrines, then which set of rules—if either—is the law? We defend the legal relevance of the official story, on largely Hartian grounds. Hart saw legal rules as determined by social rules accepted by a particular community. We argue that this acceptance requires no genuine normative commitment; agreement or compliance with the rules might even be feigned. And this community need not be limited to an official class, but includes all who jointly accept the rules. Having rejected these artificial limits, one can take the official story at its word.

Via Volokh Conspiracy, where the authors add: 

As a matter of constitutional law, our argument responds to a recurring question about how to think about "our law" of constitutional interpretation. Suppose one thinks that judges systematically invoke one set of considerations in their official legal reasoning, while being motivated behind the scenes by something else. (For instance, one might think that courts publicly reason in terms consistent with original law originalism, while actually trying to promote some set of non-legal policy goals.) The Official Story explains why the rules of our legal system are evidenced by the former rather than the latter.

This is an excellent short essay that clarifies in my mind the disagreement I have with the authors regarding originalism.    I just don't think that modern U.S. constitutional law has an "official story" in this sense (other than that the law is what the Supreme Court says it is until the Court says otherwise).  Originalism, in my view, is the movement to convince the legal culture that the "official story" ought to be adherence to the Constitution's original meaning.