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Tuesday, February 13, 2007

Dorf on Textualism & Originalism

Over at the slightly misnamed "Dorf on Law" (which is neither entirely Dorf nor entirely on law...discuss),  Mike has a couple of posts up on popular preferences for textualism or other putatively inflexible judicial interpretive methods, such as originalism.  His basic take, which I think is mostly right, is that when non-lawyers react to a case, they are responding to the results, not the jurisprudential method that produced them.

While popular views about results may swamp popular opinion of process in any given case, in the abstract it seems to me that there is some preference for law that is highly rule-like (i.e., textualist or otherwise inflexible).   In part that must be based on how the public feels about judges -- if someone shares our values, we're certainly more likely to be willing to delegate more authority to them.  So some of the preference for textualism is manufactured -- "elitist" judes become a good foil for politicians who want to present themselves as someone who shares the voter's values.  Somewhat ironically, that tactic may actually make it easier for judges to use open-ended interpretive methods, rather than tying their own hands with textualism and originalism, because it may make psychological constraints on interpretation more powerful.  I make a version of that argument elsewhere.

The point I want to make here, though, is that the demand for textualism could reflect a rough popular judgment about what, on average, will be the best rule for society.  For example, calling for textualism could be a kind of commitment device.  My sense is that people think of "strict" interpretation as, in fact, strict.  That is, they believe that when judges make exceptions or invoke purposive reasoning the result is to allow others to escape from the obligations of the law that appear to bind everyone else.  But no one wants to be the sucker who is obeying when everyone else is getting away with it.  So demanding "strict" interpretation is a way of assuring yourself, and others, that you and they will be held to the law.   

Again, there's any irony here.  Any tax lawyer will tell you that "strict" or rule-like interpretation usually is the method that tax avoiders hope for; it's purposive interpretation (in tax terms, the "business purpose" and "economic substance" doctrines) that catches efforts to shirk the responsibilities that others shoulder.  What about government officials?  Should their compliance with law be viewed strictly (strict scrutiny...?) or loosely (Chevron, qualified immunity...?).  That suggests that a really sensitive rule-utilitarian analysis of the right interpretive method is probably very complicated.

In sum, I think there may be some efficiency-type rationale for why people think they like textualism.  But there's a good chance it turns out to be wrong.             

Posted by BDG on February 13, 2007 at 11:51 AM in Legal Theory | Permalink


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