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Monday, March 10, 2008

Horowitz on Deference, Hills on Pragmatism

My apologies for being MIA lately, despite having agreed to be a guest blogger. I have been in Ann Arbor, MI, attending the Federalist Society student conference and checking up on a farmhouse that, sadly, I (a hapless victim of the real estate downturn) still own in Michigan.

Paul Horwitz asked me on Wednesday, March 5th (an eternity ago in bloggers’ time) about the relationship between deference to institutions and distinctions between constitutional meaning and constitutional implementation. (As he notes, these are a couple of topics on which I have written). Paul’s question provided an occasion for me to read over his excellent piece in Notre Dame Law Review on the Three Faces of Deference, for which I am grateful. (See article)

I largely agree with Horwitz’s account of judicial deference. I think of the concept in terms of Raz’s concept of “preemptive authority”: Sometimes decision-makers can do a better job of making a correct decision if they substitute someone else’s judgment for their own. As Raz, Horwitz, Robert Schapiro, and others have noted, this means that the decisionmaker must adopt others’ decisions that the decisionmaker thinks are incorrect on their merits, trusting in the superior expertise of the authoritative decisionmaker. In reply to the famous bumper sticker, “Question Authority,” the advocate of preemptive authority defiantly replies, “No, I won’t!” (incidentally contradicting and confirming the bumper sticker simultaneously).

But here is where I disagree with Paul. I think that Paul’s distinction between “epistemic” deference and “legal authority” deference misleadingly distinguishes between fact and value. As a thorough-going pragmatist, I think that the fact-value distinction is unhelpful. In constitutional theory, it has led to the disastrous distinction between “constitutional meaning” and “constitutional implementation.” As Paul notes, I have attacked this distinction elsewhere. (For my latest sally, you can see my review of Kim Roosevelt’s book in Judicature) (See review)

The problem, in brief, is that we can have no concept of “epistemic authority” (authority to make factual judgments) without a normative theory about what constitutes appropriate fact-finding method for a particular social sphere. Obviously, the criteria for making true judgments in physics will be different from the criteria in history, psychology, religion, art, etc. The reason why I describe myself as a “Pragmatist” is that I subscribe to this notion that we have multiple criteria for “truth,” and this notion was most famously explained by and defended by William James in his “Will to Believe” as the “multiverse.” (Nelson Goodman made a similar argument in his “Ways of World-Making”).

Deciding whether some institution has “epistemic authority,” therefore, requires the judge to have a normative theory about what constitutes the right method. But this normative theory amounts to a theory of appropriate jurisdiction – in other words, legal authority. Distinguishing between epistemic and legal authority, therefore, assumes that we can have a notion of when an institution is “good” at finding facts without a legal/normative theory of which sorts of fact-finding methods are appropriate to a particular social sphere. But we cannot. Hence, my Pragmatist objection to Paul’s taxonomy of deference.

An example might help. Suppose that the mayor of Ann Arbor, pursuant to some city ordinance, were to overrule the University of Michigan Law Faculty’s decision not to tenure a professor. “The professor deserved tenure!” the mayor declared, citing the candidate’s publications and good teaching evaluations. A court might review the mayor’s decision by asking whether the city had jurisdiction over the university or by asking whether the law faculty is better at making judgments about tenure than the mayor. But I say that these decisions cannot be disentangled. The law faculty is “better at” judging academic credentials only because “we” the (state or federal) people have declared that this is the sort of judgment that ought to be made academically rather than electorally. We may have made this declaration explicitly in statutes or constitutions or (more likely) implicitly in various social practices inferred from tradition and social norms. But it is the social choice to choose one set of criteria for truth over another than bestows “epistemic authority” on the law faculty. It might be that, in some abstract sense, mayors will in general choose “better” – meaning, say, more politically relevant, more interesting, kinder, more intelligent -- profs than law faculties. Who knows? But the relevant criteria is academic, because “we” said so. Epistemic authority is defined by legal authority.

Once one accepts the proposition that epistemic authority – the ability “correctly” to infer “facts” – is normative, then the anti-pragmatist notion that such an ability can be inferred without a theory of authority collapses. And so does the distinction between constitutional meaning and constitutional implementation. All of those allegedly “non-constitutional” considerations about how best to implement the constitution’s “meaning” turn out to be thoroughly normative and legal, tied up with the usual constitutional criteria of text, original understanding, post-enactment history, precedent, and so forth, Why should courts not decide issues that are not judicially manageable? Because they are not the sorts of issues that courts are good at deciding. But why are courts not good at deciding them? Because we have a specific normative theory of what it means to be a “court” that is derived from the usual sources of constitutional authority. The business of inferring those normative commitments is not a whit different than the business of inferring our constitutional commitments to equality and so forth.

Fallon and Roosevelt and Berman make the judgment about implementation seem more contingent, more empirical, less “legal” than decisions about pure meaning. I think that this is an error. In this sense, Pragmatists like myself and Daryl Levinson disagree with what I have called the “anti-pragmatist” arguments of Mitch Berman, Dick Fallon, Kim Roosevelt, and (I think) Paul Horowitz.

Posted by Rick Hills on March 10, 2008 at 09:25 AM in Legal Theory | Permalink

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Comments

I quite agree with Jed Harris' remark. Indeed, I agreed with him in my initial post. Just to repeat the relevant language: the 'epistemic authority' of academics is established "implicitly in various social practices inferred from tradition and social norms." Of course, social practices evolve through competition among institutions, and it is always a somewhat open question, at least on the margins, of what "our" shared social practices are.

The important point is that, when judges defer to other actors because of their "epistemic" expertise, such deference must also be based on some concept of "legal authority," meaning some normative view about why the actor's peculiar method of making judgments is superior to the actor's rivals' methods. For instance, judges often declare that parents are experts in determining the best interests of their children. (See, e.g., Troxel v Granville, 530 U.S. 37 (2000). But these declarations are rooted in social customs that have nothing to do with the relative accuracy of parents' versus child psychologists' judgments. Rather, these declarations are rooted in normative views about how children ought to be governed -- e.g., fears of a socialistic "beehive state," distrust of elitism inherent in authority based on academic degrees, fears about loss of lay control over the household, and so forth. What Paul Horwitz calls "epistemic authority" is always and at the same time "legal authority."

But you should take a look at Paul's wonderful article, which, despite my objections, is one of the best accounts of deference I've read.

Posted by: Rick Hills | Mar 12, 2008 5:11:13 AM

I'm not familiar with the background of this argument, but it seems to ignore a strong historical and empirical pattern. For example, Rick says
The law faculty is “better at” judging academic credentials only because “we” the (state or federal) people have declared that this is the sort of judgment that ought to be made academically rather than electorally.

But historically the law faculty established itself as a an expert community (from the late middle ages on) by struggles with other sources of authority -- it was not given that status.

Similarly in an area closer to my own experience, various sources of standards and technology regulation compete for allegiance and authority. Some are "chartered" and others are just bunches of people who work together. Sometimes those bunches of people get a lot of authority -- the internet standards are managed by the IETF which pretty much just anointed itself.

Turning this on its head, I think judicial and legislative institutions have to compete for authority in their domains against other formal and informal institutions. The illusion that these institutions have sui generis authority is comforting but not realistic.

Posted by: Jed Harris | Mar 12, 2008 12:33:37 AM

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