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Monday, May 25, 2020

Legal Scholarmush

There is a vast conceptual difference between descriptive and normative claims about the law. Under a common view, descriptive claims about what the law is rely on legal sources such as cases, statutes, and regulations, and perhaps reasonable predictions about how judges and others will behave in the future. By contrast, normative claims about what we morally ought to do depend on more than just descriptive facts. They depend on values that cannot be deduced merely by empirical investigation. As a descriptive matter, a jurisdiction may criminalize insider trading, but that tells us little, if anything, about whether the conduct ought to be criminalized. Many laws have been morally atrocious, including statutes and decisions institutionalizing slavery, limiting women’s property rights, prohibiting interracial marriage, and so on.

Yet the difference between the descriptive and the normative is frequently blurred or ignored by legal scholars. One scholar might say that a judge “should” deem the defendant’s conduct insider trading, while another might say that a judge “should not.” Though their views appear oppositional, they may agree on substance if one refers to a legal “should” (meant as an expression of the positive state of the law) and the other to a moral “should” (meant to be independent of the positive state of the law). Conversely, scholars may express agreement but actually hold antithetical views. We are left not with productive scholarly exchange but with scholarmush—a tangled combination of claims rooted partly in law and partly in morality that are partly dependent on facts and partly dependent on values. It’s time to untangle the scholarmush.

To see why legal scholars should be explicit about the normativity of their claims, notice some of the many ways two scholars who mush together their views of law and morality might inadvertently talk past each other: (1) they might have a factual disagreement about sources of law (for example, there might be precedents that one scholar is considering but not the other); (2) they might agree about the relevant sources of law but disagree about how judges are likely to interpret them; and (3) they might agree about both the pertinent sources of law and how judges are likely to interpret them but disagree about the best way to proceed from an overall moral perspective (because they disagree about facts, values, or both).

Assume, for example, that a judge must give primary custody of a divorcing couple’s seven-year-old son to one of two parents who live several hours drive from each other. As a legal matter, the case turns on the “best interests” of the child, and we will assume those interests are in equipoise, given available evidence, with two possible exceptions. Professor A says that primary custody of the child “should” go to the father because the child has more friends who live near the father than the mother. Professor B says that primary custody “should” go to the mother because, even though there’s no evidence in the record to prove it in this particular case, she believes mothers are generally better nurturers than fathers, and this consideration dominates the issue of how many existing friendships a seven-year-old child has.

It seems like A and B disagree about what “should” happen. But consider several ways in which their disagreement might just be terminological: First, A may speak of legal normativity while B may speak of moral normativity. When A says custody should go to the father, she may be making a descriptive legal claim, “the law requires giving custody to the father,” conjoined with the view that legal actors “should” reach the correct legal result. She might immediately agree that the world would be a morally better place if the mother had custody and that, if she were the judge, law be damned, she’d give custody to the mother. But when she speaks of “should,” she is focusing on positive law, not her views of morality. Hence, A and B may agree on substance but merely speak of different kinds of normativity.

Alternatively, A and B might disagree about whether the law exhausts answers to moral questions in legal contexts. A might believe that, in the context of legal questions, judges morally ought to decide only in accordance with the law. For A, moral oughts in legal contexts are resolved entirely by considering legal oughts, while B believes that the law provides an important starting point but that it’s not the last word on what judges morally ought to do. B might believe that judges should sometimes opt for solutions that mesh poorly with the law when they lead to better overall results from a moral perspective. In order for A and B to resolve their conflict, they need to resolve a deep moral question. Arguing about child custody alone may never address their substantive disagreement.

Nevertheless, we might see several law review articles in which A and B argue over contract, tort, and criminal law where the issue that really divides them concerns a rather fundamental theoretical issue that they never actually discuss. Sometimes, domain-specific conflicts can help us understand broad theoretical debates, but sometimes they just divert us from more fundamental issues that must be addressed head on in order to make progress. Legal scholars often make their claims too unclear to know precisely where disputes ultimately lie.

This post is adapted from How to Fix Legal Scholarmush, forthcoming in the Indiana Law Journal.

Posted by Adam Kolber on May 25, 2020 at 03:57 AM in Adam Kolber | Permalink


Thanks, Orin, for pressing on this. Here's where the duality comes from. For most arguments in a law review, the strength of a claim will come from one of two sources. Either it's rooted in some source of legal authority, or it's rooted in some claim about morality/policy/what-makes-the-world-better. So in terms of keeping this dichotomy clear, I don't see the problem about the Type A, B, C, D .... arguments. Granted, an argument can be rooted in both law and morality--a happy coincidence--but it's still worthwhile keeping the components of the argument as clear as possible. (Incidentally, it's amazing how often scholars' views of the law happen to match their policy preferences!)

In terms of Burke's paper, perhaps there's some more law behind her argument than I fully appreciated. (I don't recall her citing state supreme courts adopting somewhat similar arguments.) But I still think what's doing most of the work comes from moral/policy arguments rather than claims about the law. As a test, imagine everyone agreed that a reasonableness test is awful as a policy idea. Would we really think that the law requires it so as to be consistent as to reasonableness across the Fourth Amendment?

My argument is principally for clarity. Does Burke really think that the law requires the reasonableness test in consent searches or does she argue that it ought to? I read the paper as supporting the second question far more than the first, and I think scholars should address such topics more transparently. Indeed, much more transparently than one would were one actually arguing in front of the Supreme Court for there one would be acting as a lawyer rather than as a scholar. The deeper point is that the sort of dialogue we're having about interpreting a scholar's claims would be easier if scholars were more upfront about the legal and morally normative components of the arguments they are making.

Posted by: Adam Kolber | May 26, 2020 4:32:54 PM

Adam writes:

My reading of Burke was that she was essentially making a moral argument that consent alone should be insufficient for a search. And it might be a good moral argument on moral grounds. I was criticizing her use of far-flung Supreme Court precedent to buttress what is essentially a moral argument. The reason I read it as a moral argument is that it seemed to me (a non-expert in this area of crim pro) that there is no plausible argument that the Fourth Amendment actually requires the "reasonable relationship" test she wants. Her legal arguments appealed to aspects of crim pro that were pretty far removed from consent searches. If one went to a federal district court claiming that a search was invalid despite consent because it lacked a reasonable relationship to the government's need for the search, no one could plausibly argue that the law is on her side in terms of original meaning, existing Supreme Court precedent, etc. Ditto at the circuit level. Burke is really proposing a radical change in the law that, it seems to me, comes not from legal arguments but from moral/policy arguments.

I disagree. It seems to me that Burke is making a traditional legal argument. She's arguing that that (a) there is a general approach to Fourth Amendment reasonableness, (b) consent searches are about Fourth Amendment reasonableness, therefore (c) logically, the U.S. Supreme Court should interpret the doctrine of consent to adopt the general approach to Fourth Amendment reasonableness, and that (d) the way to do (c) is through her test. It's the kind of argument you would expect a lawyer to make to the U.S. Supreme Court. Somewhat similar arguments have been made to -- and adopted by! -- state supreme courts interpreting their state equivalents of the Fourth Amendment. Granted, the argument is foreclosed by precedent in a federal district court. But why does that matter? This is a traditional legal argument directed at a different court; it doesn't become any less of a legal argument because it is arguing for a change in legal doctrine and not just an application of legal doctrine.

More broadly, I worry that there's a problem in your argument that may be causing more heat than shedding light. You seem to be of the view that there are two kinds of arguments in the law: (a) arguments based on the proper application of existing precedent (what the law is), and (b) arguments based on theories of morality (what the law ought to be). There's a one-of-the-other quality to your argument, in that when you see an author make a claim that doesn't fit Type A, you by default assume that the argument must be Type B. Then, finding the absence of explicit arguments about B, you criticize the author for the failure to make an explicit Type B claim -- which you say is "scholarmush." But there are so many other kinds of arguments -- Type C, Type D, Type E -- that I think those authors are typically making. I worry that this leads you to pretty harshly criticize authors for not making arguments when it may be only your (somewhat idiosyncratic) sense of the options that leads you to the view that they need to be making those arguments.

Posted by: Orin Kerr | May 26, 2020 2:59:21 PM

Re'em writes: "[T]hen the only way that [legal scholars] would not conflate such claims as well, when considering judicial opinions, is by calling the bluff. But that may not be desirable and may not be very common if (they think that) there are good reasons for lawyers and judges to conflate these claims." I'd say that good scholarship calls the bluff. Maybe there are times when that is immoral, but I doubt it's all the time. If there are good reasons to have a collection of legal scholars, I would think the reason is precisely to obtain a kind of detached careful reflection that we don't get from lawyers and judges. But I admit there is a lot here and in your most recent comment that warrants investigation.

I largely agree with your second point. If the philosophical contribution a legal scholar makes is relatively simplistic, then we expect more of the empirical component. Social scientists will often have an advantage as to empirical matters but maybe less so when the empirical considerations are closely related to cases and precedents and the ways judges tend to reason.

And legal scholars needn't have skills better than philosophers and social scientists so long as the overall combination they deliver is of sufficient quality. Plus the whole topic is complicated in terms of the relative importance of teaching and scholarship and how much of each is expected of scholars is different disciplines. In any event, I accept your general point that there may be institutional factors that perpetuate the conflation of the moral and the normative. I'll claim that this paper is a small step toward challenging the conflation by drawing attention to it. Thanks!

Posted by: Adam Kolber | May 26, 2020 1:43:54 PM

Thank you Adam. Again, I too really dislike the kind of work that conflates normative and descriptive claims – precisely because, as you say, this makes the arguments less clear and less rigorous. But I am less optimistic about your suggestions.
First, if lawyers and judges continue conflating normative and descriptive claims, as you assume, and if law professors continue considering judicial opinions, as I assume that you assume too, then the only way that they would not conflate such claims as well, when considering judicial opinions, is by calling the bluff. But that may not be desirable and may not be very common if (they think that) there are good reasons for lawyers and judges to conflate these claims.
Second, if law professors limit themselves to normative assumptions that are not controversial (such as "basic consequentialist goals that are widely shared"), then they would not contribute in this respect: it is unnecessary and trivial to argue for normative claims that are not controversial – unless you have a novel argument that was not considered in the philosophical literature – but this of course does require some philosophical sophistication. The contribution of law professors could be in terms of implementing such normative claims. But this is an empirical project. And I think that the same type of problem exists with respect to this project.
Finally, it is not sufficient that law professors "tend to have some pretty good interdisciplinary knowledge" (normative or empirical): the question is comparative: do they have knowledge that is better than that of philosophers and social scientists?
I don't suggest that law professors are unnecessary. If, for example, philosophers and social scientists are simply not very interested in the law, then law professors are important even given the above limitations. My main point was just that the tendency to conflate normative and descriptive claims in the legal context is not due merely to sloppy thinking but also to the above institutional factors, and therefore it may be useful to consider these factors if the goal is improve the legal discourse.

Posted by: Re'em Segev | May 26, 2020 12:40:53 PM

Thanks, Re'em! I agree with your first posted comment, and much of your second.

With respect to lawyers, I don't argue that they should stop conflating normative and descriptive claims. I accept that doing so is part of zealous advocacy. (I agree that the empirical question of effectiveness is worthy of study, though I predict conflation will win that battle). Even judges likely have good reasons for conflation, though that's a little more nuanced.

As for law professors, there may indeed be prudential (and even moral) reasons to keep doing what they're doing. But I argue that there aren't good scholarly reasons for it. So the piece could be viewed as exacting a toll on current practices by drawing attention to them.

I don't think matters are quite as bleak as you put it for law professors. Law professors have an advantage over social scientists when it comes to navigating the legal system and understanding precedent. One thing legal scholars can do is write less morally normative scholarship (admittedly, going against the grain of the last few decades). Another option is to get more adept at navigating the moral-descriptive divide. Doing so doesn't necessarily require a Ph.D. in philosophy, especially when arguing for certain basic consequentialist goals that are widely shared. And legal scholars tend to have some pretty good interdisciplinary knowledge. So I think there is an important role for law professors but they need to up their game, so to speak, and we need to exact a toll on scholarship that is unnecessarily fuzzy.

Posted by: Adam Kolber | May 26, 2020 11:28:35 AM

Adam: I also don't like arguments that do not clearly distinguish normative and descriptive arguments, but it is important to recall why you need to make this (otherwise trivial) claim and why your paper is unlikely to persuade lawyers and law professors to desist conflating ought and is claims: both seem to have moral and prudential reasons to blur this distinction. This is the case regarding lawyers if indeed there is a better chance to persuade judges if you present your arguments in a way that they appear to be legal, even if their essence is (merely) moral. If this is the case, lawyers sometimes have moral and prudential reasons to depict moral claims as legal claims: moral reasons if persuading the judge will bring about a result that is morally good and prudential reasons if this will help the lawyers to keep their job. One (descriptive!) question that is worth asking then, is whether this is indeed the case. Another (normative!) question is whether it should be the case, namely, whether judges should consider moral argument. With regard to law professors: once we clearly distinguish normative and descriptive arguments (about the law), it is less clear why we have an advantage over philosophers – regarding the normative claims – and over social scientists – concerning the empirical ones… After all, moral claims about the law do not appear to be fundamentally different than moral claims about other things. And the same is presumably true regarding empirical claims. So this is another interesting question: whether law professors should keep their job.

Posted by: Re'em Segev | May 26, 2020 10:30:57 AM

It may be worth adding why (almost?) all of the normative claims that are made in legal contexts are moral claims (as Adam points out): It is unclear why anyone would want to make a normative claim that is not moral in a legal context. If efficiency, or consistency, for example, are not morally important, why should anyone care about them in a legal context? Assume that an action is more efficient but in a way that is not morally significant, for example, that an action achieves a certain goal with fewer resources (compared to an alternative action) but that these resources would not be used in a way that promotes a moral value, such as, for instance, promoting the wellbeing of deserving people. So there is nothing to be said morally in favor of the action. Is there any reason to care about efficiency in this sense in a legal context? Of course, typically there is some chance that resources would be used in a way that is morally valuable. But that is exactly why we typically care about efficiency (in this sense) in legal contexts. Or assume that the goal itself is morally inert. Would anyone want to argue that the law should be devised in a way that would help achieving this goal?

Posted by: Re'em Segev | May 26, 2020 9:42:22 AM

Thanks, Howard:

You wrote:
"1) If the disagreement is the best understanding of legal sources (e.g., what sex means in Title VII or the scope of the First Amendment), is that "moral" on your understanding?"

If one is offering an interpretation of a legal source, the interpretation could be based just on legal considerations. For example, these are the relevant canons that have been adopted by courts, this is how courts have interpreted the term, etc. By contrast, if the arguments are about which interpretation will make the world a (morally) better place, then they are moral arguments. And finally, to the extent you think the law grants discretion to legal decisionmakers to interpret legal sources based in part on moral considerations, then arguments about the best use of that discretion could be either or both moral and legal arguments.

You wrote:
"2) Is this different than how a majority and dissent engage?"

There are many different ways a majority and dissent can engage. The majority and dissent could be arguing about pure legal issues: what do the sources of legal authority tell us to do in this context? Or they could be arguing about moral issues: when does a fetus have moral rights and thereby become a "person"? (Though on moral questions, courts may hide to some extent that the dispute is moral rather than legal in nature.) Also, a majority could be arguing principally about legal sources while a dissent argues principally about moral considerations (or vice versa). Such is the messiness of lawyering and of judicial practice. Scholars, though, have special obligations to be clear and transparent about what they are arguing.

Posted by: Adam Kolber | May 26, 2020 9:19:34 AM

Orin: My reading of Burke was that she was essentially making a moral argument that consent alone should be insufficient for a search. And it might be a good moral argument on moral grounds. I was criticizing her use of far-flung Supreme Court precedent to buttress what is essentially a moral argument. The reason I read it as a moral argument is that it seemed to me (a non-expert in this area of crim pro) that there is no plausible argument that the Fourth Amendment actually requires the "reasonable relationship" test she wants. Her legal arguments appealed to aspects of crim pro that were pretty far removed from consent searches. If one went to a federal district court claiming that a search was invalid despite consent because it lacked a reasonable relationship to the government's need for the search, no one could plausibly argue that the law is on her side in terms of original meaning, existing Supreme Court precedent, etc. Ditto at the circuit level.

Burke is really proposing a radical change in the law that, it seems to me, comes not from legal arguments but from moral/policy arguments. Were we not dealing with constitutional law, we would frankly recognize it as a proposal for statutory change rather than an interpretation of existing law. Of course, the Supreme Court is empowered to change Fourth Amendment law. And if one were arguing in front of the Supreme Court, one would have no choice but to make the sort of legal arguments Burke makes. Lawyers have to cloak their moral arguments in the form of legal arguments and Burke may do the best job of that one can. But were the Court to adopt Burke's approach, it would be more accurate to describe it as a radical change in the law rather than anything one could arrive at from precedent or traditional legal interpretation.

So I think Burke's piece adopts the lawyerly approach to such matters: Find whatever legal precedent you can to support your moral/policy view, even if it's a stretch. By contrast, I think the scholarly approach is to set forth the moral/policy arguments for her proposal. Then, one can admit that the law is not on one's side (as seems to be the case here).

Also, the fact that there are aspects of crim pro that do involve the kind of reasonable relationship test Burke advocates is *some* moral support for her test--it may show its ease of use for example. But I don't think the support comes from thinking that there is legal authority behind using such a test in the consent context. This is admittedly something of a fine line. One way to test the idea is to imagine an entirely different country's laws that just happen to match our own. How much support do we get for her reasonable relationship test because it's been adopted in non-consent government search contexts in some other country? The only support we could get would come from moral/policy considerations because this hypothetical country's search law would have no (or virtually no) legal force as to U.S. law. But the moral/policy considerations seem rather weak--easily dominated by considerations that apply much more specifically to the consent context. That's why I think her appeal to these other aspects of crim pro are such a stretch. They don't seem to have much moral bearing or legal bearing. But the "lawyerly" game is to use whatever precedent you can drum up.

Now maybe I've misread Burke (I did share the draft with her but she was swamped at the time). Maybe her argument is legal through and through. But it just strikes me as too much of a stretch to claim that her reasonable relationship test is required as a matter of law. The more clear scholarly approach would more carefully distinguish the extent that there are moral/policy arguments for the reasonable relationship test and the very weak/limited arguments one could try to muster on the legal side.

Posted by: Adam Kolber | May 26, 2020 8:53:24 AM

Adam: Two questions:

1) If the disagreement is the best understanding of legal sources (e.g., what sex means in Title VII or the scope of the First Amendment), is that "moral" on your understanding?

2) Is this different than how a majority and dissent engage?

Posted by: Howard Wasserman | May 26, 2020 8:44:45 AM

Thanks, Adam.

If I can add one more point, I think this issue may matter with respect to your criticism of Alafair Burke's article on consent searches. It seems to me that Burke's argument can be read as being about either consistency of principle (having adopted a cost/benefit approach elsewhere, the argument would run, the Supreme Court should use the same principle here, too), or else utilitarianism (if one accepts that the cost/benefit approach is useful, then it should be used). You argue that Burke's argument is unpersuasive because she is making a moral argument, and yet she has not explicitly offered a moral foundation to her moral argument:

Just because Test A is used a lot by the Supreme
Court and Test B is rarely used doesn’t mean that Test A is morally better. Test B is
at no disadvantage from a moral perspective simply because it contravenes a test that
is used more frequently in other domains. Rather, the value of Test B depends on
substantive moral arguments. There may be some simplicity or other rule-of-law
values promoted by using the same test in lots of contexts. But the more common
test does not have substantive moral authority simply because it has been adopted
more frequently (absent argument that the Court generally gets moral matters right).
Moral matters must be settled on moral grounds. Burke cannot rely on Supreme
Court precedent to establish her moral argument.

It seems to me, though, based on your description of her position, that Burke is not making a moral argument at all.

Posted by: Orin Kerr | May 26, 2020 7:08:44 AM

Thanks, Orin. Just about any "should" or "ought" will make a claim "normative." Sometimes people speak of normativity in etiquette or fashion. For example, "you shouldn't wear white before Memorial Day." Most people who make such a claim don't mean that it's morally wrong to wear white before Memorial Day. They just mean it's uncool or unfashionable.

In the section of the draft you quote, I say that unless otherwise noted, I use normativity to refer to "moral normativity." And in that category, I would indeed put most "policy" arguments law professors make. Utilitarian arguments, arguments about moral duties and obligations, and so on are almost certainly morally arguments. I think you're right that there's a bit of mushiness in my description, but I'd attribute it to the fact that I'm trying to capture what scholars likely mean when they make claims, and people don't always mean the same thing. That's part of the problem.

For example, Prof. P says that some change in the law will increase economic efficiency. Prof. Q says, "I'll grant you that it will increase economic efficiency but the law will violate all sorts of fundamental moral rights." If Prof. P responds, "well, I'm not speaking about morality. I'm just making a claim about economic efficiency," then I'd say Prof. P is probably not making a moral claim. But most law and economics scholars, I believe, would say that there are moral reasons to increase economic efficiency. Doing so makes the world a better place (even if some will recognize other values aside from economic efficiency that compete with it).

So I would just put your point back into the category of things that scholars can be mushy about. Are they just making claims about, say, how to increase the government's budget at the end of the year or are they making claims about what will make the world a (morally) better place? To give a full description of exactly what morality is would be its own book, so I try to capture what I think scholars generally mean by certain kinds of language. I'll think about ways to improve the draft based on your very helpful comment!

Posted by: Adam Kolber | May 26, 2020 6:31:17 AM

Adam, does "moral normativity" just mean a normative policy argument? Or is there some separate work being done by concepts of morality in your argument? I ask that because I understand what a normative "should" argument is, but I don't think I know when an argument is based specifically in morality.

In your article, you define a normative argument as follows:

Normative claims, by contrast, speak to how the world ought to be. They typically
prescribe behavior or behavioral prohibitions. One might assert that “you should be
kind to strangers” or that “you shouldn’t kick a sleeping dog.” In legal contexts, a
scholar might argue that “statutes prohibiting assisted suicide should be repealed.”
These claims often contain words like “should” or “ought” that make or imply claims
about what is morally good or bad. When legal scholars refer to “policy” arguments,
I believe they are generally referring to what I call “moral” arguments.

I confess I find this to be a confusing (maybe even scholarmushy!) claim. Normative arguments about what the world should be like are based on some external set of values, true. But in law review articles, it seems pretty uncommon for those normative arguments to be based on a notion of morality. In my experience, at least, normative arguments in law review articles are more often utilitarian. The law should be X to achieve some societal good that will make the world a better place, the argument will run. Do you see that as a moral argument? Does it matter to your claim?

Posted by: Orin Kerr | May 26, 2020 2:21:26 AM

I second the various options Paul and Orin mention. But my hope, as I discuss a little more in the paper, is that legal scholars feel less of an obligation to write morally normative papers. If scholars are good at doing so, then by all means they should. My own work is usually morally normative. But if scholars are not very good at it and simply feel obliged to do so by law review norms, it often leads to scholarmush.

So, one option is let your piece be the start of a movement. Write your history paper and advertise how it's meant to be a work of legal history that does not take a normative position in order *to maintain clarity and objectivity*. You can even cite "How to Fix Legal Scholarmush" on the benefits of such clarity. I don't know if this plan would work, but a paper that advertises its non-normativity should stand out in the pile!

Posted by: Adam Kolber | May 25, 2020 6:20:17 PM

Not being a historian, I’ll let someone weigh in on whatever the state of the historiographical conversation is concerning the inevitability of present concerns affecting historical work, historical vs. antiquarian work, and so on. All that said, another answer is to just write the piece, if you think it’s worth writing, and law review editors be damned. If it’s worthwhile, someone will publish it, and if it’s worthwhile history some journal of legal history, with an actual claim to respect, might do so.

Posted by: Paul Horwitz | May 25, 2020 5:26:42 PM

AnonProf, one approach is to show the relevance of the historical description for some current debate.

Posted by: Orin Kerr | May 25, 2020 4:58:51 PM

AnonProf, if your comment(unclear per se)has even somehow something to do with mine, then, I wrote and referred to:

History of legislation, or, drafting history, and not:

"legal history" as written by you. If you don't understand what is all about, you must start from scratch then your studies with all due respect.You know what, Start with the ruling I have left down there.


Posted by: El roam | May 25, 2020 4:52:59 PM

May I ask a related question that I fear reveals my ignorance. How does one write a legal history piece without it being purely descriptive? I'm asking because I want to write such a piece about a unique period of legal history, but I fear law reviews will reject it because there's no real thesis other than "isn't this interesting?!?!" Thanks in advance!

Posted by: AnonProf | May 25, 2020 4:08:20 PM

Here just quoting relevant part from the ruling:

" Three extratextual sources are especially helpful in ascertaining Article 10(a)’s meaning: the Convention’s drafting history, the views of the Executive, and the views of other signatories."

So, we have here, ambiguity in the meaning of the law, for solving it, and prevailing in the case, Justice Alito, addressed indeed, extratextual sources, like drafting history and others.


Posted by: El roam | May 25, 2020 7:35:38 AM

Here as illustration, ruling, classic one, Justice Alito, speaking of divorce and so forth...( servicing in accordance with the" Hague convention " ) how history of legislation, and extra textual documents, prevail one case. Here:


Posted by: El roam | May 25, 2020 7:22:36 AM

Important one. But, typically, the points or doctrines that are missed are different:

It is not only, jurisprudence, or the law, or even moral values:

But, typically, we miss, the history, and the purpose. One judge, typically, always will have to face ambiguity or alike, in the understanding of the law, especially in light of one given case. As such, he will have to address the history ( of the law) the intent of the lawmaker etc..... When dealing with it, the whole picture shall shift elsewhere ( for pretty complicated reasons).

Also, we have that tendency, or expectation, to think that the law or substance, prevails. That is not correct at all:

Many times, what prevails, is not the law, but, preliminary procedural issues, that have the same effective importance as the law itself ( and even more, like: statutory limitation period). Yet, we think that the judge, has prevailed due to the law, yet, not at all.


Posted by: El roam | May 25, 2020 7:01:42 AM

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