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Sunday, November 15, 2020

Legal Indeterminacy and Robert Jackson

I've been working with some of Justice Robert Jackson's writings recently. One theme that connects them is his conclusion that the text he is considering is something of a mystery. In his famous concurrence in Youngstown, he explained that there were almost no helpful authorities on the separation of powers between the President and Congress. In developing the Feres doctrine barring members of the military from bringing a negligence action against the United States, he said that he had no idea what Congress intended in the Federal Tort Claims Act for service members. In both cases, Justice Jackson followed up with a pragmatic or policy-based argument to fill the gap.

Jackson's view is very much at odds with modern jurisprudence. Judges and scholars today are much more confident that they can know what a statutory provision means by parsing the text or purpose of the law. Likewise, they are often sure that they know what the original public meaning of a constitutional provision is. Rarely do you see someone write an opinion that says something like "I have no idea what this means, so we need to construct a sensible meaning from other sources." (Richard Posner was probably the closest modern counterpart to Jackson in this respect.) I'm not sure if there is any bigger payoff to this observation, but I'm thinking it over.

 

Posted by Gerard Magliocca on November 15, 2020 at 08:01 PM | Permalink

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Posted by: newinshops | Nov 19, 2020 6:14:42 AM

Jackson's honesty in Youngstown is the primary virtue of his opinion (not the oft-cited so-called "3 part test," which really isn't a useful test at all but rather a set of truisms that serve only as analytical starting points). That is, he didn't merely admit indeterminacy, he rather honestly reflected on the reasons for the indeterminacy and how judges understandably deal with that indeterminacy in light of contemporary pressures. And he demonstrated in his opinion the ability to maintain a judiciously holistic perspective of things in tackling the tough issue at hand. This, combined with the honestly, makes his concurrence my favorite opinion of all time.

As for greater confidence today, I imagine that some of this has to do with liberal academics' increasing embracement of originalism due to (1) the excesses of pragmatism brought on by the baby boomers (sorry); and (2) the desire to better pedigree their normative views in light of the legitimizing veneer that originalist justification provides. I termed this the "return to fidelity" in a past article.

Posted by: Edward Cantu | Nov 17, 2020 12:39:21 PM

Our abiding love of indeterminacy should be viewed as something approaching an outlier. As a practical matter, laws are seldom indeterminant. Even a toy truck in a park is readily recognizable as not barred by a statute forbidding trucks in the park. If most laws are actually, which is not to say theoretically, indeterminant, the entire project of laws regulating society becomes a nonsensical dream.

Posted by: William Casto | Nov 17, 2020 12:39:20 PM

Perhaps Justice Jackson's lack of a law degree is part of the explanation? If I recall correctly, he went to law school for a while, left, and "read the law" to obtain his law license.

Self-teaching sometimes results in less acceptance of "received wisdom" than does the give-and-take of classroom or other directed learning. This is certainly true in learning foreign languages! Whether it's a good thing or not is for another time.

Posted by: C.E. Petit | Nov 16, 2020 12:45:31 PM

Ol' Robert "You Gotta Break the Law Before You Know What the Law Is" Jackson.

Posted by: thegreatdisappointment | Nov 16, 2020 10:27:56 AM

To what extent should the change be described as increasing “confidence that [we] can know what a statutory provision means by parsing the text or purpose of the law,” to what extent as diminishing confidence in “pragmatic or policy-based arguments”? If the first step is loss of faith in Jacksonian pragmatism, perhaps we should speak only of *relatively* increasing confidence in textualism or purposivism.

Posted by: RQA | Nov 16, 2020 9:50:06 AM

I wanted to write an article a couple years ago about Justice Alito's abiding belief in legal indeterminacy. This of course is not what anyone thinks of when they think of Justice Alito, but allow me to ply you with a few quotes; perhaps someone will see these and pick up the project.

From his Rehaif dissent: The truth . . . is that the terms used in §§ 924(a)(2) and 922(g), when read in accordance with their use in ordinary speech, can easily be interpreted to treat the question of mens rea in at least four different ways.

. . .

As these competing alternatives show, the statutory text alone does not tell us with any degree of certainty the particular elements of § 922(g) to which the term "knowingly" applies. [He then proceeds to launch into pages of purposive guesswork about Congress's likely intention, as divined from all sorts of extrastatutory sources.]

From his Pereira dissent: With the text of both the stop-time rule and § 1229(a)(1) irreducibly ambiguous, the Court must next look to two neighboring provisions to support its conclusion that its interpretation is the only reasonable one.


From the Home Concrete argument: But I can hardly even think of a statutory interpretation question that we've gotten that doesn't involve some degree of ambiguity, if we're honest about it. We take a case where there's a conflict in the courts of appeals. And so, there was at least enough ambiguity in those cases for one or more courts of appeals to come to an interpretation that's contrary to the one that we ultimately reach. So, what degree of ambiguity is Brand X referring to?

From the oral argument in Cyan: Our late colleague wrote a book called Reading Law, which provides guidance about how you read statutes. And I looked through that to see what we are supposed to do when Congress writes gibberish. And that's what we have here. You said it's obtuse. That's flattering. And we have very smart lawyers here who have come up with creative interpretations, but this is gibberish. It's -- it is just gibberish. . . I'm serious. Is there a certain point at which we say this means nothing, we can't figure out what it means, and, therefore, it has no effect, it means nothing? Can we not -- we have to say it means something?

From Esquivel-Quintana: And this quest for the -- the generic offense of sexual abuse of a minor seems to me to be a -- a meaningless quest. There's no "there" there . . . This is a phrase that doesn't have a common law counterpart. And if you look at all these State statutes and throw in all the Federal statutes that you can find that have some relation to this, what you have is a -- a big array of very disparate statutes. So this seems to me like a classic example of Congress saying, we have this category sexual abuse of a minor, and we know that there's all this array of State laws. And so you, Attorney General, define what should be within this for immigration purposes.

Posted by: Asher Steinberg | Nov 15, 2020 10:04:38 PM

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