15 August 2007

Jonathan Siegel's Reply to Adrian Vermeule's 'Judging Under Uncertainty'

The George Washington Legal Studies Research Paper Series has a reply by Jonathan Siegel (GWU) to Adrian Vermeule's book Judging Under Uncertainty: An Institutional Theory of Legal Interpretation (Harvard UP, May 2006). Siegel's article will appear in 92 Minnesota Law Review (2007-2008).

This is the Harvard University Press abstract of Vermeule's book:

How should judges, in America and elsewhere, interpret statutes and the Constitution? Previous work on these fundamental questions has typically started from abstract views about the nature of democracy or constitutionalism, or the nature of legal language, or the essence of the rule of law. From these conceptual premises, theorists typically deduce an ambitious role for judges, particularly in striking down statutes on constitutional grounds. In this book, Adrian Vermeule breaks new ground by rejecting both the conceptual approach and the judge-centered conclusions of older theorists. Vermeule shows that any approach to legal interpretation rests on institutional and empirical premises about the capacities of judges and the systemic effects of their rulings. Drawing upon a range of social science tools from political science, economics, decision theory, and other disciplines, he argues that legal interpretation is above all an exercise in decisionmaking under severe empirical uncertainty. In view of their limited information and competence, judges should adopt a restrictive, unambitious set of tools for interpreting statutory and constitutional provisions, deferring to administrative agencies where statutes are unclear and deferring to legislatures where constitutional language is unclear or states general aspirations.

...and this the abstract of Siegel's reply:

This article responds to Professor Adrian Vermeule's new book, Judging Under Uncertainty. Professor Vermeule argues that (1) no one can empirically determine whether judicial use of legislative history or other interpretive methods that go beyond simple enforcement of plain text has any positive net benefits, but (2) we do know that such interpretive methods impose costs, and therefore (3) courts should discard such interpretive methods. This article suggests that (1) it is far from clear how costly these interpretive methods are, (2) it is also not clear that discarding them would result in any cost savings, both because of costs that would remain if only some judges adopted Professor Vermeule's theory and because, even if all judges adopted it, cost savings from the use of simpler interpretive methods might be offset by other, new costs, such as the costs imposed by judicial enforcement of clear but erroneously drafted statutory text that leads to absurd results, and (3) there are institutional reasons to believe that courts do get net benefits from methods that permit them to look beyond plain statutory text in some cases; most notably, the fact that courts interpret statutes at the moment of implementation puts them in a good position to detect statutory drafting errors. For these reasons, the article recommends against adoption of Professor Vermeule's interpretive theory.

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