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Outcome Reasons and Process Reasons in Normative Constitutional Theory
No full textConstitutional theory is a mess. Disagreements about originalism and living constitutionalism have become intractable. Constitutional theorists make some arguments that seem clearly fallacious and advance proposals that are pie in the sky. One of the reasons for the mess is an overreliance by constitutional theorists on “outcome reasons,” justifications that rely on the theorist’s beliefs about what outcomes are good and what outcomes are bad. This outcome-drive approach is exemplified by the so-called “canonical cases” argument, which evaluates positions in normative constitutional theory on the basis of their counterfactual implications for a handful of prior decisions of the Supreme Court. Among the many problems with “outcome reductionism” (exclusive reliance on outcome reasons) is the reality that none of the fundamental and feasible options for normative constitutional theory can guarantee outcomes that that most citizens would find acceptable, much less optimal. Living constitutionalism produces constitutional outcomes that reflect the moral values and political ideology of Supreme Court Justices, but over the long run there is no guarantee that the Justices will do what any individual believes is required by justice. Decades ago, the Justices established a constitutional right to abortion, but recently they reversed course. Dramatic changes in constitutional law are inevitable given that the Justices are selected by the President and Congress, institutions that will change their political makeup in unpredictable ways over time. Outcome reductionism is not a sensible method for normative constitutional theory, but there is a better approach. Outcome reasons can be supplemented by process reasons such as legitimacy, the rule of law, and institutional capacities. The way forward for constitutional theory involves a holistic assessment of both outcome reasons and process reasons via the method of reflective equilibrium. The way forward requires a frank acknowledgement of the consequences of deep and persistent disagreement about fundamental questions concerning justice and the common good. And therefore, the way forward will require an acknowledgement that a legitimate constitutional order will require compromise
Are They All Textualists Now?
No full textRecent developments at the U.S. Supreme Court have rekindled debates over textualism. Missing from the conversation is a discussion of the courts that decide the vast majority of statutory interpretation cases in the United States—state courts. This Article uses supervised machine learning to conduct the first-ever empirical study of the statutory interpretation methods used by state supreme courts. In total, this study analyzes over 44,000 opinions from all fifty states from 1980 to 2019.
This Article establishes several key descriptive findings. First, since the 1980s, textualism has risen rapidly in state supreme court opinions. Second, this rise is primarily attributable to increased reliance on the statute’s plain meaning. Third, state supreme courts use tools of statutory interpretation often associated with textualism—plain meaning, dictionaries, and linguistic canons—much more often than legislative history or consequences. And fourth, there is dramatic variation in textualism use across states.
This Article also conducts several exploratory analyses investigating whether ideology and judicial selection are associated with the use of textualist tools. I find that conservative justices invoke textualist reasoning slightly more often. And, while the estimates are noisy, the findings also indicate this ideological gap is primarily explained by conservatives’ heightened tendency to invoke the plain meaning rule. As for judicial selection, cross-state evidence suggests that justices appointed by governors and legislatures use textualism more frequently than those selected via election or merit commission.
These findings add empirical discipline to ongoing debates about ideology and textualism. They also reframe priorities for future research on the plain meaning rule, textualism in general, and judicial selection’s relationship to statutory interpretation. More broadly, they illustrate how natural language processing methods can help statutory interpretation scholarship expand its focus and study state courts
Yelling Fire in the Financial Theater: Bank Runs in the Social Media Age and the Threat to Financial Stability
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Tying Law for the Digital Age
No full textTying arrangements, a central concern of antitrust policy since the early days of the Sherman and Clayton Acts, have come into renewed focus with respect to the practices of dominant technology companies. Unfortunately, tying law’s doctrinal structure is a self-contradictory and incoherent wreck. A conventional view holds that this mess is due to errant Supreme Court precedents, never fully corrected, that expressed hostility to tying based on faulty economic understanding. That is only part of the story. Examination of tying law’s origins and development shows that tying doctrine was built on a now-dated paradigm of what constitutes a tying arrangement. In its origins during the industrial age, tying meant the leverage of patent rights over one good to impose requirements contracts forcing the purchase of a second, unpatented good. That paradigm no longer describes the vast majority of tying arrangements challenged under the antitrust laws. Instead, digital-age tying claims tend to involve product design decisions, the integration of technologies, the bundling of components, considerations of product functionality and performance, and the economic terms on which companies can obtain a return on their research and development investments. Correcting the mess in tying law requires not only updating economic learning, but also appreciating the patterns of behavior to which tying standards are applied
Rethinking Legislative Facts
No full textAs the factual nature of legal inquiry has become increasingly apparent over the past century, courts and commentators have fallen into the habit of labeling the facts behind the law “legislative facts.” Loosely, legislative facts are general facts courts rely upon to formulate law or policy, but that definition is as contested as it is vague. Most agree that legislative facts exist in some form or another, but few agree on what that form is, on who should find them, and how. This Article seeks to account for and resolve that confusion. Theories of legislative fact focus on the role facts play in purported lawmaking by the courts—hence the name “legislative.” This Article proposes a different approach that situates facts within the adjudicatory process. The facts captured by the label “legislative fact” play two different roles in resolving parties’ disputes: sometimes, as facts of law, they provide a premise for the rule of decision the court uses to resolve the dispute, and sometimes they assist the court in relating that rule of decision to the circumstances of the parties. Courts should distinguish between these roles when determining who should find the facts, and how. This approach results in sounder dispute resolution and sounder developments in the law, and it is more administrable than the current, undisciplined approach
