Legal Commentary

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.