Mark Moller (DePaul University - College of Law) has posted Procedure's Ambiguity (Indiana Law Journal, Vol. 86, 2010) on SSRN. Here is the abstract:
By leaving the meaning of a statute — or procedural rule — undecided, ambiguous appellate decisions create space for lower courts to adopt a blend of conflicting approaches — yielding an average result that trims between competing preferences. While compromising in this way may seem to flout basic norms of good judging, this article shows that opaque “compromise” opinions have plausible normative appeal — given premises about good interpretation often labeled “pluralist.” Judicial pluralists think courts should decide cases in ways interest groups would, hypothetically, accept in advance, behind a veil of uncertainty about their future positions and preferences. To develop the pluralist appeal of opaque decisions, I in turn develop two related claims: First, interest groups, under these conditions, would sometimes prefer that courts interpret ambiguous statutes (or procedures) in a way that compromises between contending interests, giving each some of what it wants. Second, sometimes, interest groups would also prefer ambiguous appellate interpretations — creating space for a blend of conflicting lower court approaches — when that is the only form compromise can take. When both are true, opaque decisions have powerful pluralist appeal.
Appreciating the pluralist appeal of opaque decisions, in turn, pays off by providing the missing normative foundation for some of the Supreme Court’s most confounding, inscrutable, and reviled procedural decisions: the Celotex trilogy, Bell Atlantic v. Twombly, and Ashcroft v. Iqbal.