Ryan David Doerfler (University of Pennsylvania Law School) has posted High-Stakes Interpretation (Michigan Law Review, Vol. 116, No. 4, Forthcoming) on SSRN. Here is the abstract:
Courts look at text differently in high-stakes cases. Statutory language that would otherwise be ‘unambiguous’ suddenly becomes ‘less than clear.’ This, in turn, frees up courts to sidestep constitutional conflicts, avoid dramatic policy changes, and, more generally, get around undesirable outcomes. The standard account of this behavior is that courts’ failure to recognize ‘clear’ or ‘unambiguous’ meanings in such cases is motivated or disingenuous, and, at best, justified on instrumentalist grounds.
This Article challenges that account. It argues instead that, as a purely epistemic matter, it is more difficult to ‘know’ what a text means — and, hence, more difficult to regard that text as ‘clear’ or ‘unambiguous’ — when the practical stakes are raised. For that reason, this Article insists, it is entirely rational for courts to be more cautious when interpreting text in high-stakes cases than they would be if the stakes were low. Drawing on contemporary work in philosophy of language and epistemology, this Article grounds its argument in the observation that ordinary speakers’ willingness to attribute ‘knowledge’ or ‘clarity’ decreases as the practical stakes increase. And while the technical explanations of this phenomenon vary, they all reflect a basic insight: that one needs greater epistemic justification to act on some premise the higher the practical stakes.
To illustrate, this Article applies the above insight to various interpretive settings. Considering judicial review, for example, this Article explains that it makes good epistemic sense for a court to wait until it is really sure that a statute means what it thinks it means before taking the extraordinary step of invalidating that statute as unconstitutional. Similarly, this Article urges that it is just sound epistemic practice for a court is to construe a statute in a way that would unsettle an existing implementation regime only if it is especially well justified in its reading of the statutory text, i.e. only if it really knows that its reading is correct.
This Article thus offers at least a partial justification of courts’ seemingly loose treatment of statutory text when the practical stakes are raised. And it does so, in contrast to prior scholarly efforts, by appeal to reasons that both formalists and instrumentalists can accept.
Fascinating and highly recommended. Here is some more from the paper:
Whichever technical explanation one prefers, a straightforward connection between epistemic justification and practical interest comes through. On any of the above explanations, it is appropriate to claim to “know” something only if one has adequate epistemic justification as to that thing. And, on any of those explanations, what counts as adequate justification depends upon the practical interests of those involved. In a low-stakes situation, the truth of the thing at issue (e.g., that the bank will be open on Saturday, that the preferred candidate will win the election) matters not very much to the participants in the conversation. As such, what matters to those participants, practically speaking, is just that someone claiming to “know” that thing has moderate epistemic justification as to it. In a high-stakes situation, by contrast, the truth of thing at issue matters a great deal to the conversational participants. In those situations, then, what matters, practically speaking, is that claims to “know” that thing be supported by very strong epistemic justification.
And from later in the paper:
As David Strauss and others have noted, courts adhere to constitutional text much less closely than they do to the text of statutes. As with statutory interpretation, courts insist that where constitutional text is “clear” or “unambiguous,” the text controls.At the same time, pursuant to Chief Justice Marshall’s famous reminder that “it is a constitution we are expounding,”courts frequently construe constitutional text in ways that would be unimaginable in the modal statutory case. To give two examples, courts agree that the First Amendment applies to all branches of government despite the text instructing that “Congress shall pass no law ...." Similarly, courts accept that the Constitution bars suits in federal court by private citizens against their home state—this notwithstanding the Eleventh Amendment’s reference to suits “commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”
Given the inherently high-stakes nature of constitutional interpretation, one might think that the epistemological insight discussed in this Article helps to explain (or at least justify) the disparate treatment of constitutional text just described. For reasons that Strauss articulates, however, it is hard to believe that courts are really trying to read the constitutional text. First, claims like that “Congress,” as used in the First Amendment, is a synecdoche referring to all branches of the federal government are so at odds with ordinary norms of interpretation that, if true, would seem to entail interpretive skepticism (to borrow Justice Scalia’s phrasing, if “Congress” can mean all branches of government, the “[w]ords no longer have meaning”). Second, as Strauss observes, in the modal constitutional decision, constitutional text serves at most a “ceremonial role,” with “the serious analysis focus[ing] on the precedents.” In Strauss’s view, courts’ inattention to constitutional text suggests that constitutional “interpretation” is really something like common law adjudication, with constitutional text “treated in more or less the same way as precedents in a common law system.”
Whatever courts are doing with constitutional text, it seems plain that what they are not doing is attending to linguistic nuance. But if constitutional “interpretation” is, as Strauss suggests, a misnomer, it is highly doubtful that the connection between epistemological and practical reason discussed here sheds any light on courts’ treatment of constitutional text vis-à-vis statutory text. Perhaps if courts did care what the Constitution says, their ability to identify constitutional meaning definitively would be limited by the would-be heightened practical stakes of that task. On the other hand, perhaps discerning constitutional meaning would be easier in some cases rather than others, owed not just to differences in textual clarity, but also to differences in the practical stakes. Regardless, because it is so speculative to imagine what our constitutional order would look like if constitutional adjudication consisted of careful reading, speculating about the implications of contemporary epistemology for that would-be practice is not especially useful at this stage.
Cool paper. I am not so sure that what is happening in the statutory context is really different in kind from the constitutional case. The paper assumes that the communicative content of the statutory text would control if it were clear, but it is hardly the case that judges consistently aim to recover communicative content. Labels are tricky in this context, but taking "purposivism" as the view that the legal content of a statute is determined by its objective purpose, then uncertainty about the linguistic meaning plays a relatively unimportant role in statutory interpretation. The author recognizes this possibility (page 3, note 6) where he discusses alternative views, including Mark Greenberg's important challenge to the "standard picture."