The law of the law of the law of interpretation?

As we mentioned in our previous blog post, William Baude and Stephen Sach recently posted on SSRN an 85-page magnum opus titled “The Law of Interpretation.” (By the way, on the bottom of each page of their article, there is an obnoxious disclaimer stating “Draft–please use caution before citing or quoting.”) We decided to write up a formal reply to their article, though whether we used sufficient “caution” in quoting from their article, we can’t say. Here is an excerpt from our reply (footnotes omitted):

To their credit, Baude and Sachs eventually anticipate our regress objection toward the end of their [85-page] article. Nevertheless, their last-ditch though no doubt sincere effort to salvage their newborn theory is too little, too late. Although they concede that “there can be uncertainty or disagreement” about their second-order legal system, they then conjure up out of thin air the existence of (third-order?) “closure rules.” According to Baude and Sachs, these meta-magical closure rules can be either procedural or substantive, but alas, their lengthy article does not specify what these “closure rules” consist of or where judges can go to find them. Worse yet, Baude and Sachs end up conceding that their so-called closure rules are themselves contested and open to ambiguity. As a result, they also posit a set of (fourth-order?) “authority rules” for resolving disputes about the closure rules. Yet the existence of meta-meta-magical rules of authority compounds the regress problem with a tautology. Why? Because the rules of authority are simply arbitrary rules that answer the question “who decides?” in the final instance. But telling us who has the last word in matters of interpretation does not solve the problem of interpretation. Again, we are back to where we started …

So, where does this leave us regarding the problem of legal interpretation? Back to the proverbial drawing board, we’re afraid to say.

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