Additional critique of Baude and Sachs

We mentioned previously that our colleagues Will Baude (University of Chicago) and Stephen Sachs (Duke University) posted to SSRN a fascinating paper titled “The Law of Interpretation” to be published in the Harvard Law Review early next year. In their paper, Baude and Sachs reframe the traditional rules of statutory and constitutional interpretation as a separate body of law. In the words of Professor Baude: “the law of interpretation can tell [judges] which of several contested theories to use when reading a text, what texts to interpret, what kind of background presumptions to use, and how to resolve uncertainties in those readings. Our model here is private law, where legal rules of interpretation are common and relatively uncontroversial …” In other words, instead of proposing a new method or micro-level theory of interpretation, Baude and Sachs claim that the existing rules of interpretation form a coherent body of binding law and that this “law of interpretation” is just as binding on judges as statutes and constitutions are. This is thus an ingenious macro-level theory, since the rules of legal interpretation already exist and since the analogy to private law (e.g., contracts, torts, etc.) will be familiar to all lawyers and judges.

Nevertheless, although we applaud Baude and Sachs for proposing a new way of looking at the problem of interpretation in law, there is an additional reason why we are skeptical about their macro-level theory. Simply put, even if there were a coherent and internally-consistent body of interpretative rules, and even if this body of rules were considered law, these rules are not really binding on judges in any meaningful sense. Why not? Because in addition to the potential problem of regress (which we discuss elsewhere), there is the problem of self-reference: judges are not only the ones who created the rules of interpretation; judges are also the same institutional actors who get to apply these rules and determine their meaning and application. Is there a way out of this circle?

One solution is the doctrine of stare decisis, in which judges of lower rank are bound by the decisions of higher courts in the same territorial jurisdiction. This might be a workable solution in most cases, but what about the judges of the highest court? What are the limits on their powers of interpretation? (For a general discussion of this problem, see Steve Burton, 2014, pp. 1687-1688.) By analogy, imagine a hypothetical law-maker (“Mr Leviathan”) who not only has the power to enact new legal rules but who also has the power to enforce these rules and decide any disputes about the meaning of these rules or their application to specific facts. In what way are the powers of this imaginary law-maker limited? Mr Leviathan may try to argue that he is bound by his previous enactments, but doesn’t his law-making power by definition extend to such enactments? In short, doesn’t he retain the residual power to disregard those enactments as he sees fit? To be fair, this problem is inherent to all legal systems. Consider the history and logic of the U.S. Constitution. The essential story here is that “We the People” drafted and ratified a constitution in order to impose limits on governmental power and protect fundamental rights. Yet, aside from the procedural rules of Article V of the constitution (making it very difficult though not impossible to amend the constitution), there are no substantive limits on the power of the people to abolish or amend their constitutional charter.

At this point, a possible response or objection to our theoretical criticism is that we are “overthinking” the problem of interpretation. (Indeed, Professor Baude suggests as much in his informal reply to our original regress criticism of his macro theory.) We offer two replies to this argument. First, we take this objection as a compliment, a badge of scholarly honor. Simply put, we would rather be accused of “overthinking” than “underthinking” an issue. Secondly, even if we are “overthinking” this problem, at least we are not “overwriting” it, as most academic lawyers tend to do! (The draft of the Baude and Sachs paper, by way of example, is over 80 pages long and contains hundreds of footnotes.)


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