prior probability

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.

William Baude (University of Chicago) and Stephen E. Sachs (Duke University) recently posted on SSRN an important paper titled “The Law of Interpretation.” (How important? Their paper will be published in the Harvard Law Review–that important!) Law professors like Baude and Sachs and their kin have killed millions of trees writing papers and whole books about legal interpretation (the Baude & Sachs paper, for example, is 85 pages and contains 372 footnotes) because interpretation is so central to what courts do in deciding hard cases, especially cases involving constitutional law. Specifically, courts must resort to various theories of interpretation when there are gaps in the law or when the applicable law consists of conflicting rules or legal principles. For their part, Baude and Sachs claim that “legal interpretation … is deeply shaped by preexisting legal rules. These rules tell us what legal materials to read and how to read them. Like other parts of the law, what we call ‘the law of interpretation’ has a claim to guide the actions of judges, officials, and private interpreters — even if it isn’t ideal. We argue that legal interpretive rules are conceptually possible, normatively sensible, and actually part of our legal system.” In other words, the authors claim that there are rules of legal interpretation and that these rules comprise a second-order legal system.

Nevertheless, although we don’t want to be “that guy,” we are obliged to point out a fundamental logical flaw in their argument, a blind spot that destroys their entire theoretical edifice in a single blow. Specifically: what happens when there are gaps in these second-order interpretative rules themselves, or when the rules in this second-order system are themselves in conflict? Is there a third-order law (i.e. a law of the law of interpretation) to help us interpret the second-order interpretation rules, or do we have an infinite regress? (Addendum: we have posted a formal reply to Baude & Sachs on SSRN.)

Credit: Babel’s Dawn