prior probability

Michelle N. Meyer, an academic fellow of bioethics and biotechnology at Harvard Law School, recently brought to our attention this fascinating blog post titled “Leveling Up,” which was originally written by law professor Christian Turner. She helpfully describes various levels of legal analysis as follows (emphasis added by us):

Level 0: The outcome of this dispute should be O.

Level 1: The outcome of this dispute should be O because of rule R …

Level 2: Rule R should determine the outcome of this dispute because of principle P (e.g., efficiency; fairness; market failure) that justifies rule R.

Level 3: This dispute is appropriately resolved (i.e., the choosing of R and P should be done) by institution I (e.g., trial court, appellate court, legislature, agency, the people via referendum).

Level 4: Institution I is the appropriate entity to resolve these types of disputes because of the theory of institutional choice T (e.g., comparative institutional competence to apply principle P and/or develop its informational inputs; separation of powers; legitimacy of decision-making by (un)elected decision-makers).

Notice, however, that in law there are rarely any right answers at any of these levels of legal analysis, especially levels 2, 3, and 4. Principles, for example, are always up for grabs in law, and there are no real clear-cut rules for demarcating legislative and judicial spheres of influence. (Level 0 is not even a method of “analysis” but rather a type of empty argument based on a mere conclusory assertion.) Even level 1 often produces contradictory legal conclusions, especially when the applicable rule is broad, unclear, or “open-textured” (to borrow HLA Hart’s famous phrase). What does this say about the study of law and legal analysis generally? Is legal analysis more a matter of aesthetics or politics than it is of logic?

What’s yours?