13 May 2004

The Supremes

Not just the guys in Washington; judges in general. The Perfesser and Professor Solum have had an interesting, long-running semi-argument/discussion that basically boils down to "the judiciary is out of control because it has grabbed too much power." It is a much more subtle argument than that; but in the end, both want to somehow "transfer" interpretive power to something other than our current judiciary.

I do not agree, with either all of the premises or the proposed solution. To start with, the problem is not that the judiciary per se has become excessively powerful; it is that distortive nongovernmental actors—principally the insurance industry that pays well over 60% of the legal fees paid out to civil litigation counsel, but there are other guilty parties, too—have coopted the courts' agendas. As a general rule, insurance companies are precedent-averse, so they make incorrect decisions on what (and how vigorously) to litigate; at least, the decisions are incorrect from a scholarly/abstract point of view. This is the "invisible tort crisis": almost entirely on the defendant's side of the v.

Then there's the "Churchill problem." Our judicial system is not perfect. But criticizing it in detail while presenting only broad, euphoric outlines of an alternative is not valid logic; it is akin to, but not intellectually dishonest like, the "if evolutionary theory is imperfect, there must have been a Christian creation" arguments used by Inscrutable Design advocates. (One of whom is a law professor and bloody well should know better; but the questionable ethics of his particular approach shall be considered at another time.) The difficulty with the alternatives that have been proposed in this conversation—the "parliamentary solution" and the "formalist solution"—is that everywhere they've been tried, the abuses have been equal to or worse than those in our present judicial system. On the one hand, we have the Birmingham Seven, which reflects not just a single case but an institutional failure; the Official Secrets Act, and the "controversy" over Spycatcher; the list goes on. Then, too, there's the UK's move toward a highest court more similar in structure and function to ours than to the "parliamentary alternative," which itself should act as a very bright caution signal.

The major problem with formalism, particularly in constitutional interpretation, is that it denies the constancy of change. Technological change frequently overwhelms ossified language; consider the Intellectual Property Clause and the absence of authorization for an Air Force or intelligence service. Social change can, too; consider the development of the Exclusionary Rule over the years, both as driven by technology (wiretapping) and independent of it. I need not even rely upon the inchoate right to be left alone from law reviews; Weeks does not rely upon that right. The rise of unnatural persons (corporations, etc.) as actual litigants provides another example. Finally, and perhaps most importantly, linguistic drift can change the understanding of words themselves. Unnatural persons are a good example of this; Santa Clara County and changes in what people understood a business organization to be is a chicken-and-egg problem. All we need to know, however, is that change did occur, whether by fiat or by accretion, quickly or slowly. The most grievous failure of formalism as a binding method of interpretation, though, is the "unconsidered case." For example, the formal text of the Constitution does not compel (although it does support) the hierarchy Constitution, then treaty, then federal law if within federal powers, then state law. The "unconsidered case" here is the interaction between federal and/or state law and treaties; Martin v. Hunter's Lessee presents an obvious fact pattern that nonetheless is not considered in the Constitution in the formal sense.

Formalism is a valid method of interpretation. It can often provide answers and perspectives sufficient to resolve or prevent disputes. It is not, however, universally applicable, and sometimes creates an objectively indefensible result. One cannot use a single-optic light microscope, however powerful, to solve all problems and reveal all about every possible subject for examination, even within the limited realm of microbiology. Sometimes the problem is one that requires a finer instrument, such as an electron microscope or x-ray crystallography. Sometimes the problem is one that requires a completely different examination, such as DNA matching. The key is to know when to use each method; and to know when one is dealing with a problem outside of the realm of microbiology.

By nature, and after more study of interpretive theory than I should probably admit to in public ("Stop me before I spout literary theory again!"), I have concluded that there is no universal method of interpretation that always gives a valid result when dealing with language—even the speaker's own language, let alone language from 200 years ago. That reasonable individuals can disagree on the "correct" or "best" method of interpretation is a reflexive demonstration of this. Of course, the so-called "intent" school has corresponding problems, whether it is "original intent" or some other species. The intentional fallacy is even more dangerous when dealing with imperative statements (like law) than descriptive statements (like poetry). Just as formalism provides a valuable perspective, so too intent can provide a valuable perspective. One can raise parallel objections to just about any school of interpretation, whether in literature or in legal interpretation.