The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Adrian Vermeule has a post at Eric Posner's blog responding to my thoughts on judicial disagreement and ambiguity. Three points:
1. There are at least two proposed ways for a textualist judge to find ambiguity because of a non-textualist judge's view. One proposal is that the textualist judge finds ambiguity because there is "ambiguity in the choice of interpretive approaches,"—i.e., "reasonable minds can disagree about the proper approach to interpretation." That's the proposal in joint post #1. Another proposal is that the textualist judge learns something from the non-textualist judge about the textualist meaning, because there are overlapping inputs into textualist and non-textualist meaning. That's the proposal in Adrian's latest response.
One could endorse either, or both, but it's worth being clear about them because they'll have different implications for how and when the theory actually works.
2. In answering any of these questions with reference to a particular area of law where ambiguity or reasonableness are relevant, it probably makes sense to ask why and in what way that area of law makes ambiguity or reasonableness relevant. That's why I brought up Chevron Footnote 9. But one could instead use the definitions of "clearly established" in AEDPA or in qualified-immunity jurisprudence, etc.
My point is just that when it comes time to actually apply this idea to some areas of law, we'll have to see what the area of law has to say about the kind of ambiguity that is relevant.
3. Adrian accuses me of "a kind of instinctive resistance" and of a belief that "throwing away this particular category of information is necessarily desirable in all settings," and claims that my "confidence … seems to outrun the available evidence and theory."
On the contrary, I think the proposal is intriguing—it is simply unproven, and when "judging under uncertainty" there are good reasons to have a default rule of keeping things simple. But it is only a default rule.
So Adrian appears to have misread, or I have miscommunicated, my own confidence level. That's ironic, given that the second post assumes that Justices will accurately communicate their own confidence levels to one another….
But I look forward to reading the paper—maybe it will be persuasive!