The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Several readers have suggested that The Law of Interpretation is vulnerable to a problem of infinite regress. (Indeed, here's a short essay laying out the criticism.) As I understand it, the argument is that the law of interpretation will itself need to be interpreted, and so we will have new interpretive disputes, which will need new laws of interpretation, and so on.
As a general matter, I think it's important to distinguish regress from infinite regress. We often have a thick nesting of legal rules—a debt obligation that comes from a judgment that comes from a court's judicial power that comes from a jurisdictional statute that comes from Congress that comes from an election that comes from the Constitution that comes from some kind of popular will, to take a simple example.
But the regress isn't infinite. Folks who dispute the validity of the debt can agree on the judgment. Folks who dispute the validity of the judgment can agree on the jurisdictional statute. And so on.
As a specific matter, I'm not convinced that there's an infinite regress problem in the law of interpretation. In the paper, we argue:
First, the law of interpretation has devices for resolving residual indeterminacy—that's what closure rules do, as well as the more practical "authority rules" like the rules that courts resolve disputed cases as best they can.
Second, understanding the canons as law also helps us to see how seemingly contradictory canons can fit together. When the canons are understood as maxims, proverbs or pieces of advice, it's easy to see them as vaguely conflicting, like the sayings that "haste makes waste" and that "he who hesitates is lost." But how different legal rules interact with one another is itself a question to be settled by law. When courts encounter two potentially conflicting federal statutes, they don't simply throw up their hands and say "dueling statutes!" So, too, it should be with conflicting canons.
Third, even if it's true that there remain some unprovided-for cases under the Law of Interpretation, we don't see that as a fatal flaw so much as some fraying around the edges. Most of the time, judges seem to understand their task pretty well, so long as they don't overthink it.