The Volokh Conspiracy

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Volokh Conspiracy

New paper on judicial methodology and disagreement


Several years ago, on this blog, I got into an argument with Adrian Vermeule and Eric Posner about the problem of judicial disagreement. In a nutshell, what happens when five justices think a statute or constitutional provision clearly says "X" while four justices think it clearly says "Y"? Can it really be clear at all in the face of such disagreement?

Adrian and Eric went on to publish an article arguing for "a presumption that judges not only may, but should consider the votes of other judges," leading many legal provisions to be ambiguous in the face of judicial disagreement. After a long period of discussion with my friend and co-author Ryan Doerfler, we have written a paper as well, with a somewhat different take.

The abstract is below:

It is a fact of life that judges sometimes disagree about the best outcome in appealed cases. The question is what they should make of this. The two purest possibilities are to shut out all other views, or else to let them all in, leading one to concede ambiguity and uncertainty in most if not all contested cases.

Drawing on the philosophical concepts of "peer disagreement" and "epistemic peerhood," we argue that there is a better way. Judges ought to give significant weight to the views of others, but only when those others share the judge's basic methodology or interpretive outlook—i.e., only when those others are methodological "friends." Thus textualists should hesitate before disagreement with other textualists, and pragmatists should hesitate before disagreeing with like-minded pragmatists. Disagreement between the two camps is, by contrast, unsurprising and so provides neither reason for pause. We thus disagree with a recent proposal by Eric Posner and Adrian Vermeule that would give presumptive weight to the votes of all other judges, regardless of methodology.

We also suggest that judges should give weight to the views of all of their methodological friends, not just judges. And we suggest, even more tentatively, that our proposal may explain and to some extent justify the seemingly ideological clusters of justices on the Supreme Court. The most productive disagreements, we think, are ones that come from arguing with friends.

If you're curious, you can download the full paper here.