My current research focuses on legal interpretation and the nature of law. With respect to the latter, I argue that a theory of law must explain why lawyers and judges agree on the content of the law as often as they do and that a version of legal positivism does this best. I also contend that theories of law, insofar as they aim at descriptive conceptual analysis, need to be sensitive to a likely shift in lawyers' concept of law over roughly the last two centuries.
My work on the nature of law informs my understanding of legal interpretation. I'm especially interested in the distinct normative stakes involved in interpreting different kinds of legal texts or responding to different sources of indeterminacy. One project argues that textualists about statutory interpretation need not, and indeed should not be, originalists about constitutional interpretation. Another project taxonomizes sources of legal indeterminacy and considers the diverse normative issues that they raise. In future work, I plan to extend some of these ideas to methods of regulatory and contractual interpretation.
You can learn more about my publications and works in progress below.
Explaining Legal Agreement
Legal theorists tend to focus on disagreement over the law, and yet a theory of law should also explain why lawyers and judges agree on the law as often as they do. To that end, this article first pins down a precise sense in which there can be pervasive agreement on the law. It then argues that such agreement obtains in the United States and likely in many other jurisdictions as well. Finally, it contends that Hartian Positivism offers a straightforward explanation of this phenomenon and, indeed, a better explanation than rival theories, like Ronald Dworkin’s Law as Integrity or Scott Shapiro’s Planning Theory. Given the ubiquity of legal agreement, Hartian Positivism’s explanatory superiority in this regard is a strong, albeit still not dispositive, consideration in its favor. The broader lesson is that theories of law should give greater priority to explaining legal agreement than many theories now do.
Metalinguistic Negotiation in Legal Speech
L. & Phil. (forthcoming)
This paper examines the role of metalinguistic negotiation in lawyers’ and judges’ speech about the law. A speaker engages in metalinguistic negotiation when the speaker uses a term to advocate for what that term should mean or how it should be used relative to context. While I doubt that legal practitioners employ metalinguistic negotiation in the ways that David Plunkett and Tim Sundell have proposed, it is plausible that practitioners do so in another way. Specifically, I contend that lawyers and judges sometimes use key terms in legal interpretation—e.g., “plain,” “meaning,” or “holding”—to advocate for what those terms should mean or how courts should use them in adjudication. This suggests an intriguing role for metalinguistic negotiation in legal argumentation, one that could shed light on practitioners’ disputes in a range of cases dealing with constitutional, statutory, or common-law interpretation.
How to Answer Dworkin’s Argument from Theoretical Disagreement Without Attributing Confusion or Disingenuity to Legal Officials
Can. J. L. & Juris. (forthcoming)
Ronald Dworkin’s argument from theoretical disagreement remains a pressing challenge for legal positivists. In this paper, I show how positivists can answer Dworkin’s argument without having to attribute confusion or disingenuity to legal officials. I propose that the argument rests on two errors. The first is to assume that positivism requires legal officials to converge on precise grounds of law when convergence on more general grounds will do. The second is to construe judicial speech too literally. If we pay attention to the pragmatics of judicial speech, we see that judges do not disagree over what the grounds of law are; they at most disagree over how courts should proceed when agreed-upon, though imprecise, grounds of law underdetermine what the content of the law directs in the case at hand.
How do legal texts determine legal content? A standard answer to this question— sometimes called “the standard picture”—is that legal texts communicate something and what they communicate is identical to legal content. Mark Greenberg criticizes the standard picture and offers in its place his own “moral impact theory.” My goal here is to respond to Greenberg by showing how the standard picture better explains legal practice than the moral impact theory does. To that end, I first clarify certain aspects of the moral impact theory. I then critique the theory, focusing on its inability to explain (i) why practitioners reason about legal content as they do and (ii) why they agree on legal content as often as they do. Finally, I refine the standard picture and demonstrate how it explains what the moral impact theory cannot.
The Decline of Natural Law and the Rise of Exclusive Positivism
75 SMU L. Rev. F. 174 (2022)
Stuart Banner’s The Decline of Natural Law: How American Lawyers Once Used Natural Law and Why They Stopped examines a major change in American legal thought that occurred between the nineteenth and twentieth centuries. Prior to this change, lawyers regularly relied on natural law; afterwards, natural law dropped out of the lawyer’s toolkit. In this review of Banner’s book, I argue that his account of the decline of natural law has important implications for both the substance and methodology of general jurisprudence. On the one hand, his account provides a plausible history of how American lawyers’ concept of law gradually came to cohere with exclusive positivism. On the other hand, his account suggests that our concept of law is more parochial than it is sometimes assumed to be, thus highlighting the limits of conceptual analysis for general jurisprudence.
Textualism, Dynamism, and the Meaning of “Sex”
2022 Cardozo L. Rev. De Novo 41 (2022)
A recent article by William N. Eskridge, Brian G. Slocum, and Stefan Th. Gries critically examines textualism, both in general and as applied in Bostock v. Clayton County. This Essay makes three points in reply. First, the authors criticize strawman versions of textualism that no mainstream legal interpreter claims to hold. Second, the authors’ examples of “societal dynamism” do not put any pressure on textualism properly understood. And third, the authors’ corpus-linguistics analysis of the word “sex” is, from a textualist perspective, irrelevant to the issue in Bostock.
Literalism in Statutory Interpretation: What Is It and What Is Wrong with It?
2021 U. Ill. L. Rev. Online 218 (2021)
In two decisions—Bostock v. Clayton County and Niz-Chavez v. Garland—a majority of the Supreme Court claimed to apply a textualist approach to statutory interpretation, and a dissent charged the majority with applying “literalism” instead. But what is literalism and what, if anything, is wrong with it? This Essay borrows a few ideas from the philosophy of language to try to pin down a more precise sense in which the majority opinions in Bostock and Niz-Chavez were arguably literalistic. The opinions may have been literalistic in the sense that they failed to consider how context pragmatically enriched what the relevant statutes asserted by fixing the operative sense of a polysemous word. If that is right, then one problem with such a literalist approach is that it pushes controversial interpretive choices underground rather than giving a linguistic (or any other sort of) argument for those choices.
Works in Progress
The titles and abstracts of some papers are suppressed for purposes of blind review.
How to Be a Textualist in Statutory Interpretation without Being an Originalist in Constitutional Interpretation
Proponents of textualism in statutory interpretation are nearly always proponents of originalism in constitutional interpretation, and vice versa. Yet there is no reason why these two theories must travel together. Nothing about the nature of law or interpretation entails both textualism or originalism. Nor do the values commonly used to justify textualism require adopting originalism; to the contrary, these values appear to counsel against adopting originalism, once one takes into account common differences between statutory and constitutional texts in our legal system. This Article advocates for textualism without originalism. Textualists need not, and indeed should not, be originalists.
A careful explanation of why these two interpretive theories can and should come apart is important for at least three reasons. First, it blocks facile and ultimately unavailing arguments for either textualism or originalism based on the nature of law or interpretation; the justification for either of these theories must go through political morality. Second, it shows why critics cannot use originalism’s flaws to object to textualism (as some have tried to do); each theory stands or falls on its own. And third, even for those who are drawn to neither textualism nor originalism, it is still worth considering important differences in how one must go about justifying theories of statutory versus constitutional interpretation.
Positivist Legal Interpretation
Debates over legal interpretation—such as debates between textualists and purposivists over statutory interpretation or between originalists and nonoriginalists over constitutional interpretation—show little sign of approaching resolution. Recently, some scholars have tried looking to philosophical work on the nature of law, and specifically Hartian Positivism, for an answer to which side of these debates is right. This Article rejects that approach and proposes thinking about the import of Hartian Positivism for debates over legal interpretation in a different way. While Hartian Postivism cannot resolve these debates, it can bring greater clarity to them by answering a more fundamental question: What is legal interpretation’s constitutive aim? What does legal interpretation, by its nature, aim to achieve?
On the Hartian picture of law, there is only one sensible answer to that question: legal interpretation aims to tell courts or other legal actors how they ought to proceed when the law runs out. It is not about what legal texts communicate or what effect they have on our law; it is about how those tasked with applying the law should behave when a legal text’s communicative content—and hence its contribution to our law—fails to determinately dispose of the question at hand. From this account of legal interpretation, much follows. It requires legal interpreters to distinguish at least four interpretive questions that too often get lumped together. Moreover, it offers insight into how to define and justify interpretive theories, the interpretation-construction distinction, and the plain-meaning rule and substantive canons of interpretation.
Playing Fast and Loose with Precedent
Recent years have seen renewed charges that the Supreme Court is “stealth overruling” precedent—that the Court is somehow severely undermining precedent while leaving it formally in place. These charges seem descriptively apt and normatively significant, yet it remains unclear just what stealth overruling is or how courts engage in it. This Article leverages work on the philosophy of precedent to develop a new account of what courts are doing in these cases and what, if anything, is wrong with it. To start, the term “stealth overruling” is a misnomer: courts’ behavior in these cases is neither stealthy nor overruling. The Article therefore introduces and adopts the more apt term “playing fast and loose with precedent.”
The Article makes three main contributions. The first is an account of what it is to play fast and loose with precedent. A subsequent court plays fast and loose with precedent when it refuses to cooperate with the precedent court: the subsequent court disposes of a case one way, even though the ordering of values or purposes justifying the precedent’s holding clearly favors disposing of the case a different way. Second, the Article taxonomizes methods of playing fast and loose with precedent, illustrating each with decisions from the Court’s recent terms. Third, the Article argues that playing fast and loose with precedent is sometimes, though not inevitably, illegitimate and that the Court’s recent and aggressive use of this strategy is indeed troubling.
A paper on a shift in our concept of law and its implications for the methodology of general jurisprudence