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.
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 language entails both textualism or originalism. Nor do the values commonly used to justify textualism require adopting originalism; to the contrary, these values arguably counsel against adopting originalism. This paper concludes that textualists need not, and indeed should not, be originalists.
Positivist Legal Interpretation
Playing Fast and Loose with Precedent
A paper on metalinguistic negotiation in judges and lawyers’ speech about the law (manuscript available upon request)
A paper on how to explain pervasive agreement on the law (manuscript available upon request)
A paper on a shift in our concept of law and its implications for the methodology of general jurisprudence