Research
My research draws on philosophical tools and my experience as a litigator to analyze questions regarding public law, precedent, and interpretation. I am currently working on projects that address the U.S. Supreme Court’s recent treatment of precedent; the import of legal positivism for debates over legal interpretation; and the independence of textualism in statutory interpretation from originalism in constitutional interpretation.
Two themes run throughout much of my work. The first is the relevance of philosophy to debates over legal interpretation—and particularly to clarifying how those debates can most productively move forward. And the second is that there are distinct normative stakes involved in interpreting different kinds of legal texts under different circumstances, suggesting that a complete theory of legal interpretation must be complex and multifaceted.
You can learn more about my publications and works in progress below.
Publications
Did the Court in SFFA Overrule Grutter?
Notre Dame L. Rev. Reflection (forthcoming)
The Supreme Court’s decision in Grutter v. Bollinger stated the law on affirmative action in higher education for twenty years. Then, in Students for Fair Admissions (SFFA) v. President and Fellows of Harvard College, the Court held that affirmative-action programs designed to comply with Grutter were unlawful. The Court, however, nowhere said that it was overruling Grutter and, in fact, seemed to rely on Grutter as authority. Some of the justices thought that the Court left Grutter fully intact, while others said that the Court overruled Grutter or overruled it “for all intents and purposes.”
Did SFFA overrule Grutter or not? This Essay analyzes that question and its normative fallout. Although asking whether SFFA overruled Grutter might at first seem overly formalistic, the answer is practically significant. It matters not just to how parties litigate and lower courts resolve the challenges to universities’ admissions programs that will inevitably follow but also to how we normatively assess what the Court did in SFFA. The Essay concludes that SFFA at least partially overruled Grutter and that the Court’s failure to acknowledge as much should trouble us.
Explaining Legal Agreement
14 Juris. 221 (2023)
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
42 L. & Phil. 487 (2023)
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
36 Can. J. L. & Juris. 215 (2023)
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.
In Defense of the Standard Picture: What the Standard Picture Explains that the Moral Impact Theory Cannot
28 Legal Theory 59 (2022)
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
Obstructing Precedent
Recent years have seen repeated charges that the Supreme Court is “disrespecting,” “gutting,” “nullifying,” or “stealth overruling” precedent—that the Court is severely undermining certain precedents while leaving them formally in place. Yet it remains unclear what exactly these charges mean or why they point to anything objectionable. This Article develops a novel account of what courts are doing when they treat precedent in this way and when it is problematic for them to do so. It proposes that courts in these cases are obstructing precedent.
The Article makes three main contributions. First, it explains what it is for a court to obstruct precedent. A court obstructs precedent when it disposes of a case one way, even though the weighting of values or purposes justifying the precedent’s holding clearly favors disposing of the case otherwise. The court, in ruling as it does, demonstrates that it now prioritizes certain values or purposes differently than it once did. The result is that the same institution seems over time to speak not with one voice but with multiple discordant voices reflecting no unified moral or political vision.
Second, the Article taxonomizes various methods of obstructing precedent and illustrates the Court’s use of those methods across a wide range of cases, such as Egbert v. Boule, Shinn v. Ramirez, Kennedy v. Bremerton School District, and West Virginia v. EPA. Third, the Article argues that obstructing precedent is sometimes, though not invariably, morally suspect. In particular, the Court’s recent and aggressive pattern of obstructing precedent is troubling because of how it undermines the impersonality of the justices’ decisions and risks further eroding public trust in the Court.
What Are We Debating When We Debate Legal Interpretation?
Debates over legal interpretation—such as those between textualists and purposivists or originalists and living constitutionalists—are familiar to every judge, lawyer, and law student. Yet, perhaps surprisingly, there remains disagreement over what legal interpretation aims to achieve and, hence, over what these debates are really about. Does legal interpretation aim to grasp a legal text’s communicative content? To grasp the text’s effect on the law? To grasp the law as a whole? Or is legal interpretation instead about how judges or other legal actors should proceed when a legal text’s effect on the law, or the law as a whole, is indeterminate? This “meta-interpretive debate” over what we are disagreeing about when we debate legal interpretation receives far less attention than it should.
This Article explores Hartian Positivism’s answer to the meta-interpretive debate and why it matters. Hartian Positivism, roughly put, maintains that the law of any jurisdiction ultimately depends on the convergent attitudes and behaviors of the jurisdiction’s officials. Hartian Positivism cannot resolve our statutory- or constitutional-interpretation debates; it cannot provide any reason to prefer, say, originalism over living constitutionalism. But it can clarify what the debates are about. If Hartian Positivism is right, then the debates concern legal interpretation in a specific remedial sense: they concern how legal actors should proceed when the law runs out—how they should fill in the law’s gaps.
From this remedial answer to the meta-interpretive debate, much follows that scholars have overlooked or underappreciated. Among other things, it sheds fresh light on which questions are at issue in our statutory- and constitutional-interpretation debates, how to define positions in the debates, and how to justify those positions. While these issues may seem abstract, their political stakes are concrete. Some judges, including some justices of the U.S. Supreme Court, profess to adhere to one interpretive theory or another. It matters whether those theories are, or can credibly be, claims about what the law requires as opposed to claims about how to go on after the law runs out. It is vital that we understand what these theories are really about and what could justify legal actors in following them.