Judging under Uncertainty: An Institutional Theory of Legal Interpretation

How should judges, in America and elsewhere, interpret statutes and the Constitution? Previous work on these fundamental questions has typically started from abstract views about the nature of democracy or constitutionalism, or the nature of legal language, or the essence of the rule of law. From these conceptual premises, theorists typically deduce an ambitious role for judges, particularly in striking down statutes on constitutional grounds. In this book, Adrian Vermeule breaks new ground by rejecting both the conceptual approach and the judge-centered conclusions of older theorists. Vermeule shows that any approach to legal interpretation rests on institutional and empirical premises about the capacities of judges and the systemic effects of their rulings. Drawing upon a range of social science tools from political science, economics, decision theory, and other disciplines, he argues that legal interpretation is above all an exercise in decisionmaking under severe empirical uncertainty. In view of their limited information and competence, judges should adopt a restrictive, unambitious set of tools for interpreting statutory and constitutional provisions, deferring to administrative agencies where statutes are unclear and deferring to legislatures where constitutional language is unclear or states general aspirations.

Table of Contents:
Introduction I. Critique 1. Interpretation without Institutions 2. Dynamism and Pragmatism: A Tale of Two Nirvanas II. Reconstruction 3. The Institutional Turn 4. Judicial Capacities: A Case Study 5. Systemic Effects and Judicial Coordination III. Applications 6. Judging under Uncertainty 7. Statutory Interpretation 8. Judicial Review and Constitutional Interpretation Conclusion: Interim Interpretive Theory Notes Index

About the Author :
Adrian Vermeule is Professor of Law at Harvard Law School.

Review :
The topic of legal interpretation is a large and enduring one, and Vermeule has made a distinct contribution. Part of that contribution comes simply from the way in which, more than any other scholar of interpretation, Vermeule combines the insights of legal philosophy, public choice theory, history, economics, social psychology, and political science, among others, with a prodigious knowledge of numerous areas of law to produce a genuine comprehensive work on legal interpretation. This is a serious, thoroughly academic, and wonderfully multi-disciplinary addition to the literature on legal interpretation, and in its focus on institutions and on less-than-perfect interpreters making decisions under conditions of uncertainty has a distinct argument and a distinct voice. Judging Under Uncertainty uses three basic models of statutory interpretation, all three of which are justified by a cluster of competing normative and empirical assertions that come easily to the armchair quarterbacks known as legal scholars. What is most interesting about Vermeule's work is that he attempts to strip away the normative angle and present a case for interpretive method based on the empirical side. Vermeule has contributed distinctive and imaginative scholarship on the subject of legal interpretation, clearly advancing the field substantially. This work of legal theory critiques the conceptual approach that derives the scope of judicial power from abstract principles of constitutionalism or democracy. Rejecting this framework, Vermeule argues that any legal interpretation rests on institutional premises about the effects of decisions and the abilities of judges. The book is divided into three sections: critique, reconstruction, and application of the new institutionalist theory. Because of the extreme uncertainty and limited information involved in judicial decision making, the author contends that the best decision-making system is restrictive and deferential to administrative agencies and legislatures in ambiguous scenarios. This is an important book, different in both scope and methodology from ordinary works in interpretation in its ambition...and its willingness to borrow from a wide range of academic disciplines.