Legitimate Interpretation - Or Legitimate Adjudication?

70 Pages Posted: 21 Sep 2020

Date Written: September 16, 2020

Abstract

Current debate about the legitimacy of lawmaking by courts focuses on what constitutes legitimate interpretation. The debate has reached an impasse in that originalism and textualism appear to have the stronger case as a matter of theory while living constitutionalism and dynamic interpretation provide much account of actual practice. This Article argues that if we refocus the debate by asking what constitutes legitimate adjudication, as determined by the social practice of the parties and their lawyers who take part in adjudication, it is possible to develop an account of legitimacy that produces a much better fit between theory and practice. The decisional norms employed by adjudicators include faithful agent arguments about governing texts, arguments from precedent, and arguments from settled practice, but also, in a more qualified fashion, considerations of morality and social consequences. Adjudicators mix and match these norms in reaching outcomes but do so in a way that is regarded as legitimate by the losers as well as the winners in contested adjudications. A general normative implication of this refocused account of legitimacy is that adjudicators, including high-level appeals courts, should not stray far from their basic function of dispute resolution, as opposed to law declaration.

Keywords: constitutional law, legitimate interpretation, originalism, textualism, legitimate adjudication, adjudication

Suggested Citation

Merrill, Thomas W., Legitimate Interpretation - Or Legitimate Adjudication? (September 16, 2020). Columbia Public Law Research Paper No. 14-670, Available at SSRN: https://ssrn.com/abstract=3694651

Thomas W. Merrill (Contact Author)

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States
212-854-7946 (Phone)

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