ARGUING WITH FRIENDS.

Author:Baude, William
 
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Judges sometimes disagree about the best way to resolve a case. But the conventional wisdom is that they should not be too swayed by such disagreement and should do their best to decide the case by their own lights. An emerging critique questions this view, arguing instead for widespread humility. In the face of disagreement, the argument goes, judges should generally concede ambiguity and uncertainty in almost all contested cases.

Both positions are wrong. Drawing on the philosophical concepts of "peer disagreement" and "epistemic peerhood," we argue for a different approach: A judge ought to give significant weight to the views of others, but only when those others share the judge's basic methodology or interpretive outlook--i.e., only when those others are methodological "friends." Thus textualists should hesitate before disagreeing with other textualists, andpragmatists should hesitate before disagreeing with like-minded pragmatists. Disagreement between the two camps is, by contrast, "old news" and so provides neither camp additional reason for pause.

We also suggest that judges should give weight to the views of all of their methodological friends, not just judges. And we suggest, even more tentatively, that our proposal may explain and, to some extent, justify the seemingly ideological clusters of justices on the Supreme Court. The most productive disagreements, we think, are ones that come from arguing with friends.

TABLE OF CONTENTS INTRODUCTION I. JUDICIAL FRIENDS A. Understanding Epistemic Peers B. Immediate Objections 1. Second-Order Humility 2. Overlap in Interpretive Methodologies 3. Institutional Peers C. Do Judges Really Have Methodologies? D. Strategic Voting II. OTHER FRIENDS? III. METHODOLOGICAL FRIENDSHIP IN ACTION CONCLUSION INTRODUCTION

In our legal system, judges decide appeals in groups. How should that affect their views about the law?

The conventional wisdom (unquestioned until recently) is that it should not. Each judge should consider the case by his or her own lights--looking to text, history, precedent, practicality, or whatever those lights dictate--and announce this vote to colleagues. If other judges disagree and vote differently, that should not shake one's confidence or change one's behavior. A little bit of compromising around the edges might be permissible to write an opinion that can command a majority, but in the main, each judge is entitled to stick to his or her guns in the face of disagreement. But this view, sometimes labeled "solipsistic," (1) has recently come under attack.

Several scholars now advocate a bracingly contrary position. Professors Eric Posner and Adrian Vermeule argue that all judges ought to become more humble in the face of just about any disagreement with other judges. Presumptively, they maintain, when judges learn that their colleagues disagree with them about interpreting a legal provision, they ought to conclude, at a minimum, that the provision's meaning is unclear. (2) Under existing doctrines conditional on legal clarity, they argue, this presumption should push judges toward deference to agencies, toward officer immunity from constitutional torts, and toward solicitude for criminal defendants under the rule of lenity. (3) Similarly, Professor Alex Stein argues that the solipsistic view is "fundamentally incompatible with the epistemological principles of rational fact-finding." (4) This emerging critique, which we will call "judicial conciliationism"--for the reason that it instructs judges to react in a conciliatory fashion almost whenever encountering judicial disagreement--makes a powerful point against the status quo.

The current debate, however, represents something of a false dichotomy. We propose a different approach, one that is supported both by common sense and by a more nuanced application of the "epistemological principles" invoked by one of these judicial conciliationists. In particular, we think it is a mistake to assume that all judges must treat one another alike, rather than recognizing consistent differences between some groups of judges. And it is a related mistake to assume that only other judges' views should be considered.

Instead, we argue, much turns on the question of legal methodology, rather than legal status. Judges ought to focus on the votes of those who share their interpretive methodology, approach, or outlook--who we call their methodological "friends." Moreover, we suggest that judges should look to all of their methodological friends who have studied the case and express a firm view about it--judges on other courts, lawyers, professors--and not just to their immediate colleagues. Rather than looking to the votes of "other judges," judges ought to look to the votes of their methodological friends.

This analysis is also grounded in formal epistemology and provides occasion to develop the important concepts of "peer disagreement" and "epistemic peers" in the context of legal interpretation. Philosophers' study of epistemology provides several important insights about when and how it is rational for one to change one's mind after learning that others disagree. We deploy those concepts here, arguing that they place great emphasis on disputes over methodology.

Finally, we note that these decisionmaking principles may have been hiding in plain sight. If judges do give substantial weight to the votes of their methodological friends, we would expect to see clusters of like-minded judges whose votes tend to align with one another, and with certain academics and interest groups who follow the cases. As it happens, many observers have documented exactly this phenomenon on the Supreme Court today. (5) But while those observers have generally attributed such clustering to politics, our account provides the potential for a more charitable, and more lawdriven, explanation.

The rest of this Essay proceeds through these three points. In Part I, we apply both common sense and formal epistemology to argue that judges ought to heavily weigh only the views of their methodological friends. In Part II, we extend those arguments to suggest, albeit more tentatively, that judges presumptively ought to consider all of their friends, regardless of whether or not they are judges. Finally, in Part III, we consider the implications of these conclusions and the judicial behavior they explain.

  1. JUDICIAL FRIENDS

    The intuition that judges ought to consider one another's views is a powerful and sensible one, and one with a strong philosophical pedigree. But an important question remains: How? In our view, the answer starts with a key distinction that the judicial conciliationists do not accept. That distinction is between other judges who share their own methodology, orientation, or approach, and those who do not. As a matter of both common sense and more rigorous epistemology, judges ought to give far more weight to the votes of other judges who share their approach, who we call their "friends." By contrast there is little reason to give much weight to judges with very different approaches, who we call their "foes."

    1. Understanding Epistemic Peers

      The argument for moderation in the face of disagreement starts with a powerful, motivating scenario. Imagine a group of justices sitting at conference table after oral argument, surprised to discover that they are deeply divided:

      [F]ive Justices say that the ordinary meaning of the statute is clearly X, and four say that it is clearly Y. Each camp is astonished to hear the other camp's view. Each is astonished to hear that the other camp not only fails to realize that (X or Y) is the clear meaning, but actually, and quite perversely, believes that instead (Y or X) is not only one possible reading, but is actually the clear meaning. (6) In this scenario, Posner and Vermeule declare, "all nine Justices need a stiff dose of epistemic humility." (7) They argue, quite plausibly, that the justices here ought to moderate their views based upon their respective discoveries, becoming much less confident that they are right about what the statute means. "If other colleagues, who are presumptively reasonable, agree that the statute is clear, but believe that it is clear in precisely the opposite direction," they reason, "it would be indefensible epistemic practice to simply ignore their views." (8)

      So far, so good. Indeed, this position fits into a more general philosophical literature on the phenomenon of "peer disagreement." (9) This philosophical literature turns out to provide a useful lens for examining disputes about legal interpretation. Because that literature is new to legal interpretation scholarship, we must first beg the reader's patience to introduce the key terms: peer disagreement and epistemic peers.

      Peer disagreement is a dispute between "epistemic peers," (10) those who are equal in a certain sense. In particular, epistemic peers are individuals who are equally likely to get things right (or wrong) with respect to a given issue. (11) Generally speaking, two people are epistemic peers as to some issue when they are (1) equally rational and (2) have access to the same evidence. (12) For instance, two expert meteorologists issuing forecasts on the basis of the same meteorological data, or two expert linguists looking at the same text, are likely to be epistemic peers. By contrast, a lawyer explaining a complicated legal situation to his client, or an eyewitness describing a scene to somebody who was not there, are not. (13)

      A natural instinct in response to peer disagreement is that the two peers ought to try to reconcile their beliefs. In particular, if one learns that an epistemic peer disagrees, one ought to have reduced confidence in one's own position. In the literature on peer disagreement this position is known as "conciliationism." (14)

      The instinct for conciliationism is easiest to see in cases of an easily falsifiable disagreement. To take an example from the...

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