Interpretive theory in its infancy: a reply to Posner.

• Author: Sunstein, Cass R.
• Position: Response to article by Richard A. Posner in this issue, p. 952

1. INTRODUCTION

   In law, problems of interpretation can be explored at different levels of generality. At the most specific level, people might urge that the Equal Protection Clause forbids affirmative action, or that the Food and Drug Act applies to tobacco products. At a higher level of generality, people might argue that the Equal Protection Clause should be interpreted in accordance with the original understanding of its ratifiers, or that the meaning of the Food and Drug Act should be settled with careful attention to its legislative history. At a still higher level of generality, people might identify the considerations that bear on the selection of one or another approach to interpretation, with or without reaching a conclusion about the appropriate approach.

   In Interpretation and Institutions, we proceed at the highest level of generality, without offering final judgments about our preferred approach or about particular cases. (1) Our principal submission is that any judgment about the preferred approach must pay a great deal of attention to institutional capacities and dynamic effects. We intend this submission as a constructive one--one that helps clarify the grounds for reasonable disagreement and that suggests the possibility of empirical research that might actually be helpful. In our view, the study of legal interpretation remains in its infancy, and we are confident that in part as a result of such research, the legal culture will know a great deal more in twenty years than it knows today. (2) In emphasizing the importance of attending to institutional capacities and dynamic effects, we presented a survey, illustrative rather than exhaustive, of a wide range of work that seems to us to have neglected those capacities and those effects. We also attempted to identify some empirical questions that might cast light on the underlying issues.

   We are grateful to Judge Posner for his spirited and lengthy reply. But his disagreements with us are minor--more rhetorical than real. In a department (not a law school) of a well-known university, senior faculty members are said to respond to new ideas in one of two ways. (a) "We did that." (b) "We never did that." Posner's reply has some of this flavor.

   Posner has misunderstood our views in at least three respects. First, Posner takes us to "praise ... judicial formalism." (3) As we stated, our twofold project is to argue that the choice between formalism and antiformalism must be made on institutional and empirical grounds, rather than conceptual or linguistic grounds, and also to describe the conditions under which formalism or antiformalism would be the better choice for particular institutions or societies. (4) One of us (Vermeule) indeed believes that current American law should become more formalist, but it is not our concern here to make the arguments on formalism's behalf. (5) The large stretches of Posner's discussion that challenge interpretive formalism, then, are irrelevant to our claims.

   Second, Posner accuses us of understating the extent to which past work has viewed interpretation through an institutional lens. We cannot imagine that Posner has any real disagreement with our central claim, which is that most such work is insufficiently resolute about the institutional approach. To be sure, a great deal of interpretive scholarship talks about legislatures, agencies and courts; how could it be otherwise? Of course our claim is not that we are the first to connect institutions to interpretation. In our view, however, most interpretive theorizing goes wrong either by adopting a stylized and nonempirical account of institutional capacities, or by adopting an asymmetrical account that views one type of institution, usually legislatures, through a realist lens, while viewing others, usually courts, in utopian terms. Posner does not engage these...