Do A New Thing: On Interpreting The Law

*It’s gonna literally be amateur hour here today.*

Paul Campos, at the Lawyers, Guns & Money blog, has an interesting post today about ways to approach interpreting the law called “Follow the rules or do the right thing?“.

You should read it.

Now, I Am Not A Lawyer and Campos is; in fact, he’s a Professor of Law so he’s a legitimate expert on this stuff whereas I am at best an interested amateur.

He’s smart, and not just a credentialed expert but an instructor of credentialed experts on this topic.

Just so we’re all clear on where the balance of authority lies when I inevitably go on to disagree with him about this stuff.

His basic premise is that there are two potentially conflicting motivations involved in interpreting law:

Follow The Rules – identify the text of the Law that applies to the particular case and apply that as-written
Do The Right Thing – identify the correct outcome of the particular case and do that

Obviously, as individuals, we should just go ahead and Do The Right Thing.

But judges, as agents of the State, are obligated to Follow The Rules; a State where the judges did not would be effectively lawless and extremely unpredictable.

So that’s a good way to think about this issue.

Where I disagree is that Campos seems to consider post facto justification as the only solution to situations where a judge decides to Do The Right Thing instead of Follow The Rules; basically writing a decision that twists the written law into a knot to make it look like following rules actually results in doing the right thing.

Which, to be fair, is absurdly common in actual written judgements and Campos gives some important examples from modern history.

And this certainly lines up with how lawyers actually seem to approach the law: choose the result you want and come up with an argument that the law requires that result. This is probably a consequence of what’s called the adversarial nature of the U.S. legal system: each lawyer is expected to argue only for their side’s position, no matter how weak that position is.

But judges need to think differently.

Judges are responsible for deciding between the arguments each side is making, but they need to retain the ability to throw those arguments out when they’re nonsense.

And to throw the rules out when they’re pathological.

Judges need an approach along the lines of:

Do the rules unambiguously dictate a conclusion?
If not, then the rules are ambiguous and need clarifying.
If yes, is that conclusion the right thing for this particular case?
If not, then the rules are pathological and need fixing.
If yes, then there you go: decided.

And the legal system needs clear actions a judge can take in cases where the rules are ambiguous or pathological.

Actions that would allow for doing the right thing in deciding the current particular case and would result in the laws being clarified or fixed so the next case like this won’t encounter the same problem.

Judges need to be able to order legislatures to fix things.

They kind of have a version of that ability in the current concept of judicial review, but they mostly limit themselves to deciding whether laws are in accord with each other or with various Constitutions.

They need a general purpose ability to order legislatures (and voters) to clarify laws that don’t have clear interpretations or to fix laws that give clearly pathological results.

And they need the guts to actually use it, but that’s a whole other topic.