The Supreme Court 1997 Term Foreword: The Limits of Socratic Deliberation

81 Pages Posted: 16 Feb 2013

Multiple version iconThere are 2 versions of this paper

Date Written: 1998

Abstract

When the Justices divide over interpretive methodology, they usually do so along a fault line between textualists and purposivists. The Court's textualists aim to discover the original public meaning of federal statutes and the Constitution, while purposivists treat authoritative text as a starting point for the inference of legislative purposes that can be applied to concrete questions not expressly addressed by the text. Because textualism as practiced by its proponents on the Court is backward-looking, it is particularly ill-suited to the problems of a rapidly changing world to which the Court must constantly apply statutory and constitutional text. In principle, purposivism ought to be more dynamic, but in practice, purposivism ana textualism share limitations that may be associated with the common law method of case-by-case development: like the Socratic method, the common law method as traditionally practiced exhibits a preference for speculation over experimentation. Increased reliance on social science would likely have only a small impact on the Court's work because of the judiciary's limited ability to gather and digest social science data. To better effect would be doctrines that channel learning by other political and social actors. Relying on a starkly instrumental conception of federalism and implementing other reforms, the Court could construct a model of "provisional adjudication," in which it worried less about finding the "true" meaning of authoritative texts - whether by textualist, purposivist, or common law methods - and instead focused on finding provisional, workable solutions to the complex and rapidly changing legal problems of our age.

Keywords: interpretive, textualist, purposivists, common law method

Suggested Citation

Dorf, Michael C., The Supreme Court 1997 Term Foreword: The Limits of Socratic Deliberation (1998). Harvard Law Review, Vol. 112, No. 4, p. 4, 1998; Cornell Legal Studies Research Paper No. 13-50. Available at SSRN: https://ssrn.com/abstract=2218526

Michael C. Dorf (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

HOME PAGE: http://www.lawschool.cornell.edu/faculty/bio.cfm?id=333

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