Turning the Kaleidoscope: Toward a Theory of Interpreting Precedents
106 Pages Posted: 7 Mar 2015 Last revised: 11 Mar 2018
Date Written: 2016
Scholars, judges, and lawyers have fought for decades over originalism, textualism, and “living” interpretation as though such questions arose exclusively with respect to statutes and constitutions. That is wrong. Some judicial decisions have meanings that change over time, much like statutory and constitutional provisions, and sometimes interpreting a case requires more than reading an opinion’s text. Legal actors constantly fight over what precedents mean, and those disputes require an understanding of what such cases meant in the past—whether at the initial time of decision, or in their subsequent applications. As with statutes and the Constitution, links to a historical past can be important evidence that precedential interpreters are applying extant legal authority, rather than making it up. This Article offers a system for interpreting judicial precedents that clarifies how current fights unfold and identifies techniques for future use. I consider four methods of interpreting precedents that rely on different categories of historical materials and can generate different interpretive results: (i) an opinion’s text, which indicates a decision’s declared meaning; (ii) adjudicative context, reflecting its implied meaning; (iii) reception by contemporary analysts, depicting its understood meaning; and (iv) subsequent doctrinal applications, which identify its developmental meaning. These categories–much like the textualism, originalism, and dynamism that are familiar in other legal contexts–yield interpretive options for lawyers defending clients, courts explaining decisions, and intellectuals pursuing truth. This Article illustrates how the foregoing methods work, and also what they produce, by considering important precedents from the nineteenth, twentieth, and twenty-first centuries. Two examples, Swift v. Tyson and Erie v. Tompkins, are among the most widely studied cases in American law, yet the application of different interpretive techniques reveals new historical materials that inturn support new interpretations. By comparison, the Supreme Court’s recent decisions in United States v. Windsor and Obergefell v. Hodges are uncharted territory, with only scant historical evidence at hand. In the latter context, methods of precedential interpretation sketch a range of options by which legal actors may influence and solidify such decisions’ meanings. Whether interpretive methodologies are used for revisionist purposes or for explicitly creative ones, they can be powerful tools for analyzing any judicial decision that is deemed important enough to merit the effort—just as occurs with statutory and constitutional provisions. No interpretive system can produce simple doctrinal solutions to hard legal problems; indeed, that impenetrability is what makes hard problems hard. Understanding interpretive methodologies can nevertheless identify techniques that legal actors use to manipulate precedents’ legal power. It can also offer fresh intellectual perspective on how law operates, and why law’s history is so hard to escape.
Keywords: Erie, Swift, Windsor, Gelpcke, Baugh, Romer, Lawrence, Carolene Products, DOMA, Defense of Marriage Act, iconic cases, precedential icons, stare decisis, precedent, legal history, federalism, separation of powers, common law, judicial role, federal courts, civil procedure, textualism
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