Arguing with Friends

29 Pages Posted: 13 Jun 2017 Last revised: 21 Jun 2017

William Baude

University of Chicago - Law School

Ryan D. Doerfler

University of Pennsylvania Law School

Date Written: June 12, 2017

Abstract

It is a fact of life that judges sometimes disagree about the best outcome in appealed cases. The question is what they should make of this. The two purest possibilities are to shut out all other views, or else to let them all in, leading one to concede ambiguity and uncertainty in most if not all contested cases.

Drawing on the philosophical concepts of “peer disagreement” and “epistemic peerhood,” we argue that there is a better way. Judges 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 disagreement with other textualists, and pragmatists should hesitate before disagreeing with like-minded pragmatists. Disagreement between the two camps is, by contrast, unsurprising and so provides neither reason for pause. We thus disagree with a recent proposal by Eric Posner and Adrian Vermeule, that would give presumptive weight to the votes of all other judges, regardless of methodology.

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.

Keywords: Judges, Disagreement, Peer, Epistemic, Epistemic Peer, Peer Disagreement, Methodology, Interpretation, Friends

Suggested Citation

Baude, William and Doerfler, Ryan D., Arguing with Friends (June 12, 2017). U of Penn Law School, Public Law Research Paper No. 17-27. Available at SSRN: https://ssrn.com/abstract=2985032

William Baude (Contact Author)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

Ryan D. Doerfler

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

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