28 Pages Posted: 13 Jun 2017 Last revised: 5 Jul 2017
Date Written: July 3, 2017
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, "old news" and so provides neither additional 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: Suggested Citation
Baude, William and Doerfler, Ryan D., Arguing with Friends (July 3, 2017). U of Penn Law School, Public Law Research Paper No. 17-27. Available at SSRN: https://ssrn.com/abstract=2985032