Faculty Scholarship

Turning the Kaleidoscope: Toward a Theory of Interpreting Precedents

A full generation of legal scholarship has analyzed methods of interpreting statutory and constitutional provisions. Different works have emphasized text, original intent, original reception, and dynamic “living” meaning as academics have argued over which methodological systems describe current practice, and which systems are normatively best.

Comparable methodological debates have not occurred with respect to judicial decisions. This Article examines precedents as a third category of legal authorities that — much like statutes and constitutions — sometimes present vague answers to important legal questions. This Article’s system of precedential interpretation will challenge unexamined intuitions about “reading cases,” with collateral implications for statutory and constitutional interpretation as well.

I consider four categories of historical materials to generate different sorts of precedential meaning: (i) an opinion’s text, indicating a decision’s declared meaning; (ii) adjudicative context, reflecting a precedent’s implied meaning; (iii) reception by contemporary analysts, which depict understood meaning; and (iv) subsequent doctrinal applications, which identify developmental meaning. These categories offer analogies to forms of textualism, originalism, and dynamism that are well known in other legal contexts.

Different methods of precedential interpretation yield different substantive outcomes, as this Article demonstrates through cases from the nineteenth, twentieth, and twenty-first centuries. By way of illustration, this Article will use its interpretive system to destabilize conventional views of Swift v. Tyson, Erie v. Tompkins, and the same-sex marriage case United States v. Windsor. Applying this model to other circumstances could prompt similar revisionism for other influential cases.

As is also true in the context of statutes and constitutions, no system of precedential interpretation can produce simple doctrinal solutions to hard legal problems. A systematic view of interpretive methodology, however, will clarify how interpretive fights proceed, as it explores techniques that lawyers and judges use to manipulate precedents’ immense legal power.

Download the paper at SSRN.

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