May 17, 2006

Sunstein on Dworkin.

Cass Sunstein reviews Ronald Dworkin's "Justice in Robes." Excerpt:
Dworkin agrees that judges generally must be faithful to existing legal materials, but he insists that they are not merely "following" something. The law is often unclear. Dworkin contends that when resolving real disputes, judges must select the principle that puts previous decisions in their most attractive light. For this reason, the task of interpretation requires judges to think seriously about what morality requires, and they might well end up moving the law in dramatic and novel directions. ...

... Dworkin's central arguments are right. Legal reasoning typically works by attempting both to "fit" past decisions and to "justify" them, by making them into sense rather than nonsense. Too much of the time, politicians and judges ignore the fact that judicial judgments, about principle and policy, play an inevitable role in determining what the law is. ...

Dworkin's second claim is that the Supreme Court should adopt an approach that calls on the justices to make large-scale judgments about the meaning of our highest ideals. I think that the Court should, most of the time, refuse to assume such a role. It should refuse to do so because fallible judges ought to avoid engaging, in particular cases, with the most fundamental problems in morality and politics. No theory of interpretation can avoid moral and political controversy, but it is possible to adopt, on moral and political grounds, a theory of interpretation that asks judges to decline to deploy their own moral and political judgments as weapons against the democratic process.


Richard Dolan said...

"Legal reasoning typically works by attempting both to "fit" past decisions and to "justify" them, by making them into sense rather than nonsense."

It's hard to disagree with the idea that in decidng cases judges should try to make "sense rather than nonsense" out of legal principles. But that's not saying very much. In commercial litigation, the paramount values are consistency and predictability of result. Perhaps Sunstein means to include those values in his "fit/justify" calculus. But I always have the sense that academics like Sunstein (and certainly Dworkin) are writing about a legal system that I haven't often encountered in 30 years of trying mostly commercial cases. If you agree that consistency and predicatability should be paramount values, then our judicial system isn't performing very well and could stand some fundamental reform. (I'm not holding my breathe, since the Second Coming is likely to happen first.)

Others -- Posner, for example -- are concerned with the need for businesses to structure their affairs in an efficient and rational way. Dworkin has never had much interest in such cases, even though they make up the bulk of the work of the courts, particularly if one regards tort litigation as a form of business regulation allocating risks. In those cases, there's not much call for "large-scale judgments about the meaning of our highest ideals," unless he means to include basic principles of economics (and I don't think he does). And in all events, why would anyone think that those with the political connections to get nominated and the stamina to navigate the political meatgrinder to get confirmed have any special ability to devine and apply "large-scale judgments about the meaning of our highest ideals"?

I think academic speculations of this sort amount to a kind of projection -- what the particular professor would like to do if he were a judge (and they always seem to imagine themselves as a Supreme Court judge). To me, it's another excellent reason why presidents are rightly cautious about nominating professors with such ambitions to high judicial office.

Simon said...

I have to admit that it has become very hard to take seriously anything Sunstein says since "Radicals in Robes", and having reached that conclusion, I have the distinct impression that I am, if anything, late to the party.

David said...

Moral Judgments;

Is it safe to state that the Founding Fathers based the Constitution on moral judgments?

It is arguable that many of the problems we have today are based on the degradation of these prinicples by moral relativism.

If a past decision is non-sensical it should be addressed as such and not rehabilitated by verbal gymnastics.

One of the questions I look forward to being asked of potential Judges of any position is how they stand on the Constitution: fundamentalist or relative.

Core beliefs are what make our Constitution strong and viable. I do not have a degree in Jurisprudence. I can read the words of the Constitution, however, and the moral strength of the document always rings clear however inconvenient the interpretation may be.

Seven Machos said...

Cass Sunstein is like Alan Dershowitz in that sometimes they can say things that are brilliant and you are, like, "Yes! Exactly!" (This is one of those times.) Then, sadly, at other times, both of them say something that is so bonehadededy anti-common-sensical and elitist that it jars the psyche to its core.

Dershowitz seems to really have gotten better since 9/11. As for Sunstein, we'll always have him to thank for the groaner of an argument that the diffuse and democratic nature of the Internet is bad becomes harder for elitist thinkers like -- oh, I don't know, Cass Sunstein -- to influence people.

Sorry you don't have a captive audience any more, Cass. But this argument is a good one. Keep tmaking reasonable arguments and people may listen to you.

Joe said...

I could not get the article, but was just curious as to whether Sunstein or Dworkin ever mention a little thing called legislative intent.

tjl said...

Professors love it when judges "end up moving the law in dramatic and novel directions," especially if the novel directions happen to coincide with the professors' political views.

Judicial moves in dramatic and novel directions aren't quite so appealing to lawyers who actually have to advise clients of what the law is. Will our clients be mollified if we tell them, "I'm sorry the judge ruled against us, contrary to all the precedent on this issue, but the opinion was so dramatic and novel I'm sure you'll love it."

Nasty, Brutish & Short said...

Back in my undergratuate days, I had to do a huge research paper on Dworkin, and then present it to the class. You know, basically read what these folks had written, and teach it to the class. Do the profesor's job for him, in other words.

Anyway, we were handed a list of different jurisprudential scholars, and each student was assigned to one. All I knew was I got Dworkin. No first name given.

So anyway, I was complaining about having to write about some modern theorist to a friend (I wanted Hobbes, surprise, surprise), and she exclaimed, "OH MY GOD, SHE IS RADICAL! WE STUDIED ANDREA DWORKIN IN MY FEMINISM AND THE LAW CLASS!"

Well, suffice it to say, this put me seriously on the WRONG ROAD in terms of my research--and led to a rather calamitous presentation.

But I've recovered. Never really understood either Dworkin, though.

Not sure if Althouse is the correct forum for this. Maybe I should send it to Post A Secret?

AlaskaJack said...
This comment has been removed by a blog administrator.
AlaskaJack said...

Lets assume Dworkin is right. If so, law schools will have to include courses in moral philosophy. Because of the complexity of the subject, classes in moral theory will probably have to be required once in each of the three years.

If one member of an appellate panel views morality from a natural law perspective and another from Behtham's utilitarianism, they will, more often than not, come down on different sides of the kinds of issues that concern Dworkin. And so courses in appellate advocacy will have to stress philosophical argumentation applied to moral theory.

And advocate, depending on what side of the issue he is arguing, will have to be able to construct an argument showing either that the natural law theory is flawed or that Bentham's moral theory is misguided.

Are law schools up for this task?