Saturday, July 14, 2007

UTLJ Review Article

My paper "The Institutional Theory of Legal Interpretation" is forthcoming in The University of Toronto Law Journal. This paper is a review article of Adrian Vermeule's excellent book Judging Under Uncertainty.

It was a real joy reading Vermeule's book. Legal theory has long been dominated by debates concerning the primacy of different high-level conceptual commitments, like democracy and constitutionalism. Vermeule documents the chronic condition of institutional blindness in Anglo-American interpretive theory, covering the contributions of important historical figures — like William Blackstone and Jeremy Bentham — to the most important contemporary contributions, such as the theories of H.L.A Hart, Ronald Dworkin, and Richard Posner. Rather than trying to win a debate concerning "first-best conceptualism", Vermeule makes the case for developing a second-best interpretive theory. Second-best interpretive theories ask how nonideal interpreters of law should proceed in light of widespread disagreement about competing first-best theories and given the institutional constraints and political conditions that actually obtain in the legal system.

There are a lot of important insights Canadian legal theorists can incorporate from Vermeule's institutional theory, especially for the "dialogical model" of judicial review which I am interested in (see here). And Vermeule's concerns parallel many of those I have for political philosophy more generally (esp. theories of distributive justice). I will post some more specific thoughts on these issues later. For now, here is the abstract of my forthcoming review article:

In his provocative and masterly book Judging Under Uncertainty Adrian Vermeule seeks to displace the dominance of what he calls ‘first-best conceptualism’ in legal theory and instead argues that interpretive law needs to take an institutional turn. Vermeule’s focus on the empirical problems of institutional interpretation is a welcome and long overdue contribution to legal theory. Judging Under Uncertainty is an ambitious book and a valuable contribution to legal theory. The book deals exclusively with American law and Vermeule’s institutional approach to legal interpretation takes the existing status quo of the American system as a given. This, one might be tempted to complain, limits the scope and application of the institutional theory advanced by Vermeule. I shall raise some of these concerns towards the end of this review article when I consider some of the insights Canadian jurisprudence could contribute to the development on an institutional theory of legal interpretation (as well as the insights Canadian legal theorists can take from Vermeule’s compelling and important arguments).