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Judging Under Uncertainty
By
Adrian Vermeule,
Description
How should judges, in America and
elsewhere, interpret statutes and the Constitution? Previous work on
these fundamental questions has typically started from abstract views
about the nature of democracy or constitutionalism, or the nature of
legal language, or the essence of the rule of law. From these
conceptual premises, theorists typically deduce an ambitious role for
judges, particularly in striking down statutes on constitutional
grounds. In this book, Adrian Vermeule breaks new ground by rejecting
both the conceptual approach and the judge-centered conclusions of
older theorists. Vermeule shows that any approach to legal
interpretation rests on institutional and empirical premises about
the capacities of judges and the systemic effects of their rulings.
Drawing upon a range of social science tools from political science,
economics, decision theory, and other disciplines, he argues that
legal interpretation is above all an exercise in decisionmaking under
severe empirical uncertainty. In view of their limited information
and competence, judges should adopt a restrictive, unambitious set of
tools for interpreting statutory and constitutional provisions,
deferring to administrative agencies where statutes are unclear and
deferring to legislatures where constitutional language is unclear or
states general aspirations.
Contents
Introduction
I. Critique 1.
Interpretation without Institutions
2. Dynamism and Pragmatism: A
Tale of Two Nirvanas
II. Reconstruction 3. The
Institutional Turn
4. Judicial Capacities: A Case
Study
5. Systemic Effects and Judicial
Coordination
III. Applications 6.
Judging under Uncertainty
7. Statutory Interpretation
8. Judicial Review and
Constitutional Interpretation
Conclusion: Interim Interpretive
Theory
Notes
Index
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