Judging under Uncertainty

The topic of legal interpretation is a large and enduring one, and Vermeule has made a distinct contribution. Part of that contribution comes simply from the way in which, more than any other scholar of interpretation, Vermeule combines the insights of legal philosophy, public choice theory, history, economics, social psychology, and political science, among others, with a prodigious knowledge of numerous areas of law to produce a genuine comprehensive work on legal interpretation. This is a serious, thoroughly academic, and wonderfully multi-disciplinary addition to the literature on legal interpretation, and in its focus on institutions and on less-than-perfect interpreters making decisions under conditions of uncertainty has a distinct argument and a distinct voice. -- Frederick Schauer, John F. Kennedy School of Government, Harvard University Judging Under Uncertainty uses three basic models of statutory interpretation, all three of which are justified by a cluster of competing normative and empirical assertions that come easily to the armchair quarterbacks known as legal scholars. What is most interesting about Vermeule's work is that he attempts to strip away the normative angle and present a case for interpretive method based on the empirical side. Vermeule has contributed distinctive and imaginative scholarship on the subject of legal interpretation, clearly advancing the field substantially. -- Philip P. Frickey, Boalt Hall School of Law, University of California, Berkeley

In this book, Adrian 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. He argues that legal interpretation is above all an exercise in decisionmaking under severe empirical uncertainty.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.