Do theories of statutory interpretation matter? A case study

Northwestern University Law Review

Volumn 94, Issue 4, 2000, Pages 1409-1434

  Farber, Daniel A ^a  

^a NONE

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EID: 0042460042     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (168)

1. See Robert Weisberg, The Calabresian Judicial Artist: Statutes and the New Legal Process, 35 STAN. L. REV. 213, 213 (1983).
2. See WILLIAM N. ESKRIDGE, JR. & PHILIP P. FRICKEY, CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY (2d ed. 1995) (collecting numerous materials on interpretation). For an excellent introduction to the theoretical issues, see KENT GREENAWALT, LEGISLATION: STATUTORY INTERPRETATION: 20 QUESTIONS (1999).
3. See WILLIAM N. ESKRIDGE, JR. & PHILIP P. FRICKEY, CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY (2d ed. 1995) (collecting numerous materials on interpretation). For an excellent introduction to the theoretical issues, see KENT GREENAWALT, LEGISLATION: STATUTORY INTERPRETATION: 20 QUESTIONS (1999).
4. Jane S. Schacter, The Confounding Common Law Originalism in Recent Supreme Court Statutory Interpretation: Implications for the Legislative History Debate and Beyond, 51 STAN. L. REV. 1, 56 (1998).
5. An empirical study lists Posner and Easterbrook among the five most prestigious federal circuit judges in the United States as measured by references to them by name in the opinions of other judges. See David Klein & Darby Morrisroe, The Prestige and Influence of Individual Judges on the U.S. Courts of Appeals, 28 J. LEGAL. STUD. 371, 381 (1999).
6. Thus, this article can be seen as a preliminary response to Cass Sunstein's call for empirical research on the performance of formalist judges. See Cass R. Sunstein, Must Formalism Be Defended Empirically?, 66 U. CHI. L. Rev. 636, 655 (1999).
7. As of August 24, 1999, Posner and Easterbrook have sat together in the Seventh Circuit on 867 reported cases. Appendix B sets out the search methods used to derive this and other results.
8. A complete list of the cases in which they have taken opposite sides as of August 24, 1999 is found in Appendix A along with a brief description of each case.
9. See Daniel A. Farber, Missing the "Play of intelligence," 36 WM. & MARY L. REV. 147, 149-58 (1994).
10. If, as he said in his confirmation hearing, Judge Robert Bork was in search of an intellectual feast, he might have done better to put in for a transfer to the Seventh Circuit rather than try for a spot on the Supreme Court. See Nomination of Robert H. Bork to Be Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Comm. on the Judiciary, 100th Cong. 854 (1987).
11. Posner might be less surprised. He has devoted a recent book to attacking the practical relevance of moral and constitutional theory, and might well be willing to draw the same conclusion about theories of interpretation. See RICHARD A POSNER, THE PROBLEMATICS OF MORAL AND LEGAL THEORY (1999).
12. The search produced one other case that deserves particular mention. See Marozsan v. United States, 852 F.2d 1469, 1478-79 (7th Cir. 1988) (en banc). The case involved a statute barring judicial review of veterans benefits, and the issue was whether the statute covered procedural due process claims. Although Posner and Easterbrook wrote interesting opinions on opposite sides of this issue, the majority's view was strongly shaped by sharp constitutional concerns that make it difficult to treat the disagreement as purely one of statutory interpretation. See id. Another particularly interesting case, Hope Clinic v. Ryan, 197 F.3d 876 (7th Cir. 1999) (en banc), was decided while this article was at press. Hope Clinic involved facial challenges to two state laws purporting to ban "partial birth abortions" ("dilution and extraction" or D & X procedures). Id. at 861. There were two major issues. First, Easterbrook's majority opinion holds that banning this particular method does not create an "undue burden" on the right to an abortion or endanger women's health. See id. at 871. Posner disagreed on this constitutional issue. See id. at 878-82. Second, as written, the laws arguably also banned other abortion methods that are clearly protected under current constitutional doctrine. See id. at 873-74. This aspect of the case produced an intriguing debate between Posner and Easterbrook. Easterbrook, on behalf of the majority, crafted a novel judicial remedy. He upheld the "core" application of the statutes to "partial birth abortions" but enjoined their application to any other procedures, pending possible later definitive interpretation of the statutes by the state courts. See id. at 876. Posner protested that this remedy was unsupported by precedent and exceeded the court's powers under Article III. See id. at 876-78. While the constitutional portion of Posner's opinion seems more pragmatic than Easterbrook's in its focus on the political context and medical implications of the state laws, his treatment of the remedial issue is more formalist than Easterbrook's innovative injunctive scheme. See id. at 876-78, 886-87.
13. The search produced one other case that deserves particular mention. See Marozsan v. United States, 852 F.2d 1469, 1478-79 (7th Cir. 1988) (en banc). The case involved a statute barring judicial review of veterans benefits, and the issue was whether the statute covered procedural due process claims. Although Posner and Easterbrook wrote interesting opinions on opposite sides of this issue, the majority's view was strongly shaped by sharp constitutional concerns that make it difficult to treat the disagreement as purely one of statutory interpretation. See id. Another particularly interesting case, Hope Clinic v. Ryan, 197 F.3d 876 (7th Cir. 1999) (en banc), was decided while this article was at press. Hope Clinic involved facial challenges to two state laws purporting to ban "partial birth abortions" ("dilution and extraction" or D & X procedures). Id. at 861. There were two major issues. First, Easterbrook's majority opinion holds that banning this particular method does not create an "undue burden" on the right to an abortion or endanger women's health. See id. at 871. Posner disagreed on this constitutional issue. See id. at 878-82. Second, as written, the laws arguably also banned other abortion methods that are clearly protected under current constitutional doctrine. See id. at 873-74. This aspect of the case produced an intriguing debate between Posner and Easterbrook. Easterbrook, on behalf of the majority, crafted a novel judicial remedy. He upheld the "core" application of the statutes to "partial birth abortions" but enjoined their application to any other procedures, pending possible later definitive interpretation of the statutes by the state courts. See id. at 876. Posner protested that this remedy was unsupported by precedent and exceeded the court's powers under Article III. See id. at 876-78. While the constitutional portion of Posner's opinion seems more pragmatic than Easterbrook's in its focus on the political context and medical implications of the state laws, his treatment of the remedial issue is more formalist than Easterbrook's innovative injunctive scheme. See id. at 876-78, 886-87.
14. The search produced one other case that deserves particular mention. See Marozsan v. United States, 852 F.2d 1469, 1478-79 (7th Cir. 1988) (en banc). The case involved a statute barring judicial review of veterans benefits, and the issue was whether the statute covered procedural due process claims. Although Posner and Easterbrook wrote interesting opinions on opposite sides of this issue, the majority's view was strongly shaped by sharp constitutional concerns that make it difficult to treat the disagreement as purely one of statutory interpretation. See id. Another particularly interesting case, Hope Clinic v. Ryan, 197 F.3d 876 (7th Cir. 1999) (en banc), was decided while this article was at press. Hope Clinic involved facial challenges to two state laws purporting to ban "partial birth abortions" ("dilution and extraction" or D & X procedures). Id. at 861. There were two major issues. First, Easterbrook's majority opinion holds that banning this particular method does not create an "undue burden" on the right to an abortion or endanger women's health. See id. at 871. Posner disagreed on this constitutional issue. See id. at 878-82. Second, as written, the laws arguably also banned other abortion methods that are clearly protected under current constitutional doctrine. See id. at 873-74. This aspect of the case produced an intriguing debate between Posner and Easterbrook. Easterbrook, on behalf of the majority, crafted a novel judicial remedy. He upheld the "core" application of the statutes to "partial birth abortions" but enjoined their application to any other procedures, pending possible later definitive interpretation of the statutes by the state courts. See id. at 876. Posner protested that this remedy was unsupported by precedent and exceeded the court's powers under Article III. See id. at 876-78. While the constitutional portion of Posner's opinion seems more pragmatic than Easterbrook's in its focus on the political context and medical implications of the state laws, his treatment of the remedial issue is more formalist than Easterbrook's innovative injunctive scheme. See id. at 876-78, 886-87.
15. The search produced one other case that deserves particular mention. See Marozsan v. United States, 852 F.2d 1469, 1478-79 (7th Cir. 1988) (en banc). The case involved a statute barring judicial review of veterans benefits, and the issue was whether the statute covered procedural due process claims. Although Posner and Easterbrook wrote interesting opinions on opposite sides of this issue, the majority's view was strongly shaped by sharp constitutional concerns that make it difficult to treat the disagreement as purely one of statutory interpretation. See id. Another particularly interesting case, Hope Clinic v. Ryan, 197 F.3d 876 (7th Cir. 1999) (en banc), was decided while this article was at press. Hope Clinic involved facial challenges to two state laws purporting to ban "partial birth abortions" ("dilution and extraction" or D & X procedures). Id. at 861. There were two major issues. First, Easterbrook's majority opinion holds that banning this particular method does not create an "undue burden" on the right to an abortion or endanger women's health. See id. at 871. Posner disagreed on this constitutional issue. See id. at 878-82. Second, as written, the laws arguably also banned other abortion methods that are clearly protected under current constitutional doctrine. See id. at 873-74. This aspect of the case produced an intriguing debate between Posner and Easterbrook. Easterbrook, on behalf of the majority, crafted a novel judicial remedy. He upheld the "core" application of the statutes to "partial birth abortions" but enjoined their application to any other procedures, pending possible later definitive interpretation of the statutes by the state courts. See id. at 876. Posner protested that this remedy was unsupported by precedent and exceeded the court's powers under Article III. See id. at 876-78. While the constitutional portion of Posner's opinion seems more pragmatic than Easterbrook's in its focus on the political context and medical implications of the state laws, his treatment of the remedial issue is more formalist than Easterbrook's innovative injunctive scheme. See id. at 876-78, 886-87.
16. The search produced one other case that deserves particular mention. See Marozsan v. United States, 852 F.2d 1469, 1478-79 (7th Cir. 1988) (en banc). The case involved a statute barring judicial review of veterans benefits, and the issue was whether the statute covered procedural due process claims. Although Posner and Easterbrook wrote interesting opinions on opposite sides of this issue, the majority's view was strongly shaped by sharp constitutional concerns that make it difficult to treat the disagreement as purely one of statutory interpretation. See id. Another particularly interesting case, Hope Clinic v. Ryan, 197 F.3d 876 (7th Cir. 1999) (en banc), was decided while this article was at press. Hope Clinic involved facial challenges to two state laws purporting to ban "partial birth abortions" ("dilution and extraction" or D & X procedures). Id. at 861. There were two major issues. First, Easterbrook's majority opinion holds that banning this particular method does not create an "undue burden" on the right to an abortion or endanger women's health. See id. at 871. Posner disagreed on this constitutional issue. See id. at 878-82. Second, as written, the laws arguably also banned other abortion methods that are clearly protected under current constitutional doctrine. See id. at 873-74. This aspect of the case produced an intriguing debate between Posner and Easterbrook. Easterbrook, on behalf of the majority, crafted a novel judicial remedy. He upheld the "core" application of the statutes to "partial birth abortions" but enjoined their application to any other procedures, pending possible later definitive interpretation of the statutes by the state courts. See id. at 876. Posner protested that this remedy was unsupported by precedent and exceeded the court's powers under Article III. See id. at 876-78. While the constitutional portion of Posner's opinion seems more pragmatic than Easterbrook's in its focus on the political context and medical implications of the state laws, his treatment of the remedial issue is more formalist than Easterbrook's innovative injunctive scheme. See id. at 876-78, 886-87.
17. The search produced one other case that deserves particular mention. See Marozsan v. United States, 852 F.2d 1469, 1478-79 (7th Cir. 1988) (en banc). The case involved a statute barring judicial review of veterans benefits, and the issue was whether the statute covered procedural due process claims. Although Posner and Easterbrook wrote interesting opinions on opposite sides of this issue, the majority's view was strongly shaped by sharp constitutional concerns that make it difficult to treat the disagreement as purely one of statutory interpretation. See id. Another particularly interesting case, Hope Clinic v. Ryan, 197 F.3d 876 (7th Cir. 1999) (en banc), was decided while this article was at press. Hope Clinic involved facial challenges to two state laws purporting to ban "partial birth abortions" ("dilution and extraction" or D & X procedures). Id. at 861. There were two major issues. First, Easterbrook's majority opinion holds that banning this particular method does not create an "undue burden" on the right to an abortion or endanger women's health. See id. at 871. Posner disagreed on this constitutional issue. See id. at 878-82. Second, as written, the laws arguably also banned other abortion methods that are clearly protected under current constitutional doctrine. See id. at 873-74. This aspect of the case produced an intriguing debate between Posner and Easterbrook. Easterbrook, on behalf of the majority, crafted a novel judicial remedy. He upheld the "core" application of the statutes to "partial birth abortions" but enjoined their application to any other procedures, pending possible later definitive interpretation of the statutes by the state courts. See id. at 876. Posner protested that this remedy was unsupported by precedent and exceeded the court's powers under Article III. See id. at 876-78. While the constitutional portion of Posner's opinion seems more pragmatic than Easterbrook's in its focus on the political context and medical implications of the state laws, his treatment of the remedial issue is more formalist than Easterbrook's innovative injunctive scheme. See id. at 876-78, 886-87.
18. The search produced one other case that deserves particular mention. See Marozsan v. United States, 852 F.2d 1469, 1478-79 (7th Cir. 1988) (en banc). The case involved a statute barring judicial review of veterans benefits, and the issue was whether the statute covered procedural due process claims. Although Posner and Easterbrook wrote interesting opinions on opposite sides of this issue, the majority's view was strongly shaped by sharp constitutional concerns that make it difficult to treat the disagreement as purely one of statutory interpretation. See id. Another particularly interesting case, Hope Clinic v. Ryan, 197 F.3d 876 (7th Cir. 1999) (en banc), was decided while this article was at press. Hope Clinic involved facial challenges to two state laws purporting to ban "partial birth abortions" ("dilution and extraction" or D & X procedures). Id. at 861. There were two major issues. First, Easterbrook's majority opinion holds that banning this particular method does not create an "undue burden" on the right to an abortion or endanger women's health. See id. at 871. Posner disagreed on this constitutional issue. See id. at 878-82. Second, as written, the laws arguably also banned other abortion methods that are clearly protected under current constitutional doctrine. See id. at 873-74. This aspect of the case produced an intriguing debate between Posner and Easterbrook. Easterbrook, on behalf of the majority, crafted a novel judicial remedy. He upheld the "core" application of the statutes to "partial birth abortions" but enjoined their application to any other procedures, pending possible later definitive interpretation of the statutes by the state courts. See id. at 876. Posner protested that this remedy was unsupported by precedent and exceeded the court's powers under Article III. See id. at 876-78. While the constitutional portion of Posner's opinion seems more pragmatic than Easterbrook's in its focus on the political context and medical implications of the state laws, his treatment of the remedial issue is more formalist than Easterbrook's innovative injunctive scheme. See id. at 876-78, 886-87.
19. The search produced one other case that deserves particular mention. See Marozsan v. United States, 852 F.2d 1469, 1478-79 (7th Cir. 1988) (en banc). The case involved a statute barring judicial review of veterans benefits, and the issue was whether the statute covered procedural due process claims. Although Posner and Easterbrook wrote interesting opinions on opposite sides of this issue, the majority's view was strongly shaped by sharp constitutional concerns that make it difficult to treat the disagreement as purely one of statutory interpretation. See id. Another particularly interesting case, Hope Clinic v. Ryan, 197 F.3d 876 (7th Cir. 1999) (en banc), was decided while this article was at press. Hope Clinic involved facial challenges to two state laws purporting to ban "partial birth abortions" ("dilution and extraction" or D & X procedures). Id. at 861. There were two major issues. First, Easterbrook's majority opinion holds that banning this particular method does not create an "undue burden" on the right to an abortion or endanger women's health. See id. at 871. Posner disagreed on this constitutional issue. See id. at 878-82. Second, as written, the laws arguably also banned other abortion methods that are clearly protected under current constitutional doctrine. See id. at 873-74. This aspect of the case produced an intriguing debate between Posner and Easterbrook. Easterbrook, on behalf of the majority, crafted a novel judicial remedy. He upheld the "core" application of the statutes to "partial birth abortions" but enjoined their application to any other procedures, pending possible later definitive interpretation of the statutes by the state courts. See id. at 876. Posner protested that this remedy was unsupported by precedent and exceeded the court's powers under Article III. See id. at 876-78. While the constitutional portion of Posner's opinion seems more pragmatic than Easterbrook's in its focus on the political context and medical implications of the state laws, his treatment of the remedial issue is more formalist than Easterbrook's innovative injunctive scheme. See id. at 876-78, 886-87.
20. For a fuller discussion, see William N. Eskndge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 STAN. L. REV. 321, 324-45 (1990). A good description of the conventional judicial approach can be found in ABNER J. MIKVA & ERIC LANE, AN INTRODUCTION TO STATUTORY INTERPRETATION AND THE LEGISLATIVE PROCESS 456 (1997).
21. For a fuller discussion, see William N. Eskndge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 STAN. L. REV. 321, 324-45 (1990). A good description of the conventional judicial approach can be found in ABNER J. MIKVA & ERIC LANE, AN INTRODUCTION TO STATUTORY INTERPRETATION AND THE LEGISLATIVE PROCESS 456 (1997).
22. See, eg., Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 HARV. J.L. & PUB. POL'Y 61 (1994) [hereinafter Easterbrook, Text & History]; see also, e.g., Robert S. Summers & Geoffrey Marshall, The Argument from Ordinary Meaning in Statutory Interpretation, 43 N. IR. L.Q. 213 (1992) (defending textualism as a primary interpretative tool). "Formalism" has sometimes served as a pejorative term in legal debates. It should be clear, I hope, that I regard "formalist" as a descriptive rather than evaluative term.
23. See, eg., Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 HARV. J.L. & PUB. POL'Y 61 (1994) [hereinafter Easterbrook, Text & History]; see also, e.g., Robert S. Summers & Geoffrey Marshall, The Argument from Ordinary Meaning in Statutory Interpretation, 43 N. IR. L.Q. 213 (1992) (defending textualism as a primary interpretative tool). "Formalism" has sometimes served as a pejorative term in legal debates. It should be clear, I hope, that I regard "formalist" as a descriptive rather than evaluative term.
24. See, eg., Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 HARV. J.L. & PUB. POL'Y 61 (1994) [hereinafter Easterbrook, Text & History]; see also, e.g., Robert S. Summers & Geoffrey Marshall, The Argument from Ordinary Meaning in Statutory Interpretation, 43 N. IR. L.Q. 213 (1992) (defending textualism as a primary interpretative tool). "Formalism" has sometimes served as a pejorative term in legal debates. It should be clear, I hope, that I regard "formalist" as a descriptive rather than evaluative term.
25. William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621, 646 (1990).
26. Easterbrook, Text & History, supra note 13, at 69.
27. For a survey of the debate over legislative history, see Schacter, supra note 3, at 6-9.
28. See id. at 8.
29. See Thompson v. Thompson, 484 U.S. 174, 191-92 (1988) (Scalia, J., concurring) (writing that legislative history is a poor substitute for bicameralism and presentment); W. David Slawson, Legislative History and the Need to Bring Statutory Interpretation Under the Rule of Law, 44 STAN. L. REV. 383, 404-05 (1992).
30. See Thompson v. Thompson, 484 U.S. 174, 191-92 (1988) (Scalia, J., concurring) (writing that legislative history is a poor substitute for bicameralism and presentment); W. David Slawson, Legislative History and the Need to Bring Statutory Interpretation Under the Rule of Law, 44 STAN. L. REV. 383, 404-05 (1992).
31. See Adrian Vermeule, Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church, 50 STAN. L. REV. 1833, 1858 (1998).
32. See Immigration & Naturalization Serv. v. Cardoza-Fonseca, 480 U.S. 421, 452-53 (1987) (Scalia, J., concurring); Kenneth W. Starr, Observations About the Use of Legislative History, 1987 DUKE L.J. 371, 376 (1987).
33. See Immigration & Naturalization Serv. v. Cardoza-Fonseca, 480 U.S. 421, 452-53 (1987) (Scalia, J., concurring); Kenneth W. Starr, Observations About the Use of Legislative History, 1987 DUKE L.J. 371, 376 (1987).
34. See Slawson, supra note 18, at 397-98
35. Easterbrook, Text & History, supra note 13, at 68.
36. See Frank H. Easterbrook, Statutes' Domains, 50 U. CHI. L. REV. 533, 544-52 (1983).
37. Easterbrook, Text & History, supra note 13, at 68 (footnote omitted).
38. See Note, Why Learned Hand Would Never Consult Legislative History Today, 105 HARV. L. REV. 1005, 1022 (1992).
39. See United States v. Taylor, 487 U.S. 326, 345-46 (1988) (Scalia, J., concurring in part).
40. Easterbrook, Text & History, supra note 13, at 67.
41. Easterbrook, Text & History, supra note 13, at 63. As we will see in Part II, Easterbrook's description shortchanges the analytical sophistication of his own opinions; see also Marozsan v. United States, 852 F.2d 1469, 1498 (7th Cir. 1988) (en banc) (Easterbrook, J., dissenting) (criticizing the majority for being "too syllogistic, and the 'life of the law has not been logic: it has been experience'" (quoting OLIVER WENDELL HOLMES, JR., THE COMMON LAW 1 (1881))); David L. Shapiro, Foreword: A Cave Drawing for the Ages, 112 HARV. L. REV. 1834, 1846-47 (1999) (remarking on the sophistication of Easterbrook's approach to statutory interpretation).
42. Easterbrook, Text & History, supra note 13, at 63. As we will see in Part II, Easterbrook's description shortchanges the analytical sophistication of his own opinions; see also Marozsan v. United States, 852 F.2d 1469, 1498 (7th Cir. 1988) (en banc) (Easterbrook, J., dissenting) (criticizing the majority for being "too syllogistic, and the 'life of the law has not been logic: it has been experience'" (quoting OLIVER WENDELL HOLMES, JR., THE COMMON LAW 1 (1881))); David L. Shapiro, Foreword: A Cave Drawing for the Ages, 112 HARV. L. REV. 1834, 1846-47 (1999) (remarking on the sophistication of Easterbrook's approach to statutory interpretation).
43. Easterbrook, Text & History, supra note 13, at 63. As we will see in Part II, Easterbrook's description shortchanges the analytical sophistication of his own opinions; see also Marozsan v. United States, 852 F.2d 1469, 1498 (7th Cir. 1988) (en banc) (Easterbrook, J., dissenting) (criticizing the majority for being "too syllogistic, and the 'life of the law has not been logic: it has been experience'" (quoting OLIVER WENDELL HOLMES, JR., THE COMMON LAW 1 (1881))); David L. Shapiro, Foreword: A Cave Drawing for the Ages, 112 HARV. L. REV. 1834, 1846-47 (1999) (remarking on the sophistication of Easterbrook's approach to statutory interpretation).
44. Easterbrook, Text & History, supra note 13, at 63. As we will see in Part II, Easterbrook's description shortchanges the analytical sophistication of his own opinions; see also Marozsan v. United States, 852 F.2d 1469, 1498 (7th Cir. 1988) (en banc) (Easterbrook, J., dissenting) (criticizing the majority for being "too syllogistic, and the 'life of the law has not been logic: it has been experience'" (quoting OLIVER WENDELL HOLMES, JR., THE COMMON LAW 1 (1881))); David L. Shapiro, Foreword: A Cave Drawing for the Ages, 112 HARV. L. REV. 1834, 1846-47 (1999) (remarking on the sophistication of Easterbrook's approach to statutory interpretation).
45. Antonin Scalia, Assorted Canards of Contemporary Legal Analysis, 40 CASE W. RES. L. REV. 581, 593 (1989/1990); see also Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1176-77 (1989).
46. Antonin Scalia, Assorted Canards of Contemporary Legal Analysis, 40 CASE W. RES. L. REV. 581, 593 (1989/1990); see also Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1176-77 (1989).
47. See, e.g., James J. Brudney, Congressional Commentary on Judicial Interpretations of Statutes: Idle Chatter or Telling Response?, 93 MICH. L. REV. 1, 40-66 (1994); William N. Eskridge, Jr., Textualism, the Unknown Ideal?, 96 MICH. L. REV. 1509, 1514-15 (1998); Martin H. Redish and Theodore T. Chung, Democratic Theory and the Legislative Process: Mourning the Death of Originalism in Statutory Interpretation, 68 TUL. L. REV. 803, 825-31 (1994); Lawrence M. Solan, Learning Our Limits: The Decline of Textualism in Statutory Cases, 1997 WIS. L. REV. 235, 237-38 (1997). For Posner's critique of textualism, see RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 262-69 (1990). My own views can be found in Edward Adams & Daniel A. Farber, Beyond the Formalism Debate: Expert Reasoning, Fuzzy Logic, and Complex Statutes, 52 VAND L. REV. 1243 (1999).
48. See, e.g., James J. Brudney, Congressional Commentary on Judicial Interpretations of Statutes: Idle Chatter or Telling Response?, 93 MICH. L. REV. 1, 40-66 (1994); William N. Eskridge, Jr., Textualism, the Unknown Ideal?, 96 MICH. L. REV. 1509, 1514-15 (1998); Martin H. Redish and Theodore T. Chung, Democratic Theory and the Legislative Process: Mourning the Death of Originalism in Statutory Interpretation, 68 TUL. L. REV. 803, 825-31 (1994); Lawrence M. Solan, Learning Our Limits: The Decline of Textualism in Statutory Cases, 1997 WIS. L. REV. 235, 237-38 (1997). For Posner's critique of textualism, see RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 262-69 (1990). My own views can be found in Edward Adams & Daniel A. Farber, Beyond the Formalism Debate: Expert Reasoning, Fuzzy Logic, and Complex Statutes, 52 VAND L. REV. 1243 (1999).
49. See, e.g., James J. Brudney, Congressional Commentary on Judicial Interpretations of Statutes: Idle Chatter or Telling Response?, 93 MICH. L. REV. 1, 40-66 (1994); William N. Eskridge, Jr., Textualism, the Unknown Ideal?, 96 MICH. L. REV. 1509, 1514-15 (1998); Martin H. Redish and Theodore T. Chung, Democratic Theory and the Legislative Process: Mourning the Death of Originalism in Statutory Interpretation, 68 TUL. L. REV. 803, 825-31 (1994); Lawrence M. Solan, Learning Our Limits: The Decline of Textualism in Statutory Cases, 1997 WIS. L. REV. 235, 237-38 (1997). For Posner's critique of textualism, see RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 262-69 (1990). My own views can be found in Edward Adams & Daniel A. Farber, Beyond the Formalism Debate: Expert Reasoning, Fuzzy Logic, and Complex Statutes, 52 VAND L. REV. 1243 (1999).
50. See, e.g., James J. Brudney, Congressional Commentary on Judicial Interpretations of Statutes: Idle Chatter or Telling Response?, 93 MICH. L. REV. 1, 40-66 (1994); William N. Eskridge, Jr., Textualism, the Unknown Ideal?, 96 MICH. L. REV. 1509, 1514-15 (1998); Martin H. Redish and Theodore T. Chung, Democratic Theory and the Legislative Process: Mourning the Death of Originalism in Statutory Interpretation, 68 TUL. L. REV. 803, 825-31 (1994); Lawrence M. Solan, Learning Our Limits: The Decline of Textualism in Statutory Cases, 1997 WIS. L. REV. 235, 237-38 (1997). For Posner's critique of textualism, see RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 262-69 (1990). My own views can be found in Edward Adams & Daniel A. Farber, Beyond the Formalism Debate: Expert Reasoning, Fuzzy Logic, and Complex Statutes, 52 VAND L. REV. 1243 (1999).
51. See, e.g., James J. Brudney, Congressional Commentary on Judicial Interpretations of Statutes: Idle Chatter or Telling Response?, 93 MICH. L. REV. 1, 40-66 (1994); William N. Eskridge, Jr., Textualism, the Unknown Ideal?, 96 MICH. L. REV. 1509, 1514-15 (1998); Martin H. Redish and Theodore T. Chung, Democratic Theory and the Legislative Process: Mourning the Death of Originalism in Statutory Interpretation, 68 TUL. L. REV. 803, 825-31 (1994); Lawrence M. Solan, Learning Our Limits: The Decline of Textualism in Statutory Cases, 1997 WIS. L. REV. 235, 237-38 (1997). For Posner's critique of textualism, see RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 262-69 (1990). My own views can be found in Edward Adams & Daniel A. Farber, Beyond the Formalism Debate: Expert Reasoning, Fuzzy Logic, and Complex Statutes, 52 VAND L. REV. 1243 (1999).
52. See, e.g., James J. Brudney, Congressional Commentary on Judicial Interpretations of Statutes: Idle Chatter or Telling Response?, 93 MICH. L. REV. 1, 40-66 (1994); William N. Eskridge, Jr., Textualism, the Unknown Ideal?, 96 MICH. L. REV. 1509, 1514-15 (1998); Martin H. Redish and Theodore T. Chung, Democratic Theory and the Legislative Process: Mourning the Death of Originalism in Statutory Interpretation, 68 TUL. L. REV. 803, 825-31 (1994); Lawrence M. Solan, Learning Our Limits: The Decline of Textualism in Statutory Cases, 1997 WIS. L. REV. 235, 237-38 (1997). For Posner's critique of textualism, see RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 262-69 (1990). My own views can be found in Edward Adams & Daniel A. Farber, Beyond the Formalism Debate: Expert Reasoning, Fuzzy Logic, and Complex Statutes, 52 VAND L. REV. 1243 (1999).
53. Richard J. Pierce, Jr., The Supreme Court's New Hypertextualism: An Invitation to Cacophony and Incoherence in the Administrative State, 95 COLUM. L. REV. 749, 752 (1995).
54. William N. Eskridge, Jr., & Philip P. Frickey, Foreword: Law as Equilibrium, 108 HARV. L. REV. 26, 77 (1994).
55. Useful recent commentary on legal pragmatism can be found in THE REVIVAL OF PRAGMATISM: NEW ESSAYS ON SOCIAL THOUGHT, LAW, AND CULTURE 235-343 (Morris Dickstein ed., 1998).
56. POSNER, supra note 10, at 208-09 (paraphrasing a suggestion by Paul Freind as quoted by Mary Ann Glendon).
57. Id. at 209.
58. Id. at 257-58.
59. Id. at 258.
60. See id.
61. Id. at 259.
62. See WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION 61-64 (1994). For a critique of Eskridge, see John C. Nagle, Newt Gingrich, Dynamic Statutory Interpreter, 143 U. PA. L. REV. 2209 (1995) (review essay).
63. See WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION 61-64 (1994). For a critique of Eskridge, see John C. Nagle, Newt Gingrich, Dynamic Statutory Interpreter, 143 U. PA. L. REV. 2209 (1995) (review essay).
64. He points out examples of dynamic interpretation in areas ranging from the law of contracts to the law of trusts. See ESKRIDGE, supra note 40, at 122-23. In other legal systems, some with highly formalist aspirations, dynamic interpretation of statutes is well accepted. See id. at 345 n.2.
65. He points out examples of dynamic interpretation in areas ranging from the law of contracts to the law of trusts. See ESKRIDGE, supra note 40, at 122-23. In other legal systems, some with highly formalist aspirations, dynamic interpretation of statutes is well accepted. See id. at 345 n.2.
66. Moreover, even those most strongly opposed to dynamic interpretation utilize canons of interpretation that in practice provide a dynamic element. See id. at 118-19.
67. See id. at 48-49.
68. See Appendix B for search methods.
69. See Appendix A for summaries of the other cases.
70. 168 F.3d 932 (7th Cir. 1999).
71. See 15 U.S.C. §§ 1601-13, 1631-41, 1671-77 (1994). For an enlightening discussion of the statute, its background and its failures, see Edward L. Rubin, Legislative Methodology: Some Lessons from the Truth-In-Lending Act, 80 GEO. L.J. 233 (1991).
72. See 15 U.S.C. §§ 1601-13, 1631-41, 1671-77 (1994). For an enlightening discussion of the statute, its background and its failures, see Edward L. Rubin, Legislative Methodology: Some Lessons from the Truth-In-Lending Act, 80 GEO. L.J. 233 (1991).
73. See Adams, 168 F.3d at 933, 935.
74. These are, not surprisingly, the facts on which Easterbrook relies. See id. at 937-38 (Easterbrook, J., dissenting).
75. See id. at 935-36.
76. See id. at 936.
77. Id. at 934.
78. Id. at 935.
79. See id. at 936-39.
80. 781 F.2d 1280 (7th Cir. 1986).
81. For a clear overview of this issue, see CLAYTON P. GILLETTE & STEVEN D. WALT, SALES LAW: DOMESTIC AND INTERNATIONAL 75-82 (1999). Gillette and Walt suggest that as a policy matter, the question should be whether a course of performance under a contract provides the same kind of evidentiary security as a written modification, thereby satisfying the evidentiary concerns behind the NOM clause. See id. at 81-82. This is an important consideration, but perhaps not the only one. It is also important to take into account the possibility for opportunism created by NOM clauses, particularly since the opposing party may not actually have assented to the clause in a "battle of the forms" situation and may be surprised to learn that it is part of the contract. The pre-Code history and the evolution of the U C.C treatment of the issue are analyzed in John E. Murray, Jr., The Modification Mystery: Section 2- 209 of the Uniform Commercial Code, 32 VILL. L. REV. 1 (1987). For a more recent treatment of the issue, see David V. Snyder, The Law of Contract and the Concept of Change: Public and Private Attempts to Regulate Modification. Waiver, and Estoppel, 1999 WIS. L. REV. 607, 638-49
82. For a clear overview of this issue, see CLAYTON P. GILLETTE & STEVEN D. WALT, SALES LAW: DOMESTIC AND INTERNATIONAL 75-82 (1999). Gillette and Walt suggest that as a policy matter, the question should be whether a course of performance under a contract provides the same kind of evidentiary security as a written modification, thereby satisfying the evidentiary concerns behind the NOM clause. See id. at 81-82. This is an important consideration, but perhaps not the only one. It is also important to take into account the possibility for opportunism created by NOM clauses, particularly since the opposing party may not actually have assented to the clause in a "battle of the forms" situation and may be surprised to learn that it is part of the contract. The pre-Code history and the evolution of the U C.C treatment of the issue are analyzed in John E. Murray, Jr., The Modification Mystery: Section 2-209 of the Uniform Commercial Code, 32 VILL. L. REV. 1 (1987). For a more recent treatment of the issue, see David V. Snyder, The Law of Contract and the Concept of Change: Public and Private Attempts to Regulate Modification. Waiver, and Estoppel, 1999 WIS. L. REV. 607, 638-49
83. For a clear overview of this issue, see CLAYTON P. GILLETTE & STEVEN D. WALT, SALES LAW: DOMESTIC AND INTERNATIONAL 75-82 (1999). Gillette and Walt suggest that as a policy matter, the question should be whether a course of performance under a contract provides the same kind of evidentiary security as a written modification, thereby satisfying the evidentiary concerns behind the NOM clause. See id. at 81-82. This is an important consideration, but perhaps not the only one. It is also important to take into account the possibility for opportunism created by NOM clauses, particularly since the opposing party may not actually have assented to the clause in a "battle of the forms" situation and may be surprised to learn that it is part of the contract. The pre-Code history and the evolution of the U C.C treatment of the issue are analyzed in John E. Murray, Jr., The Modification Mystery: Section 2- 209 of the Uniform Commercial Code, 32 VILL. L. REV. 1 (1987). For a more recent treatment of the issue, see David V. Snyder, The Law of Contract and the Concept of Change: Public and Private Attempts to Regulate Modification. Waiver, and Estoppel, 1999 WIS. L. REV. 607, 638-49
84. This may seem formalistic, but we would probably accept such a theory in the analogous public law context For instance, Congress could not pass an ordinary law (as opposed to a constitutional amendment) that deprived it of the power to enact future legislation on certain topics.
85. Since there was no Statute of Frauds issue in Wisconsin Knife, I will ignore the Statute of Frauds throughout this discussion.
86. U.C.C. § 2-209(4) (1999). The drafters do not, unfortunately, explain the nature of the "it" that acts as a waiver (and whether it always does so, or only sometimes), how "operating as a waiver" is different than simply being a waiver, or what "waiver" (a notoriously slippery concept) means in this context.
87. U.C.C. § 2-209(5) (1999).
88. For those who are interested, here is a somewhat simplified version of the actual facts After some preliminary negotiations, the buyer sent the seller a series of purchase forms for metal blanks that included an NOM clause. The parties then set delivery dates for the first two purchase orders, which became part of the contract. The seller then missed the deadline, but rather than taking any action, the buyer chose to continue the contract. The jury found that the parties had agreed to a modification of the delivery dates. Although it had fallen more than a year behind, the seller continued manufacturing the blanks. Perhaps opportunistically, the buyer then notified the seller that the contract was being terminated. The buyer then filed suit for the late deliveries. The question before the court was whether the buyer's various interactions with the seller had waived its right to sue for violation of the original delivery date. More specifically, in order to establish a waiver, would the seller have to show that it relied on the oral modification to its detriment? See Wisconsin Knife, 781 F.2d at 1283-84.
89. There is no consideration for this modification, but recall that this is unnecessary under U.C.C. § 2-209(1), so long as the parties were operating in good faith.
90. This example is somewhat artificial because it assumes away reliance as to the June order, whereas in a real case such as Wisconsin Knife reliance will usually involve an issue of fact. But the example does have the advantage of highlighting exactly where the reliance question enters the case.
91. It is also possible that if the June delivery is a breach, B might be entitled to cancel the contract under U.C.C. § 2-612(3), but on the facts given, the breach probably would not be considered to impair the value of the contract as a whole. (In addition, note that even if otherwise entitled to cancel, B waives its right to cancel if it accepts the shipment without "seasonable" notification of cancellation; § 2-612(3) says nothing about reliance as a factor in the effectiveness of this waiver.)
92. On the link between textualism in statutory interpretation and contract law, see Stephen F. Ross & Daniel Tranen, The Modern Parol Evidence Rule and Its Implications for New Textualist Statutory Interpretation, 87 GEO. L.J. 195, 198-99, 221-42 (1998).
93. See Wisconsin Knife, 781 F.2d at 1291-92.
94. See id. at 1290-94.
95. See id. at 1290-92 (Easterbrook, J., dissenting). Easterbrook may also have had in mind a policy argument. He said in another case that parol evidence usually "facilitates flexible arrangements" that are beneficial in relational contracts. Bidlack v. Wheelabrator Corp., 993 F.2d 603, 618 (7th Cir 1993) (en banC) (Easterbrook, J., dissenting).
96. See id. at 1290-92 (Easterbrook, J., dissenting). Easterbrook may also have had in mind a policy argument. He said in another case that parol evidence usually "facilitates flexible arrangements" that are beneficial in relational contracts. Bidlack v. Wheelabrator Corp., 993 F.2d 603, 618 (7th Cir 1993) (en banC) (Easterbrook, J., dissenting).
97. U.C.C. § 2-209, Comment 1 (1999). In a like vein, one of the comments to the preceding section on course of performance speaks of the need "to preserve the flexible character of commercial contracts and to prevent surprise or other hardship." U.C.C. § 2-208, Comment 3 (1999).
98. U.C.C. § 2-209, Comment 1 (1999). In a like vein, one of the comments to the preceding section on course of performance speaks of the need "to preserve the flexible character of commercial contracts and to prevent surprise or other hardship." U.C.C. § 2-208, Comment 3 (1999).
99. Wisconsin Knife, 781 F.2d at 1286.
100. See id. at 1287.
101. See id. at 1285-86.
102. See id. at 1290 (Easterbrook, J., dissenting).
103. Id. at 1291 (Easterbrook, J., dissenting).
104. See, e.g., Douglas K. Newell, Cleaning Up U.C.C. Section 2-209, 27 IDAHO L. REV. 487, 493 (1990/1991) (calling the section a "drafting nightmare"). Perhaps the only weakness of Easterbrook's opinion is that he makes the text seem simpler and clearer than it really is, but this may be a reasonable rhetorical ploy, particularly for a dissenter.
105. There seems to be a consensus in favor of Easterbrook's reading of the current statute, rejecting Posner's interpretation. See GILLETTE & WALT, supra note 55, at 81.
106. Notably, a recently proposed revision of the U.C.C. adopted Posner's view. See National Conference of Commissioners on Uniform State Laws, Revision of Uniform Commercial Code Article 2-Sales, § 2-209 (March 1, 1999) 〈http://www.law.upenn.edu/library/ulc/ucc2/ucc2399.ext〉.
107. Where the text of the U.C.C. is completely clear or completely ambiguous, the question of whether to resort to policy seems easier.
108. Both Easterbrook and Posner could agree, I believe, with the statement in the text about common law development, though Easterbrook would resolve it by asking whether the statute itself mandates common law elaboration; cf. Frank Easterbrook, The Case of the Speluncean Explorers: Revisited, 112 HARV. L. REV. 1913 (1999) (arguing in favor of implying a defense of necessity despite the seemingly absolute terms of a criminal statute, based on historical role of courts in evolving criminal law doctrine). In contrast, Posner might ask whether a common law approach was better policy
109. 870 F.2d 1230 (7th Cir 1989) (en banc). For a perceptive commentary on the case, see Sharon C. Lynch, Comment, Drug Kingpins and Their Helpers: Accomplice Liability Under 21 U.S.C. Section 848, 58 U. CHI. L. REV. 391 (1991).
110. 870 F.2d 1230 (7th Cir 1989) (en banc). For a perceptive commentary on the case, see Sharon C. Lynch, Comment, Drug Kingpins and Their Helpers: Accomplice Liability Under 21 U.S.C. Section 848, 58 U. CHI. L. REV. 391 (1991).
111. See 21 U.S.C. § 848 (1994). More precisely, the statutes impose a severe mandatory sentence on anyone convicted of engaging in a "continuing criminal enterprise" (CCE). A person commits this CCE offense if he "occupies a position of organizer, a supervisory position, or any other position of management" over at least five people who commit in concert a continuing series of felony drug crimes. Id.
112. See 18 U.S.C. § 2(a) (1994).
113. See Pino-Perez, 870 F.2d at 1230 (citing United States v. Ambrose, 740 F.2d 505, 507-08 (7th Cir. 1984); United States v. Amen, 831 F.2d 373, 381 -82 (2d Cir. 1987)).
114. See Pino-Perez, 870 F.2d at 1230 (citing United States v. Ambrose, 740 F.2d 505, 507-08 (7th Cir. 1984); United States v. Amen, 831 F.2d 373, 381 -82 (2d Cir. 1987)).
115. See Pino-Perez, 870 F.2d at 1230 (citing United States v. Ambrose, 740 F.2d 505, 507-08 (7th Cir. 1984); United States v. Amen, 831 F.2d 373, 381 -82 (2d Cir. 1987)).
116. See Pino-Perez, 870 F.2d at 1232.
117. See Amen, 831 F.2d at 382.
118. See Pino-Perez, 870 F.2d at 1231-32 (citing United States v. Southard, 700 F.2d 1, 19-20 (1st Cir. 1983)).
119. See Pino-Perez, 870 F.2d at 1231-32 (citing United States v. Southard, 700 F.2d 1, 19-20 (1st Cir. 1983)).
120. Id. at 1234.
121. See id. at 1235. Not everyone whose actions assist the criminal is an aider and abetter. For example, a store that sells an address book to a call girl is not abetting the crime of prostitution, even if the sales clerk knows of her occupation. See United States v. Blankenship, 970 F.2d 283, 286 (7th Cir. 1992). In Blankenship, Judge Easterbrook sets out a functional test: "whether the imposition of liability on transactions of the class depicted by the case would deter crime without adding unduly to the costs of legitimate transactions." Id. at 287.
122. See id. at 1235. Not everyone whose actions assist the criminal is an aider and abetter. For example, a store that sells an address book to a call girl is not abetting the crime of prostitution, even if the sales clerk knows of her occupation. See United States v. Blankenship, 970 F.2d 283, 286 (7th Cir. 1992). In Blankenship, Judge Easterbrook sets out a functional test: "whether the imposition of liability on transactions of the class depicted by the case would deter crime without adding unduly to the costs of legitimate transactions." Id. at 287.
123. See id. at 1235. Not everyone whose actions assist the criminal is an aider and abetter. For example, a store that sells an address book to a call girl is not abetting the crime of prostitution, even if the sales clerk knows of her occupation. See United States v. Blankenship, 970 F.2d 283, 286 (7th Cir. 1992). In Blankenship, Judge Easterbrook sets out a functional test: "whether the imposition of liability on transactions of the class depicted by the case would deter crime without adding unduly to the costs of legitimate transactions." Id. at 287.
124. Pino-Perez, 870 F.2d at 1237.
125. Id. at 1238 (Easterbrook, J., dissenting).
126. See id.
127. Id.
128. Id. at 1239.
129. Id.
130. Id.
131. See id. at 1239-10.
132. Id. at 1240 (citations omitted).
133. Id. at 1241.
134. See Easterbrook, supra note 23
135. 908 F.2d 1312 (7thCir. 1990), aff'd sub nom., Chapman v. United States, 500 U.S. 453 (1991).
136. 21 U.S.C. § 841 (b) (1994).
137. See id. at 1315.
138. Chief Justice Rehnquist's businesslike opinion in Chapman lays out all of this information succinctly. 103 Unlike in Pino-Perez, Easterbrook finds no significant inconsistency with other provisions and no past history of interpretative flexibility, while Posner finds the kind of arbitrary harshness he thought lacking in Pino-Perez. Neither is being inconsistent, despite the superficial tension between the cases.
139. See Marshall, 908 F.2d at 1317.
140. See id. at 1316-17. He also suggests that sellers who are stupid enough to use heavy carriers deserve their fates. See id. at 1325. Prospectively, the statute should have little effect: presumably any dealer who is not a complete idiot will choose the lightest carrier possible.
141. See id. at 1316-17. He also suggests that sellers who are stupid enough to use heavy carriers deserve their fates. See id. at 1325. Prospectively, the statute should have little effect: presumably any dealer who is not a complete idiot will choose the lightest carrier possible.
142. Id. at 1332 (Posner, J., dissenting).
143. See id. at 1333 (Posner, J., dissenting.).
144. See ESKRIDGE & FRICKEY, supra note 2, at 588-89.
145. The cases are summarized in Todd E. Gonyer, Comment, Federal Sentencing in a Post-Chapman World: What Is a "Mixture or Substance" Anyhow?, 46 U. KAN. L. REV. 983 (1998).
146. See Marshall, 908 F.2d at 1317-18, 1319.
147. See id. at 1334.
148. See id. at 1324-25.
149. Id. at 1335 (Posner, J., dissenting).
150. Id.
151. Id. at 1338 (Posner, J., dissenting).
152. For empirical evidence to this effect, see William N. Eskridge, Jr., Overruling Supreme Court Statutory Interpretation Decisions, 101 YALE L.J. 331, 361-62 (1991).
153. On this rule, see Lawrence M. Solan, Law, Language, and Lenity, 40 WM. & MARY L. REV. 57 (1998).
154. See Rubin, supra note 46, at 235-39.
155. See Appendix B for exact figures and the search terms used to derive these statistics.
156. A Westlaw query ran in August 1999 yielded 15,170 total cases and 677 cases with dissenting opinions. The searches were conducted in the database for the Seventh Circuit that contains decisions and orders. To see if the Seventh Circuit is unusual, the same searches were conducted in the database for all Circuit Courts of Appeals. Of a total of 316,010 cases, 9,679, or 3%, contain dissenting opinions. Thus the Seventh Circuit may be slightly above average in this regard. (However, the denominators may not be precisely comparable. Unlike the Seventh Circuit, opinions in other circuits are less likely to have a syllabus (56% versus 89%). This may reflect some difference in reporting practices that could affect results.)
157. 2 = 7.19; one degree of freedom) For an explanation of this test including tables and formula, see DAVID W. BARNES, STATISTICS AS PROOF: FUNDAMENTALS OF QUANTITATIVE EVIDENCE 172-78 (1983). Thus, the slightly lower number of disagreements than average for the circuit, taken across all cases, is not large enough to prove that Posner and Easterbrook in fact are more likely to agree than average judges on their courts. But it seems clear that their unusually well-developed theoretical disagreement does not translate into any greater-than-average propensity to disagree on the results of cases. (As we will see, if we limit our attention to panel decisions as opposed to en banc decisions, the reduction in disagreement level below the circuit average is quite statistically significant. See infra note 124 and accompanying text.).
158. 2 = 7.19; one degree of freedom) For an explanation of this test including tables and formula, see DAVID W. BARNES, STATISTICS AS PROOF: FUNDAMENTALS OF QUANTITATIVE EVIDENCE 172-78 (1983). Thus, the slightly lower number of disagreements than average for the circuit, taken across all cases, is not large enough to prove that Posner and Easterbrook in fact are more likely to agree than average judges on their courts. But it seems clear that their unusually well-developed theoretical disagreement does not translate into any greater-than-average propensity to disagree on the results of cases. (As we will see, if we limit our attention to panel decisions as opposed to en banc decisions, the reduction in disagreement level below the circuit average is quite statistically significant. See infra note 124 and accompanying text.).
159. For recent discussions of the importance of ideology as a predictor of judicial voting, see Daniel R. Pinello, Linking Party to Judicial Ideology in American Courts: A Meta-Analysis, 20 JUST. SYS. J. 219 (1999); Richard Revesz, Ideology, Collegiality, and the D. C. Circuit: A Reply to Chief Judge Harry T. Edwards, 85 VA. L. REV. 805 (1999).
160. For recent discussions of the importance of ideology as a predictor of judicial voting, see Daniel R. Pinello, Linking Party to Judicial Ideology in American Courts: A Meta-Analysis, 20 JUST. SYS. J. 219 (1999); Richard Revesz, Ideology, Collegiality, and the D. C. Circuit: A Reply to Chief Judge Harry T. Edwards, 85 VA. L. REV. 805 (1999).
161. If this effect does exist, it means that two randomly selected judges who have opposing jurisprudential views and an average degree of ideological difference might disagree as much as twice as often as judges with identical jurisprudential views - about 6% of the time, rather than 3%. (This is a ceiling because we do not know how much of the base rate of 3% is due to jurisprudential differences between judges.) This is a significant, but not earth-shaking, effect - 94% of the time, two randomly selected judges would agree even though their jurisprudential views were opposite.
162. 1 have excluded the nine cases where Posner and Easterbrook disagreed to avoid overlap with the earlier figure, but I included the other 783 cases on which they both sat because some contain dissents by other judges. This small adjustment has little effect on the ultimate figures.
163. 2 = 7.19; one degree of freedom). For an explanation of this test including tables and formula, see BARNES, supra note 120.
164. Nor, it should be noted, do they have any markedly greater propensity to disagree with other circuit judges who lack their theoretical grounding. Here, too, a Westlaw search puts them at or below the Seventh Circuit average. Although this suggests that their failure to dissent from each other is not unusual given their general relations with other judges, it also underscores the conclusion that having a well-developed theory of interpretation has little effect on actual votes. Textualist, pragmatic, and atheoretic judges all seem to vote much the same.
165. See Michael J. Gerhardt, A Tale of Two Textualists: A Critical Comparison of Justices Black and Scalia, 74 B.U. L. REV. 25, 29-33 (1994).
166. In addition to the reasons given in the text, theories may provide useful frameworks for organizing arguments. This may be particularly helpful for students.
167. See United Steelworkers of Am. v. Weber, 443 U.S. 193 (1979) (upholding the legality of affirmative action under Title VII). Easterbrook could accept the legitimacy of Weber only if he viewed Title VII as a common law statute delegating lawmaking power to the courts. This is an arguable view of Title VII: it clearly describes how the Supreme Court has approached the statute, and it may be defensible because the statute draws on a judicially developed constitutional background while using open-ended terms such as "discrimination." 130 Similarly, even when the two judges agreed as to result, they may have favored different legal rules that happened not to affect the result in a particular case. Application of those differing rules in later cases might then lead to different outcomes. See, e.g., In re Hoskins, 102 F.3d 311, 317 (7th Cir. 1996) (Easterbrook's concurrence rejects Posner's theory but agrees on the result because one party failed to cross-appeal); Czerkies v United States Dep't of Labor, 73 F.3d 1435 (7th Cir. 1996) (en banc) (Posner holds for majority that district court had jurisdiction to consider claims regarding federal workers' compensation but that plaintiff's claim was insubstantial; Easterbrook concurs in judgment on basis that jurisdiction was lacking), E. I. DuPont de Nemours & Co. v. Grasselli Employees Indep. Ass'n., 790 F.2d 611 (7th Cir. 1986) (Posner holds as part of majority that arbitral award could be reversed when it endangers public safety but finds no such threat; Easterbrook rejects public policies of this kind as a basis for judicial review of arbitration). Of course, such disagreements about the best rationale for a holding could arise between any two judges, regardless of their theoretical orientations.
168. See ROBERT NOZICK, THE EXAMINED LIFE: PHILOSOPHICAL MEDITATIONS 15 (1989).