A random thought upon beginning a re-reading of Obergefell, which is really just another way of putting a well-known position in a well-known dispute:

The constitutional originalist strives to uphold the terms of a bargain among a people utterly alien to him, people whose culture and reasons he surely and inevitably fails fully to understand much less feel and intuit. He prefers adherence to this bargain rather than that struck by his more recent predecessors: the bargain concerning what to do with all the bargains that came before. And here we all are, giving shape to the past's now-formless physics and calling them intentions. We could indeed adopt a model of law that pretends to reanimate minds and eschews a more direct aim at living together acceptably. It would instead take a purposefully indirect route toward that goal, fearful that anything else would make kings of those at whose feet decisions fall. But that way too makes a king, a king of the one who raises an authority partly from the dead but entirely from opinionated debris and puppets the zombie's mouth.

Hold Up!

While our podcast takes a week off, I'm posting this "pilot" episode of a show called Hold Up! that Joe and I thought of doing last year. We recorded it at the beginning of this year, and I gave it one pass of editing. The premise is that we talk about a movie we remember liking from long ago, pause the recording and watch the movie, and then return to discuss whether it holds up. It would feature Joe, me, my spouse Meredith, and other guests. For this one, we watched Weird Science.

I don't know whether we'll ever record any more of these. Our lives got much busier after this recording was made. But maybe some of you will enjoy this bit of goofiness.

Submarine Statutes

On the podcast, in reference to the Religious Freedom Restoration Act and the Hobby Lobby case, I've described what I see as a troubling kind of congressional action: the enactment of statutes that would affect the interpretation and implementation of all future statutes. The RFRA requires, roughly, individual exemptions from federal laws that interfere with religious practice unless the interference is strictly aligned with a compelling governmental interest. What a new statute will mean in a future case depends not only the interpretation of the law itself but also on the interpretation of its interaction with a prior law, the RFRA, in a specific factual setting. So too lies hidden and potent the debt ceiling statute that restrains the government from borrowing in excess of a specific amount, even when Congress has mandated spending that would require such borrowing. These submarine statutes lurk beneath the layer of newly enacted statutes, potentially dramatically changing the meanings of enactments from what a plain reading of them in isolation would have suggested.

Of course, the venerable Dictionary Act is an example of such a statute, and I don't see it as particularly problematic. The trouble arises when there get to be too many such statutes and when their combined or even singular effects come to be too unpredictable. To create intentional products, legislators need to understand what the words they write will mean, at least in a large sense. Yes, the central dispute among the proponents of the various methods of interpretation is what it means for a text to "mean" something. But a unifying principle among all schools is that a legislator who wants to accomplish some task ought to be able to do it, within the bounds of the Constitution, if he or she speaks plainly enough about that thing. The meaning of any law in a regime thickly patrolled by submarine statutes would be a most uncertain thing. It would begin with one zone of meanings in the mind of a legislator, more or less connected to those in other legislators' minds, but then diverge in meaning and application through a cascade of interactions with all the submarine statutes, like a grand old game of Plinko, a puck bouncing from place to place in a random walk.

That's what caused me to raise an eyebrow at a portion of a speech by Marco Rubio that I otherwise found agreeable for its focus on reigning in federal criminal laws.

It is for this reason that I have proposed that Congress establish a national regulatory budget, which would require that new, costly regulations be offset by the repeal of other existing regulations.

It's an odd proposal to be set amidst other sentences arguing for greater rather than lesser congressional control over agency rule-making. This “regulatory budget" would appear potentially to restrain an agency even from enacting regulations clearly contemplated in later-enacted statutes and therefore clearly intended by the enacting Congress. Of course, a new statute that Congress desires be given effect without regard to other statutes can include a general or specific waiver. But that’s the very problem with submarine statutes. They require Congress when doing anything new to contemplate and keep track of their existence, to anticipate whether they might present a problem, and to enact specific waivers. A court could come to the rescue by observing a fundamental incompatibility and giving effect to the later-passed statute. But when the alteration caused is something less than outright conflict, the meaning of a statute can deviate in all its interactions from anything rational, intended, or plainly inscribed in its text. That’s no good.

I’ll stop here for now. I’m aware of a great many arguments concerning provisions and canons that operate very much like submarine statutes that we have come to accept. And so some further account of the complexity argument against submarine statutes would have to consider them.

The Latest Obamacare Challenge

I was not a fan of the argument that the individual mandate at the heart of Obamacare somehow was beyond the power of Congress to impose. But it at least was interesting and thought-provoking, even if ultimately unpersuasive. That it was partially accepted by the Court, though I maintain only in dicta, was unfortunate.

The latest assault on the Act has no such redeeming qualities. While I can appreciate academic curiosity over the statutory language – it would make for fun debate in hallways, the faculty lounge, or the classroom – the challenge here is, for all practical purposes, positively nihilistic. To tell you the truth, I don't think I can put the problem as well as the challengers themselves did:

The Government tries to make the statutory issue seem complex, but it is not. Only three ACA provisions need to be understood. Section 1311 instructs that states “shall” establish Exchanges. Section 1321 clarifies that in case of a state’s “failure to establish [an] Exchange,” HHS “shall ... establish and operate such Exchange within the State.” And then the Act grants subsidies for coverage “enrolled in through an Exchange established by the State under section 1311.” Any English speaker reading those provisions would immediately understand that if a state “fail[s] to establish [an] Exchange” and taxpayers instead enroll through an Exchange established by HHS under § 1321, no subsidies are authorized.

(Citations omitted.) Here is where we agree:

  1. The issue is not complex.
  2. Only three ACA provisions need to be understood. (Though others make the challengers' argument look even worse.)
  3. The statute's meaning can be immediately understood by reviewing the text. (Though understanding the context and history of Obamacare makes you wonder if you've been living in the same world as those who claim seriously to believe the story the challengers tell.)

What they think: that "such Exchange" clearly and unambiguously does not count as a "State Exchange" but instead means some other kind of exchange that is subject to none of the provisions relating to state exchanges. In particular, the participants in "such Exchanges" would receive none of the subsidies the Act provides for participants in "State Exchanges", thereby – as these very same lawyers have previously argued – undermining the entire statutory scheme. (For reasons relating to something called the Chevron doctrine, if the language is at all unclear, the government's interpretation should win.) Their prize for this feat of language wrangling would be, by 2016, the denial of insurance subsidies to about seven million people, with various and horrible ripple effects, reversing the progress we've made on the problems of and caused by the uninsured. All this because of an unwillingness to accept what the word "such" very clearly means, and, worse yet, because of a bizarre refusal to concede that it's at least unclear that a federally operated exchange in a state is not a state exchange within the meaning of the Act.

It's bad enough that the Supreme Court agreed to hear this case. But if somehow textualism were used to strike down the heart of Obamacare on these grounds, it would not only turn the Supreme Court into a laughingstock, it would denigrate textualism itself as patently not the serious, structurally-focused, and ideologically neutral method its defenders have struggled to claim it to be. For a more detailed argument, one that this challenge does not deserve, read Abbe Gluck's thorough analysis.

No one has to be a supporter of Obamacare, single-payer, or any other kind of health care reform. No one has to give up arguing to adopt another approach. Indeed, there may be valid legal challenges to aspects of the ACA. But just because you can typeset an argument to look like a brief, just because you really hate Obamacare, just because language could, in the abstract, be construed to say something it obviously does not mean, and just because, perhaps because of the confluence of these reasons, you have come honestly to believe in the righteousness of your objection: these are not reasons to treat a fundamentally unserious argument as anything more than an amusing curiosity. Unfortunately, the stakes are high, and I'm not amused. I'm open to being shown the error of my ways. But when you place on the word "such" the weight of the health of millions of people, you better have a good argument that Congress did not mean what it and everyone else on the planet believed it meant.

Bound by Federal Law

Ours is a legal system with two sovereigns. At least, that is the often repeated principle expressed in a number of important decisions carving out zones of authority and lines of power among federal and state actors. As someone who is not a scholar of this dual sovereignty problem, often taught in law school in courses called “federal courts” or “federal jurisdiction,” the ornate body of precedent that has grown up around the obvious sources of friction between competing and cooperating governmental bodies is daunting. But the questions it is meant to answer are sometimes disarmingly simple.

One such simple problem has arisen from the Supreme Court’s denials of petitions to hear appeals from lower federal court decisions striking down bans against gay marriage. These denials are not themselves “law” in the sense that all lower federal and state courts are bound by anything they might imply. But when the Fourth Circuit Court of Appeals (the court that hears appeals from federal trial courts, referred to as the federal district courts, in South Carolina, North Carolina, Virginia, West Virginia, and Maryland) struck down Virginia’s marriage ban, and the Supreme Court refused to hear the case, that decision became binding precedent for the federal district courts in the Fourth Circuit.

The simple question: Are South Carolina state officials, including judges, bound to follow federal constitutional law as interpreted by the Fourth Circuit, as they would be had the Supreme Court decided the case? To be honest, I had always assumed the answer was yes. Michael Dorf wrote confidently that the answer was no and said as much on our show (which was as good an excuse as any to try to convince Michael to take the time to hang out with us).

He is, in the important sense, apparently correct on this point. But part of me still wonders: what does it mean to be right or wrong about this kind of question? Without knowing that, we have difficulty answering some of the questions that might follow on this one, questions such as: Is South Carolina entitled to interpret the Fourth Circuit’s constitutional pronouncements as binding? Here again, Michael says no. But Steve Vladeck and Marty Lederman both say yes. (Steve’s writing elaborates on points he made in the opening minutes of his appearance on the show.) Hmmm... I explore this as an outsider to the field and will probably get a lot wrong. But, in my experience, voicing your thoughts is the quickest way to have them corrected. So here goes. And I anticipate updating this post to highlight the error in my ways.

The Law’s Surface and the “Easy” Answer

Let’s start with the position that everyone in this debate seems to take for granted: state courts are not bound or required to follow the interpretations of federal law contained in the holdings of federal courts in whose geographic area the state lies. As a relative amateur on these issues, I do not see why this is necessarily so.

Behind all of the positions on this and the ensuing questions are a single constitutional provision and some related statutes. The constitutional provision is the Supremacy Clause:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof ..., shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

This clause means at the very least that South Carolina state court judges, and by implication South Carolina officials, are bound by federal laws, including the Constitution. And so if the Constitution forbids bans on same-sex marriage, then an attempt to prohibit such marriages or a refusal to recognize them would be unlawful and must be so recognized by any judge, federal or state.

The problem is that when the Supreme Court has not spoken, it may not be clear what exactly federal law is. The point of view Michael espouses is consistent with a position Justice Thomas took in concurrence in Lockhart v. Fretwell. In a nutshell, the idea is that until the Supreme Court has spoken, there is no authoritative interpretation of the sources of federal law and that state courts are equally empowered as lower federal courts to provide one. Here is Justice Thomas:

The Supremacy Clause demands that state law yield to federal law, but neither federal supremacy nor any other principle of federal law requires that a state court's interpretation of federal law give way to a (lower) federal court's interpretation. In our federal system, a state trial court’s interpretation of federal law is no less authoritative than that of the federal court of appeals in whose circuit the trial court is located.

The argument goes, though I do not think it has been articulated plainly by the Supreme Court, that binding precedent, meaning a decision that obligates another court to rule in other cases in ways that do not contradict the necessary reasons contained within the decision, exists between courts only alongside a formally hierarchical relationship. That is, one court is bound by the decisions of another just in case the former court’s decisions are reviewable by the latter.

Let’s call this the “precedent follows supervision” theory. Now, this theory does not strike me as obviously or necessarily following from the Supremacy Clause or founding-era cases interpreting it, but let us assume it for the moment. Its truth would mean that, indeed, because state court rulings on matters of federal law are formally appealable only to the United States Supreme Court and not to lower federal courts, rulings on issues of federal law by lower federal courts are not binding on state courts.

And so, the Fourth Circuit’s conclusion that marriage bans like Virginia’s are incompatible with the Equal Protection clause of the Constitution does not require the South Carolina Supreme Court so to hold if it disagrees in a case raising the issue before it. A congressional statute could alter this state of affairs. An inverse of the Rules of Decision Act (which requires, after the famous Erie case that federal courts apply the legal interpretations of state supreme courts when confronted with issues of state law) could require state courts to follow federal decisional law, the decisions of federal courts with federal jurisdiction over the state courts’ respective geographic territories. I suppose there could be a non-textual argument that such a statute would violate general principles of federalism and state dignity, but it would not be sensible to me as anything more than an attempt at constitutionalizing a structural policy preference. (After all, under such a statute state courts could follow the lower court precedent, signal their disagreement, and forward appeals to the Supreme Court, which is, well, supreme anyway. And so I wouldn’t see the impact on even aggressive understandings of federalism as all that great.)

The states are actually divided on the question of whether they are bound, as a matter of federal law, by the precedent of the federal circuit courts of appeals in whose geographic jurisdiction they are. Some courts have cited the “precedent follows supervision” theory, but others, including maybe South Carolina, apparently reject it. See generally, pages 16-26 (which read quickly) of Colin Wrabley, Applying Court of Appeals’ Precedent. But textual or precedential justifications for the theory are hard to come by. In fact, other than general resorts to federalism, the argument seems to be mainly of the “how would this work” variety: would federal district (trial) courts’ rulings be binding, and if so, only within their limited geographic range or more widely, etc. See the single paragraph on page 27 of Wrabley’s article to see the summary. These practical concerns, though, are offset by equally weighty practical concerns on the other side: state officials might be subject to one set of rules in federal court and a different set of rules in the state court across the street. True, the Supreme Court could take up and decide such a federal-state split on issues of federal law. But so too is it easy to imagine a simplifying Erie doctrine for the state courts at the end of which would still lurk potential Supreme Court review.

Michael Dorf gave arguments for the “precedent follows supervision theory” during our show, and he later summarized them thusly, cautioning that this was not a full defense:

Congress could have authorized appeals from the state courts to the lower federal courts on questions of federal law (as stated by Justice Story in the landmark Martin v. Hunter’s Lessee); indeed, Congress perhaps even could have required state courts to follow lower federal court precedents on federal law; but there is no reason to think that Congress ever did obligate the state courts to follow lower federal court precedent; and given the Madisonian compromise (i.e., the fact that Article III leaves to Congress the decision whether to create any lower federal courts or instead to leave federal claims to be litigated in the first instance in the state courts, absent the limited original jurisdiction of the SCOTUS), the default assumption must be that state courts would be bound by federal law decisions of the SCOTUS only.

This hints in a more fulsome direction, relying on historical inferences that many might find persuasive. But I don’t know. I certainly see the argument that we in fact have coordinate systems of courts that all respond to the authoritative rulings of the US Supreme Court on issues of federal law but that otherwise leave for state courts interpretations of federal law. There are, though, at least two important caveats that set up a forum-shopping problem, among others involving uncertainty, caused by the “precedent follows supervision theory.” First, courts must generally give preclusive effect, preventing the re-litigation of claims, to cases actually decided in other courts that necessarily included the same parties. I’m being brief and rough with this point.

These systems are more porous than just that, however. Second, parties with a federal claim may move litigation from a state court to federal court, a process called removal. This process doesn’t really, or maybe even nearly, replicate the hierarchical relation that would trigger bindingness under the “precedent follows supervision” theory (see, e.g., this Note about the unanimity rule), but it does exacerbate the problem of forum shopping. If dueling interpretations of federal law are offered up by courts that parties are free to choose among, then gamesmanship in choosing courts and in choosing parties to add to the lawsuit may control the law that applies. Again, the Supreme Court can always step in to resolve these problems ex post, but that is true no matter what rule of bindingness we choose.

Were I writing on a clean slate, not only would I make circuit court rulings binding on the states in the circuit but I’d go further to rebalance the relationship between federal and state law. I might favor the elimination of diversity jurisdiction, radically cutting back on federal criminal laws (leaving more authority in the states), eliminating AEDPA deference in habeas corpus, increasing the occasions on which federal courts certify questions of law to state courts, and doing a number of other things that would help consolidate responsibility for federal law in federal authorities and state law in state authorities. The slate is not clean, but it’s not exactly covered in writing either. As usual, I basically agree with Guido Calabresi on these matters.

There is, of course, one other, exceedingly practical reason for just adopting the “precedent follows supervision” theory whatever our principles. A state supreme court faced with a federal legal question but which refuses to apply the legal interpretation of the relevant federal court would only be reversed after appeal to the Supreme Court. But it is difficult to imagine, though I guess not impossible, the Supreme Court’s deciding that the state court should be reversed for not following the lower federal court’s precedent while also refusing itself to pass on that precedent. But if it did rule on the issue to which the precedent speaks, then the state court would only be reversed if the Supreme Court disagreed with it on the issue of federal law. Whether it followed lower court precedent would be irrelevant. Upshot: unless the Supreme Court reverses without deciding the federal question, the state supreme court is in no worse a position for having refused to follow the lower federal court.

This practical reason flows from the same idea that animated the theory to begin with, that binding precedent only really exists in a hierarchical relationship. But, just in point of fact, there are many state courts that have declared themselves bound by lower federal court opinions and have operated on that assumption for quite awhile. It can be done, even it cannot effectively be (or at least is not likely to be) enforced by federal authorities.

So, would the Thomas/Dorf position be adopted in the Supreme Court in a case presenting the issue? I think it likely would, but not because it is “correct” in an uncontroversial sense. As far as I can tell, there are reasons and practical difficulties on each side of the question. Rather, it would be adopted in a decision citing general historical facts, the practical difficulties of precedent without hierarchy, and very general structural and “dignity” arguments. Fine, maybe even the more appealing argument, but hardly conclusive. That said, and to emphasize the opening caution, I’m not a federal courts scholar, and I eagerly await being put in my place by those who are.

A Further and More Controversial Position

What surprised me, and struck me as quite clever, in our conversation with Michael was the further and bolder claim: Not only is South Carolina not bound by the Fourth Circuit’s ruling, but it is required not to afford that ruling the status of binding precedent. Shockingly, at least to me, the Supremacy Clause, the very clause that gives superior status to federal law over state law, requires the South Carolina Supreme Court not to treat the lower federal court’s ruling as authoritative.

Here’s how Michael puts it in his post:

I would say that the state court’s obligation in deciding the content of federal law is to make its best efforts to determine the content of federal law, not to gratuitously outsource the job. After all, if the South Carolina courts can gratuitously decide to accept the rulings of the Fourth Circuit as definitive, then they would seem to be able to accept some other body’s determinations, like the Second Circuit’s, or the views expressed on this blog. In each case, the South Carolina courts would be violating the obligation (under the Supremacy Clause) to be bound by federal law, not somebody else’s understanding of federal law, even if that somebody else is learned in federal law.

Note that this appears to follow from the “precedent follows hierarchy” theory that would say vis-a-vis the South Carolina Supreme Court there’s nothing particularly special about the Fourth Circuit as against any other non-superior court. And, thus, to apply some other random institution’s interpretation of federal law is not yourself to apply federal law.

This position, going a step beyond the position I found questionable above, is more controversial among people who know this stuff. Steve Vladeck, for example, does not buy it for reasons of existing doctrine and good policy. Steve’s argument is that, doctrinally, the Supreme Court’s decision in Danforth v. Minnesota establishes that state courts can retroactively impose new rules of constitutional law (rules protective of criminal defendants) identified by the Supreme Court, even when the Supreme Court itself does not require these rules to be applied retroactively. Thus, state courts may, at least in this instance, decide for themselves whether to be bound by a federal law that the Court has said is not binding.

On policy, Steve writes (emphases his):

If state courts are the authoritative expositors of state law, and they choose, as a matter of state procedural law, to be bound by a federal precedent that isn't otherwise binding as a matter of federal law, I don’t see how that raises any kind of federal constitutional concern under the Supremacy Clause.

And in comments to Michael’s post, Marty Lederman objects:

I don’t see how the Supremacy Clause -- which merely prescribes that federal law prevails over inconsistent state law -- imposes any such “follow your own best lights”/anti-deference principle. To be sure, it, along with the adjacent oath clause, requires state judges to be “bound” by federal law -- but that’s an obligation that applies to all judges, federal, state, and local, and indeed to all government officials. That obligation doesn’t tell such judges and officers how to assess what federal law requires, let alone prevent them from relying upon the views of others in trying to most efficiently and reliably adjudicate federal questions in a complex federal system.

Michael’s responses in comments are interesting, and he has promised a follow-up blog post, one that may well make wish I’d never started this one! But these responses to his position represent my own intuitive reaction, though they are doubtlessly backed by far more extensive familiarity with case law than my own. In the end, I think we’re left trying to answer the following question:

What Does It Mean for a State to Decide What Federal Law Means?

Could South Carolina pass a statute that requires its courts to give authoritative weight to the Kentucky Supreme Court’s interpretations of federal law? Could its courts decide to do so on their own? Could it establish a South Carolina Commission of Federal Law that produced authoritative interpretations of federal law consistent with those of the United States Supreme Court but otherwise discretionary? And what exactly is federal law detached from an institution that interprets it?

The debate between people who are familiar with these kinds of issues seems to turn on whether the decision about how to decide what a federal law means is itself a question of federal law or a question of state law. Let me put that another way. Is the choice of method for determining the proper interpretation and application of the Equal Protection clause a choice constrained by federal law or by state law? I would go further, though. Even if federal law somehow controls the way in which a state court must determine the meaning of the clause for a case, in the absence of Supreme Court guidance, what exactly is this federal meta-law?

I was reminded by these questions of the concurring opinion by Justice Rehnquist in the infamous case of Bush v. Gore. There, the concurring justices found fault with what they saw as the Florida Supreme Court’s frustration of the Florida legislature’s intentions as expressed in state election statutes, in a context in which the federal Constitution specifically authorizes the manner of choosing presidential electors to be determined by the state’s “Legislature.” The concurrence stated:

[I]n ordinary cases, the distribution of powers among the branches of a State’s government raises no questions of federal constitutional law, subject to the requirement that the government be republican in character. See U.S. Const., Art. IV, §4. But there are a few exceptional cases in which the Constitution imposes a duty or confers a power on a particular branch of a State’s government. This is one of them. Article II, §1, cl. 2, provides that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct,” electors for President and Vice President. (Emphasis added.) Thus, the text of the election law itself, and not just its interpretation by the courts of the States, takes on independent significance.

I have always had difficulty making sense of this. The concurring justices give an interpretation of the constitutional reference to the “direct[ion]” of a state’s “Legislature” as though state law can be definitively identified with a single institution irrespective of the state’s own rules for how such directions shall be interpreted and applied. What does a bare statute mean disconnected from the processes the state has established for applying it and determining its meaning? Where exactly is it written that a state must identify the “direction of its legislature” in a particular way? (And what is a “legislature” in the abstract?)

There is, perhaps, one constitutional source of constraint on a state’s ability to determine the content of law, whether federal or state, and that is the so-called Republican Guarantee Clause:

The United States shall guarantee to every State in this Union a Republican Form of Government ....

Perhaps this clause (but doubtlessly the questions would instead be shoved into abstract Due Process and federalism arguments) would prohibit states from alienating to other states’ courts the job of interpreting their own legislative acts or departing too much from a model of accountability that connects the determination of a law’s meaning with citizen input in ways that hew closely to the legislature-court dynamic, the dynamic that is all we really know. But such a principle, in whatever clause, could not possibly be a bar to a state’s granting interpretive authority over federal law to another court it believes is better suited or able to do so. Or, even if it feels able, the state may want to avoid the forum-shopping and instability that could accompany an intra-state conflict over the meaning of federal law. Why can a state not decide to do that? Is there a federally mandated principle of meaning-interpretation that gives non-delegable power to state courts to interpret federal sources of law? In other words, and this is the point connected to my current work, does the Supremacy Clause or the inaction of Congress in providing for lower federal court bindingness somehow carve out from the set of reasons a court uses to determine a law’s application rules of authority recognition?

I do not see how it could be so. Surely South Carolina could conclude that the meaning of federal law as it interacts with its own state law is more likely to be identified correctly by the court that specializes in that kind of question: the Fourth Circuit. I admit it could also conclude other institutions, legal or not, might be good at answering such questions and recognize them as not only very persuasive but authoritative. (Keeping in mind that the court’s decision that another court is authoritative is revisable by the delegating court.) But, as discussed above, South Carolina has many practical reasons for concluding the Fourth Circuit is the right federal court to recognize as authoritative on issues of federal law. And when it adopts as a reason for decision that the Fourth Circuit decided a federal question a certain way (such reason being characteristic of authority recognition), I do not see that as a refusal to apply federal law but as a choice among possible institutional arrangements that would carry out the task the Supremacy Clause requires.

Conclusion but Not Really

I suppose I have had trouble letting go of these questions I have no business answering because they raise the question of what it means to say something is the law and where the answer to that question is bound up with competing institutional concerns. We have data from a number of institutions and a graph of institutional information transaction (from the Framers and Re-Framers to all relevant institutions; from federal legislature to federal and state courts; from lower federal courts to the Supreme Court; from lower state courts, through the state supreme court, to the U.S. Supreme Court; porosity in removal and preclusion). And the question concerns the treatment by these institutions of the information they produce, which question really is about the sets of reasons each institution maintains. What is going here is that people view the set of information (the Supremacy Clause, earlier cases) and intuit different models of the institutional networks and intra-institutional reasons that constitute the legal system. The conclusions on particular questions result from these models.

But I’ll stop here, maybe save more for my book, because I only started this to record my thoughts in a small post. And this has taken the whole afternoon. I’m sorry, because you, dear readers who have arrived all the way here, are the ones who have suffered!

An Introduction to a Theory

This is an extremely rough draft of the first part of the project that has been consuming me and will continue to do so for the next year, at least. Sharing now, because why the hell not?


To understand the sense in which we know anything, imagine you suddenly know nothing. From a gauzy, lifting fog emerge some primitive shapes. A rectangle. A triangle. No, it's more than those shapes but some sort of thing for holding other things vertically displaced from the lower plane from which you rise. Now you realize that it's a platform, in fact a table, because that is the name you have for things that are like this. And here, resting somehow on the rectangle that is a table, is a thicket of wavering, broken lines that just now you start to recognize as symbols, encoding thoughts, fixed on a parchment subtly rising and lowering with the random accelerations of air, the air being the invisible thing you feel and breathe.

You are waking from a cognitive void, and the world is beginning to slip into the groove of familiar forms. An awareness permeates every last sensation: These increasingly clear perceptions are given meaning only by the associations you are now recalling. There is no sense and no awakening at all without the drawing of these connections. Your brain is rebooting.

So far, you accept the flood of meanings as consciousness returns to you. The symbols crystallize into the encoded thoughts of a language you begin to understand again. And now you see that the paper carries the promise of conflict. One entity -- surely very much like you and yet not you, you assume -- claims not "to have" a thing that is "wrongly" "had" by another entity. What do these things mean?

All the shapes in this room, one by one, merge with their counterparts that exist as definitive examples in the re-innervating recesses of your brain. Books. A door. A lamp. This is the floor. That is the ceiling. Or at least this room's ceiling. This is a room, right? Does it "have" things? It has a ceiling. You are now aware that there was a complete set of thoughts and understandings that you had before you were unconscious. And you think that you will be fully awake when you have them once again. Immediately, though, you wonder whether this is so. Were you truly awake before? Will you ever completely awaken?

You turn back to the parchment. The conflict in the paper. You have this paper, because, because. Yes, because you must take sides. It is your ... job to say that the entity named Riggs -- and you decide just to assume these entities are like you with conscious and grasping minds -- is right, and the entity named Palmer is not. And now you try to grasp what it means in a world of other people to say that one of them is right and the other is not. There, near the top of the page are the words "law" and "court," reminding you that your job is to do something that will cause the group of people called a "court" somehow to use what it calls "law" to say that Riggs is correct.

Did you ever know more than this? For at this moment, as your concepts of clock, time, and deadline suddenly sharpen, you realize you must hurriedly use the nearby empty pages of parchment to speak to the court about Riggs' correctness. What will you say? Are you even sure that your former consciousness had the right idea to speak to this group of people it understood as a court? Why that group? Does the court say things? Yes, that is what all of these books on the shelf are about. They are filled with this court saying things.

You realize now that the only way you ever knew what to say to courts like this was from paying attention to these sayings. You had joined a conversation in its middle. You began to form associations between the things it said and about the attitudes of the members of the court. Were you fully aware when you did this?

Then it hits you. You come to know what to write on the blank pieces of parchment in the same way you know anything else in the world. Over time you reduce the chaos of sensory information into recognizable forms. You know the parchment in front of you is itself particular in its form, having grains you might call imperfections if measured against your idea of a parchment. The idea of a parchment, the abstract form, the thought that organizes all similar objects and that allows you the lazy freedom of thinking about reading from them and writing on them without considering each sheet as a new collection of atoms.

So too, you have come to have an understanding of a "court." Its characteristic form, its characteristic forms of input and output, and the processes you believe characterize its behavior in producing outputs, or rulings, from the many possible inputs. But now, having slumbered and awakened, you understand that your thoughts about courts, as about tables, floors, and parchments, are models you ascribe, models that can and do exist at varying levels of detail, each appropriate and helpful for answering some questions but not others. This very act of making mental models and being able to understand your senses in terms of models, this facility when carried out in cooperation with others, this is the law.

The External Description

Let us leave our groggy lawyer and take another, this time external, view of law's function. What, exactly, are people we might describe as engaged in the practice of law doing? They are, at the very least, communicating information: written laws, opinions, verbal orders, rules, and perhaps even the information implicit in enforcement actions. Law could describe the processes and ordering of these communications. "Law" describes the network of information flows and the processes of connecting inputs to outputs, such as they exist to further the cooperation of the participants. Law is necessarily a human-made system for processing and producing information.

So understood, law was our first computer. Indeed, it remains our most complex. The attitude that recoils from or too casually brushes aside this description, perhaps expressive of an innate abhorrence of humanity conceived as cold, metallic, incessant gears, misunderstands both the law and the computer. We should strive to be honest about ourselves and the abstract kingdoms of our collective imagination, the realms of the law, and try to see a little further.

"The" law at any place and time is a cultural quality of that moment. It is a description of something we are doing together now that we believe has some measure of control over how we will behave in the future. And it lays claim over an unfathomable set of possibilities, employing an equally unfathomable level of cooperation to perpetuate its operation.

What we call our law is not the simple, pre-programmed expression of a singular human will. Instead, we find ourselves governed by the constraints of the various communities of which we are a part, some recognizing one another, others strangers. For me, these include the laws of the United States and the states, local zoning ordinances, the terms of my employment , the constraints imposed by family, the norms of neighborliness, the terms of various contractual agreements, and other limitations of which I am hardly aware. We are the subjects of a cacophony of authorities, each, through these mutually allocated constraints, granting us entitlements, the negative spaces for living we call our property and liberty, and defining limitations, our duties and liabilities.

How can there be order in all this? How can law can be a field of intricately pursued purposes rather than a field of warring, coercive utterances? There are some obvious solutions: law as the commands of hierarchical combinations of officials, law as a product of hermetically separated zones of authority among lawmakers, law as "might makes right" where the most powerful lawmakers gain obedience at the expense of lesser ones. Whatever our course, we desire in all this distinct but fully realized goods: predictability, efficacy, and pluralism, among others.

And yet, in constructing this computer, what is it exactly that we ask for? What does it mean to make law and to enforce it? How should we humans act toward one another when engaging in the practice of law? Come to think of it, just what is the law, as distinct from other patterns of communication? We are each born into whatever law is naked, prepared to learn but understanding almost nothing. We join a conversation underway, and only over time do we begin to understand its vocabulary and expectations.

Stay your rolling eyes. I hope to show in this work how our constructed understandings of the realm of law are what provide concrete answers to even the most mundane disputes. This is the aim of any worthwhile thinking, to know better the actual problems we want to face, the solutions to which we otherwise tacitly assume.

To awaken in our understanding of law is to grapple with the sort of "what is law" question that has much in common with the "what is a table" question the groggy lawyer asks on regaining consciousness. The "what is law" question, however, is better conceived as the more specific questions it subsumes, all concerned in various ways with what people are doing when they do things we have come to associate with the label of "law." This struggle, in turn, will lead us to understand why and how people disagree about the law, what is primitive within the law, how we typically theorize about law, and what makes cases of disputes hard. The very first step to seeing the law in this way is to accept that many of our "understandings" about law are assumptions. To make progress we must appreciate the role of such assumptions and that we have them.

I will not argue for a principle that somehow replaces all assumptions with something more "real" or even more grounded in reality but for a theory that identifies the inevitable and crucial role that assuming, or modeling, plays in the practice of law. In sum, I claim that human beings engage in law when they exchange information (of a particular type) while having attitudes of acceptance toward a model they share of the system governing that information exchange. Importantly, no one has a single model they demand all others accept. Instead, our models of this interpersonal interchange are hierarchical and scattered, never reaching a state of complete and coherent specification. What makes law, and indeed cooperation itself, possible is that there exists a level of abstraction such that, under facts prevailing or actually anticipated, a shared model is accepted among the people cooperating.

Law, then, is a dynamic system of shared modeling among participants, where each model can be described in abstract terms of institutions, information flows, and institutional processing or reasoning. This approach fits with current understandings of how humans think about complex systems, but I also argue that it is unavoidable that what we call legal systems exist only as mutable but shared mental representations (or models). The modeling theory is superior to imperial theories of law that attempt to characterize legal systems by insisting on criteria that rely on specific behaviors, practices, people, or text to definitively identify what is law and what is not.

Our mental models of the law, like other such models, exist at varying levels of specificity. Recognizing that two people might have more or less identical high-level models of the legal system but very different lower-level models explains (a) how law can be identified by social facts, (b) why theoretical disagreement about law's content is nonetheless possible, (c) how scholarship and criticism of law come in predictable types, and (d) how seemingly substantive disagreements about law often arise from, or at least can be assimilated to, disagreements about institutional definition.

I proceed first by explaining the sorts of questions the theory is intended to answer, the now-standard questions of analytical jurisprudence. Such questions about the nature of law may seem abstract and removed from law's practice, but I argue that they are always there and that while we often proceed by assuming answers, we sometimes awaken to them and recognize that hard cases turn on them. This can be seen through a process I call "leveling up" in law, a process law students almost immediately recognize as what is "really going on" once it is pointed out.

I then explore a particular kind of model and a particular kind of regulatory problem. The problem is that of managing information and knowledge, and the model is the interconnected network of information-exchanging institutions. I introduce a standard model of information flow, processing, and resulting actions, which can be used to identify and more clearly distinguish regulatory possibilities. Since law can be described as network of information-exchanging institutions, the management of a legal system is an instance of a problem of information regulation.

I next propound a conception of law as an act of shared modeling. I argue that it is inevitable that a description of a legal system must be a mental representation equivalent to a model of institutions, information, and the institution-specific logic that connects informational inputs and outputs. This understanding of law has many consequences for practice and theory. I examine many of them ... in due time.