Formulaic Deliberation


Formulaic Deliberation describes the major interpretive regimes--textualism, intentionalism, purposivism, and pragmatism—and represents them formulaically. By classifying them this way, it more precisely describes them as theories, so that we can more precisely perform them as deliberative techniques. And, if we agree that none of them, individually, fits all cases at all times, we can formulaically describe how to synthesize them toward a discrete decision.

William Eskridge, Stanley Fish, Hon. Antonin Scalia, Richard Posner, Ronald Dworkin, John Hart Ely, Adrian Vermeule, Hon. Stephen Breyer, Cass Sunstein, Lawrence Lessig. All of them are right, their method for deciding cases produces benefits with regard to justice, predictability and democratic legitimacy. All of them are wrong, their method for deciding cases produces costs with respect to the same set of ideals. But what they really have in common is the acceptance of text, intent, and foreseeable consequences as functions to be considered in determining what the law “is.”

Thus, in my opinion, the best way to teach law begins with a neo-Langdellian case method, one deducing not only legal rules and their hierarchies but also the prioritization and harmonization of important social agreements supporting federal appellate decisions. In other words, let us examine cases not just for the rule synthesis, but also for the dicta identifying which of our vast social agreements were at play.



Date of this Version

September 2006