Legal Theory Lexicon

  • Legal Theory Lexicon 092: Deference

    By Lawrence B. Solum

    Introduction

    Because the first-year curriculum emphasizes common-law courses (property, contracts, torts), law students may not encounter the concept of “deference” early on.  Nonetheless, understanding deference is important in a wide variety of contexts, including standards of appellate review and judicial review of both legislation and administrative action.  This entry in the Legal Theory Lexicon provides a short introduction to the idea of deference.

    As always, the Lexicon is aimed at law students with an interest in legal theory.

    The Concept of Deference

    What does “deference” mean?  The standard dictionary definitions define deference as “respect and esteem due a superior or an elder,” but that is not the technical legal meaning of deference.  Pinning the concept of “deference” down in a precise way is tricky, but deference seems to involve a relationship between two legal actors or institutions, for example a court and a legislature.  Deference usually involves situations in which the deferring institution has some power over the institution to which it might defer.  Examples include (1) an appellate court reviewing the decision of a trial court, (2) a court reviewing the constitutionality of legislation, and (3) a court reviewing the legality of action by an administrative agency.

    What does it mean to defer to a trial court, legislature, or administrative agency?  One approach to that question is to consider the opposite of deference.  Nondeferential appellate review of a trial court decision is “de novo”: de novo review requires the appellate court to resolve the issue without regard to the action taken by the trial court.  Thus, de novo review of a trial court’s conclusions of law gives no weight to the fact that the trial court has taken a position on the legal question.  But when it comes to a trial court judge’s findings of fact, the appellate court does defer.  Findings of fact made by a trial court judge are reviewed under the deferential “clearly erroneous” standard.  The appellate court will only reverse the trial court if the appellate judges are convinced that the error is “clear.”  The finding of fact may be wrong, but not clearly erroneous.  The clearly erroneous standard does give weight to the factual determination made by the trial court.

    Degrees of Deference

    The conventional wisdom is that deference is a matter of degree and not an off-on switch.  That is, deference is a scalar and not a binary.  For example, the standards of appellate review of trial court decisions are usually ranked as follows:

    Most deferential: Abuse of discretion, applies to discretionary decisions by the trial court.

    Intermediate deference: Clearly erroneous, applies to factual determinations by trial judges.

    Least deferential: De novo, applies to issues of law.

    There are interesting questions about the spectrum of deference.  One interpretation of the spectrum would assign probability values to degrees of deference.  For example, the de novo standard might be interpreted as requiring reversal of a trial court decision if the likelihood that it is incorrect is greater than 0.5.  The clearly erroneous standard might be assigned a value of 0.7 and the abuse of discretion standard could be 0.1.  But the probability interpretation might not be correct: it could be argued that the different standards  of appellate review are qualitatively different.

    Deference in the Context of Judicial Review of Legislation

    Another important context in which the concept of deference operates is judicial review of legislation for constitutionality.  For example, in the context of the Equal Protection Clause, the Supreme Court sometimes applies tiers of scrutiny.  Rational basis review is highly deferential.  In the most deferential form of rational basis review, legislation is upheld so long as the legislature could conceivably have had a legitimate aim in enacting the legislation and conceivably could have believed that the legislation was a rational means of pursuing that aim.  Intermediate scrutiny (which applies to gender) requires more, an important aim and a reasonable relationship between the means and end of the legislation.  Strict scrutiny (which applies to race) involves the lowest level of deference: legislation will be upheld only if there is a compelling state interest and the legislative means are actually necessary to achieve this compelling end.

    Rational basis scrutiny provides one of the paradigm cases of deference.  Even within this category, there seem to be different approaches.  The conceivable basis variant of rational basis review is so deferential that it is hard to imagine any legislation that would fail to satisfy the test.  But if the government is required to show that the legitimate state interest was the actual purpose of the legislation and that there is evidence supporting the means-ends relationship, then even a deferential standard of review might result in the invalidation of legislation.

    Deference and Judicial Review of Agency Action

    For many years, the term “deference” arose most frequently in connection with the “Chevron doctrine,” which involved judicial deference to agency interpretations of regulatory statutes. The basic idea of Chevron deference was that courts should defer to the agency’s interpretation of the statute, if the statute was unclear (“ambiguous”) and the agency’s interpretation was reasonable. This form of deference was controversial, because it is in tension with the traditional conception of the judicial role that assigns to courts the primary and ultimate authority for the interpretation and construction of legal texts. Chevron was overruled by the Supreme Court in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), which held that courts must exercise independent judgment in deciding whether an agency has acted within its statutory authority. The overruling of Chevron has shifted discussion of deference to other doctrines, including what is sometimes called Auer deference—established in Auer v. Robbins, 519 U.S. 452 (1997)—which involves judicial deference to an agency’s interpretation of its own regulations.

    Conclusion

    There is much more to be said about the idea of deference, but I hope that this brief discussion is sufficient to convey the basic idea of deference and to illustrate its application in a variety of contexts.  Additional reading is provided in the bibliography.

    Related Lexicon Entries

    Bibliography

    Link to the Most Recent Version of this Lexicon Entry

    Legal Theory Lexicon 092: Deference

    (Last revised on August 25, 2024.)

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  • Legal Theory Lexicon 091: Discretion

    By Lawrence B. Solum

    Introduction

    Law students are likely to encounter the concept of discretion early in the first year of law school.  Judges make decisions.  Some of these decisions are constrained by law, but others are made in contexts in which the law permits the judge a range of choice or discretion.  Likewise, sometimes executive officials carry out legal duties, but other executive actions are discretionary.  This Lexicon entry provides a brief introduction to the idea of discretion.  As always, the Lexicon is aimed at law students with an interest in legal theory.

    The Idea of Discretion

    The word “discretion” is ambiguous.  One sense of “discretion” refers to good judgment; another to being circumspect or cautious.  The sense of “discretion” that is discussed in this Lexicon entry is associated with this definition from Merriam-Webster: “power of free decision or latitude of choice within certain legal bounds.”  In this sense, “discretion” is contrasted with constraint.  A decision is constrained if the actor making the decision is bound by law to take a certain action.

    The word “discretion” is usually used to refer to actions where the law confers a power within a limited sphere of action.  Kent Greenawalt expressed this idea when he wrote, “When a person’s choice is not constrained at all we would not ordinarily use the term “discretion.” We say an official has “discretion” to pick employees for a company, but we do not say a child has “discretion” to choose the flavor of ice cream he wants.” (Greenawalt 1975, p. 365)

    In the law, we use the word “discretion” in situations in which a legal norm confers legal authority or power on some agent or institution.  Judicial decisions about the number of witnesses that will be allowed to testify on a given issue are said to be discretionary: there is no rule that specifies the number of witnesses or provides a formula for the calculation of such a number.  Presidents are legally empowered to choose the members of the staff; these decisions are discretionary, because there is no legal rule or standard that governs the President’s decision.  Legislatures as institutions have wide discretion to choose what laws to make and to define the content of such laws.

    But the existence of discretion does not imply an absolute power without outer limits.  For example, a judge could not limit the number of witnesses in order to exclude witnesses of a certain race or gender: although this is a discretionary decision, the law prohibits making the choice for some reasons.  Similarly, a decision may be discretionary, but there may be a requirement that the decisionmaker take certain factors into account in making the decision.  Thus, a judge may be obliged to consider the impact of limiting the number of witnesses on the ability of the parties to prove their case, even though there is no rule or standard that governs the decision. The judge’s exercise of discretion may be guided in other ways as well. These might include a specification of the aims meant to be achieved by the exercise of discretion, the exclusion of certain factors from consideration, a reminder about certain ways the exercise of discretion might fail, and a reason-giving requirement.

    Judicial Discretion and Interstitial Lawmaking

    One realm in which the idea of judicial discretion operates is in the realm of interstitial judicial lawmaking.  The idea that judges possess a discretionary power to make law was articulated by Benjamin Cardozo in The Nature of the Judicial Process:

    The choice of methods, the appraisement of values, must in the end be guided by like considerations for the one as for the other. Each indeed is legislating within the limits of his competence. No doubt the limits for the judge are narrower. He legislates only between gaps. He fills the open spaces in the law …. None the less, within the confines of these open spaces and those of precedent and tradition, choice moves with a freedom which stamps its action as creative. The law which is the resulting product is not found, but made. The process, being legislative, demands the legislator’s wisdom. (Cardozo 1921, pp. 113-15)

    Cardozo then uses the idea of discretion to contrast interstitial lawmaking with cases in which judges are bound or constrained by existing law: “[i]n countless litigations, the law is so clear that judges have no discretion. They have the right to legislate within gaps, but often there are no gaps.” (Cardozo, 1921, pp. 129).

    The idea that judges have discretion in the realm of interstitial lawmaking is controversial.  Ronald Dworkin’s Right Answer Thesis is the claim that even common-law judges have a legal duty to reach a legally correct answer in cases in which there is no prior case with a binding holding.  Unlike Dworkin, many legal realists believe that interstitial lawmaking involves discretion: when there is no controlling prior decision, the role of the judge is essentially the same as that of a legislator.

    Even more controversial is the claim that judges, on courts of last resort like the United States Supreme Court, always possess quasi-legislative discretion.  For example, originalist constitutional theory holds that judges are bound by the original meaning of the constitutional text, but some living constitutionalists deny this.  For example, a common law constitutionalist might take the position that the constitutional text does not bind the Supreme Court, and that the Court has a discretionary power to make constitutional law that is inconsistent with the text.

    Discretion Granting Language

    Sometimes the law uses the word “discretion” to signal that a power conferring legal norm creates discretion.  But this is not always the case.  For example, the word “may” is frequently used to confer a discretionary power, whereas the word “must” is used to create a legal duty.  For example, Federal Rule of Civil Procedure 13 distinguishes between compulsory and permissive counterclaims.  The word “must” is used in Rule 13(a) to convey the idea that such counterclaims must be brought by a defendant.  The word “may” is used in Rule 13(b) to indicate that defendants have discretion to decide whether or not to bring permissive counterclaims.

    Abuse of Discretion and Appellate Review

    Another context in which the idea of discretion arises involves standards of appellate review.  When a trial court judge makes a decision of law (e.g., granting or denying a motion for summary judgment), the standard of appellate review is de novo; the trial judge has no discretion.  But many trial court decisions are discretionary, including, for example, trial management decisions about the number of witnesses or the time allotted for questioning of a particular witness.  When an appellate court reviews these decisions, the standard of appellate review is “abuse of discretion.”  Consideration of an improper factor (such as a bribe or personal animus) or the failure to consider a mandatory factor may render a decision an abuse of discretion–even if the decision would have been proper if it had been reached on the basis of proper reasons.

    Executive and Legislative Discretion and Judicial Review

    Another context in which the idea of discretion plays an important role is provided by judicial review of executive and legislative actions.  There are many actions by legislatures and executives that are discretionary: there is no legal duty that specifies what must be done.  One clear example is prosecutorial discretion.  In the United States (but not everywhere else), prosecutors have discretion to refrain from bringing criminal charges, even if the prosecutor is aware of criminal conduct and the evidence of guilt is so overwhelming that no case could be made for reasonable doubt.  On the other hand, prosecutors do not have discretion to bring criminal charges where there is no evidence of guilt.

    Similarly, lawmakers have substantial discretionary power in the legislative process.  There is no legal duty to enact the Green New Deal, even if there are overwhelming good reasons to do so.  Likewise, there is no legal prohibition on enacting a repeal of the Clean Air Act, even if this decision were demonstrably against the public interest.  But the discretion of lawmakers is nonetheless bounded, both by the scope of lawmaking authority (i.e., the enumerated powers of Congress) and by rights conferring provisions (i.e., the freedom of speech).

    Thus, judicial review of executive or legislative action necessarily involves the idea of discretion.  Courts will defer to decisions that are within the discretionary powers of executive officials or legislative institutions.  Judicial review that invalidates an action by an executive official or legislature is proper when discretion runs out.

    Discretion and Other Forms of Legal Norms

    Discretion is a form of legal norm, but there are many other forms as well.  At the other end of the spectrum from discretion are legal rules–legal norms that provide bright lines sorting official conduct into prohibited and permitted categories.  Standards provide officials with a set of mandatory considerations and may also provide procedure for weighing or combining these considerations: balancing tests are the paradigm case of a legal norm in the form of a standard.  Legal principles provide mandatory considerations, but may be consistent with the exercise of discretion, so long as the principle is taken into account in cases in which it is relevant.

    The question whether to give a legal actor discretion is one of institutional design.  Discretion might be granted because it is believed that the legal actor or institution granted discretion will make better decisions on a case-by-case basis than would be made if a legal rule or standard were to govern the decision.  The decision not to grant discretion may entail judicial review, which has costs and benefits.

    De Facto and De Jure Discretion

    The question whether discretion exists has at least two dimensions.  We might use the phrase “de jure discretion” to designate cases in which the legal rules explicitly confer discretion on a given official or institution.  But it might be the case that even though a decision is, in theory, governed by a rule or standard, it is, in fact, discretionary, because violations of the rule are not effectively subject to correction.  For example, it might be argued that in theory, the Supreme Court is bound by the constitutional text, but in practice, the Court has discretion, because the decisions of the Supreme Court on constitutional questions are final.  Thus, the Court might have de facto discretion to make constitutional law, even though it has not de jure power to do so.

    Conclusion

    Discretion is a complex subject, and this Lexicon entry has only scratched the surface.  Nonetheless, I hope that I have provided an introduction to this important concept and some of the contexts in which it is important.

    Related Lexicon Entries

    Bibliography

    Link to the Most Recent Version of this Lexicon Entry

    Legal Theory Lexicon 091: Discretion

    (Last revised on August 21, 2024.)

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  • Legal Theory Lexicon 090: Adjudicative Facts versus Legislative Facts

    By Lawrence B. Solum

    Introduction

    Facts are important to the outcome of legal disputes.  One of the things that law students may notice is that there are different kinds of factual disputes that arise in legal proceedings.  Some factual disputes are about events, occurrences, and transactions that are mostly relevant to the particular dispute–the civil action or the criminal prosecution.  Other facts are more general and bear on questions about what the law is or should be–and not what happened in a particular case.  The distinction between these two kinds of facts is sometimes marked by using the labels “adjudicative facts” and “legislative facts.”  This entry in the Legal Theory Lexicon provides a brief introduction to that idea.

    Origins of the Distinction in Administrative Law

    The use of the terms “adjudicative facts” and “legislative facts” is strongly associated with a 1942 article by Kenneth Culp Davis, the author of a famous treatise on administrative law.  Here is Davis’s discussion of the distinction:

    Through adjudication administrative agencies create law and determine policy, as well as make findings which concern only the parties to the specific case. Creation of law and determination of policy usually do not rest upon uninformed a priori judgments having only an ethical or a logical basis. Frequently agencies’ choices of law or policy must depend on fact-finding. But the fact-finding process for such purposes is different from the process of finding facts which concern only the parties to a particular case and calls for different rules of evidence.

    When an agency finds facts concerning immediate parties — what the parties did, what the circumstances were, what the background conditions were — the agency is performing an adjudicative function, and the facts may conveniently be called adjudicative facts. When an agency wrestles with a question of law or policy, it is acting legislatively, just as judges have created the common law through judicial legislation, and the facts which inform its legislative judgment may conveniently be denominated legislative facts. The distinction is important; the traditional rules of evidence are designed for adjudicative facts, and unnecessary confusion results from attempting to apply the traditional rules to legislative facts.

    Kenneth Culp Davis, An Approach to Problems of Evidence in the Administrative Process, 55 Harv. L. Rev. 364, 402–03 (1942).

    Davis makes the important point that adjudicative factfinding is governed by the rules of evidence–a formal system that governs the admissibility of evidence and by associated procedures for the questioning of witnesses and the presentation of documentary and physical evidence.  But these rules are not observed in factfinding processes associated with lawmaking.  Congressional hearings and factfinding by administrative agencies are not governed by the rules of evidence.  Scientific evidence is introduced at trial via expert witnesses, but legislative and administrative factfinding can proceed in much less formal ways.

    Constitutional Facts

    Davis modeled his notion of legislative facts on the already-existing category of constitutional facts.  Such facts may be developed as part of the record at trial, but as Professor Davis notes in his article, such facts are frequently brought before a court by briefs that cite research that is published in scientific journals or monographs.  Such facts are outside the record and do not fit within the traditional categories of facts of which judges may take “judicial notice.’

    Constitutional facts become important when courts apply tests that involve the scrutiny of means ends relationships and assessment of the importance of goals pursued by legislation or executive action.  For example, the strict scrutiny test requires a compelling state interest and demonstration that the means employed by government action are necessary to achieve such ends.  The importance of ends and the fit between ends and means frequently depend on empirical questions–hence the need for constitutional factfinding.

    Deference to Extrajudicial Findings of Legislative Facts

    When courts assess legislative facts, they may need to take into account factfinding that has already been done by a legislature, executive official, or a regulatory agency.  This raises questions about “deference.”  Should a court defer to factfinding done by the legislative or executive branch?  And what sort of deference is appropriate?  Rational basis review usually involves considerable deference.  At one extreme, the courts may defer to a legislature so long as the legislature could rationally have found facts that supported its decision, even if the legislature did not actually engage in factfinding and even if the great weight of the evidence does not support a legislative fact that is required for legislation to be upheld.  But if the standard of review is strict scrutiny, courts may give legislative factfinding no deference at all, striking down legislation if the court’s view of the facts does not support legislative or executive action.

    Legislative Facts and the Role of Judges

    The importance of legislative facts may be related to conceptions of the proper role of judges.  For example, Formalists may believe that constitutional and statutory interpretation should largely be driven by the “meaning” or communicative content of the text.  In the realm of common law, the formalist approach emphasizes adherence to precedent.  On the formalist conception of the judicial role, judges do not make law, minimizing the need for legislative factfinding by judges.  Realist or instrumentalist theories of judging are different: they do not draw a sharp line between law making and law application.  If the role of judges is to make policy, then judges may need to engage in substantial legislative factfinding.  In particular, the application of “balancing tests” may require judges to engage in legislative factfinding in order to determine the weight of the various interests to be balanced.

    Treating Meaning-Establishing Facts as Adjudicative Facts

    The distinction between adjudicative and legislative facts has taken on new significance in the context of originalism and textualism. Both approaches maintain that the meaning of a legal text is an empirical matter—determined by facts about linguistic usage and historical practice at the relevant time and place. This raises a pressing question: if original meaning and plain meaning are genuinely factual questions, should they be developed as adjudicative facts, subject to the rules of evidence, expert testimony, and adversarial testing at the trial level?

    Some scholars and courts have moved in this direction. After the Supreme Court’s decision in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), which requires courts to assess whether modern firearms regulations have historical analogues in the founding era, many district courts held evidentiary hearings in which historians testified as expert witnesses. Joseph Blocher and Brandon Garrett have argued that this is how originalist fact-finding should work: because our legal system gives trial courts primary authority over factual determinations, historical and linguistic facts bearing on constitutional meaning should be developed through adjudicative procedures, with adversarial testing, deference on appeal, and the other procedural protections that accompany the finding of adjudicative facts.

    There are powerful objections to this approach, however. The most significant is the uniformity problem: if the original meaning of a constitutional provision or the plain meaning of a statutory term is an adjudicative fact to be determined by each trial court in each case, different courts could reach different conclusions, and those conclusions would be entitled to deference on appeal. A statute would then mean one thing in the Northern District of California and something different in the Southern District of Texas—or even different things in successive cases before the same court. This outcome is in deep tension with the basic premise of statutory and constitutional interpretation: that a legal text has a single legally authoritative meaning applicable uniformly across all cases and parties. On this view, facts that establish the meaning of legal texts function more like legislative facts, to be determined by appellate courts—and ultimately by the Supreme Court—with full de novo review rather than case-by-case adjudicative fact-finding.

    Conclusion

    There is much more to be said about the distinction between adjudicative facts and legislative facts, but I hope that this Lexicon entry provides you with a sense of the conceptual content of the distinction and its implications.

    Related Lexicon Entries

    Bibliography

    • Joseph Blocher & Brandon L. Garrett, Originalism and Historical Fact-Finding, 112 Geo. L.J. 699 (2024).
    • Caitlin E. Borgmann, Appellate Review of Social Facts in Constitutional Rights Cases, 101 Calif. L. Rev. 1185 (2013).
    • Kenneth Culp Davis, An Approach to Problems of Evidence in the Administrative Process, 55 Harv. L. Rev. 364 (1942).
    • Neal Devins, Congressional Factfinding and the Scope of Judicial Review: A Preliminary Analysis, 50 Duke L.J. 1169 (2001).
    • Timothy B. Dyk, The Role of Non-Adjudicative Facts in Judicial Decisionmaking, 76 Stan. L. Rev. Online 10 (2023).
    • David L. Faigman, Constitutional Fictions: A Unified Theory of Constitutional Facts (Oxford Univ. Press 2008).
    • Brianne J. Gorod, The Adversarial Myth: Appellate Court Extra-Record Factfinding, 61 Duke L.J. 1 (2011).
    • Allison Orr Larsen, Confronting Supreme Court Fact Finding, 98 Va. L. Rev. 1255 (2012).
    • Allison Orr Larsen, Constitutional Law in an Age of Alternative Facts, 93 N.Y.U. L. Rev. 175 (2018).
    • Haley N. Proctor, Rethinking Legislative Facts, 99 Notre Dame L. Rev. 955 (2024).
    • Ann Woolhandler, Rethinking the Judicial Reception of Legislative Facts, 41 Vand. L. Rev. 111 (1988).

    Link to the Most Recent Version of this Lexicon Entry

    Legal Theory Lexicon 090: Adjudicative Facts versus Legislative Facts

    (Last revised on December 21, 2025.)

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  • Legal Theory Lexicon 089: Inference to the Best Explanation (Abduction)

    By Lawrence B. Solum

    Introduction

    Early in the first year of law school, students are likely to realize that facts are crucially important.   But the law school curriculum is designed so as to make the process of legal factfinding almost invisible.  The traditional first year courses focus on appellate cases and legal norms.  The facts are givens.  The standards of appellate review largely insulate factfinding by trial courts from examination by appellate courts.  And casebooks focus on legal rules and largely exclude cases that focus on the factfinding process.  The primary law school course that focuses on factfinding is Evidence, but in many versions that course, the emphasis on questions about the admissibility of evidence and not the processes by which juries and judges move from evidence to findings of fact.

    Facts are important in trials and regulatory proceedings, but they are also important in the lawmaking processes that occur in legislatures and in common law courts.  Sometimes we call the facts that are found in trial courts “adjudicative facts” and the facts that are used in lawmaking “legislative facts.”  A similar phrase is used to describe the facts that are used in the development of constitutional doctrines; these facts are sometimes called “constitutional facts.”

    So perhaps it is no surprise that most law students have never thought seriously about the logical structure of the factfinding process.  My sense is that most students have a basic familiarity with the distinction between deductive and inductive arguments, but I would guess that many (or perhaps almost all) law students are unfamiliar with the idea of “inference to the best explanation” or “abduction.”  Indeed, at this point many readers might assume that this Lexicon entry is going to address an obscure topic that is only of interest to legal theorists: after all, how important could inference to the best explanation be, if law students, lawyers, and judges have never heard of it.  But in fact, factual arguments based on inference to the best explanation are ubiquitous in the law.  Knowing something about the way such arguments work can be eye opening and extremely useful.

    As always, this entry in the Legal Theory Lexicon is aimed at law students, especially first year law students, with an interest in legal theory.

    Deduction, Induction, and Abduction

    The first step in understanding inference to the best explanation is to distinguish it from two other forms of argument, “deduction” and “induction.”  Almost every law student has a basic understanding of deductive arguments.  A deductive argument is valid if the truth of its premises guarantee the truth of the conclusion; deductive arguments are sound if their logical structure is valid and their premises are true.  Thus, “All dogs are mammals.  All mammals are animals.  Therefore, all dogs are animals.” is both sound and valid.

    Good inductive arguments do not guarantee the truth of the conclusion; instead, inductive arguments provide some degree of support for their conclusions.  Here is an example:

    • Every crow in a sample of one thousand crows is black.  This supports the conclusion that all crows are black.

    An entire field of legal study, “Empirical Legal Studies,” is devoted to what we are calling “inductive arguments.”

    Unlike deductive arguments, arguments based on inference to the best explanation do not guarantee the truth of their conclusions.  Unlike inductive arguments, inference to the best explanation does not depend on generalization from many instances (or samples).  An argument from inference to the best explanation frequently moves from one fact (which might be an event or occurrence) to a conclusion on the basis that the conclusion is the best explanation for the fact that provides the premise for the argument.  This may sound very abstract, but the idea is simple and intuitive in the context of specific examples.

    Examples of Inference to the Best Explanation

    The best way to understand inference to the best explanation is via examples.  Here are a few:

    • Helberta wakes up in the morning and goes into the kitchen.  The beans for coffee have been ground and placed in the filter bag in the coffee maker.  Helberta is positive that they did not do this last night.  The best explanation for this state of affairs is that Helberta’s partner Gertruda set up the coffee the prior evening.
    • Walter is found dead from a gunshot wound inflicted by a 45 calibre bullet.  The day before, Graham and Walter had a violent argument during which Graham threatened to kill Walter.  Graham owns a 45 calibre revolver and cannot account for his actions during the time period during which the shooting must have occurred.  The best explanation for these circumstances is that Graham shot Walter.
    • You are walking on the beach and see the following letters in sand: “L i f e  i s  b e a u t i f u l.”  It is possible that the letters were caused by random wave action, but the best explanation is that another person drew the letters in the sand.

    None of these examples involve inductive or deductive arguments.  In each of the examples, it is logically possible that your conclusion is false.  If you doubt this, consider the following additions to the examples:

    • After Helberta sips her coffee, her sister Alberta comes into the room, surprising Helberta.  Alberta says, “Sorry to scare you.  I arrived late last night and Gertruda let me in.  I got the coffee ready.”
    • After the police investigate Walter’s shooting, they discover that Alice, Walter’s wife had learned about the argument between Walter and Graham, had access to Graham’s revolver, and was furious at Walter because they had learned that Walter had been sleeping with another woman.
    • After you see the writing on beach, you come across a boy and their dog.  The boy says, “Spot, write ‘hello’!” and remarkably, the dog traces the letters “H e l l o” in the sand and these letters are similar in width and shape to the letters you saw earlier.

    Arguments from an inference to the best explanation do not guarantee the truth of their conclusions, even when they make the conclusion seem very likely.  Given new and different facts to be explained, the process of inference to the best explanation can lead to a different conclusion.

    Inference to the Best Explanation in the Law

    Inferences to the best explanation are ubiquitous in the law.  The idea of “circumstantial evidence” is based on inference to the best explanation.  When someone says “the evidence is only circumstantial” they are pointing out the possibility that the inference to the best explanation does not guarantee the truth of the conclusion.  But inference to the best explanation operates in the context of non-circumstantial evidence as well.  Suppose that there is an eyewitness to a shooting (Helena) and that the Helena testifies at trial that Roberta was the shooter.  The fact to be explained is Helena’s testimony.  If we believe her, it is because we believe that the best explanation for her having testified that Roberta was the shooter is that Roberta did in fact do the shooting, that Helena witnessed the shooting, and that Helena is now truthfully recounting what she saw.  Of course, there are other explanations, and there is empirical evidence that eyewitness identifications of strangers are frequently wrong.  More generally, inference from the testimony of witnesses to the facts about which they testify all depend on inferences to the best explanations.

    The role of inference to the best explanation is not limited to factfinding at trial.  The factual predicates for policy arguments may be based on inferences to the best explanation.  And many doctrinal arguments about legal content use inference to the best explanation as well: the courts in cases X, Y, and Z, made decisions A, B, and C, and the best explanation for this pattern of decisions is that the courts were implicitly following legal norm P.

    Once you start looking for arguments from the best explanation in law, you will find them everywhere.

    Inference to the Best Explanation and Behavioral Economics

    Just because inference to the best explanation is ubiquitous does not mean that it is unproblematic.  Human psychology influences which inferences are seen as best, but the psychological mechanisms may be biased or flawed.  Behavioral economics, which is grounded in psychology, identifies various heuristics that may result in inferences to the best explanation that are, in fact, invalid.  For example, it may be the case that there is a tendency to prefer simple explanations over complex ones, but that the simplicity of an explanation is not a good predictor of its accuracy.

    Conclusion

    This Lexicon entry aims to introduce the idea of abduction or inference to the best explanation.  The bibliography provides some references for additional reading and legal applications.  There is much more to be said about this topic, but I hope that I have provided enough background to get you started.

    Related Lexicon Entries

    Bibliography

    • Ronald J. Allen & Alex Stein, Evidence, Probability, and the Burden of Proof, 55 Ariz. L. Rev. 557 (2013).
    • Craig R. Callen, Spotting A Preponderance of the Evidence in the Wild: Inference to the Best Explanation and Sufficiency of the Evidence, 48 Seton Hall L. Rev. 1517 (2018).
    • Igor Douven, Abduction, Stanford Encyclopedia of Philosophy (Edward N. Zalta ed., 2017).
    • Gilbert Harman, The Inference to the Best Explanation, 74 Phil. Rev. 88 (1965).
    • James Hawthorne, Inductive Logic, Stanford Encyclopedia of Philosophy (Edward N. Zalta ed., 2018).
    • Peter Lipton, Inference to the Best Explanation (Routledge 2d ed. 2004).

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    Legal Theory Lexicon 089: Inference to the Best Explanation (Abduction)

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  • Legal Theory Lexicon 088: The Construction Zone

    By Lawrence B. Solum

    Introduction

    Law students quickly learn that many legal texts are vague or open-textured.  Words like “reasonable” and phrases like “freedom of speech” may not provide bright-line rules for their application.  This lack of precision creates a zone of underdeterminacy, where something other than the meaning of the text is required in order to formulate implementation rules (the legal doctrines that courts use to apply the text to particular cases).  If we distinguish between “interpretation” (which discovers meaning) and “construction” (which determines legal effect), we can call these zones of underdeterminacy “construction zones.”

    This entry in the Legal Theory Lexicon provides a short introduction to the idea of a “construction zone.”  As always, the Lexicon is aimed at students, especially first-year law students, with an interest in legal theory.

    The Interpretation-Construction Distinction

    The idea of a “construction zone” is based on the interpretation-construction distinction.  The distinction between “interpretation” and “construction” marks the fundamental conceptual difference between two activities:

    Interpretation is the activity that aims to recover the meaning of a legal text, such as a contract, regulation, statute, or constitutional provision.

    Construction is the activity that determines the legal effect of text.  For example, in the case of a constitution, construction determines the legal content of constitutional doctrines and the decision of constitutional cases.

    This is an old distinction in American legal theory and played a prominent role in the works of the great treatise writers of the second half of the nineteenth century and the first half of the twentieth, but it gradually fell into disuse.  The revival of the interpretation-construction distinction is associated with the “New Originalism” and especially Keith Whittington and Randy Barnett.

    Underdeterminacy

    The idea of “underdeterminacy” is best explained by comparison with two contrasting ideas, “determinacy” and “indeterminacy.”  A legal text is “indeterminate” if it provides no guidance at all, permitting judges to reach any result they wish.  A legal text is “determinate” if it fully determines application.  “Underdeterminacy” applies when a legal text is consistent with more than one outcome, but rules out other outcomes.  In other words, a legal text is underdeterminate with respect to the legal rules that implement that text if and only if it allows for some possible rules but rules out others.

    Construction zones arise because the meaning of some legal texts underdetermines the legal effect that is given by courts and other officials to the text.  For example, the communicative content of the phrase “freedom of speech” underdetermines the legal content of free-speech doctrine.  The linguistic meaning of the phrase “freedom of speech” does not contain doctrines such as the distinction between content-based and content-neutral restrictions on speech.  The legal content of these implementation rules is underdetermined by the communicative content of the First Amendment.

    There are many reasons for the underdeterminacy of legal texts.  Here is a brief catalog:

    Vagueness and Open Texture: Some legal texts are vague because they create borderline cases: for example, the word “tall” is vague, because there is no bright-line between persons who are tall and those who are not.  Other texts include “open textured” provisions.  Typically, an open-textured legal rule has a core of determinate application and an equally determinate core of nonapplication, but creates a set of cases where the rule may or may not apply.  H.L.A. Hart used the term “penumbra” to designate this set of cases.

    Irreducible Ambiguity: Many words and phrases are ambiguous: they have more than one meaning.  “Bank” can refer to a financial institution or the soil that adjoins a river.  Usually, we can resolve ambiguity by context, but some terms may be irreducibly ambiguous.  For example, a legislature may decide to use ambiguous language if a compromise cannot be reached on some issue: this kind of ambiguity “kicks the can down the road,” creating a construction zone to be resolved by judges or officials at some future date.

    Gaps:  Some legal texts may contain “gaps.”  For example, a statute may create a legal question but provide no legal rule to govern that question.  The resulting “gap” creates a construction zone.

    Contradictions:  Complex statutes sometimes contain contradictions, provisions that conflict with each other.  Again, the contradictory provisions create a construction zone, where the resolution of the conflict must be done by officials or courts when they implement the statute.

    When a legal text is vague, open-textured, irreducibly ambiguous, has gaps, or contains contradictions, it creates a “construction zone.”  The legal effect of the constitutional clause, statutory provisions, or contract clause will underdetermine its legal effect.  In this zone of underdeterminacy, construction will be required to determine legal content and application to particular cases.  In other words, underdeterminacy creates construction zones.

    Interpretation Zone versus Construction Zone

    Now that we have the idea of a construction zone, we can introduce a contrasting notion.  The “interpretation zone” is the set of issues and cases for which the meaning of the text is determinate.  Some legal texts are fully determinate: once we know what they mean, we know how to apply them.  For example, the Constitution specifies that each state has two Senators: in practice, this provision is fully determinate: issues concerning this provision are in the interpretation zone.

    The notion of an interpretation zone is relative to theories of interpretation and construction.  For example, statutory textualists believe that any statutory issue that can be answered by the meaning of the statutory text is in the interpretation zone.  But purposivists may not accept this idea.  Because they believe that the purpose of a statute should determine the statute’s legal effect, they reject the idea that clear text automatically resolves questions about the legal effect of a statute.

    Methods of Construction

    Identification of the construction zone is only the start of the analysis of what to do when a legal text is underdeterminate with respect to some case or issue.  The next step is to determine what methods of construction are appropriate for the determination of legal effect.  This step involves theories of construction: such theories provide methods for choosing implementation rules.

    There are many possibilities.  For example, we might devise implementation rules by identifying the objective purpose or function of a statute or constitutional provision.  Or we might use a default rule: for example, in constitutional cases, courts could defer to democratic officials when the constitutional text is underdeterminate.  Precedent or historical practice might play a role in the construction zone.

    The law is full of doctrinal techniques for resolving cases in the construction zone.  For example, application of a vague or open-textured statute or constitutional provision might be guided by a balancing test.  Or the courts might precisify a vague provision by devising a bright-line rule that implements the purpose of the provision.  Another possibility is to grant discretion to trial court judges to resolve cases in the construction zone.

    Conclusion

    The idea of a construction zone is a powerful tool for analyzing questions about the interpretation and construction of legal texts.  I hope that this entry in the Legal Theory Lexicon has provided a basic introduction to this idea and the complementary notion of an interpretation zone.

    Related Lexicon Entries

    Bibliography

    Link to the Most Recent Version of this Lexicon Entry

    Legal Theory Lexicon 088: The Construction Zone

    (Last updated on December 7, 2025.)

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  • Legal Theory Lexicon 087: Soft Law

    By Lawrence B. Solum

    Introduction

    The first year curriculum in the United States focuses on domestic private law (property, torts, contracts), civil procedure, and constitutional law, with the possibility of a course on legislation and regulation or an elective outside the core common law subjects.  International law is rarely studied in the first year.  So, many first-year law students may complete the year without having heard of “soft law,” which implicitly is defined as contrasting with “hard law.”  Here is a representative definition that assumes the international law context:

    By “soft law” I am referring to quasi-legal instruments that have no legal force, such as non-binding resolutions, declarations, and guidelines created by governments and private organizations. (Druzin, 2017)

    The idea of soft law can easily be extended to domestic contexts.  This entry in the Legal Theory Lexicon provides an introduction to the idea of soft law aimed at law students, especially first-year law students with an interest in legal theory.

    Hard Law

    The notion of “soft law” is implicitly defined by contrast with “hard law.”  Hard law is binding and enforceable.  In the international context, treaty obligations and the binding enactment of international organizations created by treaties would be hard law.  In the domestic sphere, hard law is the system of binding legal norms, including criminal law, tort law, constitutional law, and so forth.

    What makes “hard” law hard?  That is a deep question that connects with disputes about the nature of law: explored in Legal Theory Lexicon 065: The Nature of Law.  One possible answer is that a hard law must be properly enacted or recognized by the relevant rule of recognition (a social rule that specifies what counts as a law and what does not) and be properly connected to some form of state-imposed sanction or reward.  There are deep waters here, but we will work with that definition for the remainder of this Lexicon entry.

    Soft Law

    If hard law is properly enacted and backed by sanctions or rewards, then what is soft law?  “Soft law” must share something with “law”: at a minimum soft law must contain a norm the content of which has the action guiding function of hard law.  And soft laws also appear to be things that are enacted or promulgated in some way.  Thus, it is common to include in the category of “soft law” things like “non-binding resolutions, declarations, and guidelines created by governments and private organizations.” (Druzin, 2017)  In other words, soft-laws are things with content that would be hard law if it had been enacted by a process that would have conferred legal status and if it had included some sanction or reward.

    This definition of “soft law” is incomplete.  If I write a set of guidelines for fossil fuel companies, it does not become “soft law.”  Implicitly, the category is limited to norms (rules, standards, or other kinds of norms) that are effective.  Guidelines that achieve some threshold level of compliance may properly be characterized as “soft law,” but guidelines that have no effect on behavior are not.  A full and complete definition would also need to differentiate the category of “soft law” from related notions such as “custom” or “social norms,” but at this point, we will bracket these additional questions.

    Soft Law in International Law

    The term “soft law” seems to have originated in the field of international law and it is applied to resolutions of the United Nations General Assembly and the action plans or recommendations generated by the various organs of the United Nations and other international organizations.

    Why is soft law created?  And why does soft law sometimes succeed in changing behavior?  These are big questions, but here are some ideas for starting to think about answers.  Soft law may be created because it is not feasible to create hard law.  This might happen in the course of treaty negotiations: if a hard law treaty is impossible, the negotiating parties might turn to soft law as a less than ideal option that is “better than nothing.”

    Even if soft law is not backed by sanctions or rewards, it might nonetheless affect behavior.  Soft law might act like informal social norms and create social pressures for compliance.  Violations of soft law may be criticized and result in various soft pressures, such as refusals to cooperate with the violators of soft law norms.

    Another mechanism for cooperation may involve what are called “networking effects.”  Soft law may provide a mechanism for the coordination of behavior.  If the benefits of coordination depend on the number of cooperators, the soft law norm may be adopted voluntarily.  Here is an example from international shipping:

    Soft-law documents such as BIMCO bills of lading, standard-form charter-parties, and the York-Antwerp Rules 2004 on General Average have self-standardized as de facto industry standards. This process of self-standardization may occur with respect to instruments at all levels of interaction. The soft-law document need only provide a focal point for actors within a network seeking to co-ordinate. International bill of lading and charter-party forms, couched in universal terms and practices widespread throughout the shipping world, do not require any formal legal codification precisely because—and this is a crucial point—they are already robustly supported by network-effect pressures. (Druzin, 2017)

    Conclusion

    There are many more questions that could be asked about the idea of soft law.  Does it make sense to use the word “law” when we refer to “soft law”?  Or is the terminology misleading?  What are the costs and benefits of soft law approaches as compared to hard law?  I hope this Legal Theory Lexicon entry has provided you with the tools to understand and recognize the concept of soft law.

    Related Lexicon Entries

    Bibliography

    • Kenneth W. Abbott & Duncan Snidal, Hard and Soft Law in International Governance, 54 Int’l Org. 421 (2000).
    • Chris Brummer, Soft Law and the Global Financial System: Rule Making in the 21st Century (2d ed. 2015).
    • Bryan H. Druzin, Why Does Soft Law Have Any Power Anyway?, 7 Asian J. Int’l L. 361 (2017).
    • Jacob E. Gersen & Eric A. Posner, Soft Law, 61 Stan. L. Rev. 573 (2009).
    • Andrew T. Guzman & Timothy L. Meyer, International Soft Law, 2 J. Legal Analysis 171 (2010).
    • Gregory C. Shaffer & Mark A. Pollack, Hard vs. Soft Law: Alternatives, Complements, and Antagonists in International Governance, 94 Minnesota Law Review 706 (2010).
    • Dinah L. Shelton, Soft Law, in Handbook of International Law (Routledge 2008).

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    Legal Theory Lexicon 087: Soft Law

    (Last revised on November 30, 2025.)

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  • Legal Theory Lexicon 086: Context and Meaning

    By Lawrence B. Solum

    Introduction

    One of the most important tasks performed by lawyers and judges is the “interpretation” of legal texts, including constitutions, statutes, regulations, rules, contracts, and the list goes on.  One aspect of communication involves the linguistic meaning of the words and phrases that make up the text: this aspect of meaning is sometimes called “semantics.”  The bare semantic meaning of a legal text is sometimes called the “literal meaning.”  But the whole meaning of a text almost always is richer than the literal meaning.  We might ask, “Where does the ‘extra’ meaning come from?”  The answer to that question is context.  The role of context in the production of meanings is called “pragmatics” by philosophers of language and linguistic theorists.

    This Lexicon entry explores the relationship between context and meaning.  As always, the Lexicon is aimed at law students, especially first-years, with an interest in legal theory.

    Contextual Disambiguation

    One of the most important roles played by context occurs when a legal text is ambiguous. The word “ambiguity” has more than one meaning or sense. Sometimes it is used in a very general sense to refer to a lack of clarity, but “ambiguity” also has a technical sense. In this Lexicon entry, “ambiguity” is used to refer to the situation in which a word has more than one sense. For example, the word “bank” might appear in a statute.  “Bank” has more than one meaning.  The land adjoining a river is a “bank,” and so is a financial institution that accepts deposits from customers.  If a statute or regulation includes the word “bank,” we can almost always disambiguate on the basis of context.  If the statute concerns the regulation of financial institutions, then the word “bank” is almost certain to refer to the kind of “bank” that accepts deposits.  But if the statute involves water pollution or navigation, then the “bank” is all but sure to be the land adjoining a river.

    Because most words have more than one meaning, semantic ambiguity is pervasive.  But we often do not even notice the fact of ambiguity because we naturally read legal texts contextually and resolve the ambiguity without even consciously realizing that we are doing so.

    There are other forms of ambiguity, including syntactic ambiguity, which arises from the fact that sentence structure and punctuation are frequently consistent with more than one set of relationships between words.  Here is a simple example: “The professor said on Monday he would give an exam.”  This might mean that it was Monday, when the professor said that he would give an exam on a subsequent day.  Or it might mean that the professor said that he would give an exam and that the exam would be administered on Monday.  Syntactic ambiguities are very common, but they are usually resolved by context.

    Pragmatic Enrichment

    Context plays another important role in the production of meaning.  A legal text can communicate an idea without stating the idea explicitly.  Context can “enrich” or add to the literal meaning of a text.  This is a deep topic, but one way to approach it is by cataloging some of the forms of what is called “pragmatic enrichment.”

    Implicature

    Implicature conveys communicative content that is different from the semantic content of an utterance or text. Consider the classic example of a letter of recommendation, written by a law professor, for a student applying for a prestigious judicial clerkship. The entire body of the letter reads as follows: “I recommend Ben. He was always on time to class and his attendance record was perfect.” The semantic content of the letter consists of a speech act, recommendation, and two supporting statements regarding punctuality and regularity of attendance. But in the context in which the letter was written, much more than the literal meaning is communicated. If the best that can be said about Ben is that he was on time and did not miss class, the implicature is that Ben is not suitable for the position of judicial clerk.

    Impliciture

    Impliciture involves situations in which what is said implicitly includes something else that is closely related. Kent Bach gives the following examples, in which the impliciture (unstated) has been added in brackets:

    • Jack and Jill are married [to each other].
    • Bill insulted his boss and [as a result] got fired.
    • Nina has had enough [pasta to eat].

    Thus, if someone says, “Jack and Jill are married,” the [to each other] is unstated but implicit, and so forth for the other examples. Constitutional impliciture is common: Article I, Section 9, of the Constitution explicitly states, “No Bill of Attainder or ex post facto Law shall be passed,” with [by Congress] as an impliciture.

    Presupposition

    Presupposition is communicative content provided by an unstated assumption or background belief that is conveyed by what is said. Again, examples are helpful:

    • Utterance: “Cass is no longer the head of OIRA.” Presupposition: “Cass was once the head of OIRA.”
    • Utterance: “Adrian should not eat meat.” Presupposition: “Adrian does eat meat.”
    • Utterance: “Lisa’s wife is pregnant.” Presupposition: “Lisa has a wife.”

    Philosophers of language distinguish between “conversational presuppositions” (also called “speaker presuppositions” or “pragmatic presuppositions”) and “conventional presuppositions” (or “semantic presuppositions”) that are triggered by particular words or phrases (“no longer” in the first example above). For our purposes, we can put these technicalities to the side.

    Presuppositions are common.  For example, the Ninth Amendment may presuppose the existence of “rights retained by the people” even though the explicitly semantic content of the text does not state that such rights exist.

    Modulation

    Finally, consider what is sometimes called modulation. The intuitive idea is that, in context, a conventional semantic meaning can be adjusted or modulated to fit the context—essentially a new meaning is created (sometimes on the spot) so that an old word is used in a new way.  In ordinary speech, modulations may be “one-offs,” used on a single occasion. But in the law, modulation can create a new technical meaning for a word that also has an ordinary sense.

    Again, we can find examples of modulation in the text of the United States Constitution. One example is (or hypothetically may be) the Recess Appointments Clause, which uses the word “recess.” Read acontextually, a recess might be any break in the business of the Senate—even a lunch break. But in context, “recess” is best read as a modulation, the meaning of which plays off the complementary term “session.” The relevant sense of “recess” is a modulation of the conventional semantic meaning; it is limited to the break between sessions of the Senate.  This difference between conventional semantic meaning and modulation was actually the source of disagreement among the Justices in the Noel Canning case.

    Another Role of Context: Purposes and Values

    The discussion so far has concerned the role of context in the production of “meaning” in the sense of communicative content.  But there is another, quite distinct, role that context can play.  Context can provide the “purpose” of a statute or the “constitutional values” that animate a clause in the constitutional text.  We can get at this role of context by recalling the distinction between “purposivism” and “textualism” as theories of statutory interpretation.  Textualists are concerned with the meaning of the statutory text: they look to context in order to determine the content communicated by the text of the statute.  Purposivists have a very different approach to statutory interpretation: they believe that courts should determine the “objective purpose” or “function” of a statute.  The legal rules that implement  a statute should be designed to achieve that purpose–even if achieving the purpose requires legal norms that differ from those that are expressed in the statutory text.  A purposivist can look to the context in which a statute was enacted in order to determine its purpose, but that is quite different than looking to context to determine the meaning of the text.

    The Interpretation-Construction Distinction

    The two roles of context that we have identified can be clarified by invoking the interpretation-construction distinction, which is the subject of a Lexicon entry.  Here is the distinction:

    • Interpretation: The activity of discerning the linguistic meaning in context (or communicative content) of a legal text.
    • Construction: The activity of determining the legal effect (or legal content) of a legal text.

    Contextual disambiguation and pragmatic enrichment are used in interpretation.  The determination of purposes, policy goals, and values is used in construction.

    Conclusion

    As is usually the case, this Lexicon entry provides a very brief introduction to a very big topic, but I hope it illuminates the role of context in the interpretation and construction of legal texts.

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    Legal Theory Lexicon 086: Context and Meaning

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  • Legal Theory Lexicon 085: Canonical and Anti-Canonical Cases

    By Lawrence B. Solum

    Introduction

    Sometimes a case is referred to as “canonical.”  It is one of the cases that is clearly correct.  In the context of American constitutional law, Brown v. Board is frequently cited as a canonical case.  Other times, the opposite point is made: a case is called “anti-canonical.”  It is clearly wrong.  An example is Dred Scott.  But what is the theoretical force of these moves?  And what accounts for the canonical or anti-canonical status of a case?  Do cases move in and out of the canon and anti-canon?  How and why?  Is the argument that a theory is inconsistent with a canonical a “conversation stopper”?  Or can one argue that a canonical case was wrongly decided?

    Most of the discussion in this brief Lexicon entry will use constitutional law examples, but the idea is more general than that.  There are canons in contracts, torts, property, and administrative law, but most of the discussion of the idea of canonical and anti-canonical cases has occurred in the context of constitutional law.

    This entry in the Legal Theory Lexicon discusses the idea that some cases are canonical and others are anti-canonical.  As always, the Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory.

    Canonical Cases

    The paradigm case of a canonical case is Brown v. Board of Education.  For example, Cass Sunstein has written:

    [I]t seems clear that to have a claim on lawyers’ attention, any serious theory of constitutional interpretation must be able to explain why Brown was right. In this sense, Brown is part of the canon of constitutional law. (Sunstein, 23)

    There is no set list of canonical cases, but other candidates for the constitutional canon include Marbury v. Madison, McCulloch v. Maryland, and West Virginia State Board of Education v. Barnette.  These are the cases that are included in almost every constitutional law course, that every educated lawyer is expected to know, and that the Supreme Court is very unlikely to overrule or disapprove, even in dicta or a dissent.

    Anti-Canonical Cases

    Jack Balkin suggested the idea of an “anti-canon” in a law review article in 2005.

    Law is distinct from other subjects with a canon, like literature, because it also has an anti-canon – a set of cases and materials that must be wrong. Anti-canonical cases serve as examples of how the Constitution should not be interpreted and how judges should not behave.  (Balkin, 2005)

    The anti-canon includes Plessy v. Ferguson, Dred Scott, and Lochner v. New York.  Every lawyer is expected to know that these cases were wrongly decided.  The Supreme Court never cites them with approval.

    The Relationship of the Canon and the Anti-Canon to the Role of “Fit” in Legal Theory

    The canon and the anti-canon play many roles in legal discourse, but this Lexicon entry is focused on the way that the idea of canonicity works in normative legal theory.  One way to understand that role is via Ronald Dworkin’s notion that legal content is a function of the theory that best fits and justifies the legal materials as a whole.  There is a separate Legal Theory Lexicon entry on this idea: Legal Theory Lexicon 032: Fit and Justification.

    Canonical cases are the cases that a normative theory of the law must fit:  for example, a theory of the Equal Protection Clause must justify Brown v. Board.  Likewise, a normative theory of law must condemn the anti-canonical cases.  For example, a theory of Equal Protection cannot be consistent with Plessy v. Ferguson.  Dworkin uses the metaphor of “gravitation force” to describe the way precedent works: we might say that canonical cases have tremendous gravitational force and that anti-canonical cases have the opposite effect, a sort of repelling force.

    Reflective Equilibrium

    A more theoretical way to think about canonicity is via John Rawls’s notion of reflective equilibrium.  Again, there is a Lexicon entry: Legal Theory Lexicon 069: Reflective Equilibrium.  The method of reflective equilibrium begins with our current set of  beliefs–our moral theories, the moral principles we accept, and our judgments about particular cases.  We look for contradictions and inconsistencies and then revise.  These revisions might operate at the level of particulars–we might change our mind about a particular case (real or hypothetical) because it seems inconsistent with a general principle.  Or the revisions might go the other way.  We might discover that a moral theory or principle that seemed correct is inconsistent with firmly held beliefs about particular cases.  By working back and forth, between and among our beliefs at various levels of generality and particularity, we might eventually reach a state in which all or almost all of our moral beliefs were consistent and mutually supporting–in other words, a state of reflective equilibrium.

    Canonical cases express our strong intuitions about cases that are rightly decided.  When we construct legal theories using the method of reflective equilibrium, our working hypothesis is that the theories must be consistent with and supportive of the canonical cases–and inconsistent with the anti-canonical cases.

    What Accounts for Canonical or Anti-Canonical Status?

    Why are some cases canonical and others anti-canonical?  That’s a big question, but here are some tentative ideas.

    Casebooks

    One possibility is that the canon is produced by the system of legal education.  Some cases are in every casebook–or almost every casebook.  Of course, this just pushes the story back one step.  How do cases get in the casebooks?  It might be that there is a lot of path dependency in the selection of cases: Legal Theory Lexicon 062: Path Dependency An early casebook includes a case; subsequent casebooks copy some of the case selection of the early book.  Now the case is in several books, and this leads subsequent writers to believe that they must include the case.

    Citations

    Another possibility is the canonicity is produced by the network of case citations.  Canonical cases are cited a lot, but anti-canonical cases are not frequently cited.  This hypothesis could be tested empirically.  I am a bit skeptical that citation is really doing the work–in part, because the causation could easily work the other way, with canonicity and inclusion in casebooks being the cause of the citation counts.

    Normative Evaluation

    Another idea is that cases are in the canon because they are normatively attractive and that anti-canonical cases are those that are especially bad from the normative point of view.  There is surely something to this idea.  It seems quite likely that Brown is in the canon because it is viewed as morally right and that Plessy is in the anti-canon because it is morally wrong.  But this may be a necessary but not sufficient condition.  There are many morally attractive cases that are not canonical, and many very bad cases that are mostly forgotten.

    Narratives

    Another promising idea is that canonical status is conferred by narratives–stories that are told about the law.  Brown is in the canon because it is part of a constitutional narrative of the progress of justice.  Plessy is in the anti-canon because it is part of a narrative about the subversion of Reconstruction and the triumph of racism.  Narratives are influenced by politics and ideology.  The dominant constitutional narrative was surely changed by the New Deal in one way, but then changed again by the Reagan Revolution.  There is a Lexicon entry on narrative in legal theory: Legal Theory Lexicon 080: Narrative and Normativity.

    Multiple Pathways to the Canon and Anti-Canon

    Of course, it may well be the case that there are multiple pathways and complex causes.  The canon may in part be a product of historical accidental, while it is, at the same time, also constructed by historical narratives and the citation practices of the Supreme Court.  Each of these causes may influence the others.

    Moving In and Out of the Canon and Anti-Canon

    One of the most interesting questions about canonicity is whether it is possible for cases to change their canonical or anti-canonical status.  Lochner is currently an anti-canonical case, but it is at least imaginable that it might one day be moved out of the anti-canon.

    To the extent that narratives shape canonicity, it may well be the case that new narratives can move cases in or out of the canon or anti-canon.  For example, many important cases occurred during era when racism, colonialism, sexism, and other negative forces played a role in shaping the decisions of the Supreme Court.  If a formerly neutral case is recast by a debunking narrative, it might be moved to anti-canonical status.  Likewise, a case that had seemed unimportant might be moved into the canon by a vindicating narrative.

    Skepticism About the Canon and Anti-Canon

    The discussion so far has taken canonicity for granted, but it could be argued that canonicity should not have normative force.  The normative status of a case might be based on strong intuitions.  If those intuitions are supported by reflective equilibrium, then they can become “considered judgments,” to use Rawls’s phrase.  But the notion that our judgments about cases are unquestionable seems suspicious.  It is one thing to say, that our belief that Brown was correct is strongly supported by reason.  It is quite a different thing to say that our evaluation of Brown cannot be questioned or subject to reasoned evaluation.  The appeal to canonical cases as a matter of rhetoric and persuasion is one thing; arguing from canonical cases may be effective.  But the use of canonical cases to put an end to argument and to avoid the engagement of reason is something quite different.  The very fact that the canon changes over time suggests that the questioning of canonical cases is a legitimate move in legal theory.

    Sometimes, a canonical case is used as a conversation stopper.  Someone argues, “Your theory is inconsistent with Brown v. Board.  Game over.  You lose.”  In this crude form, the argument from canonical cases is not a very good argument.  As stated, there really isn’t even a reasoned argument at all, but rather, it is a rhetorical move.  But this does not mean that there isn’t a better version of the argument.  “Your theory is inconsistent with Brown v. Board.  There is a widely shared and deeply held belief that Brown was rightly decided.  The burden of persuasion is on you to explain why your theory is correct, despite this powerful evidence to the contrary.”

    Theory Dependent Canonical Status

    Another perspective on the idea of canonicity is provided by introducing the possibility that canonicity is theory dependent.  That is, the obvious correctness or incorrectness of a particular decision is relative to a normative legal theory.  For example, if decision is constitutional, the relevant normative theories would include originalism and living constitutionalism, in their various forms.  Brown v. Board might be a canonical case for living constitutionalists, but the question whether it is correct might be less clear from an originalist perspective–even if most originalist believe that Brown was correctly decided.

    Once the notion that canonical status is theory dependent is introduced, it seems hard to resist.  Canonicity and anti-canonicity are judgments that must be made from some normative perspective.  If, at the end of the day, a case that once seemed canonical turns out to be inconsistent with the dominant normative theory, it seems highly unlikely that it will retain its status as unquestionably correct.  Seen in this light, the prominence of the canonical cases argument in constitutional theory might be seen as a symptom of the rise of originalism and the decline of living constitutionalism.  New Deal decisions like Wickard v. Filburn seemed unquestionably correct at the height of living constitutionalism during the late Warren Court and early Burger Court eras, but after the rise of originalism in the 1980s, these decisions seem questionable, even if the Court is unlikely to overturn them anytime soon.

    Conclusion

    There is much more to be said about canonical cases, but I hope this Lexicon entry has gotten you started.  There is quite a literature on this topic, but the bibliography provides you an entry point.  I especially recommend Jamal Green’s The Anticanon and Balkin and Levinson’s The Canons of Constitutional Law.

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    Bibliography

    • Jack M. Balkin, “Wrong the Day It Was Decided”: Lochner and Constitutional Historicism, 85 B.U. L. Rev. 677 (2005).
    • Jack M. Balkin & Sanford Levinson, The Canons of Constitutional Law, 111 Harv. L. Rev. 963 (1998).
    • Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379 (2011).
    • Richard A. Primus, Canon, Anti-Canon, and Judicial Dissent, 48 Duke L.J. 243 (1998).
    • Lawrence B. Solum, Outcome Reasons and Process Reasons in Normative Constitutional Theory, 172 U. Pa. L. Rev. 913 (2024).
    • Cass R. Sunstein, In Defense of Liberal Education, 43 J. Legal Educ. 22 (1993).

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    Legal Theory Lexicon 085: Canonical and Anti-Canonical Cases

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  • Legal Theory Lexicon 084: Corpus Linguistics

    By Lawrence B. Solum

    Introduction

    Law students quickly learn that the interpretation of legal texts is an important component of legal practice.  Legal disputes frequently turn on the meaning of a contract, will, rule, regulation, statute, or constitutional provision.  How do we determine the meaning of legal texts?  One possibility is that judges could consult their linguistic intuitions.  Another possibility is the use of dictionaries.  Recently, however, lawyers, judges, and legal scholars have discovered a data-driven approach to ascertaining the semantic meaning of disputed language.  This technique, called “corpus linguistics,” has already been used by courts and plays an increasingly prominent role in legal scholarship.  This entry in the Legal Theory Lexicon provides a basic introduction to corpus linguistics.  As always, the Lexicon is aimed at law students with an interest in legal theory.

    Situating Corpus Linguistics

    Why has corpus linguistics become important in contemporary legal theory and practice?  The answer to that question is complicated.  One important impetus is rooted in the revival of formalism in general legal theory: that revival is reflected in the developments in the law and theory of both statutory and constitutional interpretation.  Statutory interpretation in the 1960s and 1970s was dominated by approaches that emphasized legislative intent and statutory purpose, but in the last three decades, textualism (or “plain meaning textualism”) has been on the ascendance.  Similarly, the living constitutionalism once held hegemonic sway over the realm of constitutional interpretation, but in recent years, originalism has become increasingly important in both the academy and the courts.

    The turn to textualism and originalism is based in part on a recognition of the importance of two theoretical distinctions.  The first distinction is between “communicative content” and “legal content.”  Legal texts communicate content to readers: the communicative content of a text is roughly what we call the “linguistic meaning” of the text.  But operative legal texts also create “legal content.”  For example, constitutional provisions give rise to doctrines of constitutional law.  These legal rules may be direct translations of the linguistic meaning of the text, but sometimes the legal content can be significantly different from the communicative content: the First Amendment to the United States Constitution begins “Congress shall pass no law,” but the legal doctrines that implement the freedoms of speech and press apply to judicial and executive action.

    Closely related to the distinction between communicative content and legal content is the interpretation-construction distinction.  When this distinction is made, the meaning of “interpretation” is the discovery of the communicative content, whereas “construction” means the determination of legal effect.  One important component of communicative content is “conventional semantic meaning”–the meaning that assigned to words and phrases by patterns of usage.  Dictionary definitions, if they are accurate, report conventional semantic meanings.

    During the period when living constitutionalism and purposivism were the dominant approaches to the interpretation and construction of statutes, the precise linguistic meaning of statutory and constitutional provisions was relatively unimportant.  Because courts did not consider themselves bound by the meaning of the words and phrases, fine distinctions about meaning were much less important than the identification of the purposes and values that would determine the outcome of constitutional and statutory disputes.  But with the turn to formalist approaches like originalism and textualism, questions of meaning became significantly more important.

    One approach to conventional semantic meanings relies on linguistic intuitions and dictionary definitions.  But this method has important limitations.  Linguistic intuitions are not infallible, and they may be affected by motivated reasoning.  Dictionary definitions are based on limited data collection and subjective judgments by the lexicographers who compile the dictionaries.  This raises the question whether there are better, more accurate, and more objective approaches.

    The gradual ascent in the importance of the linguistic meaning of legal texts occurred at roughly the same time as another important development in the legal academy–the rise of interdisciplinary approaches in general and of empirical legal studies in particular.  This focus on empirical and interdisciplinary methods led legal scholars (especially those with training in linguistics and the philosophy of language) to corpus linguistics–a data driven approach to linguistic meaning.

    In sum, the turn to corpus linguistics in law is (at least in part) a result of the new emphasis on the meaning of legal texts (formalism) and the turn to interdisciplinary methods (empirical legal studies and linguistics).

    How Does Corpus Linguistics Work?

    Corpus linguistics begins with data sets, singular “corpus” or plural “corpora.”  These data can be very large–with millions or even billions of words.  For example, the Corpus of Contemporary American English (COCA) consists of approximately 520 million words.  News on the Web (NOW) consists of more than 5.21 billion words.

    Corpus lexicography uses these datasets to investigate the meaning of words and phrases.  Whereas traditional dictionary lexicography relied on researchers compiling instances of usage by reading various sources, the corpus approach allows random sampling from large databases with blind coding by multiple coders.

    A complete description of the methods of corpus lexicography is beyond the scope of this brief Lexicon entry, but there are two search techniques that can be described briefly.  The first of these is the Key-word-in-context (or KWIC) search.  This method is simple: a corpus is searched for the occurrence of a string (a word or phrase) and reports back the context in which the string occurs.  The individual instances can then be coded for meaning.  The result will be a set of meanings and data about the frequency of the meanings with the sample.  The second method involves a search for the collocates of a word or phrase: for example, the word “bank” might have collocates like “river,” “shady,” “deposit,” and “ATM.”  Collocates may help to disambiguate a word like “bank” that has multiple meanings.

    Application of Corpus Linguistics to Legal Interpretation

    How can the techniques of corpus lexicography be applied to the interpretation of legal texts?  The primary role of the corpus approach is the identification of conventional semantic meanings for words and phrases.  This use of corpus linguistics was pioneered by Associate Chief Justice Thomas Lee of the Utah Supreme Court.  In State v. Rasabout, the defendant was convicted of violating a Utah statute that made it a crime to “discharge any kind of dangerous weapon or firearm . . . from an automobile . . . ; from, upon, or across any highway; . . . or . . . within 600 feet of . . . a house.”  The word “discharge” has two meanings relevant to firearms: one meaning is roughly “to shoot” and another is “to unload.”  The former meaning would result in a violation for each shot fired, but the second would result in only one violation for emptying all of the bullets contained in the firearm.  In a concurring opinion, Justice Lee used a COCA search to demonstrate that the sense of discharge that applies to a single shot is much more common than the alternative sense.  Justice Lee reasoned that this frequency data supported an inference that the ordinary or plain meaning of the statute supported a conviction for multiple violations of the statute.

    The use of corpus lexicography may be even more important in the case of constitutional or statutory provisions that were drafted long ago, for example, the provisions of the United States Constitution drafted at the Philadelphia Convention were written using the linguistic conventions of the late eighteenth century–well more than two centuries ago.  Because of linguistic drift, the meaning of some of the words and phrases may have changed over time.  For example, the phrase “domestic violence” now refers to violence within a family such as spouse abuse, but in the late eighteenth century it referred to activities like riots and insurrections within the boundaries of a state.  By using date restricted searches from corpora that include usage in the late eighteenth century, corpus linguistics can be used to identify the range of semantic meanings during the time the unamended constitution was drafted.

    Limitations on Corpus Linguistics

    Corpus lexicography can identify the set of conventional semantic meanings that were available to the drafters of a contract, will, rule, regulation, statute or constitutional provision, but there are important limitations, including the following:

    • Technical meanings: Many legal texts employ “terms of art” or technical language, including, of course, the specialized usages of lawyers.  Coding a random sample of usages from a general-purpose corpus is not a good technique for sorting out technical usages, but using a corpus that is comprised of legal texts from the relevant community of lawyers would enable identification of the relevant range of technical meanings.
    • Limits on the Probative Value of Frequency Data:  Frequency data may be useful in identifying the “ordinary” or “plain” meaning of a legal text–especially if one sense of an ambiguous word or phrase is overwhelmingly predominant.  But where there are multiple senses of a word or phrase, frequency data, although relevant, should be supplemented by context, which often will reveal which sense was communicated to the intended readership.
    • The Special Problem of Modulation:  Corpus approaches may not be suited to the identification of what are called “modulations”–the use of a word in a new sense.  For example, the Recess Appointments Clause may have used the word “recess” in a new modulated sense, in which the recess of the Senate is defined in contrast to the “session” of the Senate.  This modulated sense of the word recess would apply to “intersession recesses” but would not apply to other breaks (including short lunch breaks) that are within the literal meaning of the word “recess.”
    • Semantics versus Pragmatics (especially contextual enrichment):  Corpus lexicography has an important role to play in determining the semantic meaning of legal texts, but the bare semantic meaning of a text is not necessarily equivalent to the text’s full communicative content.  One of the reasons that communicative content is richer than semantic content (literal meaning) is that authors can convey additional meaning through what are called “contextual enrichments.”  For example, the philosopher of language H.P. Grice identified the phenomenon of “implicature,” whereby an author can communicate content without stating it.  Grice’s famous example is a letter of recommendation: the letter states that the candidate was punctual and attended class regularly.  The semantic content is mildly positive, but in the context of a recommendation, this is “damning with faint praise” and communicates the message that the candidate is not qualified for the position.

    Because of these limitations, corpus linguistics does not provide a complete method of statutory or constitutional interpretation.  For example, in the case of the United States Constitution, the method of corpus linguistics could be combined with study of the constitutional record and immersion of the linguistic world of the period in which a given constitutional provision was written.

    Conclusion

    The introduction of a new methodology to legal theory is a rare event, but corpus linguistics is one of the black swans.  It is still early days, but the use of corpus methods has already begun in earnest–both in the courts and the academy.  The Bibliography provides many of the key sources in a literature that still can easily be read in just a few days.

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    Bibliography

    Cases

    • State v. Rasabout, 356 P.3d 1258 (Utah 2015).
    • People v. Harris, 885 N.W.2d 832, 838–39 (Mich. 2016).

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  • Legal Theory Lexicon 083: Normativity, Morality, & Ethics

    By Lawrence B. Solum

    Introduction

    Normative legal theory is concerned with reasons for legal actions, including reasons for adopting legislation or for judge-made law.  This very brief entry in the Legal Theory Lexicon attempts to sort out some of the terminology by discussing the terms “normativity,” “morality,” and “ethics” in their various forms and meanings.  As always, the Lexicon is aimed at law students with an interest in legal theory.

    A Word About Definitions and Usage

    In ordinary English, we frequently use words like “normative,” “moral,” and “ethical” in loose and imprecise ways.  Sometimes, these terms are used interchangeably, and so one could say that a “normative argument” is an “ethical argument” and that both of those phrases are equivalent to “moral argument.”  There is nothing wrong with these usages–as long as they are clear.  But we may have a need for more precise terminology that allows us to make distinctions between different kinds of reasons for action.  In the discussion that follows, I will lay out a proposed set of stipulated technical definitions for these terms.

    Normative

    Let’s begin with the term “normative.”  The Merriam Webster online dictionary offers the following as one definition: “of, relating to, or determining norms or standards” and “norm” is variously defined as “an authoritative standard” or “a principle of right action binding upon the members of a group and serving to guide, control, or regulate proper and acceptable behavior.”

    These definitions capture standard meanings of “normative,” but there is another sense of this term that is important for legal theory.  “Normative” can be used to refer to reasons for action of all kinds, including laws, rules of etiquette, social norms, and reasons of ethics and morality.  This broad sense of normative allows us to draw an important contrast between “normative” and “positive” statements or propositions.  And it also allows us to identify an important common characteristics of legal norms, social norms, and moral norms–all of which give reasons for action.

    Moral

    Using this terminology, we can then draw an important distinction between legal norms, on the one hand, and moral norms, on the other.  Legal norms purport to give reasons for action.  That some action is against the law is a kind of reason not to engage in that action.  Moral norms also give reasons for action, but most accounts of morality insist that moral reasons trump all other kinds of reasons.  Thus, if an action is morally forbidden but legally required, then all things considered, one should not engage in the action.  Of course, the fact that an action is legally forbidden or required is a fact that morality can take into account; for example, the fact that an action would trigger legal punishment might be relevant to the question whether the action is morally required.

    Another way to see the difference between moral norms and legal norms is by applying moral theories to the law.  A moral theory like consequentialism provides a standard for judging the law–for determining whether a particular law is good or whether there are reasons to change the law.  Deontological theories and aretaic (virtue-centered) theories perform a similar role.

    Ethics

    The word “moral” was coined by Cicero to translate the Greek word that is the ancestor of our word “ethical” into Latin.  And the words “ethics” and “morality” are frequently used as synonyms.  Some writers distinguish the two in ways that might be useful to legal theorists.  For example, we might use the word “ethics” to refer to the normative standards that apply to some specific groups.  Thus, we might distinguish “legal ethics” or “medical ethics” from the all-things-considered moral obligations of lawyers and doctors.

    Unfortunately, the terms are used to mark other distinctions as well.  Sometimes “morality” is used to refer to the moral norms of a particular community–as opposed to “ethics” understood as the objectively correct normative standards that have universal application.  But sometimes this relationship is flipped, with “ethics” used to refer to community-relative standards and “morality” used for objectively-valid universal standards.

    Avoiding Confusion Via Stipulation

    Because of the variations in usage, legal theorists can only achieve clarity in their usage of “normativity,” “morality,” and “ethics” by stipulating definitions.  Once the stipulations are in place, readers will be able to clearly distinguish the way in which the terms are being employed.

    If I might be permitted to offer a recommendation, I would suggest that “normative” should generally be used by legal theorists in its general sense that encompasses legal norms, social norms, and moral norms.  My suggestion is to use the word “morality” to refer to the kind of all-things-considered reasons that general moral theories (such as consequentialism) purport to offer. I have no particular recommendation for use of the term “ethics,” except to note that its use in the phrase “professional ethics” is standard.

    Conclusion

    This entry in the Legal Theory Lexicon introduced some of the terminological difficulties that can attend usage of the terms “normativity,” “morality,” and “ethics” by legal theorists.  These terms are frequently used in imprecise ways that can generate confusion!  But the solution is simple: stipulate!

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    Link to the Most Recent Version of this Lexicon Entry

    Legal Theory Lexicon 083: Normativity, Morality, & Ethics

    (Last updated on November 2, 2025.)

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