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The Nature of Legal InterpretationWhat Jurists Can Learn about Legal Interpretation from Linguistics and Philosophy$
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Brian G. Slocum

Print publication date: 2017

Print ISBN-13: 9780226445021

Published to Chicago Scholarship Online: January 2018

DOI: 10.7208/chicago/9780226445168.001.0001

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Comments on Rosen

Comments on Rosen

Chapter:
(p.272) Response to Chapter Ten Comments on Rosen
Source:
The Nature of Legal Interpretation
Author(s):

Scott Soames

Publisher:
University of Chicago Press
DOI:10.7208/chicago/9780226445168.003.0011

In this chapter, the author makes some remarks on Gideon Rosen’s paper, “Deferentialism and Adjudication,” which raises issues useful for precisifying Deferentialism. Of course, Deferentialism tells us that many cases have been wrongly decided and that those mistakes have changed the content of the law. The actions of authoritative actors, including judges and justices, change law, whether or not the changes are justified. Moreover, not all judicial changes, justified or not, are created equal. Sometimes originally unjustified changes become so entrenched and widely embedded in our system that it becomes virtually impossible, and undesirable, to wholly reverse them. This is one way that the legal contents of constitutional provisions change over time. Still, changes due to judicial error retain a degree of vulnerability. They can be challenged by showing both (i) that an earlier decision failed to respect constitutional content and rationale, while a different resolution that is now possible does a better job, and (ii) that the new resolution does not seriously disrupt the existing body of law, constitutional or otherwise.

Keywords:   Gideon Rosen, originalism, deferentialism, legal interpretation, constitutional interpretation, law and language, statutory interpretation

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