Public Law & Legal Theory
To evaluate theories of interpretation, it is necessary to focus on institutional considerations—to ask how actual judges would use any proposed approach, and to investigate the possibility that an otherwise appealing approach will have unfortunate dynamic effects on private and public institutions. Notwithstanding this point, blindness to institutional considerations is pervasive. It can be found in the work of early commentators on interpretation, including that of Jeremy Bentham; in the influential work of H.L.A. Hart, Ronald Dworkin, and Henry Hart and Albert Sacks; and in much contemporary writing. This blindness to institutional considerations creates serious problems for the underlying theories. The problems are illustrated with discussions of many disputed issues, including the virtues and vices of formalism; the current debate over whether administrative agencies should have greater interpretive freedom than courts; and the roles of text, philosophy, translation, and tradition in constitutional law. In many cases, an understanding of institutional capacities and dynamic effects should enable diverse people, with different views about ideal legal interpretation, to agree on what actual legal interpretation should entail.
Cass R. Sunstein & Adrian Vermeule, "Interpretation and Institutions," University of Chicago Public Law & Legal Theory Working Paper, No. 28 (2002).