Publication Date
2010
Publication Title
Public Law & Legal Theory
Abstract
Many of us engage in debates, sometimes intense debates, over the proper method of constitutional interpretation for judges. This paper offers six reasons to believe that these debates involve low stakes, in the sense that the choice among competing methods will not determine outcomes in a significant number of important cases. These reasons involve mainstream constraints, overlapping results, indeterminate results, intolerable results, interpretation without decision, and unimportant constitutional decisions. After a suitably brief investigation of theoretical and experimental resources on low-stakes decision making, the paper suggests how debates over constitutional interpretation by judges might proceed if more people become convinced that the stakes are indeed low. Three venues of debate are considered—academia, the judicial appointments process, and judiciaries—along with stakes beyond case outcomes.
Number
318
Recommended Citation
Adam Samaha, " Low Stakes and Constitutional Interpretation" (University of Chicago Public Law & Legal Theory Working Paper No. 318, 2010).
Additional Information
Chicago Unbound includes both works in progress and final versions of articles. Please be aware that a more recent version of this article may be available on Chicago Unbound, SSRN or elsewhere.