Public Law & Legal Theory
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.
Adam Samaha, " Low Stakes and Constitutional Interpretation," University of Chicago Public Law & Legal Theory Working Paper, No. 318 (2010).