Arguing with Friends
William Baude* & Ryan D. Doerfler**
Judges sometimes disagree about the best way to resolve a case. But the conventional wisdom is that they should not be too swayed by such disagreement and should do their best to decide the case by their own lights. An emerging critique questions this view, arguing instead for widespread humility. In the face of disagreement, the argument goes, judges should generally concede ambiguity and uncertainty in almost all contested cases.
Both positions are wrong. Drawing on the philosophical concepts of “peer disagreement” and “epistemic peerhood,” we argue for a different approach: A judge ought to give significant weight to the views of others, but only when those others share the judge’s basic methodology or interpretive outlook—i.e., only when those others are methodological “friends.” Thus textualists should hesitate before disagreeing with other textualists, and pragmatists should hesitate before disagreeing with like-minded pragmatists. Disagreement between the two camps is, by contrast, “old news” and so provides neither camp additional reason for pause.
We also suggest that judges should give weight to the views of all of their methodological friends, not just judges. And we suggest, even more tentatively, that our proposal may explain and, to some extent, justify the seemingly ideological clusters of justices on the Supreme Court. The most productive disagreements, we think, are ones that come from arguing with friends.
* Neubauer Family Assistant Professor of Law, The University of Chicago Law School.
** Assistant Professor of Law, University of Pennsylvania Law School. We have benefitted from friendly comments by Nicolas Cornell, Jonah Gelbach, Alon Harel, Daniel Hemel, Brian Hutler, David Plunkett, Eric Posner, David Pozen, Richard Re, Lawrence Solum, Asher Steinberg, Adrian Vermeule, Daniel Viehoff, and participants in workshops at the Duke University School of Law, the University of Chicago Law School, and the University of Pennsylvania Law School. Kevin Keating and Natalie Peelish provided useful research assistance, and the SNR Denton and Alumni Faculty Funds provided research support.