Objectivity and Democracy

Authors

David K. Millon, Washington and Lee University School of LawFollow

Document Type

Article

Publication Title

New York University Law Review

Publication Date

1992

Abstract

As a response to skepticism about the possibility of objectivity in legal decisionmaking conventionalism posits the shared understandings of the legal profession (about method and the implications of doctrine) as the source of constraint in legal interpretation. In this Article, Professor Millon argues that conventionalism's proponents have failed to offer an adequate account of interpretive constraint, but that conventionalism properly understood can nevertheless provide a useful perspective on the possibility of objectivity in legal interpretation. This account locates interpretive constraint in the practices of the legal profession as a whole, acting as an "interpretive community" or constituting a distinctive "language-game" thereby structuring the thinking of individual interpreterm However, because conventionalism suggests that the legal profession in effect determines the law's meaning through collective interpretive practices, and because the profession is not accountable to the broader American public its interpretive power appears to offend basic democratic principles. After evaluating some responses to conventionalism 's anti-democratic implications, Professor Millon concludes by considering how legal interpretation might be democratized. focussing especially on expanding diversity within the legal profession.

Comments

Posted with permission from the copyright owner.

Recommended Citation

David K. Millon, Objectivity and Democracy, 67 N.Y.U. L. Rev. 1 (1992).