Today, the Ad Law Reading Room generously delivers two entries. The first entry is “Does the Law Ever Run Out?,” by Charles F. Capps. The second is “Pragmatics and Textualism,” by Lawrence B. Solum.

Here is Capps’ abstract:

Although laypeople commonly believe that a judge’s job is to decide every case as the law requires, a broad consensus exists among legal scholars that the law not infrequently “runs out,” leaving the judge with no choice but to settle the parties’ dispute on extralegal grounds. That consensus is hard to square with the plausible claim that deciding even close cases by coin toss is not only morally but legally objectionable. If following all the procedures prescribed by law for deciding a case fails to lead the judge to an outcome, then it is hard to see why the judge violates her legal duties if she settles the dispute by flipping a coin.

This Article offers a tentative defense of the popular idea that the judge’s job in every case is to follow the law to an outcome. The Article examines the features of the law that allegedly cause it to run out, including permissive rules, balancing tests, vagueness, ambiguity, silence, contradictions, and uncertainty. Tentatively, the Article concludes that none of these features causes the law to run out. More confidently, it maintains that the extent, if any, to which the law runs out depends on difficult issues in the philosophy of law, language, and value—issues that parties to the consensus that the law runs out in a significant range of cases do not appear to have worked through to resolution.

When, if ever, the law runs out has several important implications: for judicial ethics, for the proper scope of Auer deference and other legal doctrines, and for adjacent scholarly debates such as the debate over the interpretation-construction distinction.

And here is Solum’s:

In theoretical linguistics the word “pragmatics” refers to the roles of context and communicative intentions in the production of meaning. Those roles include contextual disambiguation and the communication of implicit content via “pragmatic enrichment.” Textualism is sometimes characterized as the view that the meaning of statutory texts should not take context into account, but that characterization is misleading. Not only do self-identified textualists explicitly maintain that context should be considered when interpreting statutes—all good textualists must do so. Absent consideration of context, the meaning of statutory texts would be pervasively ambiguous, sparse, and incomplete. Good textualism requires pragmatics.

“Pragmatics and Textualism” investigates the role of context in statutory interpretation and construction via the articulation of Plain Meaning Textualism, a normative and conceptual theory that maintains that statutory actors should be bound by the plain meaning of a statutory text. The phrase “plain meaning” is used to name the content communicated by a statutory text to its primary intended readership by enactment and official promulgation. Plain meaning textualism is developed by exploring fundamental ideas in the philosophy of language and theoretical linguistics and then building a model of the complex, multistage process of statutory communication.

You’ll get a good amount of philosophy from both these articles (not that that’s a bad thing). You’ll also get much that is of great interest in the aftermath of Chevron’s demise and Skidmore’s resurrection.

Capps’ article defends, at least tentatively, the position that the law never runs out, even in hard cases. Whether the law might be said to run out in some subset of cases is a question that split the majority and the dissent in Loper Bright, and its answer may also inform what to make of deference doctrines, such as Auer, that are still on the books. Capps’ article is sure to provoke, and it’s packed full of information and careful argumentation. But it’s also a really engaging and fun read.

Solum’s article is a meticulous and important overview of the role that context and intention play in producing the meaning of texts. Along the way, Solum defends positions that may be surprising to some (legislative history is rightly in the textualist tool kit, provided it is used properly). Particularly of interest for our audience, Solum’s paper also demonstrates how agencies’ views may be relevant to discerning statutory meaning—a key premise behind Loper Bright’s preservation of Skidmore. (On this point, Solum draws on earlier work of his, including a piece co-authored with Cass Sunstein.) “Pragmatics and Textualism” rewards careful engagement; you will learn a ton.

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.