On the Problem of Legal Change
Citation: 103 Geo L.J. 97 (2014)
Identifying legal change is an ordinary part of legal decisionmaking, but participants in those decisions regularly focus on different measures. A version of the problem arises when one observer points to results while another observer points to processes for generating such results. Often change can be detected on one of those dimensions and not another. This Article offers a way to think about legal change that captures process–result combinations. The Article illustrates the combination with numerous examples from ordinary life, ordinary law, and constitutional law—including particular controversies such as same-sex marriage benefits, as well as crosscutting debates over methods of interpretation.
The Article then offers explanations and implications. It examines why people might want to link results with antecedent legal processes, estimates the serious- ness of the problem this creates for measuring legal change, and evaluates fixes involving the exclusion or the aggregation of dimensions of interest. Excluding either processes or results from consideration tends to sacrifice valuable informa- tion for both empirical and normative analysis. Aggregating dimensions using a common metric probably is a more promising response, but plausible common metrics tend to drift away from a workable concept of legal change. The Article closes by raising the possibility of normative legal analysis without independent value for either legal change or status quo. Throughout, the Article draws lessons from psychology, philosophy, politics, and empirical studies.