A Comedy of Errors or, How I Learned to Stop Worrying and Love Sensibility‐Invariantism about ‘Funny’

In this article, I argue that sensibility‐invariantism about ‘funny’ is defensible, not just as a descriptive hypothesis, but, as a normative position as well. What I aim to do is to make the realist commitments of the sensibility‐invariantist out to be much more tenable than one might initially think them to be. I do so by addressing the two major sources of discontent with sensibility‐invariantism: the observation that discourse about comedy exhibits significant divergence in judgment, and the fact that disagreements about comedy, unlike disagreements about, say, geography, often strike us as fundamentally intractable

Who Cares How Congress Really Works?

Legislative intent is a fiction. Courts and scholars accept this, by and large. As this Article shows, however, both are confused as to why legislative intent is a fiction and as to what this fiction entails. This Article first argues that the standard explanation—that Congress is a “they,” not an “it”—rests on an unduly simple conception of shared agency. Drawing from contemporary scholarship in the philosophy of action, it contends that Congress has no collective intention, not because of difficulties in aggregating the intentions of individual members, but rather because Congress lacks the sort of delegatory structure that one finds in, for example, a corporation. Second, this Article argues that—contrary to a recent, influential wave of scholarship—the fictional nature of legislative intent leaves interpreters of legislation with little reason to care about the fine details of legislative process. It is a platitude that legislative text must be interpreted in “context.” Context, however, consists of information salient to author and audience alike. This basic insight from the philosophy of language necessitates what this Article calls the “conversation” model of interpretation. Legislation is written by legislators for those tasked with administering the law—for example, courts and agencies—and those on whom the law operates—for example, citizens. Almost any interpreter thus occupies the position of conversational participant, reading legislative text in a context consisting of information salient both to members of Congress and to citizens (as well as agencies, courts, etc.). The conversation model displaces what this Article calls the “eavesdropping” model of interpretation—the prevailing paradigm among both courts and scholars. When asking what sources of information an interpreter should consider, courts and scholars have reliably privileged the epistemic position of members of Congress. The result is that legislation is erroneously treated as having been written by legislators exclusively for other legislators. This tendency is plainest in recent scholarship urging greater attention to legislative process—the nuances of which are of high salience to legislators but plainly not to citizens

High-Stakes Interpretation

Courts look at text differently in high-stakes cases. Statutory language that would otherwise be ‘unambiguous’ suddenly becomes ‘less than clear.’ This, in turn, frees up courts to sidestep constitutional conflicts, avoid dramatic policy changes, and, more generally, get around undesirable outcomes. The standard account of this behavior is that courts’ failure to recognize ‘clear’ or ‘unambiguous’ meanings in such cases is motivated or disingenuous, and, at best, justified on instrumentalist grounds. This Article challenges that account. It argues instead that, as a purely epistemic matter, it is more difficult to ‘know’ what a text means—and, hence, more difficult to regard that text as ‘clear’ or ‘unambiguous’—when the practical stakes are raised. For that reason, this Article insists, it is entirely rational for courts to be more cautious when interpreting text in high-stakes cases than they would be if the stakes were low. Drawing on contemporary work in philosophy of language and epistemology, this Article grounds its argument in the observation that ordinary speakers’ willingness to attribute ‘knowledge’ or ‘clarity’ decreases as the practical stakes increase. And while the technical explanations of this phenomenon vary, they all reflect a basic insight: that one needs greater epistemic justification to act on some premise the higher the practical stakes. To illustrate, this Article applies the above insight to various interpretive settings. Considering judicial review, for example, this Article explains that it makes good epistemic sense for a court to wait until it is really sure that a statute means what it thinks it means before taking the extraordinary step of invalidating that statute as unconstitutional. Similarly, this Article urges that it is just sound epistemic practice for a court is to construe a statute in a way that would unsettle an existing implementation regime only if it is especially well justified in its reading of the statutory text, i.e. only if it really knows that its reading is correct. This Article thus offers at least a partial justification of courts’ seemingly loose treatment of statutory text when the practical stakes are raised. And it does so, in contrast to prior scholarly efforts, by appeal to reasons that both formalists and instrumentalists can accept

High-Stakes Interpretation

Courts look at text differently in high-stakes cases. Statutory language that would otherwise be “unambiguous” suddenly becomes “less than clear.” This, in turn, frees up courts to sidestep constitutional conflicts, avoid dramatic policy changes, and, more generally, get around undesirable outcomes. The standard account of this behavior is that courts’ failure to recognize “clear” or “unambiguous” meanings in such cases is motivated or disingenuous, and, at best, justified on instrumentalist grounds. This Article challenges that account. It argues instead that, as a purely epistemic matter, it is more difficult to “know” what a text means—and, hence, more difficult to regard that text as “clear” or “unambiguous”—when the practical stakes are raised. For that reason, this Article insists, it is entirely rational for courts to be more cautious when interpreting text in high-stakes cases than they would be if the stakes were low. Drawing on contemporary work in philosophy of language and epistemology, this Article grounds its argument in the observation that ordinary speakers’ willingness to attribute “knowledge” or “clarity” decreases as the practical stakes increase. And while the technical explanations of this phenomenon vary, they all reflect a basic insight: that one needs greater epistemic justification to act on some premise the higher the practical stakes. To illustrate, this Article applies the above insight to various interpretive settings. Considering judicial review, for example, this Article explains that it makes good epistemic sense for a court to wait until it is really sure that a statute means what it thinks it means before taking the extraordinary step of invalidating that statute as unconstitutional. Similarly, this Article urges that it is just sound epistemic practice for a court is to construe a statute in a way that would unsettle an existing implementation regime only if it is especially well justified in its reading of the statutory text—that is, only if it really knows that its reading is correct. This Article thus offers at least a partial justification of courts’ seemingly loose treatment of statutory text when the practical stakes are raised. And it does so, in contrast to prior scholarly efforts, by appeal to reasons that both formalists and instrumentalists can accept

\u3ci\u3eMead\u3c/i\u3e as (Mostly) Moot: Predictive Interpretation in Administrative Law

In National Cable & Telecommunications Ass’n v. Brand X Internet Services, the Supreme Court explained that, within the domain of unclear agency-administered statutes, a federal court is subordinate to an administering agency. When an administering agency speaks authoritatively, federal court practice reflects this. When an agency speaks only informally, however, federal court practice does not. Specifically, when construing an agency-administered statute absent an authoritative agency interpretation, a federal court errs, given its subordinate status, when it exercises independent judgment concerning what interpretation is best. Instead, that subordinate status requires a court to predict what authoritative interpretation the administering agency would adopt—just as a federal court would predict how a state’s highest court would answer some unsettled question of state law. Adhering to this predictive approach requires in turn that a court assign significant—in most cases dispositive—evidentiary weight to agency interpretations contained within certain legally nonbinding instruments, in particular legal briefs. This is because the non-authoritative interpretations contained in such instruments will most often constitute the best available evidence concerning what an administering agency would say if it were to speak authoritatively. This conclusion is surprising given the central holding of United States v. Mead Corp. that interpretations contained in nonbinding instruments are not entitled to controlling deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. What this article will suggest is that the central holding of Mead ought to be mostly moot since, even where controlling deference is not owed de jure, it is most often owed de facto

The Ghost of John Hart Ely

The ghost of John Hart Ely haunts the American liberal constitutional imagination. Despite the failure long ago of any progressive constitutional vision in an increasingly conservative Supreme Court, Ely’s conjectures about the superiority of judges relative to legislatures in the protection of minorities and the policing of the democratic process remain second nature. Indeed, they have been credible enough among liberals to underwrite an anxious or even hostile attitude toward judicial reform. In order to exorcise Ely’s ghost and lay it to rest, this Article challenges his twin conjectures. First, the Article argues that there is little historical and no theoretical basis for the belief that courts will outperform legislatures in overcoming deeply entrenched historic discrimination against deserving minorities—even as courts act to entrench the power of undeserving ones, like the powerful and wealthy, today. Second, the Article contends that Ely’s almost complete failure to anticipate the inaction of the judiciary in policing the democratic process—except when judges assist their own ideological allies—is devastating for his theory, which depended precisely upon an empirical prediction. Ely’s conjecture about the comparative superiority of judges in policing the democratic process has proved untrue because he ignored ideological affiliation (focusing exclusively on personal self- interest) in supposing that, with their independence and life tenure, judges are less likely to act in self-dealing fashion than politicians. And the deepest reason for the ideological affiliation of judges, who often exacerbate what many take to be the worst pathologies of democratic exclusion, is that identifying what arrangements count as more rather than less democratic is itself a matter of intense ideological division. If Ely’s two conjectures fail, nothing remains to support the conclusion that judges deserve excess countermajoritarian power, leaving democracy’s shortcomings to be remedied within democratic politics— which is, in turn, the most desirable future of liberal constitutionalism

High-resolution 3D forest structure explains ecomorphological trait variation in assemblages of saproxylic beetles

Climate, topography and the 3D structure of forests are major drivers affecting local species communities. However, little is known about how the specific functional traits of saproxylic (wood-living) beetles, involved in the recycling of wood, might be affected by those environmental characteristics. Here, we combine ecological and morphological traits available for saproxylic beetles and airborne laser scanning (ALS) data in Bayesian trait-based joint species distribution models to study how traits drive the distributions of more than 230 species in temperate forests of Europe. We found that elevation (as a proxy for temperature and precipitation) and the proportion of conifers played important roles in species occurrences while variables related to habitat heterogeneity and forest complexity were less relevant. Furthermore, we showed that local communities were shaped by environmental variation primarily through their ecological traits whereas morphological traits were involved only marginally. As predicted, ecological traits influenced species' responses to forest structure, and to other environmental variation, with canopy niche, wood decay niche and host preference as the most important ecological traits. Conversely, no links between morphological traits and environmental characteristics were observed. Both models, however, revealed strong phylogenetic signal in species' response to environmental characteristics. These findings imply that alterations of climate and tree species composition have the potential to alter saproxylic beetle communities in temperate forests. Additionally, ecological traits help explain species' responses to environmental characteristics and thus should prove useful in predicting their responses to future change. It remains challenging, however, to link simple morphological traits to species' complex ecological niches. Read the free Plain Language Summary for this article on the Journal blog

Functional structure of European forest beetle communities is enhanced by rare species

Biodiverse communities have been shown to sustain high levels of multifunctionality and thus a loss of species likely negatively impacts ecosystem functions. For most taxa, however, roles of individual species are poorly known. Rare species, often most likely to go extinct, may have unique traits and functional roles. Alternatively, rare species may be functionally redundant, such that their loss would not disrupt ecosystem functions. We quantified the functional role of rare species by using captures of wood-living (saproxylic) beetle species, combined with recent databases of morphological and ecological traits, from three regions in central and northern Europe. Using a rarity index based on species' local abundance, geographic range, and habitat breadth, we used local and regional species removal simulations to examine the contributions of both the rarest and the most common beetle species to three measures of community functional structure: functional richness, functional specialization, and functional originality. Both regionally and locally, all three measures declined more rapidly when rare species were removed than under common (or random) species removal scenarios. These consistent patterns across scales and among forest types give evidence that rare species provide unique functional contributions, and their loss may disproportionately impact ecosystem functions. This implies that conservation measures targeting rare and endangered species, such as preserving intact forests with dead wood and mature trees, can provide broader ecosystem-level benefits. Experimental research linking functional structure to ecosystem processes should be prioritized to increase understanding of the functional consequences of species loss and to develop more effective conservation strategies

Traits mediate niches and co-occurrences of forest beetles in ways that differ among bioclimatic regions

Aim The aim of this study was to investigate the role of traits in beetle community assembly and test for consistency in these effects among several bioclimatic regions. We asked (1) whether traits predicted species' responses to environmental gradients (i.e. their niches), (2) whether these same traits could predict co-occurrence patterns and (3) how consistent were niches and the role of traits among study regions. Location Boreal forests in Norway and Finland, temperate forests in Germany. Taxon Wood-living (saproxylic) beetles. Methods We compiled capture records of 468 wood-living beetle species from the three regions, along with nine morphological and ecological species traits. Eight climatic and forest covariates were also collected. We used Bayesian hierarchical joint species distribution models to estimate the influence of traits and phylogeny on species' niches. We also tested for correlations between species associations and trait similarity. Finally, we compared species niches and the effects of traits among study regions. Results Traits explained some of the variability in species' niches, but their effects differed among study regions. However, substantial phylogenetic signal in species niches implies that unmeasured but phylogenetically structured traits have a stronger effect. Degree of trait similarity was correlated with species associations but depended idiosyncratically on the trait and region. Species niches were much more consistent-widespread taxa often responded similarly to an environmental gradient in each region. Main conclusions The inconsistent effects of traits among regions limit their current use in understanding beetle community assembly. Phylogenetic signal in niches, however, implies that better predictive traits can eventually be identified. Consistency of species niches among regions means niches may remain relatively stable under future climate and land use changes; this lends credibility to predictive distribution models based on future climate projections but may imply that species' scope for short-term adaptation is limited.Peer reviewe