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Cass R. Sunstein, The Problem of Extravagant Inferences, Harv. Pub. L. Working Paper No. 23-33 (Feb. 28, 2023).


Abstract: Judges and lawyers sometimes act as if a constitutional or statutory term must, as a matter of semantics, be understood to have a particular meaning, when it could easily be understood to have another meaning, or several other meanings. When judges and lawyers act as if a legal term has a unique semantic meaning, even though it does not, they should be seen to be drawing extravagant inferences. Some constitutional provisions are treated this way; consider the idea that the vesting of executive power in a president of the United States necessarily includes the power to remove, at will, a very wide range of people who are involved in execution of the laws. Some statutory provisions are also treated this way; consider the idea that the term “air pollutant” necessarily includes greenhouse gases. Those who draw extravagant inferences might be engaged in a form of motivated reasoning; their (unarticulated) values and preferences might be responsible for the particular inferences they draw. Alternatively, they might be engaged in an unacknowledged form of Dworkinian reasoning, in which they are attempting to make the best constructive sense out of a legal term. There is a relationship between extravagant inferences and the perception of having been subject to "constitutional gaslighting."