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The judiciary should no longer be regarded as an institution concerned with discerning transcendental truths. Instead, the principle of consent provides sufficient justification for judicial authority. Richard H. Gaskins in 'Burdens of Proof in Modern Discourse' shows how transcendental arguments-from-ignorance take the form of presumptions in legal doctrine. However, as Gaskins also suggests, the requirement for finality in the judicial process undercuts any claim that the judiciary is capable of determining transcendental truth. Decentralization of constitutional decision-making would follow from recognition of the importance of consent.

Judges should reject the use of legislative histories in statutory interpretation, but not for the reasons expounded by Justice Antonin Scalia. Scalia holds that only the statute is relevant, not related thoughts on the issue. Many judges properly prefer the 'congressional agent' interpretation method identified with Judge Learned Hand. This mode encourages the judge to envision how the legislators wanted the statute to be applied. However, judges using this method should also reject the use of legislative histories, which are infamous for their politically motivated inaccuracy.

ABSTRACT By the conventional view, case outcomes are largely the product of courts' application of law to facts. Even when courts do not generate outcomes in this manner, prevailing legal [...]

Reports indicate that Justice Stephen G. Breyer talked about the ways in which laws are made at the nation's highest court while addressing students at Lowell High School in San Francisco. Two days later a videotape cleared Breyer of claiming any extra constitutional powers to write laws but this misapprehension still provides a good occasion to examine that judges forget their place in the constitutional order by 'legislating from the bench'.