Building off what others have said, the one point I'm stuck on the fact that, despite what Judge Day would say, there really is no neutrality when a judge interprets case law. Just as a judge looking at statutory text might go to legislative history, a judge trying to interpret the applicability of case law to a given set of facts will inquire into the normative policy motivations of the cases and then figure out what matches her own motivations. A more practical note, how do you see this theory playing out in constitutional interpretation? This has the feeling of more of a Scala-like approach to statutory interpretation regime. If so, is there an alternative way to find the constitutional support for many of the rights we as a society consider fundamental today even though they do not appear in the text?

-- NicoGurian - 03 Apr 2015