Legal Reasoning From the Top Down and From the Bottom Up : The Question of Unenumerated Constitutional Rights

I want to approach the subject of my debate with Professor Dworkin-unenumerated constitutional rights-by distinguishing two types of legal reasoning: what I shall call reasoning from the top down and reasoning from the bottom up. In top-down reasoning, the judge or other legal analyst invents or adopts a theory about an area of law-perhaps about all law-and uses it to organize, criticize, accept or reject, explain or explain away, distinguish or amplify the existing decisions to make them conform to the theory and generate an outcome in each new case as it arises that will be consistent with the theory and with the canonical cases, that is, the cases accepted as authoritative within the theory. The theory need not be, perhaps never can be, drawn "from" law; it surely need not be articulated in lawyers' jargon. In bottom-up reasoning, which encompasses such familiar lawyers' techniques as "plain meaning" and "reasoning by analogy," one starts with the words of a statute or other enactment, or with a case or a mass of cases, and moves from there-but doesn't move far, as we shall see. The topdowner and the bottom-upper do not meet. I am associated with several top-down theories. One, which is primarily positive (descriptive), is that the common law is best understood on the "as if" assumption that judges try to maximize the wealth of society. Another, primarily normative, is that judges should interpret the antitrust statutes to make them conform to the dictates of wealth maximization. In the development of the lat-