Posted by Sasha Volokh:
Would love comments:
http://volokh.com/archives/archive_2007_09_09-2007_09_15.shtml#1189688131
I'm delighted to report that my new article, [1]Choosing Interpretive
Methods: A Positive Theory of Judges and Everyone Else, is going to be
published in the June 2008 issue of the [2]NYU Law Review. Here's the
abstract:
In this Article, I propose a theory of how rational, ideologically
motivated judges might choose interpretive methods, and how
rational, ideologically motivated laymen�legislators, litigation
organizations, lobbyists, scholars, and citizens�might respond. I
assume that judges not only have ideological preferences but also
(perhaps merely strategically) want to write plausible opinions. As
a result, if judges decide to use any particular method of
statutory or constitutional interpretation, the plausibility
demands of the method they use will make them deviate from their
own ideal points in the direction of the �most plausible point� of
that method.
When judges can choose their interpretive method, they select the
method that (taking these deviations into account) comes as close
as possible to their favored outcome. This creates a selection
bias, which makes interpretive methods� observed distributions
differ systematically from their true distributions. This bias
explains how one can favor mandating an interpretive method even
though one is politically closer to the current practitioners of a
different method.
Judges can also choose whether to use the same method from case to
case. I explain why, even though ideologically motivated judges (or
litigation groups) might want to make the method they prefer in
most cases mandatory for everyone, they do not personally have much
effect on whether other judges use that method, and so it is
rational for them to deviate from that preferred method in those
cases where they prefer a different method.
It's going to be quite a while before this appears in print, so
comments are welcome. The paper is available [3]here.
References
1. http://works.bepress.com/alexander_volokh/23
2. http://www.law.nyu.edu/journals/lawreview/
3. http://works.bepress.com/alexander_volokh/23
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