Choosing Interpretive Methods: A Positive Theory of Judges and Everyone Else

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 a judge decides to use any particular method of statutory or constitutional interpretation, the "most plausible point" of that method will exert a pull on him, making him deviate from his own ideal point.

When a judge can choose an interpretive method, he selects the one that (taking these deviations into account) lets him stay as close as possible to his favored outcome. Thus, any given method is chosen only by judges who, roughly speaking, are "not too distant" from that method's most plausible point. This creates a selection bias. An interpretive method's distribution under a regime of free interpretive choice differs systematically from what it would look like if that method were mandatory. 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.

A judge 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, their choices usually do not substantially affect the methods other judges use; and so it can often be rational for these judges to deviate from that preferred method in those cases where they prefer a different method.

Number of Pages in PDF File: 70

Keywords: statutory interpretation, constitutional interpretation, selection bias, positive political theory, judges, public choice

JEL Classification: D72, D78, K23, K40, K49

Accepted Paper Series