78 Pages Posted: 31 Aug 2007 Last revised: 4 Oct 2013
Date Written: June 2008
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, first, that judges not only have ideological preferences but also want to write plausible opinions. Second, I assume that every method of statutory or constitutional interpretation has a “most plausible point” along a spectrum of possible decisions in a given case. As a result, if a judge decides to use any particular interpretive method, that method will pull him towards its “most plausible point,” possibly 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), among other things, allows him to stay as close as possible to his favored outcome. Thus, any given method is chosen only by judges whose ideal points, roughly speaking, are not too distant from that method's most plausible point. This behavior creates a selection bias. An interpretive method's political valence under a regime of free interpretive choice thus differs systematically from what it would look like if that method were mandatory. As a result, one might favor mandating an interpretive method even though one is politically closer to the current practitioners of a different method.
A judge can choose not only which interpretive method to use but also whether to use the same method from case to case. This Article argues that an individual judge's choice of interpretive method does not usually substantially affect the methods that other judges use. Therefore, even though ideologically motivated judges (or litigation groups) might want to make the method they prefer in most cases mandatory for everyone, it can often be rational for these judges to deviate from that preferred method in instances where a different method would produce a more appealing outcome.
Keywords: statutory interpretation, constitutional interpretation, selection bias, positive political theory, judges, public choice
JEL Classification: D72, D78, K23, K40, K49
Suggested Citation: Suggested Citation
Volokh, Alexander, Choosing Interpretive Methods: A Positive Theory of Judges and Everyone Else (June 2008). 83 NYU L. Rev. 769 (2008). Available at SSRN: https://ssrn.com/abstract=1009280