When Is Legal Methodology Binding?

Abstract

Common-law interpretive methodologies are mostly non-binding, but some interpretive methodologies are seen as binding precedent. This Article offers an explanation for this state of affairs. Whereas the extant scholarship on common-law interpretive methodologies offers descriptive accounts (often assuming that common-law methodologies are per se non-binding) and normative analysis, this Article fills a gap in the literature by providing a realist explanation for the legal landscape of binding interpretive methodologies. It identifies whether a methodology is rule-like, and whether it increases judicial legitimacy and/or court power as “pull factors” — that is, incentives that might attract judges to recognize interpretive methodologies as binding. It also identifies high stakes (i.e., broad methodological scope) and constitutional argumentation over methodologies as “push factors” — that is, obstacles to finding methodologies to be binding. This approach explains the current landscape of interpretive methodologies, and also enables predictions about the stability of existing binding interpretive methodologies.

Keywords: legislation & regulation, statutory interpretation, constitutional interpretation, constitutional law, precedent

JEL Classification: K10, K23, K30