I’m delighted to report that my new article, Choosing Interpretive Methods: A Positive Theory of Judges and Everyone Else, is going to be published in the June 2008 issue of the 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 here.