Statutory interpretation

Abstract: Empirically oriented scholars often struggle with how to measure preferences across time and institutional contexts. This article characterizes these difficulties and provides a measurement approach that incorporates information that bridges time and institutions in a Bayesian Markov Chain Monte Carlo approach to ideal point measurement. The resulting preference estimates for presidents, senators, representatives, and Supreme Court justices are comparable across time and institutions. These estimates are useful in a variety of important research projects, including research on statutory interpretation, executive influence on the Supreme Court, and Senate influence on court appointments.

Abstract: Introduction I. Critique 1. Interpretation without Institutions 2. Dynamism and Pragmatism: A Tale of Two Nirvanas II. Reconstruction 3. The Institutional Turn 4. Judicial Capacities: A Case Study 5. Systemic Effects and Judicial Coordination III. Applications 6. Judging under Uncertainty 7. Statutory Interpretation 8. Judicial Review and Constitutional Interpretation Conclusion: Interim Interpretive Theory Notes Index

Abstract: We live in a time of widespread dissatisfaction with the legislative outcomes generated by the political process.' Too often the process seems to serve only the purely private interests of special interest groups at the expense of the broader public interests it was ostensibly designed to serve. While the current distrust of government represents a major shift away from the dominant public perception of \"government as helper ' 2 that existed from the time of the New Deal until the present decade, the current attitude is not new by any means. As Professor Sunstein has observed, \"[t]he problem of faction has been a central concern of constitutional law and theory since the time of the American Revolution.\" In fact, a basic justification offered by the framers for their new Constitution centered around its usefulness in controlling interest groups.4 Academics, however, have only recently applied the tools of

Abstract: In the theory of constitutional and statutory interpretation, dynamic arguments point to the beneficial effects on legislative behavior that will result if "judges" or "courts" adopt a particular approach to interpretation. In this paper I claim that such arguments are conceptually confused, and thus do not count as valid arguments at all. Dynamic arguments commit the fundamental mistake of overlooking the collective character of judicial institutions - of overlooking that the judiciary, like Congress, is a "they," not an "it." That mistake produces the critical, and erroneous, assumption that coordinated judicial adoption of some particular approach to legal interpretation is both feasible and desirable. That assumption commits two logical fallacies simultaneously. The fallacy of division arises when a claim that is true of, or justified for, a whole set is taken to apply to any particular member of the set. The fallacy of composition arises when a claim that is true of, or justified for, any particular member of a set is taken to apply to the whole set. Both fallacies infect dynamic interpretive arguments. First, the claim that a given approach would be best for the whole court or judiciary does not entail that it would be best for any given judge taken alone. The inference from the group-level claim to the individual-level claim fails if judicial coordination on a particular approach is infeasible or unlikely. Second, the claim that a particular approach is best for any given judge need not entail that it would be best for the whole court (or judiciary). If a diversity of approaches is desirable for systemic and institutional reasons, then it would be an affirmative bad for all judges to coordinate on a particular approach. To overlook the first point is to commit the division fallacy; to overlook the second is to commit the composition fallacy. The same reasoning applies from the standpoint of every judge in the system. In the language of moral philosophy, dynamic theorists have overlooked essential questions of non-ideal theory, which asks what obligations people have when others will not or cannot comply with their (identical) obligations. In the language of economics and consequentialist political theory, the interpretive theorist has overlooked essential questions of the second-best, which arise when a general or collective equilibrium cannot be attained. It is an irony of interpretive theory that so much emphasis has been given to exploring the consequences of the legislature's collective character, while inadequate attention has been paid to the same problem in judicial institutions.