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Contribution to Book
Why Do Judges Read Statutes?
Draft, January 21 (2010)
  • Alexander Volokh
Abstract

The standard view that "statutory interpretation matters" -- that different methods can "lead to" different results -- is hard to square with the standard rational-choice account of judicial decisionmaking. Indeed, under the standard model, it is not obvious why a judge should bother to even read the statute.

I show, within the rational-choice account, how the judge can benefit from reading the statute when the preferences of legislators are uncertain. Doing so shows the judge what policy the legislators agreed to in the past, which gives him clues as to legislators' preferences today. Moreover, different assumptions about how the legislature can react to judicial decisions will alter the judge's decisionmaking.

When an override simply takes the form of a "very large penalty" for the judge, he will in general deviate from his ideal point to the median of the distribution of legislators' preferences, in an effort to avoid being penalized.

However, if an override takes the form of an actual change of policy, not all overrides are not created equal. I show that some forms of legislative override do not encourage the judge to read the law, while, surprisingly, other forms of override do encourage the judge to read the law but can actually decrease the extent to which the judge follows the law. The structure of a legislative override thus has more complex effects on judicial behavior than has previously been understood.

I also show that, when more than one possible meaning of the statute is available, depending on the method of statutory interpretation is available, some judges may gravitate toward one or the other method depending in part on their own ideology.

Empirical work must therefore take care to distinguish between the political biases of judges who choose a particular interpretive method and the "true nature" of the method, or what opinions using the method would look like if all judges were constrained to use it.

Disciplines
Publication Date
January 21, 2010
Citation Information
Alexander Volokh, Why Do Judges Read Statutes?, unpublished draft (Jan. 21, 2010), available at http://works.bepress.com/alexander_volokh/45.