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Tuesday, March 20, 2012

Elected Judges and Statutory Interpretation

Aaron-Andrew Bruhl and I have uploaded our article on elected judges and statutory interpretation to SSRN.  Here is the abstract:

This Article considers whether differences in methods of judicial selection should influence how judges approach statutory interpretation. Courts and scholars have not given this question much sustained attention, but most would probably embrace the “unified model,” according to which appointed judges (such as federal judges) and elected judges (such as many state judges) are supposed to approach statutory text in identical ways. There is much to be said for the unified model – and we offer the first systematic defense of it. But the Article also attempts to make the best case for the more controversial but also plausible contrasting view: that elected judges and appointed judges should actually interpret statutes differently. We explain and defend that view and explore some of its implications and limits. We identify categories of cases in which the argument for interpretive divergence is at its strongest. We also show how the analysis might illuminate several specific doctrinal problems related to judicial federalism and judicial review of agency action. 

From a Prawfs comment thread to the pages of the University of Chicago Law Review.....


Posted by Ethan Leib on March 20, 2012 at 11:46 AM | Permalink


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Yeah, but Ethan, think about all the Prawfs comment threads that have not (yet?) ended up in the pages of the Chicago law review :-)

Seriously, though, congrats to you and Aaron.

Posted by: Dan Markel | Mar 20, 2012 8:43:22 PM

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