The University of Chicago Law Review

Reconsidering Statutory Interpretive Divergence between Elected and Appointed Judges

Bertrall L. Ross II

A Response to Aaron-Andrew P. Bruhl and Ethan J. Lieb, Elected Judges and Statutory Interpretation, 79 U Chi L Rev 1215 (2012), available here.

Should elected judges interpret statutes differently than appointed judges? The implicit answer of statutory interpretive theorists seems to be no. They typically describe their approaches to statutory interpretation in universal terms independent of the form of the institution that is taking on the task. To take two recent theories of statutory interpretation that revolutionized legal and academic thinking, when Professor William N. Eskridge, Jr. called for courts to dynamically interpret statutes to account for evolving public values, he seemed to assume that elected judges and appointed judges were equally competent to do so. When Justice Antonin Scalia advocated in his seminal book, A Matter of Interpretation, for judges to place more focus on the text of the statute and less on its legislative history, state judges, and by extension the institution of elected judges, seemed to be entirely invisible. These omissions are surprising once one considers that elected judges decide the vast majority of all cases nationwide.

Professors Aaron-Andrew P. Bruhl and Ethan J. Leib in their article, Elected Judges and Statutory Interpretation, make visible what was previously invisible: the institutional difference between elected judges and appointed judges. And they assess what this difference might mean for the interpretation of statutes. The mere introduction of this issue is worthy of praise as it opens up a promising new area for scholarly exploration. Bruhl and Leib, however, do not stop there. They also offer a balanced case for two potential views of statutory interpretation by elected judges: first, the conventional view that elected judges should interpret statutes in the same way as appointed judges—a case for interpretive convergence—and second, a case for the novel view that elected judges should interpret statutes differently from appointed judges—a case for interpretive divergence. While Bruhl and Leib are openly agnostic about the choice be-tween interpretive convergence and divergence, their analysis suggests that if pushed to choose a side, they might side with a theory of interpretive divergence. For this reason, and because of the novelty of an argument for interpretive divergence, this Essay focuses on the case for interpretive divergence.

80 U Chi L Rev Dialogue 53 [Article PDF]

Featured Print Articles

Volume 80, Issue 1 (more)

Symposium: Immigration Law and Institutional Design

Introduction by Adam B. Cox, Richard A. Epstein & Eric A. Posner

There are few more sprawling and unruly areas of academic inquiry than the law of immigration policy in the United States and around the world. Three reasons readily come to mind for explaining the inherent difficulties in this area. The first is the sprawling nature of the problem. Immigration into any country comes in a large number of different forms. … The second is that there is no consensus as to the general approach to immigration issues. For starters, there is no serious policy analyst who thinks that an open immigration policy is workable in modern times. … This leads to the third challenge. In all legal settings, policymakers are forced to choose between a set of ex ante restrictions that they apply in order to forestall harm and a set of ex post sanctions against antisocial behavior. Immigration law is no different. … The articles that are found in this Issue all address at least one of these issues.

80 U Chi L Rev 1 [Article PDF]

The Rise of Carrots and the Decline of Sticks

Article by Gerrit De Geest & Giuseppe Dari-Mattiacci

There is a remarkable tendency in modern legal systems to increasingly use carrots. This trend is not limited to legal systems but can also be observed in, for instance, parenting styles, social control mechanisms, and even law schools’ teaching methods. Yet, at first glance, sticks appear to be a more efficient means of inducing people to comply with legal rules or social norms because they are not meant to be applied (thus minimizing transaction costs and risks) and may cause fewer unintended distributional distortions. So how can we justify the widespread use of carrots? This Article shows that carrots can be superior in two cases. The first is when the lawmaker faces specification problems, which means that she does not know what to expect from each individual citizen (for instance, she may not know which citizen should spend time composing songs or which part of the cargo of a sinking ship should be rescued). In those cases, sticks are likely to punish citizens who are unable to comply with the norm and likely to cause wasteful transaction costs, risks, and undesirable wealth changes. 

The second is when the lawmaker needs to require significantly higher efforts from some citizens than from others. We use the term singling-out danger to refer to this problem. This is the case, for instance, when the lawmaker wants only some families to send a family member to the army, or only some families to sacrifice land for a highway project. In such cases, sticks would cause significant unintended distributional distortions (artificially impoverishing those from whom much is required), making carrots superior. 

Overall, our results predict that in societies with more specialization and division of labor, carrots will be used more often. But they also predict that within each society, carrots will be used more often in situations that involve a higher degree of complexity. Applications include patents, regulatory takings, contract bonuses, the duty to rescue, finders, information disclosure to contract parties, the Endangered Species Act, incentives in the military, slavery, health policy, and parenting.

80 U Chi L Rev 341 [Article PDF]

The Psychology of Contract Precautions

Article by David A. Hoffman & Tess Wilkinson-Ryan

This research tests the intuition that parties to a contract approach each other differently before the contract is formed than they do once it is finalized. We argue that one of the most important determinants of self-protective behavior is whether the promisee considers herself to be in negotiations or already in an ongoing contract relationship. That shift affects precaution taking even when it has no practical bearing on the costs and benefits of self-protection: the moment of contracting is a reference point that frames the costs and benefits of taking precautions. We present the results of three questionnaire studies in which respondents indicate that they would be more likely to protect their own interests—by requesting a liquidated damages clause, by purchasing a warranty, or by shopping around to ensure the best deal—when the contract is not yet finalized than they would when they understand the agreement to be finalized. We discuss competing explanations for this phenomenon, including both prospect theory and cognitive dissonance. Finally, we explore some doctrinal implications for work on disclosure, modification, and promissory estoppel.

80 U Chi L Rev 395 [Article PDF]