Article

Elected Judges and Statutory Interpretation

Aaron-Andrew P. Bruhl

Associate Professor of Law, University of Houston Law Center

Ethan J. Leib

Professor of Law, Fordham Law School

We thank Jim Brudney, Annie Decker, Jeffrey Dobbins, Amanda Frost, Abbe Gluck, Helen Hershkoff, the Honorable Hans Linde (retired Justice of the Oregon Supreme Court), Jeffrey Pojanowski, David Pozen, and Mark Tushnet for incisive comments on earlier drafts; Michelle Anderson, Richard Schragger, Richard Briffault, Rick Hills, and Howie Erichson for conversations about aspects of this project; and Joseph Struble for research assistance. Portions of this Article were presented at the 2012 meeting of the Association of American Law Schools, where the audience provided helpful feedback. Professor Leib also thanks the one hundred or so students in his Legislation classes at UC Berkeley and at UC Hastings who provided an answer on a final exam to the question of how, if at all, elected judges should interpret statutes differently from their federal counterparts.

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 contrary 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 possibility of interpretive divergence might illuminate several specific doctrinal problems related to judicial federalism and judicial review of agency action.

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