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Lee Epstein
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Lee Epsteing Ethan A.H. Shepley Distinguished University Professor

JUDGING STATUTES
Published in 2003. Journal of Law and Public Policy. 35: 305-333. (Revised version of a paper delivered at the 2002 Workshop on Empirical Taxation.)

Lee Epstein
Nancy Staudt
Peter Wiedenbeck

Introduction

Why do judges interpret statutes the way they do? Positivist analyses aimed at answering this question abound and, perhaps not so surprisingly, have supplied no shortage of responses. Some suggest that the primary determinant centers on the internal political context of judging, that is, jurists will interpret statutes in line with their sincerely held policy preferences. A second group points the finger at the external context, arguing that judges behave in a strategic fashion vis-à-vis other relevant actors, that is, they will read statutes in such as fashion as to maximize their preferences without triggering, say, a congressional override. Still others argue that statutory interpretation has less to do with policy maximization that it does with principle maximization, that is, jurists interpret statutes in accord with their preference for adhering to precedent, or particular ideas, theories, or philosophies. They may pursue these goals sincerely or strategically, depending upon the specific account.

Other responses exist of course. But, to us, the more interesting features of the non-normative literature on statutory judging lie not in the distinctive conclusions it has generated but rather in its commonalities. We see two as particularly interesting. First, many of the relevant studies focus on civil rights legislation. This holds regardless of whether the work’s producers are legal academics or social scientists, whether the research is primarily qualitative or quantitative, or whether it finds its theoretical grounding in psychology, sociology, or economics. Second, almost all the studies—especially those of the large n, quantitative variety—explore the outcomes reached by jurists, and not the rationale or justifications they invoke. To be sure, the outcomes under investigation differ from study to study—sometimes it is support for the government or not; in others, it is whether the judge reached a "liberal" or "conservative" decision—but the focus on the result to the neglect of the rationale is unmistakable.

These are not criticisms of the extant literature. Quite the opposite: We firmly believe that by investigating outcomes reached in civil rights cases, this line of inquiry has revealed a great deal about the "judicial mind". At the same time and for reasons we more fully specify in Part 1, we just as firmly believe that, to the extent we aim to develop rich accounts about why judges interpret statutes the way they do, a continued emphasis on civil rights is a potential problem. And, to the extent that we desire a more comprehensive picture of judging, an exclusive focus on outcomes is, for reasons we elaborate in Part II, incomplete at best and misleading at worst.

Accordingly, we have devised a project that aspires to address these concerns by (1) exploring an area that has received, despite its importance, virtually no systematic attention, tax and (2) analyzing or taking into account both outcomes and rationales. At the end of the day, we hope that our attention to these matters will make a useful contribution to the literature on judging statutes.

But that day is not here. While we have been working on our project for some time now, we have little in the way of results to present. Rather, we hope to use this paper as a vehicle to accomplish two primary tasks. First, as we imply above, we want to make a case for the importance of moving beyond civil rights and outcomes in the study of statutory interpretation. Second, we hope to provide enough information about the contours of our study to obtain feedback from participants about its benefits and deficiencies, and what steps we might take to correct the latter. Parts I and II attack the first task; Part III turns to the second.

Click here for the article (.pdf).
Click here for the data.
Click here for the website of a related project update.