Involved Appellate Judging

Utrecht Law Review, 2014

Michigan Law Review, 1995

SSRN Electronic Journal, 2018

This Article reports the results of a survey of a diverse group offorty-two federal appellate judges concerning their approaches to statutory interpretation. The study reveals important differences between their approaches and the approach that the Supreme Court purports to take. It also helps to substantiate the irrelevance of the enduring, but nowboring, textualism-versus-purposivism debate. None of the judges we interviewed was willing to associate himself or herself with "textualism" without qualification. All consult legislative history. Most eschew dictionaries. All utilize at least some canons of construction, but for reasons that range from "window dressing," to the use of canons to assist in opinion writing, to a view that they are useful decision tools. Most of the judges we interviewed are not fans of Chevron, except for the judges on the D.C. Circuit, which hears the bulk of Chevron cases. Some of the judges interviewed believe that understanding Congress is important to a judge's work, while others do not see how judges can use such understanding to decide cases. Most express doubt that the Supreme Court's interpretive methodology binds the lower courts. The younger judges, who attended law school and practiced during the ascendance of textualism, are generally more formalist and accepting of the canons of construction, regardless of political affiliation. The older judges are less focused on canons, take a broader view of their delegated authority, and appear to grapple more with questions of judicial legitimacy. The approach that emerged most clearly from our interviews might be described as intentional eclecticism. Most of the judges we spoke to are willing to consider many different kinds of argument and evidence, and defend that approach as the only democratically legitimate one. Yet at the same time many observe a gap between how they actually decide cases and how they write opinions, a gap they attribute to the disconnect between the expectations of the public and the realities of judicial decisionmaking.

Judicial Dialogue and Human Rights

Introduction As underlined by the editor of this volume and by other contributors, much remains to be explored as to ‘how judges learn about foreign law developments’. This chapter lifts the veil on one of the ways via which judges – in this context, judges of the European Court of Human Rights (ECtHR or the Court) – learn about foreign legal material: the contributions made by amici curiae, or ‘friends of the court’. The hypothesis that ECtHR judges find inspiration to look at the jurisprudence of other courts in amicus curiae briefs stems from judgments directly indicating that comparative elements were brought by amici, from statements of the judges themselves and from scholarly literature. The hypothesis is thus the following: briefs which try to inform and/or to influence the Court by engaging in comparative legal analyses and by referring to various international, regional and domestic court decisions can encourage the Court to have this ‘dialogue’. This contribution empirically examines whether, and in what form, amici indeed bring this information in their briefs to the ECtHR, and whether traces of the comparative references of the briefs can be found in the Court’s judgments. An exploration of the briefs’ content and their influence on the judgments helps to explain one of the methods through which ECtHR judges become aware of foreign decisions. It also seeks to provide answers to questions asked in this volume regarding the impact of the Court’s use of amicus curie briefs on the extent, methods and purposes of the ECtHR’s engagement in judicial dialogue. This chapter focuses on the briefs submitted by human rights non-governmental organisations (NGOs) to the Grand Chamber of the ECtHR. This topic is particularly relevant, as no empirical work has yet examined the content of the briefs and drawn the link with the practice of the ECtHR’s judicial dialogue. While some studies have closely examined the role of civil society organisations before the ECtHR, they do not focus on the comparative material that their briefs bring before the Court. Most authors who assert that amici play an important role base their findings on a small number of cases, often those that are most frequently cited; or they only rely on the references in the judgments.

California Law Review, 1992

Law and Method, 2016

Dit artikel uit Law and Method is gepubliceerd door Boom juridisch en is bestemd voor anonieme bezoeker Law_and_Method_Should-Jurists-Take-Interests-More-Seriously.indd 2 28-Sep-17 10:33:20 Dit artikel uit Law and Method is gepubliceerd door Boom juridisch en is bestemd voor anonieme bezoeker Law_and_Method_Should-Jurists-Take-Interests-More-Seriously.indd 3 28-Sep-17 10:33:20 Dit artikel uit Law and Method is gepubliceerd door Boom juridisch en is bestemd voor anonieme bezoeker Law_and_Method_Should-Jurists-Take-Interests-More-Seriously.indd 4 28-Sep-17 10:33:20 Dit artikel uit Law and Method is gepubliceerd door Boom juridisch en is bestemd voor anonieme bezoeker Law_and_Method_Should-Jurists-Take-Interests-More-Seriously.indd 5 28-Sep-17 10:33:20 Dit artikel uit Law and Method is gepubliceerd door Boom juridisch en is bestemd voor anonieme bezoeker Law_and_Method_Should-Jurists-Take-Interests-More-Seriously.indd 6 28-Sep-17 10:33:20 Dit artikel uit Law and Method is gepubliceerd door Boom juridisch en is bestemd voor anonieme bezoeker Law_and_Method_Should-Jurists-Take-Interests-More-Seriously.indd 7 28-Sep-17 10:33:20 Dit artikel uit Law and Method is gepubliceerd door Boom juridisch en is bestemd voor anonieme bezoeker

2011