法官席上的法定解释:对联邦上诉法院42名法官的调查

IF 3.5 2区 社会学 Q1 LAW
Abbe R. Gluck, R. Posner
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引用次数: 2

摘要

本文报告了一项对42名联邦上诉法官的调查结果,调查内容涉及他们对法律解释的态度。这项研究揭示了他们的方法与最高法院声称采取的方法之间的重要差异。它还有助于证实持久的,但现在无聊的,文本主义与目的主义之争的无关性。我们采访的所有法官都不愿意毫无条件地将自己与“文本主义”联系在一起。所有这些都参考了立法历史。大多数人都避开字典。所有人都至少使用了一些结构标准,但出于各种原因,从“粉饰门面”到使用标准来协助撰写意见,再到认为它们是有用的决策工具。我们采访的大多数法官都不是雪佛龙的粉丝,除了华盛顿特区巡回法院的法官,他们审理了雪佛龙的大部分案件。一些接受采访的法官认为,了解国会对法官的工作很重要,而另一些人则不明白法官如何利用这种了解来裁决案件。大多数人对最高法院的解释方法是否对下级法院具有约束力表示怀疑。在文本主义盛行时期就读法学院并从事司法工作的年轻法官,通常更倾向于形式主义,无论政治派别如何,他们都接受建构法则。年长的法官不太关注法律,对他们的授权有更广泛的看法,似乎更多地在司法合法性问题上挣扎。在我们的采访中,最明显的方法可以被描述为有意的折衷主义。我们采访过的大多数法官都愿意考虑各种不同的论点和证据,并将这种方法视为唯一民主合法的方法。然而,与此同时,许多人注意到他们在实际判决案件的方式与撰写意见书的方式之间存在差距,他们将这种差距归因于公众的期望与司法决策的现实之间的脱节。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals
This Article reports the results of a survey of a diverse group of forty-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 now-boring, 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.
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来源期刊
CiteScore
2.90
自引率
11.80%
发文量
1
期刊介绍: The Harvard Law Review is a student-run organization whose primary purpose is to publish a journal of legal scholarship. The Review comes out monthly from November through June and has roughly 2,500 pages per volume. The organization is formally independent of the Harvard Law School. Student editors make all editorial and organizational decisions and, together with a professional business staff of three, carry out day-to-day operations. Aside from serving as an important academic forum for legal scholarship, the Review has two other goals. First, the journal is designed to be an effective research tool for practicing lawyers and students of the law. Second, it provides opportunities for Review members to develop their own editing and writing skills. Accordingly, each issue contains pieces by student editors as well as outside authors. The Review publishes articles by professors, judges, and practitioners and solicits reviews of important recent books from recognized experts. All articles — even those by the most respected authorities — are subjected to a rigorous editorial process designed to sharpen and strengthen substance and tone.
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