Despite this blog's general aversion to self-promotion (unless we're soliciting ideas about our early research), I am very pleased to announce that the final version of The Phantom Philosophy? An Empirical Investigation of Legal Interpretation, forthcoming in the Maryland Law Review, has been re-posted on SSRN. The Abstract:
"While articles and books offering theories of judicial philosophy or legal interpretation flourish, evidence of the costs and benefits of various interpretive approaches is sorely lacking. Indeed, although there is evidence that ideology explains a limited amount of judicial decisions, there is virtually no systematic evidence that judges' interpretive philosophies, at least as typically defined by academics, even matter in their decisions. While a variety of studies test the ideological or attitudinal model of judicial decision-making, this research often omits any measure of the legal model, that is, traditional interpretive approaches, such as formalism, textualism, and originalism. This omission is not an oversight; the role of interpretive philosophies is rarely tested because of the difficulty in operationalizing the relevant variables. This Article tests a model of judicial decision-making that incorporates elements of both the attitudinal model and the legal model, along with a measure of collegiality and other variables. We develop a measure of interpretive philosophy using two sources of data: judicial opinions, which we code for certain indicators of traditional interpretive approaches (i.e., the use of interpretive tools); and a survey of former judicial clerks. The critical question is whether judges with similar interpretive philosophies are more likely to agree with one another in deciding cases. Our general finding is that ideology and interpretive philosophy are not significant predictors of agreement. Instead, experience on the bench together is a significant predictor of agreement, supporting the conclusion that judging is more about solving problems pragmatically with an eye to maintaining a collegial work environment. While further testing of the importance of the legal model is certainly warranted, at the present time, interpretive theorists pursue their labors in the absence of any evidence that interpretive theory matters in the day-to-day activities of actual judging."