{"title":"Unsettled: A Global Study Of Settlements In Occupied Territories","authors":"Eugene Kontorovich","doi":"10.1093/jla/lax004","DOIUrl":"https://doi.org/10.1093/jla/lax004","url":null,"abstract":"","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"22 5","pages":"285-350"},"PeriodicalIF":2.2,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138520803","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In ordinary life, people who assess other people’s assessments typically take into account the other judgments of those they are assessing in order to calibrate the judgment they are now assessing. The restaurant and hotel rating website TripAdvisor is exemplary, because it facilitates calibration by providing access to a rater’s previous ratings. This makes it possible to see whether a particular rating is coming from a rater who is enthusiastic about every place she patronizes, or from someone who is incessantly hard to please. And even when less systematized, as with the assessment of a letter of recommendation or a college transcript, calibration by recourse to the decisional history of those whose judgments we are assessing is a ubiquitous feature of ordinary life. Yet despite the ubiquity and utility of such calibration, the legal system seems perversely to reject it. Appellate courts do not openly adjust their standard of review based on the previous judgments of the judge whose decision they are reviewing, nor do judges who review legislative or administrative decisions, magistrates who evaluate search warrant representations, and even jurors who assess witness perception. In most legal domains, calibration by reference to the other decisions of the judgment being reviewed is invisible, either because it does not exist or because what reviewing bodies know informally is not something they are willing to admit to using. Appellate courts do not, at least openly, look more carefully at the decisions of a trial judge whose decisions are often reversed, and administrative law judges do not acknowledge examining the decisions of some administrators more closely because of what they know about the decisional history of that administrator. However common it is for ordinary people to attempt to calibrate the decisions of those on whom they rely, the law generally resists such calibration, implicitly prohibiting access to a reviewee’s decisional history and discouraging publicly acknowledging that a decisional history has played a role in a reviewer’s decision. Assisted by insights from cognitive psychology and philosophy, this Article examines law’s seeming aversion to calibration, and to explore what this aversion says about the nature of law and legal decision-making.
{"title":"Calibrating Legal Judgments","authors":"F. Schauer, Barbara A. Spellman","doi":"10.1093/JLA/LAW010","DOIUrl":"https://doi.org/10.1093/JLA/LAW010","url":null,"abstract":"In ordinary life, people who assess other people’s assessments typically take into account the other judgments of those they are assessing in order to calibrate the judgment they are now assessing. The restaurant and hotel rating website TripAdvisor is exemplary, because it facilitates calibration by providing access to a rater’s previous ratings. This makes it possible to see whether a particular rating is coming from a rater who is enthusiastic about every place she patronizes, or from someone who is incessantly hard to please. And even when less systematized, as with the assessment of a letter of recommendation or a college transcript, calibration by recourse to the decisional history of those whose judgments we are assessing is a ubiquitous feature of ordinary life. Yet despite the ubiquity and utility of such calibration, the legal system seems perversely to reject it. Appellate courts do not openly adjust their standard of review based on the previous judgments of the judge whose decision they are reviewing, nor do judges who review legislative or administrative decisions, magistrates who evaluate search warrant representations, and even jurors who assess witness perception. In most legal domains, calibration by reference to the other decisions of the judgment being reviewed is invisible, either because it does not exist or because what reviewing bodies know informally is not something they are willing to admit to using. Appellate courts do not, at least openly, look more carefully at the decisions of a trial judge whose decisions are often reversed, and administrative law judges do not acknowledge examining the decisions of some administrators more closely because of what they know about the decisional history of that administrator. However common it is for ordinary people to attempt to calibrate the decisions of those on whom they rely, the law generally resists such calibration, implicitly prohibiting access to a reviewee’s decisional history and discouraging publicly acknowledging that a decisional history has played a role in a reviewer’s decision. Assisted by insights from cognitive psychology and philosophy, this Article examines law’s seeming aversion to calibration, and to explore what this aversion says about the nature of law and legal decision-making.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"19 1","pages":"125-151"},"PeriodicalIF":2.2,"publicationDate":"2016-10-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84848265","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article examines the rise of the administrative guidance under the APA. Guidances supply information so private parties can organize their behavior in accordance with law, but also allow agencies, without notice and comment, to indiscriminately expand their power. Separating useful from dangerous guidances requires allowing review of all guidances de novo as questions of law, without Chevron and Skidmore deference, by any interested party, even for nonfinal agency actions. Private selection effects will limit challenges to dangerous guidances without undermining those guidances that reduce uncertainty without improperly expanding the scope of agency power. The purpose of this article is to analyze the role that various guidance statements have played in the modern law of administrative procedure. In one sense this inquiry is an odd one, because the canonical statute of administrative law, the Administrative Procedure Act of 1946 (APA), 5 U.S.C. § 500 et seq, does not use the term “guidance” at all. Historically, the phrase only worked its way into administrative law in the mid-1990s, about 50 years after the passage of the APA
本文考察了APA下行政指导的兴起。指导方针提供了信息，使私人当事人可以依法组织他们的行为，但也允许机构在没有通知和评论的情况下不分青红皂白地扩大他们的权力。将有用的指导意见与危险的指导意见区分开来，需要允许将所有指导意见作为法律问题重新审查，而不需要任何利益相关方服从雪佛龙和斯基德莫尔，即使是非最终机构行动。私人选择效应将限制对危险指导方针的挑战，而不会破坏那些减少不确定性的指导方针，而不会不当扩大代理权力的范围。本文旨在分析各种指导性陈述在现代行政程序法中所起的作用。从某种意义上说，这项调查是一项奇怪的调查，因为行政法的规范法规，即1946年的行政程序法(APA)， 5 U.S.C.§500 et seq，根本没有使用“指导”一词。从历史上看，这个短语直到20世纪90年代中期才进入行政法，大约在APA通过50年后
{"title":"The Role of Guidances in Modern Administrative Procedure: The Case for De Novo Review","authors":"R. Epstein","doi":"10.1093/JLA/LAV012","DOIUrl":"https://doi.org/10.1093/JLA/LAV012","url":null,"abstract":"This article examines the rise of the administrative guidance under the APA. Guidances supply information so private parties can organize their behavior in accordance with law, but also allow agencies, without notice and comment, to indiscriminately expand their power. Separating useful from dangerous guidances requires allowing review of all guidances de novo as questions of law, without Chevron and Skidmore deference, by any interested party, even for nonfinal agency actions. Private selection effects will limit challenges to dangerous guidances without undermining those guidances that reduce uncertainty without improperly expanding the scope of agency power. The purpose of this article is to analyze the role that various guidance statements have played in the modern law of administrative procedure. In one sense this inquiry is an odd one, because the canonical statute of administrative law, the Administrative Procedure Act of 1946 (APA), 5 U.S.C. § 500 et seq, does not use the term “guidance” at all. Historically, the phrase only worked its way into administrative law in the mid-1990s, about 50 years after the passage of the APA","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"18 1","pages":"47-93"},"PeriodicalIF":2.2,"publicationDate":"2016-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81318049","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The modern American administrative state is a regime of lawmaking by ad hoc managed democracy. It is the product of modern affluence and technology—which have reduced political transactions costs, increased demands for government intervention, and enabled Congress to supply the increased demands by transferring lawmaking to executive agencies. Specialized, hierarchical agencies can employ communication and information technology much more thoroughly than a conflict-riven legislature, and thereby generate law on a much larger scale. Today’s administrative state departs from traditional rule-of-law values in important respects; understanding its roots in affluence and technology points to both constraints and opportunities for legal reformers. 1. I NTRODUCTION
{"title":"Can the Administrative State be Tamed","authors":"C. Demuth","doi":"10.1093/JLA/LAW003","DOIUrl":"https://doi.org/10.1093/JLA/LAW003","url":null,"abstract":"The modern American administrative state is a regime of lawmaking by ad hoc managed democracy. It is the product of modern affluence and technology—which have reduced political transactions costs, increased demands for government intervention, and enabled Congress to supply the increased demands by transferring lawmaking to executive agencies. Specialized, hierarchical agencies can employ communication and information technology much more thoroughly than a conflict-riven legislature, and thereby generate law on a much larger scale. Today’s administrative state departs from traditional rule-of-law values in important respects; understanding its roots in affluence and technology points to both constraints and opportunities for legal reformers. 1. I NTRODUCTION","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"29 1","pages":"121-190"},"PeriodicalIF":2.2,"publicationDate":"2016-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88349938","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Concerns about the rule of law in the modern administrative state are not only the result of our current legal system, but of our historical experience. Our legal tradition provides us with no precedents for imposing rules on executive power or authority. English kings created two institutions, the common law courts and the legislature (Parliament), in part to extend his control over the nobles. These institutions gradually acquired independent power and reduced the authority of the monarchy. They did not do so, however, by imposing controls, or standards of behavior, on the king's executive authority. Rather, they reduced the scope his authority, taking command of one field after another. In the process of defining and justifying their newly developed roles, the courts and the legislature established procedures and decision-making standards for their own actions that embodied the rule of law.Thus we, as heirs to English legal and constitutional thought, know how to impose the rule of law on judicial and administrative action. But we have not inherited any standards for executive action; our historical experience teaches us how to limit its scope but not how to control its content. The Administrative Procedure Act (APA) reflects this historical and cultural lacuna. It contains elaborate standards for adjudication, modeled on judicial procedure, and at least rudimentary standards for rulemaking, modeled on legislative procedure. But it provides no standards for executive action, and in fact, does not even recognize such action as a category. We know that category as informal adjudication, an obvious misnomer that does not appear in the language of the Act, but has been concocted by observers based on the Act's implicit structure. The unsolved problem in administrative law is to impose rules on action that falls within that category, that is, executive action, without impairing government’s ability to act. Methods for doing so could include substantive standards such as rationality, imposed by a revised APA and enforced by courts, or new supervisory institutions such as an the ombudsperson, or new procedural requirements, such as a revision of the APA notice and comment provisions that would be based on the concept of policy making rather than legislation by elected representatives.
{"title":"Executive Action: Its History, its Dilemmas, and its Potential Remedies","authors":"E. Rubin","doi":"10.1093/JLA/LAW008","DOIUrl":"https://doi.org/10.1093/JLA/LAW008","url":null,"abstract":"Concerns about the rule of law in the modern administrative state are not only the result of our current legal system, but of our historical experience. Our legal tradition provides us with no precedents for imposing rules on executive power or authority. English kings created two institutions, the common law courts and the legislature (Parliament), in part to extend his control over the nobles. These institutions gradually acquired independent power and reduced the authority of the monarchy. They did not do so, however, by imposing controls, or standards of behavior, on the king's executive authority. Rather, they reduced the scope his authority, taking command of one field after another. In the process of defining and justifying their newly developed roles, the courts and the legislature established procedures and decision-making standards for their own actions that embodied the rule of law.Thus we, as heirs to English legal and constitutional thought, know how to impose the rule of law on judicial and administrative action. But we have not inherited any standards for executive action; our historical experience teaches us how to limit its scope but not how to control its content. The Administrative Procedure Act (APA) reflects this historical and cultural lacuna. It contains elaborate standards for adjudication, modeled on judicial procedure, and at least rudimentary standards for rulemaking, modeled on legislative procedure. But it provides no standards for executive action, and in fact, does not even recognize such action as a category. We know that category as informal adjudication, an obvious misnomer that does not appear in the language of the Act, but has been concocted by observers based on the Act's implicit structure. The unsolved problem in administrative law is to impose rules on action that falls within that category, that is, executive action, without impairing government’s ability to act. Methods for doing so could include substantive standards such as rationality, imposed by a revised APA and enforced by courts, or new supervisory institutions such as an the ombudsperson, or new procedural requirements, such as a revision of the APA notice and comment provisions that would be based on the concept of policy making rather than legislation by elected representatives.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"35 1","pages":"1-46"},"PeriodicalIF":2.2,"publicationDate":"2016-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81811483","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Daniel B. Rodriguez, Edward H. Stiglitz, Barry R. Weingast
Executive discretion over policy outcomes is an inevitable feature of our political system. However, in recent years, the President has sought to expand his discretion through a variety of controversial and legally questionable tactics. Through a series of simple separation of powers models, we study one such tactic, employed by both Democratic and Republican presidents: the use of signing statements, which purport to have status in the interpretation of statutory meaning. Our models also show that signing statements upset the constitutional vision of lawmaking and, in a wide range of cases, exacerbate legislative gridlock. We argue that courts should not legally credit signing statements; we conclude by discussing executive opportunism broadly.
{"title":"Executive Opportunism, Presidential Signing Statements, and the Separation of Powers","authors":"Daniel B. Rodriguez, Edward H. Stiglitz, Barry R. Weingast","doi":"10.1093/JLA/LAV013","DOIUrl":"https://doi.org/10.1093/JLA/LAV013","url":null,"abstract":"Executive discretion over policy outcomes is an inevitable feature of our political system. However, in recent years, the President has sought to expand his discretion through a variety of controversial and legally questionable tactics. Through a series of simple separation of powers models, we study one such tactic, employed by both Democratic and Republican presidents: the use of signing statements, which purport to have status in the interpretation of statutory meaning. Our models also show that signing statements upset the constitutional vision of lawmaking and, in a wide range of cases, exacerbate legislative gridlock. We argue that courts should not legally credit signing statements; we conclude by discussing executive opportunism broadly.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"8 1","pages":"95-119"},"PeriodicalIF":2.2,"publicationDate":"2016-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89215513","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Recent controversies have called attention to the potential significance of negative executive authority — the authority to limit or undo what Congress has done through nonenforcement or waiver. This symposium essay reflects in several ways on constitutional and rule-of-law debates that have emerged regarding such authority. First, it defends the relevance of constitutional principles to baseline understandings of nonenforcement authority. Second, it identifies a deep tension in the rule of law’s implications for discretionary enforcement. Third, it defends statutorily conferred law-cancellation authority against constitutional challenges and rule-of-law objections. Finally, it proposes presumptive limits on authority to condition statutory waivers.
{"title":"Seeking Baselines for Negative Authority: Constitutional and Rule-of-law Arguments Over Nonenforcement and Waiver","authors":"Zachary S. Price","doi":"10.1093/JLA/LAW005","DOIUrl":"https://doi.org/10.1093/JLA/LAW005","url":null,"abstract":"Recent controversies have called attention to the potential significance of negative executive authority — the authority to limit or undo what Congress has done through nonenforcement or waiver. This symposium essay reflects in several ways on constitutional and rule-of-law debates that have emerged regarding such authority. First, it defends the relevance of constitutional principles to baseline understandings of nonenforcement authority. Second, it identifies a deep tension in the rule of law’s implications for discretionary enforcement. Third, it defends statutorily conferred law-cancellation authority against constitutional challenges and rule-of-law objections. Finally, it proposes presumptive limits on authority to condition statutory waivers.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"16 1","pages":"235-276"},"PeriodicalIF":2.2,"publicationDate":"2016-05-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75283608","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
C. Robertson, D. Winkelman, Kelly Bergstrand, Darren Modzelewski
The Edmond J. Safra Center for Ethics at Harvard University provided funding for this research.
哈佛大学的Edmond J. Safra伦理中心为这项研究提供了资金。
{"title":"The Appearance and the Reality of Quid Pro Quo Corruption: An Empirical Investigation","authors":"C. Robertson, D. Winkelman, Kelly Bergstrand, Darren Modzelewski","doi":"10.1093/JLA/LAW006","DOIUrl":"https://doi.org/10.1093/JLA/LAW006","url":null,"abstract":"The Edmond J. Safra Center for Ethics at Harvard University provided funding for this research.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"37 1","pages":"375-438"},"PeriodicalIF":2.2,"publicationDate":"2016-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73040166","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
U.S. corporate criminal enforcement policy encourages prosecutors to enter into deferred and non-prosecution agreements (D/NPAs) that impose corporate reform mandates on firms with detected misconduct. This article concludes that the process governing prosecutors’ use of D/NPA mandates is inconsistent with the rule of law. The rule of law requires that individual executive branch actors not be given sufficient authority to restrict the rights of others to achieve personal aims, including idiosyncratic conceptions of the public interest. To satisfy the rule of law, modern governments granting discretion to executive branch actors constrain this authority by both limiting the scope of authority granted and requiring external oversight of decisions. Formal enforcement through pleas and formal agency rule-making employ both mechanisms. By contrast, prosecutors who use D/NPAs to create and impose new duties face few limitations on either the scope of their ex ante authority to intervene. They also face little oversight through judicial review. This broad grant of discretion to individual prosecutors’ offices is inconsistent with the rule of law.
{"title":"Prosecuting Beyond the Rule of Law: Corporate Mandates Imposed through Deferred Prosecution Agreements","authors":"Jennifer H. Arlen","doi":"10.1093/JLA/LAW007","DOIUrl":"https://doi.org/10.1093/JLA/LAW007","url":null,"abstract":"U.S. corporate criminal enforcement policy encourages prosecutors to enter into deferred and non-prosecution agreements (D/NPAs) that impose corporate reform mandates on firms with detected misconduct. This article concludes that the process governing prosecutors’ use of D/NPA mandates is inconsistent with the rule of law. The rule of law requires that individual executive branch actors not be given sufficient authority to restrict the rights of others to achieve personal aims, including idiosyncratic conceptions of the public interest. To satisfy the rule of law, modern governments granting discretion to executive branch actors constrain this authority by both limiting the scope of authority granted and requiring external oversight of decisions. Formal enforcement through pleas and formal agency rule-making employ both mechanisms. By contrast, prosecutors who use D/NPAs to create and impose new duties face few limitations on either the scope of their ex ante authority to intervene. They also face little oversight through judicial review. This broad grant of discretion to individual prosecutors’ offices is inconsistent with the rule of law.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"55 1","pages":"191-234"},"PeriodicalIF":2.2,"publicationDate":"2016-04-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77999566","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
What difference do starting points make? The question is important for decision making in general and for law in particular, including the interpretation of statutes. Judges must begin the interpretive process somewhere. Today, Supreme Court opinions sometimes promote the idea of starting with the text of the statute at issue. But what does this mean, in practice, and does it matter to decisions? “Start with the text” could be a signal of allegiance to an interpretive school and an indication that some interpretive tools are more important than or even lexically superior to others. At present, however, the statement delivers neither of those messages well. Instead, we might think about the statement as a rule for sequencing sources. Although the mere sequence in which information is considered does not have any clear logical significance for case results, the idea of starting with statutory text can become almost unnervingly significant — and without adding lexical priority.Decades of studies show that the order in which information is presented can influence decisions, apart from what formal logic dictates. But the direction of order effects can be counterintuitive and sensitive to the decision environment, which suggests complications for a “start with the text” sequencing rule. Depending on several factors, the first item of information will matter most, the last item will matter most, or there will be no order effect. Furthermore, even if order effects are predicted accurately, some psychological mechanisms that produce order effects are normatively problematic for judicial use. Finally, an effective sequencing rule requires an implementation strategy with a foundation far away from standard theorizing about interpretive method. Foregrounding implementation issues and the real world of interpretive architecture suggests that, if judges want to harness order effects, they probably should turn to the most important sources last, not first.
{"title":"Starting with the Text — On Sequencing Effects in Statutory Interpretation and Beyond","authors":"Adam M. Samaha","doi":"10.1093/JLA/LAW004","DOIUrl":"https://doi.org/10.1093/JLA/LAW004","url":null,"abstract":"What difference do starting points make? The question is important for decision making in general and for law in particular, including the interpretation of statutes. Judges must begin the interpretive process somewhere. Today, Supreme Court opinions sometimes promote the idea of starting with the text of the statute at issue. But what does this mean, in practice, and does it matter to decisions? “Start with the text” could be a signal of allegiance to an interpretive school and an indication that some interpretive tools are more important than or even lexically superior to others. At present, however, the statement delivers neither of those messages well. Instead, we might think about the statement as a rule for sequencing sources. Although the mere sequence in which information is considered does not have any clear logical significance for case results, the idea of starting with statutory text can become almost unnervingly significant — and without adding lexical priority.Decades of studies show that the order in which information is presented can influence decisions, apart from what formal logic dictates. But the direction of order effects can be counterintuitive and sensitive to the decision environment, which suggests complications for a “start with the text” sequencing rule. Depending on several factors, the first item of information will matter most, the last item will matter most, or there will be no order effect. Furthermore, even if order effects are predicted accurately, some psychological mechanisms that produce order effects are normatively problematic for judicial use. Finally, an effective sequencing rule requires an implementation strategy with a foundation far away from standard theorizing about interpretive method. Foregrounding implementation issues and the real world of interpretive architecture suggests that, if judges want to harness order effects, they probably should turn to the most important sources last, not first.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"29 1","pages":"439-491"},"PeriodicalIF":2.2,"publicationDate":"2016-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74865121","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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