Adler on Gluck & Posner on Judges as Statutory Interpreters

by Chris Walker — Monday, Mar. 12, 2018@chris_j_walker

I was so excited to see Abbe Gluck’s latest article (with Richard Posner)—Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals—hit the Harvard Law Review press over the weekend. Gluck’s empirical and theoretical work on legislation and statutory interpretation is always a must-read, and this article is no exception.

I had planned on blogging about the article, especially its implications for administrative law. But Jonathan Adler beat me to it. So go check out his post about the article over at the the Volokh Conspiracy. Here’s a snippet from his post:

Among the judges interviewed by Gluck and Posner, younger judges tended to be more “rule-oriented” in their approach to statutory inerpretation and more reliant on canons of construction. Older judges, on the other hand, “were more forthright about the quasi-legislative activity that statutory interpretation by judges entails, and discussed openly whether gaps in statutes could be understood as delegation by Congress to the courts.” Whether judges had experience in other branches of government also appeared to have a significant influence on their approach to statutory interpretation.

On the question of Chevron deference, Gluck and Posner find ample skepticism among the judges they interviewed, particularly among those not sitting on the U.S. Court of Appeals for the D.C. Circuit, the federal appellate court in which most Chevron cases are heard. D.C. Circuit judges, on the other hand, “have drunk the Chevron Kool-Aid,” Gluck and Posner write.

This article provides such a fascinating window into how judges perceive their role in interpreting statutes,* and there are so many fascinating insights in the article. I would expect that these findings on judicial dislike of Chevron deference outside of the beltway, coupled with the new circuit judges appointed under the Trump Administration, will encourage even more judges to express their concerns about Chevron in judicial opinions and other public writings.

I hope the results from this project, as well as Marin Levy’s important work on panel assignments, will encourage federal judges to participate in more such studies going forward.

 

* I say “perceive” in part because, as Gluck and Posner rightly note, there are always methodological limitations in surveying/interviewing subjects. I definitely would not, and Gluck and Posner expressly do not, attempt to generalize these findings to the federal judiciary as a whole or even to other circuit judges. This may be particularly important when one of the interviewers was then-Judge Richard Posner—someone who pulled no punches when criticizing other federal judges in public (the Posner-Scalia feud comes immediately to mind), had a strong reputation for an unorthodox, pragmatic approach to statutory interpretation, and left the bench in part to publish a book on the confidential, internal workings of his own circuit court. It is hard to control for the “Posner effect” on interviewing his peers, or the unique selection effects (in an already non-random sample) that may be implicated by his presence as a principal investigator. That should not detract from the overall value of this project—another groundbreaking contribution Gluck has made to our understanding of statutory interpretation.

 


This post is part of the Administrative Law Bridge Series, which highlights terrific scholarship in administrative law and regulation to help bridge the gap between theory and practice in the regulatory state. The Series is further explained here, and all posts in the Series can be found here.

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About Chris Walker

Christopher Walker is a law professor at The Ohio State University Moritz College of Law. Prior to joining the law faculty, Professor Walker clerked for Justice Anthony Kennedy of the U.S. Supreme Court and worked on the Civil Appellate Staff at the U.S. Department of Justice. His publications have appeared in the California Law Review, Michigan Law Review, Stanford Law Review, and University of Pennsylvania Law Review, among others. Outside the law school, he serves as one of forty Public Members of the Administrative Conference of the United States and on the Governing Council for the American Bar Association’s Section on Administrative Law and Regulatory Practice. He blogs regularly at the Yale Journal on Regulation.

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