Adam Samaha, ‘Do More Interpretive Sources Mean More Discretion?’

Abstract:
Observers have suggested that adding sources of interpretation tends to increase interpreter discretion. The idea is embedded in a quip, attributed to Judge Leventhal, that citing legislative history is like ‘looking over a crowd and picking out your friends’. Participants in debates over interpretive method have applied the same idea to the proliferation of other sources as well, including canons of construction and originalist history. But the logic of ‘more sources, more discretion’ has escaped serious testing. And predicting the effect of source proliferation is not a matter of logic alone. The empirical study of how information loads affect behavior has grown dramatically in recent decades, though almost without notice in legal scholarship on interpretive method.

This Article tests the logic and evidence for ‘more sources, more discretion’. The idea turns out to be incorrect, without more, as a matter of logic. Adding sources tends to reduce the chance of discretion using a simple model of interpretation. This starter model depicts judges as aggregators of source implications, and it draws on basic probability theory and computer simulations to illustrate. The analysis does change if we allow judges to ‘spin’ or ‘cherry pick’ sources, but without much hope for limiting discretion by limiting sources. Of course, judges will not always behave like machines executing instructions. The Article therefore goes on to spotlight provocative empirical studies, develop working theories of interpreter behavior, and present new data.

First, a new dataset casts doubt on an earlier study that linked a growing stock of precedents to increased judicial discretion. Adding decisions to the pile of precedent seems to have no predictable pattern of effect on judicial discretion. Second, existing studies indicate that judges promote the status quo when information loads increase. New data suggest that this effect depends on the type of information added. The number of source citations in an appellate brief, for example, appears to have no effect on judges’ willingness to affirm. Third, an expanded dataset supports an earlier finding that judges who face a large number of doctrinal factors may save time by prioritizing the factors in a quasi-legal fashion – and without following conventional ideological lines.

Samaha, Adam M, Do More Interpretive Sources Mean More Discretion? (December 2016). New York University Law Review, Vol 92, 2017; NYU School of Law, Public Law Research Paper No 16-53.

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