At Volokh Conspiracy, Will Baude: Does judicial disagreement imply ambiguity? From the introduction:
Adrian Vermeule and Eric Posner have a pair of blog posts sketching out a new paper idea. Their idea is to explore the question: “Under what conditions should judges take into account the information contained in the votes of other judges?” For instance, if judges disagree over how to interpret a statute, does that mean that either interpretation is reasonable?
(My answer: no, because some judicial interpretations are not reasonable.) Professor Baude goes on (reasonably) to say:
I’m very interested in reading what Posner and Vermeule work out about this. My own instinct is that it only makes sense for judges to take into account the votes of other judges when those other judges share relevant elements of an interpretative framework. A strong textualist’s view of the statute’s meaning is largely beside-the-point for a strong purposivist, and vice versa. Similarly, lower-court judges who approach the Anti-Terrorism and Effective Death Penalty Act in very different ways will not learn very much from one another’s votes.
Agreed.
Posted at 9:24 AM