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- Title
When Is Legal Methodology Binding?
- Authors
Nash, Jonathan Remy
- Abstract
Common-law interpretive methodologies memostly nonbinding, but some interpretive methodologies are seen as binding preced€nt. This Aitide offers an explanation for this state of affairs. Whereas the extant scholarship on common-law interpretive methodologies offers descriptive accounts (often assuming that common-law methodologies are per se nonbinding) and normative analysis, this Article fills a gap in the literature 14 providing a realist explanation for the legal landscape of binding interp-etive methodologies. It identifies whether a methodolog, is rule-like, and whether it increases judicial legitimag and/or court power as "pull factors-that is, incentives that might attract judges to recognize interpretive methodologies as binding. It also identifies high stakes (i.e., broad methodological scope) and constitutional argumentation over methodologies as "push factors"-that is, obstacles to finding methodologies to be binding. This approach explains the current landscape of int€*etive methodologies and also enables predictions about the stability of existing binding interpretive methodologies.
- Subjects
COMMON law; JUDICIAL power; CONSTITUTIONAL law; JUDGES; ILLEGITIMACY
- Publication
Iowa Law Review, 2024, Vol 109, Issue 2, p739
- ISSN
0021-0552
- Publication type
Article