What Is Localist Judging and Why Does It Matter?
Judges are local officials too, Ethan Leib helpfully reminds us in his thought‐provoking Article, Localist Statutory Interpretation. Like state court judges in our federal system, local judges—a category defined by Leib to include only elected jurists—may play a special role in interpreting both state and local law. Ultimately, Leib concludes that this role is a highly constrained one. He is comfortable endorsing local judges' reliance on local values (though only “in a narrow band of hard cases”) in large part because state courts and legislatures remain available to overrule decisions that unduly infringe on state interests. As an endorsement of “localism,” Leib's is most tepid.
But a tepid endorsement of localist judging is probably sufficient for even the most avid proponents of localism. After all, it is the process of local government itself—e.g., attending city council meetings, running for office—that matters most to communitarians, and, except for the occasional decision about local government procedure, it is likely that judges can do little to affect this process positively or negatively. While some communitarians focus on local juries as a key institution for educating and involving citizens, Leib's definition of local courts excludes lower trial courts of general jurisdiction, and thereby largely excludes courts with juries from his prescriptions.
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Jennifer E. Rothman