Thanks to Eugene Volokh for having me back; I’ve missed blogging terribly and am pleased to share a bit of what I’ve been working on in my absence — “The Law of Interpretation,” forthcoming in the Harvard Law Review, with my good friend and law school classmate Stephen Sachs.
Here is the puzzle that started us writing the paper:
A lot of writing about legal interpretation (and especially statutory interpretation) seems to assume that interpretation is simply a matter of language — it is regular linguistic interpretation as applied to legal materials. If we could just figure out exactly what the legislature said, or what it meant, or what it meant to say, our work would be complete. A great example of this is Larry Alexander’s thought experiment of a legislature that could communicate by telepathy. Mark Greenberg (a critic of this view) has eloquently called this “The Standard Picture and its Discontents.”
For years, I was a devotee of the standard picture, but I have come to believe that it does not work. For one thing, it’s not an accurate account of how legal interpretation works. Just flip open even a relatively textualist account of interpretation, like Antonin Scalia and Bryan A. Garner’s “Reading Law,” and you will see tons of canons of interpretation that don’t have much to do with how legislatures speak — the rule of lenity, the repeal-repealer rules and the presumption against waiver of sovereign immunity are just a few.
And there are even more dramatic examples in the U.S. Code, such as the rule that “products of American fisheries,” when used by Congress or any agency, doesn’t include U.S.-farmed fish that was processed abroad by partly foreign workers. For another thing, the standard picture has a hard time telling us *which* of the possible theories of meaning we should use (the speaker’s intent, the reader’s understanding or something else?) and *what* documents that theories apply to (the enacted text alone, or more?).
Now this leads a lot of people to slide into what we call the “skeptical response.” For instance, Richard Fallon has written about the “astonishing diversity” of theories of legal meaning and ultimately concludes that in disputed cases, judges should decide, on a “case-by-case basis,” what best promotes “substantive desirability, consistency with rule-of-law principles, and promotion of political democracy, all things considered.”
Similarly, Cass Sunstein has written that “there is nothing that interpretation ‘just is,'” a point that he recently amplified in his micro-essay on “Formalism in Constitutional Theory” (which Lawrence Solum just named Download of the Week). Sunstein concludes:
[R]easonable people can and do argue over the best conception of interpretation. Intended meaning is unquestionably one candidate, but there are others. To choose among the plausible candidates, judges and lawyers need normative criteria external to texts, and it is hardly sufficient to investigate interpretation as a social practice (in, for example, ordinary conversations). It is necessary to think about the world and to look outward, rather than to pretend that definitions can solve the problem.
There’s some truth in these views. But I fear they are too open-ended about how judges and lawyers ought to approach the task of legal interpretation. Even though it’s true that legal interpretation isn’t just linguistics, and even though it’s true that there’s more than one plausible concept of interpretation, there may be a narrower answer — a way to tell judges and lawyers how to interpret legal instruments without forcing them into unfettered normative reasoning.
I’ll post soon about how we try to thread that needle….
(P.S. Steve and I are actively revising the piece, and so we especially welcome comments this month — leave a comment or drop me an email. As Josh Blackman notes about his forthcoming HLR piece, we aren’t permitted to post any drafts between now and the final version, but we’d like the final version to be as good as it can be when it goes live next year.)