Starting with the Text—On Sequencing Effects in Statutory Interpretation and Beyond

Reconsidering Substantive Canons

Comments on Mark Seidenfeld’s “Revisiting Congressional Delegation of Interpretive Primacy as Foundation for <i>Chevron</i> Deference”

The authors present two meta-theoretical approaches to statutory interpretation: the „categorical” approach, which assumes that there is a universal criterion for the correctness of interpretation, and the „eclectic” approach, which assumes that the criterion of correctness is flexible and its choice should be made casu ad casum by the interpreter himself. The latter approach has been gaining popularity among legal theorists in recent years; it also manifests itself in judicial decisions. The authors criticize it, pointing out that it is incompatible with the idea of the rule of law, and moreover, it blurs the difference between the cognitive and creative dimensions of applying the law. Not everything lawyers do with a statutory text should be called “statutory interpretation.” This applies to several mental operations, such as filling loopholes in the law, implementing moral values, or deciding what is just. For the sake of clarity of the discourse, the term “statutory interpretation” should be reserved for the process of determining the legislator’s intention.

An Empirical Examination of Agency Statutory Interpretation

Statutory interpretation involves an interpreter determining the meaning of the text on the basis of various interpretive tools, all of which relate to the meaning of the words and their composition in light of the relevant context. Recently, with the increasing availability of scientific research tools such as corpus linguistics, advocates of such methods have stressed that statutory interpretation is an “empirical” inquiry. These claims fail to appreciate the contribution that context makes to meaning, both within and outside of law. Determinants of legal meaning must all relate in some way to the context of the relevant statute, whether the connection is to its language or the circumstances surrounding its enactment. Courts give (sometimes conclusive) weight to the statutory text, which implicates the systematicities of language and constrains the interpretations available to judges. Nevertheless, the ineliminably contextual nature of language, along with such legal features as the necessity of framing the interpretive inquiry in terms of an idealized interpreter, reveal legal interpretation to be a discretionary process, which should negate any claim that the determination of the meaning of a statute is primarily, or even largely, an empirical issue.

Statutory Interpretation, Judicial Discretion, and Equitable Defenses

Congress's Four Statutory Rhetorics: Why Congress Intends for Courts to Ignore Some Statutory Text

According to influential theories of judicial behavior, Supreme Court opinions are best seen not as genuine reflections of jurisprudentially based decision making but, rather, as insincere legitimating cloaks for decisions based on extralegal policy preferences or other political motives. Perhaps the best evidence of politically motivated opinion writing is provided by Phelps and Gates (1996; 1991), who demonstrate a disconnect between the interpretive theories publicly promoted and those actually applied in constitutional opinions written by Justices Brennan and Rehnquist. We demonstrate, by contrast, that Justices Scalia and Breyer differ markedly in the interpretive approaches used most often in their opinions and that the differences are consistent with their distinct jurisprudential philosophies. Furthermore, we find no evidence of a relationship between the ideological direction of opinions and the kinds of arguments presented therein. Thus, necessary (though in themselves insufficient) conditions for jurisprudentially based decision making are met in the case of these two justices.

This article examines the moderating effect of statutory interpretative methods on sympathy bias in legal decision-making. Previous research has shown that sympathy toward litigants can lead to biased decisions, particularly in cases of legal ambiguity. Two preregistered studies of 300 laypersons and 339 legal practitioners experimentally tested the effect of various interpretative methods on sympathy bias. The results reaffirm the existence of sympathy bias and demonstrate that participants are less swayed by sympathy when instructed to interpret the law by focusing on its plain meaning rather than the legislature’s intention or policy considerations. These findings suggest that a focus on the text of a legal rule can serve as a debiasing technique against sympathy bias. Interestingly, this moderating effect was not mediated by the effect of the interpretative method on the rule’s clarity or the decision’s predictability. The findings contribute to ongoing debates about judicial bias and statutory interpretation. To seek justice is to seek something free of bias. —Aristotle

Is There a Text in this Class? The Conflict Between Textualism and Antitrust

Although recent Supreme Court rulings clarified the constitutional issues concerning induced abortion in the U.S., the abortion debate is not over. The debate has simply moved out of the courtroom and into the country's state and federal legislative bodies. The 1973 Supreme Court rulings recognized that women have the constitutional right to decide whether to abort or continue a pregnancy while the 1980 Supreme Court ruling declared that state and federal governments are not obligated by the constitution to provide funds to insure that women can exercise their abortion rights. The court ruled that neither the due process nor the equal protection clauses applied to abortion funding. The court did, nowever, leave the way open for the battle to continue in legislative bodies. The legislative bodies were clearly assigned the task of deciding for themselves whether or not to fund abortions. Since the public has a variety of views on the subject, debate on the issue in legislatures throughout the country will be intense.

I am going to bring together what may seem at first to be two extremely different institutions for the creation of public meaning, namely classical Athenian tragedy and the Supreme Court opinion.1 My object is not so much to draw lines of similarity and distinction between them, as a cultural analyst might do, as to try to capture something of what I believe is centrally at work in both institutions, in fact essential to what each at its best achieves. I can frame it as a question: How is it that the best instances of each genre (for I will be talking only about the best) work to resist the ever–present impulse to trivialize human life and experience–certainly well known in our own era-and instead confer upon the individual, and his or her sufferings and struggles in the world, a kind of dignity? I think that something like this is in fact the core of the most important achievements of both institutions, and that in both cases it is simultaneously imaginative (or literary) and political in nature.

Previous articleNext article No AccessBook ReviewsDaniel M. Berman, It is So Ordered: The Supreme Court Rules on Segregation.PDFPDF PLUS Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by Volume 52, Number 2April 1967 Article DOIhttps://doi.org/10.2307/2716139 Journal History This article was published in The Journal of Negro History (1916-2001), which is continued by The Journal of African American History (2002-present). PDF download Crossref reports no articles citing this article.

2021/35 Supreme Court rules on constitutionality of Workplace Relations Commission (IR) By a majority of 4-3, the Supreme Court of Ireland has held that the Workplace Relations Commission’s power to adjudicate disputes between employers and employees was not unconstitutional. However, the majority of the Supreme Court did find that certain aspects of the Commission’s procedures were unconstitutional, namely the blanket ban on public hearings and the lack of capacity for taking evidence on oath. The Workplace Relations Act 2015 and the Workplace Relations Commission procedures have consequently been amended to address these issues. This case report is a follow-up on EELC 2020/34.

Statutory Interpretation In The Roberts Court’s First Era: An Empirical and Doctrinal Analysis