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Should Courts Give Stare Decisis Effect to Statutory Interpretation Methodology?


Sydney Foster


Harvard Law School

August 10, 2008

Georgetown Law Journal, Vol. 96, No. 6, 2008

Abstract:     
Fifty years ago, Henry Hart and Albert Sacks famously observed that the methods that courts use to interpret statutes are unpredictable and inconsistent, a conclusion that scholars and judges agree remains equally true today. While there is vehement disagreement over which doctrines of statutory interpretation are best, there is widespread consensus that increased consistency would be superior to the status quo. Scholars and judges have considered a range of ways to remedy this situation, but they have overlooked a path to consistency that is tailor-made to render the unpredictable more predictable: stare decisis doctrine. This Article argues not only that courts should give doctrines of statutory interpretation methodology stare decisis effect, but also that courts should give even stronger stare decisis effect to doctrines of statutory interpretation than they give to doctrines of substantive law. The interests that stare decisis doctrine serves in the substantive law setting are served equally well in the statutory interpretation methodology setting; moreover, stare decisis serves important rule-of-law and coordination interests in the statutory interpretation methodology setting that it does not serve in the substantive law setting. Because the case for giving stare decisis effect to doctrines of statutory interpretation is stronger than the case for giving stare decisis effect to doctrines of substantive law, courts should give doctrines of statutory interpretation stronger stare decisis effect than their substantive law counterparts.

Number of Pages in PDF File: 49

Keywords: legislation, statutory interpretation, statutory construction, stare decisis, canons, consistency, predictability

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Date posted: August 12, 2008  

Suggested Citation

Foster, Sydney, Should Courts Give Stare Decisis Effect to Statutory Interpretation Methodology? (August 10, 2008). Georgetown Law Journal, Vol. 96, No. 6, 2008. Available at SSRN: http://ssrn.com/abstract=1215122

Contact Information

Sydney Foster (Contact Author)
Harvard Law School ( email )
Cambridge, MA 02138
United States
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