The Stevens/Scalia Principle and Why it Matters: Statutory Conversations and the Cultural Critical Critique of the Strict Plain Meaning Approach

Abstract:     
Many environmental and natural resources statutes have existed for decades. Moreover, they have been evolving over that time in response to congressional recognition of new problems, improved scientific and public health information, and agency and court interpretations of prior provisions. Under a purposivist approach to statutory interpretation and construction, these evolutions should be relevant to the current "plain meaning" of these provisions.

Nevertheless, as the purposive approach to statutory interpretation has come under increasing criticism in U.S. jurisprudence over the last two decades, the Supreme Court Justices have diverged in their treatment of statutory history and the relevance of a statute's evolution to its current meaning. The result is the Stevens/Scalia Principle: If Justice Stevens and Justice Scalia differ in how each interprets one of these long-lived statutes, something interesting happened in that statute's history.

This article argues that, at the largely unexamined crux of two functionally opposing contemporary threads of statutory interpretation – the textualist critique of of the traditional purposive approach and the postmodern recognition that meaning is always indeterminate and contextual – is the conception of a statute's "audience," and that Congress's conception of audience should have a bearing on statutory interpretation. Allowing for a concept of audience allows recognition that there are different kinds of legal subcultures and that complex, technical, and evolving statutes often require a dialogic mode of interpretation.

Number of Pages in PDF File: 86

Keywords: statutes, statutory interpretation, statutory construction, dialogic. plain meaning, textualism, purposive, purposivist, contextual, postmodern

Accepted Paper Series