Abstract

http://ssrn.com/abstract=1513565
 


 



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


Robin Kundis Craig


University of Utah S.J. Quinney College of Law

2005

Tulane Law Review, Vol. 79, No. 4, 2005
FSU College of Law, Public Law Research Paper No. 413

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

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Date posted: November 27, 2009 ; Last revised: February 3, 2013

Suggested Citation

Craig, Robin Kundis, The Stevens/Scalia Principle and Why it Matters: Statutory Conversations and the Cultural Critical Critique of the Strict Plain Meaning Approach (2005). Tulane Law Review, Vol. 79, No. 4, 2005; FSU College of Law, Public Law Research Paper No. 413. Available at SSRN: http://ssrn.com/abstract=1513565

Contact Information

Robin Kundis Craig (Contact Author)
University of Utah S.J. Quinney College of Law ( email )
332 S. 1400 East Front
Salt Lake City, UT 84112-0730
United States

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