Hierarchy and Heterogeneity: How to Read a Statute in a Lower Court

Abstract:     
Is statutory interpretation an activity that all courts should perform the same way? Courts and commentators implicitly so conclude. I believe that conclusion is wrong. Statutory interpretation is a court-specific activity that should differ according to the institutional circumstances of the interpreting court. The U.S. Supreme Court is not the model all other courts should emulate.

I identify three kinds of institutional differences between courts that bear on which interpretive methods are appropriate: (1) the court’s place in the hierarchical structure of appellate review, (2) the court’s technical capacity and resources, and (3) the court’s democratic pedigree, particularly as reflected in methods of judicial selection. Attending to these institutional factors would yield insights for both judicial practice and academic theory. In terms of prescriptions for courts, the differences justify a heterogeneous regime in which courts at different levels of the judicial hierarchy use somewhat different interpretive methods. But even apart from my specific recommendations, the larger point is that scholars need a normative account of what lower-court statutory interpretation should look like. Such a normative framework would help us evaluate the lower courts’ output (which is becoming the subject of an important and growing body of descriptive work) and determine which of the Supreme Court’s practices should – and should not – be followed in the lower courts.

Number of Pages in PDF File: 68

Keywords: statutory interpretation, legislation, textualism, appellate courts, judicial institutions

Accepted Paper Series