Decision Theory and Babbitt v. Sweet Home: Skepticism About Norms, Discretion, and the Virtues of Purposivism
Victoria F. Nourse
Georgetown University Law Center
May 21, 2013
Saint Louis University Law Journal, Vol. 57, pp. 909-930, 2013
Georgetown Public Law Research Paper No. 13-051
In this writing, the author applies a “decision theory” of statutory interpretation, elaborated recently in the Yale Law Journal, to Professor William Eskridge’s illustrative case, Babbitt v. Sweet Home Chapter of Communities for a Great Oregon. In the course of this application, she takes issue with the conventional wisdom that purposivism, as a method of statutory interpretation, is inevitably a more virtuous model of statutory interpretation. First, the author questions whether we have a clear enough jurisprudential picture both of judicial discretion and legal as opposed to political normativity. Second, she argues that, under decision theory, Sweet Home is a far easier case than either Justice Stevens’s or Justice Scalia’s opinions reveal. Finally, the author critiques both opinions for failing to rely on norms borrowed from Congress’s actual decisions in the 1982 Endangered Species Act Amendments. The question then, is not “norms or not,” but whose norms, Congress’s or the courts’, should apply.
Number of Pages in PDF File: 23
Keywords: decision theory, jurisprudence, statutory interpretation, purposivism, textualism, Supreme Court, Congress
JEL Classification: K00, K30, K39Accepted Paper Series
Date posted: May 23, 2013
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