Methodology as Model, Model as Methodology

Abstract

This paper uses a presentation by Prof. Abbe Gluck in March of 2011 as a launching point for two observations. First, as I discuss in Part I, the use of a methodology for interpreting statutes in Oregon affects not only how Oregon courts approach the interpretation of Oregon statutes, but how they think about the process of interpreting statutes from other jurisdictions–including federal statutes. In turn, that approach may alter the way that federal courts think about their own processes of statutory interpretation, and may push them to consider that process in a more methodical way. Second, in Part II, I discuss some ways in which Oregon’s modified methodology for interpreting statutes reflects (and, perhaps, is determined by) the relationships between the various branches of Oregon’s government, particularly in the context of judicial review of administrative decisions. Oregon courts do not review agency rules under an arbitrary and capricious or other rationality-based standard; they are limited to review for consistency with statutory direction, and on that matter, Oregon courts give no deference to state agency interpretations of law. This observation suggests more broadly that governmental structure and processes of review influence judicial conclusions about whether, and what, methodologies might be appropriate to develop for courts when they are interpreting statutes.

Keywords: statutory interpretation; judicial decisionmaking; judicial deference to agencies; Chevron deference; administrative law; judicial review