Purposivism and the 'Reasonable Legislator': A Review Essay of Justice Stephen Breyer's Active Liberty

Abstract

In this review essay, the author analyzes the theory of statutory interpretations set forth in Justice Steven Breyer's Active Liberty (2005). The author categorizes Justice Breyer's theory - the reasonable legislator criterion - as a brand of purposivism, and contrasts this mode of statutory interpretation with textualism. Under Justice Breyer's interpretive theory, judges should be free to take into account, in doubtful cases, the purpose of a statute, and to interpret the provisions of that statute in a manner both consistent with the statute's purpose and with the expectations of the fictitious reasonable legislator.

The author then analyzes three recent United States Supreme Court cases (Dole Food Co. v. Patrickson, Circuit City Stores, Inc. v. Adams, and Duncan v. Walker), each of which is presented in Active Liberty as an example of the superiority of purposivism to other modes of interpretation. In contract to Justice Breyer's conclusions, the author demonstrates how the textualist method would produce, in each of these cases, a result superior to that provided by purposivism. Further, the author establishes that even Justice Breyer's purposivism cannot reliably identify a statute's purpose.

Having debunked Justice Breyer's reasonable legislator criterion, the author advances his own interpretive theory - Blackstone Variant Textualism (BVT) - based upon principles expounded in the work of Sir William Blackstone. Each of the aforementioned Supreme Court cases is then analyzed according to BVT, and these results are compared with those produced by Justice Breyer's analysis. The author concludes that the fundamental distinction between Justice Breyer's approach and BVT lies in how one views the judiciary's role. Should the judge be a creative interpreter or the legislature's faithful agent? The answer to this question determines in large measure which theory of statutory interpretation one will adopt.

Keywords: purposivism, Justice Steven Breyer, reasonable legislator, Blackstone, textualism

JEL Classification: K10, K19