Purposivism and Institutional Competence in Statutory Interpretation

33 Pages Posted: 14 Sep 2009 Last revised: 26 Sep 2013

Michael Herz

Yeshiva University - Benjamin N. Cardozo School of Law

Date Written: September 13, 2009

Abstract

Writers on legal interpretation have almost all either addressed general principles or focused on differences in the interpretation of different sorts of texts; rarely have they distinguished among different sorts of interpreters. Thus, most writing on statutory interpretation approaches the problem generally, but the writer almost always has judges in mind. Only a handful of authors have considered whether the strengths and weaknesses of different interpretive methodologies might be of more or less concern when the interpreter is not a judge. This is one effort to do so. This paper considers the standard arguments against purposivist statutory interpretation and concludes that almost all are more powerful when applied to courts than when applied to agencies. I do not mean to endorse that critique as applied to courts, nor do I mean to say it is wholly inapplicable to agencies. In relative terms, however, agencies are in a better position to interpret statutes in light of their purpose than are courts. The paper concludes with a discussion of the coherence of a regime in which courts review agency interpretations using a different interpretive methodology than the agency's. Although at first blush it seems problematic, in fact it is not necessary that courts and agencies approach this task identically.

Keywords: interpretation, hermeneutics, legislation, administrative agencies, chevron, skidmore, APA, duke energy

Suggested Citation

Herz, Michael, Purposivism and Institutional Competence in Statutory Interpretation (September 13, 2009). 2009 Michigan State Law Review 89; Cardozo Legal Studies Research Paper No. 267. Available at SSRN: https://ssrn.com/abstract=1472709

Michael Eric Herz (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

55 Fifth Avenue
New York, NY 10003
United States
212-790-0373 (Phone)

HOME PAGE: http://www.cardozo.yu.edu/MemberContentDisplay.aspx?ccmd=ContentDisplay&ucmd=UserDisplay&userid=1051

Paper statistics

Downloads
202
Rank
122,830
Abstract Views
1,576