The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism

113 Pages Posted: 2 Feb 2010 Last revised: 3 Jun 2010

Date Written: March 2, 2010

Abstract

This Article offers the first close study of statutory interpretation in several state courts of last resort. While academics have spent the past decade speculating about the “death of textualism,” the utility of legislated rules of interpretation, and the capacity of judges to agree on a single set of interpretive rules, state courts, as it turns out, have been engaging in real-world experiments in precisely these areas. Several state courts have articulated governing interpretive regimes for all statutory questions. Methodological stare decisis - the practice of giving precedential effect to judicial statements about methodology - is generally absent from federal statutory interpretation, but appears to be a common feature of some states’ statutory case law.

Every state legislature in the nation has enacted certain rules of interpretation, which some state courts are, in an unexpected twist, flouting. And, far from textualism being “dead,” what emerges from these state cases is a surprisingly strong consensus methodology - what this Article terms “modified textualism” - a theory that shares textualism’s core components but has broader potential appeal. These state developments offer a powerful counter-paradigm to that of the U.S. Supreme Court, where persistent interpretive divides and a refusal to treat methodological statements as precedential have made interpretive consensus seem impossible.

They also highlight that, for all the energy that the statutory interpretation wars have consumed, the legal status of methodology itself - whether it is “law” or something “less” - remains entirely unresolved.

Keywords: Legislation, Statutory Interpretation, Statutes, Textualism, Purposivism, Stare Decisis, Interpretation, States, State Courts, Legislatures, Supreme Court

JEL Classification: D7

Suggested Citation

Gluck, Abbe R., The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism (March 2, 2010). 119 Yale Law Journal 1750 (2010), Columbia Public Law Research Paper #10-235, Available at SSRN: https://ssrn.com/abstract=1546550

Abbe R. Gluck (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203 432 6703 (Phone)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
620
Abstract Views
6,380
rank
55,422
PlumX Metrics