The Costs of Consensus in Statutory Construction

Yale Law Journal Online, Vol. 120, 2010

UC Berkeley Public Law Research Paper No. 1616791

17 Pages Posted: 27 May 2010 Last revised: 5 Aug 2010

See all articles by Ethan J. Leib

Ethan J. Leib

Fordham University School of Law

Michael Serota



Finding methodological consensus for statutory interpretation cases is all the rage these days. Some in the academy sing the praises of a singular judicial approach to questions of statutory interpretation and bemoan the frustrations associated with judges implementing a mélange of interpretive techniques. And now, thanks to Abbe Gluck’s magisterial article, Laboratories of Statutory Interpretation, proponents of interpretive uniformity have evidence that some state courts seem to be applying methodological stare decisis to decide questions of statutory interpretation. After exhaustive reading and analysis of state statutory interpretation cases – cases that have received far less attention than their federal counterparts – Gluck describes several important developments in state legisprudence that she thinks may have significant implications for the federal system.

This Essay proceeds in two Parts. First, we argue that dissensus provides significant benefits to our judicial system that not only merit our attention but justify the rejection of any form of methodological stare decisis requiring judges to follow fixed regimes that categorically ignore a statute’s etiology or the processes used to enact it. Second, we argue that there are serious costs to the kind of methodological stare decisis Gluck has explored, and that careful attention to the benefits of dissensus demonstrates that modified textualism is normatively unattractive after all.

Keywords: statutory interpretation, methodological consensus, rules v. standards, textualism, legal process

Suggested Citation

Leib, Ethan J. and Serota, Michael Eli, The Costs of Consensus in Statutory Construction. Yale Law Journal Online, Vol. 120, 2010; UC Berkeley Public Law Research Paper No. 1616791. Available at SSRN:

Ethan J. Leib (Contact Author)

Fordham University School of Law ( email )

150 West 62nd Street
New York, NY 10023
United States

Michael Eli Serota

Independent ( email )

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