The Language of Statutes: Laws and Their Interpretation

Abstract

This is chapter 1 of The Language of Statutes: Laws and their Interpretation (University of Chicago Press (2010). The chapter situates debate about statutory interpretation as a battle between those who are concerned that judges, especially common law judges, have too much interpretive discretion, and those who would prefer that judges play a more significant role in the development of the law. At the root of the problem is the extent to which the human language faculty is able to produce rules of law that are at once “minute” and “flexible”, as Cardozo put it. This chapter illustrates communicative breakdowns in statutory language, and discusses their implications. It further outlines the argument of the book, in which legislative intent plays a significant role in interpretation, both empirically and normatively. At the same time, however, competing values - ranging from fair notice to dynamism to formalism - contribute substantially to interpretative decisions. Weighting these values and choosing among them is too subjective to create a theory that will produce consistent results in statutory cases. For the most part, however, judges and others limit themselves to relevant considerations. Fortunately, when proper base rates are taken into account, the set of statutory cases that are likely to produce results that more reflect the personal and political value of the decision maker than a legally-based result are few. Thus, we are left with a system in which a constant flow of uncertainty at the margins is a given, but which generally works well enough to sustain rule of law values.

Keywords: Legislation, Statutes, contextualism, textualism