Textualism's Failures: A Study of Overruled Bankruptcy Decisions

Abstract

This Article presents new empirical evidence bearing on the efficacy of textualism as a method of statutory interpretation. The data set consists of all bankruptcy decisions superseded by amendments to the Bankruptcy Code 1978-1998 (N=58), but the results have meaningful implications for theory and practice in interpreting statutes outside the bankruptcy field as well. Analysis of the bankruptcy decisions indicates that the cases subsequently overruled by statute are much more likely to adopt textualist methods of interpretation (p<.001) than randomly selected cases. If rational and efficient development and administration of complex statutory schemes in a manner consistent with democratically selected policies is the primary goal of interpretation, this evidence supports judicial reconsideration of textualism and should reinforce pragmatists' commitment to pragmatic interpretation. Analysis of legislatively overruled bankruptcy decisions also lends insight into other variables (including court, region, age, prevailing party and chapter) associated empirically or theoretically with statutory overruling and the efficacy of legislative error-correction by amendment.

JEL Classification: K4, K0, K29, H1