A Decision Theory of Statutory Interpretation: Legislative History by the Rules

84 Pages Posted: 9 Nov 2012

See all articles by Victoria Nourse

Victoria Nourse

Georgetown University Law Center

Date Written: 2012


We have a law of civil procedure, criminal procedure, and administrative procedure, but we have no law of legislative procedure. This failure has serious consequences in the field of statutory interpretation. Using simple rules garnered from Congress itself, this Article argues that those rules are capable of transforming the field of statutory interpretation. Addressing canonical cases in the field, from Holy Trinity to Bock Laundry, from Weber to Public Citizen, this article shows how cases studied by vast numbers of law students are made substantially more manageable, and in some cases quite simple, through knowledge of congressional procedure. No longer need legislative history always be a search for one’s friends.

Call this a decision theory of statutory interpretation. This approach is based on how Congress does in fact make decisions and thus is a positive theory. Normatively, it has the advantage of privileging text without blinding judges either to relevant information or to their duty to implement Congress’s decisions, including Congress’s own decisionmaking methods. It may also have the side benefit of reducing legislative incentives to manipulate the rules or to engage in strategic behavior to induce particular statutory interpretations.

Suggested Citation

Nourse, Victoria, A Decision Theory of Statutory Interpretation: Legislative History by the Rules (2012). Yale Law Journal, Vol. 122, pp. 70-152, 2012, Georgetown Public Law Research Paper No. 12-150, Available at SSRN: https://ssrn.com/abstract=2161858

Victoria Nourse (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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