Decision Theory and Babbitt v. Sweet Home: Skepticism About Norms, Discretion, and the Virtues of Purposivism

Saint Louis University Law Journal, Vol. 57, pp. 909-930, 2013

Georgetown Public Law Research Paper No. 13-051

23 Pages Posted: 23 May 2013

See all articles by Victoria Nourse

Victoria Nourse

Georgetown University Law Center

Date Written: May 21, 2013

Abstract

In this writing, the author applies a “decision theory” of statutory interpretation, elaborated recently in the Yale Law Journal, to Professor William Eskridge’s illustrative case, Babbitt v. Sweet Home Chapter of Communities for a Great Oregon. In the course of this application, she takes issue with the conventional wisdom that purposivism, as a method of statutory interpretation, is inevitably a more virtuous model of statutory interpretation. First, the author questions whether we have a clear enough jurisprudential picture both of judicial discretion and legal as opposed to political normativity. Second, she argues that, under decision theory, Sweet Home is a far easier case than either Justice Stevens’s or Justice Scalia’s opinions reveal. Finally, the author critiques both opinions for failing to rely on norms borrowed from Congress’s actual decisions in the 1982 Endangered Species Act Amendments. The question then, is not “norms or not,” but whose norms, Congress’s or the courts’, should apply.

Keywords: decision theory, jurisprudence, statutory interpretation, purposivism, textualism, Supreme Court, Congress

JEL Classification: K00, K30, K39

Suggested Citation

Nourse, Victoria, Decision Theory and Babbitt v. Sweet Home: Skepticism About Norms, Discretion, and the Virtues of Purposivism (May 21, 2013). Saint Louis University Law Journal, Vol. 57, pp. 909-930, 2013, Georgetown Public Law Research Paper No. 13-051, Available at SSRN: https://ssrn.com/abstract=2268478

Victoria Nourse (Contact Author)

Georgetown University Law Center ( email )

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

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