Is It Time for a Restatement of Statutory Interpretation?
25 Pages Posted: 5 Apr 2014
Date Written: April 3, 2014
In 2003, appellate lawyer Gary O’Connor wrote an article suggesting that the American Law Institute (ALI) compile a Restatement (First) of Statutory Interpretation. O’Connor’s article has been cited in the law review literature, and downloaded from the Social Science Research Network more than 1,500 times. This is a good time to look once again at O’Connor’s suggestion because some recent developments in the field of statutory interpretation suggest a growing convergence, notwithstanding embattlement on a few well-studied issues. There is surely enough agreed upon to generate material for a rich Restatement. Yet for reasons discussed in this article, I do not support such a project. Most convergence takes place at a level of abstraction that continues to leave room for a great deal of disagreement in any given case, and that a prestigious treatise setting forth black letter rules will serve more to create the illusion of settled principles for individual cases than it will to increase convergence in deciding them. The core problem is that many of the disagreements in statutory cases are over the interpretation of language that is subject to more than one interpretation, and over the consequences of our linguistic frailty: our cognitive inability to articulate concepts that will not suffer from becoming overbroad, under-inclusive, or both, when unusual events occur in the world.
Keywords: Restatement, ALI, Legislation, Statutory Interpretation
Suggested Citation: Suggested Citation