Statutory Interpretation as 'Interbranch Dialogue'?

53 Pages Posted: 31 Aug 2018 Last revised: 17 Apr 2019

See all articles by James J. Brudney

James J. Brudney

Fordham University School of Law

Ethan J. Leib

Fordham University School of Law

Date Written: August 23, 2018

Abstract

Much in the field of statutory interpretation is predicated upon “interpretive dialogue” between courts and legislatures. Yet, the idea of such dialogue is often advanced as little more than a slogan; the dialogue that courts, legislators, and scholars are imagining too often goes unexamined and underspecified. This Article attempts to organize thinking about the ways participants and theorists conceive, and should conceive, of interbranch dialogue within statutory interpretation.

The Article itself proceeds by using a dialogic and dialectical method. It first develops various positions against “interbranch dialogue.” By invoking arguments from textualism, public choice, and positive political theory, it advances the position that dialogue should not animate thinking in statutory interpretation.

With that auspicious start, the Article then explores in conceptual and descriptive terms what would count as true dialogic activity. Interbranch dialogue is not reducible to mere textual pronouncements or anticipatory signaling efforts. Rather, it is best understood as responsive communication between the two institutions, in which each party listens to, takes seriously, and values what the other party says and thinks, even if there is disagreement on particular interpretive outcomes or their implications. This communication may emerge in unscripted or unanticipated terms or it may flow more formally from mechanisms designed to generate responsive exchange.

The Article highlights and examines numerous modes of dialogue that are initiated by the legislature and also by the courts, using examples from both federal and state systems.

The Article concludes by rehabilitating and rejuvenating the dialogue model in normative terms, drawing interbranch dialogue back to its legal process roots and revealing its links to more contemporary deliberative democratic theory.

Keywords: deliberative democracy, legal process, statutory interpretation, legislative supremacy

Suggested Citation

Brudney, James Jules and Leib, Ethan J., Statutory Interpretation as 'Interbranch Dialogue'? (August 23, 2018). UCLA Law Review, Vol. 66, No. 2, 2019 Forthcoming; Fordham Law Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=3237833

James Jules Brudney

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States
212-636-7387 (Phone)

Ethan J. Leib (Contact Author)

Fordham University School of Law ( email )

150 West 62nd Street
New York, NY 10023
United States

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