The Art of Statutory Interpretation: Identifying the Interpretive Theory of the Judges of the United States Court of Appeals for Veterans' Claims and the United States Court of Appeals for the Federal Circuit

51 Pages Posted: 22 Aug 2019

See all articles by Linda Jellum

Linda Jellum

Mercer University - Walter F. George School of Law

Date Written: 2010


This Article explores the art of statutory interpretation, a topic of interest to scholars, academics, and practitioners. Whether you are a judge interpreting statutes, an academic teaching soon-to-be new lawyers how to interpret statutes, or a practitioner arguing the meaning of a statute to a judge, statutory interpretation matters. “The proper method of interpreting statutes is an enormously important legal issue that has seen enormous theoretical discussion, including some by Supreme Court Justices themselves.” Yet, despite its importance, there is no universally agreed upon method for interpreting statutes.

Why must lawyers interpret statutes? Simply put, “legislation is an act of communication to be understood on the simple model of speaker and audience, so that the commanding question in legislative interpretation is what a particular speaker or group ‘meant’ in some canonical act of utterance.” This particular “speaker or group” is the enacting legislature. Hence, statutory interpretation is the art of discerning the intent of the enacting legislature, for it is the enacting legislature that has the constitutional authority to make law. For this reason, judges attempt to interpret statutes as the enacting legislature would have wanted, or intended. But this is difficult.

Because of the difficulty of discerning legislative intent, judges have adopted a number of ways to interpret statutes. Some judges focus on the words of the text, believing that by giving words their ordinary meaning, judges will best discern legislative intent. Other judges focus on the purpose of the bill, believing that furthering that purpose is the best way to discern legislative intent. And other judges focus on the piecemeal nature of the legislative process, believing that by comparing various versions of the bill and any legislators’ statements accompanying those versions, they will best discern legislative intent. Legal scholars have named these ways of interpreting statutes the “theories of interpretation” and have exhaustively argued about which theory best accomplishes the goal of statutory interpretation. While lawyers are less aware of the differences, lawyers must master this topic to be effective advocates.

Perhaps more than for any other subject, understanding theory is critical to understanding statutory interpretation because theory drives every aspect of statutory interpretation. A judge’s theory of interpretation determines what information a judge will consider when searching for meaning. For example, some judges will not look at legislative history or social context for meaning unless the text of the statute is ambiguous or absurd. Assuming that the legislative history is helpful to a case, lawyers must learn to “talk the talk” to persuade these judges to move beyond the text. This Article will help you learn to talk the talk, to understand why theory matters, and to identify the theory of your decision maker. Knowing a judge’s theory may not help you win your case, for judges are rightly more concerned with underlying equities than with dogmatically following a theory of interpretation; but knowing a judge’s theory will help you communicate your case more effectively. In short, knowing theory will make you a better advocate, a better judge, and a better scholar, whether you are trying to convince your judge, your colleagues, or your readers.

Keywords: Statutory Interpretation, Statutory Construction, Auer Deference, Chevron Deference, Textualism, purposivism, intentionalism, agency, United States Court of Appeals for Veterans' Claims, Unites States Court of Appeals for the Federal Circuit, theories of interpretation

JEL Classification: K23

Suggested Citation

Jellum, Linda, The Art of Statutory Interpretation: Identifying the Interpretive Theory of the Judges of the United States Court of Appeals for Veterans' Claims and the United States Court of Appeals for the Federal Circuit (2010). University of Louisville Law Review, Vol. 49, No. 59, 2010, Available at SSRN:

Linda Jellum (Contact Author)

Mercer University - Walter F. George School of Law ( email )

1021 Georgia Ave
Macon, GA 31207-0001
United States

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