Probabilism in Legal Interpretation
43 Pages Posted: 23 Feb 2021
Date Written: February 20, 2021
This Article develops a novel theory of statutory and constitutional interpretation, conceptualized as probabilism. Probabilism views legal rules as a communication coming from the lawmaker. What this communication says is an empirical fact that judges need to uncover. To that end, judges must consider all relevant evidence, identify every plausible meaning of the underlying statutory or constitutional provision, determine the probability that the provision’s drafters have chosen its wording to communicate the meaning under consideration, and, finally, adopt the meaning most likely to be factually correct. By following this approach, judges will maximize the accuracy of their interpretive decisions and fulfill their mission as faithful agents of the legislature and the people. The Article explains how probabilism works, illustrates it by celebrated court decisions, including Bostock v. Clayton County, and outlines its advantages over textualism, intentionalism and other schools of legal interpretation.
Keywords: probabilism, interpretation, statutory interpretation, constitutional interpretation, Title VII, Bostock, originalism, intentionalism, pragmatism, purposivism, fiatism
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