Judging Statutes: Thoughts on Statutory Interpretation and Notes for a Project on the Internal Revenue Code
30 Pages Posted: 26 Jan 2004
Positive analyses aimed at answering the question of why judges interpret statutes the way they do abound. Some authors suggest the primary determinant centers on the political ideology of the judges, others argue that jurists interpret statutes in a strategic fashion vis-a-vis the relevant actors in the playing field, and still others maintain that statutory interpretation has less to do with policy maximization than with principle maximization. To us, the most interesting features of the non-normative literature on statutory interpretation lie not on the distinctive conclusions generated, but rather on the commonalities. First, many of the relevant studies focus on civil rights legislation. This holds true regardless of whether the author is a legal academic or a social scientist, whether the research is primarily quantitative or qualitative, or whether the theoretical grounding is in psychology, sociology, political science, or economics. Second, almost all studies, especially those of the large-n quantitative variety, explore the outcomes reached by jurists and not the rationale or justification they invoke. These are not criticisms of the extant literature; in fact, we believe that by investigating outcomes reached in civil rights cases, authors have revealed a great deal about the "judicial mind." At the same time, we believe just as firmly that if we are to understand fully the determinants of statutory interpretation, then the emphases on civil rights and outcomes impose serious limitations. Accordingly, we have a devised a project that aspires to address these concerns by (1) exploring Supreme Court tax opinions, a large body of case law that, despite its importance, has received virtually no systematic attention, and (2) taking into account both outcomes and rationales. In this Article, we do not present results (other than the most preliminary findings) given that our data collection is still underway. Rather, we make the case for moving beyond the arena of civil rights, and for incorporating rationales into models of statutory interpretation.
Keywords: Tax, Law, Courts Politics, Empirical
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