The Worst Statutory Interpretation Case in History
27 Pages Posted: 13 Mar 2007
The thesis of Professor William Popkin's Statutes in Court: The History and Theory of Statutory Interpretation is that a coherent theory of statutory interpretation depends upon an understanding of the history of statutory interpretation. That history leads Popkin to advocate a theory of "ordinary judging" that "rests on the view that judges can reasonably lay a modest claim to lawmaking competence, helping the legislature implement good government by fitting statutes into their past and their future."
I explain in this essay that the problem with ordinary judging is that any theory of statutory interpretation must consider the costs of mistaken judicial interpretations of a statute. A theory that empowers judges to play a lawmaking role with respect to statutes enacted by the legislature and approved by the executive is dangerous if placed in the wrong hands. The danger, moreover, is hardly limited to judges whom one might describe as ordinary; in fact, the greatest threat might come from the most talented judges who are most confident of their abilities to abet the lawmaking process. Popkin errs by focusing on what a judge can do right while neglecting what a judge can do wrong.
The error can be illustrated by searching the very history of statutory interpretation that is so important to Popkin for examples of statutes that were misinterpreted in court. Or, to put it another way, what is the worst statutory interpretation case ever decided? I nominate People v. Hall, an 1854 case in which the California Supreme Court overturned a murder conviction because it interpreted a state statute to prohibit the testimony of any Chinese in court. Hall offers an opportunity to examine Popkin's description of what history and theory teach about statutory interpretation. Popkin presents both an exhaustive account of the history of statutory interpretation and an integrated theory of how statutory interpretation should be pursued. But the weakness of that theory lies in its failure to recognize that the threads of the historical account are not just twisted, but some might actually be wrong. It takes a case as terrible as Hall to shift the focus to the implications of statutory misinterpretation for statutory interpretation.
Keywords: statutory interpretation, Popkin, Chinese, immigration, California Supreme Court, legislature, courts, judging
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