When Good Enough is Not Good Enough

WHEN GOOD ENOUGH IS NOT GOOD ENOUGH The Language of Statutes: Laws and Their Interpretation. By Lawrence M. Solan. Chicago: University of Chicago Press. 2010. Pp. x, 288. $45.IntroductionAccording to conventional wisdom, the state of statutory interpretation is not strong. Its canons of construction-noscitur a sociis, ejusdem generis, expressio unius est exclusio alterius, reddendo singula singulis, and more than a few others-are a morass of Latin into which many law students and even judges have sunk. Its practitioners are unprincipled. Its doctrines are muddied. Its victims are many. In short, the system is broken-unless, of course, it is not.In The Language of Statutes: Laws and Their Interpretation, Lawrence M. Solan1 slices through the rhetoric, the fighting, and the law-review-article histrionics in an attempt to show that the system actually works pretty well. Solan admits that there are hard cases (p. 4). He even outlines how and when those hard cases are likely to arise, drawing on his expertise in cognition and linguistics (p. 4). But he argues that those hard cases are the exceptions (p. 4); to him, the easy cases are the rule (pp. 4-5).Part of the problem, Solan writes, is that hardly anyone ever talks about those easy cases. Instead, commentators focus only on the difficult interpretive choices that reach the Supreme Court. Solan claims that this vantage point obscures the reality of the situation, which is that there is usually no dispute as to how a law will apply. Those are the easy cases. When the text of a statute reads "No vehicles allowed in the park" and the defendant has driven his pickup truck onto the Great Lawn, the rule clearly and neatly applies. The parties recognize that the statute applies. The case settles or the defendant pleads, and everyone goes home. No one writes law review articles about these cases.Partly because the vast majority of cases are such car-in-the-park cases, Solan concludes that statutory interpretation actually works fairly well. The system, he claims, is not "a mess, full of arbitrary decisions," as many think (p. 4). We should not be "terribly worried" either that judges sometimes have to make decisions or that judges have too little power to make such decisions when necessary (p. 4). The proper application of a statute to a particular set of facts is clear "most of the time," and people understand their obligations under the law "well enough" (p. 4). A header in Chapter One sums up his point succinctly: "Laws Work . . . Most of the Time."2This Notice challenges Solan's claim that statutory interpretation is as problem-free as he suggests. Part I provides an overview of the book, noting Solan's considerable contributions toward understanding how and when problems of interpretation arise. It also addresses Solan's efforts to solve some of the mysteries of the subject, a task he approaches with an evenhandedness that stands in sharp contrast to some of the alarmist diatribes published by other scholars. Part II argues that the current system of statutory interpretation still needs some serious reforms-namely, the adoption of a single set of interpretative guidelines for all judges to use-and suggests that while Solan convincingly demonstrates that things are not as dire as they seem, his tolerance for the status quo may be too high.I. Good EnoughEven the simplest directive can be difficult to draft, follow, and interpret. As an example, Solan offers the rule that makes it illegal to move between train cars on the New York City subway (p. 6). It has long been illegal to move between cars when a train is in motion, but it has been illegal only since 2005 to do so even when the train is stopped at a station (p. 6). The text of the rule is displayed on the rules section of the Metropolitan Transit Authority ("Transit Authority")'s website as follows: "It is a violation to . . . [m]ove between end doors of a subway car whether or not train is in motion, except in an emergency or when directed by police officer or conductor" (p. …