The Injustice of Dynamic Statutory Interpretation

How can we possibly plan our lives on the basis of the law of tomorrow when we can't predict what that law will be? Are courts that are attracted to dynamic statutory interpretation teaching us that we can no longer know and rely on the rule of law in our daily lives because months or years later they can use policy considerations to make new law and apply that law retroactively to us? Doesn't dynamic statutory interpretation amount to unconstitutional ex post facto legislation? Hasn't justice become impossible to get from courts if judges insist on upsetting both sides' expectations of what law was when their case or controversy arose, and instead pull the rug out from under their feet with new law based on the judges' own idea of general social and governmental policy? Isn't this just a case of judges appropriating the rights of the parties, without compensation, in order to announce new social legislation? Isn't this the very definition of injustice? Tags: judicial interpretation, legislative intent, statuatory interpretation, retroactive powers, separation of powers, pushme-pullyou argument [pg911]** Last summer I was sorting books in the basement when I came across some notes dated 1972, a time when I was teaching Constitutional Law for a living. They were the class notes of one of my students. I remembered that I had asked a student who had been taking copious notes in class if I could copy her notes for possible future use in my teaching. As things turned out, I never did consult those notes. So now as I looked through them it was like opening a window on a forgotten past. The notes revealed that nearly every question I asked in class had the word "policy" in it. "What's the policy behind this statute? Did the court's decision advance congressional policy?" I was embarrassed. Was I actually teaching this crazy stuff back in 1972? The evidence of the student's notes said: guilty. Since that time I have totally discarded anything resembling policy analysis. But because I discarded it piecemeal over many years, it was not until I read those notes that I realized how complete a mental revolution I had gone through. A couple of months ago when I received the invitation and honor to deliver this year's Robert S. Marx Lecture at the University of Cincinnati College of Law, I thought it would be a good idea to sort out the reasons why my younger self got it so wrong back when I was teaching Constitutional Law. Was it because the policy approach seemed new and different, compared to other courses in the curriculum? In those days Constitutional Law was not an important course; the law school curriculum was dominated by courses in private law. The public-law courses were a discrete and insular minority. Then in the mid-70s as I turned to other subjects, public law began a long and extraordinary rise to the prominence that it enjoys today. In my more solipsistic moments I believe that the public-law folks were just waiting for me to drop out before expanding the field. [pg912] Even as I was discarding policy analysis, the public-law scholars were busy enhancing it into a rule of decision for courts. In this Lecture I will not only try to explain why my younger self was so misguided, but I will go on to contend that the public-law theory of "dynamic statutory interpretation" is worse than misguided—it is unjust.