The Dumbing Down of Statutory Interpretation

This Article criticizes a recent movement toward making statutory interpretation simpler and more uniform. The trend is reflected by proposals to adopt codified rules of statutory interpretation, give stare decisis effect to interpretive methodology, use simpler methods of statutory interpretation in lower courts, and implement certain versions of textualism. This Article explains that such proposals are driven by an overarching desire to limit judicial discretion and promote a formal vision of the rule of law; they assume that the traditional hierarchy of legal sources is exclusive, and that statutory interpretation's function is to ascertain the meaning of the law.This Article challenges each of these goals or assumptions by claiming, first, that instead of seeking to eliminate judicial discretion, the primary goal of statutory interpretation methodology should be to protect the people from the possibility of domination by the state. Second, the resolution of disputes regarding the permissible scope of governmental authority in difficult statutory cases requires the use of practical reasoning, and the quality of statutory law and its democratic legitimacy benefit from a broad range of arguments and diverse judicial perspectives. Third, the traditional hierarchy of legal sources is outdated, and "interpretive methodology" and "agency decision-making" should be viewed as distinct forms of law that merit their own special places in a new legal hierarchy for the regulatory state. Finally, the central function of statutory interpretation by federal courts in the modern regulatory state is to provide individuals and groups with opportunities to contest the validity of particular exercises of governmental authority, rather than to ascertain the meaning of the law in a vacuum. This Article therefore argues that the recent proposals to dumb down statutory interpretation are fundamentally misguided, and it closes by making several related observations about the extent to which interpretive methodology can or should be simple or uniform. In sum, provisional dialogues by and among different centers of power better reflect the nature of law in the modern regulatory state than artificial efforts to achieve simple, predictable, or uniform final answers to our most pressing legal or social problems.IntroductionIn the early 1980s, a prominent legal scholar observed that "[t]he general contemporary American view of statutory interpretation is that there is not a great deal to say about the subject. As a result, nothing else as important in the law receives so little attention."1 There has been a dramatic revival of interest in the topic since that time,* 2 which has focused primarily on how federal courts should interpret statutes in a representative democracy with separated powers.3 The academic literature and accompanying judicial debates have resulted in the development of dynamic theories of statutory interpretation,4 the rise (and alleged fall) of the new textualism,5 the alleged emergence of a new purposivism,6 and, finally, calls to end the "interpretation wars" that have raged for the past quarter century with the declaration of a "truce."7 One influential new voice in the field has pointed out that "the kinds of questions" raised by the interpretation wars "are continually debated, but never definitively resolved, in modern Supreme Court statutory interpretation."8 In her view, "[t]hese debates are no longer useful," and the failure to settle on a consistent and predictable approach to statutory interpretation "wastes court and litigant resources; deprives Congress of an incentive to coordinate its behavior with the Court's interpretive methods; retains rather than eliminates another source of intracourt disagreement; and makes the Court appear resultoriented, because the governing principles change from case to case."9 The chief problem, from this perspective, is simply that "American courts have no intelligible, generally accepted, and consistently applied theory of statutory interpretation. …