Statutory and Common Law Interpretation

Statutory and Common Law Interpretation

Statutory and Common Law Interpretation

Statutory and Common Law Interpretation


As Kent Greenwalt's second volume on aspects of legal interpretation, this book analyzes statutory and common law interpretation and compares the two. In respect to statutory interpretation, it first asks whether judges are "faithful agents" of the legislature or "independent cooperative partners." It concludes that the obvious answer is that neither simple categorization really fits - that the function of judges involves a combination of roles. The next issue addressed is whether the intent of those in authority matters for interpreting the kinds of instructions contained in statutes. At the general level, the answer is "yes." This answer follows even if one thinks interpretation should concentrate on the understanding of readers, because readers themselves would treat intentions as part of the relevant context of the language of statutes. It would take some special reasons, such as constitutional structure or unreliability, to discount actual intents of legislators and use of legislative history. The book argues that none of these special reasons are convincing. On the question whether judges should focus on the language of specific provision or overall purpose, both are relevant, and purpose should become more important as time passes. In an analysis of various other features of statutory interpretation, the book claims that presidential signing statements should not have weight, that subsequent legislative actions short of new statutes should only occasionally carry importance, that "canons of interpretation," such as the rule of lenity, can provide some, limited, guidance, and that there are special reasons for courts to adhere to precedents in statutory cases, but these should not yield any absolute rule. A chapter on administrative interpretation of statutes claims that the standards agencies apply should differ to a degree from those of courts and that judicial deference to those interpretations is ordinarily warranted.The book's second part, on common law interpretation, considers the force of precedents, resisting any simple dichotomy between holding and dictum. It also defends the use of reasoning by analogy, not only in the initial stages thinking about a problem, but also in respect to some final justifications for decisions. An examination of the place of rules, principles, and policies argues that all three are relevant in common law interpretation; and shows that common law interpretation is not reducible to any formula. A final chapter compares statutory and common law interpretation, similarities and differences, how each can affect the other, and the significance of having a legal system in which they both play prominent roles.


The two topics of this book are ones that have engaged my interest for most of my teaching career. During the last quarter century, I have had the good fortune to teach Legal Methods to incoming students, using Peter Strauss’s challenging casebook on that subject, which offers an excellent introduction to both statutory and common law interpretation. During the same period, participants in seminars on legal interpretation have enriched my understanding with their insightful discussions and their papers. In 1999, Statutory Interpretation: 20 Questions was published. The present volume draws to a degree from that book, but my views have developed considerably since that time, largely in response to the insights of colleagues on the faculty and other scholars. My interest in aspects of common law interpretation was stimulated by the work on reasoning by analogy of Lloyd Weinreb, with whom I had the good fortune to be coclerk for Justice John Marshall Harlan.

As this book was nearing its final stages, I benefitted greatly from discussions of the chapter on analogy at Pace Law School, and the chapter on text and intention at a conference on statutory interpretation held at Columbia Law School. In February of this year, I had the great fortune to present numbers of the chapters to groups of faculty at the University of Virginia Law School.

The research assistance I have enjoyed in this effort has been extraordinarily valuable. Among those who have contributed greatly by finding and summarizing references, and by offering comments on my earlier formulations, have been Lauren Barlow, Michael Fernández, Kyle Gazis, Martie Kutscher, Adam Mehes, Miles Pope, Laura Swanson, and Leonid Traps. In addition to offering perceptive substantive criticisms, Stephen Farrelly, at the stage before final submission, filled in missing citations and proposed significant improvements in the language of many of the chapters. During the main process of research and writing, Adam Hochroth was invaluable. In identifying sources I almost certainly would not otherwise have learned about (especially those involving commentary from other common law countries), in coming up with new ideas and possible approaches, and in raising nuances of analysis that had not occurred to me, he was indispensable to the final content of this volume.

Marianne Carroll word-processed numbers of the chapters at different points, perceiving elusive handwriting quickly and accurately, and identifying omissions. Katherine Bobbitt dealt with all the chapters at one stage or another, and, as always, she discerned places where I had left out needed . . .

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