Academic journal article Harvard Law Review

The Law of Interpretation

Academic journal article Harvard Law Review

The Law of Interpretation

Article excerpt

INTRODUCTION I.   WHAT'S MISSING FROM THE STANDARD PICTURE      A. The Standard Picture      B. Problems with the Picture         1. The Limits of Linguistic Guesses         2. Multiple Theories of Meaning      C. The Skeptical Response II.  A TASK FOR LAW III. OUR LAW OF INTERPRETATION      A. Written Law         1. Substantive Defaults         2. Interpretive Defaults      B. Unwritten Law         1. Substantive Rules         2. Interpretive Rules            (A) Interpretive Defaults            (A) Priority Rules            (C) Closure Rules         3. The Structure of Interpretation            (A) Defining the Object of Interpretation            (B) Identifying Written Law's Role            (C) Choosing an Interpretive Approach      C. Interpretive Rules and the Constitution IV.  IMPLICATIONS      A. Assessing the Canons         1. Their Authority         2. Their Validity         3. Some Examples      B. Assessing Construction         1. Concerns About Construction         2. Construction and Law         3. Resolving the Disputes V.   OBJECTIONS      A. Mutability         1. What Happens When Interpretive Rules Change?            (A) Adoption Rules and Application Rules            (A) Implications for Interpretation         2. Who Can Change the Interpretive Rules?            (A) The Nature of Interpretive Rules            (B) Deliberate Change                (i) By Judges                (ii) By Legislatures      B. Indeterminacy         1. Finding the Law of Interpretation         2. Applying the Law of Interpretation            (A) The Volume of Indeterminacy            (B) Resolving Hard Cases            (C) The Work of Closure Rules         3. Residual Indeterminacy CONCLUSION 


(1) Read the statute; (2) read the statute; (3) read the statute!" Great judges tell us these are the fundamental rules of statutory interpretation. Their admonition reflects a standard picture of the interpretive process. People often assume, usually without realizing it, that a judge's job is to "read the [text] and do what it says." They may disagree violently about how the text should be read; but if only we could accurately read the authors' minds, or discern their purposes, or compile the ideal legal dictionary for their time and place, or whatnot, then we'd know what to do. The law the text enacts just is whatever the text says it is.

Not everyone agrees. A more skeptical view of interpretation, embodied in recent papers by Professors Cass Sunstein and Richard Fallon, holds that there's nothing that legal interpretation "just is." (1) Instead, there are many ways to read a legal text, each with its own claim to authority. And if an instrument can mean many things, then judges are and should be largely unbound when choosing among them--engaging instead in case-by-case normative balancing, (2) or selecting from the "capacious ... range of approaches" whatever they think "makes the relevant constitutional order better rather than worse." (3)

Both the standard picture and the skeptical view are missing something: law. Interpretation isn't just a matter of language; it's also governed by law. This "law of interpretation" determines what a particular instrument "means" in our legal system. Whether the written text actually has that meaning in any natural language, whether English, Latin, or legalese, is largely beside the point. The law says it does, and that's what matters.

As an example, think of the famous case of the two ships Peerless. (4) Two parties agreed to send cotton on the Peerless, unaware that there were two such ships sailing months apart (and that each party had a different ship in mind). As Professor Arthur Corbin recognized, it's useless to ask what the jointly authored contract really means. The parties sought to convey different ideas, they invoked different public meanings, they had different purposes, and so on. Even if a judge "knew all the circumstances that were known to both the speaker and the hearer, he could still give it no 'correct' meaning of his own. …

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