Academic journal article Duke Law Journal

Statutory Interpretation and the Rest of the Iceberg: Divergences between the Lower Federal Courts and the Supreme Court

Academic journal article Duke Law Journal

Statutory Interpretation and the Rest of the Iceberg: Divergences between the Lower Federal Courts and the Supreme Court

Article excerpt


This Article examines the methods of statutory interpretation used by the lower federal courts, especially the federal district courts, and compares those methods to the practices of the U.S. Supreme Court. This novel research reveals both similarities across courts and some striking differences. The research shows that some interpretive tools are highly overrepresented in the Supreme Court's decisions, while other tools are much more prevalent in the lower courts. Differences in prevalence persist even after accounting for the selection effect that stems from the Supreme Court's discretionary docket. Another finding--based on a study of 40 years of cases from all three levels of the federal judiciary--is that all federal courts have shifted toward more frequent use of textualist tools in recent decades. However, that shift has been less pronounced as one moves down the judicial hierarchy.

The divergence between the interpretive practices of different federal courts has implications for both descriptive and normative accounts of statutory interpretation. On the descriptive side, most beliefs about statutory interpretation are based on the narrow and unrepresentative slice of judicial business conducted in the Supreme Court, but some of those beliefs turn out to be incorrect or incomplete as descriptions of statutory interpretation more generally. This research therefore substantially improves our understanding of the complex reality of judicial statutory interpretation. On the normative side, the results of this research can advance scholarly and judicial debates over whether lower courts should conduct statutory interpretation differently than the Supreme Court and whether the Court's interpretive methodology should be binding on lower courts. This Article's findings also suggest that the teaching of statutory interpretation should take into account the distinctive practices of the lower courts, where the vast majority of legal work is done.


 I. What Lower-Court Interpretation Should Look Like: Tentative
      Hypotheses and Key Unanswered Questions
      A. The Opportunity for Divergence and Limits on It
      B. Causes of Divergence and Which Divergences They
            1. Institutional Context and Capacity
            2. Ideological Differences
            3. Lag Effects
      C. Summary of Predictions and Key Questions
 II. Research Methods and Findings
      A. Ways in Which Interpretation Can Differ Across Courts
      B. Overview of Research Methods
            1. Identifying Cases that Use Canons
            2. Selecting a Denominator
            3. Sources and Databases
            4. Published vs. Unpublished Opinions
      C. Top-Heavy and Bottom-Heavy Canons
            1. Rule of Lenity
            2. Varieties of Legislative History
            3. Constitutional Avoidance
            4. Substantive Presumptions
      D. The Matched-Corpus Method: Following the Same Cases
         at All Three Levels
      E. Comparing Textualist Trends at All Three Levels
      F. The Lifecycle of a Federalism Canon
      G. Summary of Key Findings
III. Conclusions and Future Directions: What Interpretive
      Divergence Means for Scholars, Courts, Teachers, and
      A. Implications for Scholars
      B. Implications for Courts
      C. Implications for Advocates and Their Teachers


Scholarship on statutory interpretation has traditionally focused on the U.S. Supreme Court. This narrow view is unfortunate because the Court's docket is a tiny and unrepresentative slice of the business of the federal courts, not to mention the business of the broader dispute-resolution system that includes state courts, administrative agencies, prosecutors, and private actors. The Court's atypicality threatens the relevance of normative theory that takes the Court as its model or its intended target. Worse still is the risk that scholars and litigators will embrace a distorted view of how statutory interpretation is conducted. …

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