Academic journal article Vanderbilt Law Review

Statutory Interpretations and the Therapy of the Obvious

Academic journal article Vanderbilt Law Review

Statutory Interpretations and the Therapy of the Obvious

Article excerpt

Statutory Interpretations and the Therapy of the Obvious Judging Statutes. By Robert A. Katzmann. New York: Oxford University Press. 2014. Pp. 184. $24.95.

I. Introduction

Arthur Koestler wrote that "the more original a discovery the more obvious it seems afterward."* 1 The same may be said about theories of law, and specifically about Robert Katzmann's new book, Judging Statutes.2 Judge Katzmann's approach to statutory interpretation seems so plausible and balanced that it is hard to believe that anyone ever believed anything else. In this particular case, however, there is in fact an "anything else." It is, of course, Justice Antonin Scalia's campaign to displace intentionalist or purposivist approaches to interpretation with what has come to be called "textualism,"3 and his related effort to rule out reliance on legislative history.* * 4 While Scalia has failed to persuade a majority of Supreme Court Justices, judges in general, or scholarly observers, his bedigerently stated views have produced observable results in the increased reluctance of judges to utilize other interpretive approaches, and the continued reluctance of scholars to dismiss his arguments as patently incorrect.5 Katzmann makes the implicitly recognized defects in Scalia's arguments genuinely obvious. Once it has been widely read, as it definitely should be, the judicial and scholarly reluctance wdl, ones hopes, be overcome. Nothing is likely to persuade Scalia, but this book should have the salutary effect of leaving him alone to wave his dictionary at the empty air.

This is not the only sense, however, in which Katzmann has revealed the obvious. There is, in American legal scholarship, a longstanding and deeply embedded reluctance to recognize the impact of legislation on our legal system. It is glaringly apparent in the case of legal education, where most law schools continue to offer a firstyear required curriculum that either predominantly or exclusively focuses on common law, and to teach upper Jevel statutory subjects through the lens of judicial decisions. Judges and practicing lawyers do not have the luxury to be so unrealistic, but even when they have come to terms with the pragmatic significance of modern legislation, they, like the legal academy, have failed to recognize its conceptual significance. The result has been a general difficulty in integrating statutes, and specifically their undeniably political character, with legal doctrine. Legal Process scholars made a good start in carrying out this necessary enterprise, but their conceptual difficulties, revealed in a certain skittishness about political reality, caused them to miss the obvious solution.

Katzmann's book provides this missing solution, the second and more significant way in which he reveals the overlooked obvious. It is a virtue of this book that it is brief and crisply written, with none of the unnecessary elaboration that more than occasionally afflicts legal scholarship. But it is a defect of the book that, in its modesty, it does not fully explicate the way in which it embraces the nature of the modern legal system and solves the longstanding problem of integrating politically motivated statutes with the legal doctrine by which such statutes are judged.

Part II of this Review discusses the way that Judging Statutes provides the obvious answer to Justice Scalia's textualism. In doing so, it summarizes the book, which deals explicitly with the subject. Part III discusses the way that the book resolves the difficulties that the Legal Process School encountered in its effort to integrate law and politics, and thus provides the obvious answer to this apparent dilemma. In doing so, this Review goes beyond the book's specific claims and considers its long-term impact.

II. Judging Statutes as Legislation

Katzmann begins the book with an introduction describing the issues that he faces as a judge when dealing with a case that involves the meaning of a statute. …

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