Statutes in Common Law Courts

By Pojanowski, Jeffrey A. | Texas Law Review, February 1, 2013 | Go to article overview

Statutes in Common Law Courts

Pojanowski, Jeffrey A., Texas Law Review

The Supreme Court teaches that federal courts, unlike their counterparts in the states, are not general common law courts. Nevertheless, a perennial point of contention among federal law scholars is whether and how a court's common law powers affect its treatment of statutes. Textualists point to federal courts' lack of common law powers to reject purposivist statutory interpretation. Critics of textualism challenge this characterization of federal courts' powers, leveraging a more robust notion of the judicial power to support purposivist or dynamic interpretation. This disagreement has become more important in recent years with the emergence of a refreshing movement in the theory of statutory interpretation. While debate about federal statutory interpretation has settled into a holding pattern, scholars have begun to consider whether state courts should interpret statutes differently than federal courts and, if so, the implications of that fact for federal and general interpretation.

This Article aspires to help theorize this emerging field as a whole while making progress on one of its most important parts, namely the question of the difference that common law powers make to statutory interpretation. This inquiry takes us beyond the familiar moves in federal debates on interpretation. In turn, it suggests an interpretive method that defies both orthodox textualism and purposivism in that it may permit courts to extend statutory rules and principles by analogy while prohibiting courts from narrowing the scope of statutes in the name of purpose or equity. Such a model accounts for state court practice at the intersection of statutes and common law that recent work on state court textualism neither confronts nor explains. This model also informs federal theorization, both by challenging received wisdom about the relationship between common law and statutes and by offering guidance to federal courts at the intersection of statutes and pockets of federal common law.

The framework this Article constructs to approach the common law question can also help organize the fledgling field of state-federal comparison more generally. With this framework, we can begin to sort out the conflicting and overlapping strands of argument already in the literature while also having a template for future inquiries. At the same time, this framework can help us think about intersystemic interpretation with greater rigor-an advance that can aid state and federal jurisprudence alike.


The revival of theory in statutory interpretation is one of the most significant events in American public law in the past three decades.1 The field continues to develop and its participants continue to disagree about how to read statutes. Yet even among some of the partisans, there is a sense that where there was once wide-ranging debate, there is now a settled equilibrium, if not an argumentative rut. "The guns in the statutory interpretation wars," one commentator muses, "are now largely silent."2 Another, a critic of academic textualism, finds a "strong consensus on the interpretive enterprise that dwarfs any differences that remain."3 Existing debate, on this account, obscures "just how thoroughly modern textualism has succeeded in dominating contemporary statutory interpretation."4

The dust from the Thirty Years' statutory interpretation wars may have settled and, while textualism has not won an unconditional surrender in the Supreme Court, it appears to have gained substantial territory before its truce with purposivism. If this is so, the scope of interpretive argument at the Supreme Court has narrowed in recent decades. Thus, scholars that synthesize and criticize that jurisprudence on its own terms may have to focus on a correspondingly modest number of questions. Even assuming that the Court's equilibrium is stable, however, that agreement covers only a tip of the interpretive iceberg. Statutory interpretation scholars have filled shelves of law reviews while focusing almost exclusively on the Supreme Court in general and on its exposition of federal public law in particular. …

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