Theory with practical implications: Gluck on statutory interpretation

Statutory interpretation is often at the center of administrative law issues. Abbe R. Gluck (Columbia) has published "The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism", 119 YALE L.J. 1750 (2010). Abstract:

This Article offers the first close study of statutory interpretation in several state courts of last resort. While academics have spent the past decade speculating about the “death of textualism,” the utility of legislated rules of interpretation, and the capacity of judges to agree on a single set of interpretive rules, state courts, as it turns out, have been engaging in real-world experiments in precisely these areas. Several state courts have articulated governing interpretive regimes for all statutory questions. Methodological stare decisis—the practice of giving precedential effect to judicial statements about methodology—is generally absent from federal statutory interpretation, but appears to be a common feature of some states’ statutory case law. Every state legislature in the nation has enacted certain rules of interpretation, which some state courts are, in an unexpected twist, flouting. And, far from textualism being “dead,” what emerges from these state cases is a surprisingly strong consensus methodology—what this Article terms “modified textualism”—a theory that shares textualism’s core components but has broader potential appeal. These state developments offer a powerful counter-paradigm to that of the U.S. Supreme Court, where persistent interpretive divides and a refusal to treat methodological statements as precedential have made interpretive consensus seem impossible. They also highlight that, for all the energy that the statutory interpretation wars have consumed, the legal status of methodology itself—whether it is “law” or something “less”—remains entirely unresolved.

Amanda Frost comments on SCOTUSblog that

Just when you think there is nothing more to be said about statutory interpretation, a new article demonstrates that the topic is far from exhausted. ... [S]tate court judges are finding a middle ground between textualism and purposivism that has eluded federal judges and academics alike.  As Professor Gluck suggests, these developments at the state level may eventually inform and change the federal judiciary’s approach to statutory interpretation.  If nothing else, her analysis of these state practices should give both academics and federal judges a new perspective on some old problems.

I think she is right. The criticism goes back to Llewellyn. Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons about How Statutes Are to Be Construed, 3 VAND. L. REV. 399 (1949). The U.S. Supreme Court's failure to use and express a consistent set of principles for statutory interpretation invites a response - a backlash - from other Constitutional entities (Congress, Executive, states). A must-read article, and a topic we need to monitor. Thanks to SCOTUSblog for the pointer. EMM