May 3, 2008
New Study on Justice Scalia Statutory Interpretation
I found a great new article on Justice Scalia, thanks to Professor David Hricik's Statutory Construction Blog. Written by Professor Miranda McGowen at the University of San Diego, it is entitled, "Do as I Do, not as I say: An Empirical Investigation of Justice Scalia's Ordinary Meaning Method of Statutory Interpretation." Studying Scalia's dissents for the past twenty years she concludes,
"This study shows that Justice Scalia consults an eclectic set of extrinsic materials when he is construing statutes. He in fact uses essentially the same broad set of materials that other justices use—except for legislative history.
"This also study found that Justice Scalia’s methodology is eclectic, too. In a quarter of the issues in this sample, Justice Scalia abandoned textualism in favor of overtly common law methods. When interpreting regular statutes, his presumption in favor of ordinary meaning did little work for him; in a majority of cases Justice Scalia construes words in statutes in light of their specialized, legal meanings or the meaning they have accrued in case law or in common law, not their ordinary meaning.
"Whatever Justice Scalia says about his interpretive theory, he is as purposivist of a judge as they come. The data show that he interprets statutes in light of purpose as frequently as the rest of the Court. Purpose rather than text sometimes drives his interpretation; if statutory purpose requires it, he will sometimes adopt second-best textual interpretations.
"The purposes he attributes to statutes do not come from his theory of interpretation, for he claims that purpose analysis is generally improper, unless the text indicates the statute’s purpose. Nor do they come from the legislative materials, for he considers them too unreliable and too easily manipulated to provide judges with the proper amount of constraint.
"Sometimes Justice Scalia does infer statutory purpose from the text, and sometimes from agency regulations. But frequently, his sense of a statute’s purpose comes from earlier Court decisions and lower court decisions. Indeed, this is so often the case that his statutory interpretation practice bears an uncanny resemblance to the kind of common law interpretation of statutes he has decried in his theoretical writings."
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