Thursday, February 4, 2010
Prof. Abbe Gluck (Columbia) has posted on SSRN her article Consensus Textualism: States as Laboratories of Statutory Interpretation, 119 Yale L.J. ___ (forthcoming May 2010). Here's the abstract:
This Article undertakes the first close study of statutory interpretation in several state courts of last resort, and illustrates that many central ideas in mainstream (federal) statutory interpretation, heretofore theorized only in the abstract, are actually in play in a number of states. It would doubtless surprise most academics and many judges to learn that, while academics have spent the past decade speculating about the “death of textualism,” or the utility of congressionally legislated rules of interpretation, or the capacity of judges on multimember courts to agree on a single set of interpretive rules, many state courts have been engaging in real-world experiments in precisely these areas. Several state courts have articulated single, governing interpretive regimes for all statutory questions. Methodological stare decisis - the practice of giving precedential effect to judicial statements about methodology - which is generally absent from federal statutory interpretation, appears to be a common feature of some states’ statutory caselaw. 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 the state cases is a surprisingly strong theory of what I label “modified textualism” that, while sharing textualism’s core components, 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 arefusal to treat methodological statements as precedential have made interpretive consensus seem impossible. Indeed, methodology seems to be an entirely different animal in these state courts. In these states, it is possible for one judge to bind another judge’s methodological choice. And in fact, federal judges, too, readily assent to this conception of methodology in other areas of law, like contract interpretation. Yet these principles have failed to translate to the federal statutory interpretation context, without much explanation of why statutory interpretation should be any different. Contrary to long-held assumptions, these state examples illustrate that ex ante-defined methodological frameworks are possible; that they appear to have beneficial rule-of-law, coordination, and expressive effects; and that the “modified textualist” theory advanced by the Article - the interpretive theory around which the state courts reach their consensus - may enhance the prospects of achieving methodological consensus in even more courts.