April 3, 2008
Professional Reading: Applying Communication Theory to Statutory Interpretation
Cheryl Boudrea (UC-Davis), Arthur Lupia (Michigan), Mathew Cubbins (UC-San Diego), and Daniel Rodriguez (Texas), What Statutes Mean: Interpretive Lessons from Positive Theories of Communication and Legislation, 44 San Diego L. Rev. 957 (2007), [SSRN Download Link] is one of the most interesting articles I have read in quite awhile. Highly recommended. [JH]
Here's the abstract:
In this paper, we address a question that is hotly debated in the legal literature: How should judges interpret statutes? By way of an answer, we begin with two premises: 1) statutory interpretation is a quest by judges to determine what statutes mean, and 2) statutes are communications from a constitutionally-authorized legislature to those who are obligated to implement, enforce, or follow the law. We then argue that scientific propositions about human communication can help judges to determine what a statute's authors meant when they chose to include (or not to include) particular words in a piece of legislation. Specifically, we draw upon well-known communication theories, which emphasize that successful inference about meaning requires that the manner in which a communication is decoded relate to aspects of its manufacture in particular ways. What this insight suggests for scholars of statutory interpretation (and for judges interpreting statutes) is that discerning the meaning of any piece of legislation requires an understanding of the ways that such legislation was manufactured throughout the legislative process. This insight also provides important clues about the kinds of informational sources that can be useful to those who want to clarify the meaning of a statute.
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