September 26, 2006
Eskridge & Dynamic Interpretation
I've begun to read William N. Eskridge's book, Dynamic Statutory Interpretation. In the first chapter, he does an extremely persuasive job of explaining why purposivism, imaginative reconstruction, textualism, and intentionalism fail as "archeological" methods to determine statutory meaning. To use his phrase, none of those approaches "satisfactorily describe what courts and agencies do in statutory interpretation." (48)
I'm about to explore the rest of the book, but had a thought to raise. Perhaps, just perhaps, there is a sliding scale that those judges who are not anchored to one approach are using. In other words, judges will apply text when it's clear, but if it's not or if it seems like an odd (absurd or something less than that) result, they will tend to look to other sources (intent, purpose) for meaning? So far, that's lurking around in the back of my head as I read the book, which is quite interesting, if you haven't read it.
As an aside, I finished co-authoring our book last year. I was determined to read, almost entirely, cases rather than articles talking about cases, in order to draw my own conclusions as to what the courts were doing. The book's full of those cases, and the interesting, and I think exciting, thing that the cases from Michigan (and other states) that I'll discuss here are that often they are cases where the judges are expressly struggling with the various theories of interpretation. It is, I think, a most interesting and important debate.
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I am an adjuct instructor of law teaching Administrative Law after some 30 years practice in that field. I find that many law students break out in a cold sweat at the mere thought of reading statutes, much less doing statutory analysis. I'd like to assign a relatively short problem for students to apply and compare the approaches of Escridge's dynamic statutory interpretation approach to the plain text (even dictionary-based approaches) in many recent cases. Any suggestions?
Posted by: Robert W. Nichols | Mar 1, 2007 9:21:11 AM
We have some problems like that (several) in our problem-based book, from Carolina Academic Press (www.cap.com). They will sell individual chapters, etc., if you want to go that route. Anyone else know of anything?
Posted by: David Hricik | Mar 5, 2007 3:43:45 AM