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February 28, 2007

William Patry on Precedential Value of Cases Directing Interpretative Modes

William Patry has an interesting post going on whether there is any coercive power in a court to direct lower courts to use a particular method of interpretation.  You can find it here.

Mr. Patry and I were e-mailing back and forth about this issue, and it seems to me that there's tension between the notion that courts can direct the means used to interpret statutes, and the fact that there are a variety of state directives out there, where states "order" courts to use certain methods (generally, they tend to direct very open-ended inquiries, telling the courts to use leg history, purpose, and so on, and not just the text in interpreting statutes).  What if the state supreme court says one thing, but a state statute another?  Seems to me this loops back into the "is it substantive or procedural" question we were looking at earlier, in some ways.


February 28, 2007 in Current Affairs | Permalink


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Patry writes:

"Does this suggest that he views choice of interpretive methodology not merely as an inalienable component of the judicial power but rather as an inalienable prerogative of each individual Article III judge? Or do the policies underlying stare decisis not apply to interpretive methodology?"

When he was on the lower court, Scalia stated that though he was opposed to the use of legislative history, he could not ignore it given that the Supreme Court routinely used it.

Thus, I do not think he would argue that the choice to use it or not use it is an inalienable power of an A3 judge, but only the inalienable power of a justice :).

Posted by: andy | Feb 28, 2007 9:13:13 AM

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