Vanderbilt Law Review
Over the past 15 years, the canons of construction have experienced a remarkable revival in the courts and the legal academy. While the role of this interpretive resource has been heavily theorized, it has until now been under-explored from an empirical standpoint. This article adopts a novel combination of empirical and doctrinal analysis to uncover the Supreme Court's complex patterns of reliance on the canons over a 34-year period. We focus on whether the canons are favored across different time periods, in particular subject matter areas, by individual justices, and in close cases. Our approach - identifying ten different interpretive resources, linking reliance on those resources to ideological outcomes, and pursuing extensive follow-up doctrinal analysis of individual cases - breaks important new ground in the analysis of judicial reasoning from an empirical perspective. Our findings and conclusions cast serious doubt on the contentions by legal process proponents that the canons can serve as consistent or impartial guidelines to statutory meaning; they also challenge the behavioral account of canon use advanced by public choice scholars. In addition, we identify an important subset of cases in which the Rehnquist Court has relied on canons to help undermine the demonstrable legislative preferences of Congress. Overall, our results and analyses offer a sobering counterpoint to the elevated normative claims made by some justices and many scholars on the canons' behalf.
James J. Brudney and Corey Distlear,
Canons of Construction and the Elusive Quest for Neutral Reasoning, 58 Vand. L. Rev. 1
Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/172