Notre Dame Law Review
Interpretation involves the acquisition of knowledge. We are continually confronted with the results of purposive action. Sometimes these results are written texts, such as statutes or novels. Other times these results are events in the physical world, actions that we observe or the results of actions about which we are told. To make sense of these results of purposive action, that is, to make the results be more than just a jumble of sense impressions, the observer must find a way of organizing the material with which he or she is presented. These methods of organizing the results of purposive action, of giving meaning or sense to such action, are properly dubbed "interpretive," because the methods of organization are directly linked to the fact that another organizing intelligence was on the other side of the action. The ways in which we interpret, or read, if you will, are them- selves often products of the particular types of purposive action with which we are confronted. When interpreting statutes passed by Congress, therefore, courts must locate an interpretive method that best makes sense of the fact that they are reading statutes, and not some other type of purposive action. Whether a general theory of statutory interpretation is possible, and what that theory might be, is beyond the scope of this essay. Instead, I will offer three interconnected discussions. First, I will focus on one proposed theory of statutory interpretation that is of some importance these days because its chief judicial proponent is Justice Scalia. He advocates following the "plain meaning" rule, which holds that courts must give effect to the plain, or literal meaning of a statute's words, and should not examine extratextual evidence to determine how to apply the statute. I will argue that the rule masks knowledge-gathering work that is always done when interpreting. Second, I will examine Fred Schauer's writings on plain meaning. Schauer has given us an extraordinarily rich array of writings on rules and various related matters. As part of this array, he offers arguments for the conceptual validity of plain meaning, for its psychological status, and for its institutional use. I will argue that as a conceptual matter, plain meaning makes sense, but in an extremely limited way; as a psychological matter, plain meaning obscures more than it illuminates; and as an institutional matter (in the setting of statutory construction), plain meaning is the wrong way to go. Finally, I will explore a related issue to which Schauer devotes considerable attention-the overridability of rules-and will suggest that the external pressure on rules in general-like the pressure of knowledge on plain meaning-creates an unruliness that rules cannot withstand.
Abner S. Greene,
Work of Knowledge , 72 Notre Dame L. Rev. 1479
Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/370