Yale Law Journal Online
Finding methodological consensus for statutory interpretation cases is all the rage these days.1 Some in the academy sing the praises of a singular judicial approach to questions of statutory interpretation and bemoan the frustrations associated with judges implementing a mélange of interpretive techniques. And now, thanks to Abbe Gluck’s authoritative article, Laboratories of Statutory Interpretation, proponents of interpretive uniformity have evidence that some state courts seem to be applying methodological stare decisis to decide questions of statutory interpretation. After exhaustive reading and analysis of state statutory interpretation cases—cases that have received far less attention than their federal counterparts—Gluck describes several important developments in state legisprudence that she thinks may have significant implications for the federal system. But the normative thrust of her work gives us pause. Although Gluck offers several caveats that qualify her normative conclusions, she is essentially committed to two views: that interpretive consensus in statutory interpretation is an important value2 and that the version of interpretive consensus employed by the state courts in her case studies, a method she calls “modified textualism,” is a normatively attractive compromise between the main claims of textualists and purposivists. Neither of these contentions, however, is particularly convincing. There are significant costs to methodological consensus that are given scant consideration by Gluck or by many others in the academy who sound the battle cry of interpretive uniformity. Moreover, even assuming the “modified textualist” regime she presents can work in a sustainable way (and we will proffer reasons for skepticism here), it suffers from serious difficulties related to these costs that ultimately render it an unappealing alternative to the more discretionary approach that the majority of federal and state courts currently apply. It is not just that we are getting by with a “consistent enough” interpretive regime on the federal side. Rather, there are distinctive, underappreciated benefits that result from methodological diversity and make our current regime of dissensus a more desirable approach. This Essay proceeds in two Parts. First, we argue that dissensus provides significant benefits to our judicial system that not only merit our attention but justify the rejection of any form of methodological stare decisis requiring judges to follow fixed regimes that categorically ignore a statute’s etiology or the processes used to enact it. Second, we argue that there are serious costs to the kind of methodological stare decisis Gluck has explored and that careful attention to the benefits of dissensus demonstrates that modified textualism is, in the end, normatively unattractive.
Ethan J. Leib and Michael Serota,
The Costs of Consensus in Statutory Construction, 120 Yale L. J. Online 47
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