Academic

Herz on Purposivism & Institutional Competence in Statutory Interpretation

By Lawrence Solum

Michael Herz (Yeshiva University - Benjamin N. Cardozo School of Law) has posted Purposivism and Institutional Competence in Statutory Interpretation (Michigan State Law Review, Forthcoming) on SSRN. Here is the abstract:

Writers on legal interpretation have almost all either addressed general principles or focused on differences in the interpretation of different sorts of texts; rarely have they distinguished among different sorts of interpreters. Thus, most writing on statutory interpretation approaches the problem generally, but the writer almost always has judges in mind. Only a handful of authors have considered whether the strengths and weaknesses of different interpretive methodologies might be of more or less concern when the interpreter is not a judge. This is one effort to do so. This paper considers the standard arguments against purposivist statutory interpretation and concludes that almost all are more powerful when applied to courts than when applied to agencies. I do not mean to endorse that critique as applied to courts, nor do I mean to say it is wholly inapplicable to agencies. In relative terms, however, agencies are in a better position to interpret statutes in light of their purpose than are courts. The paper concludes with a discussion of the coherence of a regime in which courts review agency interpretations using a different interpretive methodology than the agency's. Although at first blush it seems problematic, in fact it is not necessary that courts and agencies approach this task identically.

Full post as published by Legal Theory Blog on September 16, 2009 (boomark / email).