Posted by: captainfalcon | February 12, 2010

Academic Blindspots

Like everyone else, academics develop habits of thinking that blind them to obvious troves of data, etc. Excellent articles come from those who luck across the blindspots:

Some say that textualism is dead. Others believe that the inherent difficulty of interpreting statutory language means that judges will never be able to reach consensus on a single, overarching methodological framework for all statutory cases. Still others believe that existing methodological differences are not important enough to merit the attention that has been devoted to them. Clearly, none of these naysayers has accounted for state courts.

The vast majority of statutory interpretation theory is based on a strikingly small slice of American jurisprudence, the mere two percent of litigation that takes place in our federal courts—and, really, only the less-than-one percent of that that the U.S. Supreme Court decides. The remaining ninety-nine percent of cases are heard in the netherworld of the American legal system, the state courts. And yet it would likely surprise most academics and many judges to learn that, while academics have spent the past decade speculating about the “posttextualist era,” or the utility of congressionally legislated rules of interpretation, or the capacity of judges on multimember courts to agree on a single set of interpretive rules, many state courts have been engaging in real-world applications of precisely these concepts. Several state courts have implemented formalistic interpretive frameworks that govern all statutory questions. Methodological stare decisisthe practice of giving precedential effect to judicial statements about methodology—is generally absent from the jurisprudence of mainstream federal statutory interpretation, but appears to be a common feature of some states’ statutory caselaw. Every state legislature in the nation has enacted certain rules of interpretation, which some state courts are, in an unexpected twist, flouting. And far from being “dead,” Justice Scalia’s textualist statutory interpretation methodology has taken startlingly strong hold in some states, although in a form of which the Justice himself might not approve. Clearly, these developments are relevant to the mainstream debates about interpretive predictability and methodological choice, and yet federal scholars and jurists have hardly noticed them.

h/t Solum.



  1. The concept of “congressionally legislated rules of interpretation” needs to be re-examined, i.e. instead to trying to tinker with the rules from SI, legislatures should do their job and stop the proliferation of shoddily-written statutes.

  2. […] From the article I pimped earlier comes a juicy piece of (I guess you could call it) judicial paternalism: Texas’s […]

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