Daniel Farber' and Stephen Ross, in separate contributions to this Symposium, raise the most crucial question in modern statutory interpretation, a question that exposes the profound triviality of the canons of statutory construction that Karl Llewellyn so effectively attacked. Ross points out that the legislature can control, or at least attempt to control, the judicial use of the canons by the way it drafts the statute and by effective use of supplementary materials such as mark-ups, committee reports, and floor debates. Farber, in his critique of formalism, demonstrates that formalist interpretation is an impediment to effective statutory drafting. Inherent in both propositions is an emphasis on the process of statutory construction. This leads to the basic insight that a statute is not a received text, like the Bible or a Shakespearean play. It is a directive issued by the legislature. Statutes are the instrumentalities by which our primary policymaking institutions carry out their mission. They determine how our society is organized and, to a disturbingly large extent, whether it prospers or declines. Courts are not the audience for a statute, cheering at its triumphs and groaning over its vicissitudes. They are not the statute's critics, weighing its aesthetic qualities and guiding us through its profundities of meaning. Rather, they are mechanisms for implementing statutes, and thus active participants in our modern scheme of statutory govern- ance. The crucial question in statutory interpretation is how courts should fulfill this role, a question that can be answered only by a comprehensive theory of policymaking and implementation in the modern administrative state.
Edward L. Rubin,
Modern Statutes, Loose Canons, and the Limits of Practical Reason: A Response to Farber and Ross,
45 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol45/iss3/4