The Costs of Incoherence: A Comment on Plain Meaning, West Virginia University Hospitals, Inc. v. Casey, and Due Process of Statutory Interpretation
Karl Llewellyn's classic article on the canons of statutory construction, which we rightly celebrate in this Symposium, is too clever by half. To the reader untutored in the scholarly literature on statutory interpretation, the "thrust but parry" pairing of the canons is a delightful demonstration of how legal argument is structured in a way guaranteed to maintain discretion in the judiciary and to keep lawyers in business. No case involving a statute is clear cut because the canons can lend support to either side. This means that no lawyer is without an argument, and a judge is free to do what he or she thinks "situation sense," natural justice, or economic efficiency demands. But this rendering of the tools of statutory interpretation really misses the point. The canons are not free-floating rules, snatched out of the air or created on the spot in helter-skelter fashion. They are rules of thumb ("generalizations of experience," Felix Frankfurter called them for approaching legal texts, and as such, canons have at least two attributes: they summarize common-sensical ways of thinking about language and communication, and they follow from a broader normative theory about the proper way to read statutes. For example, if one starts with a theory that an interpreter ought to read a statute as its drafters would have read it at the time of enactment, then certain rules or guidelines for interpretation become sensible based on our assumptions regarding how legal drafters indicate their intent.
T. Alexander Aleinikoff and Theodore M. Shaw,
The Costs of Incoherence: A Comment on Plain Meaning, West Virginia University Hospitals, Inc. v. Casey, and Due Process of Statutory Interpretation,
45 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol45/iss3/7