Judges and legal scholars are engaged in a contentious, wide- ranging, and long-running debate over methods of statutory interpretation. Stripping the debate of some of its nuance without misrepresenting its essence, there are two camps: the "textualists" and the "pragmatists." Cass Sunstein recently argued that the question of interpretive method should be considered in light of evidence whether textualist methods work better or worse than pragmatic ones. To date, however, only limited empirical evidence has been systematically brought to bear on this question.
This Article presents new empirical evidence gleaned from twenty years of interpretation of the United States Bankruptcy Code on the question of the comparative efficacy of textualism as a method of statutory interpretation. Analysis of bankruptcy decisions superseded by amendments to the Code indicates that cases adopting textualist methods of statutory interpretation are disproportionately found within the universe of cases overruled by statute. To the extent that the goal of statutory interpretation is the rational and efficient development and administration of complex statutory schemes in a manner consistent with policy goals democratically selected, this evidence should cause textualists to reconsider their allegiance to their method. It should also reinforce pragmatists' commitment to pragmatic interpretation.
Independently of the textualism/pragmatism debate, analysis of legislatively overruled decisions also gives insight into the types of bankruptcy decisions that get overruled by statute. Additional study of overruled cases in this and other statutory areas may produce valuable policy recommendations for judges and policymakers. This Article is divided into three parts. Part I describes the debate over textualism and illustrates the competing modes of interpretation using well-known bankruptcy cases decided by the Supreme Court. Part II describes the research design and results from a statistical analysis of the method of interpretation adopted in fifty-eight bankruptcy decisions subsequently overruled by statute. Finally, Part III presents significant subsidiary findings, independent of interpretive method, derived from analysis of the overruled cases. A short conclusion follows.
Daniel J. Bussel,
Textualism's Failures: A Study of Overruled Bankruptcy Decisions,
53 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol53/iss3/9