Tuesday, August 08, 2006

Statutory interpretation: a rudimentary reading list

As the new school year approaches, Jurisdynamics pauses to reflect on what is perhaps the worst pedagogical oversight in American legal education. Very few law students receive any systematic education in reading statutes, which today comprise far more law than either constitutional law or common law. Few law schools offer courses in statutory interpretation; fewer still require instruction in the subject. "[N]othing else as important in the law receives so little attention." Robert Weisberg, The Calabresian Judicial Artist: Statutes and the New Legal Process, 35 Stan. L. Rev. 213, 213 (1983).

All law students and practicing lawyers would benefit from formal instruction in legislation and statutory interpretation. The following reading list is intended to supplement required reading in a law school or continuing legal education course. It can also form the basis for a remedial self-taught course.

1. Perhaps the most useful law review article on legislation is William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan. L. Rev. 321 (1990). The so-called "funnel of abstraction" developed in this article provides, for all practical purposes, a step-by-step guide to formulating persuasive statutory arguments. That tool alone is well worth the price of admission.

2. William N. Eskridge, Jr., Philip P. Frickey & Elizabeth Garrett, Legislation and Statutory Interpretation (2d ed. 2006), is the definitive introduction to the subject of legislation and statutory interpretation. Not surprisingly, this handbook is keyed to the casebook by the same authors. Even in courses using other casebooks, however, this brief introduction to the subject is indispensable.

3. Opinions will certainly differ, but in my judgment, the most influential book on legislation and statutory interpretation of the last 20 years remains William N. Eskridge, Jr., Dynamic Statutory Interpretation (1994). The very idea of "dynamic" interpretation is anathema to advocates of more formal, textually grounded approaches. Professor Eskridge's view of intepretation as an evolutive process nevertheless remains the most important innovation in this field.

4. An intriguing new entrant in the literature is Adrian Vermeule, Judging Under Uncertainty: An Institutional Theory of Legal Interpretation (2006). In stark contrast with Professor Eskridge, Professor Vermeule urges judges to adopt a much more modest set of interpretive tools. Constraints on judicial competence and access to information inform Professor Vermeule's approach. Whether Judging Under Uncertainty will match or eclipse Dynamic Statutory Interpretation remains to be seen, but this book plainly deserves careful examination.

5. Updated: August 30, 2006. At the suggestion of David Hricik, I am adding Guido Calabresi, A Common Law for the Age of Statutes to this reading list. Given its basic premise -- that judges should be free to declare old statutes void for obsolescence -- it's ironic that Judge Calabresi's classic probably feels the most dated of any of the books in this list. Still, this book marks the important point in legal history when the dominance of statutory over judge-made law could no longer be denied. Contemporary readers will learn much from engaging Judge Calabresi's proposal for empowering the common law to respond in a thoroughly statutory age.

6. The all-time classic source on legislation and statutory interpretation remains Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law (William N. Eskridge, Jr. & Philip P. Frickey eds., 2001). This classic textbook introduced hundreds of law students, including a substantial number of sitting Supreme Court Justices, to the legal process approach to interpretation. At least one of those students, Antonin Scalia, has devoted a volume of essays (A Matter of Interpretation) to rejecting the lessons of the legal process school. The fact remains that any student or lawyer wishing to understand statutory interpretation in the United States can ill afford to ignore The Legal Process.

Update, August 19, 2006: As a service to its audience, the Jurisdynamics Network offers interested readers the opportunity to obtain these items through the Network's Amazon Store.  


Anonymous Anonymous said...

What's your opinion, if you have one, of the new book by Adrian Vermeule?

8/08/2006 1:05 AM  
Blogger Jim Chen said...

Nice call, Anonymous. I'll append the post to include a discussion of Vermeule's new book. Judging Under Uncertainty clearly deserves some attention.

8/08/2006 1:26 AM  
Blogger Frank said...

Nice list! As a bow to the classics, how about Llewellyn's article on canons and countercanons, at 3 Vand. L. Rev. 395 (1950)?

8/08/2006 9:48 AM  
Anonymous Anonymous said...

Just out of curiosity, why isn't it taught?

8/08/2006 10:09 AM  
Blogger Jim Chen said...

Quick response to Frank Pasquale:

Nice suggestion regarding Llewellyn's canon/countercanon article. A worthy modern successor is William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593 (1992).

Quick response to Luis Villa:

Legislation is a tough course to teach because it demands mastery of a rigorous, indeterminate, and seemingly unrelated set of tools. Perhaps no other subject in law school puts a higher premium on being a generalist "fox" (someone who knows a lot of little things) as opposed to being a specialist "hedgehog" (someone who knows one big thing). Students often chafe because the subject isn't tested on the bar and isn't associated with an obvious career path. So the path of least resistance, as it so often is, is to stick with the tried but worn Langdellian curriculum.

An aside: The fox versus hedgehog dichotomy explains a great deal about the world in general and academia in particular. It would make a fine subject for a future post. Watch this space.

8/08/2006 10:33 AM  
Anonymous Anonymous said...

I agree entirely with this post and feel the need for more familiarity with interpreting statutes every time I teach Internet Law, which is rife with key, but complicated, statutes that simply must be read -- the DMCA, the CAN SPAM Act, various privacy statutes & regulations, the ECPA, the Anti-cybersquatting Consumer Protection Act, etc. I try to walk through some of those, but I can feel the class is on more solid ground when we turn back to cases.

8/08/2006 1:09 PM  
Anonymous Anonymous said...

My colleagues and I thought that Statutory Interpretation was one of the most useful courses we took in Law School, and since I've graduated, I'm not getting any points for saying that. However, I know that I would not have appreciated it nearly as much had I taken it during first year, when I was scrambling just to understand basic legal terminology. I would therefore propose Statutory Interpretation as a mandatory capstone class. In the hands of a skilled generalist, it can really help bring concepts together from across the legal spectrum. I know it did for me.

8/08/2006 6:40 PM  
Anonymous Anonymous said...

Great post. I have the 2000 version of the Eskridge, Frickey & Garrett text. Any opinions on whether it is worth updating to the 2006 version?


8/09/2006 6:09 PM  
Anonymous Anonymous said...

Hi Jim,

How about the Stanley Fish - Ronald Dworkin debate. That's a classic.

Linda Pope

8/15/2006 3:03 PM  
Anonymous Anonymous said...

Hi, all. I'm David Hricik, co-author of a new book on statutory interpretation (a case book on it, not legislation or legislative theory) out just a few months now, but getting some good adoptions. It's available at Carolina Academic Press. I have also started up a statutory interpretation blawg on the lawprofs blawg site, which you can find here. Sorry for the shameless plugs.

8/29/2006 7:58 PM  
Anonymous Anonymous said...

OT, but would you mind clarifying the assignments for the first week of Statutory Interpretation?

9/03/2006 6:47 PM  

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