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12/04/2018

Lawrence Solum on Statutory Interpretation
Michael Ramsey

At Legal Theory Blog, the Legal Theory Lexicon addresses Theories of Statutory Interpretation and Construction.  From the introduction:

Although the first year of law school is weighted towards the study of common law subjects (contracts, common law crimes, property, and torts) with perhaps some civil procedure and constitutional law, most modern law involves statutes and regulations.  This entry in the Legal Theory Lexicon provides a basic introduction to theories of statutory interpretation and construction with an emphasis on the three most basic approaches to statutory interpretation (textualism, intentionalism, and purposivism). 

Consistent with recurring posts on "statutory originalism" on this blog, it's worth noting that all three of these "basic approaches" are originalist.  As the post notes later, there are other views, though they are generally more academic and idiosyncratic:

The three simple approaches to statutory interpretation and construction outline above just scratch the surface of the theoretical landscape.  One of the most important contemporary theorists of statutory interpretation is Professor William Eskridge, who is an advocate of the approach that he calls "dynamic statutory interpretation."  The dynamic approach, as defined by Eskridge, requires judges to interpret statutes "in light of their present societal, political, and legal context."  Judge Richard Posner has developed an approach to statutory interpretation that reflects his general approach to jurisprudence, which he calls "pragmatism."  And there are many other contemporary approaches to the theory of statutory interpretation and construction.

And here is what the post says about textualism:

The first approach is "textualism" or "plain meaning textualism."  The core idea of this approach is simple: the legal effect of a statute should be consistent with the statute's linguistic meaning.  So when a judge interprets a statute, the judge ought to determine what the language of the statute means.  That meaning can then be translated into an authoritative construction of the statute and applied to particular issues and cases.

There is more than one possible candidate for the "linguistic meaning" of a statute.  The least plausible candidate is the "literal meaning" of the words.  The problem with literal meaning is that it fails to take context into account, but without consideration of context, most statutes are likely to be irreducibly ambiguous.  For example, context is necessary in order to determine whether a statute that regulates "banks" is targeted at river banks or financial institutions.  Plain meaning textualism takes context into account by focusing on the meaning of the statutory text that can be grasped by considerations of the whole statute and the general purpose the statute is designed to serve.  The words of the statute control, but those words are to be understood contextually.

I would add, in most people's understanding of textualism, the context is the context in which the statute was passed and the meaning is the meaning the statutory language had when enacted (I think this is implicit in the post).