Richard Re on Pulsifer v. United States and Textualism
Michael Ramsey
At Prawfsblawg, Richard Re: Pulsifer v. United States as Permissive Interpretation. From the introduction:
When someone has a hammer, every problem risks looking like a nail. And when a legal scholar has a theory, every case risks becoming an application of it.
With that disclaimer in mind, I think that Pulsifer v. United States, the Supreme Court’s recent statutory interpretation chestnut, nicely illustrates my view (elaborated here) that statutory interpretation is largely permissive as well as structured by three “basic rules.”
In brief, Pulsifer involved a statute whose literal text naturally invites a reading that would have helped many criminal defendants. But lots of contextual information made that literal reading seem like an odd fit with the legislature’s apparent goals.
For example, the statute took the following form: “defendants are entitled to resentencing if they do not have A, B, and C.” This construction is most naturally read conjunctively, so that the property of having A-and-B-and-C is what disqualifies someone from the benefit. By analogy, “Don’t drink and drive” means “don’t drink-and-drive,” not “don’t drink” and also “don’t drive.”
But that conjunctive reading has some strange implications in the statute at issue. As the Pulsifer Court argued, for instance, the literal reading “would allow relief to defendants with more serious [criminal] records while barring relief to defendants with less serious ones.” That result seems at odds with the legislature’s evident goals in distributing resentencing opportunities.
This glimpse of the back-and-forth in Pulsifer suggests a conflict between two of the basic rules. First, the literal rule allows courts to enforce a statute’s literal meaning. Second, the mischief rule allows courts to deviate from literal meaning when doing so comports with actual legislative goals. ...