The Location and Limits of Dynamic Statutory Interpretation in Modern Judicial Reasoning

Stephen F. Ross

doi:10.2202/1539-8323.1025

This commentary seeks to define the limits of dynamic interpretation and to increase the transparency of judicial reasoning, both as a means of allowing a better judgment about the quality of judicial interpretation, and as an avowed way of constraining judicial activism, now increasingly in vogue with conservative judges. First, the commentary analyzes Dynamic Statutory Interpretation as well as subsequent work by Eskridge, in particular his analysis of the hermeneutics of Hans-Georg Gadamer, to emphasize that dynamic interpretation does not reject "outdated" expectation but "fuses" original and present horizons. Second, the commentary critiques the pathbreaking Eskridge & Frickey "Funnel of Abstraction," suggesting that a three-dimensional "Cube of Statutory Interpretation" better models judicial decisionmaking. In particular, the Cube highlights three analytically distinct modes of reasoning: 1) sincere efforts to effectuate the legislative directive; 2) interpretation based on "normative" canons of interpretation designed to effectuate judge-made rules; 3) judicial efforts to achieve the best policy or most just result in the case at hand. Third, the commentary analyzes three distinct ways in which judges can use dynamic interpretation: (1) evolutive considerations render original expectations unintelligible or unreliable, so that a judge may justify resolving the issue based on modern-day policy considerations or a preferred normative canon; (2) an interpretation consistent with modern doctrines reflected in related areas of the law differs from original expectations, so that a judge may justify a decision that results in greater horizontal coherence of the corpus juris; or (3) evolutive considerations allow the judge to more effectively carry out the original legislative directive than an approach that more simplistically resolves a case in today's world in the precisely identical way that the same legal issue would have been resolved in the very different world of the enacting legislature.

The Location and Limits of Dynamic Statutory Interpretation in Modern Judicial Reasoning

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