Statutory Interpretation as Diplomacy
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James J. Brudney
There is every reason to admire the transformative analytic power of the DSI thesis: Professor Eskridge has persuasively identified the realities of what courts so often do. In this article, Professor Brudney raises questions about the dynamic role that Eskridge envisions for courts as a normative matter. Because DSI relies on post-enactment changes in the broader legal and ideological culture, it allows the judiciary to reshape legislatively determined priorities in light of exogenous legal and policy developments that are often enhanced, if not created, by the courts themselves. This approach tilts the meaning of statutes toward the policy preferences of the judiciary, especially given the predictable delay and difficulty that attend congressional responses to the courts' reshaping efforts. Brudney develops and illustrates his thesis through discussion of Supreme Court decisions interpreting federal workplace statutes.
©2011 Walter de Gruyter GmbH & Co. KG, Berlin/Boston
Articles in the same Issue
- Article
- Attention to Context in Statutory Interpretation: Applying the Lessons of Dynamic Statutory Interpretation to Omnibus Legislation
- Dynamic Statutory Interpretation in the Administrative State
- Dynamic Statutory Interpretation and the Institutional Turn
- Justifying Dynamism
- Accounting for Accountability in Dynamic Statutory Interpretation and Beyond
- The Location and Limits of Dynamic Statutory Interpretation in Modern Judicial Reasoning
- The Dynamic Judicial Opinion
- Should Criminal Statutes Be Interpreted Dynamically?
- Agency Statutory Interpretation
- Statutory Interpretation as Diplomacy
- Earthquakes and Tremors in Statutory Interpretation: An Empirical Study of the Dynamics of Interpretation
- Hypnotized by Images of the Past: Dynamic Interpretation and the Flawed Majoritarianism of Statutory Law
- Dynamic Statutory Drafting: Calculating the Price of Legislative Imprecision
- Dynamic Interpretation: The Art of Persuasion
- Textualism's Exceptions
- The Dynamic Theorization of Statutory Interpretation
Articles in the same Issue
- Article
- Attention to Context in Statutory Interpretation: Applying the Lessons of Dynamic Statutory Interpretation to Omnibus Legislation
- Dynamic Statutory Interpretation in the Administrative State
- Dynamic Statutory Interpretation and the Institutional Turn
- Justifying Dynamism
- Accounting for Accountability in Dynamic Statutory Interpretation and Beyond
- The Location and Limits of Dynamic Statutory Interpretation in Modern Judicial Reasoning
- The Dynamic Judicial Opinion
- Should Criminal Statutes Be Interpreted Dynamically?
- Agency Statutory Interpretation
- Statutory Interpretation as Diplomacy
- Earthquakes and Tremors in Statutory Interpretation: An Empirical Study of the Dynamics of Interpretation
- Hypnotized by Images of the Past: Dynamic Interpretation and the Flawed Majoritarianism of Statutory Law
- Dynamic Statutory Drafting: Calculating the Price of Legislative Imprecision
- Dynamic Interpretation: The Art of Persuasion
- Textualism's Exceptions
- The Dynamic Theorization of Statutory Interpretation
