The Dynamic Theorization of Statutory Interpretation

William N. Eskridge

doi:10.2202/1539-8323.1034

Professor Eskridge concludes this symposium with some retrospective observations concerning the dynamics of statutory interpretation. As a descriptive matter, judges and (even more so) agencies will interpret statutes dynamically over time. This will occur whatever the interpretive methodology. That dynamic statutory interpretation is inevitable does not mean that it cannot be criticized. As a normative matter, Professor Eskridge is skeptical of the Rehnquist Court's excessive dynamism, especially when the Court (1) rewrites statutory texts reflecting recent legislative compromises, especially when the textual rewrites undermine the larger public interest; (2) overrides agency constructions of ambiguous statutory texts that reasonably advance statutory goals; or (3) insists on unreasonable interpretations because of statutory plain meanings asserted on the basis of controversial new canons of statutory construction created by the Court. The article concludes with some suggestions for further research by law professors, including comparative law work on how other legal systems interpret substantive analysis and critique of the evolution of particular statutes, such as tax, bankruptcy, criminal, and procedure laws; comparative law work on how other legal systems interpret statutes differently from ours; positive as well as normative investigations into the distinctive interpretational strategies for codes, treaties, super-statutes, and newly proliferate omnibus legislation; and drafting strategies for legislators who want to minimize (or maximize) the dynamic potential of statutes they sponsor. Throughout this response, Professor Eskridge expresses his deep admiration for the ideas and work of the convenor of this symposium, Professor Philip Frickey.

The Dynamic Theorization of Statutory Interpretation

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