Indeterminate Canons and the Rule of Law

Abstract

This Working Paper exposes the indeterminacies of individual of statutory construction and explores their implications for new textualism and the rule of law. Relying on recent empirical studies involving dueling canons, this Paper sets forth a theoretical framework for understanding how each individual canon raises inferences about statutory meaning and how judicial choices between those inferences, not the text itself, determine what the law means as well as the outcome in any given case. This problem goes beyond and compounds the realist claim that judges always choose between at least two different competing canons in any given statutory case. The problem of indeterminate canons escalates and intensifies the relative indeterminacy always present in statutory interpretation by increasing the number of choices available to judges in any given case. At bottom, because judges must always choose between inferences when applying any given canon, the cannot reinforce the rule of law in statutory cases. New textualism, in other words, purports to preserve something that simply cannot exist: a rule of law as a law of rules. This Working Paper earned the first-place Arthur G. Raynes Award from the faculty of Temple University, Beasley School of Law, [f]or scholarly achievement in the law as relates directly to research, organization of thought, clarity, and the ability to draw explicit conclusions.