On Judicial Discretion in Statutory Interpretation

Abstract

In most cases it is realistic to suppose that statutes have a precise, judicially determinable meaning and that the courts are in a position to discover and declare that meaning through a process of legal reasoning. Yet there are cases in which this concept is simply unworkable. Not every question of statutory interpretation can be resolved persuasively through a process of legal reasoning, and to pretend otherwise is to perpetuate a fiction. Some legal fictions are useful; this one is not. It degrades, confuses, and corrupts the interpretive process.Conventional interpretation is likely to fail in cases such as the ones I describe in this essay. Sometimes a conscientious judge will examine the relevant statute and conclude that more than one interpretation is possible and that conventional considerations do not favor a particular interpretive choice. In such a case, the judge should be free to declare that the statute creates a framework for choice, and the judge should be allowed to exercise prudent judgment within the statutory framework by preferring one permissible interpretation or another, while explaining candidly the reasons for the preference. In such a case the interpretive process is essentially a discretionary process, and it should be theorized as such.