Statutory Interpretation as Practical Reasoning

Abstract

In the last decade, statutory interpretation has reemerged as an important topic of academic theory and discussion.' This development is welcome, since few topics are more relevant to legal craft and education than the interpretation of statutes, now our primary source of law. The recent theoretical views, however, contrast with practicing lawyers' strategies of statutory interpretation. When practitioners give advice to clients about what a statute means, their approach is usually eclectic: They look at the text of the relevant statutory provisions, any legislative history that is available, the context in which the legislation was enacted, the overall legal landscape, and the lessons of common sense and good policy. But when law professors talk about statutory interpretation, they tend to posit a more abstract, theory that privileges one or another of these approaches as foundational.2 The commentators' grand theories contrast with the more ad hoc, factbased reasoning of the practicing lawyer. How do judges interpret statutes? How should they? Many commentators argue that judicial interpretation is, or at least ought to be, inspired by grand theory. We think these commentators are wrong, both descriptively and normatively: Judges' approaches to statutory interpretation are generally eclectic, not inspired by any grand theory,