Evan Criddle and Glen Staszewski have posted this draft on SSRN (forthcoming, Georgetown Law Journal). Here is the abstract:
Should federal courts give stare decisis effect to statutory interpretation methodology? Although a growing number of legal scholars have answered this question in the affirmative, this Essay makes the case against methodological stare decisis. Drawing on recent empirical studies, we argue that Congress has yet to develop the type of coherent and stable expectations for statutory interpretation that would be necessary to support methodological stare decisis under a “faithful agency” theory of statutory interpretation. Although some theories and doctrines of statutory interpretation are based on constitutional norms and other public values that do not depend on Congress’s expectations, we argue that even under these theories federal courts should allow their interpretive methodology to remain flexible so that the law can respond effectively to changing societal norms over time. Finally, we argue that the value of extending stare decisis effect to interpretive methodology remains unproven. While treating prior methodological decisions as binding precedent could in theory promote the policies underlying stare decisis, the same would be true of extending that doctrine to virtually any rules. Yet freezing interpretive methodology into place would pose special and likely overwhelming difficulties for federal courts. We therefore conclude that federal courts should not extend stare decisis effect to methodological decisions without seriously grappling with these difficulties and demanding much stronger evidence that such a move would improve the operation of our legal system.