June 01, 2010

"The Costs of Consensus in Statutory Construction"

Ethan Leib and Michael Serota have written this response (forthcoming, Yale Law Journal Online) to Abbe Gluck's article, "The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism." Here is the abstract for the Leib and Serota response:

    Finding methodological consensus for statutory interpretation cases is all the rage these days. Some in the academy sing the praises of a singular judicial approach to questions of statutory interpretation and bemoan the frustrations associated with judges implementing a melange of interpretive techniques. And now, thanks to Abbe Gluck's magisterial article, Laboratories of Statutory Interpretation, proponents of interpretive uniformity have evidence that some state courts seem to be applying methodological stare decisis to decide questions of statutory interpretation. After exhaustive reading and analysis of state statutory interpretation cases -- cases that have received far less attention than their federal counterparts -- Gluck describes several important developments in state legisprudence that she thinks may have significant implications for the federal system.

    This Essay proceeds in two Parts. First, we argue that dissensus provides significant benefits to our judicial system that not only merit our attention but justify the rejection of any form of methodological stare decisis requiring judges to follow fixed regimes that categorically ignore a statute's etiology or the processes used to enact it. Second, we argue that there are serious costs to the kind of methodological stare decisis Gluck has explored, and that careful attention to the benefits of dissensus demonstrates that modified textualism is normatively unattractive after all.

I read this response in draft and recommend it highly.

Posted by Rick Hasen at June 1, 2010 08:56 AM