Glen Staszewski has posted this draft on SSRN (Boston University Law Review). Here is the abstract:
This Article criticizes a recent movement toward making statutory interpretation simpler and more uniform. The trend is reflected by proposals to adopt codified rules of statutory interpretation, give stare decisis effect to interpretive methodology, use simpler methods of statutory interpretation in lower courts, and implement certain versions of textualism. The Article explains that such proposals are driven by an overarching desire to limit judicial discretion and promote a formal vision of the rule of law, and they assume that the traditional hierarchy of legal sources is exclusive, and that the function of statutory interpretation is to ascertain the meaning of the law.
This Article challenges each of these assumptions by claiming, first, that instead of seeking to eliminate judicial discretion, the primary goal of statutory interpretation methodology should be to protect the people from the possibility of domination by the state. Second, the resolution of disputes regarding the permissible scope of governmental authority in difficult statutory cases requires the use of practical reasoning, and the quality of statutory law and its democratic legitimacy benefit from a broad range of arguments and diverse judicial perspectives. Third, the traditional hierarchy of legal sources is outdated, and “interpretive methodology” and “agency decision making” should be viewed as distinct forms of law that merit their own special places in a new legal hierarchy for the regulatory state. Finally, the central function of statutory interpretation by federal courts in the modern regulatory state is to provide individuals and groups with opportunities to contest the validity of particular exercises of governmental authority, rather than to ascertain the meaning of the law in a vacuum. The Article therefore argues that the recent proposals to dumb down statutory interpretation are fundamentally misguided, and it closes by making several related observations about the extent to which interpretive methodology can or should be simple or uniform. In sum, provisional dialogues by and among different centers of power better reflect the nature of law in the modern regulatory state than artificial efforts to achieve simple, predictable, or uniform final answers to our most pressing legal or social problems.