November 30, 2009

"Statutory Interpretation In The Roberts Court's First Era: An Empirical and Doctrinal Analysis"

Anita Krishnakumar has posted this draft on SSRN. Here is the abstract:

    Empirical studies of the Supreme Court's statutory interpretation cases are few and far between. Those that do exist tend to focus on a sampling of cases over time, cases interpreting statutes in one area of the law, or on one specific aspect of the Court's interpretive practice, such as its reliance on legislative history. This Article takes a different approach, examining all of the Roberts Court's statutory cases from its 2005-2008 Terms, beginning with cases decided after January 31, 2006, when Justice Alito joined the Court, and concluding with cases decided on June 29, 2009, when Justice Souter retired. The Article's approach is both empirical and doctrinal, in that it presents descriptive statistics illustrating the Court's and individual Justice's rates of reliance on fourteen different tools of statutory construction, as well as engages in doctrinal analysis of the Court's statutory cases, highlighting discernable patterns in the individual Justices' interpretive approaches. The Article makes two significant contributions to the field of statutory interpretation: First, it identifies an interpretive divide between the Justices on the Roberts Court over what I call "legal landscape coherence" versus "statute-specific policy coherence." In brief, the legal landscape coherence Justices focus on the legal framework surrounding the statute at issue and seek the interpretation that fits most coherently into the existing legal structure; while the statute-specific policy coherence Justices focus on the individual statute at issue and preference the interpretation that creates a consistent and coherent policy across like situations and across time. The Article maps out the Justices' theoretical divide in detail and shows how the divide translates into stark empirical differences in the Justices' individual rates of reliance on particular interpretive canons and tools. Second, prior empirical studies have shown that Supreme Court Justices frequently reference the practical consequences likely to result from an interpretation when deciding statutory cases. This Article breaks new ground by uncovering an important difference in the form of practical consequences to which the different Justices tend to give weight, pointing out that the landscape coherence Justices tend to focus on the administrability of the interpretation -- e.g., its effect on judicial resources, the difficulty of implementing it, and the clarity and predictability of the rule created; while the statute-specific Justices focus on the policy effected by the interpretation -- e.g., whether it fosters a consistent application of the statute over time, the arbitrariness of the policy created, and the justness of the interpretation. The Article concludes with three case studies illustrating how the Roberts Court's interpretive divide works in practice.

Posted by Rick Hasen at November 30, 2009 08:15 AM