May 05, 2011

"The Anti-Messiness Principle of Statutory Interpretation"

Anita Krishnakumar has posted this draft on SSRN (forthcoming, Notre Dame Law Review). Here is the abstract:

    Many of the Supreme Court's statutory interpretation opinions reflect a jurisprudential aversion to construing statutes in a manner that will prove "messy" for implementing courts to administer. Yet the practice of construing statutes to avoid "messiness" has gone largely unnoticed and unanalyzed in the statutory interpretation literature. This Article seeks to illuminate the Court's use of "anti-messiness" arguments to interpret statutes and to bring theoretical attention to this interpretive principle. The Article begins by defining the concept of anti-messiness and providing a typology of common anti-messiness arguments used by the Supreme Court. It then considers some dangers associated with the Court's use of anti-messiness arguments to reject otherwise plausible statutory constructions. Last, the Article explores how the anti-messiness principle fits within existing theories of jurisprudence and statutory interpretation and discusses how attentiveness to anti-messiness might add greater texture to prominent theories of statutory interpretation.

I read this terrific piece in draft. Highly recommended!

Posted by Rick Hasen at May 5, 2011 07:59 AM