Formalism might be seen not as embodying an embarrassingly crude understanding of communication, but as a sensible and highly pragmatic response to institutional limits of generalist judges and…

Formalism might be seen not as embodying an embarrassingly crude understanding of communication, but as a sensible and highly pragmatic response to institutional limits of generalist judges and institutional capacities of Congress. We believe that in considering these debates, an institutional focus is helpful, not because it always resolves them, but because it shows what many disputes are really about, and because it casts light on central questions that might otherwise be obscured. At a minimum, we urge that an appreciation of institutional capacities and dynamic effects is a necessary part of any theory of legal interpretation. A theory that neglects those issues is seriously incomplete. We also hope that future debates about interpretation will focus on institutional issues, where it remains possible to make a great deal of progress, not least by examining empirical issues, identified below, on which much remains to be learned.

Evidence

By contrast, we urge that it is far more promising to focus on two neglected issues. The first has to do with institutional capaci­ ties. As we shall urge, debates over legal interpretation cannot be sensibly resolved without attention to those capacities. The central question is not “how, in principle, should a text be interpreted?” The question instead is “how should certain institutions, with their distinctive abilities and limitations, interpret certain texts?” If the relevant judges can reliably decide whether a literal interpretation of a statutory term is absurd, the argument for rejecting literalism is greatly strengthened; if the relevant judges are highly fallible, literalism may have some overlooked virtues. A great deal turns as well on the attentiveness of the relevant legislature; the appro­ priate stance toward interpretation is not the same in a system with an attentive legislative as in a system with an inattentive one. The second issue involves the dynamic effects of any particular ap­ proach - its consequences for private and public actors of various sorts. If a nonliteral interpretation of the phrase “induce cancer” would introduce a great deal of uncertainty into the system and reduce Congress’s incentive to make corrections, it might well be sensible to deny exceptions in cases involving trivial risks. By drawing attention to both institutional capacities and dynamic ef­ fects, we are suggesting the need for a kind of institutional turn in thinking about interpretive issues. … With an emphasis on institutional capacities and dynamic effects, we will be able to see that nearly all of the most prominent discussions of interpretation - including, for example, those by Jeremy Bentham, William Blackstone, H.L.A. Hart, Henry Hart and Albert Sacks, Ronald Dworkin, William Eskridge, John Manning, and Richard Posner - are incomplete and unsuccessful, simply because they generally proceed as if the only question is how “we” should interpret a text. Where they attend to institu­ tional roles at all, these theorists frequently work with an ideal­ ized, even heroic picture of judicial capacities and, as a corollary, a jaundiced view of the capacities of other lawmakers and interpret­ — Cass R. Sunstein and Adrian Vermeule, Interpretation and Institutions, 19 (#corroborates, via linked claim)

Categorization

• corroborated: 15 independent passages support this claim
• XREF: connects to: Formalism is a central and distinctive feature of law — Frederick Schauer, Thinking Like a Lawyer, 54; Congress deliberately delegated antitrust law creation to the courts via broad statutory language — Frederick Schauer, Thinking Like a Lawyer, 273; Literal statutory interpretations are defeasible starting points — Frederick Schauer, Thinking Like a Lawyer, 303 (+17 more)

Related

• …it casts light on central questions that might otherwise be obscured. At a minimum, we urge that an appreciation of institutional capacities and dynamics is essential to understanding the… (similarity 0.95)
• Why have modern interpretive theories neglected institutional issues? This is a large question, and we do not offer a full answer here; but we do have some speculations. (similarity 0.93)
• Interpretive debates require attention to institutional capacities and dynamic effects. (similarity 0.91)
• Indeed it is possible that specialized interpreters should reject formalism but that nonspecialists should embrace it; and academic specialists are unlikely to appreciate this point. Our principal… (similarity 0.91)
• We also hope that future debates about interpretation will focus on institutional issues, where it remains possible to make a great deal of progress, not least by examining empirical issues,… (similarity 0.89)
• But our goal is not merely critical. By exploring what has been neglected, we hope to make some movement toward the task, ventured in Parts II and III, of isolating the issues that must be faced… (similarity 0.89)
• Literal statutory interpretations are defeasible starting points (similarity 0.82)
• Formalism’s value depends on the interpreter’s specialization level. (similarity 0.80)
• Once we disentangle and examine the various strands of formalism and recognize the way in which formalism, rules, and language are conceptually intertwined, it turns out that there is something,… (similarity 0.79)

Broader Connections

• Interpretive debates require attention to institutional capacities and dynamic effects. #corroborates (0.95) — Cass R. Sunstein and Adrian Vermeule, Interpretation and Institutions, 19
• …it casts light on central questions that might otherwise be obscured. At a minimum, we urge that an appreciation of institutional capacities and dynamics is essential to understanding the… #corroborates (0.95)
• We make no pretense of supplying a complete and adequately nuanced intellectual history of interpretive theory. Indeed, our catalogue will have the flavor of Whig History, praising theorists who… #expands (0.90)
• Indeed it is possible that specialized interpreters should reject formalism but that nonspecialists should embrace it; and academic specialists are unlikely to appreciate this point. Our principal… #expands (0.80)
• Why have modern interpretive theories neglected institutional issues? This is a large question, and we do not offer a full answer here; but we do have some speculations. #expands (0.75)