Interpretive debates require attention to institutional capacities and dynamic effects.

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

Categorization

• DEFINE: Lays out the book’s core reframing: an ‘institutional turn’ that replaces the question ‘how should we interpret a text’ with ‘how should specific institutions interpret specific texts’.
• XREF: Connects to the legal-process school (Hart & Sacks), and to behavioral-economics literature on judge fallibility; also parallels the author’s other work on agency interpretation. — connects to: 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.; Our principal goal here is to pose the question of interpretation in a form that will sidestep these role-related and cognitive traps, enabling interpretive theory to highlight the neglected issues.; 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. (+9 more)
• SEED: An essay angle: contrasting ‘who should interpret’ with ‘how should interpretation work’ across fields — e.g., medicine, translation, or AI systems making decisions.

Related

• 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 0.96)
• 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 0.96)
• 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 0.95)
• …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 0.93)
• 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… (similarity 0.91)
• Cass R. Sunstein and Adrian Vermeule — Interpretation and Institutions (similarity 0.83)
• 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 0.83)
• Literal statutory interpretations are defeasible starting points (similarity 0.78)

Broader Connections

• 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)