This Article illuminates an important, ongoing debate between
“textualist” and “purposivist” theories of statutory interpretation by identifying
three separate stages of the interpretive process at which textualists, as
much as purposivists, need to make value judgments. The Article’s analysis,
which reveals previously unrecognized symmetries between the two theories, is
consistent with, but does not depend upon, empirical studies indicating that
judicial ideology matters more than methodology in determining interpretive
outcomes. It rejects the frequent claim of textualists that their theory much
more stringently restrains value-based decision making than does
Of the three interpretive stages at which textualists rely on value-based
judgments as much as purposivists do, one stands at the threshold when
“interpretive dissonance”—reflecting a partly value-based experience of discordance
between what a statute at first blush seems to mean and an interpreter’s
expectations concerning what well-written legislation would likely
direct—triggers an initial resort to interpretive theory. Then, symmetrically,
both textualists and purposivists need to specify the context within which a
statute should be interpreted. Although textualists emphasize a statute’s “semantic
context” and purposivists its “policy context,” making specific determinations
of what is contextually relevant and irrelevant frequently draws
values into play. Finally, after an interpretive context is specified, textualist
as much as purposivist interpreters must make judgments of “reasonableness.”
Purposivists inquire what reasonable legislators would have intended.
For textualists, the comparable question involves how a reasonable
person would understand statutory language in context. The construct of a
reasonable interpreter is inherently value laden.
Because both textualist and purposivist theories require partly
value-based decision making, there is no escaping the conclusion that good
judging requires good judgment—even when reasonable disagreement exists
about what good judgment requires. Normative debates about theories of
statutory interpretation will remain incomplete until textualists, in particular,
reckon adequately with this reality.
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