Judicial Interpretation in the Cost-Benefit Crucible

47 Pages Posted: 26 Jul 2007

See all articles by Jonathan R. Siegel

Jonathan R. Siegel

George Washington University Law School

Abstract

This article responds to Professor Adrian Vermeule's new book, Judging Under Uncertainty. Professor Vermeule argues that (1) no one can empirically determine whether judicial use of legislative history or other interpretive methods that go beyond simple enforcement of plain text has any positive net benefits, but (2) we do know that such interpretive methods impose costs, and therefore (3) courts should discard such interpretive methods. This article suggests that (1) it is far from clear how costly these interpretive methods are, (2) it is also not clear that discarding them would result in any cost savings, both because of costs that would remain if only some judges adopted Professor Vermeule's theory and because, even if all judges adopted it, cost savings from the use of simpler interpretive methods might be offset by other, new costs, such as the costs imposed by judicial enforcement of clear but erroneously drafted statutory text that leads to absurd results, and (3) there are institutional reasons to believe that courts do get net benefits from methods that permit them to look beyond plain statutory text in some cases; most notably, the fact that courts interpret statutes at the moment of implementation puts them in a good position to detect statutory drafting errors. For these reasons, the article recommends against adoption of Professor Vermeule's interpretive theory.

Keywords: Interpretation, Statutory interpretation, Constitutional interpretation, Legislative history, Vermeule, Cost-benefit analysis, Empirical legal research

JEL Classification: D61, K40

Suggested Citation

Siegel, Jonathan R., Judicial Interpretation in the Cost-Benefit Crucible. Minnesota Law Review, Vol. 92, 2007-2008, GWU Legal Studies Research Paper No. 292, GWU Law School Public Law Research Paper No. 292, Available at SSRN: https://ssrn.com/abstract=1000430

Jonathan R. Siegel (Contact Author)

George Washington University Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-7453 (Phone)
202-994-5614 (Fax)

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