Title

Before Interpretation

Document Type

Article

Publication Date

Spring 2017

Abstract

What a statutory interpretation opinion interprets may seem given. It is not: this article shows how judges select what text to interpret. That text may seem to carry with it one of a limited range of contexts. It does not: this article shows how judges draw on a variety of factors to situate the texts they interpret in unique, case-specific contexts. Selecting and situating form the infrastructure of interpretation. Their creativity and choice provide the basis on which assertions of determinate meaning are made. That process reveals how contestation and indeterminacy permeate legal interpretation even as judicial opinions seek to fix and finalize meaning.

How does an opinion explain why it selects the text it does? How does it justify situating that text in some factors but not others? How does it substantiate the way it characterizes the factors it chooses? Asking how opinions address their selecting and situating choices reveals how unevenly they fulfill their basic obligation of giving reasons for their conclusions. Recognizing selection and situation opens up other lines of analytic and normative inquiry as well.

In addition, my approach highlights the limitations of prominent interpretive theories like textualism and purposivism. These theories do not recognize selection and drastically oversimplify situation, leaving judges with little guidance about the very choices on which interpretation is based. This failure may not be too surprising: these theories prescribe what interpreters ought to do, rather than explain what they, in fact, do. In contrast, my contribution helps us understand the practices through which legal actors justify interpretations, claim legitimacy, and set the terms of valid legal argument.

Publication Title

University of Chicago Law Review

First Page

567

Last Page

654

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