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In Copyright


Judges interpreting statutes sometimes seem eager to outsource the work. They quote ordinary speakers to define a statutory term, point to how an audience understands it, or pin it down with interpretive canons. But sometimes conduct that appears to diminish someone’s power instead sneakily enhances it. So it is, I argue, with these forms of interpretive outsourcing. Each seems to constrain judges’ authority by handing the reins to someone else, giving interpretation a democratized veneer. But in fact each funnels power right back to the judge.

The outsourcing approaches I describe show a disconnect between the questions judges pose and the methods by which they seek answers. That disconnect allows judges to avoid normative and empirical decisions central to interpretation. Rather than taking a stand on which community’s speech matters in a democracy, judges pick quotations they like, or turn to empirical techniques like corpus linguistics without acknowledging the underlying decisions they require. Rather than identifying whom statutes address and considering their attitudes, judges speak for an audience they do not listen to. Rather than articulating what purposes canons serve, judges choose a rule that appeals.

Outsourcing seems to alleviate countermajoritarian difficulties by democratizing interpretation and yielding some interpretive certainty. But our common-law adjudication system empowers judges to maintain indeterminacy, creating moments of provisional closure always subject to reinterpretation. Rather than evaluating how well judges resist the authority our system gives them, we should ask how well they justify the way they wield it. Really democratizing interpretation, I argue, involves both considering what methods can yield answers to judges’ questions, and recognizing the limitations of any method. It also means acknolwedging that interpretation remains presumptively open to contestation. Such openness and humility is implicit in the requirement of judicial reason-giving. And it democratizes interpretation more than outsourcing can.

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William and Mary Law Review

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