Anya Bernstein, ‘Before Interpretation’

What is it that a judge interprets in a statutory interpretation case? This Article shows that the answer to this question is surprisingly complex. First, the text that a judge interprets is not simply given. Rather, judges must select texts to interpret. Second, the background against which a judge views that text is also not given. Rather, judges situate the texts they interpret within unique, case-specific contexts that they construct from a diverse and unpredictable variety of factors. Selecting and situating: these form the infrastructure of interpretation. Each requires judges to exercise creativity and choice. But opinions tend to present each instead as predictable and inevitable: not a creative and agonistic process, but a basis for assertions of determinate meaning. This Article illuminates how contestation and indeterminacy permeate legal interpretation even as judicial opinions seek to fix and finalize meaning. How do judges explain why they select the texts they do? How do they justify situating those texts in some factors but not others? How do they substantiate the way they characterize the factors they choose? Asking how opinions address their selecting and situating choices reveals how very 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. For instance, it facilitates evaluations and comparisons that do not depend on judges’ expressed preferences or commitments. It also provides a robust way to analyze judges’ statutory interpretations with respect to the normative questions that interest a particular commentator, instead of the normative values prepackaged by prominent theories like textualism and purposivism. Indeed, my approach highlights the limitations of those theories. Purposivism and textualism do not recognize that judges select text to interpret and drastically oversimplify how judges situate that text, 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.

Bernstein, Anya (2017), Before Interpretation, University of Chicago Law Review Volume 84 : Issue 2 , Article 2.

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