Anuj Desai, ‘The Dilemma of Interstatutory Interpretation’

Courts engage in interstatutory cross-referencing all the time, relying on one statute to help interpret another. Yet, neither courts nor scholars have ever had a satisfactory theory for determining when it is appropriate. Is it okay to rely on any other statute as an interpretive aid? Or, are there limits to the practice? If so, what are they? To assess when interstatutory cross-referencing is appropriate, I focus on one common form of the technique, the in pari materia doctrine. When a court concludes that two statutes are in pari materia or (translating the Latin) ‘on the same subject’, the court then treats the two statutes as though they were one. The doctrine thus permits judges to use ordinary doctrines of intra-statute interpretation across the two statutes. Determining that two statutes are ‘on the same subject’ thus gives interpreters a powerful tool of interstatutory interpretation. How, then, should courts determine whether to treat two statutes as one? …

Desai, Anuj C, The Dilemma of Interstatutory Interpretation (March 20, 2020). 77 Washington and Lee Law Review 177 (2020).

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