Private Law Theory

ABSTRACT
The dominant paradigm of statutory-interpretation scholarship is an ‘internalist’ one. It treats statutory interpretation as a self-contained set of tools primarily deployed by lawyers and judges within the closed universe of courts. But as judges increasingly justify textualism by invoking a populist fidelity to ‘the people’, the internalist paradigm has proven too narrow to support a robust democratic theory of statutory interpretation. Urgent, foundational questions such as ‘How should laypeople engage with statutes in the first place?’ and ‘What is the between statutory interpretation and power?’ are entirely illegible within an internalist, juricentric paradigm. The concept of a statute’s ‘ordinary meaning’ has in turn developed with little attention paid to laypeople’s actual participation in political processes.

In response, this Article – the second in a series – begins a new conversation in the field of legislation by developing a broader, critically ‘externalist’ perspective. The Article lays the foundations for a social and political theory of statutory interpretation that is more inclusive of diverse and historically marginalized peoples, grounded in the realities of lay politics, and capable of reflecting the social nature of statutory interpretation …

Zhang, Alexander, Externalist Statutory Interpretation (August 1, 2024), 134 Yale Law Journal (forthcoming 2024).