Law Commons^™

A Process Failure Theory Of Statutory Interpretation, Mark Seidenfeld

William & Mary Law Review

Despite all that has been written about the choice between purposivist, intentionalist, and textualist approaches to statutory interpretation, to date the literature has not provided a justification for the common judicial practice of relying on intent-based inquiries in some cases and disavowing those approaches for textualism in others. This Article fills that void and, in doing so, lays out a new “legislative process failure” theory of statutory interpretation that has the potential to move the debate beyond a simple choice between textual and intent-based interpretation. This Article argues that Congress and the courts comprise different linguistic communities when they interpret …

Statutes And Democratic Self-Authorship, Paul W. Kahn, Kiel Brennan-Marquez

William & Mary Law Review

In this Article, we argue that both sides of the usual debate over statutory interpretation—text versus purpose—rest on a common, but flawed, premise. Judges and scholars have assumed that legislative bodies are the authors of statutes. We disagree; instead, we argue that the people are the authors of statutes. Legislative bodies play an indispensable role in the process: they draft statutes. And courts play a similarly indispensable role: they interpret statutes. But ultimately, it is the polity—we, the people—that is responsible, as authors, for the content of the law.

This shift yields dramatic consequences. To date, no theory of statutory …