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Decision Theory And Babbitt V. Sweet Home: Skepticism About Norms, Discretion, And The Virtues Of Purposivism, Victoria F. Nourse

Saint Louis University Law Journal

In this writing, I apply a “decision theory” of statutory interpretation, elaborated recently in the Yale Law Journal, to Professor William Eskridge’s illustrative case, Babbitt v. Sweet Home Chapter of Communities for a Great Oregon.[1] In the course of this application, I take issue with the conventional wisdom that purposivism, as a method of statutory interpretation, is inevitably a more virtuous model of statutory interpretation. First, I question whether we have a clear enough jurisprudential picture both of judicial discretion and legal as opposed to political normativity. Second, I argue that, under decision theory, Sweet Homeis a …