As Kent Greenwalt's second volume on aspects of legal
interpretation, this book analyzes statutory and common law
interpretation and compares the two. In respect to statutory
interpretation, it first asks whether judges are "faithful agents"
of the legislature or "independent cooperative partners." It
concludes that the obvious answer is that neither simple
categorization really fits-that the function of judges involves a
combination of roles. The next issue addressed is whether the
intent of those in authority matters for interpreting the kinds of
instructions contained in statutes. At the general level, the
answer is "yes." This answer follows even if one thinks
interpretation should concentrate on the understanding of readers,
because readers themselves would treat intentions as part of the
relevant context of the language of statutes. It would take some
special reasons, such as constitutional structure or unreliability,
to discount actual intents of legislators and use of legislative
history. The book argues that none of these special reasons are
convincing. On the question whether judges should focus on the
language of specific provision or overall purpose, both are
relevant, and purpose should become more important as time passes.
In an analysis of various other features of statutory
interpretation, the book claims that presidential signing
statements should not have weight, that subsequent legislative
actions short of new statutes should only occasionally carry
importance, that "canons of interpretation," such as the rule of
lenity, can provide some, limited, guidance, and that there are
special reasons for courts to adhere to precedents in statutory
cases, but these should not yield any absolute rule. A chapter on
administrative interpretation of statutes claims that the standards
agencies apply should differ to a degree from those of courts and
that judicial deference to those interpretations is ordinarily
warranted. The book's second part, on common law interpretation,
considers the force of precedents, resisting any simple dichotomy
between holding and dictum. It also defends the use of reasoning by
analogy, not only in the initial stages thinking about a problem,
but also in respect to some final justifications for decisions. An
examination of the place of rules, principles, and policies argues
that all three are relevant in common law interpretation; and shows
that common law interpretation is not reducible to any formula. A
final chapter compares statutory and common law interpretation,
similarities and differences, how each can affect the other, and
the significance of having a legal system in which they both play
prominent roles.
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