Norms, Empiricism, and Canons in Statutory Interpretation

Abstract

In the abstract, there should be little quarrel with the proposition that theories of statutory interpretation should be subjected to empirical testing.' Pragmatic thinkers and practitioners ought to be open to any theory that has a "cash-value," as philosopher William James put it.' If an uncompromising application of statutory plain meaning, what I have called the "new textualism," produces more predictable results than eclectic theories now deployed by pragmatic judges and scholars, then theory and practice ought to move toward textualism, even more than they already have. If studies deploying a variety of rigorous techniques show that following a textualist approach generates more consistent and uniform interpretations by a variety of different judges than other approaches to statutory interpretation (original intent, purpose), pragmatists ought to consider those findings as a significant reason to support and adopt a more strictly textual approach to statutory interpretation.