Congress, Statutory Interpretation, and the Failure of Formalism: The CBO Canon and Other Ways That Courts Can Improve on What They Are Already Trying to Do

Abstract

The formalist project in statutory interpretation, as it has defined itself, has been a failure. That project-typified by but not limited to Justice Antonin Scalia's brand of textualism-has been doomed because even its staunchest supporters have been unwilling to carry it out. The rules that judges employ are too numerous to be predictably chosen. There is no ranking among them. They are not treated as blackletter, precedential law. Even formalist-textualist judges, it turns out, crave interpretive flexibility, do not want to be controlled by other courts or Congress, and feel the need to show their interpretive actions are democratically linked to Congress.