Aaron-Andrew P. Bruhl (William & Mary Law School) has posted Managing Interpretive Change (55 pages) on SSRN. Here is the abstract:
Interpretive methodology changes over time, and we appear to be in a period of particular ferment. In constitutional law, “history and tradition” is a newly powerful mantra. In statutory interpretation, which is the focus of this Article, several important changes in interpretive methods have occurred in recent decades or are in the making. There has been a decades-long shift away from intentionalist tools like legislative history, and now it appears some Justices are attempting to reconfigure the toolkit of substantive canons. The aspect of interpretive methodology most obviously in flux at the moment is the doctrine of deference to agency interpretations, where the main question is how big the changes will be.
Much is being written about whether these changes in interpretive methods are good or bad, but this Article instead addresses the less studied matters of how interpretive change can happen and how the Supreme Court does and should manage change. I refer to “managing” change because one lesson is that the Supreme Court is not the sole initiator of change, as change can also come from lower courts, litigants, or currents in the broader legal culture. But the courts, and the Supreme Court most of all, do have the power to manage change and arguably have the responsibility to do so in ways that promote rule-of-law values and informed decisionmaking.
The Article provides several case studies of past and present changes in methods of statutory interpretation and analyzes the mechanisms through which courts bring about or control change, laying out the mechanisms’ various strengths and weaknesses. The Article also lays out several guidelines for would-be regime changers and critically evaluates the Court’s performance against those guidelines. Even taking the Court’s end goals for the interpretive regime as a given, the Court is making some missteps. Specifically, it should pay more attention to the needs of the lower courts and should not go so fast that it cannot learn from its decisions.
Posted at 6:07 AM