Will Baude (Chicago) is guest-blogging about his article (with Stephen Sachs) "The Law of Interpretation" at Volokh Conspiracy. Here are the initial posts:
What is legal interpretation anyway? (the opening post)
Interpretation and ‘the artificial reason of the law’ – with the key proposition:
Simply put, we think that there can be, and usually are, legal rules of interpretation that pick among contested theories of meaning and fill gaps where language seems to run out. These are legal rules, not derivable from language alone. But as law, these aren’t unfettered normative reasoning either.
Interlude: What’s the point of a law of interpretation?
The (unwritten) federal rules of statutory interpretation
One general application of The Law of Interpretation is to figure out which purported rules or canons of statutory interpretation are actually valid.
On our view, there are basically two routes to validity: Either a rule is a principle of language, in which case it should accurately track how lawmakers communicate; or it is a principle of law, in which case it should satisfy the tests provided by the rule of recognition for valid legal norms in our system. (You can replace the latter with your own preferred theory of jurisprudence, but I’ll leave that as an exercise for the reader.)
So to take one newly controversial example, is the rule of agency deference pronounced in Chevron v. NRDC valid? I am dubious.
Posted at 6:57 AM