Theory on framework issues

Wednesday, September 23, 2009

5.15 Conclusion. So, how is judicial statutory interpretation possible in the absence of a consensual interpretive theory?

(Fifteenth in series: The interpretation of statutes and the denial of judges' powers.)

To sum up this investigation — what's the solution to the interpretive enigma: judges agree on interpretations, despite disagreeing on what a legal interpreter should do? The solution consists of two constraints: the logically inevitable common law of statutory interpretation and the politically necessitated convergence of judicial interpretations.

The common law of interpretation — the reigning theory articulating a legal culture's interpretive practices — includes such loose and defeasible constraints like the maxims of construction. Other examples from the common law of statutory interpretation are some jurisdictions' rules governing when "shall" is construed as "must" versus "may." The common law of statutory interpretation is underarticulated.

Why has the important role of the common law in statutory interpretation suffered neglect, this obvious concept sometimes rejected on jurisprudential principle? Scholars underestimate the interpretive common laws' constraint because it works in tandem with a second constraint, one not necessarily within jurists' awareness. Scholars ignore that constitutions can cause themselves to be construed a certain way without the construction being implied by its provisions. The historical tendency for interpretations to converge in line with the constitution's structural designations is proposed an example of how a constitution influences its long-term construction.

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SUPPLIER OF LEGAL THEORIES. Attorneys' ghostwriter of legal briefs and motion papers, serving all U.S. jurisdictions. Former Appellate/Law & Motion Attorney at large Los Angeles law firm; J.D. (University of Denver); American Jurisprudence Award in Contract Law; Ph.D. (Psychology); B.A. (The Johns Hopkins University). E-MAIL: Phone: 760.974.9279 Some other legal-brief writers research thoroughly and analyze penetratingly, but I bring another two merits. The first is succinctness. I spurn the unreadable verbosity and stupefying impertinence of ordinary briefs to perform feats of concision and uphold strict relevance to the issues. The second is high polish, achieved by allotting more time to each project than competitors afford. Succinct style and polished language — manifested in my legal-writing blog, Disputed Issues — reverse the common limitations besetting brief writers: lack of skill for concision and lack of time for perfection.