The Download of the Week is Three Symmetries Between Textualist and Purposivist Theories of Statutory Interpretation—and the Irreducible Roles of Values and Judgment Within Both by Richard H. Fallon, Jr.. Here is the abstract:
This Article illuminates an important, ongoing debate between “textualist” and “purposivist” theories of statutory interpretation by identifying three separate stages of the interpretive process at which textualists, as much as purposivists, need to make value judgments. The Article’s analysis, which reveals previously unrecognized symmetries between the two theories, is consistent with, but does not depend upon, empirical studies indicating that judicial ideology matters more than methodology in determining interpretive outcomes. It rejects the frequent claim of textualists that their theory much more stringently restrains value-based decision making than does purposivism.
Of the three interpretive stages at which textualists rely on value-based judgments as much as purposivists do, one stands at the threshold when “interpretive dissonance”—reflecting a partly value-based experience of dis- cordance between what a statute at first blush seems to mean and an inter- preter’s expectations concerning what well-written legislation would likely direct—triggers an initial resort to interpretive theory. Then, symmetrically, both textualists and purposivists need to specify the context within which a statute should be interpreted. Although textualists emphasize a statute’s “se- mantic context” and purposivists its “policy context,” making specific determinations of what is contextually relevant and irrelevant frequently draws values into play. Finally, after an interpretive context is specified, textualist as much as purposivist interpreters must make judgments of “reasonable- ness.” Purposivists inquire what reasonable legislators would have in- tended. For textualists, the comparable question involves how a reasonable person would understand statutory language in context. The construct of a reasonable interpreter is inherently value laden.
Because both textualist and purposivist theories require partly value-based decision making, there is no escaping the conclusion that good judging requires good judgment—even when reasonable disagreement exists about what good judgment requires. Normative debates about theories of statutory interpretation will remain incomplete until textualists, in particular, reckon adequately with this reality.