Aaron-Andrew P. Bruhl (William & Mary Law School) has posted Eager to Follow: Methodological Precedent in Statutory Interpretation (North Carolina Law Review, Forthcoming) on SSRN. Here is the abstract:
An important recent development in the field of statutory interpretation has been the emergence of a movement calling for interpretive methodology to be given precedential effect. In such a system, a case would establish not only what a particular statute means but could also establish binding rules of methodology — which tools are valid, in what order, and so on. The movement for methodological precedent has attracted sharp criticism on normative grounds. But both sides of the normative debate agree on the premise that the federal courts generally do not give precedential effect to interpretive methodology.
This Article shows that both sides have misapprehended the current state of affairs. The federal courts already display a substantial amount of methodological precedent. Commentators have underestimated its prevalence for a few reasons, some conceptual and some empirical. On the conceptual side, scholars are rarely explicit about what they believe methodological precedent entails, and some of their implicit criteria are incorrect. On the empirical side, commentators focus too much on the Supreme Court and a few of its fiercest methodological battles rather than viewing the federal judiciary as a whole. If one applies the right criteria and expands the field of view, one sees that we already have a federal interpretive system that is at least semi-precedential. Methodological precedent is most prominent in the lower courts, but there is unappreciated evidence from the Supreme Court too, and the precedential nature of the system is likely to increase.
Adopting a proper understanding of methodological precedent’s nature and extent has some implications for the normative debate over expanding the role of precedent in interpretive methodology. Some of the implications should hearten the proponents of methodological precedent. But the fact that the current level of methodological precedent has not received its proper due may show that its proponents’ real aims are unlikely to be satisfied even as methodological precedent expands and solidifies.
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