Margaret H. Lemos (Duke University School of Law) has posted SHOULD JUDICIAL OPINIONS BE READ LIKE STATUTES? on SSRN. Here is the abstract:
Should judicial opinions be interpreted with an eye to their purpose, context, or the intent of their authors, or should interpreters focus solely on the ordinary meaning of the text? Opinions present the same sorts of interpretive puzzles as other legal texts, and yet they have been omitted from the debates over interpretive methodology that dominate the fields of constitutional and statutory interpretation. The omission is no accident: The Supreme Court has stated repeatedly—and with increasing frequency in recent years—that judicial opinions are not to be read like statutes. Yet neither courts nor commentators have explained why the principles that ground judges’ interpretations of other legal texts should not apply to texts judges themselves author.
This Article seeks to fill that gap. It provides a descriptive account of the courts’ use of what I call the “not-statutes trope”—a rhetorical device that invokes a mode of interpretation decidedly different from the textualism that characterizes most statutory interpretation today—and shows how the trope often is employed to finesse the demands of stare decisis. The Article then unpacks and analyzes the reasons that might support an interpretive distinction between judicial opinions and statutes, ultimately concluding that none of the proposed distinctions fully explains the not-statutes trope. The upshot is not that opinions should be parsed in a strictly textualist manner, however. There are good reasons to reject such an approach—reasons that bear a striking resemblance to arguments that have been levied against textualism in statutory interpretation. For textualist judges, then, the challenge is to explain why the mode of interpretation they apply to Congress’s handiwork feels so inappropriate when applied to their own writing.
Highly recommended.
I find the interpretation-construction distinction helpful in thinking about this issue. Interpretation of judicial opinions and statutes is the same enterprise, recovering the communicative content of the text. There are nonetheless significant differences. The primary intended readers of judicial opinions are lawyers and judges: for this reason, they frequently employ technical language (terms of art) and rely on background legal assumption for pragmatic enrichment. Different statutes are written for different kinds of readers: some statutes are written for ordinary folk and hence they make limited use of technical language and do not rely on specialized legal knowledge to convey pragmatic enrichments.
"Construction" is the activity that assigns texts legal effect. The construction of judicial opinions is fundamentally different than the construction of statutes. From a textualist perspective, the communicative content of a statutory text is binding: the legal content statutory doctrine and the decision of statutory cases ought to be consistent with the communicative content of statutory texts. But this is not the case with judicial opinions. The legal effect of a judicial opinion is a function of the doctrine of stare decisis. Only the holding of a case is binding. There are competing theories of the holding/dictum distinction, but in my opinion the best theory is grounded on the idea of the ratio decidendi--the legal norm (rule or standard) that follows from the reasoning necessary to the outcome of the case given the legally salient facts before the court and the issues raised by the parties or the court prior to decision. A court's purported statement of its holding is relevant evidence of the ratio decidendi, but the actually hold of a case may be broader or narrower than a "we hold that . . ." statement.
Lemos's argument, as I understand it on the basis of a first reading, does not take the interpretation construction distinction into account. And for this reason, Lemos does not fully consider the ways in which a statutory textualist might reconcile a textualist approach to statutory interpretation and construction with a ratio-decidendi based theory of precedent.
Read Lemos!
