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Abegail P. Guardian

Statutory Construction

Set B

A Summary of the Article entitled Judicial Tendencies in Statutory Construction:Differing Views on the Role of the Judge by John M. Walker, Jr.

The article is entitled Judicial Tendencies in Statutory Construction: Differing Views onthe Role of the Judge, written by John M. Walker, Jr. It is confined to considerations oftheory. It briefly review theories that have found wide acceptance in judicial decisions inPart I, pointing out that they fall along a definable spectrum; Part II will then consider ingreater depth the views of two eminent judges who represent different camps in the

statutory construction debate; Part III undertake an examination of the interpretativeissue presented in Green v. Bock Laundry Machine Co., with a view to highlighting boththe purposive and and textualist approaches and some of the difficulties presented byeach; Part IV conclude the essay with some observations. This essay is basically aboutthe role of the Judge in our system of governance.

On the first part, two competing conceptions of law were discussed: (1) Statutory law iscomplete when it is ordained by the legislature (or administrative agency). It acquires itsstatus as law, the law at the moment of enactment, before the judge grapples with it.The judge may not alter its command; (2) The statutory command as not fullydetermined until the Judge has finally articulated and applied it. Under this conception,

the judge is not simply to apply the statutory law as stated, but to read it in such a wayas to improve upon it by reaching an interpretation that comports with the largerpurpose of the enactment and any practical concerns, as well as general notions of

justice, social purpose and morality. There are also criticisms for these two conceptions.First is that it is wooden and subject to mindless application. Second is that it invites thecharge that in departing from the text in an effort to reach the best result in a particularcase, it unsettles the law.

For more than a century after the American revolution, ideals about the meaning of therule of law were developed within an entirely judge and court ecntered system ofthought. When Legal Realism emerged, it replaced the idea of the judge as one whodeclares pre-existing law with the notion that the judges made the common law.

The second part of the article discussed different views regarding the task of StatutoryConstruction. According to Judge Pound, Where the statute was incomplete or unclear,the task of statutory construction entailed efforts to make, unmake or remake and notmerely to discover, and hence was essentially a legislative, not a judicial process. Itwas termed as spurious interpretation according to Judge Pound. On the other hand,Judge Cardozo, a quintessential common law Judge believes Statutory interpretation

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as involving a legislative component. The power to declare the law carries with it thepower, and within the limits of duty, to make law.

Justice Oliver Wendell Holmes in contrast to Pound and Cardozos concern emphasizedrule of law values and the attendant need for objective standards in statutoryinterpretation; a government of laws, not men demanded standards external to Judges.

It is in question if in passing a statute, the Judge was free to go beyond what thelegislative said, or meant to say, by enacting the words of the statute, to determine thebroader question of what the legislature intended to accomplish by passing a law and tointerpret the law accordingly.

Two arguments became the topic of the debate discussed in Part 4. Purposivism vs.textualism was the topic of the debate. The Judges role in the system was viewed indiffering terms. In conceptions of statutory interpretation that held to the text, the judgesrole was more limited, while in those that relied on the legislatures purpose or intent inpassing a statute, the judge was free to go beyond what the legislature said by enacting

the words of the statute. In his theoretical writings, Judge Hand drew a distinctionbetween two extreme schools---those who believe that a judge ought to look to hisconscience and follow its dictates; he ought not to be bound by what they call technicalrules, having no relation to natural right and wrong, and those who adhere to thedictionary school. To the dictionary school, No matter what the result is, he must readthe words in their usual meaning and stop where they stop. Judge Hand criticized thisapproach, suggesting that no judges have ever carried on literally in that spirit and theywould not be long tolerated if they did.

The term new textualism was coined by Professor William N. Eskridge, Jr. Newtextualists rely on Holmes view that it is the meaning of the plain text and not the intentof the legislature that determoines a statutes meaning. Traditional textualist or plainmeaning approach ontinues to look to legislative intent as the touchstone ofinterpretation, but holds that the text is the best evidence of intent, and where itsmeainng is plain, the exclusive evidence.Ordinary meanings of statutory terms and thestructure of the statute vs, harsh or inequitable sentences that would follow

According to Judge Posner, the newtextualist approach buys political neutrality and atype of objectivity at the price of substatntive injustice, while the purposive method buys

justice in the individual case at the price of considerable uncertainty and, notinfrequently, judicial willfullness. Judge Posners emphasis of justice was that thelegislature was made up of reasonable people pursuing reasonable purposesreasonably. Justice Scalia notes that the legislative history is particularly pernicious

because it is uniquely manipulable. This is because judges substitute their own will forthat of the legislature. Justice Scalia notes said that he has opposed the use oflegislative history for some time now. Rejecting reliance on legislative history: it wouldsave all parties an enormous amount of time and expense.

The third part of the article examines the issue of interpretation using the differing viewsof purposivism and textualism. As the case GREEN V. BOCK LAUNDRY MACHINECO. shows , some statutes are so poorly drafted and lead to results so unacceptable

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that even a textualist must abandon the text. But Justice Scalia, beyond observing thatthe literal meaning of the text in this case was unacceptable and probablyunconstitutional, advances no specific rules to provide guidance as to when a statutesliteral meaning is so unacceptable as to warrnt departure. The absence of such rukesopens the door for judicial discretion. Interpreting the statute in the Judge Learned Hand

or Hart and Sacks traditions.

In case involving statutory interpretation, when trying to determine the meaning of thestatute, a judges mind typically moves back and forth between text and contect as the

judge considers all available and persuasive or binding materials at the judgesdisposal, including any prior precedent. A judge typically will consider whether thelegislative history can be helpful and what weight to give it, if any,

The author observed, which was discussed in Part 4, that new textualists see the judgeas the faithful agent, not of the legislature but of the Constitution. Subordinatepurposes or intents might be more specific to particular provisions but, even puttingaside the difficulties of ascertaining them, the likelihood of their generating common

legislative acceptance, so as to equate to a purpose or intent that could guideinterpretation rapidly diminishes in proportion to their specifity.

The article written by John M. Walker raised three questions in this debate: (1) Shouldthe judge act as a mini legislator, filling in the interstices of a statute and giving it a voicewhere it is silent to advance what the judge determines to be the legislative purpose orintent? (2) Should the judge adhere to the text and leave lawmaking, even interstitiallawmaking to the elected branch? (3) Do justice or play game according to the rules?This would all depend on the Judge handling the case.