Just Do It! Eskridge s Critical Pragmatic
Theory of Statutory Interpretation
William N. Eskridge, Jr., Dynamic Statutory Interpretation. Cambridge, Mass.:
Harvard University Press, 1994. Pp. ix, 438 [Cloth $49.95 (US)].
Reviewed by Paul Michell”
Introduction
The process of statutory interpretation is the unsung workhorse of the law. All
but ignored by the law schools, lacking the high profile of constitutional interpreta-
tion, the interpretation of statutes is, nevertheless, the most common task of the
courts and administrative tribunals. Common, yes; but essential, too. For the mod-
em regulatory state could not operate without a system of courts and tribunals to
interpret and apply its legislative and executive commands. Almost all regulation is
implemented by means of statute, and the legitimacy and function of the modem
state rests, in large measure, upon the proper interpretation of those commands by
courts and tribunals.’
In Canada, as in the United States, the twentieth century has witnessed an “orgy
of statute making” Most lawyers, however, have only a limited understanding of
the undercurrents that guide statutory interpretation In the Common law world, le-
gal education and, to a lesser degree, legal practice continue to focus upon the ju-
dicial decision as the archetypal building-block of the law.’ Statutes are still viewed
as intruders upon the purity of the Common law. Although statute law features
prominently in law schools in courses on, among other subjects, taxation, labour,
* Articling student, Tory Tory DesLauriers & Binnington, Toronto. Paul Horwitz and Daniel Steiner
made helpful comments on an earlier draft.
McGill Law Journal 1996
Revue de droit de McGill
To be cited as: (1996) 41 McGill L.J. 713
Mode de r6fdrence: (1996) 41 R.D. McGill 713
‘See C.R. Sunstein, After the Rights Revolution: Reconceiving the Regulatory State (Cambridge,
Mass.: Harvard University Press, 1990).
2 G. Gilmore, The Ages of American Law (New Haven: Yale University Press, 1977) at 95.
3 See Proceedings of the Annual Meeting of the Administrative Law Section, Canadian Association
of Law Teachers, 1986, “The Teaching of Legislation in Canadian Law Faculties” (1987) 11 Dal-
housie LJ. 255.
‘ See: R.A. Posner, “Statutory Interpretation –
in the Classroom and in the Courtroom” (1983) 50
U. Chi. L. Rev. 800, who notes that the academic study of legislation in the law schools is moribund;
R.A. Posner, “Legislation and Its Interpretation: A Primer” (1989) 68 Neb. L. Rev. 431.
MCGILL LAW JOURNAL/REVUE DE DROITDE MCGILL
[Vol. 41
bankruptcy, intellectual property, immigration, and competition, little is said about
statutes themselves or the legislative process that creates them.
Statutory interpretation gives rise to a host of intricate practical and theoretical
problems, and for this reason it has been a perennial topic of legal theory. Interest in
the subject ebbs and flows, but it has recently experienced something of a renais-
sance in the United States. In no small part, this has been due to the work of Wil-
liam Eskridge, Jr. of Georgetown University, who over the past decade has written
a flurry of seminal articles on the subject His remarkable book Dynamic Statutory
Interpretation’ is the culmination of this work. Although the interpretation of stat-
utes is one of the major tasks of modem courts and administrative tribunals, the
subject in Canada has been confined largely to black-letter analysis. It was not al-
ways so. At one time, Canada was a centre of statutory interpretation scholarship.!
It has not been so for many years; happily, however, this relegation of the subject to
an ill-deserved obscurity may now be changing.8
A major difficulty is that statutory interpretation is a subject divided. This
division speaks eloquently about the broader malaise that affects the relationship
between the profession and the academy.” At one extreme are traditional ap-
proaches to statutory interpretation which tend towards the formalistic recitation
of rules.'” Some traditional texts, it is true, are quite sophisticated and nuanced
5See e.g.: W.N. Eskridge, Jr., “Gadamer/Statutory Interpretation” (1990) 90 Colum. L. Rev. 609;
W.N. Eskridge, Jr., “The New Textualism” (1990) 37 U.C.L.A. L. Rev. 621; W.N. Eskridge, Jr.,
“Legislative History Values” (1990) 66 Chi.-Kent L. Rev. 365.
(Cambridge, Mass.: Harvard University Press, 1994).
7 See e.g.: J.A. Con-y, “The Use of Legislative History in the Interpretation of Statutes” (1954) 32
Can. Bar Rev. 624; K Davis, “Legislative History and the Wheat Board Case” (1953) 31 Can. Bar
Rev. 1; D.G. Kilgour, “The Rule Against the Use of Legislative History: Canon of Construction or
Counsel of Caution?” (1952) 30 Can. Bar Rev. 769; J. Willis, “Statutory Interpretation in a Nutshell”
(1938) 16 Can. Bar Rev. 1; J.A. Corry, “Administrative Law and the Interpretation of Statutes” (1936)
1 U.T.LJ. 286; R.A. Macdonald, “On the Administration of Statutes” (1987) 12 Queen’s L. J. 488.
8 Important recent work includes: S.G. Requadt, “Worlds Apart on Words Apart: Re-examining the
Doctrine of Shifting Purpose in Statutory Interpretation” (1993) 51 U.T. Fac. L. Rev. 331; R. Yalden,
“Deference and Coherence in Administrative Law: Rethinking Statutory Interpretation” (1988) 46
U.T. Fac. L. Rev. 136; H.W. MacLauchlan, “Approaches to Interpretation in Administrative Law”
(1988) 1 Can. J. Admin. L. & Prac. 293; H.W. MacLauchlan, “Judicial Review of Administrative In-
terpretations of Law: How Much Formalism Can We Reasonably Bear?” (1986) 36 U.T.L.J. 343; E.
Tucker, “The Gospel of Statutory Rules Requiring Liberal Interpretation According to St. Peter’s”
(1985) 35 U.T.LJ. 113.
9 See: R.A. Posner, ed., “The Triumphs and Travails of Legal Scholarship” in Overcoming Law
(Cambridge, Mass.: Harvard University Press, 1995) 81; A.T. Kronman, The Lost Lawyer: Failing
Ideals of the Legal Profession (Cambridge, Mass.: Belknap Press, 1993) at 165-270; H.T. Edwards,
“The Growing Disjunction Between Legal Education and the Legal Profession” (1992) 91 Mich. L.
Rev. 34.
‘o See: S.G.C. Edgar, Craies on Statute Law, 7th ed. (London: Sweet & Maxwell, 1971); C.E. Odg-
ers, The Construction of Deeds and Statutes, 5th ed. (London: Sweet & Maxwell, 1967); P. St.J. Lan-
gan, Maxwell on The Interpretation of Statutes, 12th ed. (London: Smith & Maxwell, 1969).
1996]
P MICHELL – DYNAMIC STATUTORY INTERPRETATION
and reveal a great deal of learning.” For the most part, however, they are reso-
lutely non-theoretical and, thus, prone to accusations of being merely “black-
letter law”. They treat the subject as a mere set of rules. A generation ago, texts
on statutory interpretation adhered to this framework, collecting judicial dicta
and expounding hoary Latin maxims. The formalist influence is still strong: new
texts continue to be burdened with its legacy.’2
Many texts of this traditional school are edited by practitioners, both because
there is a demand from practicing lawyers and judges for guidance when engag-
ing in statutory interpretation, and because few academics are attracted to the
subject. They are very much practitioners’ works, reflecting Common lawyers’
pronounced distrust of theory. The absence of academic interest may be part of a
general phenomenon: fewer traditional textbooks of any kind are being produced
in the law schools as a new generation of academics displays little interest in ex-
pounding doctrine and sets its sights on interdisciplinary and theoretical pur-
suits.’3 Statutory interpretation is, however, especially burdened; historically, the
very integrity of the discipline has been subjected to stinging attacks, verging on
ridicule, from proponents of the legal-realism school.”
At the other extreme, an influential school of legal theory has in recent years
propounded the view that law is an essentially interpretive activity. Deriving in-
sights from literary criticism and linguistic philosophy, Ronald Dworkin has de-
veloped a theory of law out of a theory of adjudication. The idea that interpreta-
tion is a central element of the judicial role is an essential feature of Dworkin’s
jurisprudence. 5 Although Dworkin’s claim has proven controversial, its impact
has been revolutionary. Nonetheless, the output of the interpretation movement
has proven too abstract for use by legal practitioners, and its devotees have rarely
addressed the concrete cases that make up the subject matter of statutory interpre-
tation. Law reviews are replete with articles on interpretation, although so much
activity is now lumped under the rubric of “interpretation” that the term has been
“See the wonderfully idiosyncratic EA.R. Bennion, Statutory Interpretation, 2d ed. (London: But-
“‘See D.J. Gifford, K.H. Gifford, & M.I. Jeffery, How to Understand Statutes and By-Laws
terworths, 1992).
(Scarborough, Ont.: Carswell, 1996).
‘” See M.A. Glendon, A Nation under Lawyers: How the Crisis in the Legal Profession is Trans-
forming American Society (New York: Farrar, Straus & Giroux, 1994) at 199-253.
” See e.g.: K.N. Llewellyn, “Remarks on the Theory of Appellate Decision and the Rules or Can-
ons About How Statutes Are to Be Construed” (1950) 3 Vand. L. Rev. 395; M. Radin, “Statutory In-
terpretation” (1930) 43 Harv. L. Rev. 863 at 881.
‘” See: R. Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Cambridge,
Mass.: Harvard University Press, 1996) at 1-38; R. Dworkin, Law’s Empire (Cambridge, Mass.:
Belknap Press, 1986).
MCGILL LAW JOURNAL/REVUE DE DROITDE MCGILL
[Vol. 41
stretched out of shape and has lost any specificity and, thus, utility that it might
once have possessed.”
It is regrettable that there has not been more contact between these two poles;
the subject has certainly suffered because of it. Indeed, just as it is difficult to see
how constitutional law and constitutional theory can be separated, statutory inter-
pretation will remain opaque without a strong theoretical grounding. The editors of
more recent editions of traditional texts have come to realize that they ignore theo-
retical considerations at their peril.” Without an account of what courts and legisla-
tures actually do and what they should do, a text on statutory interpretation is mere
mechanics. Indeed, it is worse, because it perpetuates the false notion that the inter-
pretation of statutes is merely a matter of grammar and logic, somehow apolitical
and uncontroversial. The rule-bound approach to statutory interpretation, long fa-
voured by Canadian courts, constitutes an unconscious adoption of a positive po-
litical theory. The task of revising traditional texts cannot be accomplished merely
by bolting a chapter on jurisprudence or theory onto an existing structure. On the
contrary, a sophisticated theoretical perspective must infuse and inform the rules
themselves, how they are explained and how they are addressed.’8 Our political and
legal institutions are incarnations of particular political and legal theories, and they
cannot be fully understood until these theories are explored.”
It is one of the great strengths of Dynamic Statutory Interpretation that its
author is well versed in both of the two solitudes of his subject. Eskridge reveals a
deep understanding of the philosophical controversies that drive the modem de-
bates over statutory interpretation and make the subject relevant to a contemporary
audience. He also addresses the details and craftsman’s art of legislation and inter-
pretation, and he is unafraid to grapple with the leading cases. Eskridge argues in
favour of what he calls a “dynamic” theory of statutory interpretation. By this, he
means that the interpretation of a statutory provision by a court or a tribunal need
not necessarily be one which the legislature that enacted the statute would have ap-
proved. Because dynamic statutory interpretation is essentially non-originalist, it is
important to understand originalism, thereby defining dynamic statutory interpreta-
tion by what it is not. The book’s thesis was first advanced, albeit in a less ambi-
‘6 See: D. Patterson, “The Poverty of Interpretive Universalism: Toward the Reconstruction of Le-
gal Theory” (1993) 72 Tex. L. Rev. 1; M.S. Moore, “Interpreting Interpretation” in A. Marmor, ed.,
Law and Interpretation: Essays in Legal Philosophy (Oxford: Clarendon Press, 1995) 1.
7See: J. Bell & G. Engle, Cross[:] Statutory Interpretation, 3d ed. (London: Butterworths, 1995);
R. Sullivan, ed., Driedger on the Construction of Statutes, 3d ed. (Toronto: Butterworths, 1994); P-A.
C6tS, The Interpretation of Legislation in Canada, 2d ed. (Cowansville, Qu&.: Yvon Blais, 1991).
” Good recent examples are: D.R. Miers & A.C. Page, Legislation, 2d ed. (London: Sweet &
Maxwell, 1990); J. Evans, Statutory Interpretation: Problems of Communication (Auckland: Oxford
University Press, 1989).
” See MJ. Sandel, Democracy’s Discontent: America in Search of a Public Philosophy
(Cambridge, Mass.: Belknap Press, 1996) at ix.
19961
R MICHELL – DYNAMIC STATUTORY INTERPRETATION
tious form, in an article now almost a decade old.” In Dynamic Statutory Interpre-
tation, Eskridge makes the broader claim that his thesis is not limited to a norma-
tive claim about what courts and tribunals should do but is, in fact, an accurate
empirical description about how they do act. But how successful is his theory?
The plan of the book is simple enough, a structure which belies the book’s
deeper complexities. Part I is largely descriptive. Eskridge begins with an attack on
originalism, the theory that claims legislation should be interpreted by reference to
the original intent of the legislators at the time of its enactment. This is followed by
an explanation of the main features of Eskridge’s theory of dynamic statutory inter-
pretation. Eskridge then applies his theory to a meticulous study of statutory inter-
pretation decisions in labour injunction cases in the United States’s federal courts
from the end of the Civil War to the dawning of the New Deal. These labour in-
junction cases illustrate Eskridge’s thesis that statutory interpretation is a battle-
ground for broader political and legal struggles.
In Part II, Eskridge establishes a normative foundation for his descriptive ac-
count of statutory interpretation. He evaluates the desirability of his theory from the
perspective of three leading schools of legal and political thought: liberal social-
contract theory; legal process theory; and various forms of normativist theory. His
conclusion is that although dynamic statutory interpretation contains important
elements of all three theoretical perspectives and is immanent in each of them, sup-
port for his theory of dynamic statutory interpretation is best provided by a norma-
tive political theory he identifies as “critical pragmatism”. Eskridge sketches an
outline of critical pragmatism, but he makes no pretence to a full exposition. In Part
III, Eskridge applies his theory – now buttressed with normative support –
to con-
crete cases in order to illuminate some key doctrinal controversies in statutory-
interpretation jurisprudence. Though the specific cases and immediate concerns are
from the United States, the issues addressed re-occur across the Common law
world.
Throughout, Eskridge also pursues a supplementary theme: the uniqueness and
importance of statutory interpretation as a distinct area of law. Dynamic Statutory
Interpretation is a sophisticated and nuanced study of a field which for too long has
been relegated to secondary status. To truly make sense of legislation, students of
statutory interpretation must understand how the legislature functions and have a
theoretical account of that functioning. This is Eskridge’s second sense of the term
“dynamic”: it describes the relationship between the courts and tribunals as inter-
preters and the legislature, which –
possesses the power to override the legal interpretations of the former. Obviously,
legislatures also play a central role in constitutional cases, but legislative ability to
in cases without a constitutional dimension –
‘ 0See W.N. Eskridge, “Dynamic Statutory Interpretation” (1987) 135 U. Pa. L. Rev. 1479
[hereinafter “Interpretation”].
MCGILL LAW JOURNAL/REVUE DE DROITDE MCGILL
[Vol. 41
override judicial decisions is attenuated in the absence of a constitutional amend-
ment.’
I. Theories of Statutory Interpretation
Defining the scope of the statutory interpretation debate requires consideration
of a number of factors. Any theory of statutory interpretation must take into ac-
count the hierarchical nature of a legal system. The doctrine of parliamentary su-
premacy is of central importance; legislatures set out norms of general application
in the form of statutes and regulations, and courts and administrative tribunals ap-
ply these norms to specific factual situations. The commands of the legislature bind
courts and tribunals in two ways. First, they determine the processes by which the
court or tribunal will come to its decision. Second, they govern the substantive de-
cision at which the court or tribunal will arrive through the interpretation of statutes
and their application to a particular case.
This latter statement is qualified, because in reality, the legislature can never
entirely determine the substantive result in the individual case by way of a general
command. Some degree of discretion or interpretive leeway always remains with
the interpreter; this is a function of the nature of language. As a result, interpretive
decisions are always subject to a certain indeterminacy, which has been the focal
point for debate between competing theories of statutory interpretation.” Also, in
the modern regulatory state, an increasing amount of legislation is framed broadly
to provide courts and tribunals with a degree of flexibility in applying legislation to
a wide variety of circumstances.23 Statutory interpretation is the process by which
adjudicative bodies, in applying general norms to individual cases, create law.
Courts and tribunals interpret statutes in order to determine how the command of
the legislature should govern a particular person or transaction. Indeed, prospective
legislation necessarily entails authoritative interpreters to apply general commands
to specific cases.
Yet precisely because of its law-making function, statutory interpretation in a
democracy faces an acute challenge of legitimacy. In constitutional law, most at-
tempts to establish the legitimacy of judicial review do so on the basis that courts
actually enhance democracy,”4 rather than detracting from democratic constitutional-
2, On the “conversation” or “dialogue” that takes place between courts and legislatures in constitu-
tional cases, see P.W. Hogg, “The Charter Dialogue Between Courts and Legislatures” Law imes (29
January- 4 February 1996) 10.
2 See H. Kelsen, Introduction to the Problems of Legal Theory, trans. B.L. Paulson & S.L. Paulson
(Oxford: Clarendon Press, 1992) c. 6.
See R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606 at 640-41, 93 D.L.R. (4th) 36.
24 See: J.H. Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, Mass.: Harvard
University Press, 1980); D. Beatty, Talking Heads and the Supremes: The Canadian Production of
Constitutional Review (Toronto: Carswell, 1990). For a more skeptical view, see C.P Manfredi, Judi-
1996]
P MICHELL – DYNAMIC STATUTORY INTERPRETATION
ism. This is often accomplished by intervening to ensure that disadvantaged indi-
viduals and groups are not excluded from the political process. Does a similar ar-
gument also apply, however, to statutory as opposed to constitutional interpreta-
tion? What are the practical implications? In statutory interpretation, the debate
over these issues is most heated in administrative law and, in particular, regarding
judicial review of the statutory interpretation decisions of administrative tribunals.’
This is unsurprising, given that administrative law is concerned with the regulation
of the relationship between the individual and the state. That relationship is over-
whelmingly governed by statute, such that judicial review is really only a special-
ized branch of statutory interpretation.26
A. The “Plain Meaning” Approach and Ambiguity
The watershed which distinguishes theories of statutory interpretation is the
proper role to be ascribed to legislative intent. In Canada, as elsewhere in the
Common law world, the traditional approach to statutory interpretation is to look at
the “plain meaning” of statutory language. Where the plain meaning is clear, no re-
sort to other indicia of legislative intent is required, because that intent is presumed
to be reflected in the statutory language. Indeed, it is said that the plain meaning
must be applied even where it leads to absurd results.’ In the vast majority of cases,
the process of statutory interpretation is invisible because the plain meaning is in-
controvertible. The plain meaning of a statute is not, however, always evident.
Moreover, cases involving ambiguous statutory provisions are those which are liti-
gated; plain meaning does not resolve hard cases.
Considerable controversy surrounds the question of what a court or tribunal
should do when faced with ambiguous statutory language, and the statute is open to
more than one plausible interpretation. Most traditional authorities suggest that
courts should look to the legislative intent or purpose underlying it.2 Of course, the
declaration that a statute is “ambiguous” cannot be separated from the interpreter’s
cial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism (Toronto:
McClelland & Stewart, 1993).
See: J.M. Evans, H.N. Janisch & DJ. Mullan, Administrative Law: Cases, Text, and Materials,
4th ed. (Toronto: Emond Montgomery, 1995) c. 9; Pezim v. British Columbia (Superintendent of Bro-
kers), [1994] 2 S.C.R. 557, 114 D.L.R. (4th) 385 [hereinafter cited to S.C.R.]: “The central question
in ascertaining the standard of review is to determine the legislative intent in conferring jurisdiction
on the administrative tribunal” (ibide at 589).
2
1 See U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048 at 1087-88, 95 N.R. 161 [reference
omitted].
7See R. v. Multiform Manufacturing Co., [1990] 2 S.C.R. 624 at 630, 58 C.C.C. (3d) 257
[hereinafter Multiform cited to S.C.R.].
2 See R. v. McIntosh, [1995] 1 S.C.R. 686 at 703, 95 C.C.C. (3d) 481 [hereinafter McIntosh]. Am-
biguity is distinct from absurdity. Where plain meaning leads to absurdity (but not ambiguity) it must
be applied; however, where plain meaning is ambiguous, then a meaning which is not absurd is pre-
ferred.
29See: Willick v. Willick, [1994] 3 S.C.R. 670 at 699, 119 D.L.R. (4th) 405; Canada (A.G.) v. Mos-
sop, [1993] 1 S.C.R. 554 at 581, 100 D.L.R. (4th) 658; Multiform, supra note 27 at 630.
MCGILL LAW JOURNAL/REVUE DE DROITDE McGILL
[Vol. 41
substantive views. We do not decide that a statute is ambiguous and then decide to
look behind the statute to get a “proper” interpretation from legislative intention. A
finding of “ambiguity” is often an interpretive conclusion, rather than an assertion
that interpretation is required.”
Controversial or “hard” cases of statutory interpretation are those where a stat-
ute is amenable to several possible interpretations. A statute may be ambiguous
either by inadvertence (because the legislature did not contemplate the concrete
situation now before the court or tribunal) or by design (because the legislature de-
liberately left open an interpretive question in order to forestall controversy or to
ensure that passage of a statute would not be stalled by disagreements over interpre-
tation). Gaps and uncertainties are invariably present in statutes, and when statutes
are applied to concrete factual situations, the need to interpret statutes so as to ad-
dress these gaps becomes pressing. In this way, statutory interpretation is said to be
dynamic because statutes evolve as they are applied to factual situations unantici-
pated by the enacting legislators.” Statutory ambiguity leads to gaps in the law. As
time passes and the legislature that enacted the statute recedes into history, new
statutes are passed, old ones are repealed, and society evolves. New gaps may
emerge and existing ones may yawn.
B. Eskridge’s Critique of Originalism
Originalism is a leading school of statutory interpretation, although it has be-
come a bit of a straw man of late. Broadly speaking, the originalist thesis suggests
that where the language of a statute is unclear, judges should attempt to recreate the
legislative attitudes that prevailed at the time the statute was enacted and apply
them to the present problem. The court’s role is to determine whether the legislature
intended a particular situation to be governed by a statute and, if so, to apply that
statute to the case at hand. A law may prove unpopular, or lead to strange results;
but it is the legislature, and not the courts, which must correct it. Similarly, if a
statute has become out of touch with social conditions, it is not the job of the courts
to remedy the disparity. Originalism assumes that the legislature sets a statute’s
meaning in stone upon its enactment, so that it is immune from subsequent devel-
opments.
Originalism’s main attraction is its apparent grounding in democracy. Indeed,
originalist accounts of statutory interpretation tend to begin with a theory of demo-
cratic legitimacy and then proceed to explain how a particular variant of originalist
statutory interpretation inevitably follows. Proponents of originalism argue that a
court must give priority to the interpretive views of democratically-elected (and,
‘0 See T.R.S. Allan, Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism
(Oxford: Clarendon Press, 1993) at 91. See the dissent of McLachlin J. in McIntosh, supra note 28,
finding the statutory provision, which the majority held to be unambiguous but leading to an absurd-
ity, to be ambiguous and, thus, to be interpreted in such a way as to avoid an absurd result.
3′ See Dynamic Statutory Interpretation, supra note 6 at 52.
19961
P MICHELL – DYNAMIC STATUTORY INTERPRETATION
thus, accountable) legislators. The separation of powers doctrine stipulates that only
certain institutions (legislatures) are authorised to enact laws, and the institutions
that enforce or implement laws (courts or administrative tribunals) must fulfil the
legislative will, so long as it complies with constitutional requirements. If the legis-
lative intent behind the statute is not readily apparent, the court must search for that
intent through other evidence, usually – but perhaps not limited to –
legislative
history. The great allure of originalism is its promise that current interpretations can
be proven to have a democratic pedigree by tracing them back to past legislative
majorities. Upon closer analysis, however, the evidentiary and methodological bar-
riers to the originalist project are frequently insurmountable.
Eskridge argues against originalism on both descriptive and normative grounds.
First, he claims that courts and tribunals simply do not decide statutory interpreta-
tion cases according to originalist theories. He also contends that beyond its empiri-
cal inaccuracy, originalism rests upon a normatively undesirable account of politi-
cal morality. More broadly, Eskridge wants to free statutory interpretation from the
“archeological” paradigm, the idea that statutory interpretation is an exercise in re-
trieval and recovery. 2 Statutory interpretation, while not oblivious to the past, must
be forward-looking and contemporary. The archeological paradigm implies that
meaning is fixed, and that courts should act as mere agents of past legislatures. Dy-
namic accounts, by contrast, contend that the bare-agency analogy is inaccurate.
Originalism is a broad church, and the term lumps together different theories
which are best examined independently. Eskridge identifies and criticizes three
strains of originalism: intentionalism, purposivism, and textualism.
1.
Intentionalism
Intentionalism demands that interpreters discover or replicate the original intent
of the enacting legislature and use this intent to interpret the statute before them.
Proponents of this theory contend that it is the original intention of the legislature
which should govern as the “true law”, and a judge should use the statute to retrieve
that intent. Legislative intent is primary: the statute is only a piece of evidence
leading the court back to the legislature’s intent. Ideally, supporters of intentional-
ism would prefer judges to have direct access to the legislative intent without the
need for the intermediate step of the statute. As this is impossible, they accept the
statute as a necessary step in the process of retrieving the legislature’s original in-
tent. Yet, is retrieving the legislature’s original intent really the objective endeavour
that originalists suggest? Eskridge contends that although intentionalism has a long
history and some prominent contemporary supporters, it cannot explain the actual
practice of courts.
The intentionalist variant of originalism runs aground on several shoals. First, it
has long been argued that the actual intent of the legislature is a fiction, due to the
2 See J. Raz, “Interpretation Without Retrieval” in Marmor, ed., supra note 16, 155.
MCGILL LAwJOURNAL/REvUE DE DROITDE MCGILL
[Vol. 41
problematic nature of attributing intention to a collective.” Statutes, as the “end
product” of the legislative process, are dependent upon a number of extrinsic fac-
tors and may have little or nothing to do with the intentions of the individual legis-
lators. Assuming that there is something called “legislative intention”, how would it
be determined? Where the meaning of a statute is unclear, some resort to legislative
history is probably inevitable.’ It must be done with care, however, because the
dangers of unconstrained recourse to legislative intention are legion.”3 Legislative
history provides notoriously malleable evidence of legislative intent.
Second, there is the question of whether the subjective intentions of individual
legislators should be accorded any weight in interpreting a statute. Few individual
legislators have more than a general intent in voting for a bill and may not have
turned their minds to the effect of specific provisions. Even where there is specific
intent concerning individual provisions of a statute, it is rarely recorded. Where it is
recorded, it may be unreliable as an indicator of actual intent, because it may
merely evidence strategic behaviour. Individual legislators may vote for a provision
for any number of reasons, many of which will be unconnected to the actual con-
tent of the provision; that a majority of legislators voted in favour of a bill tells us
little about their intent. Where legislation is passed by a bicameral legislature,
problems of determining intent are further compounded. Actual intent is a by-
product of agenda setting, strategic behaviour, and problems of aggregation. As
such, it is rarely reliable.
Given the difficulties of retrieving original intent, intentionalists may be forced
to rely upon conventional intent, that is, presumed conventions about legislative
intent.’ Conventional intent assumes that what a leading figure (authoritative
3 See: R. Dworkin, A Matter of Principle (Cambridge, Mass.: Harvard University Press, 1985) at
38; Radin, supra note 14 at 881.
‘ See Pepper v. Hart (1992), [1993] A.C. 593, [1992] 3 WL.R. 1033 (H.L.) [hereinafter Pepper
cited to A.C.]. The Canadian position as to the admissibility of legislative history in statutory interpre-
tation cases is less clear (see G. Bale, “Parliamentary Debates and Statutory Interpretation: Switching
on the Light or Rummaging in the Ashcans of the Legislative Process” (1995) 74 Can. Bar Rev. 1). R.
v. Heywood, [1994] 3 S.C.RI 761, 120 D.L.R. (4th) 348 [hereinafter Heywood cited to S.C.R.], con-
cerned the allegedly unconstitutional degree of vagueness in the loitering “near a school ground,
playground, public park or bathing area” offence under the Criminal Code, R.S.C. 1985, c. C-46, s.
179(1)(b). Cory L, writing for the majority, expressed doubt that legislative debates (and legislative
history more generally) are admissible to determine legislative intent in statutory construction. In the
end, the point did not fall to be decided, but Cory J. conceded that legislative history may be admis-
sible in order to demonstrate the mischief that Parliament intended to remedy with the legislation.
Cory J. explained the Court’s reluctance to admit legislative debates or history as evidence of legisla-
tive intent on the basis of two arguments. Fst, legislative debates or history are evidence of the intent
only of those particular members of the legislature making comments, not of the legislature as a
whole. Second, Cory J. noted: “[Tihe political nature of Parliamentary debates brings into question
the reliability of the statements made” (Heywood, ibid at 788).
” See G.C. MacCallum, “Legislative Intent’
in R1S. Summers, ed., Essays in Legal Philosophy
(Oxford: Blackwell, 1968) 237 at 239.
‘ See J.M. Landis, “ANote on ‘Statutory Interpretation’
(1930) 43 Harv. L. Rev. 886.
1996]
P MICHELL – DYNAMIC STATUTORY INTERPRETATION
speakers, committee chairs, and government ministers) said about a statute is an ac-
curate reflection of what the legislature as a whole intended, unless there is evi-
dence otherwise. Once such a rule attains the status of a convention, it will then in-
fluence legislative behaviour. Legislators will know that if they wish to indicate in-
tent other than that set out by the leading speaker, they must influence what that
speaker says or find some other way to make their voices heard. Reliance upon
conventional intent may minimize vote-counting and preference aggregation prob-
lems associated with actual intent, but it does not eliminate the problems arising
from strategic behaviour. There is no accurate way for a court or tribunal to deter-
mine whether an authoritative speaker on a statutory provision was engaging in
strategic behaviour or actually speaking his or her mind. Opponents of bills are
likely to exaggerate their controversial features; but even supporters cannot’always
be relied upon to present their actual intent in speeches or reports in the legislature.
A final variant of intentionalism relies upon imaginative reconstruction of the
original intent of the enacting legislature. Judge Learned Hand was often said to be
the exemplar of this approach.” The goal is to attempt to recreate what the original
legislature would have intended had it turned its mind to the question at issue.
Courts may take into account the values and attitudes present when the statute was
enacted, but they must also make allowances for present circumstances. According
to the theory’s modern standard-bearer, Judge Richard Posner, courts should at-
tempt an imaginative reconstruction of how the legislature “would have wanted the
statute applied to the case”.” Judge Posner analogizes the judge’s role to that of a
platoon commander cut off from his or her superiors. The theory, however, neglects
to provide an account of the values relevant to statutory interpretation. The most
damning argument against imaginative reconstruction is that it is far more imagina-
tive than reconstructive. 9 The exercise of posing counter-factual questions to past
legislators is cloaked with an air of unreality. At the very least, the hypothetical
nature of the exercise casts doubt upon the originalists’ stated goal of tying current
interpretations to past legislative majorities.
2.
Purposivism
The second variant of originalism, purposivism, argues that a court or tribunal
should begin the process of statutory interpretation with an examination of the pur-
37 See e.g. Guiseppi v. Walling, 144 F2d 608, 155 A.L.R. 761 (2d Cir. 1944) [hereinafter Guiseppi
cited to E2d]:
As nearly as we can, we must put ourselves in the place of those who uttered the
words, and try to divine how they would have dealt with the unforeseen situation; and
although their words are by far the most decisive evidence of what they would have
done, they are by no means final (Guiseppi, ibid. at 624).
See also A. Cox, “Judge Learned Hand and the Interpretation of Statutes” (1947) 60 Harv. L. Rev.
370.
3 R.A. Posner, The Federal Courts: Crisis and Reform (Cambridge, Mass.: Harvard University
Press, 1985) at 287.
39See Dynamic Statutory Interpretation, supra note 6 at 23.
MCGILL LAW JOURNAL/REVUE DE DROITDE MCGILL
[Vol. 41
pose of a statute and, then, choose a particular interpretation as being most congru-
ent to that purpose.’ Purpose is distinct from intent. The focus is less upon specific
intent and more upon broader purposes. The virtue of purposivism, most famously
set out by Hart and Sacks,” is that it attempts to preserve the democratic pedigree
element of intentionalism, while allowing statues to evolve and respond to chang-
ing conditions. Law is a purposive activity, the goal of which is to address social
problems. Accordingly, all statutes have a purpose, and the court’s role is to find it.
A key difficulty with purposivism is that it assumes that in most cases there was
a purpose. Yet purposivist accounts must resort to fictions, such as an attributed
purpose, and it becomes easy for courts to reach any result they desire, uncon-
strained by statutory language. In cases in which the legislature did not anticipate
the issue now under adjudication, the court cannot actually know the legislature’s
purpose. In Eskridge’s view, purposivism is susceptible to many of the same objec-
tions that hound intentionalism. Most damning is its inability to deliver on its
promise of locating a determinate legislative majority to support a particular inter-
pretation in hard cases, because in those cases purposivism provides no neutral way
to identify the purpose of a statute.'” Intentionalism cannot pose neutral counter-
factual questions; purposivism can ask nothing but the most general questions,
which will yield indeterminate answers.”
Ironically, the search for legislative purpose may itself be inconsistent with the
separation of powers. Recourse to legislative history as evidence of legislative pur-
pose places a degree of interpretive power in the hands of judges that may be in-
compatible with their role in a democracy. Courts must show deference to properly-
constituted legislative commands. Allowing courts to look behind the words of a
statute and explore committee reports, Hansard, and other sources of legislative
history may empower them with a degree of discretion and law-making power that
cannot be reconciled with their institutional role. Such sources should only be re-
lied upon with great caution and the limits of their reliability made clear. At the
same time, as statutory language is often ambiguous, courts and tribunals will nec-
essarily exercise discretion in their interpretations. It is difficult to see how reliance
upon obvious indications of legislative intent should be ignored. Generally, how-
ever, legislative history should be viewed with a healthy degree of scepticism.
A parallel concern is that the rules of legislation must constrain legislatures.
The sources of law should be predictable, transparent, and stable. Statute law must
4 See F. Frankfurter, “Some Reflections on the Reading of Statutes” (1947) 47 Colum. L. Rev. 527.
4″ See H.M. Hart, Jr. & A.M. Sacks, The Legal Process: Basic Problems in the Making and Appli-
cation of Law, Tentative ed. (Cambridge, Mass.: Harvard University, 1958) at 1411.
41 See Dynamic Statutory Interpretation, supra note 6 at 29.
4″ See ibid. at 30. There are also ancillary complaints relating to purposivism’s sacrifice of important
values in its pursuit of a democratic basis for a given interpretation (see ibid. at 26).
1996]
P MICHELL – DYNAMIC STATUTORY INTERPRETATION
be created only through compliance with certain procedural requirements.” Only
certain materials qualify as statute law, that is, a written indication of the intention
of the legislature to enact. If courts are permitted to look behind the words of a
statutory text and search for legislative intention or purpose, laws may be enacted
through strategic “winks and nudges” by members of the legislature as opposed to
properly enacted written statutes. This subverts predictability and accountability
and undermines the rule of law.
3.
Textualism
The final variant of originalism is textualism, which is an approach to legisla-
tive intent that is strongly critical of both intentionalism and purposivism and gives
priority to the statute itself rather than going behind it in search of legislative intent.
In other words, the statute is not merely evidence of legislative intent but must be
the focus of interpretive efforts. Textualism does not seek the legislature’s meaning,
but the meaning of the statutory language it used. Textualism, thus, rejects the con-
cept of legislative purpose and downplays extrinsic evidence of intent or context in
statutory interpretation. Rather, textualists rely upon so-called “canons of construc-
tion”, a default set of assumptions about how the legislature uses language, gram-
mar, punctuation, and structure.
Textualism has become ascendant in the United States, largely due to the efforts
of Supreme Court Justice Antonin Scalia and his erstwhile University of Chicago
counterpart, Judge Frank Easterbrook of the Seventh Circuit Court of Appeals, al-
though it has few defenders in academia. In its most recent incarnation, textualism
is grounded in public choice theory, which argues that legislators react to economic
incentives and do not act as a deliberative body in the public interest. To the con-
trary, legislation embodies “deals” between rent-seeking interest groups and legisla-
tors. Regulators and legislatures are susceptible to “capture”. Textualism places
clear limits on legislative power, by refusing to condone judicial gap-filling. It re-
jects an expansive conception of the interpretive process which would allow courts
to go beyond their institutional role and legislate under the guise of interpretation.
Courts must follow legislative commands (within constitutional limits), so far as
they go; but they must do no more.
This insight, if correct, has profound implications for statutory interpretation
because it undermines the traditional view that there can be a coherent legislative
purpose. On the contrary, it suggests that statutes are merely the product of an un-
structured, chaotic legislative process and bear little relationship to the individual
intentions of legislators. As legislative intent is incoherent, courts must rely upon
the wording of the statute alone. Courts cannot construct an original meaning be-
“See Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg A.G., [1975] A.C.
591, 2 Lloyd’s Rep. 446 (H.L.) [hereinafter Black-Clawson cited to A.C.]: “Parliament, under our
constitution, is sovereign only in respect of what it expresses by the words used in the legislation it
has passed” (ibiL at 638, Lord Reid).
MCGILL LAW JOURNAL/REVUE DEDROITDE MCGILL
[Vol. 41
cause it is often simply non-existent (or if it did exist, courts could not determine it
with any accuracy).” The meaning of a statute should, thus, be determined, as much
as possible, on the basis of the ordinary meaning of statutory language.” Textualists
complain that dynamic approaches to interpretation give insufficient weight to such
rule-of-law values as stability, predictability, and uniformity.
Textualists are sceptical as to the reliability of legislative history and the predi-
lection of courts to find support for any particular interpretation by reference to it.
Textualists contend that legislative intent simply means that the majority of legisla-
tors voted in favour of a statutory text. Much emphasis is placed upon the
“structural” view of a statute, namely, that the statute must be read as a whole.
Textualists appeal to rule-of-law values in two senses. First, by referring only to the
statutory text, textualism is the sole theory that establishes a coherent connection
between present interpretations and past legislative majorities, a concern that unites
all variants of originalism. Current values should be confined to electoral politics.
Second, by precluding reference to all but the statutory text, textualists maintain
that the law is made more accessible to the average citizen, who –
can
determine the law simply by reading the relevant statutory provision.” Opponents
argue that textualists assume a higher degree of care went into producing the legis-
lative product than empirical evidence (and textualists’ own claims of legislative
chaos) indicate.
it is said –
Textualism rests upon an admittedly bleak conception of the legislative process.
Is it an accurate one? There is conflicting evidence that legislatures suffer from the
instability and incoherence sketched by public choice theorists. Statutes often seem
to be the result of purposive activity rather than random output. Indeed, there is no
reason to despair that legislation is the result of debate, the clash of interests, and
compromise.”‘ Thus, if legislation is not overwhelmingly the result of special-
interest lobbying, and the legislative process is not hopelessly incoherent, the con-
clusions of public choice theory no longer follow. Even if one accepts the premises
of public choice theory –
that interest groups dominate the legislative process, and
that legislative intent is incoherent or non-existent –
it could be argued that the
proper response of the courts should be to construct a public-interest intent. By in-
terpreting legislation according to a more benign public interest, courts might ame-
41 See: E Easterbrook, “Statutes’ Domains” (1983) 50 U. Chi. L. Rev. 533 at 547; F. Easterbrook,
“The Role of Original Intent in Statutory Interpretation” (1988) 11 Harv. J.L. & Pub. Pol’y 59.
” See A. Scalia, “Originalism: The Lesser Evil” (1989) 57 U. Cin. L. Rev. 849.
‘ Appreciation of these values is not limited to the United States (see Lord Oliver of Aylmerton, “A
Judicial View of Modem Legislation” [1993] Stat. L. Rev. I at 2). See also Lord Oliver of Aylmer-
ton’s reluctance to admit evidence of legislative history in Pepper, supra note 34 at 619-21.
” See Black-Clawson, supra note 44: “In essence, drafting, enactment and interpretation are integral
parts of the process of translating the volition of the electorate into rules which will bind themselves”
(ibid at 651, Lord Simon of Glaisdale).
1996]
P MICHELL – DYNAMIC STATUTORY INTERPRETATION
liorate some of the negative effects identified by public choice theory.’9 Kent Roach
has recently argued that public choice theory provides an unhelpful model for the
interpretation of limitation period statutes, because it is devoid of normative content
and its prescriptions are indeterminate.
H. Features of Dynamic Theories
The central doctrinal battle today is between textualism and dynamic theories.
Dynamic accounts of statutory interpretation – of which Dworkin’s is perhaps the
leading example – use the metaphor of the statute as a living document.’ Instead
of attempting to discern the original intent of a statutory text and tying present in-
terpretations to a past legislative majority, dynamic accounts contend that statutory
interpretation is a dynamic process.2 The meaning of and interpretations ascribed to
a statute may (Eskridge would say must), and usually do, evolve over time. A judge
interpreting a statute may consider events and values that have come into play sub-
sequent to the statute’s enactment. Current meanings and understandings should be
used to interpret past legislative enactments and to give effect to original legislative
intentions. Dynamic statutory interpretation views statutes as the first stage in a
larger process of law-creation, which encompasses legislation, private interpreta-
tion, interpretation by administrative tribunals, litigation, judicial review by courts,
and, perhaps, amendment or other legislative response. Courts play an important
role in the process: they update statutes in response to changing conditions and the
responses of other participants in the law-making process.
Dworkin’s chain-novel analogy –
the idea that judges, like authors writing a
chain novel, simultaneously possess great discretion even as they are bound by the
constraints of form, coherence, and integrity –
suggests that judges must continue
as well as possible the “story” begun by the legislature. 3 The goal is to produce a
49 See: E.R. Elhauge, “Does Interest Group Theory Justify More Intrusive Judicial Review?” (1991)
101 Yale L.J. 31; J.R. Macey, “Promoting Public-Regarding Legislation Through Statutory Interpre-
tation: An Interest Group Model” (1986) 86 Colum. L. Rev. 223.
” See K. Roach, “The Problems of Public Choice: The Case of Short Limitation Periods” (1993) 31
Osgoode Hall L.J. 721.
5′ Parenthetically, the relationship between Dworkin’s theory and Eskridge’s is an issue that receives
little attention in Dynamic Statutory Interpretation. Although at one point Eskridge emphasizes the
differences separating his theory from Dworkin’s (see Dynamic Statutory Interpretation, supra note 6
at 146-48), there are great similarities between the two, and it is surprising that he does not undertake
a more sustained effort to bring himself out from Dworkin’s shadow. The two approaches may be
distinguished. Frst, Eskridge espouses critical pragmatism, which Dworkin does not share. Second,
Eskridge views Dworkin’s theory of “law as integrity” as too romantic (see ibid. at 148). Third,
Eskridge believes that statutory interpretation must be grounded in a political theory of the modem
regulatory state (see ibid. at 149).
5’Other leading dynamic approaches are: T.A. Aleinikoff, “Updating Statutory Interpretation”
(1988) 87 Mich. L. Rev. 20; G. Calabresi, A Common Law for the Age of Statutes (Cambridge, Mass.:
Harvard University Press, 1982).
5′ See Law’s Empire, supra note 15 at 313.
MCGILL LAW JOURNAL/REVUE DE DROJTDE MCGILL
[Vol. 41
coherent text which is faithful to the existing story while adapting to new condi-
tions. The law on this account emerges from a perpetual process of correction and
revision as social and political circumstances change. Judges do not possess unbri-
dled discretion: they are constrained by the legal and political history of their com-
munity. Yet at the same time, they are free to interpret that tradition to reflect their
own vision of the community’s political morality.’ Interpretations will depend
partly on what appears in the legislative history and partly on judges’ own notions
of the best answers to specific political questions related to the community’s prin-
ciples of political morality. A statute is best viewed as a principle upon which to
base further reasoning rather than as a fixed rule. As conditions and attitudes
change, a statute’s meaning evolves.
Im. The Theoretical Foundation of Eskridge’s Approach
Behind every approach to statutory interpretation lurks a jurisprudential theory.
In Part II, Eskridge explores liberal theory, legal process theory, and normative the-
ory in order to establish a theoretical grounding for his approach to statutory inter-
pretation. More precisely, he views dynamic statutory interpretation as inevitable,
and he canvasses these three theoretical perspectives in order to demonstrate that
dynamic statutory interpretation is at once consonant and in tension with all three.
The two main objections to a dynamic theory of statutory interpretation are that it
does not have democratic legitimacy, and that it leads to a degree of uncertainty that
is incompatible with rule-of-law values. To a certain extent, Eskridge avoids these
points by arguing that “there is no consensus in our polity as to the precise value
and implications of democratic theory and the rule of law,”‘ although his statement
is probably accurate. True to his critical pragmatic approach, Eskridge does not
claim to have unearthed a grand theory to buttress his account of statutory interpre-
tation. Rather, he contends that something may be learned from each theoretical ap-
proach, and that the exercise reveals as much about the scope of democratic legiti-
macy and the rule of law as it does about the interpretation of statutes.
A. Three Leading Theoretical Approaches
1.
Liberal Anglo-American Social-Contract Theory
Liberal Anglo-American social-contract theory emphasizes the consensual,
contractual nature of the liberal state. Liberals emphasize the need for laws to be
determinate and tied to democratic majorities. Because of this, one might think that
liberalism would be inimical to dynamic statutory interpretation. Eskridge argues,
however, that these dynamic approaches are consistent with liberal premises. Early
liberals, including Blackstone and many of the framers of the United States Consti-
tution, advocated an approach to statutory interpretation that is recognizably dy-
m See ibid at 256.
5’Dynamic Statutory Interpretation, supra note 6 at 108.
19961
P MICHELL – DYNAMIC STATUTORY INTERPRETATION
namic.’ Eskridge also claims that a complex approach to legislative intention re-
veals its content-based origins: the doctrine of legislative supremacy means that
statutory interpretation must be linked to past legislative majorities because only
then can the people be said to have bound themselves to a course of action through
legislation.
In Eskridge’s view, a number of other imaginative approaches to statutory in-
terpretation are entirely consistent with a dynamic, evolutive approach and, indeed,
can only be explained by it. These approaches include analogizing statutes to long-
term relational contracts, or suggesting that courts should apply statutes in the same
way that they operate the cy-pr~s doctrine in charities law, or applying agency the-
ory, or, finally, analogizing statutory interpretation to translation. Eskridge claims
the analogy that best describes the role of the interpreter of statutes is the
“relational agent”, according to which an interpreter should be regarded as being
under a long-term obligation to exercise his or her best efforts to accomplish an
objective. The various liberal analogies indicate that a dynamic theory of statutory
interpretation is essential when changed circumstances render the legislature’s as-
sumptions about a statute obsolete. Courts should have the freedom to adapt stat-
utes to new conditions.” Alternatively, courts can adopt default rules of interpreta-
tion which allocate the burden of interpretive uncertainty in accordance with liberal
principles.” A number of liberal interpretive precepts emerge: presumptions against
the extension of statutes to cover private relations (over-enforcement); presump-
tions in favour of continuity over change in legal obligations; and presumptions fa-
vouring the protection of reliance interests. In this way, liberalism provides norma-
tive support for a dynamic theory of statutory interpretation.
2.
Legal Process Theories
Legal process theories place emphasis upon interdependence, community, and
deliberation. They are more receptive to dynamic approaches to statutory interpre-
tation but are concerned that the political and moral choices inherent in statutory
interpretation be made by the most appropriate and legitimate institution. The best
substantive results are likely those reached through the appropriate process because
on the legal process view, process is intimately tied to legitimacy. The legal process
school is particularly hospitable to a dynamic approach to statutory interpretation,
on the basis that statutes should be interpreted to carry out their public purposes and
values over time. Legal process proponents also emphasize the value of coherence
and integrity in the law. A legal process theory of statutory interpretation would
serve its substantive goals by: presuming in favour of public interests; avoiding in-
terpretations that lead to unreasonable results; presuming against the political ex-
clusion of minorities and disadvantaged groups; and minimizing rent-seeking and
56 See ibid. at 116-17.
57 See ibid. at 130.
See ibid. at 135.
MCGILL LAW JOURNAL/REVUE DE DROITDE MCGILL
[Vol. 41
capture by narrow interest groups. Interpretation should take place against a coher-
ent background of public values.
Legal process theorists’ main objections to dynamic approaches to statutory
interpretation are related to the counter-majoritarian problem and the relative insti-
tutional competence problem. The counter-majoritarian problem stems from legal
process theorists’ reluctance to allow unelected courts and tribunals to make law.
Eskridge argues that interpretation is more like a partnership between courts, legis-
latures, and other participants. He also disputes the force of the counter-
majoritarian argument by suggesting that: the legislature can always override curial
interpretations that it dislikes; interpretive presumptions in favour of the public in-
terest are majoritarian; and, in the end, important facets of liberal-democratic gov-
ernment are not majoritarian so that perhaps statutory interpretation need not be
either.
Legal process theories also emphasize the issue of institutional competence,
which arises most often in the context of administrative law. If statutes are to be
interpreted dynamically, who should do the interpreting? A deferential standard of
judicial review of decisions by expert administrative tribunals is prevalent in the
United States. Legal process theory welcomes interpretive leeway for tribunals but
is also concerned that the courts maintain jurisdictional control. A similar pair of
concerns is evident in the tortured development of the appropriate standard of judi-
cial review in Canada, where the courts have resiled from the prospect of showing
as much deference to administrative tribunals (at least as a general rule) as those in
the United States show to theirs. 9 Eskridge demonstrates that legal process theories
support dynamic approaches to statutory interpretation, and like liberal theories,
neither is able to prevent courts and administrative tribunals from making law in
hard cases.
3.
Normative Theories
Unlike liberal and legal process approaches, normative theories emphasize the
importance of substantive rather than procedural justice. According to them –
Eskridge surveys a wide range of theories, including natural law theories, feminist
and republican approaches, postmodernism, and deconstruction –
the best theory
of statutory interpretation is that which leads to the best substantive results. Natural
law theories offer accounts of the relationship between law and morality but fare
badly outside a homogeneous culture, where they face the pressures of normative
pluralism.’ Feminist republicanism shares natural law’s concern to arrive at the
“right” answer but is sceptical of its own ability to do so. Republicanism suggests
that the state exists to allow individuals to flourish through self-government. Each
of these theories has attractive facets, but Eskridge views each one as inadequate as
a normative foundation for a theory of statutory interpretation.
59 For further discussion of this point, see Evans, Janisch & Mullan, supra note 25.
6’Dynamic Statutory Interpretation, supra note 6.
1996]
P MiCHELL – DYNAMIC STATUTORY INTERPRETATION
B. Critical Pragmatism and the Dynamic Theory
Eskridge bases his dynamic theory of statutory interpretation in the critical
pragmatic philosophical tradition of the United States. Briefly, this tradition, with
its Aristotelian roots, emphasizes practical reasoning and wisdom, experimentation,
and approaching a problem from different angles in order to reach the best solu-
tion.” At the core of this approach is a healthy scepticism about all theoretical ap-
proaches and a measure of uncertainty as to whether the answer chosen is the cor-
rect one. At the same time, however, critical pragmatism is concerned to get the job
done, not to equivocate or temporize. Seen from this perspective, the essential
problem of statutory interpretation is to apply a general, abstract statutory provision
to a concrete factual situation. Circumstances often arise which the enacting legisla-
tors did not or could not have contemplated. Interpreters, on this account, must do
what works best, by reference to the “web of beliefs” that surround a statute.’2 In-
elegant, perhaps; but does the theory work?
Eskridge’s variant of critical pragmatism rests upon insights derived from a di-
verse selection of theoretical perspectives, the recognition of one’s own limitations,
and a mild relativism. It is a theory which in some ways purports not to be a theory
at all but, rather, promotes a smorgasbord account of statutory interpretation by
which the best features of other theoretical perspectives may be selected without
adopting the world-views that support them. Eskridge embraces the hermeneutic
insight that interpretation is relative, in the sense that it is strongly influenced by the
perspective of the interpreter, and the interpreter and legislator may not share the
same interpretive horizon. He accepts that the interpreter’s point of view is both
situated and critical. ‘ But for Eskridge, temporal distance and differences in inter-
pretive horizon can be a source of strength in statutory interpretation, not a weak-
ness. Eskridge meets the charges of relativism by arguing that interpretive horizons
are necessarily the products of history and convention; they are not merely idiosyn-
cratic and subjective.’ Interpretation is a process by which reader and text reach a
“common understanding”.” Eskridge is resolutely postmodem in his outlook and
frank in his self-assessment:
I cannot offer a normative theory of dynamic statutory interpretation that satis-
fies traditional rule of law or democratic criteria, for the criteria are themselves
elusive in a postmodern world. I can only offer a theory derived from what I
see as a normatively desirable conception of our polity. The theory, critical
61 See ibid. at 50. Pragmatism is explored in greater detail in: R.A. Posner, ed., “Introduction: Prag-
matism, Economics, Liberalism” in Overcoming Law, supra note 9, 1; R.A. Posner, ed., “So What
Has Pragmatism to Offer Law?” in Overcoming Law, ibid., 387.
6′ Dynamic Statutory Interpretation, ibid. at 55.
63 See ibid. at 237.
‘ See: ibid at 196; S. Fish, Is There A Text in This Class? (Cambridge, Mass.: Harvard University
Press, 1980).
“Dynamic Statutory Interpretation, ibid. at 5.
MCGILL LAW JOURNAL/REVUE DE DROITDE MCGILL
[Vol. 41
pragmatism, is one that I think will be attractive to others. … Statutory interpre-
tation should be pragmatic, in that the interpreter has a responsibility to take
practice seriously and to consider the consequences of different interpretive
choices. 66
C. A Critical Look at Eskridge’s Theoretical Foundation
Many will find Eskridge’s postmodernism strangely ethereal, a pastiche of
ideas concealing the lack of a core. It is accommodating but so fluid that its ele-
ments are difficult to isolate. It will certainly be unsatisfying to those seeking a
more muscular theory to provide constraints or guideposts for judges engaging in
statutory interpretation. Perhaps it is best, as Professor Evans and others suggest, to
think of statutory interpretation as being like riding a bicycle: it is an everyday task
that becomes impossible if one thinks about it too much. 7 Pragmatism is neither
relativism nor a lack of concrete ideas. Ambiguity does not entail that no interpre-
tations are better than others, or that some interpretations cannot be demonstrated to
be more reasonable than others. Pragmatism’s focus on getting the job done, rather
than theorizing about how to get it done, however, frustrates attempts to construct a
theory of pragmatism. Although Eskridge suggests appropriate presumptions, can-
ons of construction, and interpretive regimes, he does not make explicit the political
theory that underlies his suggestions, and the reader is left to construct such a the-
ory from the evidence which Eskridge scatters throughout his book. Judges, unlike
bicycle riders, however, must provide reasons for their decisions, and if they are to
adopt a method of statutory interpretation, then it must have defensible theoretical
underpinnings.
Eskridge argues for an approach to statutory interpretation according to which
courts would be more explicit in articulating the presumptions upon which they
make statutory interpretation decisions.’ Courts should interpret ambiguous provi-
sions in such a way as to favour individual rights, protect disadvantaged groups,
ensure that public-interest statutes are not “eroded” by interest groups, construe
special-interest statutes narrowly, and allow statutes to change and evolve over
time.’ Statutes should be interpreted to be consistent with other statutes. Close
cases should be decided against stronger political interests and in favour of those
who have poorer access to the political process, because stronger political interests
are more likely to be able to return to the legislative arena to resolve ambiguous
statutory provisions in their favour.” He does not address the difficulties that may
arise when these values conflict –
in hard cases. If Eskridge’s les-
son is that one’s approach to statutory interpretation flows inevitably from an ac-
count of political morality (and he convincingly demonstrates this to be the case),
as they must –
66 Ibid at 175-76.
67 See Evans, Janisch & Mullan, supra note 25 at 680.
6′ See Dynamic Statutory Interpretation, supra note 6 at 238.
69Ibid. at 149.
70See ibid. at 294.
1996]
P MICHELL – DYNAMIC STATUTORY INTERPRETATION
then it is, perhaps, surprising that he does not provide a more solid grounding for
his own views on the subject. But that would be a very different book, of which
statutory interpretation might form only a small part.
Eskridge makes the interesting claim that the process of statutory interpretation,
as conventionally viewed, places undue emphasis upon interpretive decisions by
superior courts. Regrettably, the theory is somewhat underdeveloped, but it cer-
tainly suggests new vistas for research. In Eskridge’s view, the true pressure for
change and evolution in statutory interpretation comes from below, where most in-
terpretive decisions are made. New interpretations are developed by private liti-
gants, tribunal interpretations, interest groups, and lower courts. Superior courts are
presented with the opportunity to consider new interpretive decisions only through
the framework provided by these lower decision-making bodies. Statutory interpre-
tation is best viewed from the bottom up, not the top down. The sheer volume of
cases means that not all can be appealed, so superior courts are unable to revisit all
of the statutory interpretation decisions that might interest them.
Moreover, in the statutory interpretation process, the legislature is at the top of
the hierarchy, not the courts. Any decision of the courts can (at least theoretically)
be overturned by legislation, a constraint that also influences statutory interpreta-
tion.” There are two distinct insights to this thesis. First, the evolution of statutory
interpretation is driven by social, cultural, and political developments rather than by
developments in formal legal reasoning; the process is political and dynamic.’ Sec-
ond, statutory interpretation at all levels is a game of anticipated response, in which
a preferred interpretation is always constrained by how the interpreter perceives
what bodies further up in the hierarchy may do. Statutory interpretation decisions
are made with one eye on the legislature.
Dynamic accounts reveal that the originalist separation of powers argument is
self-refuting. Originalists argue that the legislature, and not the courts, should make
the determination that a statute no longer fits contemporary society’s understand-
ings or needs. As many originalists themselves acknowledge, however, this argu-
ment must itself rely upon a theory of legal authority.” Taking the originalist claim
that a theory of statutory interpretation must be derived from a theory of legal and
political authority at face value, one may challenge the originalist account of statu-
tory interpretation by attacking its underlying foundations.’ In short, how far into
the future can a past legislature’s acts be said to bind its successors? Cannot reason-
able limits be placed upon past legislative authority? If so, then courts could possi-
bly make this determination. At the very least, the argument that democratic con-
siderations undermine the claims of courts to interpret statutes in light of present
circumstances must also subvert the legitimacy of obsolescent statutes. The legiti-
7See ibid at 69-71.
‘ See ibiL at 72-73.
‘” See A. Marmor, Interpretation and Legal Theory (Oxford: Clarendon Press, 1992) at 176-80.
“See L.E. Feldman, “Originalism Through Raz-Colored Glasses” (1992) 140 U. Pa. L. Rev. 1389.
MCGiLL LAW JOURNAL/REVUE DE DROITDE MCGILL
[Vol. 41
macy of courts to make such interpretations rests in their competence and sense of
self-restraint in its exercise.
Dynamic accounts acknowledge legislative supremacy by conceding that when
a clear statutory text and legislative history suggest an interpretation, it should be
adopted despite subsequent social and legal developments. Where there is ambigu-
ity, however, (admittedly, itself a loaded interpretive question), dynamic accounts
insist that judges should construct an interpretation “that is most consonant with our
current web of beliefs and policies surrounding the statute”.73 This suggests that the
legislators who passed the statute intended that when the statute would be applied
years later, it should be interpreted to reflect the attitudes prevalent at the time of
application. Indeed, even if this contention is mistaken, so that the enacting legisla-
tors would actually have preferred that future interpretations accord with their
(original) legislative intent, dynamic theories claim that society would benefit if
they pretended otherwise. Thus it might be argued that dynamic accounts may be
justified as an interpretive process consistent even with an (admittedly broad) in-
tention of the enacting legislature. On this view, even dynamic accounts can be seen
as a form of originalism.
Eskridge accepts some of the insights of public choice theory, particularly its
insistence that a theory of statutory interpretation must be based upon an apprecia-
tion of how the legislature actually functions. It is difficult to enact statutes given
the demands upon the legislature’s time and attention. As a result, those that are en-
acted tend to last for a long time. Eskridge certainly cannot be accused of naYvet6
about the legislative process. This, however, leads him to a very different conclu-
sion about the proper role of the courts and tribunals than that of the public choice
theorists. Eskridge argues that adoption of a number of interpretive principles
would ameliorate the process difficulties identified by public choice theorists.
A fuller picture of Eskridge’s “critical pragmatism” emerges from an examina-
tion of these prescriptions. He suggests:
In close cases the legal process interpreter ought to consider, as a tie-breaker,
which party or group representing its interests will have effective access to the
legislative process if it loses its case, and to decide the case against the party (if
any) with significantly more effective access.’
Eskridge recognizes the progeny of public choice theory: scarcity, rent-seeking,
decentralization of the legislative process, problems of coordination and leadership,
and procedural obstacles. To counteract these forces, Eskridge advocates that
“interpreters should update laws that generally distribute benefits and costs, but
should approach concentrated benefit statutes more stingily.”” Similarly, statutory
” “Interpretation”, supra note 20 at 1483.
7′ Dynamic Statutory Interpretation, supra note 6 at 153.
77Ibid. at 158 ×..
19961
P MICHELL – DYNAMIc STATUTORY INTERPRETATION
interpreters “should presume against a construction that hurts groups marginalized
by the political process”.’
For Eskridge, the legislature’s preoccupation with competing claims on its at-
tention means that courts and tribunals should not merely confine themselves to
looking at the bare text of statutes, but should engage in a process of statutory evo-
lution. It is for this reason that Eskridge regards dynamic statutory interpretation as
not only desirable, but also inevitable.’ Public choice theory’s emphasis on the in-
determinacy of legislative practice proves too much. Eskridge argues that many of
the public choice insights (majority cycling in voting, agenda setting, strategic be-
haviour, and so on) can also be said to undermine the textualist claim itself. Tex-
tualism’s insight is a scepticism about the legislative process, and the recognition
that statutes are often the result of compromise and bargains. As well, textualism
takes texts and the process of interpretation seriously, which is also a welcome de-
velopment.
More than this, Eskridge contends that textualism suffers from many of the
same ailments that undermine other variants of originalism. Like them, textualism
cannot always demonstrate a clear link between a particular interpretation and ma-
jority preferences. It does not lead to determinate answers in hard cases, and it is an
inaccurate account of what courts actually do. Textualism’s contention that the
meaning of a statutory text can be determined by reference to the ordinary meaning
of words, grammatical and syntactical conventions, and canons of construction is
far more controversial than its supporters allow. Context is essential to understand-
ing the meaning of a text: yet, textualists do not make sufficient allowance for this.
Nevertheless, some theorists may seriously underestimate the importance of the
actual wording of a statute. Judge Henry J. Friendly recalls that when Justice
Frankfurter was a professor at Harvard Law School, he told his students that there
were three steps to statutory interpretation: (1) read the statute; (2) read the statute;
and (3) read the statute.’ An exaggeration, perhaps. Yet in many cases, a close
reading of the text of the statute is all that is required. One of the major motivating
factors of textualism is a concern that in an increasingly diverse polity there is a
need for a common language of statutory interpretation. Textualism may in the end
fail to achieve its goals, in large measure because it may assume (erroneously) the
existence of agreement upon conventions, canons, and presumptions where there is
no such agreement. The goal being sought, however, is still worthwhile.
Eskridge also underrates the practical difficulties involved in adopting the in-
terpretive approach he advocates. He has little sympathy for the desire of judges to
base their statutory interpretation decisions upon something that at least appears to
be more objective and substantial than anything on Eskridge’s menu. Textualism
78 Ibid. at 159-60.
n See ibid at 10.
80See H.J. Friendly, Benchmarks (Chicago: University of Chicago Press, 1967) at 202.
MCGILL LAW JOURNAL/REVUE DE DROITDE MCGILL
[Vol. 41
appeals to this judicial instinct. Finally, Eskridge also underestimates the contro-
versial nature of his own proposals. Textualists argue that there is simply no con-
sensus as to the interpretive values that should replace textualism, so that we should
preserve our existing, if flawed, techniques.” But Eskridge makes no claim to neu-
trality, and a central lesson of Dynamic Statutory Interpretation is that neutral rules
of statutory interpretation are illusory. Just as many political theorists of a liberal
hue have argued that a more robust form of liberalism is desirable, without the illu-
sion of neutrality, perhaps the same phenomenon is emerging in the statutory inter-
pretation debates.’
Even if one were to concede that Eskridge’s proposal can be demonstrated to be
theoretically more desirable than the alternatives (itself a highly controversial
proposition), this proposal would likely face prohibitive difficulties in implementa-
tion, although Eskridge argues that dynamic statutory interpretation is already in
place, because it best describes what courts actually do. A strong argument can thus
be made for a plain-meaning textualism as a “second-best” approach to statutory
interpretation. A diverse polity requires a common interpretive paradigm for its
legislation, so that a large number of interpreters can reach determinate and rea-
sonably consistent results. Textualism, though admittedly flawed, may be the best
agreement that can be expected.” This is not to suggest that a plain-meaning tex-
tualism is value free; context is still essential. The real question, often overlooked,
is: Given that textualism is flawed, are there any viable alternatives? Sensitivity to
the imperfections of a plain-meaning approach is highly desirable, and it may be
the most important practical result of the extensive academic criticism which had
been levelled at textualism. Context requires a degree of expertise, which it is un-
realistic to expect in judges who are generalists. Textualism may be imperfect, but
to a certain degree it works, and with awareness of its flaws, it can work better.
IV. Statutory Interpretation and Doctrinal Debates
Having grappled with establishing a normative basis for dynamic statutory in-
terpretation, Eskridge descends from the eyries of theory and enters the battlefield
of doctrine. In Part IIl of Dynamic Statutory Interpretation, he revisits the theoreti-
cal debate canvassed in Part II and undertakes an exploration of the historical de-
velopment of statutory interpretation doctrine in the United States, focusing upon
the use of legislative history in statutory interpretation decisions and the canons of
statutory construction. Eskridge traces the evolution of legal theory against the
background of doctrinal disagreement over the use of legislative history as an aid to
“See Scalia, supra note 46 at 862-63.
‘3On the emergence of “comprehensive liberalism”, see S. Gardbaum, “Liberalism, Autonomy, and
Moral Conflict” (1996) 48 Stan. L. Rev. 385.
” See: . Schauer, “Statutory Construction and the Coordinating Function of Plain Meaning” (1990)
Sup. Ct. Rev. 231; FH. Easterbrook, “Text, History, and Structure in Statutory Interpretation” (1994)
17 Harv. J.L. & Pub. Pol’y 61.
19961
P MICHELL – DYNAMIc STATUTORY INTERPRETATION
statutory interpretation. By following the historical path from formalism to realism
to a more moderate approach, which evolved into the legal process school, and be-
yond, he demonstrates that statutory interpretation is tied to broader jurisprudential
debates. Seen in this light, the new textualism is more a cultural and political phe-
nomenon than a legal one.
Eskridge explores the doctrinal controversies arising out of the application of
stare decisis to statutory interpretation decisions, the status of long-standing inter-
pretations by administrative tribunals, the retroactivity of new statutes in the face of
public reliance on older interpretations, and the meaning to be attributed to legisla-
tive inaction in response to statutory interpretation decisions. Eskridge then focuses
upon canons of construction as the battleground. Throughout, Eskridge’s essential
points are clear: that beneath traditional doctrine, dynamic approaches to the inter-
pretation of statutes lie hidden, and that normative debate rages below the surface
of dusty maxims and doctrinal devices. Eskridge demonstrates that the direction of
the statutory interpretation debate is inseparable from broader theoretical struggles.
Conclusion
Dynamic Statutory Interpretation is a wonderful, if demanding, book. Its range
of subject matter is immense. Eskridge demonstrates an encyclopedic knowledge
of the relevant caselaw and is always eager to provide illustrations of how the com-
peting theories of statutory interpretation actually function (or, more frequently, do
not) by testing them in the cases. Eskridge is also conversant with a great mass of
theoretical writing, discusses it in a balanced and nuanced manner and avoids
oversimplification or rhetorical bombast. There is no modem school of interpreta-
tion that goes unaddressed. Given this range, it is surprising that the work of some
leading theorists is addressed only tangentially. Dworkin and Fish receive rather
cursory treatment, and the important recent contribution of Marmor
is entirely ig-
nored. But Dworkin and Fish are in many ways fellow travellers in Eskridge’s dy-
namic movement, and it is perhaps unsurprising that he should focus his efforts
upon defining his theory in relation to existing schools rather than indulging in
hair-splitting within it.
Eskridge writes competently, though not brilliantly. This is unfortunate in a
field where many of his counterparts (Posner, Easterbrook, Schauer, and others)
write very well. While Dynamic Statutory Interpretation is impressive analytically,
it makes for difficult reading in many sections, even as it ensures that the discussion
of the theoretical debates does not reach a level of uncomfortable abstraction. At
times, the reader can appreciate the intellectual accomplishment of the book rather
than enjoy reading it. The many cases cited make it difficult to keep track of the
facts of any one under discussion, and the lack of cross-referencing in the endnotes
often frustrates attempts to follow the argument.
‘ See hterpretation and Legal Theory, supra note 73.
738
MCGILL LAW JOURNAL/REVUE DE DROITDE MCGILL
[Vol. 41
But, these are minor quibbles. Dynamic Statutory Interpretation is a major
contribution to scholarship and a model of how legal theory can be integrated with
legal doctrine. It opens new fields for further study. Eskridge’s scholarship is
pitched at a high level. Given his premise that statutory interpretation is an out-
growth of one’s normative inclination, Dynamic Statutory Interpretation is as much
a leading work of legal theory as it is a narrower work on statutory interpretation. It
will surely consolidate Eskridge’s reputation as the leading modem scholar on
statutory interpretation, and by placing his subject matter at the cutting edge of le-
gal theory, he has made that quite an accomplishment.
