Notice & Comment

Kavanaugh, Eskridge, Baude & Sachs on Legal Interpretation (AdLaw Bridge Series)

In the last few years, (at least) two important books on legal interpretation have been published: Justice Scalia and Bryan Garner’s Reading Law: The Interpretation of Legal Texts, and then Judge Katzmann’s Judging Statutes. I have blogged a fair amount about Reading Law (posts collected here) and contributed to the Green Bag’s entertaining microsymposium on the treatise. I also use the treatise extensively in my first-year course on legislation and regulation. (The table of contents alone is a great resource, and the publisher has graciously allowed me to post it online here.)

Both books are important resources for scholars, students, and practitioners of statutory interpretation. But now we have more to add to that reading list, as three terrific publications on interpretation have emerged in recent months.

First, Judge Kavanaugh published an engaging book review of Judge Katzmann’s book in the Harvard Law Review. This is a fascinating read from a sitting judge on the D.C. Circuit, and his approach to statutory interpretation differs markedly from Judge Katzmann’s. The predominant theme of the review is an attack on the use of ambiguity to trigger various interpretive tools (legislative history, substantive canons, Chevron deference, etc.). As Judge Kavanaugh argues (at 2118), the problem is that “judges often cannot make that initial clarity versus ambiguity decision in a settled, principled, or evenhanded way.” Judge Kavanaugh’s most important contribution, to my mind, to the debate on ambiguity in statutory interpretation is his reframing of ambiguity in terms of judges’ confidence levels. Here’s a taste (at 2137-38):

[J]udges must decide how much clarity is needed to call a statute clear. If the statute is 60-40 in one direction, is that enough to call it clear? How about 80-20? Who knows?

. . .

I tend to be a judge who finds clarity more readily than some of my colleagues but perhaps a little less readily than others. In practice, I probably apply something approaching a 65-35 rule. In other words, if the interpretation is at least 65-35 clear, then I will call it clear and reject reliance on ambiguity-dependent canons. I think a few of my colleagues apply more of a 90-10 rule, at least in certain cases. Only if the proffered interpretation is at least 90-10 clear will they call it clear. By contrast, I have other colleagues who appear to apply a 55-45 rule. If the statute is at least 55-45 clear, that’s good enough to call it clear.

Judge Katzmann has also published a short response to Judge Kavanaugh’s review in the Harvard Law Review Forum.

Second, Bill Eskridge has just published Interpreting Law: A Primer on How to Read Statutes and the Constitution. Don’t be misled by the fact that this book was published by Foundation Press and looks like a casebook or supplement. It is a comprehensive treatise capturing the theory and practice of statutory interpretation by one of the leading scholars — if not the leading scholar — on legislation and statutory interpretation. It’s accessible and practical for students and lawyers, but it’s also theoretically rich and sets forth a vision for statutory interpretation that may well capture the Court’s growing contextualist approach to statutory interpretation. Although Professor Eskridge does not come out and say it, his treatise also appears to constitute his comprehensive response to the textualist theory of interpretation set forth in Scalia and Garner’s Reading Law.

Finally, Will Baude and Stephen Sachs have posted to SSRN a draft of their article The Law of Interpretation, which is forthcoming in the Harvard Law Review. This is a provocative read, as Baude and Sachs argue against the standard account of statutory interpretation (based on what words actually mean) and the judicial policymaking alternative in favor of, as the title suggests, a theory of interpretation that is based on preexisting legal rules. Professor Baude has already blogged about the article at length over at the Volokh Conspiracy (here, here, here, here, here, here, and here). So I won’t delve further into their argument in this short post. But here is the summary of the paper from their abstract:

How should we interpret legal instruments? How do we identify the law they create? Current approaches largely fall into two broad camps. The standard picture of interpretation is focused on language, using various linguistic conventions to discover a document’s meaning or a drafter’s intent. Those who see language as less determinate take a more skeptical view, urging judges to make interpretive choices on policy grounds. Yet both approaches neglect the most important resource available: the already applicable rules of law.

Legal interpretation is neither a subfield of linguistics nor an exercise in policymaking. Rather, it is deeply shaped by preexisting legal rules. These rules tell us what legal materials to read and how to read them. Like other parts of the law, what we call “the law of interpretation” has a claim to guide the actions of judges, officials, and private interpreters — even if it isn’t ideal. We argue that legal interpretive rules are conceptually possible, normatively sensible, and actually part of our legal system.

This Article thus reframes the theory of statutory and constitutional interpretation, distinguishing purely linguistic questions from legal questions to which language offers no unique answer. It also has two concrete implications of note. It provides a framework for analyzing the canons of interpretation, determining whether they are legally valid and how much authority they bear. And it helps resolve debates over constitutional “interpretation” and “construction,” explaining how construction can go beyond the text but not beyond the law.

You can download the current draft of their paper here. No doubt all three of these works will contribute deeply to our understanding of legal interpretation, and I look forward to the future work that builds on these contributions.


This post is part of the Administrative Law Bridge Series, which highlights terrific scholarship in administrative law and regulation to help bridge the gap between theory and practice in the regulatory state. The Series is further explained here, and all posts in the Series can be found here.

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