Dynamic Statutory Interpretation, 135 U. Pa. L. Rev. 1479 (1987)
The purpose of this Article is to explore the thesis that statutes, like the Constitution and the common law, should be interpreted dynamically. Part I sets forth a cautious model of dynamic statutory interpretation. It uses specific examples of dynamic interpretation to show how the model works. The Article accepts the traditional assumptions that a functioning representative democracy exists in our polity, that the legislature is the primary lawmaking body, and that in many cases statutory language will be sufficiently determinate to resolve a given case. Even under these conventional assumptions, however, original legislative expectations should not always control statutory meaning. This is especially true when the statute is old and generally phrased and the societal or legal context of the statute has changed in material ways.
Part II demonstrates that no good reason compels adherence to traditional originalist doctrine. Three major types of arguments have been invoked in favor of statutory intentionalism or modified intentionalism: (1) the formalist argument that the Constitution vests Congress with the exclusive power to create law or policy, leaving courts with no role but to carry out the intent (or purpose) of Congress; (2) the economic argument that statutes are contracts between interest groups and legislatures and as such must be enforced by judges (the "agents" of the legislature) according to their original terms and intent; and (3) the legal process argument that it is illegitimate for nonelected judges to make policy in a majoritarian political system by expanding upon the original meaning of statutes. None of these arguments, however, justifies unexceptioned statutory intentionalism when circumstances have changed and the statutory language is not determinate.
Part III describes the advantages of the proposed model of dynamic statutory interpretation over other current approaches to statutory interpretation. The Article argues that this model depicts what the Supreme Court typically does when it interprets statutes and that the model's descriptive power is superior to that of the models traditionally invoked by the Court-intentionalism and the progressive modified intentionalism of Henry Hart's and Albert Sacks's legal process materials. I do not contend that the model here is always, or usually, easier to apply than the intentionalist or modified intentionalist approaches. I only contend that it explains the results of the Supreme Court's cases better and is a more candid analysis of what the Court does. Finally, the Article contrasts my dynamic interpretation model with the more ambitious approach posited by Professor Ronald Dworkin. Dworkin, too, argues for dynamic interpretation, in which statutes change as "law's integrity" develops and changes. My approach is more cautious and conventional than that of Dworkin. He envisions judges performing the truly herculean task of reading magisterial coherence into the law. I envision judges as diplomats, whose ordering authority is severely limited but who must often update their orders to meet changing circumstances.
Date of Authorship for this Version
Eskridge, William N. Jr., "Dynamic Statutory Interpretation" (1987). Faculty Scholarship Series. Paper 1505.