Statutory Interpretation as 'Interbranch Dialogue'?

Abstract

James J. Brudney & Ethan J. LeibMuch in the field of statutory interpretation is predicated upon “interpretive dialogue” between courts and legislatures. Yet, the idea of such dialogue is often advanced as little more than a slogan; the dialogue that courts, legislators, and scholars are imagining too often goes unexamined and underspecified. This Essay attempts to organize thinking about the ways participants and theorists conceive, and should conceive, of interbranch dialogue within statutory interpretation.

The Essay itself proceeds by using a dialogic and dialectical method. It first develops various positions against “interbranch dialogue.” By invoking arguments from textualism, public choice, and positive political theory, it suggests why many feel that dialogue should not animate thinking in statutory interpretation.

With that auspicious start, the Essay then explores in conceptual and descriptive terms what would count as true dialogic activity. Interbranch dialogue is not reducible to mere textual pronouncements or anticipatory signaling efforts. Rather, it is best understood as responsive communication between the two institutions, in which each party listens to, takes seriously, and values what the other party says and thinks, even if there is disagreement on particular interpretive outcomes or their implications. This communication may emerge in unscripted or unanticipated ways or it may flow more formally from mechanisms designed to generate responsive exchange. The Essay highlights and examines numerous modes of dialogue that are initiated by the legislature and also by the courts, using examples from both federal and state levels.

The Essay concludes by rehabilitating and rejuvenating the dialogue model in normative terms, drawing interbranch dialogue back to its legal process roots and revealing its links to more contemporary deliberative democratic theory.

About the Author

James J. Brudney is the Joseph Crowley Chair in Labor and Employment Law at Fordham Law School. Ethan J. Leib is the John D. Calamari Distinguished Professor of Law at Fordham Law School.

By uclalaw