Vol. 5 No. 7 (July, 1995) pp. 195-196
DYNAMIC STATUTORY INTERPRETATION by William N. Eskridge, Jr.
Cambridge, MA: Harvard University Press, 1994. 438 pp.
Reviewed by Beth M. Henschen, Department of Political Science,
Loyola University Chicago
In DYNAMIC STATUTORY INTERPRETATION, William Eskridge wastes no
time in delineating why statutory interpretation is important,
reminding us that statutory interpretation has a venerable
jurisprudential history, and introducing the thesis that
statutory interpretation is dynamic. It is also clear from the
beginning that the reader is in for a treat. This book is not
about "canons of construction," though in the last
chapter Eskridge does discuss the Supreme Court's recent
experimentation with the canons and argues that understanding its
use of the canons is important for understanding the multiplex
agenda of the Rehnquist Court. Nor is this a theoretical tome,
though one of the major aims of the book is to address the
legitimacy of reading statutes dynamically by viewing the process
through different jurisprudential traditions. Rather, Eskridge
takes a, well, DYNAMIC, approach to the task of criticizing
certain modes of interpretation, such as originalist theories,
and advancing the argument that dynamic statutory interpretation
is inevitable because of the structure of policy-making in the
United States. He utilizes several key cases to lead us through
the range of theoretical and practical issues that are involved
in the way that courts and agencies interpret legislative
enactments, confronting us with the same difficulties that judges
and bureaucrats face as they bring meaning to statutory language
and seek to uncover legislative intent.
Make no mistake about it. DYNAMIC STATUTORY INTERPRETATION is not
an easy read. One has to pay close attention on this
intellectually engaging trip. The road map is marked with
historical and theoretical points of interest that must be toured
in order to get the most out of the journey. Still, Eskridge is
ever-mindful of the practical realities and pragmatic
consequences of statutory interpretation, and he is adept at
teasing out the implications of reading statutes dynamically in
light of different theoretical assumptions.
In chapter one, Eskridge uses the Supreme Court's 1979 decision
in UNITED STEELWORKERS v. WEBER, as well as some other cases, to
illustrate that when courts and agencies interpret statutes, they
are not simply engaging in archaeology. While interpreters are
interested in the text of the statute and in the intentions of
the enacting coalition, they are also concerned with the facts
and equities of the case, precedents and legislative feedback,
and the consequences of choosing one interpretation over another.
Courts and agencies are pressed from below -- by private parties,
interest groups, and ground-level implementers -- to interpret
statutes in ways that are responsive to new facts, new needs, new
ideas. Courts and agencies are also pressed from above -- by
legislative committees, by the threat of congressional override,
and by the president -- to interpret statutes in ways that are
sensitive to current rather than historical political
preferences. Chapter two relies on examples from civil rights and
immigration law to explore the ways in which different practical,
cultural, and political perspectives drive statutory
interpretation in dynamic directions.
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Chapter three's case study of the labor injunction decisions
provides further evidence that the interpretation of statutes is
not a static exercise. But as Eskridge appropriately points out,
it is not enough to say that courts and agencies interpret
statutes dynamically (indeed, it would be difficult to argue that
they do not). There are also normative questions that could --
and should -- be addressed. Is it a good thing that courts and
agencies interpret statutes dynamically? Is dynamic
interpretation consistent with the rule of law? With democratic
theory? With justice?
In chapters four, five, and six, Eskridge evaluates the
desirability of dynamic statutory interpretation from the
perspectives of liberal theory, legal process theory, and several
normativist theories, weaving agency and court interpretations in
specific cases throughout. While Eskridge contends that dynamic
statutory interpretation is defensible under any of these
theories (though particular interpretations are open to
criticism), he concludes that critical pragmatism is the
normative political theory he finds most congenial for dynamic
interpretation. The final chapters of the book center around
doctrinal debates that have characterized statutory practice.
Chapter seven traces the ebb and flow of the value that has been
placed on legislative history as a means of determining
legislative meaning. Chapter eight examines the legislative
inaction doctrines and the presumption of correctness for
statutory precedents. Chapter nine reviews the canons of
statutory construction. As is the case with the earlier chapters,
these issues are dealt with in the context of specific cases and
in light of real consequences. The book concludes with useful
appendices: the primary legislative inaction precedents,
1962-1992; Supreme Court decisions overruling statutory
precedents, 1962-1992; and the Rehnquist Court's canons of
statutory construction.
"Statutory interpretation is the Cinderella of legal
scholarship. Once scorned and neglected, confined to the kitchen,
it now dances in the ballroom." (p. 1) With that, Eskridge
begins his comprehensive account, his thought-provoking analysis,
his fascinating synthesis of the arguments and issues surrounding
statutory interpretation. And while I must admit that my interest
in the interpretation of statutes pre-dates Cinderella's good
fortune in finally getting her due, I think Eskridge has written
a book that nearly everyone with an interest in the complexity of
public policy-making will find engaging, and all will find
worthwhile.
Copyright 1995