Adrian Vermeule


Interpretive Choice

Adrian Vermeule

How should judges choose doctrines of statutory interpretation? Judges explicitly or implicitly choose interpretive doctrines-canons of construction, rules governing the admissibility and weight of extrinsic sources, and rules about the force of statutory precedent. Interpretive choice presupposes both a theory of statutes’ political authority and an empirical assessment of the competence of interpreters, the benefits of rules and standards, and the interaction of lawmaking institutions. In this Article, Professor Adrian Vermeule notes that all this is widely accepted, but argues that scholarship to date has overlooked the central dilemma of interpretive choice: The empirical assessments needed to translate theories of statutes’ authority into operative doctrine frequently exceed the judiciary’s capacity. Many of the relevant questions are empirical but unanswerable, at least at acceptable cost; moreover, judges can neither conduct necessary experiments nor successfully assimilate information provided by outside institutions. Judges faced with problems of interpretive choice must therefore apply standard decisionmaking strategies of choice under irreducible empirical uncertainty, strategies derived from decision theory, rhetoric, and other disciplines. This Article applies these strategies to three standard doctrinal problems-the admissibility of legislative history, the choice of interpretive canons, and the force of statutory stare decisis. It concludes that judges should exclude legislative history, should pick between canons rather than debating their relative merits, and should observe an absolute rule of statutory stare decisis. In short, judges should embrace a formalist approach to statutory interpretation, one that uses a minimalist set of cheap and inflexible interpretive sources.