Abstract

Interpretive theory since the early 1990s has taken an institutional turn, putting into play new consequentialist and functional justifications for formalist interpretive practices. William Eskridge's argument (in Dynamic Statutory Interpretation) successfully refuted conceptual or formalist justifications for formalist interpretive practices, and thereby cleared away distracting intellectual underbrush. But the argument doesn't refute or even address the possibility, opened up by the institutional turn, that formalist interpretive practices might be justified anew on functional and consequentialist grounds. Those new justifications depend upon largely empirical answers to various institutional-choice questions about the allocation of interpretive authority between courts and agencies, and to various institutional-design questions about the relative costs of formalist interpretive strategies and their antiformalist competitors.

Recommended Citation

Adrian Vermeule, "Dynamic Statutory Interpretation and the Institutional Turn" Issues in Legal Scholarship, Dynamic Statutory Interpretation (2002): Article 3.
http://www.bepress.com/ils/iss3/art3