The Law of Interpretation

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How should we interpret legal instruments? How do we identify the law they create? Current approaches largely fall into two broad camps. The standard picture of interpretation is focused on language, using various linguistic conventions to discover a document’s meaning or a drafter’s intent. Those who see language as less determinate take a more skeptical view, urging judges to make interpretive choices on policy grounds. Yet both approaches neglect the most important resource available: the already applicable rules of law.

Legal interpretation is neither a subfield of linguistics nor an exercise in policymaking. Rather, it is deeply shaped by preexisting legal rules. These rules tell us what legal materials to read and how to read them. Like other parts of the law, what we call “the law of interpretation” has a claim to guide the actions of judges, officials, and private interpreters — even if it isn’t ideal. We argue that legal interpretive rules are conceptually possible, normatively sensible, and actually part of our legal system.

This Article thus reframes the theory of statutory and constitutional interpretation, distinguishing purely linguistic questions from legal questions to which language offers no unique answer. It also has two concrete implications of note. It provides a framework for analyzing the canons of interpretation, determining whether they are legally valid and how much authority they bear. And it helps resolve debates over constitutional “interpretation” and “construction,” explaining how construction can go beyond the text but not beyond the law.

* Neubauer Family Assistant Professor of Law, University of Chicago Law School; Professor of Law, Duke University School of Law.

We are grateful for comments from Bruce Ackerman, Larry Alexander, Akhil Amar, Jack Balkin, Randy Barnett, Amy Coney Barrett, Kathryn Bi, Saul Cornell, Ryan Doerfler, Oran Doyle, Richard Fallon, John Finnis, Sherif Girgis, Abbe Gluck, Mark Greenberg, James Grimmelmann, Cathy Hwang, Randy Kozel, Kurt Lash, Brian Leiter, Barbara Baum Levenbook, Jeffrey Lipshaw, Yair Listokin, Luca Marzorati, John McGinnis, Caleb Nelson, Will Ortman, Zach Price, Michael Rappaport, Richard Re, Amanda Schwoerke, Reva Siegel, Dale Smith, Larry Solan, Lawrence Solum, Asher Steinberg, Lee Strang, Gregg Strauss, Cass Sunstein, Kevin Walsh, and audiences at Georgetown University Law Center, Northwestern Law School, St. John’s University School of Law, the University of Illinois College of Law, the University of Notre Dame in London, the University of San Diego Originalism Works-in-Progress Conference, the Yale/Stanford/Harvard Junior Faculty Forum, and the Volokh Conspiracy. We are also grateful for the always excellent research assistance of Kelly Holt. Support is provided in part by a gift to Duke University School of Law from the Eugene T. Bost, Jr., Research Professorship of The Cannon Charitable Trust No. 3 and in part by the Alumni Faculty Fund and SNR Denton Fund at the University of Chicago Law School.

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