Dynamic Statutory Interpretation.

• Author: Farber, Daniel A.

Statutory interpretation, Professor Eskridge(1) observes, has been a neglected intellectual stepchild, "the Cinderella of legal scholarship" (p. 1). If so, then Eskridge himself may qualify as the messenger with the glass slipper who has rescued the waif from obscurity. For over a decade, he has been in the forefront of research on the subject and has played a leading role in the scholarly renaissance now underway. Dynamic Statutory Interpretation synthesizes and extends his far-reaching contributions to the subject.

Even beyond its theoretical sophistication and extensive scholarship, perhaps the book's most attractive feature is the internal tension between sometimes opposing viewpoints. Eskridge candidly admits that he admires conflicting normative visions, for his experiences have given him a prismatic rather than a unified vision:

My approach can be described as one of critical pragmatism. It reflects a balance among three facets of my life: my thoroughly middle-class background and exposure to legal work through the usual insider institutions (Ivy League law school, clerkship, tony law firm), versus my experience as a gay man (which makes me a pariah looking at legal practice from the outside), versus my fascination with the phenomenon of scarcity and its [economic] implications for public life. My experience sweeps widely if not comprehensively across the American political spectrum.(2)

Consequently, Eskridge's discussion tends to be dialectical, embracing first one viewpoint and then another. His conclusions are more nuanced than some readers may expect from an outspokenly "progressive" legal scholar. The price of these internal intellectual tensions is a reduction in theoretical elegance and rhetorical sweep, but the result is a more fruitful and profound engagement with the issues. Throughout the book, although Eskridge's conclusions are often debatable, he never fails to engage opposing viewpoints honestly and to acknowledge their legitimacy.

This review begins by considering Eskridge's quarrel with his major opponents -- textualists such as Judge Frank Easterbrook and Justice Antonin Scalia. It then probes Eskridge's understanding of "dynamic interpretation." Dynamic interpretation's distinctive feature is the view that statutory meaning changes over time, but this view need not be hostile to the need of the legal system for continuity and fidelity to the past. Eskridge's approach may have roots in the activism of the Warren Court, but it also turns out to have some intriguing affinities with the work of Alexander Bickel, a legal-process(3) critic of judicial activism. Finally, the review revisits United Steelworkers of America v. Weber,(4) the leading statutory-interpretation opinion involving affirmative action -- an opinion that has fascinated Eskridge and other interpretation scholars.

1. DYNAMIC INTERPRETATION VERSUS NEW TEXTUALISM

   In evaluating the argument for dynamic interpretation, we may begin profitably by considering its main current competitor, the recent revival of textualism. Eskridge argues that dynamic interpretation is inevitable.(5) This is a difficult proposition to establish empirically. At least one might say, however, that textualists have failed to provide a counterexample in their own practice of statutory interpretation. This failure is all the more revealing because opposition to dynamic interpretation is so central to the textualist creed. We first consider the textualists' unsuccessful effort to eliminate dynamic interpretation, and then briefly consider the arguments in arguments in favor of a dynamic approach.

   1. The New Textualistism

      When interpreting statutes, modern courts generally have felt free to rely on an eclectic mix of reliance on text, legislative history, statutory purpose, and public policy.(6) This eclecticism allows room for dynamic interpretation for judges who are so inclined. Beginning in the 1980s, textualists challenged this eclectic approach in favor of a much more structured method of statutory interpretation.(7) Their favored approach claims to be rigorously nondynamic.(8) Textualists, as Judge Easterbrook has explained, stress that the proper forum for policymaking is the legislature; the role of judges is to apply statutes as written, without attempting to adapt them to changing times: "Laws are designed to bind, to perpetuate a solution devised by the enacting legislature; and do not change unless the legislature affirmatively enacts something new. . . . Law does not change in meaning as the political culture changes."(9)

      There are several corollaries to this antidynamic thesis. Textualists maintain that the ideas of legislative purpose and legislative intent are incoherent: "Legislation is compromise. Compromises have no spirit; they just are."(10) Hence, if the legislature has failed to speak clearly to an issue, the argument continues, a court should not try to fill the gap. When the court reaches the limits of a statute's clear instructions, the only thing to do is to put the statute aside and admit that it provides no basis for ruling.(11) As Judge Easterbrook puts it, "[w]hen the text has no answer, a court should not put one there on the basis of legislative reports or moral philosophy -- or economics! Instead the interpreter should go to some other source of rules."(12) Refusing to stretch statutory language or fill gaps has another major advantage: Knowing that courts will follow only their plain language, legislators will have an incentive to draft carefully and precisely,(13) so textualism helps foster the democratic process.(14)

      What this adds up to, as Judge Easterbrook puts it, is a "relatively unimaginative, mechanical process of interpretation."(15) offered in the name of upholding the legislature's monopoly on policymaking.(16) Only this mechanical approach "can be reconciled with the premises of democratic governance."(17) According to textualists, this approach is also consistent with the essence of the judicial function, which is to submit to "the lines of the logical and analytical categories" and to operate under clear rules rather than fuzzy principles.(18)

      The textualist vision of statutory interpretation is sharply at odds with Eskridge's. Textualism aspires to be resolutely nondynamic and insulated from judicial value judgments. Its aspiration to formalist simplicity is equally distant from Eskridge's vision. Rather than seeking a cut-and-dried method of interpretation, he criticizes courts for attempting to simplify their tasks instead of engaging the deep complexities of interpretation (p. 145). Thus, although he utilizes some of the same intellectual apparatus as the textualists,(19) ultimately Eskridge's theory is almost entirely opposed to theirs.

   2. The Failure of Textualism

      Not surprisingly, textualism has not gone unchallenged.(20) According to its critics, textualism fails on its own terms by leaving judges free to inject their values into statutory interpretation. Critics charge that courts have "begun to use textualist methods of construction that routinely allow them to attribute `plain meaning' to statutory language that most observers would characterize as ambiguous or internally inconsistent," and even to attribute plain meaning to language that "was nearly universally believed to have a contrary meaning" for many decades.(21) Others describe textualism as increasing the tension between democracy and the rule of law and serving "as a cover for the injection of conservative values into statutes."(22) Room for doubt exists, then, about whether textualism is living up to the promises of its advocates.

      These concerns are illustrated by Justice Scalia's opinion in BFP v. Resolution Trust Corp.(23) BFP involved a Bankruptcy Code provision that invalidates certain prebankruptcy transfers unless the debtor received "a reasonably equivalent value."(24) The transfer in BFP was a foreclosure sale on the debtor's real estate for a fraction of its market value. Applying the bankruptcy provision to foreclosures had given the lower courts a great deal of difficulty because prices at forced sales are not infrequently depressed. Some courts had set aside such sales when the sale price was well below fair market value.(25) Others, such as the lower court in BFP, had found compelling policy reasons for ignoring the price disparity despite the statutory language.(26) Justice Scalia upheld the foreclosure, but without adopting the policy-oriented rationale of the lower court.

      According to Justice Scalia, whatever amount is received in a lawful foreclosure, however minute, is simply by definition "a reasonably equivalent value."(27) Justice Scalia argued that the value of property inevitably is depressed if it is the subject of foreclosure proceedings.(28) "[I]t is no more realistic to ignore that characteristic of the property (the fact that state foreclosure law permits the mortgagee to sell it at forced sale) than it is to ignore other price-affecting characteristics (such as the fact that state zoning law permits the owner of the neighboring lot to open a gas station)."(29) Thus, under Justice Scalia's view, if a mortgagee buys the property at a small fraction of its market value, the price paid is simply its true value under the circumstances.

      Whatever else may be said of Justice Scalia's argument, it hardly corresponds with the textualist call for a "relatively unimaginative, mechanical process of interpretation."(30) No ordinary speaker of English would use the phrase "reasonably equivalent value" to mean "fair market value except in the case of a foreclosure, when it means whatever the debtor receives." At most, Scalia's argument would support only a definition of fair value as the expected price at a foreclosure sale, not the actual price in one particular sale. Moreover, as Justice Souter's dissent cogently demonstrates, Justice Scalia's interpretation of the statute simply makes a hash of...