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H. Miles Foy III, On Judicial Discretion in Statutory Interpretation, 62 Admin. L. Rev. 291 (2010), available at SSRN.

There is something silly about Supreme Court decisions in which five justices explain that the conventional tools of statutory interpretation—e.g., legislative intent, objective textual meaning, and judicial rules for discerning and applying them—plainly indicate that a statute means A but the other four justices deploy the same tools to explain that the statute plainly means B.  After all, if the relevant meaning were all that clear, wouldn’t all nine of the extraordinarily capable legal minds on the Court come to quick agreement?  And isn’t their disagreement strong evidence that the statutory question has no pre-existing, determinate legal answer?   One might expect that under such circumstances, the rules of reasoned legal discourse would require justices to make remarks like, “Wow.  My dissenting colleagues’ arguments are really very good—they almost persuaded me—and I’m no pushover. But, on balance, I still think it is a better idea to choose interpretation A instead of B.”  Instead, the more usual practice is for both sides to insist that the other is just plain wrong.

In his elegant essay, Professor Foy suggests courts dispense with such nonsense and instead tell the truth.  Suppose, for instance, a judge determines that conventional tools of statutory interpretation do not compel a choice between readings A and B.  The judge happens to think that the world would be a better place were she to choose B.  Under the current rules of the game, the judge should write an opinion that tries to justify choosing B based solely on conventionally acceptable tools—which might include, say, old dictionaries.  This sort of exercise can generate judicial explanations that are strained, arbitrary, or untruthful.  According to Professor Foy, the judge should: (a) instead concede that interpretations A and B both seem pretty darn reasonable as a matter of conventional legal analysis, and then (b) truthfully explain whatever reasons of policy, equity, or justice moved the judge to choose one interpretation over the other.  In short, judges should admit that they must exercise discretion when choosing among reasonable interpretations of ambiguous statutes and then exercise that discretion as prudently and transparently as they can.

I enjoyed Professor Foy’s essay for several intertwined reasons.  First, it is a fun read.  If statutes were written as clearly and lucidly as Professor Foy’s essay, then he would not have had to write it.  The quality of the writing lends it persuasive force in a way that calls to mind that lawyers—and by extension, law professors—are supposed to be good at rhetoric.  My favorite turn of phrase from the essay comes in Professor Foy’s dissection of Chapman v. United States (1991)—the case in which a majority of the Supreme Court relied in part on dictionary definitions to determine that LSD and blotter paper form a “mixture” for sentencing purposes.  As Professor Foy remarked in a fairly devastating riposte, “[a] reasonably intelligent English speaker would not ordinarily use the word ‘mixture’ to describe a necktie stained with soup or a napkin soaked in cod liver oil.” Professor Foy’s essay is wise and wry.

Second, Professor Foy’s essay provides a novel angle for thinking about a very old problem.  It is not, of course, news that statutory interpretation, in the hard cases, includes a discretionary element.  Indeed, recognition of this point is a foundational element of the Chevron doctrine, which in essence instructs courts to affirm an agency’s discretionary choice among reasonable statutory constructions provided the agency gives a reasonable explanation for the choice.  One can understand Professor Foy’s essay as insisting that courts apply the same standards of reasoned decision-making to themselves as they apply to agencies—what is good for the discretionary administrative goose is also good for the discretionary judicial gander.

Best of all, Professor Foy’s essay is thought-provoking.  After reading it, I found myself mulling over, among other things:

  • Would it really be better for courts to be more truthful about the discretionary nature of the task of interpreting ambiguous statutes?
  • Are courts actually lying about this process even if no one believes them?
  • Would greater judicial truthfulness about statutory interpretation tend to exacerbate or mitigate the role of ideology in this process?
  • What would be the effect of judicial truth-telling on stare decisis?  Where a judge admits that he or she chose an interpretation based on a personal policy preference, should that choice be entitled to weight in other cases?
  • And, last but not least, what exactly do we mean by “discretion,” anyway?

So, there you have it:  Professor Foy’s essay on discretion in judicial statutory construction is wise, wry, novel, and thought-provoking.  You will enjoy reading it.

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Cite as: Richard Murphy, The Truth Might Set Your Statutory Interpretation Free, JOTWELL (December 17, 2010) (reviewing H. Miles Foy III, On Judicial Discretion in Statutory Interpretation, 62 Admin. L. Rev. 291 (2010), available at SSRN),