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01 March 2006

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Jason Czarnezki

Legal scholars continually debate competing theories of legal interpretation (e.g., formalism, pragmatism, textualism) and the merits of using various interpretive tools (e.g., legislative history or dictionaries). I don't think I'd characterize it as "wheel spinning," but there's certainly lots of work to be done in evaluating the costs and benefits of these theories (e.g., do formalistic or rule-like decisions lead to more predictability in the lower courts?), in testing the empricial assumptions that undergird of use of certain interpretive tools (e.g., are empirical claims about legislative history accurate?), and in learning what approaches to interpretation are actually used by judges. These questions present a number of methodological difficulties, as evidenced by the difficulty in operationalizing the legal model. For some relevant literature, see Sunstein, Must Formalism Be Empirically Defeneded?, 66 U. Chi. L. Rev. 636 (1999) http://ssrn.com/abstract=155435 ; Czarnezki & Ford, The Phantom Philosophy? An Empirical Investigation of Legal Interpretation, 65 Maryland L. Rev. __ (forthcoming 2006) http://ssrn.com/abstract=773865 ; Howard & Segal, An Original Look at Originalism, 36 Law & Society Review 113 (2002).

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