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LEGAL THEORY
ON STATUTORY INTERPRETATION
Richard A. Posner (1983). ‘Statutory Interpretation in the Classroom and the
Courtroom,’ University of Chicago Law Review, Vol. 50, pp. 800-822.
INTRODUCTION
What does it mean to interpret statutes?
While it is common enough to hear law school students talk about interpreting the
constitution, there is not enough attention paid to interpreting statutes. Furthermore,
as Judge Richard A. Posner of the Court of Appeals, Seventh Circuit, Chicago and
Senior Lecturer in Law at the University of Chicago points out, most law schools
have not been able to teach courses on either statutory interpretation or on the
theory and practice of legislation. What this means is that when lawyers are asked to
draft legislation or interpret statutes they have difficulty in doing so. The purpose
behind Judge Posner’s intervention in this paper that he published in 1983 is to
clarify what is at stake in being able to interpret statutes and how law schools can
prepare students to be more effective in this area of legal expertise. Judge Posner
would like law school faculty to study statutory legislation and interpretation with
more diligence than has been the case so far. James Landis, for instance, pointed out
as early as 1934 that there is no jurist who has done for legislation what Justice
Oliver Wendell Holmes Jr. was able to do for the ‘common law.’ What Justice
Holmes did was not just to explain the significance of the common law to American
lawyers and law professors, but to put it firmly on the research agenda of law
schools in the United States. That is what Judge Posner feels is the need of the hour
for theories of legislation and statutory interpretation. While legal historians do
delve into this topic, they have not been able to explicate the dynamics of legislation

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and statutory interpretation as functional areas in the law school curriculum. They
have at best been able to provide the historical background or a theoretical
perspective on legislative history and the role that it plays in statutory interpretation;
hence the need for Judge Posner’s intervention.
COURSES ON LEGISLATIVE SKILLS
What is really required though are the skills of interpretation that go into drafting,
studying, and interpreting statutes amongst those who teach or practice law. Judge
Posner’s intervention is an attempt to make this possible by sharing his experiences
as a judge with members of the legal academy and the legal community. Judge
Posner’s argument is not that no work has been done in this area; he is aware that
academic lawyers can wield enormous expertise in the study of specific pieces of
statutory legislation. But what is missing is a general theory of legislation, the
legislative function, and statutory interpretation. What Judge Posner has in mind is
akin to the difference between case law and the common law. Both academic and
practicing lawyers will know a lot about the case law in a given area of expertise in
which they might have specialized without reflecting on how that relates to the
common law as such. Likewise, lawyers pick up expertise on specific statutes
without reflecting on how that relates to the case law generated by the statute or
how that in turn relates to the common law. That is why Judge Posner is at pains to
point out that ‘no one has ever done for legislation what Holmes did for the common
law.’ Economists have broached the theory of legislation using ‘interest-group
theory,’ but the scope of such work is limited. The existing case books and textbooks
on legislation do not study the role played by interest groups even though they have
become increasingly important. Those who edit these books do not ‘conceive of
legislation as a distinct subject’ at all. While a few law schools like the University of
Chicago’s School of Law offer courses on legislation, these are few and far between.
Judge Posner therefore explains what a course on legislation in a leading law school
should look like and what it must accomplish. The objectives of such a course should
include the following. It should include both the process of legislation and the

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empirical study of specific instances of legislation. Furthermore, it should teach
students the techniques necessary for researching the history of legislation.
INTERPRETING STATUTES & JUDICIAL OPINIONS
After making a case for a course on legislation and statutory interpretation, Judge
Posner goes on to consider the existing canons of statutory interpretation. He does
this because he finds that the existing canons are not adequate to the task of
statutory interpretation in the federal judiciary. After doing this, Judge Posner sets
out his own model which he terms ‘imaginative reconstruction.’ Before explaining
what this approach involves, let me share with readers what the existing canons of
statutory interpretation are and what exactly Judge Posner finds is wrong with them.
Judge Posner begin his critique by pointing out that there is a huge gap between
scholarly and practical approaches to statutory interpretation. While the study of
judicial opinions has been affected by the critique of legal formalism - that is not
necessarily the case in the context of statutes where the assumptions are as
mechanistic as before. Judge Posner also points out that the critique of judicial
opinions by law faculty led to a change in how these opinions are actually written by
members of the federal judiciary. That has however not happened in the case of
statutory legislation; it has not really been affected by developments in legal theory
or what law school faculty have to say about it.
STUDYING LEGISLATION IN LAW SCHOOLS
The whole point though for Judge Posner is that law school faculty do not have
much to say about legislation and the statutory function at all. In fact, that is what he
seeks to remedy in his paper. Those interested in statutory interpretation are more
likely to be scholars working in the area of law and literature who are wondering
what the differences are between literary interpretation and statutory interpretation
and whether models of literary interpretation are relevant in the context of statutory
interpretation given the differences between literary and non-literary approaches to
interpretation. The reasons for this should be obvious. Literary approaches to
interpretation involving stylistic analysis are relevant to studying judicial opinions.
The question is whether that approach will yield insights in the case of statutes or

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not given that statutes are not written by a single lawyer but by a committee of
lawyers. This difference in how statutes are drafted problematizes the traditional
questions of intent, structure, and function in interpretation. Literary texts, needless
to say, are not written by a committee but by a single mind. What this means is that
the ‘organic’ presuppositions of literary interpretation do not apply directly for
legislative texts. Furthermore, interpreters cannot presuppose any direct relationship
between the author and the text or seek recourse to historical information as a way
of filling in the gaps. That is probably why most of the canons of statutory
interpretation are wrong and need to be revised to reflect the reality of what really
goes into putting together a statute. Furthermore, as Karl Llewellyn has pointed out,
many of the canons of statutory interpretation contradict each other making
statutory interpretation even more difficult for judges.
CANONS OF STATUTORY INTERPRETATION
In order to interpret statues, the judge has to choose between the contradictory
canons to determine which approach to statutory interpretation would be
appropriate in any given case. Judge Posner then goes on to explain what he means
by saying that a statutory canon could be wrong from a functional point of view.
These canons might, for instance, expect judges to interpret their provisions and
sections by using ‘plain language,’ deploy their ‘common sense,’ or simply use
statutes as ‘flexible guideposts’ when they adjudicate. But it is not always clear what
these things mean in practice because two different judges can come up with two
different interpretations even though they may have the same above mentioned
canons in mind. In any case, the function of such canons is to constrain judges when
they interpret statutes. They also limit the power of the courts when compared to the
legislature. The main analytic distinction in statutory interpretation is the difference
between seeking a broad or a narrow interpretation. Furthermore, it is important to
know when to seek a ‘broad’ and when to seek a ‘narrow’ interpretation of a statute.
These methodological factors introduce uncertainty into acts of statutory
interpretation. There is no neutral method within statutory interpretation itself that
will tell the judge what to do though broadly speaking strict constructionists are

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thought to be conservative and loose constructionists are thought to be liberal.
Sometimes statutes themselves give an indication of whether what is required is a
broad or a narrow interpretation. This could be an indication of the legislature’s
intent on how the judges should interpret the statutes. Not all statutes will give this
form of methodological indication but corrective statutes do so because the
legislature may not have been happy with how a previous statute was interpreted by
the judiciary.
INSTANCES OF STATUTORY CANONS
Judge Posner examines a number of specific canons of statutory interpretation.
While there is not enough space to list all of them here, I will use a representative
sample to give the reader a feel for what is at stake in statutory interpretation. The
first of these statutory canons is the ‘plain meaning’ rule. This simply means that
judges should go by the plain meaning of the words in the statute. It may seem to be
the obvious thing to do but that is not necessarily the case. As Judge Posner points
out, judges are not really affected by the plain meaning because they are
preoccupied with reading the actual words in the statute. The briefs submitted by
the lawyers in the case may not even quote from the concerned section of the statute
at all. Most readers will be taken aback at this point, but this gap between our
theoretical expectations and the realities of practice is what makes it worth our while
to read Judge Posner carefully. There is much greater focus on case law than the
concerned section of the statute. Alternatively, the judge looks at the context of the
statute when the case law is not huge. The context can be determined by the name or
the title of the U.S. Code in which the statute is featured. In the case of ‘remedial’
statutes, it could turn out that there was a ‘compromise’ between legislators who
had conflicting objectives while drafting the statute. This makes it difficult to
construe the statute broadly in the attempt to formulate a remedy since that will
violate the legislative compromise. It also fails to take into account the role played by
interest groups in drafting the statute. There are also instances of ‘post-enactment
legislature materials’ that seek to guide the interpretation of the statute. What should
judges do with these materials? Should these materials be factored in or not? The

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basic problem is factoring them is that they reflect the preferences of the current
legislature and not the legislature that enacted the statute. Which of these should
have priority? Those who enact the statute? Or those who are subsequently in
power? Which of these legislatures should have the final say? Who is to decide?
LEGISLATIVE INTENT IN STATUTORY INTERPRETATION
Judge Posner argues that the legislature which enacts a statute should take priority
otherwise it might be tantamount to repealing a statute that has not been formally
repealed through the use of post-enactment materials. There are however exceptions
to this rule. Post-enactment materials are acceptable if they have been put together to
make it easier for the judiciary or if a legislative committee is trying to monitor the
‘administration of a statute.’ There might also be a ‘subsequently enacted statute’
that will have to be taken seriously, but this should not be conflated with a mere
committee report since that will not have the same value as a formal repeal of the
statute. Judge Posner also considers whether the interpretation associated with a
particular administrative agency that enforces a statute should be accorded ‘great
weight’ by a judge. They should only be accorded great weight if the interpretation
of the administrative agency has ‘persisted through several changes in the
administration’ rather than if they merely reflect the current preferences of the
legislature. It is not necessarily the case that administrative agencies are fully
acquainted with or even interested in the ‘original intent’ of the legislature. The main
reason that the canons of statutory interpretation go wrong is that they attribute
‘omniscience’ to the legislature which enacts a statute. It is important to remember
that most statutes are poorly drafted, ambiguous in construction and not really clear
about legislative intent because they are subject to a compromise between the
conflicting objectives of different groups of legislators. Statutes could also be
incomplete embodying gaps or inconsistencies in the law. That is why it is incorrect
to think that every word in a statute is important; statutes are not ‘organic’ texts like
poems aspire to be; they are also subject to ‘redundancies’ which is less likely to be
the case in literary texts. These then are some – though by no means all – of the

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problems involved in deploying the canons of statutory interpretation that Judge
Posner sets out to analyse in his paper.
IMPROVING STATUTORY INTERPRETATION
What is that judges and courts can do to improve statutory interpretation? The
model of interpretation that Judge Posner has in mind is ‘imaginative
reconstruction.’ What he means by this is that a judge should think back to the actual
context of the enacting legislature and the mind of the legislators who constituted
the members of the committee that put the statute together. Of course, this is not
easy to do. Nonetheless, Judge Posner argues that this approach is better than the
existing canons of statutory interpretation. This approach will prompt judges to take
the historical context of the statute seriously. It will also prompt them to inquire into
the value systems and attitudes which prevailed when the statute was enacted.
Judge Posner however does not believe that it is the responsibility of the judiciary to
keep all statutes ‘up to date.’ In any case, there are too many statutes and too few
judges; so this cannot be done even if it were a good idea to do so. Instead, the
judges must try to ‘imagine as best he can how the legislators who enacted the
statute would have wanted it applied to situations that they did not foresee.’ As far
as this approach to statutory interpretation is concerned, the statute itself will state
whether a broad or a narrow interpretation is required. If a common law concept is a
part of the statute then the judge is justified in invoking the principles of the
common law in its interpretation. There are also instances when a statute is able to
specify specific requirements as a corrective measure to a previous statute. In such
cases, Judge Posner argues there is a need to interpret the statute broadly.
CONCLUSION
This approach of ‘imaginative reconstruction’ was prefigured by H. Hart and A.
Sacks; their model is known as ‘attribution of purpose.’ These jurists would like
judges to focus on the ‘public interest’ and not worry about special interests or the
legislative compromises that undo the integrity of a statute. Judge Posner however
advices caution because the courts can substitute their preferences or define what
they like as the same as the public interest. The reason that Hart and Sacks are

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upbeat about this approach and ask the courts to act in the public interest is because
they formulated their approach to legislation during the New Deal when the country
as a whole thought that legislation ought to be progressive in its orientation; that
however is not necessarily the case in all historical eras. Legislation and legislative
intent nowadays is not as benign as the New Deal era; it is therefore important for
judges to use their powers wisely and defer whenever possible to the legislature.
And, finally, Judge Posner considers the suggestions made by Guido Calabresi in his
book which relates the common law ‘to the age of statutes.’ Calabresi suggests that
the courts should ‘update’ statutes to the extent possible or creatively ‘misread’
statutes to make them applicable to the needs of the present. Judge Posner points out
that Calabresi is only making explicit what constitutes the secret thoughts of most
lawyers and judges. In Calabresi’s approach to statutory interpretation, judicial
amendments take the place of legislative amendments in the public interest since the
latter are more difficult to enact.
And, in conclusion, Judge Posner points out that strict constructionism cannot
preserve legislative intent in matters pertaining to social welfare. The main
difference then between loose constructionists and strict constructionists of statutory
interpretation is that ‘the former think that modern legislation does not go far
enough, the latter think that it goes too far.’
SHIVA KUMAR SRINIVASAN