Statutory Realism: The Jurisprudential Ambivalence of Interpretive Theory

In the renaissance of statutory interpretation theory, a division has emerged between "new purposivists," who argue that statutes should be interpreted dynamically, and "new textualists," who argue that statutes should be interpreted according to their ordinary semantic meanings. Both camps, however, rest their theories on jurisprudentially ambivalent commitments. Purposivists are jurisprudential realists when they make arguments about statutory meaning, but they are jurisprudential formalists in their views of the judicial power to engage in dynamic interpretation. Textualists are the inverse; they are formalistic in their understandings of statutory meaning but realistic in their arguments about judicial power. The relative triumph of textualism has therefore been an importantly incomplete triumph of formalism, and it has left judges and scholars alike in a position of jurisprudential incoherence. This article demonstrates the ambivalence of modern interpretive theory and then offers some initial thoughts on the harms of this ambivalence to the rule-of-law values that both sides are trying to advance.