By Jonathan R. Siegel. Full text here.
Professor Adrian Vermeule’s new book, Judging Under Uncertainty, argues that while no one can empirically determine whether any net benefits arise from judicial use of legislative history or other interpretive methods that go beyond simple enforcement of plain text, such interpretive methods do impose substantial costs. Vermeule concludes, therefore, that courts should discard such interpretive methods. This Article suggests, first, that the extent of the costs incurred as a result of applying interpretive methods other than simply enforcing plain text is far from clear. This Article also suggests that it is uncertain whether discarding such methods would result in any cost savings. First, costs would remain if only some judges adopted Professor Vermeule’s theory. Second, even if all judges adopted it, cost savings from the use of simpler interpretive methods might be offset by other, new costs that produce absurd results, like those imposed by the judicial enforcement of clear but erroneously drafted statutory text. Finally, this Article argues that there are institutional reasons to believe that courts do get net benefits from methods that permit them to look beyond plain statutory text in some cases; most notably, the fact that courts interpret statutes at the moment of implementation puts them in a good position to detect statutory drafting errors. For these reasons, this Article recommends against adoption of Professor Vermeule’s interpretive theory.