Vol. 10 No. 1 (January 2000) pp. 20-23

STATUTES IN COURT: THE HISTORY AND THEORY OF STATUTORY INTERPRETATION by William D. Popkin. Durham: Duke University Press, 1999. 340 pp. Cloth $54.95.

Reviewed by R. Shep Melnick, Department of Political Science, Boston College.

In the opening paragraph of STATUTES IN COURT, William Popkin cites Justice Benjamin Cardozo's warning that "no man can make [statutory construction] interesting." Popkin, a law professor at Indiana University, struggles mightily to prove Cardozo wrong by adding "a sense of historical perspective" to the study of statutory interpretation. The first half of his book provides a concise history of statutory interpretation from the English common law courts of the 16th century to the American Supreme Court of the 1960s. The second half examines competing contemporary approaches to statutory construction, pointing out the limits of both Justice Antonin Scalia's textualism and William Eskridge's "dynamic" interpretation.


Popkin explains from the outset that his book "is dominated by one major idea and one major thesis." The idea is that when judges interpret statutes, they cannot simply carry out policies established by legislatures. Since the meaning of statutory language and the intent of legislators are often unclear, judges have no choice put to exercise discretion. The law, Popkin maintains, "is an overarching concept (what Guido Calabresi calls a legal landscape or broader fabric of the law) into
which all specific sources of law must fit" (p. 2). Much of the history in the book is designed to demonstrate that textualism, which tries to deny or minimize judicial discretion, is inconsistent with the Anglo-American legal tradition.

Popkin's "major thesis" is that "the best perspective for understanding the discretionary judicial role is an understanding of `ordinary judging,' whereby judges indulge a modest competence to contribute to good government." "Ordinary judging" seems to mean that judges should use common sense in balancing respect for the letter of the law with concern for its spirit and purpose. This may be good advice, but it is not a particularly compelling theory. Despite the fact that Popkin devotes a
chapter to "ordinary judging," by the end of the book it is still not clear what the term means.

Popkin's 150-page review of statutory interpretation in England and America does not pretend to be comprehensive. Rather, it seeks to buttress two claims. The first is that judges and commentators have always consulted BOTH the letter and the spirit of the law. William Blackstone and John Marshall might at times sound like modern "textualists," but they understood that "equitable interpretation" must at time supplement and soften rigid textualism. In his effort to prove that "textualists" are bucking rather than following tradition, Popkin has a tendency to minimize judges' efforts to understand and follow statutory language and to highlight their occasional departure from literal interpretation.


His second claim is that purposive or equitable interpretation has not undermined the role of the legislature or threatened representative government. He paints judges

Page 21 begins here

and legislatures as engaged in a "collaborative lawmaking venture" (p. 228) rather than locked in political combat. English judges who asserted that the common law was superior to laws passed by Parliament did not really threaten the power of Parliament. Not only were these laws narrow and rare, but also Parliament and the judiciary found a common enemy in the crown. Although the American Revolution unleashed hostility toward judges and the common law, the Constitution (and constitutional revision at the state level) restrained legislatures and empowered judges. During the first half of the nineteenth century leading commentators such as Joseph Story and James Kent remained suspicious of legislatures, but judges were cautious about confronting popularly elected representatives in democratic
America.

Of course, by the end of the nineteenth century, the "collaboration" between judges and legislatures often turned into open combat. Judges armed with the canon that "statutes in derogation of the common law should be narrowly construed" frequently emasculated legislation designed to protect workers, children, consumers, and women. The famous battle between reformers and judges--a struggle that did not end until 1937 -- creates a delicate problem for Popkin. On the one hand, he disapproves of the judges' policies. On the other hand, he does not want to admit that judicial discretion is subject to terrible abuse or that strong-willed
judges can escape popular control for decades.

Popkin first tries to escape this bind by arguing that the judges' decisions were not as pernicious as their rhetoric. The numerous examples he offers, though, tend to undercut his sanguine evaluation. Popkin's fallback position is that such decisions "were well within the legitimate interpretive boundaries, even if we would consider them wrongheaded" (p. 100). Yet previously he had argued that students of statutory interpretation should forget about legitimacy and focus instead on the
capacity of judges to make good policy. In his effort to defend the prerogative of progressive judges in the second half of the twentieth century, Popkin because a reluctant apologist for their reactionary predecessors.

Popkin argues that in the twentieth century American judges came to terms with the "statutification" of the law and eventually adopted a robust form of purposivism: "The dominant practice was to extend statutes to achieve their purpose . . . rather than to limit statutes to preserve the common law" (p. 115). He supports this proposition by examining the writing of Roscoe Pound, Oliver Wendell Holmes, Learned Hand, and Felix Frankfurter, all of whom he describes as cautious, restrained, even self-doubting purposivists. Where, then, do we find the "full-bodied version of purposivism" that Popkin claims characterizes the modern approach? He offers two examples: a dissenting opinion in a minor 1945 Supreme Court case and the long-unpublished 1958 Hart and Sacks Legal Process materials.

If purposivism has been so dominant, why can't Popkin give us more examples of how it works in practice? Why does the book's doctrinal protagonist appear on stage only slightly more often than Godot? I suspect that one reason is that "full-bodied purposivism" is not a characteristic of the twentieth century generally, but only of the go-go days of the Warren Court.

Moreover, to offer examples of "full-bodied purposivism" is to demonstrate just how controversial it can be. Recent examples of purposive interpretation include a variety of decisions to expand environmental regulation, to increase federal control over welfare

Page 22 begins here

programs, and to expand affirmative action as most notoriously in the WEBER case (1979). The more closely one looks at examples of purposivism, the clearer it becomes that judges have selected from a variety of competing legislative purposes, arbitrarily enshrining but one. It is thus safer to defend the doctrine in the abstract.

The final hundred pages of STATUTES IN COURT are devoted to a critique of the interpretive theories of contemporary law professors and to Popkin's
effort to explain his theory of "ordinary judging." His criticisms of the "law and economics" approach of Judge Frank Easterbrook and the "civil republican" models of Frank Michelman and others are sensible and convincing. The alternative he proposes is commendably modest but consistently murky.

Political scientists will find Popkin's history of statutory interpretation illuminating but surprisingly apolitical. For example, there is no discussion of Franklin Roosevelt, the New Deal, or the Revolution of 1937. Nor is there any mention of divided government in the 1970s and 1980s or of the resulting bitter competition between Congress and the president. If, as Popkin maintains, statutory interpretation constitutes collaboration between judges and legislators, where does this
leave Presidents Nixon, Reagan and Bush -- or President Clinton? Outnumbered, it would seem. One reason statutory interpretation has seemed so uninteresting is that law professors tend to leave out the most intriguing parts of the story.

Popkin's book sheds light not just on the history of statutory construction, but on the peculiar way law professors and judges tend to think about the subject. I am particularly struck by one omission: Popkin says virtually nothing about the interpretive role of administrative agencies. Today bureaucrats do not judges most interpretation of most statutes. Yet Popkin insists that "judges are uniquely situated to consider how best to fit statutes into the broader temporal evolution of the law."
"No other institution but the judiciary," he argues, "can perform this function with the sustained attention to the complexities of applying law to particular cases" (pp. 210-11). How can he know this without comparing courts with agencies? Why does he assume that generalist judges understand these complexities better than specialized administrators? His Constitution apparently provides for only two branches of government -- no president, no bureaucracy. I suppose this is an improvement on the nineteenth century, when lawyers were loath to recognize the legitimacy of the legislative branch as well.

Popkin's book also vividly illustrates the law professor's conceit that the law is a finely woven "fabric" and that lawyers are particularly attuned to the direction of progress. Time and time again Popkin speaks of "fitting statutes into the broad legal fabric" and into the "past and future." One finds similar claims sprinkled through the work of Calabresi and Eskridge. Perhaps because I have not had the privilege of receiving a law school education, I have no idea what these words mean. The
proliferation of state and federal statutes (and administrative regulations and executive orders and court rulings . . .) makes the concept of THE law virtually meaningless. That, of course, is the appeal -- and the danger -- of the refrain: "fitting a statute into the legal landscape" allows judges to do almost anything they want.

Similarly, Popkin argues that judges should "look to the future" and adapt old statues to new trends. This was the argument the Warren Court used to justify a novel reading of the AFDC statute that reduced the authority of the state and removed behavioral requirements on welfare. But wait. The


Page 23 begins here

"future" now seems to belong to the Republicans -- to devolution and "tough love" on welfare. Does Popkin mean that judges should now adopt a states-rights, punitive reading of welfare statutes? Probably not, since he tends to equate "progress" with using the power of the federal government to promote social and economic equality. In other words, promoting progress means siding with the liberals.

Political scientists can read this book both to learn about the history of statutory interpretation and to understand the distinctive worldview of law professors. However, in the interest of consumer protection, this product should be sold with a disclaimer: "explicit discussion of politics not included."

CASE REFERENCE:

United Steelworkers of America v. Weber, 444 U.S. 193 (1979).