Decision Theory and Babbitt v. Sweet Home: Skepticism About Norms, Discretion, and the Virtues of Purposivism

In this writing, I apply a “decision theory” of statutory interpretation, elaborated recently in the Yale Law Journal, to Professor William Eskridge’s illustrative case, Babbitt v. Sweet Home Chapter of Communities for a Great Oregon.[1] In the course of this application, I take issue with the conventional wisdom that purposivism, as a method of statutory interpretation, is inevitably a more virtuous model of statutory interpretation. First, I question whether we have a clear enough jurisprudential picture both of judicial discretion and legal as opposed to political normativity. Second, I argue that, under decision theory, Sweet Homeis a far easier case than either Justice Stevens’s or Justice Scalia’s opinions reveal. Finally, I critique both opinions for failing to rely on norms borrowed from Congress’s actual decisions in the 1982 Endangered Species Act Amendments.

The question then, is not “norms or not,” but whose norms, Congress’s or the courts’, should apply. [1]. 515 U.S. 687, 688, 708, 714 (1995). Justice Stevens wrote for the Court, with Justice Scalia in vigorous dissent. Justice O’Connor concurred.