Turning Unambiguous Statutory Materials into Ambiguous Statutes: Ordering Principles, Avoidance, and Transparent Justification in Cases of Interpretive Choice

How should courts handle interpretive choices, such as when statutory text strongly points to one statutory meaning but strong evidence of legislative intent suggests a contradictory statutory meaning? Courts have addressed this longstanding dilemma inconsistently. Sometimes courts follow statutory text over contradictory legislative intent; sometimes they do the exact opposite. Though reaching contradictory conclusions, many courts facing interpretive choices have argued that the law of interpretation provides definitive solutions.

This Article argues that the opposite is true: the law of interpretation generates, rather than resolves, interpretive choices. When this occurs, legally unconstrained judicial discretion and extralegal factors, rather than the law of interpretation, determine legal meaning. While other scholars have focused on the role of judicial discretion in shaping legal meaning, their analyses invariably have centered on inherently ambiguous legal texts or legislative histories. This Article, by contrast, demonstrates how, in cases of interpretive choice, unique features of the law of interpretation turn unambiguous legal texts and legislative histories into ambiguous statutes.

This Article also explores how courts facing interpretive choices misrepresent the nature and capacity of the law of interpretation. Rather than acknowledging the central role of judicial discretion and extralegal considerations, courts argue that the law of interpretation definitively resolves interpretive choices. Rule-of-law values and the consonant desire to preserve the legitimacy of judicial decisionmaking prompt courts to opt for this obfuscatory strategy. This Article, however, offers an alternative strategy—transparent justification—and explains why the case in favor of transparent justification is much stronger than most might imagine.