Abstract
Among Geoffrey Marshall’s many contributions are his various writings on the legislative process and statutory interpretation.1 I have, over the years, learned much from him about statutory interpretation, beginning with that session of Hilary Term twenty-five years ago when he and I jointly taught a class on statutory interpretation at The Queen’s College. It is, for me, a privilege, and a special honor, to have this opportunity to join in a tribute to him and to his work, as he becomes 70.
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Notes
See, e.g., Geoffrey Marshall, Hansard and the Interpretation of Statutes, Parliament and the Law ed. G. Drewry and D. Oliver (Butterworths 1998); Robert S. Summers and Geoffrey Marshall, The Argument from Ordinary Meaning in Statutory Interpretation, 43 No. Ireland L. Quarterly 213 (1992).
[1993] A.C. 593.
See, e.g., Schwegmann Bros. v. Calvert Distillers Corp. 341 U.S. 384 (1951); United States v. Public Utilities Commn. 345 U.S. 295 (1953).
See, e.g., T.W. Merrill, Textualism and the Future of the Chevron Doctrine, 72 Washington U. Law Quarterly 351,355 (1994).
For a concise summary of Justice Scalia’s objections, in his own words, see A. Scalia, A Matter of Interpretation 14–37 (Princeton, 1997). See especially Justice Jackson’s opinion in Schwegmann Bros, supra note 3, at 395.
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 412 n. 29 (1971).
“In most states, it is virtually impossible to collect the necessary documents for a simple legislative history outside of the state capitol or its legislative library. Debates are almost never published, bills are usually available only at the legislature and during the session itself, committee reports are published in only a few states and hearings even less often.” Morris L. Cohen, Robert C. Berring, Kent C. Olson eds., How To Find the Law 257 (St. Paul 1995). The authors of another research book describe the process this way: “Attempting to compile a legislative history for a state law in a manner similar to... federal laws is often difficult and, at times, impossible. As a general rule, state legislatures do not publish their debates, committee reports, or transcripts of hearings held before legislative committees.” J. Myron Jacobstein, Roy M. Mersky, Donald H. Dunn eds., Fundamentals of Legal Research 244 New York (1994).
Or, as another scholar has recently said: “But in New York and likely other states as well, legislative history is relatively sparse with legislative intent evidenced primarily by the language of the statute itself. Rarely is a committee report available.” Judith S. Kaye, State Courts at the Dawn of a New Century: Common Law Courts Reading Statutes and Constitutions, 70 New York U. Law Rev. 1, 29 (1995) (emphasis added).
[1993] A.C. at 614.
Just what a general methodology should look like, overall, has not commanded much scholarly attention. In one conception, well known in scholarly circles in the U.S.A., all modes of interpretive argument are collapsed into one overall “purposive” approach. See H.M. Hart, Jr. and Albert M. Sacks, The Legal Process 1374–80 (Foundation Press 1994). Although on my own approach, I would accord “top-rung primacy” to what Geoffrey Marshall and I call the argument from ordinary meaning (and its variant, technical meaning), I would leave distinct places in the methodology for a number of other modes of interpretive argument, most of which are introduced later in this essay. A comprehensive methodology would include other elements, as well.
See, e.g., Church of the Holy Trinity v. United States, 143 U.S. 457 (1892); American Trucking Ass’n v. United States, 310 U.S. 534 (1940); Perrin v. United States, 444 U.S. 37 (1979).
See, e.g., Iowa Code Ann. s 4.6 (West 1989) Minn.Stat.Ann. s 645.16 (West 1983) 1 PA.Cons.Stat.Ann. s 1921 (c) (1983).
Robert S. Summers and Geoffrey Marshall, The Argument from Ordinary Meaning in Statutory Interpretation, 43 No. Ireland L. Quarterly 217–19 (1992).
John F. Manning, Textualism as a Non Delegation Doctrine, 97 Columbial. Rev. 673 (1997).
Schwegmann Bros., supra note 3, at 396.
Scalia, supra note 5, at 34.
Pepper, [1993] A.C., at 617 and 633.
Ibid.
Rodrigues v. United States, 480 U.S. 522 (1987).
Board of Governors of Fed. Reserve Sys. v. Dimension Fin. Corp., 474 U.S. 361,373–74 (1986).
Summers and Marshall, supra note 12, at 230–31.
See, e.g., Pepper, [1993] A.C., at 617 and 633.
Scalia, supra note 5, at 36. A term, incidentally, is a year.
Summers and Marshall, supra note 12, at 217–19.
Id. at 224.
Pepper, [1993] A.C. at 617 and 633.
Summers and Marshall, supra note 12, at 215.
Pepper, [1993] A.C. at 617 and 633.
Hart & Sacks, supra note 9, at 1378.
Pepper, [1993] A.C. at 618.
P.S. Atiyah and Robert S. Summers, Form and Substance in Anglo-American Law, passim (Oxford, 1991).
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Summers, R.S., McRoberts, W.G., Goodhart, A.L. (2000). Interpreting Statutes — Should Courts Consider Materials of Legislative History?. In: Essays in Legal Theory. Law and Philosophy Library, vol 46. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-9407-3_11
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