Title

Lawyers, Guns and Money: Content Contextualism and the Cognitive Foundations of Statutory Interpretation

Abstract

The field of statutory interpretation is one of central importance to both lawyers and judges, perhaps even more central to their daily work than the analysis of appellate opinions. As a field of academic inquiry, however, the field has become rather stagnant and seems now at a stalemate between contending schools of thought, with most siding against the pure forms of textualism sometimes associated with Justice Scalia and arguing for some form of contextualism. What kinds of context should matter is disputed. Thus far, however, scholars have paid remarkably little attention to one crucial contextual factor: What is the statute about? What domain of human activity does the law seek to regulate? Justice Scalia urges courts to attend to the plain language of a statute -- any statute -- in order to encourage legislators to clearly say what they mean. This argument is easier to sustain in substantive areas where great precision is obtainable. But should legislatures be barred from acting in substantive areas where precision in very difficult? Legal scholars have acknowledged, then turned away from, this question. This is so in part because scholarship in this area has not thus far taken account of advances in cognitive science and communications theory. In this article I explain how the cognitive science of categorization, along with signal detection theory and complexity theory, allow us to compare substantive domains according to the degree of difficulty in legislating in them, by establishing a metric for the theorization of a substantive domain.

The implications of this approach extend well beyond informing the process of drafting legislation. The theoretical foundations of statutory interpretation depend on unspoken, and often incorrect, assumptions about the possibilities of precision in crafting statutes. Once statutory interpretation is understood as an inevitably human process, relying on the tools of human cognition and categorization, the field of statutory interpretation itself might be reconstructed on a more solid, even scientific, foundation.

Disciplines

Jurisprudence | Law and Psychology

Date of this Version

March 2004