Interpretive choice

How should judges choose doctrines of statutory interpretation? Judges expl icitly or implicitly choose interpretive doctrines-canons of construction, rules governing the admissibility and weight of extrinsic sources, and rule s about the force of statutory precedent. Interpretive choice presupposes b oth a theory of statutes' political authority and an empirical assessment o f the competence of interpreters, the benefits of rules and standards, and the interaction of lawmaking institutions. In this Article, Professor Adria n Vermeule notes that all this is widely accepted, but argues that scholars hip to date has overlooked the central dilemma of interpretive choice: The empirical assessments needed to translate theories of statutes' authority i nto operative doctrine frequently exceed the judiciary's capacity. Many of the relevant questions are empirical but unanswerable, at least at acceptab le cost; moreover, judges can neither conduct necessary experiments nor suc cessfully assimilate information provided by outside institutions. Judges f aced with problems of interpretive choice must therefore apply standard dec isionmaking strategies of choice under irreducible empirical uncertainty, s trategies derived from decision theory, rhetoric, and other disciplines. Th is Article applies these strategies to three standard doctrinal problems-th e admissibility of legislative history, the choice of interpretive canons, and the force of statutory stare decisis. It concludes that judges should e xclude legislative history, should pick between canons rather than debating their relative merits, and should observe an absolute rule of statutory st are decisis. In short, judges should embrace a formalist approach to statut ory interpretation, one that uses a minimalist set of cheap and inflexible interpretive sources.