The History of Statutory Interpretation: A Study in Form and Substance
![handle is hein.journals/cdozo6 and id is 809 raw text is: THE HISTORY OF STATUTORY
INTERPRETATION: A STUDY IN FORM
AND SUBSTANCE
William S. Blatt*
A history of statutory interpretation has yet to be written, either
for the civil or the common law.'
Max Radin's observation of 1942 remains true today. Although
the process of statutory interpretation has received considerable atten-
tion, its history has not. Courts and commentators generally view the
field as ahistorical, consisting of a few timeless rules.2
Perhaps this lack of appreciation is related to the modem con-
sciousness of the tension between form and substance. Formal justice
is associated with rules that are based on ascertainable facts, restrain
official arbitrariness, and provide certainty. Substantive justice is as-
sociated with standards that direct courts to assess a particular fact
situation in terms of the overall objectives of the legal order. In the
modem consciousness, neither form nor substance emerges com-
pletely triumphant. Jurists shift from one mode to another depending
on the facts before them.3
The choice of form and substance is confronted whenever a court
encounters a statute. In the realm of statutory interpretation, formal
* B.A., 1978, Dartmouth College; J.D., 1982, Harvard University; member of the New
York and Washington, D.C. Bars. The author is associated with the firm of Morgan, Lewis &
Bockius.
I would like to express my gratitude to Duncan Kennedy for his constant encouragement
in preparing this Article and to Judge Antonin Scalia for his thoughtful criticism, as well as to
Reed Dickerson, Mark Helm, James Kainen, Christine Littleton, Susan Nash, Roger Pies,
Vicki Schultz, Stephanie Seligman, and Paul Shechtman for their comments. The errors of the
Article remain mine alone.
I Radin, A Short Way with Statutes, 56 Harv. L. Rev. 388, 424 (1942) [hereinafter cited
as Radin, Short Way].
2 For instance, the plain meaning rule, disavowed in 1940, United States v. American
Trucking Ass'n, 310 U.S. 532, 543-45 (1940), has reappeared in recent opinions of the federal
courts. See, e.g., Globe Seaways, Inc. v. Panama Canal Co., 509 F.2d 969, 971 (5th Cir. 1975);
see Murphy, Old Maxims Never Die: The Plain-Meaning Rule and Statutory Interpretation
in the Modern Federal Courts, 75 Colum. L. Rev. 1299 (1975). Likewise, the maxim expres-
sio unius est exlusio alterius (mention of one thing implies exclusion of another thing) peri-
odically disappears and reappears. See Posner, Statutory Interpretation-in the Classroom
and in the Courtroom, 50 U. Chi. L. Rev. 800, 813 (1983) [hereinafter cited as Posner, Statu-
tory Interpretation].
3 See Kennedy, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685,
1701 (1976).](ViewImageLocal?handle=hein.journals/cdozo6&div=39&collection=&method=preview&ext=.png&size=3)
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The History of Statutory Interpretation: A Study in Form and Substance
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