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107 Iowa L. Rev. 1389 (2021-2022)
Probabilism in Legal Interpretation

handle is hein.journals/ilr107 and id is 1441 raw text is: Probabilism in Legal Interpretation Alex Stein* ABSTRACT: This Article develops a novel theory of statutory and constitutional interpretation, conceptualized as probabilism. Probabilism views legal rules as a communication coming from the lawmaker. What this communication says is an empirical fact that judges need to uncover. To that end, judges must consider all relevant evidence, identify every plausible meaning of the underlying statutory or constitutional provision, determine the probability that the provision's drafters have chosen its wording to communicate the meaning under consideration, and, finally, adopt the meaning most likely to be factually correct. By following this approach, judges will maximize the accuracy of their interpretive decisions and fulfill their mission as faithful agents of the legislature and the people. The Article explains how probabilism works, illustrates the theory through celebrated court decisions, and outlines its advantages over textualism, intentionalism, and other schools of legal interpretation. I. INTRODUCTION ........................................................................1390 II. INTRODUCING PROBABILISM .......................................................1399 A. STANDARD OF PROOF.............................................................1401 B . TIEBREAKERS........................................................................1404 C. LANGUAGE, FAMILY RESEMBLANCES, AND OTHER E VDEN CE..............................................................................1407 * Justice of the Israel Supreme Court. I am grateful to Daphne Barak-Erez, David Cheshin, Gideon Parchomovsky, Rinat Sangero-Kitai, participants in the seminar on judging at the Hebrew University of Jerusalem School of Law, and colleagues who attended my lecture on statutory interpretation at the Center for Judicial Training and Education for helpful input. A point of disclosure: I actually practice probabilism. See, e.g., PCA i oo1 / 17 Meytal Engineering & Services Co. v. Salman (Isr. Sup. Ct. 19.8.2019) (Hebrew) (Stein,J., concurring) (using legislative background, drafters' intent, choices of words in parallel statutes, and other relevant evidence to determine the most probable meaning of the word product in a statute prohibiting discrimination in sales of products and whether it includes real estate as well); PAA 2283/18 Zoning and Planning Comm. of Tel Aviv v. Yad Charuzim Properties Ltd. (Isr. Sup. Ct. 1.1.2019) (Hebrew) (Stein,J., concurring) (accounting for legislative background, statutory language, history, and purpose to determine the most probable meaning of the word appreciation in a statute imposing land appreciation taxes upon property owners realizing building rights). 1389

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