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66 UCLA L. Rev. 346 (2019)
Statutory Interpretation as "Interbranch Dialogue"?

handle is hein.journals/uclalr66 and id is 364 raw text is: Statutory Interpretation asInterbranch Dialogue? James J. Brudney & Ethan J. Leib ABSTRACT Much in the field of statutory interpretation is predicated on interpretive dialogue between courts and legislatures. Yet, the idea of such dialogue is often advanced as little more than a slogan; the dialogue that courts, legislators, and scholars are imagining too often goes unexamined and underspecified. This Article attempts to organize thinking about the ways participants and theorists conceive, and should conceive, of interbranch dialogue within statutory interpretation. The Article itself proceeds by using a dialogic and dialectical method. It first develops various positions against interbranch dialogue. By invoking arguments from textualism, public choice, and positive political theory, it advances the position that dialogue should not animate thinking in statutory interpretation. With that auspicious start, the Article then explores in conceptual and descriptive terms what would count as true dialogic activity. Interbranch dialogue is not reducible to mere textual pronouncements or anticipatory signaling efforts. Rather, it is best understood as responsive communication between the two institutions, in which each party listens to, takes seriously, and values what the other party says and thinks, even if there is disagreement on particular interpretive outcomes or their implications. This communication may emerge in unscripted or unanticipated terms or it may flow more formally from mechanisms designed to generate responsive exchange. The Article highlights and examines numerous modes of dialogue that are initiated by the legislature and also by the courts, using examples from both federal and state levels. The Article concludes by rehabilitating and rejuvenating the dialogue model in normative terms, drawing interbranch dialogue back to its legal process roots and revealing its links to more contemporary deliberative democratic theory. AUTHORS James J. Brudney is the Joseph Crowley Chair in Labor and Employment Law at Fordham Law School. Ethan J. Leib is the John D. Calamari Distinguished Professor of Law at Fordham Law School. Thanks to Corey Brettschneider and Andrew Kent for early leads and careful engagement about this project-and to Judge Frank Easterbrook and Sean Griffith, whose suspicion of the concept of interbranch dialogue really got us going. Participants in the 2017 Fordham Faculty Retreat helped us refine our subject. The Honourable Frank Jacobucci, Jeb Barnes, Seyla Benhabib, Aaron-Andrew 66 UCLA L. REv. 346 (2019)

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