Article Review: Do Theories of Statutory Interpretations Matter?

Satwik Singh


Editor’s Note: The author analyses Daniel A. Farber’s article on ‘Do theories of Statutory Interpretations matter?’”


In this article the author Daniel A. Farber deals with one of the most oldest and significant debates of the Jurisprudential world. The debate is between the positivist school of thought and naturalist or pragmatic school of thought. The debate being that whether the law “is” or whether the law is something that is “ought to be”. The author also believed that this area of statutory interpretation was not such an important topic but in the present time this area has been well debated and talked about, though he believes that the debate still has substantial gaps to be filled. To show the debate between the two schools of thought the authors has researched into the decisions given by two judges who are the forerunners of the respective schools of thought. The two distinguished judges who are on the forefront of the theoretical debates, and used by the author of this article to substantiate his arguments are Richard Posner and Frank Easterbrook[1]. In terms of their theoretical writings and stances about statutory interpretation, Justice Posner is a leading pragmatist and Justice Easterbrook is a leading positivist and thus they far apart in their understanding of statutory interpretation since they are supporters of two completely different methods of statutory interpretation. The author in this article has reviewed judgments in which these two judges differed and also some cases where they agreed. The main aim for the research of the author in this particular topic is that he wanted to see whether having two completely different viewpoints affected the judgments or not. And if there was an effect, what was the extent of it. In the article the author has analysed four main cases in details in which he tests the theories of interpretation. The author also mentions the reasons for choosing these judges for his article or the subject of his research. The author mentions that the primary reason is that these two judges sit in the same court and secondly these judges are very intelligent and use their wits to deal with subjects which are quite humdrum in nature. The author also says that it was possible for him to see the connection between the theories of statutory interpretation and the outcomes in actual cases.


The author Daniel A Farber begins the article by defining the different concepts of statutory interpretation. He points out that this practise allows him to provide a nice introduction to the article besides introducing the concepts to new readers and scholars. The author says that after looking at the judicial work of two leading participants in these debates, an important question that arises is that whether the conventional or normal understanding of the formalism/pragmatism dispute really does justice to the complexity and subtlety of their views about statutory interpretation, which is revealed in their actual judicial practice. The author also points out that generally we tend to oversimplify the theories to which we don’t subscribe to.

The author begins by describing the theory of formalism. Formalism or positivism according to the author and other proponents stress and give importance to the fact that in a democracy, the policy making and the law making is the domain of the legislature. The judiciary’s role is to apply the statutes as they are in their original form. The proponents of this theory believe that the judges should not be bothered with the legislative intent and the statutory purposes behind the statute. They should also refrain from adapting the statutes to the needs of changing times. They stand for clear separation of powers between the legislature and judiciary. They give a reason for pointing out the reason for asking the judges not to be bothered with the legislative intent behind a statute. The author points out that positivists like Easterbrook, believe that the concept of legislative intent is incoherent and not logically holding. They correctly point out that the legislature being a collective body, have members often in disagreement   with each other and hence they do not have any coherent set of preferences. The author points out that most statutes are often the result of a deal between opposing interests.  “Legislation is compromise. Compromises have no spirit; they just are[2].” Easterbrook points out that in case there is a gap in the legislation, the best way to correct is by creating a new statute rather than relying on judges to fill up the gap. He said that if the desired effects do not come out of the legislation, then the legislature is free to legislate again.

This has been described by Easterbrook as, a “relatively unimaginative, mechanical process of interpretation[3]”.  He goes on to further add that only then it “can be reconciled with the premises of democratic governance[4].” The author also gives a reason as to why the legislature has to draft statutes in a very concise and careful manner, he says that courts generally interpret the statutes in a plain manner and hence it is the legislature’s job to draft a very good statute[5]. This is the true functioning of democracy[6].

After describing the concept and the logic of the proponents of the theory, the author has turned to the criticism of the theory by different legal luminaries. One of the main critics of the theory is Posner who defends more pragmatic methods of statutory interpretation[7]. The author makes the point that the formalist theories are attacked by the pragmatists on all areas. They say that the positivists misuse the theory by usage of plain language in the interpretation of statute which becomes ambiguous and internally incoherent.

In the next part of the article, Daniel Farber introduces the other school of thought to the readers. This other school of thought is that of the pragmatists. The author starts this part of the article by saying that the pragmatic school of thought is seemingly very popular and lots of jurists support this school of thought but for the purpose of this article he will only be concentrating on Justice Posner. Justice Posner is a very ardent supporter of pragmatism and he says he seeks to “strip away the conventional verbiage in which the issues come wrapped[8]” and instead looks for “the actual interests at stake, the purposes of the participants, the policies behind the precedents, and the consequences of alternative decisions.[9]” Though the Judge concedes that for the sake of social interest and legal obligation he has to give decisions in close contact with the legal text and judicial precedents. The judge states that it is not improper if the judges are given the responsibility of resolving disputes in such a way that does not only depend on the text formulated by the legislature or on their own previous decisions. The judge maintains that this allows the judiciary to use the constitution as a kind of putty to fill up some of the embarrassing legal loopholes that may exist in the political framework of the society. The author has given a very beautiful example to show the how the pragmatists and positivists feel when they differ on a decision.

He gives the example of how, “a pragmatist judge would not stomach a sentence of life without parole to a sixteen-year old who sold a single marijuana cigarette. All this, of course, is the worst form of heresy to formalists[10].” The major advantage of pragmatism is that it considers the different needs that occur due to the changing time. They make room for the changing interpretation of statutes for the concept of justice, thereby making it more dynamic than static. The author also mentions the viewpoint of Bill Eskridge who is a leading jurist supporting pragmatism. He mentions that there is nothing new about pragmatism, he also mentions that it is impossible for a legal system to function without some degree of dynamic interpretation. As usual there is a response by the proponents of the positivist school of thought. They reply in a predictable but logically powerful way that “it is up to the legislature and the executive to make policy judgments and adapt legal rules to changing times. It is up to unelected judges to follow the rules laid down for them[11]”.

The author now comes to the next part of the article where he discusses the four main cases that were judges by these two proponents of the two main schools of thought. He has very interestingly named this part of his article as the battle of the titans. This is the part where he tries to find the answer to the very important question that he has asked in the beginning that whether the different theories of statutory interpretation really matter when the cases are actually brought for decision, that is how is theory that we read in books are actually played out in the real world or practise. The four cases that the author has chosen to substantiate the debate are again divided in two headings. The first two cases are clubbed under a heading called Two Civil Actions. For the purpose of this article review I am going to give the brief facts of the cases highlighted by the author and then point out the main arguments given by Justice Posner and Justice Eastbrook in each of the cases in a concise manner.


The author has provided a heading for this case, he calls it the case of fictitious insurance. The actual name of the case is “Adams v. Plaza Finance Co.”[12]

Adams was a class action brought under the Truth in Lending Act(TILA), the federal statute mandating consumer credit disclosures. The statute requires some loan expenses to be added into the annual percentage rate (APR) disclosed to the consumer, while other expenses can be added to the “amount financed,” thereby lowering the apparent interest rate. The judges’ position on this case has been very aptly shown by the author of the article who in this regard mentions that “It will probably come as little shock to learn that Easterbrook, the formalist, opted for form over substance, while Posner stressed the economic realities of the transaction[13]”.  Posner’s argument is based on common sense which is why it finds support from the third judge on the panel, whereas Eastbrook’s position is of no surprise, he gives a very subtle argument that form over substance does not hold much importance in this case. The interesting part of this case is rightly pointed out by the author who writes that Eastbrook’s argument is much more pragmatic than one might have expected. His analysis does not quite fit his own description of formalism as a “relatively unimaginative, mechanical process of interpretation.”


The second case analysed by the author is the case called “Wisconsin Knife Works v. National Metal Crafters[14]”.This case has a very complex set of facts, which need not be deliberated upon. It will be more productive to analyse the arguments of the two judges in this case. In this case Posner wrote for the majority and surprisingly made an effort to come to the terms with the text of the statute in the deciding the case. Easterbrook gives a very fine legal argument which is consistent with his views on formalism and positivism. The author argues that in this case posner presented a more aggressive view of common law development in this case. Also the two judges were on the opposite side in their judgment in consonance with their different view on the theory of statutory interpretation.


The next two cases are clubbed under the heading of Drug Wars. The first case in this regard is the case of “United States v. Pino-Perez[15].

 In this case the matter of contention is a federal statute which imposes draconian penalties on “kingpins” who manage drug-dealing organizations[16]. Under section 2 of the federal criminal code, anyone who aids and abets a federal crime can be punished as if they themselves had committed that crime[17]. Logically, this section meant that people who merely assist a kingpin can be punished as if they themselves were kingpins. But this seems to make no sense, because it would mean that everyone connected with drug rings receives the same high punishment, which completely nullifies Congress’s apparent desire to impose higher punishment on the managers. “Plainly, Congress could not have intended to punish all participants equally, or it would not have singled out managers. For this reason, the government conceded that the kingpin’s employees could not be punished as aiders and abetters[18]”. The author has very rightly mentioned that this case served the perfect test of statutory interpretation. And this case is very interesting because “It is Posner who comes out for a literal reading of the text, while Easterbrook calls for pragmatic good sense[19]. It is very interesting to note that “Easterbrook the textualist begins his analysis by arguing that “statutory texts cannot dispose of the case.[20]” Thus the author shows that how conveniently in the case that was supposed to bring out their loyalty to their cause, they completely changed their position for this case. The research till now suggests that there is no direct connection between the theory and practise of theory of statutory interpretation.


The author has concluded the article by giving different statistics of different judgments that these two judges gave together. He makes the point through empirical data that different believers of the different school of statutory interpretation do not actually differ much in actual practise. In some cases the judges actually give the decision based on completely different school of thought to which they subscribe to. Personally I found this article very well written and very well researched, which cleared some concepts of mine, however the cases which he has discussed in detail are difficult for students to understand fully due to the extremely technical concepts of American Law that the author has used.

Edited by Amoolya Khurana

[1] An empirical study lists Posner and Easterbrook among the five most prestigious federal circuit judges in the United States as measured by references to them by name in the opinions of other judges. See David Klein & Darby Morrisroe, The Prestige and Influence of Individual Judges on the U.S. Courts of Appeals, 28 J. LEGAL. STUD. 371, 381 (1999).

[2] Easterbrook, Text & History, supra note 13, at 68.

[3] Easterbrook, Text & History, supra note 13, at 67.

[4] Easterbrook, Text & History, supra note 13, at 63.

[5] See Note, Why Learned Hand Would Never Consult Legislative History Today, 105 HARV. L. REV. 1005, 1022 (1992).

[6] See United States v. Taylor, 487 U.S. 326, 345-46 (1988) (Scalia, J., concurring in part).

[7] For Posner’s critique of textualism, see RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 262-69 (1990).

[8] POSNER, supra note 10, at 208-09 (paraphrasing a suggestion by Paul Freind as quoted by Mary Ann Glendon).

[9] Ibid

[10] Daniel A. Farber, Do Theories of Statutory Interpretation Matter–A Case Study, 94 Nw. U. L. Rev. 1409 (1999),Available at: <>

[11] Ibid

[12] 168 F.3d 932 (7th Cir. 1999).

[13] Ibid

[14] 781 F.2d 1280 (7th Cir. 1986).

[15] 870 F.2d 1230 (7th Cir. 1989) (en banc). For a perceptive commentary on the case, see Sharon C. Lynch, Comment, Drug Kingpins and Their Helpers: Accomplice Liability Under 21 U.S.C. Section 848,58 U. CHI. L. REv. 391 (1991).

[16] See 21 U.S.C. § 848 (1994). More precisely, the statutes impose a severe mandatory sentence on anyone convicted of engaging in a “continuing criminal enterprise” (CCE). A person commits this CCE offense if he “occupies a position of organizer, a supervisory position, or any other position of management” over at least five people who commit in concert a continuing series of felony drug crimes

[17] See 18 U.S.C. § 2(a) (1994).

[18] See Pino-Perez, 870 F.2d at 1230 (citing United States v. Ambrose, 740 F.2d 505, 507-08 (7th Cir. 1984); United States v. Amen, 831 F.2d 373, 381-82 (2d Cir. 1987)).

[19] Daniel A. Farber, Do Theories of Statutory Interpretation Matter–A Case Study, 94 Nw. U. L. Rev. 1409 (1999), Available at:

[20] Pino-Perez, 870 F.2d at 1237.. at 1238 (Easterbrook, J., dissenting).

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