When Good Enough is Not Good Enough

According to conventional wisdom, the state of statutory interpretation is not strong. Its canons of construction-noscitur a sociis, ejusdem generis, expressio unius est exclusio alterius, reddendo singula singulis, and more than a few others-are a morass of Latin into which many law students and even judges have sunk. Its practitioners are unprincipled. Its doctrines are muddied. Its victims are many. In short, the system is broken-unless, of course, it is not. In The Language of Statutes: Laws and Their Interpretation, Lawrence M. Solan slices through the rhetoric, the fighting, and the law-review-article histrionics in an attempt to show that the system actually works pretty well. Solan admits that there are hard cases (p. 4). He even outlines how and when those hard cases are likely to arise, drawing on his expertise in cognition and linguistics (p. 4). But he argues that those hard cases are the exceptions (p. 4); to him, the easy cases are the rule (pp. 4-5). Part of the problem, Solan writes, is that hardly anyone ever talks about those easy cases. Instead, commentators focus only on the difficult interpretive choices that reach the Supreme Court. Solan claims that this vantage point obscures the reality of the situation, which is that there is usually no dispute as to how a law will apply. Those are the easy cases. When the text of a statute reads No vehicles allowed in the park and the defendant has driven his pickup truck onto the Great Lawn, the rule clearly and neatly applies. The parties recognize that the statute applies. The case settles or the defendant pleads, and everyone goes home. No one writes law review articles about these cases. Partly because the vast majority of cases are such car-in-the-park cases, Solan concludes that statutory interpretation actually works fairly well. The system, he claims, is not a mess, full of arbitrary decisions, as many think (p. 4). We should not be terribly worried either that judges sometimes have to make decisions or that judges have too little power to make such decisions when necessary (p. 4). The proper application of a statute to a particular set of facts is clear most of the time, and people understand their obligations under the law well enough (p. 4). A header in Chapter One sums up his point succinctly: Laws Work... Most of the Time