Frank B. Cross, The Theory and Practice of Statutory Interpretation, Stanford University Press, 2009.
True to its title, Frank Cross’s ambitious book seeks to bridge the gap that long has existed between scholarly theorizing about statutory interpretation and the actual, on-the-ground judicial practice of construing statutes. The book’s first few chapters engage in excellent analyses of four competing theories of statutory interpretation—textualism, legislative intent, interpretive canons, and pragmatism. Cross examines each of the theories in detail, reviewing and critiquing the most prominent arguments made in favor of and against each approach. These chapters are extremely well-done; they not only provide a virtual primer on the most prominent works in the field of statutory interpretation, but are infused with Cross’s own incisive take on the standard debates.
The second half of the book turns to reporting the results of an empirical study that Cross conducted analyzing a sample of 120 cases from the Supreme Court’s 1994 through 2002 terms. Cross’s study was designed, inter alia, (i) to measure the Court’s and individual Justices’ patterns of canon use for consistency with the different theoretical approaches; (ii) to test the various interpretive methodologies’ ability to constrain ideological decision-making; and, to a lesser extent, (iii) to assess the interpretive methodologies’ relative ability to command consensus on the Court. To this end, Cross coded for judicial reliance on several specific canons and interpretive tools and then grouped these canons and tools into four categories corresponding to the interpretive theories—i.e., textualism, intentionalism, canons, and pragmatism. He then measured the Court’s rates of reliance on each category of interpretive tools, the correlation between individual Justices’ ideological preferences and the ideological outcomes of cases in which the Justices referenced interpretive tools within each category, and the relationship between the interpretive tools used and the level of consensus reached by the Court in particular cases. Cross’s empirical findings can be summed up as follows: