Jonathan R. Siegel

Professor of Law

George Washington University

92 Minn. L. Rev. 387 (2007)

Professor Adrian Vermeule's new book, Judging Under Uncertainty, argues that while no one can empirically determine whether any net benefits arise from judicial use of legislative history or other interpretive methods that go beyond simple enforcement of plain text, such interpretive methods do impose substantial costs. Vermeule concludes, therefore, that courts should discard such interpretive methods. This article suggests, first, that the extent of the costs incurred as a result of applying interpretive methods other than simply enforcing plain text is far from clear. The article also suggests that it is uncertain whether discarding such methods would result in any cost savings, both because of costs that would remain if only some judges adopted Professor Vermeule's theory and because, even if all judges adopted it, cost savings from the use of simpler interpretive methods might be offset by other, new costs, such as the costs imposed by judicial enforcement of clear but erroneously drafted statutory text that produces absurd results. Finally, the article argues that there are institutional reasons to believe that courts do get net benefits from methods that permit them to look beyond plain statutory text in some cases; most notably, the fact that courts interpret statutes at the moment of implementation puts them in a good position to detect statutory drafting errors. For these reasons, the article recommends against adoption of Professor Vermeule's interpretive theory.