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Volume 108, Issue 5


Where is Statutory Law?

Jesse M. Cross

Associate Professor, University of South Carolina School of Law.

14 Sep 2023

Textualism has become the ascendant method of statutory interpretation on the Court, and it is rapidly reshaping the entire judiciary. Yet we still do not understand the “text” in textualism. This is part of a broader failure in legislative studies: we lack a basic understanding of the texts that comprise our statutory law. As this Article explains, this failure has consequences: statutory documents cannot support the prevailing understanding of legislation and statutory interpretation.

In response, this Article begins with a breakdown of our contemporary statutory texts—many of which are misunderstood or, remarkably, wholly unknown. This documentary study reveals a key dimension of modern statutory law: in our amendatory regime, statutory law is not found in any published document. Rather, it must be imaginatively reconstructed in the act of statutory interpretation.

Through an examination of American legisprudence, the Article identifies a judicial responsibility to undertake this reconstructive project. Courts must engage in statutory “construction,” quite literally. To rediscover this judicial obligation in statutory law, the Article uncovers its historical roots—its origins in early English law, and its importation into American courts. And it brings it into the present, developing a methodology for courts to use in statutory cases today. It also examines the theoretical implications of this new understanding of statutory law, particularly for textualism. Through this analysis, the Article aims to develop a new understanding of this foundational source of modern American law.

The Supreme Court is fond of declaring that it always begins with “the text of the statute.” As Abbe Gluck and I have explained before, it is vital to understand what this means—and should mean—in a modern era of deconstructed statutory texts. This Article continues the work of developing an answer for our contemporary statutory world.

To read this Article, please click here: Where is Stautory Law?