Print Issue Volume 100 - Issue 2

Communicating the Canons: How Lower Courts React When the Supreme Court Changes the Rules of Statutory Interpretation

From time to time, the Supreme Court changes some aspect of its approach to statutory interpretation. These changes include large-scale shifts on matters such as the relative prominence of textual sources versus legislative history as well as small-scale changes exemplified by the creation, modification, or abandonment of particular interpretive canons. When the Court changes course, do the lower courts’ practices tend to move in parallel? How do the new approaches or rules propagate through the judicial system? And what factors affect the speed and accuracy with which the lower courts react? Those questions are currently unanswered, but they are very important because the lower courts decide the vast majority of the cases in the judicial system.

This Article provides some preliminary answers to those questions by examining a variety of episodes of interpretive change. The results do not support a simple across-the-board statement about how lower courts behave but rather reveal several different dynamics and patterns. On the one hand, the lower courts tend to follow the Supreme Court’s methodological lead, and under the right conditions they can respond to changes with great speed and accuracy. On the other hand, there are instances in which the system displays considerable slack, with the lower courts either lagging behind the Court or jumping out ahead of it. The investigation identifies several features—of the interpretive rules, of the courts, and of the broader institutional context—that either enhance or inhibit responsiveness.

 

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