Statutes’ Domains and Judges’ Prerogatives

Statutory interpretation has been a principal scholarly interest of Judge Frank Easterbrook. But Judge Easterbrook’s first entry into the field was Statutes’ Domains, an article he wrote in 1983, before he became a judge. Statutes’ Domains, like its author, has had an excellent career. It is widely regarded as a foundation of both public choice and textualist approaches to issues of statutory interpretation. The themes that Judge Easterbrook developed in Statutes’ Domains echo in his later work on statutory interpretation, as well. Statutes’ Domains begins with a question: “When does a court construe a statute, treaty, or constitutional provision and when hold it inapplicable instead?” It is a question, Judge Easterbrook acknowledges, that “has received almost no attention from courts or scholars.” At first glance one might think: deservedly so. If a court is going to rule against you, why does it matter whether the court declares the statute on which you rely to be “inapplicable” or instead “construes” the statute in a way that is unfavorable to you?