Thanks to Eugene Volokh for having me back; I’ve missed blogging terribly and am pleased to share a bit of what I’ve been working on in my absence — “The Law of Interpretation,” forthcoming in the Harvard Law Review, with my good friend and law school classmate Stephen Sachs.

Here is the puzzle that started us writing the paper:

A lot of writing about legal interpretation (and especially statutory interpretation) seems to assume that interpretation is simply a matter of language — it is regular linguistic interpretation as applied to legal materials. If we could just figure out exactly what the legislature said, or what it meant, or what it meant to say, our work would be complete. A great example of this is Larry Alexander’s thought experiment of a legislature that could communicate by telepathy. Mark Greenberg (a critic of this view) has eloquently called this “The Standard Picture and its Discontents.”

For years, I was a devotee of the standard picture, but I have come to believe that it does not work. For one thing, it’s not an accurate account of how legal interpretation works. Just flip open even a relatively textualist account of interpretation, like Antonin Scalia and Bryan A. Garner’s “Reading Law,” and you will see tons of canons of interpretation that don’t have much to do with how legislatures speak — the rule of lenity, the repeal-repealer rules and the presumption against waiver of sovereign immunity are just a few.

Read more at The Volokh Conspiracy