Pojanowski, Jeffrey A., Reading Statutes in the Common Law Tradition (August 22, 2014). Virginia Law Review, Forthcoming. Available for download at SSRN: http://ssrn.com/abstract=2485599

“There is wide agreement in American law and scholarship about the role the common law tradition plays in statutory interpretation. Jurists and scholars of various stripes concur that the common law points away from formalist interpretive approaches like textualism and toward a more creative, independent role for courts. They simply differ over whether the common law tradition is worth preserving. Dynamic and strongly purposive interpreters claim the Anglo-American common law heritage in support of their approach to statutory interpretation, while arguing that formalism is an unjustified break from that tradition. Formalists reply that the common law mindset and methods are obsolete and inimical to a modern legal system of separated powers. They argue that because the legal center of gravity has shifted from courts to complex statutory regimes, judicial interpreters should no longer understand themselves as bearers of the common law tradition. Contemporary debate in statutory interpretation thus offers a choice between continuity with the common law tradition (and thus, creative statutory interpretation) or formalist interpretation that breaks with that heritage. This neat frame, however, misses important parts of the picture. This Article argues that classical common law jurisprudence in fact offers substantial support for formal theories of interpretation like textualism. In fact, the formalist’s respect for legislative compromise and deference to text or original intent may represent the natural development of a common law tradition that has increasingly linked law with popular custom and consent. By contrast, nonformal approaches to statutory interpretation rely on a partial, controversial vision of the common law tradition. A more complete understanding of traditional common law thought undercuts an important justification for nonformal theories of statutory interpretation. More broadly, we need not understand the debate between formalists and dynamic interpreters as a disagreement about the common law tradition’s continued validity; rather it is an argument over which interpretation of that tradition best suits a modern, complex polity. There are good reasons — reasons grounded in common law thought — for believing that statutory formalists have a stronger argument than their dynamic critics. Given the challenges a complex, pluralistic society poses to developing common law through adjudication, the formalist’s emphasis on legislative primacy may be necessary for the common law tradition and its virtues to persist in our legal system.”