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The growth of statutory consumer protection regimes in modern commercial societies has the potential profoundly to disrupt the private law landscape. Such schemes aim to increase access to justice for consumers by offering simplified and clear suites of rights and corresponding remedies. In so doing, however, they affect core areas of private law rights and remedies, and may come to undermine or replace existing contractual principles and policies. The result could be an incoherent system of private law with different principles and rules applying to commercial and consumer transactions. Coherence in the law requires that lawyers abandon their traditional ‘oil and water’ attitudes to legislative schemes and confront directly the interactions between these two bodies of law. This paper engages in that enquiry by considering the relationship between the relatively new consumer redress provisions in the Consumer Protection from Unfair Trading Regulations 2008 and general law principles.

How should we interpret legal instruments? How do we identify the law they create? Current approaches largely fall into two broad camps. The standard picture of interpretation is focused on language, using various linguistic conventions to discover a document's meaning or a drafter's intent. Those who see language as less determinate take a more skeptical view, urging judges to make interpretive choices on policy grounds. Yet both approaches neglect the most important resource available: the already applicable rules of law. Legal interpretation is neither a subfield of linguistics nor an exercise in policymaking. Rather, it is deeply shaped by preexisting legal rules. These rules tell us what legal materials to read and how to read them. Like other parts of the law, what we call \"the law of interpretation\" has a claim to guide the actions of judges, officials, and private interpreters — even if it isn't ideal. We argue that legal interpretive rules are conceptually possible, normatively sensible, and actually part of our legal system. This Article thus reframes the theory of statutory and constitutional interpretation, distinguishing purely linguistic questions from legal questions to which language offers no unique answer. It also has two concrete implications of note. It provides a framework for analyzing the canons of interpretation, determining whether they are legally valid and how much authority they bear. And it helps resolve debates over constitutional \"interpretation\" and \"construction,\" explaining how construction can go beyond the text but not beyond the law.

Within legal scholarship and practice, among the most pervasive tasks is the interpretation of texts. And within legal interpretation, perhaps the most pervasive inquiry is the search for “ordinary meaning.” Jurists often treat ordinary meaning analysis as an empirical inquiry, aiming to discover a fact about how people understand language. When evaluating ordinary meaning, interpreters rely on dictionary definitions or patterns of common usage, increasingly via “legal corpus linguistics” approaches. However, the most central question about these popular methods remains open: Do they reliably reflect ordinary meaning? This Article presents experiments that assess whether (a) dictionary definitions and (b) common usage data reflect (c) how people actually understand language today. The Article elaborates the implications of two main experimental results. First, neither the dictionary nor legal corpus linguistics methods reliably track ordinary people’s judgments about meaning. This finding shifts the argumentative burden to jurists who rely on these tools to identify “ordinary meaning” or “original public meaning”: these views must articulate and demonstrate a reliable method of analysis. Moreover, this divergence illuminates several interpretive fallacies. For example, advocates of legal corpus linguistics often contend that the nonappearance of a specific use in a corpus indicates that the use is not part of the relevant term’s ordinary meaning. The experiments reveal this claim to be a “Nonappearance Fallacy.” Ordinary meaning exceeds datasets of common usage — even very large ones. Second, dictionary and legal corpus linguistics verdicts diverge dramatically from each other. Part of that divergence is explained by the finding that broad dictionary definitions tend to direct interpreters to extensive interpretations, while data of common usage tends to point interpreters to more prototypical cases. This divergence suggests two different criteria that are often relevant in interpretation: a more extensive criterion and a more narrow criterion. Although dictionaries and legal corpus linguistics might, in some cases, help us identify these criteria, a hard legal-philosophical question remains: Which of these two criteria should guide the interpretation of terms and phrases in legal texts? Insofar as there is no compelling case to prefer one, the results suggest that dictionary definitions, legal corpus linguistics, or even other more scientific measures of meaning may not be equipped in principle to deliver simple and unequivocal answers to inquiries about the socalled “ordinary meaning” of legal texts.

Debates about legal interpretation frequently bypass or give short shrift to the more basic concept of legal \"meaning. \"Seeking to rectify that deficiency, this Article explores the meaning of \"meaning.\" Examination of familiar terms of legal argument reveals an astonishing number of possible senses of that term—and, correspondingly, an equally large number of possible referents for ultimate claims concerning what legal provisions mean. These referents include a statutory or constitutional provision's semantic or literal meaning, its contextual meaning as framed by the shared presuppositions of speakers and listeners, its \"real\" conceptual meaning, and its intended, reasonable, and previously interpreted meanings. Proponents of interpretive theories such as textualism and originalism sometimes suggest that legal meaning depends on prelegal, linguistic facts that make one of these kinds or senses of meaning uniquely correct. But that suggestion reflects a misunderstanding about how language works. Framing the challenge for legal interpretation as that of choosing the normatively best referent for claims of legal meaning from among otherwise eligible candidates, this Article shows that textualism and originalism, in particular, lack the resources to make the unique, consistent, categorical selections and exclusions that some versions of those theories purport to achieve. Like a variety of other interpretive theories, they lapse into reliance on case-by-case normative judgments. When understood against the background of a careful delineation of the choices that legal interpretation requires, the aspirations of textualism and originalism help to frame a fundamental question: Given the function of interpretive theories to guide or determine choices among otherwise plausible senses of legal meaning, should such theories do so on a categorical or a case-by-case basis? This Article advocates the latter approach. A due appreciation of the interpretive challenge —which frequently requires a choice among the literal, contextually framed and limited, real conceptual, intended, reasonable, and interpreted meanings of statutory and constitutional provisions—reveals the stark hubris of proposals that commit in advance to categorical selections or even categorical exclusions.

What role should the realities of the legislative drafting process play in the theories and doctrines of statutory interpretation and administrative law? The ongoing debates frequently turn on empirical assumptions about how Congress drafts and what interpretive rules Congress knows, but, until now, there has been almost no testing of those assumptions. This is the first of two Articles reporting the results of the most extensive empirical study to date—a survey of 137 congressional staffers drawn from both parties, both chambers of Congress, and spanning multiple committees—on topics ranging from their knowledge and use of the canons of interpretation, to legislative history, the administrative law deference doctrines, the legislative process, and the courts-Congress relationship. Our findings have implications for virtually every swath of the interpretive debates. We can report, for instance, that there are some canons that our drafters know and use—Chevron and the presumption against preemption, for example; but that there are other canons that many drafters know but consciously reject in favor of political or other considerations, including the presumption in favor of consistent usage, the rule against superfluities, and dictionary use; and that there are still other canons, like Mead and noscitur a sociis, that our drafters do not know as legal rules but that seem to be accurate judicial reflections of how Congress drafts. Our interviews also elicited a treasure trove of information about key influences on the drafting process that legal doctrine rarely acknowledges. These findings also allow us to press for a more precise answer to a foundational question: what should be the purpose of these rules? Judges, often using the unhelpful generalization that they are Congress's \"faithful agents,\" have legitimized them using conflicting justifications, some of which turn on empirical reality, some of which do not, and most of which treat together many different types of rules that do very different types of work. Do the canons reflect how Congress drafts, and so effectuate legislative supremacy? Or do judges use the canons for more dialogical reasons, such as to encourage Congress to draft more precisely—and does Congress listen? Might the canons instead best be understood to effectuate judicial responsibilities that are external to the legislative process, such as advancing constitutional values or legal coherence? Our study disaggregates the canons, revealing the variety of justifications for the current regime and how each rests on different visions of the judicial power and the courts-Congress relationship.

I develop an alternative to the two main views of law that have dominated legal thought. My view offers a novel account of how the actions of legal institutions make the law what it is, and a correspondingly novel account of how to interpret legal texts. According to my view, legal obligations are a certain subset of moral obligations. Legal institutions—legislatures, courts, administrative agencies—take actions that change our moral obligations. They do so by changing the morally relevant facts and circumstances, for example by changing people's expectations, providing new options, or bestowing the blessing of the people's representatives on particular schemes. My theory holds, very roughly, that the resulting moral obligations are legal obligations. I call this view the Moral Impact Theory because it holds that the law is the moral impact of the relevant actions of legal institutions. In this Essay, I elaborate and refine the theory and then illustrate and clarify its implications for legal interpretation. I also respond to important objections.

The 2012 challenge to the Affordable Care Act was an unusual opportunity for people to form or reassess opinions about the Supreme Court. We utilize panel data coupled with as-if random assignment to reports that Chief Justice Roberts's decision was politically motivated to investigate the microfoundations of the Court's legitimacy. Specifically, we test the effects of changes in individuals' ideological congruence with the Court and exposure to the nonlegalistic account of the decision. We find that both affect perceptions of the Court's legitimacy. Moreover, we show that these mechanisms interact in important ways and that prior beliefs that the Court is a legalistic institution magnify the effect of updating one's ideological proximity to the Court. While we demonstrate that individuals can and did update their views for multiple reasons, we also highlight constraints that allow for aggregate stability in spite of individual-level change.

This is the second of two Articles relaying the results of the most extensive survey to date of 137 congressional drafters about the doctrines of statutory interpretation and administrative delegation. The first Article focused on our respondents' knowledge and use of the interpretive principles that courts apply. This second Article moves away from the judicial perspective. Our findings here highlight the overlooked legislative underbelly: the personnel, structural, and process-related factors that, our respondents repeatedly volunteered, drive the details of the drafting process more than judicial rules of interpretation. These factors range from the fragmentation caused by the committee system, to the centrality of nonpartisan professional staff in the drafting of statutory text, to the use of increasingly unorthodox legislative procedures—each of which, our respondents told us, affects statutory consistency and use of legislative history in different and important ways. Our respondents also painted a picture of legislative staffers in a primary interpretive conversation with agencies, not with courts, and as using different kinds of signals for their communications with agencies than courts consider. Most of the structural, personnel, and process-related influences that our respondents emphasized have not been recognized by courts or scholars, but understanding them calls into question almost every presumption of statutory interpretation in current deployment. The findings undermine the claims of both textualists and purposivists that their theories are most democracy enhancing, because neither makes satisfactory efforts to really reflect congressional expectations. Our findings challenge textualism's operating assumption that text is always the best evidence of the legislative bargain and suggest more relevant—but still formalist—structural features that might do better. Our findings further reveal that, although purposivists or eclectic theorists may have the right idea with a more contextual approach, many of the factors on which they focus are not the same ones that Congress utilizes. With respect to delegation, our findings suggest that, for both types of theorists, Chevron now seems too text- and court-centric to actually capture congressional intent to delegate, although that has been its asserted purpose. In the end, our findings raise the question whether the kind of \"faithful agent\" approach to interpretation that most judges currently employ—one aimed at effectuating legislative deals and often focused on granular textual details—can ever be successful. We thus look to different paradigms less dependent on how Congress works, including rule-of-law and pragmatic approaches to interpretation. These alternatives respond to the problem of the sausage factory, but pose different challenges in light of the modern judicial sensibility's pronounced concern with legislative supremacy.

A fundamental question for corporate bankruptcy law is why it exists in the first place. Why are there special rules that apply only in financial distress? The conventional law-and-economics answer—known as the Creditors’ Bargain Theory—identifies two core purposes of bankruptcy law: recreating a hypothetical ex ante bargain and respecting creditors’ nonbankruptcy entitlements. This Article challenges the Creditors’ Bargain Theory and presents an alternative: The sole purpose of corporate bankruptcy law is to solve the incomplete contracting problem that accompanies financial distress. Because financial distress is difficult to contract over, relationships involving a distressed firm are governed by incomplete contracts that allow parties to hold each other up. All distressed firms face this same value-destroying hold-up problem, and so pressure arises for a uniform solution. The purpose of corporate bankruptcy law is to provide that solution. In the United States, Chapter 11 of the Bankruptcy Code implements this purpose in the form of a framework for ex post renegotiation of incomplete contracts. This framework imposes judicial oversight and allocates bargaining power to minimize hold up among those with interests in a distressed firm. In a sense, it puts in place guardrails that give the parties room to bargain while keeping them from engaging in extreme forms of hold up. While this framework is not based on any hypothetical ex ante bargain and gives no special deference to nonbankruptcy entitlements, it is the fundamental attribute of Chapter 11.

Questions of statutory interpretation form a significant portion of administrative law cases. Accordingly, judicial methodology in this area requires careful consideration by public law commentators. The core aim of this paper is to question the general orthodoxy that statutory interpretation is invariably a question for judges. In recent times, one prominent argument has been that between jurists arguing that interpretation should be the realisation of Parliament's intention (‘intentionalist’), and those who prefer the closely related but subtly distinct focus on its objective purpose (‘purposivist’). I contend that this argument, framed as a question over the inter-institutional relationship between Parliament and the courts, focuses on how interpretation is carried out without considering who is best placed to do the interpreting. Given, as I demonstrate with a series of case studies, that in hard cases the distinction between interpretation and discretion/policymaking can become obscure to the point of nullity, the debate fails to consider institutional arguments for judicial deference on questions of law. Moreover, and counterintuitively, the arguments of the intentionalists/purposivists can be used to bolster an argument for deference. My conclusion adopts a wider lens, setting out a broader constitutional argument for, and addressing objections against, cautious and context-sensitive deference.