Interpretation: Contractual v. Statutory

Can the Restatement of Contracts provide a model for how to deal with troublesome issues of statutory interpretation?  Lawyer Gary O’Connor, who runs the statutory interpretation blog, Statutory Construction Zone, thinks so.  He explores the issue in a forthcoming article called Restatement (First) of Statutory Construction.

Here’s the abstract from SSRN:

This article argues that the American Law Institute should promulgate a “Restatement of Statutory Interpretation.” The article compares statutory interpretation to the law of contracts, and uses the Restatement of Contracts as a model for its proposal. The article argues that a Restatement would avoid the biggest disadvantages of a recent proposal for “Federal Rules of Statutory Interpretation” (in the June 2002 Harvard Law Review). That is, it would not require congressional action and it would not raise any separation-of-powers concerns.

In addition, such a Restatement could apply to the interpretation of both state and federal statutes; could have advantages that are similar to other Restatements – i.e., clarity, uniformity, and conservation of judicial resources; could be more flexible to adapt to particular jurisdictions; could serve as a bridge between scholarly work and judicial practice; and could provide a useful baseline for scholarly and judicial analysis of statutory-interpretation issues. At the very least, a Restatement of Statutory Interpretation could have the salutary effect of focusing attention on areas of agreement rather than just areas of disagreement, on possibilities rather than just problems.

The electronic copy of the article “Restatement (First) of Statutory Interpretation” is a draft, and publication will be forthcoming in the New York University Journal of Legislation & Public Policy.