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Controversies about statutory interpretation and the proper roles for judges in interpretation are particularly noticeable in the Supreme Court but have penetrated downward throughout the judicial system. What I mean to explore here are some implications of our common law heritage and the presuppositions of a common law system for these controversies, that seem rarely noticed in the ongoing debates. I mean by this not only common law judging, but also what we might call common law legislating – that is, the practice of creating statutes to achieve marginal changes in existing law in response to perceived deficiencies, rather than legislating comprehensively as continental codes seek to do. At its most basic, my argument will be that our fundamental commitment to the common law, including our commitment to the system of precedent in statutory interpretation, is inconsistent with one approach to interpretation strongly bruited in the debates; this approach argues that the only proper (perhaps even the only constitutionally permissible) aim of interpretation is determining the textual meaning of a statute as of the date of its passage. My argument is premised in the reactive, pragmatic, and precedential qualities of a common law system. Before getting to this doubtless controversial proposition, however, it seems useful to lay some groundwork that I hope will be less problematic.

Intro -- HalfTitle -- Series -- Title -- Copyright -- Contents -- Preface -- Website -- 1 Aspects of Law and Legal Systems -- 1. The command theory -- 2. Critique of the command theory -- 3. Primary and secondary rules -- 4. H. L. A. Hart's theory of law -- 5. Predictive theories -- 6. Rules and principles -- 7. Legal validity and the sources thesis -- 8. The separability of law and morality -- 9. The authority of law -- 10. The rule of law -- 2 Courts and Legal Reasoning -- 1. Is legal reasoning deductive? -- 2. Legal realism -- 3. Sources of law -- 4. Indeterminacy -- 5. Indeterminacy and critical legal studies -- 6. Hart on rule-skepticism -- 7. Theories of law versus theories of adjudication -- 8. Right answers -- 9. Precedent -- 3 Making, Justifying, and Evaluating Law -- 1. Making law -- 2. Normative concepts for justifying and evaluating law -- 3. Moral evaluation of the criminal law -- 4. Punishing omissions: Bad Samaritan Laws -- 4 Law and Individual Obligation -- 1. The duty to obey the law -- 2. Civil disobedience -- 5 Private Law -- 1. Constructive interpretation of legal doctrine -- 2. Property -- 3. Tort -- 4. Causation -- 5. Contract -- 6 Criminal Law -- 1. Elements -- 2. Conduct -- 3. Mens rea -- 4. Justification -- 5. Excuse -- 6. Inchoate offenses -- 7 Sentencing and Punishment -- 1. Sentencing -- 2. Defining punishment -- 3. Types of sentence -- 4. Reasons to sentence -- 5. Hybrid theory -- 6. Retribution -- 7. Defensive theories -- 8. Capital punishment -- 8 Statutes -- 1. Statutory interpretation -- 2. Intent versus understanding -- 3. Originalism -- 4. Nonoriginalism -- 5. Originalism and the evolution of meaning -- 6. Legislative intent -- 7. Obsolete statutes -- 8. Textualism or purposivism? -- 9. Illustration -- 10. Canons of construction -- 9 Constitutions.

"Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc." asks courts to determine whether Congress has delegated to administrative agencies the authority to resolve questions about the meaning of statutes that those agencies implement, but the decision does not give courts the tools for providing a proper answer. Chevron directs courts to construe statutory text by applying the traditional theories of statutory interpretation-whether intentionalism, purposivism, or textualism-and to infer a delegation of agency interpretive authority only if they fail to find a relatively specific meaning. But the traditional theories, despite their differences, all invite courts to construe statutory text as if Congress intended that text to have a relatively specific meaning. The presumption of a specific meaning does not match the reality of how Congress designs regulatory statutes. Congress is more likely to eschew specificity in favor of agency delegation under certain circumstances-for example, if an issue is complex and if legislators can monitor subsequent agency interpretations through administrative procedures. Although Chevron recognizes such "delegating" factors, it fails to sufficiently credit them. Even "United States v. Mead Corp.", which makes delegation the key question, falls short. This Article imagines what interpretive theory would look like for regulatory statutes if it actually incorporated realistic assumptions about legislative behavior. The theory would engage factors such as the complexity of the issue and the existence of administrative procedures as indications of interpretive delegation more satisfactorily than existing law does. In the process, it would produce a better role for courts in overseeing the delegation of authority to agencies.