Theories of Legal Interpretation

Formalism – we should only apply the black-letter law and not get into normative/interpretive issues.  The statute means what it says.  This has the flavor of syllogistic reasoning: all jaywalkers should be ticketed (law), this person is jaywalking (alleged fact), therefore this person should be given a ticket.   But, it’s complicated.  See:

Textualism – If we have to do any interpreting, we should stick with the plain meaning of the text.  We all know what jaywalking is, so we don’t need to “interpret” anything.   Or do we?  See:

Originalism vs Living Constitution theories -- Ok, so if we do need to interpret, what guiding principle do we appeal to?  What the word means to most people today?  What the word meant to the authors of the law?  What the word meant to the average person at the time the law was enacted?  What the authors of the law meant to accomplish by writing the law?   Turns out there are several varieties of “originalism,” which oppose each other as well as opposing the non-originalism some refer to as “living constitution.”

See this case for an interesting example:

This case also comes up in the short reading in your packet by Richard Posner (page 89 in the packet); read that also.