Suppose that a statute, enacted several decades ago, bans the introduction of any color additive in food if that additive "causes cancer" in human beings or animals. Suppose that new technologies, able to detect low-level carcinogens, have shown that many potential additives cause cancer, even though the statistical risk is often tiny - akin to the risk of eating two peanuts with governmentally-permitted levels of aflatoxins. Suppose, finally, that a company seeks to introduce a certain color additive into food, acknowledging that the additive causes cancer, but urging that the risk is infinitesimal, and that if the statutory barrier were applied, it would prove absurd and fail to promote the legislative purpose, which is to make food safer. In response, the government argues that the statute must be interpreted literally and that all additives that "cause cancer" are banned. How should the court resolve the dispute? Such questions are pervasive. But we think that current theories of legal interpretation fail to provide an adequate framework for thinking about them, and that the failure reveals a serious problem with contemporary claims about interpretation in law. Typically, interpretive issues are debated at a high level of abstraction, by asking questions about the nature of interpretation, or by making large claims about democracy, legitimacy, authority, and constitutionalism. But most of the time, large-scale claims of these kinds cannot rule out any reasonable view about interpretation. For example, it is impossible to deduce from such large-scale claims an answer to a dispute about the meaning of the phrase "cause cancer," or indeed an answer to any of the current questions about how to approach a statutory or constitutional text. Part of our goal here is to demonstrate the futility of efforts to show that abstract ideals can resolve disagreements about appropriate interpretive methods.
Cass R. Sunstein & Adrian Vermeule,
Interpretation and Institutions,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol101/iss4/2