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The contemporary lawyer and judge confront, in the mine run of their daily work, a mountain of statutes. In an unprecedented way, law today is statute law, and few legal problems have escaped the tender mercies of the legislature. Statutory interpretation is a daily and pressing task for virtually every lawyer.

And yet, there is no generally accepted consistent theory to guide this work. The late Henry Hart and Dean Albert Sacks argue forcefully, "[T]he hard truth of the matter is that American courts have no intelligible, generally' accepted, and consistently applied theory of statutory interpretation." ' This conclusion is embedded in several hundred pages of case excerpts proving the point beyond dispute.

Good legal theory is not an intellectual luxury. If we lack good theory, we will be unable to explain judicial decisions and "consumers" of the output of our court systems will not believe they have been justly treated. Without the discipline of good theory, we cannot even critique and reform our own work product as lawyers.

My thesis in this article is that the so-called plain meaning rule is not only wrong in itself, but is also a major stumbling block hindering the adoption of a sound theory of statutory interpretation. Legal thinking in terms of the rule, whether to follow it or to find an "exception," structures our whole approach to statutory interpretation; its repudiation is a present necessity.

I wish in this article to summarize criticisms of the plain meaning rule, suggest why it has survived despite criticism, and sketch a theory and practice of statutory interpretation which should replace it.


Honorable Michael R. Merz is Judge, Municipal Court, Dayton, Ohio. B.A., Harvard University, 1967; J.D., Harvard Law School, 1970.

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