Should federal courts give stare decisis effect to statutory interpretation
methodology? Although a growing number of legal scholars have answered this
question in the affirmative, this Essay makes the case against methodological
stare decisis. Drawing on recent empirical studies of Congress’s expectations
regarding statutory interpretation, we show that existing knowledge of Congress’s
expectations is insufficient to settle on one consistent approach to
statutory interpretation. Moreover, Congress has almost certainly changed its
expectations over time, and this raises serious problems for methodological
stare decisis from the perspective of faithful-agency theories. We argue further
that many theories and doctrines of statutory interpretation are based on
constitutional norms and other public values that do not depend on Congress’s
meta-intent. Constitutional norms and public values also change, and interpretive
methodology should remain dynamic so that the law can be responsive to
changing societal norms. Finally, we argue that the value of extending stare
decisis effect to interpretive methodology is unproven. Although treating prior
methodological decisions as binding precedent could, in theory, promote the
policies underlying stare decisis, the same would be true of extending that
doctrine to virtually any rules. Yet interpretive methodology is different from
first-order rules of law in significant ways, and freezing higher-order legal rules
into place would pose special and perhaps overwhelming difficulties. We therefore
conclude that federal courts should not extend stare decisis effect to
methodological decisions without seriously grappling with these difficulties and
demanding much stronger evidence that such a move would improve the
operation of our legal system.