Statutory Interpretation as Diplomacy

There is every reason to admire the transformative analytic power of the DSI thesis: Professor Eskridge has persuasively identified the realities of what courts so often do. In this article, Professor Brudney raises questions about the dynamic role that Eskridge envisions for courts as a normative matter. Because DSI relies on post-enactment changes in the broader legal and ideological culture, it allows the judiciary to reshape legislatively determined priorities in light of exogenous legal and policy developments that are often enhanced, if not created, by the courts themselves. This approach tilts the meaning of statutes toward the policy preferences of the judiciary, especially given the predictable delay and difficulty that attend congressional responses to the courts' reshaping efforts. Brudney develops and illustrates his thesis through discussion of Supreme Court decisions interpreting federal workplace statutes.