Anuj C. Desai (University of Wisconsin Law School) has posted Modified Textualism in Wisconsin: A Case Study (2022 Wisconsin Law Review 1087 (2022)) on SSRN. Here is the abstract:
State ex rel. Kalal v. Circuit Court for Dane County sets forth a controlling two-step framework for interpreting Wisconsin statutes. Under Kalal, the first step is to start with a statute’s text and apply linguistic tools of analysis (Step One). If the meaning of the statute is clear at this first step, that is the end of the inquiry. Only if the language of the statutory text is ambiguous is a court to go to step two and turn to “extrinsic sources of interpretation, such as legislative history” (Step Two).
Kalal has been one of the most influential cases in Wisconsin history. Its two-step process is so embedded in Wisconsin courts that it has been cited in published Wisconsin appellate decisions more than 1,200 times, on average once every six days, since it was decided eighteen years ago.
Kalal was one of several examples used by Professor Abbe Gluck over a decade ago to show that, despite ideological differences, state courts have settled into a “methodological consensus” about a form of “modified textualism” for statutory interpretation. As Professor Gluck recognized though, “a consensus on interpretive methodology cannot entirely eliminate normative disputes in statutory interpretation cases.” That much is certainly true. Courts do not just apply linguistic algorithms. So, a methodology’s test cannot be simply whether it eliminates the role of judgment in judging (although one factor might be how much discretion it allows). No methodology can do that. Instead, the test—or at least, one test—of an interpretive methodology ought to be whether it illuminates, rather than obscures, a court’s actual levers of decision. I use a high-profile case involving ideological (and, arguably, methodological) differences among the Wisconsin Supreme Court Justices, Wisconsin Carry v. City of Madison, to explore the question of how well Kalal helps us understand the true nature of the dispute in statutory interpretation cases.
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