Washington University Law Quarterly
To me, a broader concern seemed to surround this dialogue: that of fidelity to the mission of interpretation. If "interpretation" is defined in a strictly empirical and verifiable sense, what the legal system does with the language of positive law hardly qualifies. The division between "is" and "ought" is, of course, a familiar one in the legal community itself. Every traditional theory of statutory interpretation wants to have it both ways: some "objective" limits, usually tied to "the text" or to "established canons," that promote predictability and inhibit interpretive willfulness, and some "normative" qualifications that promote justice and fairness.
Philip P. Frickey,
73 Wash. U. L. Q. 1085
Available at: http://openscholarship.wustl.edu/law_lawreview/vol73/iss3/17