By contrast, we urge that it is far more promising to focus on two neglected issues. The first has to do with institutional capaci­ ties. As we shall urge, debates over legal interpretation cannot be sensibly resolved without attention to those capacities. The central question is not "how, in principle, should a text be interpreted?" The question instead is "how should certain institutions, with their distinctive abilities and limitations, interpret certain texts?" If the relevant judges can reliably decide whether a literal interpretation of a statutory term is absurd, the argument for rejecting literalism is greatly strengthened; if the relevant judges are highly fallible, literalism may have some overlooked virtues. A great deal turns as well on the attentiveness of the relevant legislature; the appro­ priate stance toward interpretation is not the same in a system with an attentive legislative as in a system with an inattentive one. The second issue involves the dynamic effects of any particular ap­ proach - its consequences for private and public actors of various sorts. If a nonliteral interpretation of the phrase "induce cancer" would introduce a great deal of uncertainty into the system and reduce Congress's incentive to make corrections, it might well be sensible to deny exceptions in cases involving trivial risks. By drawing attention to both institutional capacities and dynamic ef­ fects, we are suggesting the need for a kind of institutional turn in thinking about interpretive issues. … With an emphasis on institutional capacities and dynamic effects, we will be able to see that nearly all of the most prominent discussions of interpretation - including, for example, those by Jeremy Bentham, William Blackstone, H.L.A. Hart, Henry Hart and Albert Sacks, Ronald Dworkin, William Eskridge, John Manning, and Richard Posner - are incomplete and unsuccessful, simply because they generally proceed as if the only question is how "we" should interpret a text. Where they attend to institu­ tional roles at all, these theorists frequently work with an ideal­ ized, even heroic picture of judicial capacities and, as a corollary, a jaundiced view of the capacities of other lawmakers and interpret­

XREF: Connects to debates in legal philosophy and jurisprudence, particularly the Hart-Fuller debate and concerns about judicial capacity in constitutional interpretation theories.

Unknown, Cass R. Sunstein, Adrian V…, loc. 19