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Reliance Interests in Statutory and Constitutional Interpretation

Posted by on Wednesday, April 26, 2023 in Articles, Volume 76, Volume 76, Number 3.

William N. Eskridge Jr. | 76 Vand. L. Rev. 681

People and companies rely on public law when they plan their activities; society relies on legal entitlements when it adapts to new technology, economic conditions, and social groups; legislators, administrators, and judges rely on settled law when they pass, implement, and interpret statutes (respectively). Such private, societal, and public “reliance interests” are the “dark matter” of America’s law of interpretation. They underwrite most interpretive doctrine, and their perceived force broadly and deeply affects the application of doctrine.

Reliance interests anchor the constitutional bias in favor of interpretive continuity, and they provide guardrails for the leading theories of interpretation—namely—textualism or original public meaning, legal process or purposivism, and cost-benefit economic theory. Because reliance interests themselves evolve, they can also provide an orderly process for updating old norms, under whatever the predominant theory of interpretation might be.

Nonetheless, reliance interests do not always prevail. In recent statutory and constitutional decisions, the Roberts Court has applied traditional reliance interests selectively—a signal that the Court is introducing a regime change

that may scramble reliance interests as massively as the New Deal and Brown Courts did in the last century. Without a strong electoral endorsement of the emerging new regime, this is risky for an institution whose authority depends on its rule of law credibility, and it is doubtful that the Roberts Court will be as successful in overcoming or resetting reliance interests as the New Deal and Brown Courts.

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William N. Eskridge Jr.