Monday, November 7, 2011

Over the Rainbow - Statutory Interpretation

An earlier post suggested making analogy to popular music (First Cut is the Deepest) to illustrate the process and results of statutory interpretation.  Ken Schneyer has made the excellent suggestion to use the song Over the Rainbow as a better example.  

Over the Rainbow was composed by Harold Arlen with lyrics by E.Y Yarburg for the movie, The Wizard of Oz. Although composed by Arlen and Yarburg, they were not the song’s performers.  Like a legislature which must leave interpretation of its statutes up to the courts, the composers left interpretation of their creation to others. 

Judy Garland, of course, performed the song in the movie. In compiling the videos below, I was struck by the noticeable differences between her movie performance from1939 and a subsequent recording in 1955 Garland’s voice and presence are more mature and confident in the later recording.  It is the same song, same melody, lyrics and tempo – it is even the same performer, but the interpretation is still different.  Analogy can be made to a single court’s interpretation of a statute over time. Eva Cassidy’s 1992 performance “modernizes” the song adding modern pop and jazz elements to the performance.  Katherine McPhee’s American Idol performance is interesting because she returns to the text of the original composition to perform the rarely heard opening lines of the composition which were cut from the movie performance and nearly lost to the public mind – all despite the fact that other verses of the song had to be left out to accommodate the limited TV time slot for the performance.  She had to make choices about what was important to be included in the performance.  Iz Kamakawiwo’ole’s delightful interpretation has been very popular even though his fidelity to the song’s lyrics is somewhat unpredictable. However, I found it interesting that in the Glee performance, the directors chose his interpretation as the “precedent” to follow for the arrangement of the performance, but maintaining truer fidelity to the original lyrics.  It is an interpretation that both returns to the text and incorporates innovative precedential interpretation. 

So is it also with the law. Judges “perform” the legislature’s composition by giving it voice. Legislatures know that when they compose a statute, the interpretation of performance is out of their hands and in the hands of the courts.

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