Category Archives: statutory interpretation

Abbe Gluck and Lisa Schultz Bressman have posted this draft on SSRN (forthcoming Stanford Law Review).  This looks to be a top-of-the-pile must read. Here is the abstract:

What role should the realities of the legislative drafting process play in the theories and doctrines of statutory interpretation and administrative law? The ongoing debates frequently turn on empirical assumptions about how Congress drafts and what interpretive rules Congress knows, but there has been almost no testing of whether any of these assumptions reflect legislative reality. We have attempted to fill that void. This is the first of two Articles reporting the results of the most extensive empirical study to date — a survey of 137 congressional counsels drawn from both parties, both chambers of Congress and spanning multiple committees — on topics ranging from drafters’ knowledge and use of the textual and substantive canons of interpretation, to legislative history, the administrative law deference doctrines, the legislative process and the Court-Congress relationship.

Our findings have implications for virtually every swath of the interpretive debates. We can report, for instance, that there are some canons that our drafters know and use — Chevron and the presumption against preemption, for example, but that there are other canons that our drafters know, but consciously reject in favor of political or other considerations, including the presumption in favor of consistent usage, the rule against superfluities, and dictionary use; and still other canons, like Mead and noscitur a sociis, that our drafters do not know as legal rules but that seem to be accurate judicial reflections of how Congress drafts. Our interviews also elicited a treasure trove of information about key influences on the drafting process that legal doctrine rarely considers, from the variety of audiences for legislative history, to the way in which the personal reputation of particular agency heads affects delegation decisions, to the fact that drafting conventions depend on the type of statute being drafted and its path through Congress.

All of these findings, and many others, allow us to press for a more precise answer to one of the fields’ foundational questions: that is, what should be the purpose of these canons of interpretation? Judges, often using the unhelpful generalization that they are Congress’s “faithful agents,” have legitimized these doctrines using a variety of conflicting justifications, some of which turn on empirical reality, some of which do not, and most of which aim to justify many different types of canons that seem to be doing very different types of work. Do the canons reflect how Congress actually drafts, and so effectuate legislative supremacy? Or do judges use the canons for more dialogical reasons, such as to encourage Congress to draft more precisely — and does Congress listen? Might the canons, despite how “neutral” some appear, instead be understood to effectuate judicial values that are external to the legislative process — such as advancing constitutional norms or imposing coherence on the U.S. Code? Our study illuminates this variety across the normative bases for the canons also reveals that each set of justifications rests on a very different vision of the judicial power and the Court-Congress relationship.

Jim Brudney and Larry Baum have posted this draft on SSRN.

The Supreme Court’s use of dictionaries, virtually non-existent before 1987, has dramatically increased during the Rehnquist and Roberts Court eras to the point where as many as one-third of statutory decisions invoke dictionary definitions. The increase is linked to the rise of textualism and its intense focus on ordinary meaning. This Article explores the Court’s new dictionary culture in depth from empirical and doctrinal perspectives. Among our findings are (a) while textualist justices are the highest dictionary users, purposivist justices invoke dictionary definitions with comparable frequency; (b) dictionary use is especially heavy in the criminal law area, serving what we describe as a Notice function; (c) dictionary use overall is strikingly ad hoc and subjective. We demonstrate how the Court’s patterns of dictionary usage reflect a casual form of opportunistic conduct: the justices almost always invoke one or at most two dictionaries, they have varied individual brand preferences from which they often depart, they seem to use general and legal dictionaries interchangeably, and they lack a coherent position on citing to editions from the time of statutory enactment versus the time the instant case was filed.

The Article then conducts a detailed doctrinal review, leading to an innovative functional analysis of how the justices use dictionaries: as way stations when dictionary meanings are indeterminate or otherwise unhelpful; as ornaments when definitions are helpful but of marginal weight compared with more traditional resources like the canons, precedent, legislative history, or agency deference; and as barriers that preclude inquiry into or reliance on other contextual resources, especially legislative history and agency guidance. Ornamental opinions (the largest category) typically locate dictionary analysis at the start of the Court’s reasoning, subtly conveying that the lexicographic method should matter more than other interpretive resources. Barrier opinions would have been inconceivable prior to 1987 but now occur with disturbing frequency: they elevate the justices’ reliance on definitions in a radically acontextual manner, ignoring persuasive interpretive evidence from the enactment process and from agency experience.

Finally, the Article analyzes whether the Court’s patterns of inconsistent dictionary usage, and its tendency to cherry-pick definitions that support results reached on other grounds, distinguish dictionaries from high-profile interpretive resources such as canons and legislative history that have been criticized on a similar basis. We contend that dictionaries are different from a normative vantage point, essentially because of (i) how both wings of the Court have promoted them by featuring definitions frequently and prominently in opinions, and (ii) how dictionaries are effectively celebrated as an independently constituted source of objective meaning (unlike the canons as judicial branch creations and legislative history as a congressional product). Yet our findings demonstrate that the image of dictionary usage as heuristic and authoritative is a mirage. This contrast between the exalted status ascribed to dictionary definitions and the highly subjective way the Court uses them in practice reflects insufficient attention to the inherent limitations of dictionaries, limitations that have been identified by other scholars and by some appellate judges. Further, the justices’ subjective dictionary culture is likely to mislead lawyers faced with the responsibility to construct arguments for the justices to review. The Article concludes by offering a three-step plan for the Court to develop a healthier approach to its dictionary habit.

I am looking forward to reading this!

Victoria Nourse has posted this article on SSRN (Yale Law Journal).  Here is the abstract:

We have a law of civil procedure, criminal procedure, and administrative procedure, but we have no law of legislative procedure. This failure has serious consequences in the field of statutory interpretation. Using simple rules garnered from Congress itself, this Article argues that those rules are capable of transforming the field of statutory interpretation. Addressing canonical cases in the field, from Holy Trinity to Bock Laundry, from Weber to Public Citizen, this article shows how cases studied by vast numbers of law students are made substantially more manageable, and in some cases quite simple, through knowledge of congressional procedure. No longer need legislative history always be a search for one’s friends.

Call this a decision theory of statutory interpretation. This approach is based on how Congress does in fact make decisions and thus is a positive theory. Normatively, it has the advantage of privileging text without blinding judges either to relevant information or to their duty to implement Congress’s decisions, including Congress’s own decisionmaking methods. It may also have the side benefit of reducing legislative incentives to manipulate the rules or to engage in strategic behavior to induce particular statutory interpretations.

If you read one response to Justice Scalia’s new book (with Bryan Garner), read this devastating review in The New Republic. 

Aside from the merits of the review, it seems to escalate an increasing public tension between Judge Posner and Justice Scalia.

The following is a guest post from Abbe Gluck [cross-posted from Balkinization]:

Abbe Gluck

The latest fracas over health reform—the challenge to subsidies for the federal exchanges—offers a long-overdue opportunity to think about how particular features of modern lawmaking might lead to new interpretive presumptions for statutory interpretation. This is the first of series of posts in which I will flesh out that idea. Here, I will focus on the role of the Congressional Budget Office, and how the “budget score” (the budgetary estimate of the effects of legislation) might be a useful tool of modern statutory interpretation, and how it sheds light on the current debate over the federal exchanges.

In a forthcoming article based on an empirical study of congressional drafting (co-authored with Lisa Bressman), we have argued for a new “CBO canon”: An interpretive presumption that ambiguities in legislation should be construed in the way most consistent with the assumptions underlying the congressional budget score on which the initial legislation was based. Both our empirical study and numerous articles in the political science and popular literature substantiate the notion that Congress now drafts in the shadow of the score. In the context of health reform, there was widespread reporting to this effect. As just one of many examples, the New York Times reported in March 2010: “Democrats have spent more than a year working with the nonpartisan budget office… Whenever the budget office judged some element or elements of the bill would cause a problem meeting the cost and deficit-reduction targets, Democrats just adjusted the underlying legislation to make sure it would hit their goal.”

Indeed, I would suggest that the budget score offers better evidence of congressional “intent” than other commonly consulted non-textual tools, including legislative history. This is because, unlike some types of legislative history, the budget score is produced by a nonpartisan office, widely publicized, often debated and usually the focus of many members and staffers. This gives it indicia of reliability that critics of legislative history have often thought lacking for that tool, and yet to my knowledge the Court has never used the score to help resolve statutory ambiguities.

This brings us to the most recent ACA-related scuffle. The ACA’s opponents have raised a challenge to the IRS’s interpretation that the Act allows subsidies not only for those who buy insurance on state-operated exchanges, but also for those who live in states with federally-operated exchanges. The dispute stems from what was most certainly sloppy drafting in the statute—in particular, the separation into two different sections of those provisions concerning the state exchanges and those provisions allowing the federal government to operate an exchange if states are unwilling or unable to do so. (This issue of how courts should construe such hastily-enacted and lengthy statutes is another one that we take up in our forthcoming article and to which I will return in a future post).

In my view, the overall structure of the Act and its legislative history, plus the confirmatory language in the health reform reconciliation bill, amply support the IRS’s position. If more is wanting, however, the CBO evidence makes it a slam dunk. Throughout the debates and reporting over health reform, legislators, the Administration and the media repeatedly discussed and debated the ACA’s CBO score, and at all times that score was based on the provision of subsidies to all qualifying purchasers on the exchanges, regardless of whether those exchanges were operated by the states or the federal government. The “CBO canon” clearly supports the agency’s interpretation.

Must-read Abbe Gluck and Michael Graetz on the severability argument in the health care case.  It concludes:

It’s not clear why the Obama administration has chosen this course. Perhaps it made a strategic choice to raise the stakes of striking down the mandate by asking the court to also invalidate the law’s more popular provisions. Or it may be concerned that, if the mandate alone is struck down, there would not be enough votes in Congress to pass new provisions to compensate the insurance industry for its loss. But as a legal matter, the court should reject the argument.

We believe that imposing the mandate was within Congress’s powers to regulate commerce and that the legislation should be upheld. But if the Supreme Court strikes the mandate down, the rest of the law should stand, and Congress should have to decide what happens next.

Why should an unelected court free the insurance industry from having to do its own political lobbying work in Congress? Why should the court choose whether or not to deny injured and sick Americans health insurance? These crucial decisions must be left to our elected officials, who — unlike the Supreme Court — can then be held accountable for them by the voting public.

Presidential signing statements: Constitutional and institutional implications (Jan. 4).

Seth Barrett Tillman has posted this draft on SSRN.  Here is the abstract:

The Foreign Emoluments Clauseis a constitutional backwater. So much so, that there is no substantial discussion of this clause in any federal adjudication (although the Office of Legal Counsel has regularly opined on it). Backwaters, however, have an unappreciated and significant virtue. They allow us to discuss our precommitments, assumptions, and methodological positions free from the distractions of the great political issues of the day – issues which naturally tend to divide us in ways which may be unconnected to the merits. Simply put, backwaters allow us to freely debate the merits of contestable worldviews. That is what I propose to do here.

Both Professors Zephyr Rain Teachout and Akhil Reed Amar have discussed the Foreign Emoluments Clause in their recent publications. Amar is an originalist, perhaps the most influential American originalist of the late twentieth century; Teachout, although, perhaps, not an originalist per se, regularly writes in an originalist mode – parsing drafting history, text, structure, precedent, and history – in search of a public (or, perhaps, an intended) meaning contemporaneous with ratification. Both Teachout and Amar might be fairly characterized as left-of-center, but both are also clearly in the academic mainstream. Both Teachout and Amar’s publications are actively cited, if not widely acclaimed, and my own view is that citations and public acclaim vastly underestimate the influence of these two scholars. (However, as do all mere humans, both Teachout and Amar stray into some truly puzzling errors from time to time.) Indeed, there are now several publications that cite both Teachout and Amar.

Interestingly, each takes a position in regard to the Foreign Emoluments Clause which is in clear conflict with the position taken by the other. The stakes here involve more than the contours, scope, purpose, and original public meaning of the Foreign Emoluments Clause (which, in itself, is not an entirely minor thing).

If Amar is correct, then Teachout must be wrong, and it follows that Teachout’s views in regard to congressional power to limit election-related speech and spending are (if not flatly wrong) something that must be carefully reconsidered in light of Amar’s contrary position.

On the other hand, if Teachout is correct, then Amar must be wrong, and it follows that Amar’s views in regard to constitutional structure, intratextualism, and the meaning of coordinate language in other constitutional clauses are (if not plainly wrong) something that must be closely reexamined in light of Teachout’s contrary teachings. This paper will explore that conflict, and, then, I will attempt to reconcile the two positions.

Toby Dorsey has posted this draft on SSRN (forthcoming, University of Richmond Law Review:

When the Supreme Court holds that part of an act is unconstitutional and must be stricken, what does it do with the rest? In almost every case, there is an implicit assumption — shared by every party and every Justice — that the rest of the act should stand, preserving as much of the functionality of the act as possible. In politically charged cases, however, the Court applies this functional assumption to most of the act, but then isolates a few provisions and applies a political preference test to those provisions — preserving those provisions only if Congress would have wanted them preserved. The Court’s political preference test is a test that has not been applied consistently and cannot be applied with any certainty. Accordingly, it may be unconstitutionally vague. Regardless, it is unseemly and unreliable. It is also unwise, because the test as formulated by the Court is so open-ended — its consequences so potentially broad — that every case not only allows, but actually invites, an argument that the Court should strike down an entire act. This leaves the entire statute book fraught with uncertainty, because the Court has left open the possibility in every case that it may strike far more broadly than the Constitution requires if there is a political justification for doing so. The Court should discard the political preference test. If part of an act is unconstitutional, the Court should strike that part, and leave the rest alone.

Ward Farnsworth Dustin Guzior and Anup Malani have posted this draft on SSRN.  Here is the abstract:

What role do policy preferences play when a judge or any other reader decides what a statute or  other legal text means? Most judges think of themselves as doing law, not politics. Yet the observable decisions that judges make often follow patterns that are hard to explain by anything other than policy preferences. Indeed, if one presses the implications of the data too hard, it is likely to be heard as an accusation of bad faith – a claim that the judge or other decision-maker isn’t really earnest in trying to separate preference from judgment. This does not advance the discussion, and distracts from the possibility of more interesting explanations. A promising antidote, we believe, lies in empirical study not just of large numbers of judicial decisions collected over time, as previous scholars have done, but of the immediate experience of legal interpretation.

We compile, and here present, rich evidence of what happens when lawyers in training are asked in controlled surveys to distinguish between their policy preferences on the one hand and their own interpretive judgments or predictions about courts judgments on the other. Our findings offer two lessons. First and foremost, they suggest that separating policy preferences from judgments about the meaning of statutes is very difficult. The same is true of preferences and predictions about what courts will do: respondents tend to predict that courts will do what the respondents themselves prefer. The fundamental entanglement of preferences and interpretation raises important questions about the ability of anyone – including judges – to neutrally carry out interpretive strategies meant to generate answers in close cases. Second, however, the results also show that certain ways of framing the interpretive question can reduce the influence of preference on interpretation – though perhaps not its effect on predictions. Instead of simply asking respondents how they would interpret the text of a statute or how the drafters would likely want it applied, it is better to ask respondents how ordinary readers would interpret the statute. This framing of the interpretative question can debias an individual’s interpretation of a statute.

In short, interpretative theories that elevate text alone or give the intent of drafters are both susceptible to contamination by private preferences. To immunize interpretation from these preferences, a theory that asks how ordinary readers would read a statute may be the best prescription.

This looks like a very interesting paper!

Fascinating WSJ article.

The Congressional Research Service has issued this report.