" Canon Shortfalls and the Virtues of Political Branch Interpretive Assets"

Jim Brudney has posted this draft on SSRN. Here is the abstract:

This article begins by examining Philip Frickey's treatment of the canons of construction. The article analyzes Frickey's effort to unmask, explaining how he critically assesses descriptive claims that the canons promote more predictable construction of statutes, as well as normative claims that they foster more neutral policy outcomes. Frickey ultimately defends the canons as an institutional resource, of value to the judiciary in certain settings, but he does so in more reserved terms than those offered by canon enthusiasts. The article then expands upon Frickey's concerns by contending that on two separate grounds, the canons should be subordinated to the political branch interpretive assets of legislative history and agency guidance.

The first ground involves legitimacy and stems from our separation of powers understanding that in the statutory domain, federal courts are expected to act as agents of the politically accountable branches. The Founders' Article I contribution (authorizing Congress to organize itself in fulfillment of its legislative mission and requiring Congress to publish a record of its legislative proceedings) helped create two notable innovations in legislative design. These design innovations, dating from the earliest Congresses, were the determination to favor detailed public reporting of floor debates and the decision to create permanent standing committees that produced oral and then written committee reports. Taken together, these innovations led to the development of legislative history--formatively during the early and mid nineteenth century--as a means of informing and persuading members of Congress regarding the bills on which they were to vote. Canons lack any comparable constitutional foundation. Nor--unlike legislative history--was their functional role in the lawmaking process recognized by the early Congresses. Because the canons' interpretive validity is fundamentally disconnected from the Article I lawmaking structure and also from the realities of the legislative process, there is reason to question whether courts should value canons to the same extent as interpretive resources produced by Congress.

The second ground involves objectivity. Over a period of many decades, the Court's interpretive rubric has given rise to a relatively objective internal hierarchy for contextual resources produced by Congress and also by the executive branch. Certain types of legislative history and agency directives are presumptively valued more than others. Judicial deviations from this hierarchy tend to be accompanied by some explanation for the departure. Importantly, the priorities established for legislative history and agency directives flow from how Congress and the executive function, both in terms of relying on authoritative sources of expertise and valuing deliberative processes. By contrast, there is no recognized ordering of authority within the canonical universe. The Court has never developed rules for harmonizing or prioritizing among the scores of existing canons, many of which the Court has created in recent decades. This lack of an intelligible framework for ordering the canons renders them distinctly more susceptible to judicial manipulation than other interpretive resources.

Posted by Rick Hasen at May 18, 2010 08:26 PM