Legislation & Regulation - Bibliography

Does the doctrine of stare decisis support judicial attempts to retheorize dubious precedents by putting them on firmer footing? If it does, can retheorization provide a means for Chevron to endure as a staple of administrative law notwithstanding serious challenges to its established rationale?
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This Article examines three facets of the relationship between statutory interpretation and the law of stare decisis: judicial interpretation, administrative interpretation, and interpretive methodology.

In analyzing these issues, I emphasize the role of stare decisis in pursuing balance between past and present. That role admits of no distinction between statutory and constitutional decisions, calling into question the practice of giving elevated deference to judicial interpretations of statutes. The pursuit of balance also suggests that one Supreme Court cannot bind future Justices to a wide-ranging interpretive methodology. As for rules requiring deference to administrative interpretations of statutes and regulations, they are articulated at high levels of generality, cut across numerous contexts, and dictate the inferences that future Justices must draw from congressional and administrative ambiguity. Taken in combination, these factors give rise to a strong argument that administrative-deference regimes like the Chevron and Auer doctrines fall outside the bounds of stare decisis.
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Over the past three decades, since the late Justice Scalia joined the Court and ushered in a new era of text-focused statutory analysis, there has been a marked move towards the holistic interpretation of statutes and “making sense of the corpus juris.” In particular, Justices on the modern Supreme Court now regularly compare or analogize between statutes that contain similar words or phrases--what some have called the “whole code rule.” Despite the prevalence of this interpretive practice, however, scholars have paid little attention to how the Court actually engages in whole code comparisons on the ground.

This Article provides the first empirical and doctrinal analysis of how the modern Supreme Court uses whole code comparisons, based on a study of 532 statutory cases decided during the Roberts Court's first twelve-and-a-half Terms. The Article first catalogues five different forms of whole code comparisons employed by the modern Court and notes that the different forms rest on different justifications, although the Court's rhetoric has tended to ignore these distinctions. The Article then notes several problems, beyond the unrealistic one-Congress assumption identified by other scholars, that plague the Court's current approach to most forms of whole code comparisons. For example, most of the Court's statutory comparisons involve statutes that have no explicit connection to each other, and nearly one-third compare statutes that regulate entirely unrelated subject areas. Moreover, more than a few of the Court's analogies involve generic statutory phrases--such as “because of” or “any”--whose meaning is likely to depend on context rather than some universal rule of logic or linguistics.

This Article argues that, in the end, the Court's whole code comparisons amount to judicial drafting presumptions that assign fixed meanings to specific words, phrases, and structural choices. The Article critiques this judicial imposition of drafting conventions on Congress--noting that it is unpredictable, leads to enormous judicial discretion, reflects an unrealistic view of how Congress drafts, and falls far outside the judiciary's institutional expertise. It concludes by recommending that the Court limit its use of whole code comparisons to situations in which congressional drafting practices, rule of law concerns, or judicial expertise *77 justify the practice--e.g., where Congress itself has made clear that one statute borrowed from or incorporated the provisions of another, or where judicial action is necessary to harmonize two related statutes with each other.
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It has become standard among statutory interpretation commentators to declare that, “We are all textualists now.” The comment stems from the observation that in the modern, post-Scalia era, all of the Justices on the U.S. Supreme Court pay significant attention to statutory text when construing statutes and, relatedly, that legislative history use by the Court as a whole has declined since its heyday in the 1970s. The account of textualism's triumph is so prevalent that some scholars have declared purposivism--or at least traditional purposivism--essentially defunct. Two prominent textualist scholars in particular have suggested that there is a “new purposivism” at work on the modern Court and that this purposivism is textually constrained, limiting its focus to the means identified in the text of the statute rather than the underlying policy objectives motivating the statute--or, alternately, using purpose as a threshold consideration in determining whether a statute's text is ambiguous in the first place.

This Article challenges the conventional “purposivism is dead or dying” narrative in two important ways. First, relying on data from an empirical analysis of 499 Roberts Court statutory interpretation cases decided between 2006 and 2017, it argues that traditional purposivism is alive and well on the modern Supreme Court. That is, while purposivist Justices in the modern era do pay attention to text and invoke textual canons in a way that their 1970s purposivist counterparts *1276 did not, modern purposivists have not abandoned the traditional purposive approach of identifying a statute's policy objective and adopting the construction that best fits that objective. On the contrary, modern purposivists regularly invoke statutory purpose, intent, and legislative history--even if the Court as a whole does not. Second, and perhaps more importantly, the Court's textualist Justices have been quietly engaging in a form of purposive analysis that comes closer to traditional purposivism than scholars and jurists have recognized. That is, the textualist Justices regularly have been using pragmatic reasoning, as well as traditional textual canons such as noscitur a sociis and the whole act rule, to impute a specific intent or policy goal to Congress. This practice, which I call “backdoor purposivism,” goes beyond using text as the best evidence of statutory purpose and entails significant judicial guesswork and construction of legislative purpose and intent.

The Article suggests that, in the end, there may be less distance between textualists and purposivists than the old debates suggest--but because textualists have embraced purpose and intent in unexpected ways, rather than because, or merely because, purposivists have become more text focused. It concludes by advocating that both textualists and purposivists employ interpretive resources outside their preferred toolkit to check the accuracy of their initial statutory readings and to curb the influence of their inherent personal biases.
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This Article offers the first targeted study of the Supreme Court’s use of canons and other tools of statutory interpretation in a “dueling” manner--that is, in both the majority and dissenting opinions in the same case, to support opposing outcomes. Taking its inspiration from Karl Llewellyn’s celebrated list of canons and countercanons, this Article examines how often and in what ways the members of the Roberts Court counter each other’s references to particular interpretive tools when disagreeing about the proper reading of a statute. Many of the Article’s findings are unexpected and undermine the assumptions made by some of the most prominent theories of statutory interpretation. Most notably, the data reveal that several of textualism’s most-favored interpretive tools are at least as susceptible to dueling use as the purposivist tools that textualists have long denigrated as indeterminate and readily subject to judicial manipulation. For example, the study shows that the Justices dueled extensively over the meaning of statutory text. By contrast, they dueled at far lower rates over legislative history, purpose, and intent. Moreover, the Justices dueled over dictionary references, the whole act rule, and language canons at rates that were virtually identical to the rates at which they dueled over the purposivist-preferred tools. The study also reveals that the canons do not seem capable of constraining the Justices to vote against ideology and that noncanon tools of analysis, including precedent and practical-consequences- *910 based reasoning, lead to higher rates of dueling than do most traditional canons or tools of statutory interpretation. After reporting the data, the Article examines doctrinal patterns in how the Justices duel over individual canons and explores the theoretical implications of the Justices’ dueling canon use.
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This Article provides the first empirical study of the Roberts Court’s use of substantive canons in statutory interpretation cases. Based on data from 296 cases, the Article argues that much of the conventional wisdom about substantive canons of statutory construction is wrong, or at least overstated with respect to the modern Supreme Court. Substantive canons--for example, the rule of lenity, the avoidance canon, and the presumption against extraterritorial application of domestic laws--have long been criticized as undemocratic judge-made rules that defeat congressional intent, enable interpreters to massage different meanings out of the same text, and make statutory interpretation unpredictable. Scholars have bemoaned the amount of work that substantive canons perform in statutory interpretation cases, and several have charged that textualist judges in particular overuse such canons. But virtually all of these critiques have occurred in the absence of empirical evidence about how judges invoke substantive canons in practice.

This Article reconsiders the substantive canons in light of new data collected from the Roberts Court. The data show that, contrary to the conventional wisdom, substantive canons are infrequently invoked on the modern Court--and even when invoked, they rarely play an outcome-determinative role in the Court’s statutory constructions. Perhaps most surprisingly, textualist justices--including Justice Antonin Scalia--rarely invoke substantive canons in the opinions they author, and do so less often than most of their purposivist counterparts. Moreover, contrary to the conventional view that substantive canons empower judges to read their personal policy preferences into statutes, the Court’s conservative justices have employed substantive canons to support liberal case outcomes as often, or nearly as often, as they have employed such canons to support conservative outcomes. Further, doctrinal analysis shows that the Roberts Court repeatedly has used substantive canons to honor, rather than frustrate, congressional intent.

The Article also challenges scholars’ gloomy warnings that justices in the modern, textualism-influenced era have replaced legislative history with substantive canons as the go-to resource for deciphering ambiguous statutory text. Rather, the data from the Roberts Court show that most of the justices referenced legislative history at higher rates than they referenced substantive canons. Moreover, the Court’s own precedents--rather than substantive canons or legislative history--seem to be the unsung gap-filling mechanism that the justices turn to when confronted with unclear statutory text. After reporting the data, the Article discusses the implications of its findings for current debates in statutory interpretation, arguing that statutory interpretation theory needs to pay less attention to substantive canons and more attention to how the Court employs precedents when construing statutes.
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How much deference--or what kind--should courts give to longstanding agency interpretations of statutes? Surprisingly, courts and scholars lack a coherent answer to this question. Legal scholars long have assumed that longstanding agency statutory interpretations are treated with heightened deference on judicial review, and federal courts sometimes have made statements suggesting that this is the case. But in practice, federal court review of longstanding agency interpretations--at both the U.S. Supreme Court and courts of appeals-- turns out to be surprisingly erratic. Reviewing courts sometimes note the longevity of an agency’s statutory interpretation as a plus factor in their deference analysis but at other times completely ignore or dismiss an agency interpretation’s longevity. Moreover, judicial rhetoric about the relevance of longevity in the review of agency statutory interpretations is inconsistent from case to case.

What makes this doctrinal incoherence particularly remarkable is that courts usually care much more about the predictability of statutory interpretations and about upsetting settled institutional practices. In fact, in two analogous contexts--judicial interpretations of statutes and historical executive branch practice in the constitutional arena--courts accord strong precedential effect, or a presumption of correctness, to established legal constructions. This Article provides the first detailed study of federal court treatment of longstanding agency statutory interpretations, illuminating doctrinal inconsistencies and examining longevity-related factors that both favor and disfavor deference. The Article also compares federal courts’ chaotic treatment of longstanding agency statutory interpretations with the precedential effect that courts give to longstanding judicial interpretations of statutes and the historical *1824 “gloss” effect that courts give to past executive practice in constitutional interpretation. Ultimately, the Article argues that longstanding agency interpretations of statutes are at least as deserving of heightened judicial deference and that, at a minimum, federal courts’ disparate treatment of such interpretations--without acknowledging or justifying the distinction--is troubling. The Article advocates that longstanding agency interpretations should be entitled to precedential effect by reviewing courts and outlines how such an approach might work.
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A promising new school of statutory interpretation has emerged that tries to wed the work of Congress with that of the courts by tying interpretation to congressional process. The primary challenge to this process-based interpretive approach is the difficulty in reconstructing the legislative process. Scholars have proposed leveraging Congress's procedural frameworks and rules as reliable heuristics to that end. This Article starts from that premise but will add wrinkles to it. The complications stem from the fact that each rule is adopted for distinct reasons and is applied differently across contexts. As investigation into these particularities proceeds, it becomes apparent that the complications are also rooted in something deeper--that Congress's procedures are often hollow, even fraudulent. Congress, it turns out, breaks its own rules with impunity.

Which brings us to a deeper riddle: What is the significance of the rules to an interpreter when Congress routinely flouts them? If one's goal is to accurately depict the lawmaking process in hopes of deriving rules of construction that have democratic roots, then surely the interpreter must discard the rules as hopelessly unreliable guideposts. Then again, if the interpreter's ultimate aim is to serve democratic ends, then shouldn't we strive toward rule of law values, ensuring that Congress acts in an honorable way? Ultimately, I resolve the question by first asking what the rules are meant to do. Only then can we understand what it means to interpret by them. Through examination of many procedural contexts, I set forth an innocuous account of congressional defiance of the rules. Rather than a symptom of branch dysfunction, we should see the rules as guidelines that attempt to order congressional business but that ultimately must give way to politics. Nonetheless, some rules can help the interpreter paint a more faithful picture of congressional procedure in spite of their not being followed. More broadly, I conclude that interpretive presumptions deriving from the general efficacy of legislative rules, rather than their precise enforcement, are more successful in mirroring congressional reality.
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This Essay christens a new canon into the doctrines of statutory interpretation, one that can counter the too-powerful canon that has courts imposing norms against redundancy in their readings of statutes. Judges engaging in statutory interpretation must do a better job of recognizing how and why legislatures choose not to draft with perfect parsimony. Our Essay highlights the multifarious ways legislatures in federal and state governments self-consciously and thoughtfully--rather than regrettably and lazily--think about employing “belt-and-suspenders” efforts in their drafting practices. We then analyze courts' disparate efforts to integrate a belt-and-suspenders canon into their thinking about anti-surplusage rules and other textual canons. By sketching a promising future for this new canon, we hope to draw judicial practice closer to legislative practice and to enhance the enterprise of statutory interpretation for textualists and intentionalists alike.
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[From the Introduction] The doctrine of precedent, in its stare decisis form, presents a challenge to any originalist. This doctrine provides that a court should (at least sometimes) be bound by its own precedent, even if that precedent was wrongly decided in the first place. Yet if the original meaning of the text at issue is a judge's focus, why should an intervening decision of the court--and a mistaken one at that--matter at all? Despite this tension, every originalist also at least purports to care about precedent.

This Essay focuses on Justice Gorsuch's apparent views on precedent in the context of statutory interpretation, where precedent is said to have special force. To this end, I review the available evidence, including Justice Gorsuch's coauthored treatise on precedent, his opinions while serving on the court of appeals, his public speeches, and the early opinions (majorities, concurrences, and dissents) he has written while on the Supreme Court.

My analysis suggests that, notwithstanding the treatise's suggestion that precedent in the context of statutory interpretation indeed carries even greater weight than in other contexts, and notwithstanding his very occasional willingness to turn to nontextualist sources in interpreting statutes that Justice Scalia would have rejected, it is nevertheless likely that Justice Gorsuch shares Justice Scalia's view that precedent carries no special weight in this context. More broadly, my deep dive into Justice Gorsuch's oeuvre also leads me to some observations about the future of textualist-originalism on the Supreme Court, particularly with respect to Justice Gorsuch's role in further developing it and a comparison of his style with Justice Scalia's.

The Essay proceeds as follows. Part I briefly reviews the arguments in favor of deference to precedent, with particular attention to the context of statutory interpretation and Justice Scalia's argument against special deference. Part II considers Justice Gorsuch's apparent views on the matter. Finally, Part III considers the role that Justice Gorsuch and the current Supreme Court may play in the continued development of textualism on the Court and in public discourse.
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According to the conventional wisdom, the Chevron doctrine rests on a presumption about congressional intent--a presumption that when a statute is ambiguous, Congress intended the gap to be filled by the agency charged with administering the statute. But the presumption is a mere fiction; when Congress enacts a statute, it generally has no view on who should resolve the ambiguities that later arise.

This Article proposes a new theory of Chevron, one that rests on a simple reality: no matter how determinate the law may seem, there will inevitably be hard cases--cases in which the law runs out before providing a solution. As legal positivism teaches, hard cases cannot be decided by merely applying existing law. When the law runs out, a case can be decided only by making new law to fill the gap. There are thus two distinct stages in deciding every hard case: applying the law and making it.

This Article argues that these two stages correspond to Chevron’s two steps. Step One is the ordinary, law-applying stage of any case of statutory interpretation. Step Two is the law-making stage, when a court is faced with a gap to fill. The presence of an agency construction, however, means that the court itself need not make law to fill that gap; instead, it may defer to the law-making of the agency--which, unlike the court, is accountable to the political branches. Viewed this way, deference emerges as an act of judicial self-restraint, grounded in the recognition that the law carries greater legitimacy when made by politically accountable agencies than by unelected judges.

This positivist account of Chevron elucidates the doctrine’s familiar two-step inquiry, shedding light on longstanding questions about the doctrine’s application. It also answers recurring objections to judicial deference more generally, including the claim that such deference conflicts with the Constitution. Finally, understanding Chevron as a doctrine of hard cases has important implications for the scope of Chevron’s domain.
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[From the Introduction] THE federal courts give a great deal of deference to administrative agencies. Under the doctrine announced in Chevron U.S.A. v. Natural Resources Defense Council,1 courts construing ambiguous provisions in agency-administered statutes must defer to reasonable, authoritative agency interpretations of those provisions.2 The question remains, however, whether that same deference is due when responsibility for administering a statute is assigned to more than one agency. Under the prevalent understanding of Chevron, deference to administrative interpretations of ambiguous statutory language is based on presumed congressional intent. According to this presumption, Congress is assumed to intend that agencies, rather than courts, should fill in the gaps in ambiguous statutes when Congress grants those agencies administrative authority.3 This presumption presents relatively few problems in ordinary cases. But when courts must interpret “shared statutes,” *880 pursuant to which administrative authority is shared among agencies, discerning presumed Congressional intent necessarily becomes a more complicated endeavor.

Shared statutes confound traditional Chevron analysis. Consider, as one example, the Americans with Disabilities Act (“ADA”),4 in which the definition of the term “disability” in the statutory text is ambiguous.5 That definition is, unsurprisingly, also central to the regulatory scheme imposed by the statute. If agencies are prohibited from lending content to such important but poorly defined terms, then the basic idea of Chevron-- that agencies rather than courts should determine the meaning of ambiguous regulatory statutes--will be undermined. But if more than one agency can interpret a given statutory term, the result might be conflicting agency interpretations of important statutory provisions, making application of the normal rules of statutory construction problematic.

An example may help to clarify this point.6 Suppose that the Equal Employment Opportunity Commission (“EEOC”), under its authority to issue regulations with respect to the employment provisions of the ADA,7 issues regulations interpreting “disability” to refer to a person’s condition without regard to mitigating measures.8 Suppose further that the Attorney General (who has authority to issue regulations with respect to the sections of the ADA which relate to public services9) issues a regulation that interprets *881 disability to take mitigating measures into account.10 In this hypothetical, the same statutory term, “disability,” is interpreted to mean two different things in two different parts of the statute. This violates the canon of consistent usage, one of the most basic canons of statutory interpretation.
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[From the Introduction] Since Chevron v. Natural Resources Defense Council,1 forests have been laid waste to publish the outpouring of legal commentary on that decision and its progeny. Although these commentators seem to have recognized that the Chevron decision validated agency statutory interpretation as an autonomous enterprise, virtually no one has even asked, much less answered, some simple questions about agency statutory interpretation:2 As a factual matter, how do agencies interpret statutes? Are there distinctive interpretive methodologies that appeal to administrators? In what contexts? With what effects? And, on the normative side, how should administrative agencies approach their interpretive task? The recognition that administration operates autonomously much of the time need not mean--indeed, should not mean--that it has no internal normative direction.3 Surely, in a legal world where agencies are, by necessity, the *503 primary official interpreters of federal statutes, and where that role has been judicially legitimated as presumptively controlling, attention to agencies’ interpretative methodology seems more than warranted.

This Article begins a discussion of administrative interpretation as an autonomous enterprise. It approaches administrative interpretation as a legal practice in its own right, having its own customs and normative constraints. While this Article compares administrative interpretation with judicial practice, it does not focus on the relationship between courts and agencies. Instead, it aims to understand both the normative and positive dimensions of administrative agency interpretation of statutory language.

The normative analysis asks what norms a responsible administrator should observe when engaging in statutory interpretation. The positive inquiry seeks to describe agency interpretive practice. This approach is obviously isomorphic with the way the judiciocentric legal literature tends to talk about judicial interpretation of statutes

The discussion is highly tentative, often conclusory, and perhaps even question-begging. The topic is vast, and this Article cannot hope to provide an exhaustive analysis. Moreover, its discussion operates in an awkward space that Jurgen Habermas famously described as the space between facts and norms.4 This Article posits normative propositions about how agencies should interpret statutes based largely on what is presumably the position of administrative agencies in the scheme of American governance--an argument of the sort that my late colleague Charles Black would have recognized as based on an analysis of the “structure and function”5 of administrators within the American constitutional system. Put slightly differently, this Article hypothesizes the position that responsible administrators should take toward statutory interpretation given their position in the American constitutional order (norms) and the practical necessities of administration (facts). The concrete reason for this “hypothetical” stance will become clear when the Article turns to the description of agency practice; for we can only observe administrators’ practices, not their internal normative perspective on these matters.

But this inquiry also operates between facts and norms in a more profound sense: We have yet to construct an ideal of administrative legitimacy that accommodates the generalized discourse of law in courts to the profoundly different discourse of law in action, particularly where most of that action is in the form of public administration.

As the discussion that follows illustrates, this tension is acute where the *504 issue involves statutory interpretation. There are persuasive grounds for believing that legitimate techniques and standards for agency statutory interpretation diverge sharply from the legitimate techniques and standards for judicial statutory interpretation. And, if that is true, it produces something like a paradox of deference: Fully legitimate judicial interpretation will conflict with fully legitimate agency interpretation. This Article’s concluding section offers some thoughts on managing, but hardly resolving, this paradox.
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[From Part I] Academic ferment concerning “interpretation” has clearly reached the “heady brew” stage. And, with particular reference to statutory interpretation, commentators have recently staked out positions representing most of the major currents and cross-currents of legal scholarship. As with most topics that become “hot” in the law journals, there is thunder on the right,1 lightning on the left,2 as well as attempts to do more than muddle in the middle.3 Yet, whether commentators emphasize the potentially chaotic or self-interested nature of legislation,4 the internally contradictory or radically subjective nature of norms,5 or the *828 necessity of tradition-based,6 communitarian,7 or pragmatic8 solutions to interpretive puzzles, one underlying message seems the same: attempts to link the interpretation of statutes to the commands of an identifiable legislature are doomed. If we ever believed in the naive “faithful agent” model of statutory interpretation,9 we can no longer.

Legal academic ferment is often a function of things that are happening in the world outside the academy — legal innovations that cause commentators to rethink or gain a different perspective on perennial legal issues. Most of the events mentioned to this point, however, are part of what I call the “tertiary” legal literature: a literature prompted largely by the actions or analyses of other commentators who are themselves often developing legal theory out of ideas and perspectives imported from other academic fields.10 In this increasingly common literature, commentators use primary legal materials only for illustration, if at all. Primary legal materials — cases, statutes, regulations, and administrative adjudications — neither motivate the legal analyses in the tertiary literature nor supply or reorient the commentator’s theoretical perspective.

The return of academic legal commentators to issues of statutory interpretation has occurred, however, concurrently with another set of disputes over statutory interpretation. These disputes have also engaged legal commentators, but in their traditional reactive mode of responding to the behavior of primary legal actors, particularly the federal courts and Congress. At the base of these controversies are potential changes in both the methodological presuppositions and the substantive commitments that have previously structured the United States Supreme Court’s interpretation of federal statutes.

On the methodological side, a group of doctrines or commitments of three basic types frames the interpretive debate: requirements of clear statement; attachment to “plain meaning” analysis; and increased deference to administrative agency policy choice in the absence of explicit statutory direction to the contrary. A brief description of these three domains of new or revised interpretive approach will explain why commentators *829 sometimes refer to the new doctrines as elements of a “new textualism”11 in statutory construction.
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In resolving questions of statutory meaning, the lion's share of Roberts Court opinions considers and applies at least one interpretive canon, whether the rule against surplusage or the presumption against state law preemption. This is part of a decades-long turn toward textualist statutory interpretation in the Supreme Court. Commentators have debated how to justify canons, since they are judicially created rules that reside outside the statutory text. Earlier studies have cast substantial doubt on whether these canons can be justified as capturing congressional practices or preferences; commentators have accordingly turned toward second-order justifications, arguing that canons usefully make interpretation constrained and predictable, supplying Congress with a stable interpretive background. Based on an extensive study tracking the use of over 30 interpretive canons in the first 10 years of the Roberts Court, this Article attempts to contribute evidence to the debate over canons.

The data raise substantial questions regarding stability and predictability. Despite a long tradition of use, some canons have essentially disappeared; meanwhile, the Court has created others out of whole cloth. In addition, application is erratic. The Roberts Court Justices have declined to apply even the most widely engaged canons 20-30% or more of the time, often for difficult-to-anticipate reasons; some well-known canons, such as the rule of lenity and the presumption against preemption, were applied roughly at a 50-50 *72 rate. The story is worse in the many cases in which multiple canons are considered. Based on these and other findings, this Article accordingly argues that predictability and stability arguments cannot supply a firm foundation for canon use. The study also reveals troubling mismatches between canons actually in use and congressional staff acceptance of canons. The Article concludes by suggesting some future directions for investigation and reform.
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Though increasingly disfavored by the Supreme Court, Chevron remains central to administrative law doctrine. This Article suggests a way for the Court to reformulate the Chevron doctrine without overruling the Chevron decision. Through careful attention to the language of Chevron itself, the Court can honor the decision's underlying value of harnessing comparative institutional advantage in judicial review, while setting aside a highly selective reading that unduly narrows judicial review. This re-reading would put the Chevron doctrine--and with it, an entire branch of administrative law--on firmer footing.
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Current debate about the legitimacy of lawmaking by courts focuses on what constitutes legitimate interpretation. The debate has reached an impasse in that originalism and textualism appear to have the stronger case as a matter of theory while living constitutionalism and dynamic interpretation provide much better account of actual practice. This Article argues that if we refocus the debate by asking what constitutes legitimate adjudication, as determined by the social practice of the parties and their lawyers who take part in adjudication, it is possible to develop an account of legitimacy that produces a much better fit between theory and practice. The decisional norms employed by adjudicators include faithful agent arguments about governing texts, arguments from precedent, and arguments from settled practice, but also, in a more qualified fashion, considerations of morality and social consequences. Adjudicators mix and match these norms in reaching outcomes but do so in a way that is regarded as legitimate by the losers as well as the winners in contested adjudications. A general normative implication of this refocused account of legitimacy is that adjudicators, including high-level appeals courts, should not stray far from their basic function of dispute resolution, as opposed to law declaration.
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In the renaissance of statutory interpretation theory, a division has emerged between “new purposivists,” who argue that statutes should be interpreted dynamically, and “new textualists,” who argue that statutes should be interpreted according to their ordinary semantic meanings. Both camps, however, rest their theories on jurisprudentially ambivalent commitments. Purposivists are jurisprudential realists when they make arguments about statutory meaning, but they are jurisprudential formalists in their views of the judicial power to engage in dynamic interpretation. Textualists are the inverse; they are formalistic in their understandings of statutory meaning but realistic in their arguments about judicial power. The relative triumph of textualism has therefore been an importantly incomplete triumph of formalism, and it has left judges and scholars alike in a position of jurisprudential incoherence. This article demonstrates the ambivalence of modern interpretive theory and then offers some initial thoughts on the harms of this ambivalence to the rule-of-law values that both sides are trying to advance.
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Critics including Justices Gorsuch and Thomas have recently condemned the Chevron doctrine, which requires courts to defer to an agency’s reasonable construction of a statute that it administers, for undermining separation of powers and the rule of law. The House of Representatives, not to be left behind, has passed the Separation of Powers Restoration Act of 2016, which commands courts to conduct de novo review of agency statutory constructions.

The Chevron doctrine should indeed be abandoned, but not because it transfers tyrannical power to the executive. Over the last thirty years, an immense amount of confusing case law has evolved detailing whether and how to apply the Chevron two step--which may have one, two, three, or more steps. Viewed as a means to fine-tune deference, this effort has been largely a waste. Notwithstanding overheated charges, there is little reason to think that applying Chevron, as opposed to a supposedly tighter standard of review, such as Skidmore deference, is frequently outcome determinative in significant cases.

Although Chevron, with monumental irony, fails as a deference doctrine, it should not be abandoned without replacement because it serves the important function of protecting agencies’ ability to change how they construe their enabling acts over time to reflect new learning. Rather than protect agency flexibility indirectly through the Chevron doctrine, however, it would be far better for courts to accomplish this end directly by limiting their opinions’ precedential force. More specifically, courts reviewing agency statutory constructions should, contra Chevron, pick the constructions they deem best. They should also, however, refrain from giving binding horizontal stare decisis force to their precedents when reviewing later agency efforts to adopt different statutory constructions. Instead, when a court confronts a choice between following its precedent or affirming an agency’s new construction, the court should adopt whichever one is better without stare decisis distorting the inquiry. This transformation of Chevron deference into a judicial duty to keep an open mind would not change many case outcomes, but it would greatly simplify an absurdly complex corner of administrative law.
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[From the Introduction] We are so used to Congressional gibberish that we take it for granted. We sigh, roll our eyes, and ask, “Will Congress's drafters ever learn?”

If we mean the drafters Congress has on staff, maybe that's an unfair question. Every writing teacher knows that it's impossible to separate developing the wording from developing the ideas. Congress is one drafter. Many people are involved--Senators, Representatives, employees in their offices, committee staff, and the Senate and House Offices of Legislative Counsel. But Congress is one author writing in one voice.

This article examines some typical congressional gibberish and hypothesizes some of its causes. Part I explains how the Supreme Court was flummoxed by a statute so complicated that neither the justices nor the lawyers arguing the case could really understand it. Part II examines a statute so mysteriously drafted that no one really knows what a President could legally do in replacing an Attorney General and Deputy Attorney General who stood in the way when the President wanted to get rid of a special counsel.

Part III shows how Congress hasn't learned how to draft a coherent criminal statute. Part IV examines the federal obstruction of justice statutes, which are so incoherent that reading them is like wading through glue.1 They appear here in Appendix A. I have redrafted those statutes, cutting their size in half. The redraft is in the article's Appendix B. The Appendix's footnotes explain how gibberish became clarity.

Part V hypothesizes some of the causes of Congressional gibberish. The main hypothesis is that legislating is made up of two functions-- *112 designing law and enacting it. Designing law is analogous to architecture or engineering. It's choosing an intellectual structure, with optimal wording, so that a statute will get the right results. Enacting is adopting the design so that it will be enforced. Legislators are good at the enacting part but have few, if any, law-design skills. Judging by their output, almost no one in Congress has the most important law-design skill--simplicity. If there's a way to make something unnecessarily complicated, an American legislature will find it. That's our one true legislative skill.
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[From the Introduction] Justice Scalia is rightly deserving of praise for his insistence that statutory interpretation return to the text. His most recent heirs on the court, Justice Gorsuch and Justice Kavanaugh, are eager to follow and expand his program. Justice Kavanaugh has even taken this to the Constitution, in his hearings insisting that he is a “constitutional textualist.” There are now a majority of members of the Court who are primed to read the text, read the text, read the text. In more than one case in 2018, the Justices have divided 5-4 on statutory meaning, both sides using the textual method, debating at length the use of verbs and infinitives and gerunds and other grammatical constructions.

There is a problem, however, with declaring victory. Justice Kagan has insisted that “[we are] all textualists now.” This might seem a signal of peace between liberals and conservatives on the question of text. If the decisions of 2018 are any indication, a unified method has not led to unified results. The truth is that textualism seems a neutral term that in fact is nothing but neutral. It harbors opposites. Hard and dramatic textualists, like Justice Scalia and Justice Gorsuch, insist that every case can be answered with the text. Low-key and pluralistic textualists, like Justice Kagan and Justice Breyer, urge that text is only one part of the calculation, that one can consult other materials, history, practice, and precedent. Textualism does not solve the problem, as we know, of legislative history. More importantly, it does not solve the deeper problem of textualism's claim to objectivity. If the cases of 2018 are any indication, the number of 5-4 splits in cases involving textual method deployed by both sides is a sure sign that there is no plain meaning to the text, since five members of the Court think it means one thing and four members think it means something entirely different.

In this essay, I address three characteristics of the “new, new, new” textualism or “Textualism 3.0.” Justice Scalia's view has been called the “new textualism”8 because textualism was around long before he was on the scene, as anyone familiar with Blackstone knows. The two “news” I refer to in the first sentence of this paragraph have always been associated with Justice Scalia's textualism, but Scalia's heirs emphasize them even further. The first factor is what I will call “intense decontextualization” (meaning the intensification of text-parsing methodology) accompanied by grammatical analysis. This, as we will see, often leads to one side picking its text and the other side picking a different text. The second factor is an open reference to “original meaning” in statutory construction (a return to the meaning of the text as passed). This leads to increased disruption and the potential to overturn settled precedents. It even suggests that legislative history might actually be of use in discovering meanings that emerged in much earlier times.

In Part I, I argue that textualism's heirs have not solved but embraced the problem of “picking and choosing” text. I use Justice Scalia's important decision in West Virginia University Hospitals, Inc. v. Casey to explain how this might occur and show that the same quality is on display in three cases involving 5-4 splits on statutory interpretation decided by the Supreme Court in 2018. In Part II, I suggest that the Court is moving in a direction toward originalism in statutory construction, given the kinds of cases already decided and those on the Term's docket. This strain of textualism is on a theoretical collision course with the legislative history debate and questions of constitutional updating. I will illustrate this with a case on the Federal Arbitration Act as compared to the smoldering debate about whether Title VII covers sexual orientation discrimination. In Part III, I argue that there is another “new”--or at least intensified--feature of the post-Scalia environment, which legitimizes new textualism's already uber-textualist emphasis on particular words by adding grammatical arguments about the importance of verbs and infinitives and gerunds and other grammatical construction. This intensifies the essential methodological flaw of textualism: decontextualization. Although all textualists claim that they look to context, in practice, they may do just the opposite by pulling words out of context. The move toward originalist statutory interpretation makes this salient by asking interpreters to think like a person in 1925 or 1964 or times long past in our collective history. Such imaginary adventures cannot actually take place, other than in the mind of the interpreter, if one refuses to look at the actual record of a statute's birth.
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Textualists claim that they follow statutory text. This Article argues that, in practice, textualists often create meaning rather than find it. Deploying the analytics of linguistic philosophy, this Article takes a deep dive into textualist methodology. The philosophy of language reveals what legal scholarship has left submerged: The very choice of text can put the thumb on the scales of any interpretation. When one pulls a term out of a statute and isolates it from the rest of the text (what I call “isolationist” method), this decontextualization offers the opportunity for adding and subtracting meaning from the statute by “pragmatic enrichment.” Only by working out these enrichments is it possible to assess whether the hypothesized meanings are cancelled by the rest of the statute. In the end, we need to ask of all interpreters, including textualists, whether they are making rather than finding the meaning of statutes.
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This Article introduces an approach to administrative law that reconciles a more formalist, classical understanding of law and its supremacy with the contemporary administrative state. Courts adopting this approach, which I call “neoclassical administrative law,” are skeptical of judicial deference on questions of law, tend to give more leeway to agencies on questions of policy, and attend more closely to statutes governing administrative procedure than contemporary doctrine does. As a result, neoclassical administrative law finds a place for both legislative supremacy and the rule of law within the administrative state, without subordinating either of those central values to the other. Such an approach reconciles traditional notions of the judicial role and separation of powers within the administrative state that Congress has chosen to construct and provides a clearer, more appealing allocation of responsibilities between courts and agencies. This theory is “classical” in its defense of the autonomy of law and legal reasoning, separation of powers, and the supremacy of law. These commitments distinguish it from theorists that would have courts make a substantial retreat in administrative law. It is “new” in that, unlike other more classical critiques of contemporary administrative law, it seeks to integrate those more formalist commitments with the administrative state we have today--and will have for the foreseeable future.
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[From the Introduction] Justice Scalia is committed to the text as the primary criterion of statutory interpretation because it implements his view that the rule of law should be a law of rules. In his view, when possible, the judge should find rules in the statutory text. If faced with an unclear text, however, the judge should avoid judicial lawmaking by adopting clear background rules to interpret the statute or by deferring to an agency interpretation.

Justice Scalia’s text- and rule-based approach directly challenges traditional case-by-case common law judging. The text and rules on which he relies have clear historically set boundaries and the judge’s job is to determine whether the facts fall inside or outside the rule. The common law approach is different. It assumes that rules embody principles which can be qualified by other principles, and which expand, contract, and evolve as they are applied to the facts of a case.

Justice Scalia rejects the common law approach because it gives judges too much power to make law. He recalls becoming aware that “restrained” common law case-by-case decision making actually gives judges more power than a clear rule, which binds judges in future cases. He objects to a fuzzy, judicial, “manifest injustice” standard to determine whether statutes are retroactive because a “rule of law against retroactivity is thus transformed to a rule of discretion, giving judges power to expand or contract the effect of legislative action.”

Justice Scalia’s main judicial rival is Justice Stevens, who explicitly favors a common law case-by-case approach rather than judicial adoption of general rules. While Justice Scalia believes that giving “precise, principled content” to an otherwise vague text is the “essence of the judicial craft,” Justice Stevens prefers “a rule that allows the specific facts of particular cases to make the difference between life and death-a rule that is consistent with the common-law tradition of case-by-case adjudication.” Justice Stevens acknowledges that the case-by-case approach “provides less certainty than legislative guidelines,” but believes the rule-based approach is better suited to “a Napoleonic Code drafted in accord with the continental approach to the formulation of legal rules.” For Justice Stevens, the case-by-case approach is a matter of judicial responsibility, applicable as well to statutory interpretation.
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This paper continues a discussion begun in an earlier paper in this journal.1 That paper dealt primarily with the implications for statutory interpretation of the interest-group theory of legislation, recently revivified by economists; it also dealt with constitutional interpretation. This paper focuses on two topics omitted in the earlier one: the need for better instruction in legislation in the law schools and the vacuity of the standard guideposts to reading statutes—the “canons of construction.”’ The topics turn out to be related. The last part of the paper contains a positive proposal on how to interpret statutes.
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[From the Introduction] Supreme Court cases interpreting Acts of Congress usually contain multiple conflicting opinions that yield seemingly arbitrary results. Indeed, the Court’s general approach to statutory construction virtually guarantees analytical incoherence.

On the one hand, Justice Scalia persuaded his colleagues to expressly adopt “textualism.” This methodology enforces the semantic meaning of a statute’s words--their likeliest usage to a reasonable person familiar with both ordinary linguistic conventions and the statute’s specific context, such as its subject matter and its other provisions. Thus, Justice Scalia (with help from Frank Easterbrook, John Manning, and others) seemingly revived and refined this traditional Anglo-American mode of interpretation, which had fallen out of favor after the New Deal.

On the other hand, the Court has implicitly followed a pragmatic approach, which assumes that statutory language is usually ambiguous (that is, inherently susceptible to at least two different understandings) or vague (an open-ended term, like “reasonableness,” that has one meaning but can be applied in various ways to diverse factual situations). Pragmatism comes in two forms.

The first (and standard) type, championed by Richard Posner, posits that various legislative materials--a law’s text, its drafters’ intent regarding specific provisions (as revealed mainly by legislative history), its overall purpose, and precedent construing similar statutory verbiage-- will allow for more than one possible interpretation. Therefore, judges must consider all of this evidence and choose the construction that will have the most beneficial practical consequences, especially by furthering the policy aims of the enacting Congress.

The second, and more troubling, strain of pragmatism distorts a statute to reach a result that either (a) comports with a Justice’s political, ideological, or policy preferences, or (b) protects the Court from partisan attacks. Such raw pragmatism is immune from objective criticism, as any contrary interpretation rests on the opposite subjective views. Even “standard” pragmatism cannot easily be challenged on legal grounds because divergent opinions simply reflect a different weighing of a hodgepodge of factors.

Put bluntly, the Court’s general approach to statutory interpretation deploys textualist rhetoric to mask pragmatic decisions. To compound the confusion, the Justices routinely invoke specific “canons” of construction that appear to set forth concrete rules, yet actually feature malleable standards that can easily be manipulated. For instance, if a statute can fairly be read in two ways, and one will avoid constitutional questions, that interpretation should be chosen. Although that canon sounds straightforward, its application requires judges to make two determinations that entail the exercise of considerable discretion: whether a statute is genuinely ambiguous and, if so, whether a proffered construction is reasonable. Similar difficulties arise in implementing the Chevron rule, which directs courts to defer to an executive agency’s “permissible” interpretation of unclear terms in its governing statute.
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[From the Introduction] Professor Abbe Gluck and Judge Richard Posner rightly point to the federal courts of appeals as the locus of most statutory interpretation, [Abbe R. Gluck & Richard A. Posner, Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals, 131 Harv. L. Rev. 1298 (2018)] even though the Supreme Court usually gets the attention. One major finding of their recent survey concerns appellate courts' interpretive relationship to the Supreme Court's use of the increasingly relevant canons of construction. Unsurprisingly, the rule of lenity takes on special significance.

Part I outlines the lenity framework and the constitutional bases for the rule. Part II discusses the widespread Roberts Court consideration of the framework and its differing approaches to applications of the rule. Part III discusses the appellate courts' much more limited application of both. The Response concludes with reflections about the significance of the framework-rule distinction in lenity jurisprudence, and argues that this more informed understanding can offer courts a more historically grounded and constitutionally mandated approach to the rule of lenity.
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Legal scholars and jurists believe that federal judges often defer to agency interpretations of statutes. Debate has focused on when judges should defer and how judges should operationalize a deference regime doctrinally, perhaps as a matter of stare decisis. Such normative debates about deference rest upon assumptions that have not been rigorously tested, however. Examining the entire population of Supreme Court cases where an agency interpretation was in play (1984-2006), our empirical study finds that the Justices do not generally give deference-regime precedents anything close to stare decisis effect, but that the policies underlying the major deference regimes do have a discernible effect at the Supreme Court level. We also find that judicial ideology affects the Justices’ applications of deference regimes. As a descriptive matter, we find that deference regimes are more like canons of statutory construction, applied episodically but reflecting deeper judicial commitments, than like binding precedents, faithfully applied, distinguished, or overruled.

As a prescriptive matter, this study provides empirical support for proposals to simplify the Supreme Court’s continuum of deference regimes and to characterize the Court’s deference decisions in the form of canons of statutory construction, and certainly not as precedents entitled to stare decisis effect. More broadly, the empirical analysis casts doubt on both the wisdom and the practicability of academic proposals to treat methodological opinions (such as Chevron) as precedents entitled to stare decisis. A jurisprudential reason for this skepticism, buttressed by the data in our study, is that statutory interpretation methodology (including deference) is inherently ad hoc and ought to be tailored to the circumstances of each statutory case, rather than bound to precommitted rules. Put another way, judicial deference to agency interpretations is a matter where bright-line rules will not necessarily yield greater predictability and law-like behavior among judges than context-saturated standards.
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[From the Introduction] Federal statutes do not come with instructions, but maybe they should. For as long as there have been statutes, lawyers and laymen have puzzled over their inevitable ambiguities. Gradually, case by case, courts have developed assorted tools of interpretation. Scholars, meanwhile, have conceived esoteric theories of how best to resolve statutory ambiguity. And the doctrine and the scholarship have become elaborate and sophisticated. But the very richness of this intellectual landscape has resulted in unpredictability and confusion. As theories and judges have multiplied, it has become ever more difficult to predict which judge will apply which theory to which case. After centuries of judicial and scholarly effort, “[t]he hard truth of the matter is that American courts have no intelligible, generally accepted, and consistently applied theory of statutory interpretation.”

The central, unquestioned premise in this field is that the judiciary is the proper branch to design and implement tools of statutory interpretation. Scholars have unreflectively assumed as much, which is why, almost uniformly, they have implicitly aimed their work at the courts. This Article challenges that assumption. It asks whether Congress can and should help select the tools for interpreting federal statutes. It concludes that Congress has the constitutional power to do so, and that it would be wise to exercise this power.
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Should agencies receive Chevron deference when interpreting the reach of their own jurisdiction? This Article argues that, in general, they should not. The authors begin by identifying and detailing the various different types of “jurisdictional questions” that may arise in statutory interpretation. The Article then surveys how courts have analyzed these different aspects of the jurisdiction problem, with a particular attention directed to statutory silences. The Court’s Chevron jurisprudence strongly suggests that deference to agency determinations of their own jurisdiction should be disfavored, particularly where a statute is silent (and not merely ambiguous) about the existence of agency jurisdiction. In particular, the authors argue that courts should deny Chevron deference regardless of whether an agency is asserting or disclaiming jurisdiction. This no-deference rule should apply in both existence-of-power and scope-of-power cases, but courts should show deference where agencies assert the existence of a factual predicate that triggers jurisdiction. The authors support their proposal with arguments drawing on both traditional administrative law norms and public choice analyses of the incentives faced by agencies and other relevant actors. While there are strong counter-arguments to their proposal--particularly the potential difficulty in distinguishing between jurisdictional and nonjurisdictional questions--this Article maintains that denying deference in the jurisdictional context is desirable and consistent with Chevron principles.
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Most courts now endorse lexical ordering for statutory cases. That is, a limited set of top-tier sources, if adequately clear, are supposed to establish statutory meaning. Lower-tier sources are held in reserve for close calls. Examples include legislative history and deference to agency positions, which often are demoted into tiebreaking roles. In fact, some such hierarchy of sources is approved by working majorities at the U.S. Supreme Court and more than forty state supreme courts. Although popular today, lexically ordered interpretation has risen and fallen before. Indeed, we should pause to reconsider whether these instructions are justified and whether judges can follow them.

This Article explores the core trade-offs and implementation challenges of lexical ordering. On trade-offs, the Article spotlights decision quality, decision costs, and, less intuitively, decisiveness. Compared to aggregating all source inferences, lexical ordering threatens decision quality by sometimes throwing out useful information, but it can reduce decision costs and probably will increase the chance of a decisive judgment. Compared to flatly excluding lower-tier sources, lexical ordering probably yields higher quality decisions and decisiveness, but also higher decision costs. Whether the overall compromise seems tolerable depends on a series of debatable judgment calls. Moreover, the actual trade-offs depend on whether judges lexically order sources in their decisionmaking, not only in their opinion writing. To date, we lack evidence either way.

The Article goes on to report results from a new vignette experiment conducted with approximately one hundred appellate judges. These judges showed curiously mixed success at lexical ordering. In a trade name case, we find little evidence that judges were improperly influenced by legislative history. In an election law case, by contrast, we find evidence that judges were improperly influenced by an agency's position. There is much more to learn about the patterns of judicial behavior in this field. For now, we should expect mixed judicial success at achieving the mixed advantages and disadvantages of lexical ordering. The hard trade-offs cannot be casually assumed or ignored. With that unsettling lesson, more courts might abandon lexical ordering's complex and sometimes fragile architecture--or at least maintain respect for judges who are committed to less orthodox, more extreme, and simpler methods for deciding statutory cases.
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Every legislature in the United States has codified canons--interpretive “rules of thumb”--to guide statutory interpretation, but these codifications have received virtually no attention in the academy. By comparing the interpretive preferences of each legislature in the United States with the common law canons, this Article asks whether the common law canons, and the dominant theories of statutory interpretation underlying them, are consistent with how legislatures want their statutes to be interpreted. Because the canons are nothing more than common law, legislative enactments that repudiate or support canons should not only be included in any conversation about the canons, but also considered important and controlling. Thus, the codifications suggest that the prevailing interpretive toolbox should be revised and recalibrated, and that the three currently dominant theories of statutory construction--and their claims to being the most appropriate approach for construing statutes in a democracy--should be re-evaluated in light of these legislative choices. Some canons that are controversial in the judiciary and academy, such as recourse to legislative history, are not so controversial in the eyes of legislatures. Other judicially well-settled canons, such as expressio unius, are in fact unsettled because legislatures reject them in their codes. Additionally, the Article addresses the prevailing theories of statutory interpretation in the context of the widespread codification of canons and suggests, among other things, that textualism is disconnected from the positive law because textualism's embargo on extratextual sources conflicts with widely codified legislative preferences. The Article thereby provides a meaningful way forward in the theoretical development of statutory interpretation by assessing which canons the drafters of statutes expect to inform statutory interpretation.
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Textualism's possible theoretical justifications cannot sustain a preferred position for the inquiry into the best objective meaning of a statutory provision as the mechanism for statutory interpretation. In fact, careful analysis shows that textualists' proffered theoretical justifications for this approach to statutory interpretation are essentially bankrupt. When subjective legislative intent, as defined in this Article, exists and is discernible by compelling evidence, Article I of the U.S. Constitution requires that courts interpret statutes in accordance with that intent. Even when such intent is not discernible, textualism's impoverished theoretical foundation counsels against resort to the textualist inquiry as the sole legitimate mechanism for statutory interpretation. For this reason, although this Article does not deny much of textualism's critique of nontextualist judicial practices of statutory interpretation, it counsels that courts should not simply presume the propriety of the textualist mechanism. Rather, courts should consider whether, for any interpretative issue, textualist critiques render other mechanisms of interpretation sufficiently problematic that courts should resort to textualism as the best evidence of the most likely meaning that a legislator would give to statutory text. But courts should also consider whether for a particular statutory interpretation issue, such other mechanisms are likely to result in interpretations that better serve the public interest in light of current societal values, and apply such nontextualist mechanisms in instances in which they are likely to lead to superior legislative outcomes.
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[From the Introduction] Although traditionally courts have had primary and ultimate authority for interpreting statutes, the Supreme Court established a two-step review process that is much more deferential to a government agency’s interpretation. Under the “Chevron twostep,” a court determines whether the statute is silent or ambiguous with respect to the issue decided by the agency; if so, the court defers to the agency’s interpretation unless it is unreasonable. The first step, which looks to whether the statute is silent or ambiguous, proves determinative in most cases; courts infrequently conclude at step two that agencies’ interpretations are unreasonable.

Professor Seidenfeld argues that the current application of Chevron fails to accord with public policy. He contends that the pluralistic democracy model, which implicitly undergirds Chevron, is flawed, and he offers deliberative democracy as a more satisfactory conception of bureaucratic government. Professor Seidenfeld asserts that deliberative democracy suggests a modification of Chevron which would place the emphasis on the second rather than the first Chevron step, thereby forcing agencies to explain why their interpretations are good policy in light of the purposes and concerns underlying the statutory scheme. Thus, Professor Seidenfeld advocates a “syncopated Chevron” as an improved approach to reviewing agencies’ interpretations of the statutes they administer.
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[From the Introduction] Administrative agencies are the primary interpreters of federal statutes and have taken on the task of “updating” the law to reflect current conditions. Although scholars have advanced numerous theories on how judges in the federal courts interpret statutes, scant attention has been paid to how administrative agencies construe the statutes they are charged by Congress to interpret. Analysis of statutory interpretation beyond the realm of the federal courts is long overdue, as Jerry Mashaw has observed. In recent years, scholars have conducted surveys concerning statutory interpretation among congressional staffers and agency personnel to provide a glimpse into the black box. Several scholars also offer theoretical explanations of how agencies should interpret statutes. Yet, we still know little about how any one particular agency actually interprets its governing statute in its adjudications. This is particularly concerning due to Chevron's validation of agency statutory interpretation as an “autonomous enterprise,” with appellate courts charged with ensuring that the agency's interpretation is a “reasonable” and defensible construction of the statute. But how do agencies arrive at their interpretations of statutes, which are entitled to deference under Chevron? This issue is all the more relevant given recent attempts by congressional Republicans to introduce legislation that would eliminate Chevron deference, requiring courts to review agency statutory interpretations de novo.

This Article reviews the statutory interpretation techniques employed by the National Labor Relations Board (NLRB) in the last twenty-four years through the presidencies of Bill Clinton, George W. Bush (Bush II), and Barack Obama. Discussion centers around two empirical questions: First, to what extent do Board members use statutory methods in a consistent or partisan fashion? Second, do majority and dissenting opinions “duel” with each other with respect to the statutory constructions they apply? That is, do they use contrasting methods to interpret the same statute, or do majority and dissenting opinions apply the same method to different ends? After exploring these questions, the Article looks at the issue normatively by asking how the Board--and administrative agencies generally--should interpret statutes.

This Article contributes to a real-world understanding of agency statutory interpretation by applying empirical analysis to demonstrate how one agency interprets its governing statute in its adjudications. This analysis reveals that Board members do not consistently use interpretive methods based on ideology. Majority and dissenting Board members bicker over the breath of statutory terms, invoke different parts of the statute to advance an interpretation, dispute which statute should apply, and disagree about statutory purpose. Both Democratic and Republican Board members are equally likely to apply both textualist and purposivist methods in their analysis to advance a particular policy approach. The methods the Board uses have changed over time, with the Obama Board relying more on broad pronouncements of policy goals to advance the Board's statutory mandate. The type of dueling between majority and dissenting Board members has also shifted over time; whereas during the Clinton administration, opposing sides argued over precedent differences, in more recent opinions before the Obama Board, members quarreled over whether text or policy should resolve the interpretative dilemma at hand.

The results of this analysis underscore issues worthy of further exploration regarding agency statutory interpretation. Existing theories of statutory interpretation are overly simplistic with a one size fits all methodological approach. In addition to significant substantive differences between agencies, decision makers must balance competing considerations of stability, coherence, and democratic accountability in infusing statutes with meaning. Judicial methods of interpretation should not be merely transposed onto the administrative context, as institutional differences between statutory deciders may influence interpretive methods. The decider's place in the hierarchical structure, its expertise, and its democratic pedigree can all impact interpretation.
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The canons of statutory interpretation are often criticized as result-oriented and obstructive in the search for legislative purpose. The debate over the value of interpretive guides recently has been reinvigorated by Supreme Court reliance on them. In this Article, Professor Shapiro argues that, contrary to the criticisms of some commentators, the canons do serve an important function in our society. By encouraging a reading of statutes against a broad background of existing norms and customs, the canons foster statutory interpretations that do not alter relationships any more than is necessary to achieve the statutory objectives. Furthermore, by favoring continuity over change, the canons reflect the conservative role courts should play in implementing change in a stable society. Finally, Professor Shapiro recognizes the danger that inordinate reliance on the canons may be used to frustrate legislative purpose, but argues that this danger can be overcome by careful statutory drafting and conscientious judicial interpretation
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Consider the following scenario: An ambiguous statutory provision could plausibly mean A or B (which could in fact be the opposite of A). A feder-al agency, drawing upon its scientific and/or experiential expertise, either has or could develop policy-based reasons backed by fact-intensive evidence to prefer one interpretation over the other. But instead of developing and setting forth its policy reasons, and subjecting them to vetting in a notice-and-comment rulemaking, the agency instead justifies its interpretive choice in a rule setting forth its legal analysis of statutory text, perhaps legislative history, and the purpose and structure of the statute as a whole. Subsequently, in a dispute over how the statutory provision should be interpreted, the agency claims that its interpretive view merits judicial deference. In statutory interpretation cases, courts typically invoke the Chevron Two-Step framework and, given that the agency has promulgated a rule, assuming that the court agrees that the statutory provision is ambiguous at Step One, the agency is all but assured deference at Step Two.

What is wrong with this scenario? First, from a comparative institutionalist perspective, deference to agencies’ statutory interpretations should be premised upon the agencies’ policy-based expertise; thus it should be withheld where agencies have not provided policy-based rationales for their interpre-tive choices. Second, the “reasoned decisionmaking” element of judicial review drops out of the picture altogether and thus judicial oversight of agencies is diminished. In other words, it should not be “per se” rea-sonable when an agency chooses — based on unarticulated and thus unvetted policy variables — between two permissible statutory inter-pretations. In this Article, I propose a doctrinal solution: the incorporation of State Farm hard-look review into the Chevron Two-Step framework. My main goal is to extend the domain of State Farm “reasoned decisionmaking” re-view, widening the scope of agency rules subject to hard look review. By incorporating this hard look review within the Chevron framework, the model highlights the extent to which agency statutory interpretations are driven by underlying policy choices. And by collapsing the conceptual acoustic separation of Chevron and State Farm, the model makes it difficult for an agency to evade hard look review by convincing a court that it is a Chevron, not State Farm case. Moreover, where the Chevron interpretive issue arises between private parties when the agency is not a party and litigants accordingly have no recourse to direct State Farm challenge to the rulemaking, the model would open the door to an indirect State Farm challenge. The Article explores how this new doctrinal approach, one of hard look review of agency policy decisions at Chevron Step Two, will affect courts and agency decisionmaking.

Finally, the U.S. Supreme Court seems to have reached a critical juncture for Chevron. This particular form of Chevron retreat — widening the space for the application of State Farm — is fundamentally distinct from, and preferable to, setting Chevron aside. Whereas knocking down the Chevron pillar deals a blow to over-exuberant regulators and promises to stem the tide of over-regulation of the economy and health and safety, heightened judicial scrutiny of the Chevron-State Farm variety will force the agency’s hand in the context of deregulation as well.
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[From the Introduction] Using legislative history to interpret statutes is now normal practice in the federal system. Agencies and courts do it routinely. Presumably so do lawyers advising clients, because they know they must if their advice is to be reliable. Despite the concerned opposition of Justice Scalia, legislative history is now used by at least one Justice in virtually every decision of the United States Supreme Court in which the meaning of a federal statute is an issue, and if one Justice uses it, usually they all do.

Despite the widespread use of legislative history, there are no rules or even guidelines for its use other than the so-called plain meaning rule, which is largely ineffective.1 As far as I know, there is not a single instance in which a court or agency has been reversed for using legislative history incorrectly. Its widespread use, together with this lack of control, has had major adverse effects.

This greatly increased use of legislative history reflects a crisis of confidence. Public officials and members of the public no longer generally believe in the capacity of government to deal effectively with large social problems. Judges and agency members are increasingly reluctant to accept responsibility for making difficult policy decisions or to offer reasoned justifications upon which they might later be criticized. Legislative history provides these people with an “out.” They can use it to deflect responsibility onto past Congresses. The only justifications they need offer are the past Congresses’ supposed intents.

Members of Congress can make law by “manufacturing” legislative history, thereby evading the Constitutional requirements for legislating that assure *384 that laws receive the appropriate representative consent. This, plus the inability to predict how courts and agencies will use legislative history, have stripped Congress of a large measure of the control over the laws that the Constitution intends it to have. Agency lawmaking has also suffered in important respects. The Constitutional and administrative requirements for delegated lawmaking serve to enhance the quality of agency-made laws and to keep them under judicial, congressional, and public control. All these benefits are lost when agencies make law by reference to legislative history. Because researching legislative history is generally so time consuming, the costs of obtaining reliable legal advice have substantially increased. Under some circumstances, they have become prohibitive for all but a relatively few wealthy organizations and the federal government itself.
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While there is considerable disagreement about what role statutory purpose should play in the interpretation of legislation, it is widely accepted that purpose has some role to play. This is despite the fact that there is little in the way of agreement about what statutory purpose is. In this paper, to be published in a festschrift in honour of Jeff Goldsworthy, I offer an account of what statutory purpose is. I begin by distinguishing three broad accounts of statutory purpose – the first of which understands it in terms of the intentions of certain legislators, or of the legislature as a whole; the second of which understands it in terms of the intentions that a reasonable legislator would have had if he or she had enacted the statute; and the third of which understands it in terms of the functional role the statute plays within the broader legal system. I contend that each of these accounts faces significant problems.

I then suggest a way of understanding the first approach – which is the approach preferred by Goldsworthy – that overcomes many of those problems. A particular difficulty facing the first approach is in distinguishing statutory purpose from legislative intent. I seek to do so by treating purpose as concerned with what Mark Greenberg has called the legislature’s legal intentions, and by treating legislative intent as concerned with the legislature’s communicative intentions. I then consider whether legal intentions should be understood as directed toward the norm(s) that the statute, or provision, is to contribute to the content of the law (‘norm-intentions’) or toward the state of affairs that the statute is to bring about (‘application-intentions’). While the former suggestion may appear attractive, I argue that we should understand legal intentions in terms of application-intentions. However, the legislature may have multiple application-intentions regarding a single statute, only some of which should count as part of the statute’s purpose. Thus, I go on to suggest some constraints on which of the legislature’s application-intentions count. I finish by addressing the possibility that different legislators have different application-intentions.
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Judicial review of agency statutory interpretations depends heavily on the linguistic concept of ambiguity. Under Chevron, judicial deference to an agency’s interpretation hinges on whether the court determines the statute to be ambiguous. Despite its importance, the ambiguity concept has been poorly developed by courts and deviates in important respects from how linguists approach ambiguity. For instance, courts conflate ambiguity identification and disambiguation and treat ambiguity as an umbrella concept that encompasses distinct forms of linguistic indeterminacy such as vagueness and generality. The resulting ambiguity standard is unpredictable and does not adequately perform its function of mediating between judicial interpretive autonomy and deference to agency interpretations.

This article offers a novel alternative to the problematic ambiguity concept. Rather than a binary choice between clarity and ambiguity, different types of linguistic issues should call for different judicial treatment. Instead of the ambiguity trigger for deference, courts should presume that certain categories of issues are judicially resolvable while other categories are for the agency to resolve. The categories proposed in this article reflect the traditional view that courts are experts at statutory interpretation (which includes determining congressional intent), and agencies are experts at policymaking (which includes exercising delegated discretion). The categories thus provide a framework for the allocation of interpretive authority between courts and agencies on the basis of their respective areas of expertise. Furthermore, the proposed framework offers a better account of significant cases, such as the infamous King v. Burwell case where the Court refused to defer to the agency’s interpretation, than does the Court’s own explanations.
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[From the Introduction] Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.1 is widely regarded as the most important administrative law decision in the history of the United States.2 The scholarly literature is vast3 and defies summary or cataloging.4 Moreover, Chevron is contested and criticized, defended and derided, lauded and lamented--the source of “angst and rancor” in the words of Professor Kristin E. Hickman and R. David Hahn in their article, Categorizing Chevron.5 One might think that when it comes to Chevron, there is “no new thing under the sun,”6 but in fact, Chevron is still full of surprises. When we turn over the Chevron rock, some very interesting critters crawl out. The conventional wisdom is that there is one and only one Chevron doctrine, indicated by the definite article “the” and the singular “doctrine” in the familiar phrase, “the Chevron doctrine.”7 But what if the conventional wisdom is wrong? What if there are many Chevron doctrines? The conventional wisdom *252 is that the Chevron doctrine is about “deference.”8 But if there are many Chevron doctrines, is it possible that deference is the right notion for some of them, but other Chevrons are not about deference at all? These questions suggest that we might learn something new by disaggregating Chevron, replacing “the Chevron doctrine” with “many Chevron doctrines.” Importantly, disaggregating Chevron may tell us something about the question as to whether Chevron ought to be overruled, modified, or affirmed.9

This Essay tackles these questions in five steps. Part II asserts that “What is the Chevron doctrine?” is the wrong question, because there are many Chevron doctrines. Part III develops a toolkit for the task of disaggregating Chevron: these tools include the interpretation-construction distinction, a three-dimensional typology of underdeterminacy, and a catalog of the theories of statutory interpretation and construction. Part IV investigates the version of the Chevron doctrine that Professor Cass Sunstein and I have called “Chevron as Construction”--the application of Chevron to cases and issues that fall within the realm of underdeterminacy that is sometimes called “the construction zone.” Part V turns to the application of Chevron to issues of interpretation, roughly understood as linguistic meaning plus context and more precisely articulated as “communicative content.” Part VI weaves these strands together and provides some tentative thoughts about the proper categorizations of the many Chevron doctrines and about the really big question: “Should Chevron (or some of its progeny) be overruled?”
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In 1984, the Supreme Court declared that courts should uphold agency interpretations of ambiguous statutory provisions, so long as those interpretations are reasonable. The Chevron framework, as it is called, is now under serious pressure. Current debates can be both illuminated and softened with reference to an old distinction between interpretation on the one hand and construction on the other. In cases of interpretation, judges (or agencies) must ascertain the meaning of a statutory term. In cases of construction, judges (or agencies) must develop implementing principles or specify a statutory term. Chevron as construction is supported by powerful arguments; it is consistent with the underlying sources of law, and agencies have relevant comparative advantages in developing implementing principles. Chevron as interpretation is more controversial. Those who reject Chevron in the context of interpretation should nonetheless accept it in the context of construction. The distinction between interpretation and construction explains some important cases in the 1940s and also in the post-Chevron era.
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The Supreme Court's opinion in Bostock v. Clayton County, Georgia-- recognizing that anti-gay and anti-trans discrimination are forms of sex discrimination under Title VII of the 1964 Civil Rights Act--has already gained a steady reputation as a textualist statutory interpretation decision. The reality of the ruling is far more complicated than that. Bostock is a textualist decision, but, as the argument here shows, Bostock also offers a construction of Title VII's sex discrimination rule that sounds in a rule-of-law norm of legal justice about LGBT equality that itself traces roots to the Supreme Court's constitutional LGBT rights jurisprudence. Bostock's rule-of-law norm of legal justice, which expands and diffuses constitutional norms of LGBT equality in new ways, does more than shape Bostock's interpretation of Title VII. Through it, Bostock supplies state actors, including courts, with instruction on how to treat all claims of lesbian, gay, and now trans *554 rights, whether they formally involve constitutional rights claims or, as in Bostock, do not. In Bostock's wake, state actors must ordinarily treat LGBT persons just the same as their cisheterosexual counterparts, affording them the same benefits of established and new legal protections that cisheterosexuals receive.

The path to this larger picture proceeds through an account that explains Bostock both is--and is not--a textualist decision. The opinion's textualist self-accounting, tracked in these pages, lacks normative justificatory punch on the central interpretive question raised by the claims it decides: whether Title VII's sex discrimination ban covers antigay and anti-trans discrimination. A careful reading of Bostock shows the opinion both disparaging and then ultimately embracing “extra-textual” reasons for choosing to read Title VII's sex discrimination rule in the pro-gay and pro-trans directions that it does.

The most telling of these reasons, in a dramatic turn, abandons the majority's textualist hunt, and reaches for a general, rule-of-law ideal of legal justice--a distinctive understanding of formal equality involving LGBT persons--that emerges from, and extends to new levels, the legal foundations of the U.S. Supreme Court's pro-lesbian and pro-gay constitutional rights jurisprudence, whose pro-trans legal implications are expressly recognized by the Supreme Court in Bostock for the first time. Bostock's announcement of the operations of legal justice in the case--a stylized extension of operative constitutional norms--has far-reaching implications for the interpretation of other statutes that may benefit LGBT persons, as well as other legal rules that, now or in the future, implicate LGBT rights.

Understanding how Bostock follows a line of justification found in the Supreme Court's constitutional promises of equal dignity and respect for lesbian women, gay men, and trans people frames an account of what is legally misguided about the textualist approaches taken up by the Bostock dissents. These opinions, which indulge both anti-gay and anti-trans sentiments as touchstones for their own preferred choices for how to read Title VII's sex discrimination ban, flout constitutional values that strip those choices of their own easy claims to legality. Having identified the legal flaws of the dissents' textualist analytics, discussion turns to the most significant of the likely reasons why the Bostock majority opinion does not expressly avow the constitutional and rule-of-law grounds for its decision. No matter, the recognition of Bostock's foundations in constitutionalism recasts the pressures the Supreme Court will face in future cases taking up questions that Bostock formally brackets, as well *555 as other wonders about its own text's meaning. With time, Bostock may prove to be an even bigger breakthrough for LGBT equality and rights under law than at first glance it seems.
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This Article criticizes a recent movement toward making statutory interpretation simpler and more uniform. The trend is reflected by proposals to adopt codified rules of statutory interpretation, give stare decisis effect to interpretive methodology, use simpler methods of statutory interpretation in lower courts, and implement certain versions of textualism. This Article explains that such proposals are driven by an overarching desire to limit judicial discretion and promote a formal vision of the rule of law; they assume that the traditional hierarchy of legal sources is exclusive, and that statutory interpretation’s function is to ascertain the meaning of the law.

This Article challenges each of these goals or assumptions by claiming, first, that instead of seeking to eliminate judicial discretion, the primary goal of statutory interpretation methodology should be to protect the people from the possibility of domination by the state. Second, the resolution of disputes regarding the permissible scope of governmental authority in difficult statutory cases requires the use of practical reasoning, and the quality of statutory law and its democratic legitimacy benefit from a broad range of arguments and diverse judicial perspectives. Third, the traditional hierarchy of legal sources is outdated, and “interpretive methodology” and “agency decision-making” should be viewed as distinct forms of law that merit their own special places in a new legal hierarchy for the regulatory state. Finally, the central function of statutory interpretation by federal courts in the modern regulatory state is to provide individuals and groups with opportunities to contest the validity of particular exercises of governmental authority, rather than to ascertain the meaning of the law in a vacuum. This Article therefore argues that the recent proposals to dumb down statutory interpretation are fundamentally misguided, and it closes by making several related observations about the extent to which interpretive methodology can or should be simple or uniform. In sum, provisional dialogues by and among different centers of power better reflect the nature of law in the modern regulatory state than artificial efforts to achieve simple, predictable, or uniform final answers to our most pressing legal or social problems.
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Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc., the foundation for much of contemporary administrative law, is under siege. The central objection, connected with longstanding challenges to the legitimacy of the modern regulatory state, is that the decision amounts to an unwarranted transfer of interpretive authority from courts to the Executive Branch. Skeptics think that the transfer is inconsistent with the proposition that it is the province of the Judiciary to say what the law is. To assess such objections, the starting point is simple: whether courts should defer to agency interpretations of law depends largely on legislative instructions. Under the Constitution, Congress has broad power to require courts to defer to agency interpretations (in the face of ambiguity), or to forbid them from doing so. If congressional instructions are the touchstone, and if the Administrative Procedure Act is the guiding text, then it is far from clear that Chevron was wrong when decided, especially if the text of the APA is considered in its context. Though the argument for overruling Chevron is unconvincing, its critics have legitimate concerns. Those concerns should be addressed by (1) insisting on a fully independent judicial role in deciding whether a statute is ambiguous at Step One; (2) invalidating arbitrary or unreasonable agency interpretations at Step Two; and (3) deploying canons of construction, including those that are designed to serve nondelegation functions and thus to cabin executive authority.
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Discussing the judge’s role in interpreting statutes, Justice Holmes wrote that “if my fellow citizens want to go to Hell I will help them. It’s my job.”1 Critics of the view of the courts as passive agents of the legislature claim that it understates the difficulty of interpretation, the indeterminacy of both the language and the will of the citizens, and the resulting discretion of the judge. Similarly, a vigorous debate continues over the proper role of the traditional sources of statutory interpretation — the text, the legislative history, the purpose of the enacting Congress, and the structure of the statute. Professor Sunstein suggests that both the conventional understandings of interpretation and the recent critiques are seriously flawed. Because interpretation inevitably involves the application of “background norms” — often controversial, value-laden, and not found in any text — the traditional theories are incomplete. These theories, however, properly stress the democratic primacy of Congress. When congressional instructions are clear and do not create absurdity, courts should follow them. Often, however, the instructions are ambiguous, and judges must choose from a number of possible background norms.

Suggesting that many disputes over statutory meaning are in fact disagreements over appropriate background norms, Professor Sunstein contends that the debate should center on whether the proposed norms express a good understanding of constitutional values; are properly responsive to contemporary institutional arrangements involving the making, monitoring, and enforcement of law; and are sensitive to the aspirations and functions as well as the shortcomings of regulatory statutes. Professor Sunstein concludes by outlining a series of norms — some based on current interpretive practices, others reflecting his own normative vision. All the norms are designed to focus disputes over statutory meaning more sharply on the underlying issues and to deepen understanding of the regulatory state.
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[From the Introduction] Imagine you are Chief Justice John Roberts, and you have been tasked with deciding whether a corporation, AT&T, is entitled to the “personal privacy” exemption of the Freedom of Information Act (“FOIA”), and is therefore protected from having certain corporate documents disclosed for “personal privacy” reasons. Would the fact that the act itself defines “person” to include “corporation” be dispositive to you? After all, the Supreme Court has found corporations enjoy other legal rights enjoyed by natural persons. What other tools would be available to you to interpret the language of the statute?

The Court, in fact, did not find the definition of “person” to correspond directly to the definition of “personal.” The decision was a landmark one in the world of statutory interpretation, in that it was the first (and only to this point) in which the Supreme Court relied on the use of corpus linguistics data to interpret the statutory terms.

Corpus linguistics refers to “the study of language function and use by means of large, principled collections of naturally occurring language called corpora [bodies].” The corpora at B.Y.U., which are the most widely used online corpora, and the ones that will be relevant throughout this Comment, draw from different bodies of real-world text, and include the Corpus of Contemporary American English (COCA), Corpus of Historical American English (COHA), and even Wikipedia and TIME Magazine corpora. By examining large databases of language in naturally occurring contexts, many legal scholars and jurists believe a statute's “ordinary meaning” can be reduced to an empirical question. The Supreme Court is not the only tribunal to make use of corpus analysis. In fact, in the past six years, state supreme court justices in Utah and Michigan have cited corpus data directly in opinions, with varying levels of acceptance from the other justices.

But how reliable is a judge's interpretation of corpus data? While judicial use of corpus data for statutory interpretation has been lauded for its superficially objective and empirical methodology, critics have questioned not only its persuasiveness in statutory interpretation, but also judges' ability to accurately interpret the returned data, and apply it to determine the statute's ordinary meaning.

This Comment will argue that judges should not raise corpus analysis sua sponte in judicial opinions. Part I will provide background on different judicial conceptions of “ordinary meaning” and outline the use of dictionaries to arrive at the ordinary meaning of statutory terms. It will also introduce corpus linguistics as it has arisen in statutory interpretation. Part II will show the inconsistent methodologies judges have used in analyzing corpus data, as well as how corpus analysis can produce different outcomes from standard methods of statutory interpretation. Finally, Part III will differentiate corpus linguistics from other methods of statutory interpretation, and argue against its sua sponte use, focusing on objections grounded in judicial notice, the adversarial process, and the “deceptive empiricism” of corpus use in the context of statutory interpretation.
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Within legal scholarship and practice, among the most pervasive tasks is the interpretation of texts. And within legal interpretation, perhaps the most pervasive inquiry is the search for “ordinary meaning.” Jurists often treat ordinary meaning analysis as an empirical inquiry, aiming to discover a fact about how people understand language. When evaluating ordinary meaning, interpreters rely on dictionary definitions or patterns of common usage, increasingly via “legal corpus linguistics” approaches. However, the most central question about these popular methods remains open: Do they reliably reflect ordinary meaning? This Article presents experiments that assess whether (a) dictionary definitions and (b) common usage data reflect (c) how people actually understand language today.

The Article elaborates the implications of two main experimental results. First, neither the dictionary nor legal corpus linguistics methods reliably track ordinary people's judgments about meaning. This finding shifts the argumentative burden to jurists who rely on these tools to identify “ordinary meaning” or “original public meaning”: these views must articulate and demonstrate a reliable method of analysis. Moreover, this divergence illuminates several interpretive fallacies. For example, advocates of legal corpus linguistics often contend that the nonappearance of a specific use in a corpus indicates that the use is not part of the relevant term's ordinary meaning. The experiments reveal this claim to be a “Nonappearance Fallacy.” Ordinary meaning exceeds datasets of common usage-- even very large ones.

Second, dictionary and legal corpus linguistics verdicts diverge dramatically from each other. Part of that divergence is explained by the finding that broad dictionary definitions tend to direct interpreters to extensive interpretations, while data of common usage tends to point interpreters to more prototypical cases. This divergence suggests two different criteria that are often relevant in interpretation: a more extensive criterion and a more narrow criterion. Although dictionaries and legal corpus linguistics might, in some cases, help us identify these criteria, a hard legal-philosophical question remains: Which of these two criteria should guide the interpretation of terms and phrases in legal texts? Insofar as there is no compelling case to prefer one, the results suggest that dictionary definitions, legal corpus linguistics, or even other more scientific measures of meaning may not be equipped in principle to deliver simple and unequivocal answers to inquiries about the so-called “ordinary meaning” of legal texts.
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[From the Introduction] This Article has a very straightforward aim--to identify and describe what divides Textualists from other Textualists. In doing so, it names and explains six areas of intense normative and ideological conflict that exist within Textualism. It aims to show that it is over these dimensions of disagreement that battles between Textualists are most often fought. This Article labels these types of disputes as disputes over privileging, ordering, narrating, adapting, integrating, and disciplining. Privileging might be thought to describe the choice of what evidence to weigh most heavily in ascribing and affixing meaning. Privileging is probably the most frequent source of tension among interpreters. For many, it is the whole ballgame. A Textualist who privileges semantic context might favor giving legal effect to denotation, connotation, idiom, metaphor, metonymy, or synecdoche at the expense of policy. A Textualist who privileges policy context might more often give effect to permissible or broadly contextual meanings. But both might fairly be called (and call themselves) Textualists.
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With its decision in Kisor v. Wilkie, the U.S. Supreme Court was expected to overturn Auer v. Robbins, under which courts are to defer to agencies’ interpretations of their own regulations. (This was an expected precursor to the Court eventually overturning Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., which prescribes judicial deference to agency interpretations of statutes the agency administers.) The Court instead chose to limit but not overturn Auer, and leave Chevron untouched. This result leaves lower courts with the challenge of determining when and how to properly apply Auer deference. But the Court’s decision in Kisor ultimately illustrates the law of unintended consequences, often referred to as “the cobra effect.” Because the Court has faced criticism for disregarding the doctrine of stare decisis in several recent decisions, the Chief Justice likely cast the decisive vote in Kisor to avoid once again overturning established law. Thus, Kisor represents Roberts acting in his role as steward of the Court’s institutional reputation. But while Roberts is right to be concerned about stare decisis and the Court’s reputation, his vote in Kisor, and the opinion it produced, now leaves lower courts with a doctrine of judicial deference in Auer that is difficult, if not impossible, to apply. More to the point, Kisor likely did more damage than good to the Court’s reputation.
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[From the Introduction] In the canon of statutory construction canons, perhaps no canon is more canonical than the canon known as ejusdem generis. This canon, which translates as “of the same kind,” states that when a statute includes a list of terms and a catch-all phrase, the set of items covered by the catch-all phrase is limited to the same kind or type of items that are in the list. To put it another way, in a statutory provision that extends to “A, B, C, and any other Z,” the canon of ejusdem generis would advise that every item included in “Z” must be of the same kind as A, B, and C. Thus, the phrase “other foods” in a provision covering “apples, bananas, grapes, oranges, and other foods” would likely refer only to fruits that are not apples, bananas, grapes, or oranges, and the phrase “other sports” in a provision referring to “walking, swimming, biking, running, and other sports” would probably be read to exclude automobile racing. The canon of ejusdem generis has a long and storied history in the law,1 has been used by judges in countless cases,2 and *2 has been the subject of a large body of scholarly commentary over the years.3

Unlike its more famous cousin, the canon of statutory construction known as “reverse ejusdem generis” is far less well known and understood.4 This canon states that when a statute includes a list of terms and a catch-all phrase, the terms in the list are limited to those that are consistent with the catch-all phrase. To put it another way, in a statutory provision that extends to “A, B, C, and any other Z,” the canon of reverse ejusdem generis would advise that only those As, Bs, and Cs that are also Zs are covered. Thus, the phrase “iguanas, tortoises, rattlesnakes, and other land reptiles” would likely exclude marine iguanas like those found in the Galapagos Islands, and the phrase “Kansas City, Topeka, Lawrence, Wichita, and other cities in Kansas” would probably not extend to Kansas City, Missouri. Although the canon of reverse ejusdem generis has a somewhat long history in the law and has been used by judges in a smattering of cases over time--including, as we'll see, at least one landmark decision--it didn't even have a name until the mid-1990s. Moreover, unlike ejusdem generis, the canon of reverse ejusdem generis has not been the subject of an enormous body of scholarly commentary over the years. Indeed, it has been the subject of absolutely no scholarly commentary at all.5

Until now, that is.6 In this Article, for the first time ever in the history of the world, I provide a comprehensive description and analysis of the reverse ejusdem generis canon, with the aim of explaining what exactly the canon says, how courts have used the canon (or not used it), when the canon is particularly useful or not, and what kinds of questions courts ought to consider when deciding whether or not to apply the canon in any specific case. In sum, I argue that, like most other canons of construction, the canon of reverse ejusdem generis most definitely has its place in the canon of statutory canons, but courts should employ it carefully and with special attention to the context of whatever statute happens to be at issue.

In particular, I will suggest that the most intriguing and challenging issue related to the canon has to do with the generality of the catch-all term or phrase. When the catch-all term is quite precise, the inference that the legislature intended the enumerated terms to be subject to the catch-all's limits will be rather strong. When the catchall term is more general, however, such an implication will rest on more tenuous grounds because the legislature may have used the general catch-all term simply as a way of describing the list of terms rather than as a way of limiting it.

The Article proceeds as follows: Part I canvasses a wide range of cases addressing the reverse ejusdem generis canon. Some of these cases have involved the interpretation of contracts, but most have dealt with the interpretation of statutes in areas of law as illustrious as piracy, intoxicating liquors, and the regulation of hazardous sludge. Part II probes the benefits and limits of the reverse ejusdem generis canon, drawing on both hypothetical examples and some of the cases described in Part I. In Part III, the Article turns to consider the Supreme Court's landmark 2007 environmental/administrative law case of Massachusetts v. EPA, in which the Supreme Court held that the EPA has the statutory authority to regulate greenhouse gases.8 An important part of that decision involved interpreting a statutory provision that posed a classic reverse ejusdem generis issue. Although the *4 parties and the Court certainly discussed the best way to read the words of the statute, their failure to recognize that the statute posed a long-contested interpretive issue impoverished the debate over how best to interpret the statute. This observation leads into the Article's final conclusion, which is that it is important for courts, lawyers, and commentators to recognize the existence of the reverse ejusdem generis canon and to in fact call it by that name so that future courts struggling with similar interpretive issues can more easily learn from their efforts and reach more informed and thorough interpretive conclusions.
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The rule of lenity is an ancient canon of statutory construction that requires courts to find in favor of criminal defendants charged under ambiguous statutes. Traditionally, lenity endorses important constitutional concerns regarding due notice, consistent enforcement of law, and legislative supremacy. In modern courts, if lenity were regularly--and properly--applied, it could combat important social problems that plague our criminal justice system. Ambiguous laws allow government actors to arbitrarily target disfavored groups. And more generally, ambiguity within criminal law contributes to overcriminalization, wanton punishment, and capricious enforcement. As the volume of federal criminal law continues to expand, this overcriminalization leads to extreme mass incarceration in the United States. Lenity, if applied more potently in the federal courts, could help combat these serious social issues by supplying a safety valve against the multitude of ambiguous statutes written by Congress.

The problem with lenity today, however, is that courts are rarely clear where lenity should fit within criminal statutory interpretation. Federal courts, including the Supreme Court, alter how they apply lenity case by case. This Note argues that lenity should be codified federally as a clear statement rule, as several states have already done. Specifically, to achieve a consistent and strong application of lenity in the federal courts, Congress should direct the federal courts to apply lenity immediately after an initial textual analysis fails to clarify an ambiguous statute. Codified lenity would guide courts in lenity's application and underscore its fundamental importance to the criminal justice system.
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THIS Article argues that the complex doctrine of judicial review of administrative action--containing no less than six separate tests depending on the sort of agency action to be reviewed--both descriptively is and normatively should be simplified into a “reasonable agency” standard. Courts, following step two of the Chevron doctrine, have started to sneak a reasonableness standard into their review in lieu of making the difficult distinctions required by current doctrine. Scholars evaluating the difference among the various doctrinal tests have started to note the increasing similarity among the tests, at least as applied by the courts. Empirical research, to which this Article contributes an additional study, suggests that regardless of the standard of review, courts affirm agencies’ actions slightly more than two thirds of the time; the variance of the validation rates of agency action, regardless of the standard of review, is small. A reasonable agency standard would simplify and clarify administrative law, better describe what courts actually do when confronted with agency action, and better explain the judicial role in the administrative state.
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[From the Introduction] In his short time on the Supreme Court, Justice Antonin Scalia has set forth his vision of how the Constitution affects both the structure of government and the rights of the individual. He has argued for a strict separation of powers doctrine markedly different from that of other members of the Court,1 suggested that judicial protection of substantive individual rights not explicitly found in the Bill of Rights is inappropriate,2 and given hints that economic regulation of property *1296 should be subject to stricter scrutiny than the Court has traditionally given.3

Undoubtedly, Justice Scalia’s impact on the Court’s constitutional decision-making has been and will continue to be substantial. Yet it may be that in his short time on the Court his most important contribution has occurred not in the Court’s more celebrated constitutional decisions, but in the wide variety of statutory cases decided by the Court each term. Before Justice Scalia’s appointment—and to this day—the Court’s approach to statutory interpretation could be described as eclectic, devoid of any unifying theory.4 The Court is sometimes governed by statutory text.5 At other times it looks beyond the text to statutory purposes,6 legislative history,7 or other nontextual sources.8

Until Justice Scalia’s arrival, all members of the Court seemed content to operate under this harmonious disparity. To be sure, the Court frequently divided on substantive results in statutory cases, but no member consistently challenged the basic methodology employed. All of this has changed with the appointment of Justice Scalia. With increasing frequency and tenor Justice Scalia has challenged the Court’s traditional approach to interpreting statutes. He has argued that the only legitimate source for interpretive guidance is the statutory text at issue, the structure of the statute as a whole, or other related provisions of statutory law. As part of this textualist theory, *1297 Justice Scalia has targeted the Court’s longstanding reliance on legislative history to interpret statutes.9

Justice Scalia’s views are not new to his jurisprudence. While on the Circuit Court for the District of Columbia, he frequently criticized the reflexive judicial resort to legislative history to interpret statutes.10 Nor is Justice Scalia alone in his position. Justice Kennedy has sounded a similar theme,11 and a small but influential group of courts of appeals judges—Judge Frank Easterbrook being the most prominent and vocal among them— has expressed similar doubts about the use of legislative history.12
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[From the Introduction] What counts as a legitimate source of authority for interpreting a statute? The question is central to the debate among judges and scholars over the proper method of statutory interpretation. The argument for the use of originalist sources claims that fidelity to the enacting legislature is needed to counter anxiety over judicial lawmaking.1 The new textualism seeks to eliminate nontextual sources of authority from judicial consideration, also with the goal of constraining the judge.2 At the other end of the spectrum, dynamic theories urge that statutory cases be decided on the basis of public values or practical considerations and tend to view the range of acceptable sources as far more elastic.3 Inevitably, arguments *1075 over what can be considered a legitimate source of authority in statutory interpretation have political implications as well. Arguments for the retraction (textualism) or expansion (dynamic interpretation) of the canon of legitimate sources of authority correspond loosely to positions taken on the judiciary’s role in a representative form of government.4

Although the question of what counts as a legitimate source of authority undergirds much of the current debate over statutory interpretation, there is no systematic empirical study of judicial use of authority in statutory cases.5 Most scholars assume that originalism is the dominant judicial methodology.6 As is true in much legal scholarship, the benchmark for a critique of existing practice is the work of the Supreme Court of the United States. The flaws in the Court’s originalism have formed the springboard for a number of new theoretical perspectives.7 *1076 Although each of these theories is associated with distinctive normative claims, each rests on a critique of originalism.8

This Article represents the first empirical study of the Supreme Court’s use of authority in statutory cases. The study consists of an extensive review of a random sample of statutory cases decided by the Court over the last century and addresses a number of important questions. First, does the Court use originalist sources exclusively or predominantly to resolve statutory cases? Second, how do new theories offered by scholars in the field, each entailing a bias for particular kinds of authority, measure up against the Court’s practice? Third, what implications do the data have for the current debate over the preferred method of statutory interpretation? For example, can the data better inform the dispute over the legitimacy of judicial policymaking that is so much a part of the literature in the field and that fuels the debate between textualists and proponents of dynamic interpretation?
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