Legislation & Regulation - Bibliography

When a party aggrieved by a federal government agency’s interpretation of a statute or regulation seeks judicial review,1 the reviewing court typically applies the Chevron doctrine2 and defers to the agency’s interpretation so long as it is reasonable and not contrary to the statutory or regulatory text.3 In some cases, however, courts have refused to defer *205 to an agency’s legal interpretation because the agency itself benefited in some direct way from the interpretation it adopted--in other words, because the agency’s interpretation implicated the agency’s self-interest.4 When called upon to review an agency’s self-interested legal interpretation, some courts, apparently suspicious of possible agency self-aggrandizement, have hesitated to defer and have instead subjected the agency’s interpretation of law to noticeably more thorough scrutiny than is typical in Chevron cases.

This article reviews several cases in which courts have considered whether to accord Chevron deference to self-interested statutory and regulatory interpretations by administrative agencies. Although many courts have stated or implied that self-interested agency action warrants little judicial deference, they have generally failed to enunciate clear and consistent rationales for such a result. Nor have the courts generally specified whether an agency’s self-interested interpretation should be evaluated within the deferential confines of the Chevron doctrine or *206 under an alternative analytical framework. Indeed, one may find support for either alternative in the case law and scholarly commentary on the issue.

This article concludes that three principles rooted in notions of due process weigh against according Chevron deference to interpretations implicating the self-interest of the issuing agency. First, to withhold an independent judicial evaluation of an agency’s self-interested interpretation effectively cedes to the agency the power to act as judge in its own cause, a result incompatible with a long line of authority demanding disinterested and impartial governmental decision-making.5

Second, self-interest on the part of the issuing agency provides a reason to doubt the genuineness of the explanation the agency offers to justify its interpretation. That is to say, the fact that the agency’s interpretation implicates the agency’s self-interest invites doubt about whether the enunciated rationale for the agency’s action truly supplied the basis on which the agency took that action. The law, however, clearly obliges agencies to describe accurately their reasons for adopting any particular position--in part because an accurate statement of an agency’s reasoning is necessary for effective judicial review, but more generally because the government ought to speak the truth. Withholding an independent judicial evaluation of an agency’s interpretation where the agency’s self-interest casts doubt upon its stated rationale for that interpretation is …
Full-text on Westlaw

In this article, we examine an important threshold question in judicial behavior and administrative law: When do federal circuit courts decide to use the Chevron deference framework and when do they select a framework that is less deferential to the administrative agency's statutory interpretation? The question is important because the purpose of Chevron deference is to give agencies—not judges—policy‐making space within statutory interpretation. We expect, nonetheless, that whether to invoke the Chevron framework is largely driven by political dynamics, with judges adopting a less deferential standard when their political preferences do not align with the agency's decision. To provide insight, we analyze circuit court decisions from 2003 until 2013 that review agency statutory interpretations. Our results—from the largest and most comprehensive database of its kind—provide partial confirmation of our expectations. When courts reviewed liberal agency interpretations, all panels—liberal, moderate, and conservative—were equally likely to apply Chevron. However, when reviewing conservative agency interpretations, liberal panels selected the Chevron deference framework significantly less frequently than conservative panels. Contrary to limited prior studies, we find no evidence of “whistleblower” or disciplining effects when judges of different judicial ideologies comprised the panel. Viewed together, our results provide important implications for the current debate on whether to eliminate, narrow, or clarify Chevron's domain.
Full-text on Wiley Online Library

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.
Full-text on Westlaw

An increasing number of judges, policymakers, and scholars have advocated eliminating or narrowing Chevron deference--a two-step inquiry under which courts defer to federal agencies’ reasonable interpretations of ambiguous statutes the agencies administer. Much of the debate centers on either Chevron’ s domain (i.e., when Chevron should apply at all) or how courts ascertain statutory ambiguity at Chevron’s first step. Largely lost in this debate on constraining agency discretion is the role of Chevron’s second step: whether the agency’s resolution of a statutory ambiguity is reasonable. Drawing on the most comprehensive study of Chevron in the circuit courts, this Article explores how circuit courts have applied Chevron step two to invalidate agency statutory interpretations. In doing so, it identifies three separate approaches that merit further theoretical and doctrinal development: (1) a more-searching textualist or structuralist inquiry into the statutory ambiguity in light of the whole statute; (2) an enhanced purposivist or contextualist inquiry; and (3) an inquiry into an agency’s reasoned decisionmaking similar to arbitrary-and-capricious review under the Administrative Procedure Act.
Full-text on Westlaw

An increasing number of judges, policymakers, and scholars have advocated eliminating or narrowing Chevron deference--a two-step inquiry under which courts defer to federal agencies’ reasonable interpretations of ambiguous statutes the agencies administer. Much of the debate centers on either Chevron’ s domain (i.e., when Chevron should apply at all) or how courts ascertain statutory ambiguity at Chevron’s first step. Largely lost in this debate on constraining agency discretion is the role of Chevron’s second step: whether the agency’s resolution of a statutory ambiguity is reasonable. Drawing on the most comprehensive study of Chevron in the circuit courts, this Article explores how circuit courts have applied Chevron step two to invalidate agency statutory interpretations. In doing so, it identifies three separate approaches that merit further theoretical and doctrinal development: (1) a more-searching textualist or structuralist inquiry into the statutory ambiguity in light of the whole statute; (2) an enhanced purposivist or contextualist inquiry; and (3) an inquiry into an agency’s reasoned decisionmaking similar to arbitrary-and-capricious review under the Administrative Procedure Act.
Full-text on Westlaw

In Chevron U.S.A., Inc. v. NRDC, decided in 1984, the U.S. Supreme Court announced a startling new approach to judicial review of statutory interpretation by administrative agencies, which requires courts to defer to agency interpretations of ambiguous statutes. Although it was perhaps hoped that Chevron would simplify judicial review and increase deference to agency interpretation, the opposite has occurred. Chevron has complicated judicial review and, at best, it is uncertain whether it has resulted in increased deference to agency interpretation. In fact, for numerous reasons, Chevron has been a failure on any reasonable measure and should be overruled. Further, overruling Chevron would be consistent with the practice of stare decisis because it is a judge-made rule, has proven unworkable in practice, is inconsistent with a governing statute, and has not spawned settled expectations that would be upset if it is overruled. Finally, the Chevron doctrine should be replaced either by reviving, with minor modifications, pre-Chevron practice, or with a slightly modified version of Skidmore deference.
Full-text on Westlaw

Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. asks courts to determine whether Congress has delegated to administrative agencies the authority to resolve questions about the meaning of statutes that those agencies implement, but the decision does not give courts the tools for providing a proper answer. Chevron directs courts to construe statutory text by applying the traditional theories of statutory interpretation--whether intentionalism, purposivism, or textualism--and to infer a delegation of agency interpretive authority only if they fail to find a relatively specific meaning. But the traditional theories, despite their differences, all invite courts to construe statutory text as if Congress intended that text to have a relatively specific meaning. The presumption of a specific meaning does not match the reality of how Congress designs regulatory statutes. Congress is more likely to eschew specificity in favor of agency delegation under certain circumstances-- for example, if an issue is complex and if legislators can monitor subsequent agency interpretations through administrative procedures. Although Chevron recognizes such “delegating” factors, it fails to sufficiently credit them. Even United States v. Mead Corp., which makes delegation the key question, falls short. This Article imagines what interpretive theory would look like for regulatory statutes if it actually incorporated realistic assumptions about legislative behavior. The theory would engage factors such as the complexity of the issue and the existence of administrative procedures as indications of interpretive delegation more satisfactorily than existing law does. In the process, it would produce a better role for courts in overseeing the delegation of authority to agencies.
Full-text on Westlaw

Until recently an appellate court trying to interpret unclear statutory language would have thought it natural, and often helpful, to refer to the statute's “legislative history.” The Judges might have examined congressional floor debates, committee reports, hearing testimony, and presidential messages in an effort to determine what Congress really “meant” by particular statutory language. Should courts refer to legislative history as they try to apply statutes correctly? Is this practice wise, helpful, or proper? Lawyers and judges, teachers and legislators,1 have begun to reexamine this venerable practice, often with a highly critical eye. Some have urged drastically curtailing, or even totally abandoning, its use. Some argue that courts use legislative history almost arbitrarily. Using legislative history, Judge Leventhal once said, is like “looking over *846 a crowd and picking out your friends.”2 Others maintain that it is constitutionally improper to look beyond a statute's language, or that searching for “congressional intent” is a semi-mystical exercise like hunting the snark.

These and other criticisms are taking their toll. Judge Wald has pointed out that the Supreme Court relied on legislative history in almost every statutory case it decided in 1981.3 And although Justice White has recently commented that “the Court's practice of utilizing legislative history reaches well into its past, and we suspect that the practice will likewise reach well into the future,4 the Supreme Court's actual use of legislative history is in decline. By 1989, the Court decided a significant number of statutory cases (ten out of about sixty-five) without any reference to legislative history at all;5 and, in the 1990 Term, the Court decided nineteen out of about fifty-five such statutory cases without its use.6 Referring to legislative history to resolve even difficult cases may soon be the exception rather than the rule.

*847 Although I recognize the possible “rearguard” nature of my task, I should like to defend the classical practice and convince you that those who attack it ought to claim victory once they have made judges more sensitive to problems of the abuse of legislative history; they ought not to condemn its use altogether. They should confine their attack to the outskirts and leave the citadel at peace.
Full-text on Westlaw

Much in the field of statutory interpretation is predicated on “interpretive dialogue” between courts and legislatures. Yet, the idea of such dialogue is often advanced as little more than a slogan; the dialogue that courts, legislators, and scholars are imagining too often goes unexamined and underspecified. This Article attempts to organize thinking about the ways participants and theorists conceive, and should conceive, of interbranch dialogue within statutory interpretation.

The Article itself proceeds by using a dialogic and dialectical method. It first develops various positions against “interbranch dialogue.” By invoking arguments from textualism, public choice, and positive political theory, it advances the position that dialogue should not animate thinking in statutory interpretation.

With that auspicious start, the Article then explores in conceptual and descriptive terms what would count as true dialogic activity. Interbranch dialogue is not reducible to mere textual pronouncements or anticipatory signaling efforts. Rather, it is best understood as responsive communication between the two institutions, in which each party listens to, takes seriously, and values what the other party says and thinks, even if there is disagreement on particular interpretive outcomes or their implications. This communication may emerge in unscripted or unanticipated terms or it may flow more formally from mechanisms designed to generate responsive exchange. The Article highlights and examines numerous modes of dialogue that are initiated by the legislature and also by the courts, using examples from both federal and state levels.

The Article concludes by rehabilitating and rejuvenating the dialogue model in normative terms, drawing interbranch dialogue back to its legal process roots and revealing its links to more contemporary deliberative democratic theory.
Full-text on Westlaw

An important recent development in the field of statutory interpretation has been the emergence of a movement calling for interpretive methodology to be given precedential effect. In such a system, a case would establish not only what a particular statute means but could also establish binding rules of methodology — which tools are valid, in what order, and so on. The movement for methodological precedent has attracted sharp criticism on normative grounds. But both sides of the normative debate agree on the premise that the federal courts generally do not give precedential effect to interpretive methodology.

This Article shows that both sides have misapprehended the current state of affairs. The federal courts already display a substantial amount of methodological precedent. Commentators have underestimated its prevalence for a few reasons, some conceptual and some empirical. On the conceptual side, scholars are rarely explicit about what they believe methodological precedent entails, and some of their implicit criteria are incorrect. On the empirical side, commentators focus too much on the Supreme Court and a few of its fiercest methodological battles rather than viewing the federal judiciary as a whole. If one applies the right criteria and expands the field of view, one sees that we already have a federal interpretive system that is at least semi-precedential. Methodological precedent is most prominent in the lower courts, but there is unappreciated evidence from the Supreme Court too, and the precedential nature of the system is likely to increase.

Adopting a proper understanding of methodological precedent’s nature and extent has some implications for the normative debate over expanding the role of precedent in interpretive methodology. Some of the implications should hearten the proponents of methodological precedent. But the fact that the current level of methodological precedent has not received its proper due may show that its proponents’ real aims are unlikely to be satisfied even as methodological precedent expands and solidifies.
Full-text on SSRN

Is statutory interpretation an activity that all courts should perform the same way? Courts and commentators implicitly so conclude. I believe that conclusion is wrong. Statutory interpretation is a court-specific activity that should differ according to the institutional circumstances of the interpreting court. The U.S. Supreme Court is not the model all other courts should emulate.

I identify three kinds of institutional differences between courts that bear on which interpretive methods are appropriate: (1) the court’s place in the hierarchical structure of appellate review, (2) the court’s technical capacity and resources, and (3) the court’s democratic pedigree, particularly as reflected in methods of judicial selection. Attending to these institutional factors would yield insights for both judicial practice and academic theory. In terms of prescriptions for courts, the differences justify a heterogeneous regime in which courts at different levels of the judicial hierarchy use somewhat different interpretive methods. But even apart from my specific recommendations, the larger point is that scholars need a normative account of what lower-court statutory interpretation should look like. Such a normative framework would help us evaluate the lower courts’ output (which is becoming the subject of an important and growing body of descriptive work) and determine which of the Supreme Court’s practices should--and should not--be followed in the lower courts.
Full-text on Westlaw

This Article examines the methods of statutory interpretation used by the lower federal courts, especially the federal district courts, and compares those methods to the practices of the U.S. Supreme Court. This novel research reveals both similarities across courts and some striking differences. The research shows that some interpretive tools are highly overrepresented in the Supreme Court’s decisions, while other tools are much more prevalent in the lower courts. Differences in prevalence persist even after accounting for the selection effect that stems from the Supreme Court’s discretionary docket. Another finding--based on a study of 40 years of cases from all three levels of the federal judiciary--is that all federal courts have shifted toward more frequent use of textualist tools in recent decades. However, that shift has been less pronounced as one moves down the judicial hierarchy.

The divergence between the interpretive practices of different federal courts has implications for both descriptive and normative accounts of *2 statutory interpretation. On the descriptive side, most beliefs about statutory interpretation are based on the narrow and unrepresentative slice of judicial business conducted in the Supreme Court, but some of those beliefs turn out to be incorrect or incomplete as descriptions of statutory interpretation more generally. This research therefore substantially improves our understanding of the complex reality of judicial statutory interpretation. On the normative side, the results of this research can advance scholarly and judicial debates over whether lower courts should conduct statutory interpretation differently than the Supreme Court and whether the Court’s interpretive methodology should be binding on lower courts. This Article’s findings also suggest that the teaching of statutory interpretation should take into account the distinctive practices of the lower courts, where the vast majority of legal work is done.
Full-text on Westlaw

Scholars and judges have long disagreed on whether courts of appeals construing statutes ought to adapt their use of interpretive resources to Supreme Court approaches. If circuit courts and the Supreme Court approach statutory issues in similar ways, this can perhaps provide a measure of predictability for litigants and the public while conserving judicial resources; it may also enhance perceptions of fairness in the judicial system. Such normative arguments invite--even demand--a fuller understanding of the underlying descriptive reality: whether anything approaching uniformity or consistency actually exists.

This Article aims to provide that understanding. It does so through an in-depth examination of similarities and differences in how the Supreme Court and circuit courts apply key interpretive resources in a universe of identical cases involving statutory interpretation: those in which the Supreme Court reviews what an appeals court has decided. From circuit judges' standpoint, such cases are more complex than the bulk of their docket; moreover, the judges are nearly always aware when they are creating or contributing to circuit conflicts that are centrally important to the Supreme Court's granting of certiorari.

Our findings provide a modicum of support for the virtue of predictability. The Supreme Court's increasing reliance during the Rehnquist and Roberts years on ordinary meaning, language canons, and dictionaries, and its declining interest in legislative history, are trends that the appeals courts followed with a lag of several years, suggesting that circuit courts are influenced to some degree by Supreme Court changes in emphasis and priority.

But a number of findings lend descriptive support to normative arguments opposing uniformity. Some results support divergent approaches based on differences in institutional perspective: circuit courts prefer simpler interpretive frameworks as more compatible with their heavier workloads. Other findings supporting a pluralist approach in these identical cases suggest that appeals courts are reacting silently but negatively to the doctrinaire pronouncements of certain Supreme Court justices. And a third set of findings underscores both the necessity and the value of deliberative disputation between the two judicial levels.

In the end, it is the divergence in interpretive approaches between the two levels of courts that stands out. Based on our empirical and doctrinal analyses, a substantial degree of divergence seems inevitable even in this special universe of identical cases. Whatever its desirability may be as a normative matter, uniformity between the Supreme Court and the courts of appeals in reliance on interpretive resources is a chimera.
Full-text on Westlaw

Predictive judicial analytics holds the promise of increasing efficiency and fairness of law. Judicial analytics can assess extra-legal factors that influence decisions. Behavioral anomalies in judicial decision-making offer an intuitive understanding of feature relevance, which can then be used for debiasing the law. A conceptual distinction between inter-judge disparities in predictions and inter- judge disparities in prediction accuracy suggests another normatively relevant criterion with regards to fairness. Predictive analytics can also be used in the first step of causal inference, where the features employed in the first step are exogenous to the case. Machine learning thus offers an approach to assess bias in the law and evaluate theories about the potential consequences of legal change.
Full-text on SSRN

A substantial academic literature considers how agencies should interpret statutes. But few studies have considered how agencies actually do interpret statutes, and none has empirically compared the methodologies of agencies and courts in practice. This Article conducts such a comparison, using a newly created dataset of all Internal Revenue Service (IRS) publications ever released, along with an existing dataset of court decisions. It applies natural language processing, machine learning, and regression analysis to map methodological trends and to test whether particular authorities have developed unique cultures of statutory interpretation.

It finds that, over time, the IRS has increasingly made rules on normative policy grounds (like fairness and efficiency) rather than merely producing rules based on the “best reading” of the relevant statute (under any interpretive theory, like purposivism or textualism). Moreover, when the IRS does focus on the statute, it has grown much more purposivist over time. In contrast, the Tax Court has not grown more normative and has followed the same trend toward textualism as most other courts. But although the Tax Court has become more broadly textualist, it prioritizes different interpretive tools than other courts, like Chevron deference and holistic-textual canons of interpretation. This suggests that each authority adopts its own flavor of textualism or purposivism.

These findings complicate the literature on tax exceptionalism and the judicial nature of the Tax Court. They also inform ongoing debates about judicial deference and the future of doctrines like Chevron and Skidmore deference. Most broadly, *364 they provide an empirical counterpoint to the existing theoretical literature on statutory interpretation by agencies.
Full-text on Westlaw

Negotiated rulemaking, or “reg neg,” has emerged in certain policy areas as a prominent alternative to the traditional federal rulemaking process. Amidst the ongoing debate over the costs and benefits of this innovative approach— including the appropriate scope of judicial review of reg neg rules—courts and commentators have heretofore failed to recognize the fundamental incompatibility between Chevron deference and negotiated rulemaking. Judicial deference to “agency” interpretations of law is particularly inappropriate in the case of reg negs, as the rationale underlying the Chevron doctrine has been thoroughly vitiated.
Full-text on Westlaw

Judicial interpretation of regulatory standards generally relies on the presumption that agencies are politically accountable and democratically “appointed” actors. As a result, courts defer to reasonable agency interpretations of ambiguous statutory language. This presumption, however, is severely outdated. The regulatory arena is replete with the privatization of regulatory decision making, which puts the current approach to agency deference in question. This Note seeks to address the changing nature of the regulatory framework by suggesting a modification of agency deference doctrine that accounts for the increasingly active role played by private parties in public governance. In proposing a new framework for agency deference in cases of private delegation, the Note explores parallels between agency deference and the nondelegation doctrine, addresses the relationship of agency deference to the separation of powers and interpretive competence, and seeks to reinstate the judiciary as a primary expositor of statutory meaning in the private-delegation context.
Full-text on Westlaw

Plurality decisions from the U.S. Supreme Court demand interpretation, especially because they tend to occur when the Court faces important but divisive legal issues. Most courts, agencies, and scholars have assumed that federal agencies are in no better position to interpret plurality decisions than the lower federal courts when confronted with a potentially precedential Supreme Court plurality decision--the agency must construe the Justices’ various opinions in search of a controlling rationale. In so doing, however, the agency eschews any claim to Chevron deference because it is no longer implementing a statute pursuant to congressionally delegated authority. Instead, it is merely an agency interpreting a court.

This Article argues that pursuant to the Supreme Court’s 2005 decision in National Cable & Telecommunications Ass’n v. Brand X Internet Services, federal agencies have another option when dealing with a Supreme Court plurality decision regarding either a statute that the agency implements or the agency’s prior interpretation of that statute. In the right circumstances, these post-plurality agencies can invoke their original congressionally delegated authority to implement the statute and issue new regulations that should be entitled to Chevron deference. Post-plurality agencies thus face a deference conundrum: they can defer to a fractured Supreme Court decision at the expense of their own claims to interpretive authority, or they can--admittedly with some risk in the next round of judicial review--reclaim interpretive deference for themselves.

In assessing the deference conundrum, the exact character of the plurality decision is important. This Article includes a typology of Supreme Court plurality decisions involving agency-mediated statutes. When the *2 Chevron/Brand X framework applies, however, agencies have the opportunity, and arguably the duty, to eliminate the confusion and inconsistency that plurality decisions promote by issuing clarifying and nationally uniform rules.
Full-text on Westlaw

Should federal courts give stare decisis effect to statutory interpretation methodology? Although a growing number of legal scholars have answered this question in the affirmative, this Essay makes the case against methodological stare decisis. Drawing on recent empirical studies of Congress's expectations regarding statutory interpretation, we show that existing knowledge of Congress's expectations is insufficient to settle on one consistent approach to statutory interpretation. Moreover, Congress has almost certainly changed its expectations over time, and this raises serious problems for methodological stare decisis from the perspective of faithful-agency theories. We argue further that many theories and doctrines of statutory interpretation are based on constitutional norms and other public values that do not depend on Congress's meta-intent. Constitutional norms and public values also change, and interpretive methodology should remain dynamic so that the law can be responsive to changing societal norms. Finally, we argue that the value of extending stare decisis effect to interpretive methodology is unproven. Although treating prior methodological decisions as binding precedent could, in theory, promote the policies underlying stare decisis, the same would be true of extending that doctrine to virtually any rules. Yet interpretive methodology is different from first-order rules of law in significant ways, and freezing higher-order legal rules into place would pose special and perhaps overwhelming difficulties. We therefore conclude that federal courts should not extend stare decisis effect to methodological decisions without seriously grappling with these difficulties and demanding much stronger evidence that such a move would improve the operation of our legal system.
Full-text on Westlaw

Statutory interpreters often rely upon a fundamental assumption: namely, that every word of a statute is meant to be read--and given legal force--by the courts. This assumption unites both textualists and intentionalists, and it has been invoked by Justices as diverse as Chief Justice Marshall, Justice Stevens, and Justice Scalia--the last of whom called it a “cardinal rule of statutory interpretation.” It underpins at least nine separate canons of statutory interpretation, and it even shapes how courts interpret legislative documents beyond statutes. It is difficult to imagine a more central assumption in statutory interpretation.

As this Article shows, however, this assumption is incorrect. Congress routinely inserts language into statutes that it hopes courts will ignore. Rather than addressing courts, this language targets one of three nonjudicial audiences: interest groups, executive agencies, or nonpartisan congressional offices.

This Article--written by a former drafter of congressional statutes-- documents this legislative practice. Moreover, it argues that, to the extent that courts want to act as faithful agents of Congress, they should refrain from interpreting and applying this text that Congress intends solely for a nonjudicial audience. The Article outlines a methodology that courts can use to this end--a methodology that can accurately identify statutory text Congress wants courts to ignore.

In addition to showing that courts are reaching incorrect results in important cases--and providing a methodological solution to this problem--the Article's analysis also holds theoretical lessons for the major schools of thought in statutory interpretation. For intentionalists, it provides a new theory about how courts should weigh legislative materials (including statutory text, appropriations committee reports, and CBO cost estimates). For textualists, it shows that many canons of construction must be modified or discarded, and it also rebuts the foundational notion that statutory text can be divorced from intent or audience. And, for public-choice theorists, it challenges the central idea that legislators are mere agents for interest groups--an idea rebutted by the discovery of a drafting practice that purposefully carves out spaces for principled governance in statutes.
Full-text on Westlaw

A central debate in the field of legislation has asked: how reliable are the different types of legislative history? Yet there has been no understanding, throughout this debate, of who inside Congress drafts this legislative history. This is surprising, given the common intuition that authorship is a key indicator of reliability.

In response, this Article presents the results of an original empirical study--one that illuminates this unknown dimension of Congress, uncovering the actors and processes that produce modern legislative history. For this study, the author conducted interviews with congressional staffers drawn from both parties, both chambers of Congress, and numerous committees. Through the study, the Article discovers that different types of legislative history are drafted by very different actors within Congress--actors with fundamentally different competencies, motivations, and job descriptions.

Based on these findings, the Article urges statutory interpreters to adopt a new hierarchy of legislative history materials. Unlike the prevailing hierarchy, this new approach allows interpreters to prioritize legislative history drafted by those in Congress who possess the capacity, and the institutional motivation, to predictably generate reliable documents.

The interviews conducted for this Article also provided numerous additional discoveries about the inner workings of the modern Congress. The Article reports these discoveries, and it examines their implications for ongoing debates about democracy, legislative process, and statutory interpretation.
Full-text on Westlaw

Courts engage in interstatutory cross-referencing all the time, relying on one statute to help interpret another. Yet, neither courts nor scholars have ever had a satisfactory theory for determining when it is appropriate. Is it okay to rely on any other statute as an interpretive aid? Or, are there limits to the practice? If so, what are they? To assess when interstatutory cross-referencing is appropriate, I focus on one common form of the technique, the in pari materia doctrine. When a court concludes that two statutes are in pari materia or (translating the Latin) “on the same subject,” the court then treats the two statutes as though they were one. The doctrine thus permits judges to use ordinary doctrines of intra-statute interpretation across the two statutes. Determining that two statutes are “on the same subject” thus gives interpreters a powerful tool of interstatutory interpretation.

How, then, should courts determine whether to treat two statutes as one? If we frame the question through the lens of the two currently predominant theories of statutory interpretation--textualism and intentionalism--we can see that the traditional approach of asking about the statutes' “subject matter” in the abstract makes little sense. For textualist judges who care about objective meaning, it makes more sense to engage in interstatutory cross-referencing if and only if the audience for the two statutes--the appropriately informed objective reader of the statutes--is the same. For interpreters who care about subjective legislative intent, interstatutory cross-referencing would generally be appropriate if and only if the two statutes were drafted by and came through the same Congressional committees.

Even if one rejects my proposed approaches, thinking about how to fit interstatutory cross-referencing into modern theories of statutory interpretation raises some confounding issues for those theories. In particular, it requires textualists to articulate explicitly who the audience for any given statute is, for without doing so, the textualist has no theoretical basis for determining when interstatutory cross-referencing is appropriate and when it is not. Thus, irrespective of the specifics of my proposals, looking at the ancient doctrine of in pari materia through the lens of modern theories of statutory interpretation sheds light on important questions about statutory interpretation that courts and theorists have largely ignored.
Full-text on Westlaw

What statutory language means can vary from statute to statute, or even provision to provision. But what about from case to case? The conventional wisdom is that the same language can mean different things as used in different places within the United States Code. As used in some specific place, however, that language means what it means. Put differently, the same statutory provision must mean the same thing in all cases. To hold otherwise, courts and scholars suggest, would be contrary both to the rules of grammar and to the rule of law.

This Article challenges that conventional wisdom. Building on the observation that speakers can and often do transparently communicate different things to different audiences with the same verbalization or written text, it argues that, as a purely linguistic matter, there is nothing to prevent Congress from doing the same with statutes. More still, because the practical advantages of using multiple meanings--in particular, linguistic economy--are at least as important to Congress as to ordinary speakers, this Article argues further that it would be just plain odd if Congress never chose to communicate multiple messages with the same statutory text.

As this Article goes on to show, recognizing the possibility of multiple statutory meanings would let courts reach sensible answers to important doctrinal questions they currently do their best to avoid. Most notably, thinking about multiple meanings in an informed way would help courts explain under what conditions more than one agency should receive deference when interpreting a multi-agency statute. Relatedly, it would let courts reject as false the choice between Chevron deference and the rule of lenity for statutes with both civil and criminal applications.
Full-text on Westlaw

Although explicitly invoked only in rare cases, the absurdity doctrine is far more robust in practice than commonly assumed. This is because of a phenomenon I call “absurdity in disguise,” wherein judges use the anomalous or undesirable results of applying a statute's ordinary meaning to “create” statutory ambiguity, opening the door to a variety of interpretive tools that would otherwise be unavailable. Ironically, the use of ambiguity to conceal the use of the absurdity doctrine is a direct result of judges' increasing acceptance of textualist methods of statutory interpretation. Because textualism eschews results-oriented interpretive approaches, judges who wish to avoid a result of applying statutory text as written must employ text-centric arguments to do so. This article identifies the concept of absurdity in disguise and reveals its use in a variety of decisions at all levels of the federal courts.
Full-text on Westlaw

Perhaps nowhere does Justice Gorsuch depart as far from Justice Scalia as in the context of administrative law.

ustice Scalia generally supported the administrative state. While no fan of regulation, he deferred to agency decision-making, believing that Chevron implemented the Founders' intention that the Executive, not the courts, reasonably resolve statutory ambiguities. He wrote Auer, which commands deference to agency interpretations of their own regulations (though late in his career he would argue for abandoning Auer). He wrote City of Arlington, which requires courts to defer under Chevron even when an agency interprets the boundaries of its own jurisdiction--a context in which we might expect courts to rein in agency overreaching. And he wrote Whitman v. American Trucking, which interred a late-twentieth century effort to revive the Lochner era's nondelegation doctrine.

Justice Gorsuch, by contrast, presents himself as a foe of the administrative state. While on the Tenth Circuit, he argued against Chevron and intimated that he would overrule it if he could. He endorsed strengthening the nondelegation doctrine and has even questioned the constitutionality of agencies altogether. Gorsuch undoubtedly agrees with Scalia's late rejection of Auer. And Gorsuch rejects Brand X, which requires deference to an agency's interpretation of an ambiguous statute even when a court has already adopted a different interpretation. Here Gorsuch and Scalia agree, both finding it unconstitutional for a judicial decision to be “subject to revision by a politically accountable branch of government.”

What consequences will Justice Gorsuch's views have? Justices Thomas and Alito undoubtedly share his suspicions of the administrative state, and Justice Kavanaugh reportedly does as well. That's four votes for major change in administrative law doctrine.
Full-text on Westlaw

We live in an “administrative state.” Civil servants and political appointees make rules of general applicability, adjudicate individual cases, and enforce the laws within complex, hierarchical organizations. At the same time, we are committed to democratic-constitutional principles, which require that “We the people” remain the authors of the laws that bind us. Bureaucracy can serve democratic governance because the public purposes outlined by statute often require “administrative machinery” to come into force. But democracy is also seen to conflict with the delegation of discretionary authority to administrative institutions, since bureaucratic decision-makers stand removed from electoral accountability.

The latest doctrinal expression of this conflicted partnership between democracy and bureaucracy is the major questions doctrine. This doctrine is a prominent exception to the general principle of judicial deference to administrative interpretations of statutory ambiguities. Courts will normally afford agency interpretations *2022 of such ambiguities some degree of weight or deference, depending on the level of authority Congress has delegated to the agency and the formality of the procedure through which such interpretations have been issued. However, in a series of cases in the past three decades, the Supreme Court has held that where a statutory ambiguity raises a question of great “economic and political significance,” it will presume that Congress did not intend the agency to resolve the issue. Instead, the Court will resolve the ambiguity itself, without giving any weight or deference to the agency's position.

This Article proceeds in six parts. In Part I, I trace the development of the major questions doctrine as an exception to Chevron deference. In Part II, I reconstruct the rationale for the doctrine, arguing that it is best understood as reinforcing the nondelegation doctrine and, more fundamentally, deliberative democratic control over political choices. In Part III, I argue that the major questions doctrine rests on two auxiliary assumptions: first, that courts are the best interpreters of the principles and policies enacted in legislation; and, second, that agencies should serve as value-neutral, technocratic implementers of policies established definitively by courts and the legislature. In Part IV, I suggest an alternative model of administration, based on Progressive political thought, which emphasizes the discursive role agencies can play in synthesizing expressions of public opinion in the form of legislation, presidential input, and public participation. In Part V, I argue that this Progressive theory better comports with our current institutional regime than the courtcentric and technocratic assumptions of the major questions doctrine. In Part VI, I deploy this alternative understanding to propose a revision to the major questions doctrine. I then demonstrate how this modified approach would apply to the major questions cases.
Full-text on Westlaw

Twenty-five years ago, the Supreme Court issued its unanimous opinion in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.1 Authored by Justice Stevens, the decision was concise and circumspect, and the relatively easy facts of that case should have limited its reach. Certainly, the Court could not have foreseen that Chevron would be declared a watershed case.2 Yet in retrospect, the decision took hold as one of the most controversial in the history of administrative law.3

A quarter-century later, Justice Stevens must rue the day he penned the concise words of Chevron's central holding.4 Indeed, after many years of stretching the Court's decision well beyond its original bounds, a shifting majority of the Court appears to be backpedaling in a sporadic effort to devise a *20 more balanced, nuanced deference framework.5

Beginning in 2000, the Rehnquist Court began sketching out the parameters of a more flexible, multi-factor approach to determine the nature and degree of judicial deference warranted for agency interpretations.6 In doing so, the Court followed a discernable pattern of retrenchment from the unwittingly simplistic approach mapped out in Chevron. In a series of decisions, the Rehnquist Court chipped away at Chevron's sweeping “domain,”7 generally confining its doctrine of heightened deference to regulations adopted in notice-and-comment rulemaking.8

The most controversial of these was United States v. Mead Corp.,9 decided in 2001. The Mead Court breathed new life into Skidmore v. Swift & Co.,10 a 1944 decision predating the Administrative Procedure Act (APA). Skidmore had articulated a multifaceted common law deference framework depending upon various enumerated factors the Court credited as lending persuasive value to agency interpretations.11 While Mead expressly revived the more flexible common law deference doctrine, it failed to reconcile Skidmore with the superseding provisions of the APA governing judicial review.12

By the end of Chief Justice Rehnquist's last term, the Court had settled into a relatively predictable dichotomy. The Court generally applied Chevron deference if a rule had been adopted in notice-and-comment proceedings, and otherwise defaulted to classic Skidmore analysis of various persuasive factors to determine whether a less formal agency interpretation warranted deference. In its final term, the Rehnquist Court resolved a complex issue concerning the stare decisis effect on agencies of judicial precedents interpreting black-letter law. In National Cable & Telecommunications Ass'n v. Brand X Internet Services,13 the Court held that an agency is bound by a court's prior interpretation of a statute or rule only if the court declared its language unambiguous.14 In that *21 event, the prior judicial interpretation controls over any subsequent agency interpretation to the contrary.15

Nevertheless, the Rehnquist Court failed to reconcile its generally narrower deference framework with the Court's sweepingly deferential 1997 holding in Auer v. Robbins.16 Authored by Justice Scalia for a unanimous Court, Auer held that an agency's interpretation of its own ambiguous regulation was entitled to particularly deferential respect.17 Moreover, the Court rejected an argument that agencies should apply canons of statutory construction to resolve apparent ambiguities in their own regulations.18

While its legacy was a relatively stable yet more complex deference doctrine, the Rehnquist Court essentially disregarded the APA's language governing judicial review.19 If the Court was unable to resolve an ambiguity in a statute Congress had delegated authority to an agency to administer, the Court applied one of three common law deference frameworks: Chevron if the agency had interpreted an ambiguous statute by adopting regulations in notice-and-comment proceedings, Mead/Skidmore if the agency had issued its interpretation of an ambiguous statute by informal means such as letter rulings or policy statements, and Auer if the agency had interpreted its own ambiguous regulation by whatever means.20 What remained was for the Court to reconcile Auer deference with the less deferential Skidmore doctrine revived by Mead.
Full-text on Westlaw

Federal judges interpreting the Constitution typically consider not only the constitutional text and its historical background, but also its subsequent interpretational history, related constitutional developments, and current societal facts. Similarly, judges interpreting common law precedents normally consider not only the text of the precedents and their historical context, but also their subsequent history, related legal developments, and current societal context. In light of this, it is odd that many judges and commentators believe judges should consider only the text and historical context when interpreting statutes, the third main source of law. Statutes, however, should—like the Constitution and the common law—be interpreted ‘dynamically,’ that is, in light of their present societal, political, and legal context.1

Traditional doctrine teaches that statutes should not be interpreted dynamically. Prevailing approaches to statutory interpretation treat statutes as static texts. Thus, the leading treatise states that ‘[f]or the interpretation of statutes, ‘intent of the legislature’ is the criterion that is most often cited.'2 This ‘intentionalist’ approach asks how the legislature originally intended the interpretive question to be answered, or *1480 would have intended the question to be answered had it thought about the issue when it passed the statute.3 A ‘modified intentionalist’ approach uses the original purpose of the statute as a surrogate for original intent, especially when the latter is uncertain; the proper interpretation is the one that best furthers the purpose the legislature had in mind when it enacted the statute.4

Theoretically, these ‘originalist’ approaches to statutory interpretation assume that the legislature fixes the meaning of a statute on the date the statute is enacted. The implicit claim is that a legislator interpreting the statute at the time of enactment would render the same interpretation as a judge interpreting the same statute fifty years later. This implication seems counterintuitive. Indeed, the legal realists argued this point earlier in the century. For example, gaps and ambiguities exist in all statutes, typically concerning matters as to which there was little legislative deliberation and, hence, no clear intent. As society changes, adapts to the statute, and generates new variations of the problem which gave rise to the statute, the unanticipated gaps and ambiguities proliferate. In such circumstances, it seems sensible that ‘the quest is not properly for the sense originally intended by the statute, [or] for the sense sought originally to be put into it, but rather for the sense which can be quarried out of it in the light of the new situation.’5 Moreover, as time passes, the legal and constitutional context of the statute may change. Should not an intrepreter ‘ask her self not only what the legislation means abstractly, or even on the basis of legislative history, but also what it ought to mean in terms of the needs and goals of our present day society ? ’6

*1481 The purpose of this Article is to explore the thesis that statutes, like the Constitution and the common law, should be interpreted dynamically.7 Part I sets forth a cautious model of dynamic statutory interpretation. It uses specific examples of dynamic interpretation to show how the model works. The Article accepts the traditional assumptions that a functioning representative democracy exists in our polity, that the legislature is the primary lawmaking body, and that in many cases statutory language will be sufficiently determinate to resolve a given case.8 Even under these conventional assumptions, however, original legislative expectations should not always control statutory meaning. This is especially true when the statute is old and generally phrased and the societal or legal context of the statute has changed in material ways.
Full-text on Westlaw

Applying Professor Neil Komesar’s comparative institutional analysis, this Article sets out the case for according agencies primacy over courts in statutory interpretation; under the Article’s analysis, courts would retain an important, albeit secondary role. The implications of this analysis are significant. The Supreme Court’s Chevron doctrine says that federal judges should defer to agency interpretations of statutes when Congress has delegated those agencies lawmaking authority. The comparative institutional analysis here suggests that Chevron’s “domain” should be expanded to include all interpretations promulgated by an agency’s governing board or director.
Full-text on Westlaw

The much-toasted “Chevron Revolution” began with a bubble. The Clean Air Act Amendments of 1977 capped pollution-emissions levels at “major stationary sources.”1 Representing an Arizona smelting company, the tony Washington, D.C., law firm Shea & Gardner persuaded the EPA that an entire cluster of buildings within an industrial plant should count as a single stationary source; this “bubble concept” would allow firms flexibility to offset increased emissions from one building by reducing them elsewhere within the single plant.2 The D.C. Circuit twice rejected the bubble concept for “non-attainment” states where the Act required improved emissions levels.3 The second case, Chevron, U.S.A., Inc. v. Natural Resources Defense Council,4 reached the Supreme Court, where the bubble concept got an important conceptual boost from Deputy Solicitor General Paul Bator. Representing the EPA, Bator argued that Congress's purpose was complex--to clean up the nation's air (the lower court's focus), but at a reasonable cost to industry (Shea & Gardner's focus). Because the statute was fairly open-ended, the EPA had considerable discretion in setting this policy balance, and federal judges should not upset that balance unless the EPA's view was clearly contrary to the statute.5

Penned by the first “political” deputy within the Solicitor General's Office, Bator's brief was a roadmap for the relief from excessive regulatory burdens that was a hallmark of the Reagan Administration. Liberal Justice William Brennan was suspicious of Bator's framework, but the Administration caught some lucky breaks as Justices dropped out of the case like flies in a hailstorm.6 *1086 Their biggest break, though, was that the legality of the bubble concept was impossibly complicated for the Court. Apparently the shakiest voice in the original 4-3 conference vote to reverse the D.C. Circuit, Justice Stevens explained his tentative willingness to side with the EPA: “When I am so confused, I go with the agency.”7 Encouraged by Justice White, the assigning Justice in the case, Justice Stevens not only accepted Bator's argument of a complex statutory purpose, but endorsed a very broad rule of deference.8 His opinion for a unanimous Court announced a two-step inquiry. Step one: Has Congress “directly spoken to the precise question at issue”?9 If so, Congress's directive is controlling. “If, however, the court determines Congress has not directly addressed the precise question at issue, the court [should] not simply impose its own construction on the statute.” Instead, the court should move to step two and ask “whether the agency's answer is based on a permissible,” or reasonable, “construction of the statute.”10 If so, the court should accept the agency's interpretation.

Just as important as the precise rule was Justice Stevens's broad articulation of the reasons judges should defer. First, when Congress has delegated rulemaking responsibilities to agencies, courts are obligated to go along with those rules unless they are arbitrary, capricious, or contrary to the statute. That was black-letter administrative law, but Stevens added that delegations could be “implicit,” and perhaps implemented through means other than rulemaking. “In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.”11 Second, when an interpretation involves “reconciling conflicting policies,” judges must defer to agencies with experience and expert judgment, especially when the regulatory scheme is technical and complex, and the agency considered the matter in a detailed and reasoned manner.12 Third, and most originally, agencies are relatively more legitimate policy-balancers than courts, because the executive branch is more “directly accountable to the people.”13 Thus, when Congress *1087 (the most accountable branch) has not directly addressed the issue, and the agency has filled the statutory gap in a reasonable way, “federal judges--who have no constituency--have a duty to respect legitimate policy choices made by those who do.”14

In short, Justice Stevens not only delivered an opinion that accepted Bator's argument from conflicting statutory policies, but threw in his own argument based on democratic legitimacy. Almost immediately, Reagan Administration officials and appointees proclaimed a “Chevron Revolution.” In 1986, D.C. Circuit Judge Kenneth Starr (later Solicitor General) announced that Chevron was a Magna Carta for agencies to deregulate and to demand judicial acquiescence, which his court was prepared to deliver.15 Antonin Scalia, Starr's colleague on the D.C. Circuit, announced the same line and pressed a similarly strong reading of Chevron after Reagan appointed him to the Supreme Court.16
Full-text on Westlaw

In the last decade, statutory interpretation has reemerged as an important topic of academic theory and discussion.1 This development is welcome, since few topics are more relevant to legal craft and education than the interpretation of statutes, now our primary source of law. The recent theoretical views, however, contrast with practicing lawyers’ strategies of statutory interpretation. When practitioners give advice to clients about what a statute means, their approach is usually eclectic: They look at the text of the relevant statutory provisions, any legislative history that is available, the context in which the legislation was enacted, the overall legal landscape, and the lessons of common sense and good policy. But when law professors talk about statutory interpretation, they tend to posit a more abstract, “grand” theory that privileges one or another of these approaches as “foundational.”2 The commentators’ grand theories contrast with the more ad hoc, fact-based reasoning of the practicing lawyer.

How do judges interpret statutes? How should they? Many commentators argue that judicial interpretation is, or at least ought to be, inspired by grand theory. We think these commentators are wrong, both descriptively and normatively: Judges’ approaches to statutory interpretation are generally eclectic, not inspired by any grand theory, *322 and this is a good methodology. Stated another way, we argue that foundationalism is a flawed strategy for theorizing about statutory interpretation and that a more modest approach, grounded upon “practical reason,”3 is both more natural and more useful.

Our argument proceeds in three parts. Using three noteworthy Supreme Court cases as examples, Part I argues that the three main unitary theories of statutory interpretation-emphasizing legislative intent, purpose, and text-all fail to establish an overriding and “objective” foundation for interpreting statutes. These theories share several common weaknesses. First, each rests upon questionable premises about the nature of interpretation and the legislative process. Second, none can systematically produce determinate results in the “hard cases,” which undermines their claims to “objectivity.” Third, although each theory rests upon and subserves important values that should be considered when interpreting statutes, no theory persuades us that its cluster of underlying values is so important as to exclude all others. An overall difficulty of grand theory is its emphasis on the universal over the particular, its failure to recognize that statutory interpretation will work in different ways in different concrete cases.

Given the difficulties of the grand theories, one might be tempted to abandon theory entirely, and relegate statutory interpretation to pure ad hocism. This is not the approach we urge, because we find an underlying coherence in the Supreme Court’s practices of statutory interpretation. In Part II, we suggest a paradigm describing the structure of practical reasoning by which the Court interprets statutes in concrete cases. According to this model, the Court considers a broad range of textual, historical, and evolutive evidence when it interprets statutes. In the easy cases, most of the evidence points in the same direction and *323 is thereby mutually reinforcing. In the hard cases, however, the evidence points in different directions, and the Court critically analyzes each textual or historical or evolutive argument, both as to its own cogency and as to its cogency in light of the other evidence. Is the text clear on its face? Am I sure about that interpretation in light of Congress's historical expectations? Does the text shed light on those expectations, perhaps by suggesting that certain speeches on the floor of Congress did not represent prevailing attitudes? And so on. We seek to capture much of this analysis through a schematic model of practical reasoning, which seems to describe what the Court actually does when it interprets a statute.
Full-text on Westlaw

In Northwest, Inc. v. Ginsberg, the Supreme Court recognized that some states impose contractual good faith performance obligations and others do not. States that impose the duty are said to deploy the doctrine to ensure that contractual partners adhere to community standards of decency, fairness, and reasonableness. By contrast, states that let the parties decide for themselves are said to protect the parties' reasonable expectations and give full latitude to their contractual intentions. As noted in Ginsberg, these distinct approaches reflect the two leading theories of contractual good faith performance. One theory, the Excluder Thesis, asserts that good faith is an open-ended standard that excludes bad faith. The other, known as the Recapture Thesis, asserts that good faith is more like a closed-ended rule that prohibits parties from recapturing opportunities that are implicitly sacrificed when making promises to a contractual partner.

Through Natural Language Processing of more than 20,000 contractual good faith cases, this Article presents the first exhaustive empirical study of the entire body of contractual good faith case law. The analysis reveals that courts, in the main, adhere to the Excluder Thesis, and deploy good faith as an open-ended standard in order to exclude community-based definitions of bad faith. Use of the Recapture Thesis for supplying good faith relief is scarce. This is true even in jurisdictions that permit parties to waive obligations of good faith. The empirical analysis further demonstrates, counter-intuitively, that states which permit waiver, and that are said to focus on party intentions, more often use good faith to police community standards of decency.

Taken together, the empirical findings vindicate the Excluder Thesis and suggest the decline of waiver. Abating waiver, however, would be a mistake. Waiver of the duty to perform contractual obligations in good faith should be understood in terms of degree. After all, permission to waive is established by law, and is presumably sanctioned by the will of the community. An important example is federal preemption of state-based good faith claims, which can be understood as a form of imposed waiver. Another example is state-imposed exemptions of good faith duties in employment contracts. In both cases, an alternative public policy is prioritized over community standards of decency, fairness, and reasonableness between contractual partners.

Parties who waive good faith obligations reject today's community standards. Otherwise they would not waive. A subtler and more meaningful observation is that they reject the unknown community standards of tomorrow. Inasmuch as good faith is deployed as an open-ended standard that relies on fluid community norms, good faith is a doctrine that evolves over time and presents unknown risks. Waiver states allow contractual partners to mitigate those risks. While waiver may disadvantage weaker contractual parties, the empirical analysis suggests that it is rarely used in that manner, and as noted in Ginsberg, competition and federal regulation can be expected to suppress its egregious and undesirable use. Authorized waiver should be expanded.
Full-text on Westlaw

Debates about statutory interpretation typically proceed on the assumption that statutes have linguistic meanings that we can identify in the same way that we identify the meaning of utterances in ordinary conversation. But that premise is false. We identify the meaning of conversational utterances largely based on inferences about what the speaker intended to communicate. With legislatures, as now is widely recognized, there is no unitary speaker with the sort of communicative intentions that speakers in ordinary conversation possess. One might expect this recognition to trigger abandonment of the model of conversational interpretation as a framework for interpreting statutes. Instead, interpreters invent legislative intentions--purportedly “objective” ones for textualists--or purposes. With those inventions in place, judges and theorists then carry on talking about what statutes mean, or would mean to a reasonable person, as if there were a linguistic fact of the matter even in intelligibly disputed cases. But this is a deep and systematic error.

Mainstream thinking about statutory interpretation needs a major reorientation. Contrary to widespread impressions, debates about statutory interpretation are not about what statutes mean as a matter of linguistic fact, but about which grounds for the attribution of an invented meaning would best promote judicial and governmental legitimacy. Having recognized that the model of conversational interpretation cannot ground claims about statutes' meanings in disputed cases, we also need to rethink the role of legislatures and courts in a political democracy. There are limits to what legislatures can reasonably be expected to accomplish. Courts need to play the role of helpmates to the legislature, not just faithful agents. In the interpretation of statutes, linguistic intuitions should matter, but primarily for normative reasons, involving justice and fairness in the coercive application of law, and not because they reveal the legislature's linguistically clear dictates.
Full-text on Westlaw

In recent years, perhaps because of the influence of Justice Scalia, the Supreme Court appears to place greater emphasis on texts than ever before. “We’re all textualists now,” Justice Kagan declared in 2015. But it is one thing to say a court will prioritize the text. It is another thing to choose which text is to be prioritized.

Follow the textualism of constitutional interpretation and one sees judges prioritize the public understanding of the privileged white men in power at the time of the framing of the constitutional text. Follow the textualism of federal statutory interpretation and one sees judges prioritize the text exclusively, and if the judges engage with the legislative history of the statute they will engage with the public understanding of the legislators who enacted the law, again, largely privileged white men. The victory of textualism is not necessarily in the outcomes, but in significantly narrowing the scope of evidence available to interpret the text, in some cases to almost nothing but the bare words of the statute. Women, persons of color, and other marginalized persons and entities are almost never relevant to the textualist’s gaze.

The narrow focus of the textualist’s gaze also warps how Indian law matters are decided. The judiciary rarely considers how the governments and people most affected by the text — Indian tribes and individual Indians — understand the meaning of the text. The judiciary, whether it intends to or not, considers Indians and tribes as extraneous to the interpretive process.
Full-text on SSRN

By its Chevron doctrines, the Supreme Court reconceived the core function of administrative agencies as statutory construction, modeled on the judicial process, instead of the actual legal function of public administration, which is operational implementation of statutory programs. Since statutory construction by tradition lies within the domain of the courts, the Court’s reconception of administrative work transferred sources of law on judicial review and administrative procedure from institutionally savvy statutes, principally the Administrative Procedure Act (APA) and enabling acts, to the Court’s own judge-made canons. Because those canons are founded on a false paradigm of public administration as statutory construction, they have had pernicious effects, including reshaping agency procedures in ways that frustrate values of public administration, promoting excessive amounts of judge-made law on the meaning of regulatory statutes, and minimizing judicial oversight of administrative work for basic rationality. After decades of relentlessly using Chevron’s tests designed for “statutory construction” to supervise *674 the operational acts of public bureaucracies that are charged with the substantially different task of “carrying out” statutory programs, the Supreme Court last Term decided several cases that break from Chevron’s misconception. The Court revived the framework of judicial review from the formative, pre-Chevron era, when the APA dominated judicial review. That development is heartening. The earlier framework is more attuned to the actual legal function of public administration and it relies on the comparative institutional strengths of agencies and courts. The statutory framework of the APA works better than the judge-made Chevron canons of the Supreme Court, and it is, after all, the scheme that Congress enacted into law. Statutes are the way out.
Full-text on Westlaw

Fifty years ago, Henry Hart and Albert Sacks famously observed that the methods that courts use to interpret statutes are unpredictable and inconsistent, a conclusion that scholars and judges agree remains equally true today. While there is vehement disagreement over which doctrines of statutory interpretation are best, there is widespread consensus that increased consistency would be superior to the status quo. Scholars and judges have considered a range of ways to remedy this situation, but they have overlooked a path to consistency that is tailor-made to render the unpredictable more predictable: stare decisis doctrine. This Article argues not only that courts should give doctrines of statutory interpretation methodology stare decisis effect, but also that courts should give even stronger stare decisis effect to doctrines of statutory interpretation than they give to doctrines of substantive law. The interests that stare decisis doctrine serves in the substantive law setting are served equally well in the statutory interpretation methodology setting; moreover, stare decisis serves important rule-of-law and coordination interests in the statutory interpretation methodology setting that it does not serve in the substantive law setting. Because the case for giving stare decisis effect to doctrines of statutory interpretation is stronger than the case for giving stare decisis effect to doctrines of substantive law, courts should give doctrines of statutory interpretation stronger stare decisis effect than their substantive law counterparts.
Full-text on Westlaw

At first glance, constitutional avoidance--the principle that courts construe statutes to avoid conflict with the Constitution when possible--appears both unremarkable and benign. But when courts engage in constitutional avoidance, they frequently construe statutory language in a manner contrary to both its plain meaning and to the underlying congressional intent. Then, successive decisions often magnify the problems of avoidance--a phenomenon I call “avoidance creep.” When a court distorts a statute in service of constitutional avoidance, a later court may amplify the distortion, incrementally changing both statutory and constitutional doctrine in ways that are unsupported by any rationale for constitutional avoidance.

This Article identifies the phenomenon of avoidance creep and demonstrates its wide-ranging effects by explaining how it has warped the development of labor law in two areas. First, courts have limited unions' abilities to engage in “secondary” strikes and picketing. Second, the Supreme Court has reduced or eliminated unions' abilities to assess dues or other fees from represented workers, culminating in the Court's decision in Janus v. AFSCME. Collectively, these avoidance-driven shifts in labor law amount to a profound change in its overall character. Yet these decisions often do not result from freestanding analysis of the relevant statutes. Rather, many of these decisions flow directly from prior cases invoking constitutional avoidance as a means of reaching a decision that is dubious as a matter of statutory interpretation, constitutional analysis, or both. After documenting these problems, the Article proposes measures to promote honest examination of the role constitutional avoidance plays in doctrinal development and to mitigate its harmful consequences.
Full-text on Westlaw

This Article offers the first close study of statutory interpretation in several state courts of last resort. While academics have spent the past decade speculating about the “death of textualism,” the utility of legislated rules of interpretation, and the capacity of judges to agree on a single set of interpretive rules, state courts, as it turns out, have been engaging in real-world experiments in precisely these areas. Several state courts have articulated governing interpretive regimes for all statutory questions. Methodological stare decisis--the practice of giving precedential effect to judicial statements about methodology--is generally absent from federal statutory interpretation, but appears to be a common feature of some states’ statutory case law. Every state legislature in the nation has enacted certain rules of interpretation, which some state courts are, in an unexpected twist, flouting. And, far from textualism being “dead,” what emerges from these state cases is a surprisingly strong consensus methodology--what this Article terms “modified textualism”--a theory that shares textualism’s core components but has broader potential appeal. These state developments offer a powerful counter-paradigm to that of the U.S. Supreme Court, where persistent interpretive divides and a refusal to treat methodological statements as precedential have made interpretive consensus seem impossible. They also highlight that, for all the energy that the statutory interpretation wars have consumed, the legal status of methodology itself--whether it is “law” or something “less”--remains entirely unresolved.
Full-text on Westlaw

Chevron, the most famous rule of administrative law, is also a central doctrine of statutory interpretation. But Chevron is understood and operates quite differently from most of the other statutory interpretation rules. This Essay explores six such divergences and how they illuminate of some the most important, unanswered questions of the statutory era.

First, thirty years of Chevron highlight the enduring puzzle over the legal status of statutory interpretation methodology in general. Chevron is a “precedent;” the remaining statutory interpretation doctrines do not even rise to the status of “law.” But second, Chevron’s own fate is inextricably tied to these other rules, because Chevron relies on them in its famous two-step test. Critics blame Chevron’s manipulability, but arguably the blame lies more with the legal indeterminacy of all of the other statutory interpretation rules upon which Chevron relies. Third, as the Chevron doctrine has evolved, it has become more attendant to the realities of how Congress drafts statutes--realities in which the Court seems wholly uninterested when it comes to the rest of statutory interpretation. Relatedly, the Court shows no shame in acknowledging Chevron’s source; the Court created the doctrine. The jurisprudential status of the other interpretive rules, however, remains ambiguous, with the federal courts loathe to admit that they have fashioned a common law of statutory interpretation. Fourth, Chevron, as further developed by Mead, is the one instance in which the Court has explicitly used interpretive doctrine to influence the procedures that Congress uses. Again in contrast, across the rest of the statutory landscape, the Court has refused to enter the sausage factory, continuing to reject the idea that courts should interfere in the lawmaking process, or that how a law is made should affect its interpretation. Fifth, Chevron’s evolution has blown a hole through conventional notions of statutory stare decisis, but at the same time the Court now seems afraid that it has given away too much. Today, agency statutory interpretations may displace judicial precedents but, when agencies are not in the picture, the Court hoards power: it gives its own statutory precedents “super” stare decisis effect; is stingy when it comes to interpreting congressional overrides; and won’t cede any control over interpretive rules to any other branch. Finally--and this is a shared feature--both Chevron and the rest of the statutory interpretation rules rest on an outmoded, “Schoolhouse Rock!” understanding of Congress and agencies that is no more, if it ever was. Thirty years of Chevron thus reveal a statutory law-landscape in remarkable flux, and a Court making few connections between the closely linked administrative and statutory domains.
Full-text on Westlaw

What role should the realities of the legislative drafting process play in the theories and doctrines of statutory interpretation and administrative law? The ongoing debates frequently turn on empirical assumptions about how Congress *902 drafts and what interpretive rules Congress knows, but, until now, there has been almost no testing of those assumptions. This is the first of two Articles reporting the results of the most extensive empirical study to date--a survey of 137 congressional staffers drawn from both parties, both chambers of Congress, and spanning multiple committees--on topics ranging from their knowledge and use of the canons of interpretation, to legislative history, the administrative law deference doctrines, the legislative process, and the courts-Congress relationship.

Our findings have implications for virtually every swath of the interpretive debates. We can report, for instance, that there are some canons that our drafters know and use --Chevron and the presumption against preemption, for example; but that there are other canons that many drafters know but consciously reject in favor of political or other considerations, including the presumption in favor of consistent usage, the rule against superfluities, and dictionary use; and that there are still other canons, like Mead and noscitur a sociis, that our drafters do not know as legal rules but that seem to be accurate judicial reflections of how Congress drafts. Our interviews also elicited a treasure trove of information about key influences on the drafting process that legal doctrine rarely acknowledges.

These findings also allow us to press for a more precise answer to a foundational question: what should be the purpose of these rules? Judges, often using the unhelpful generalization that they are Congress’s “faithful agents,” have legitimized them using conflicting justifications, some of which turn on empirical reality, some of which do not, and most of which treat together many different types of rules that do very different types of work. Do the canons reflect how Congress drafts, and so effectuate legislative supremacy? Or do judges use the canons for more dialogical reasons, such as to encourage Congress to draft more precisely--and does Congress listen? Might the canons instead best be understood to effectuate judicial responsibilities that are external to the legislative process, such as advancing constitutional values or legal coherence? Our study disaggregates the canons, revealing the variety of justifications for the current regime and how each rests on different visions of the judicial power and the courts-Congress relationship.
Full-text on Westlaw

This Article reports the results of a survey of a diverse group of forty-two federal appellate judges concerning their approaches to statutory interpretation. The study reveals important differences between their approaches and the approach that the Supreme Court purports to take. It also helps to substantiate the irrelevance of the enduring, but now-boring, textualism-versus-purposivism debate. None of the judges we interviewed was willing to associate himself or herself with “textualism” without qualification. All consult legislative history. Most eschew dictionaries. All utilize at least some canons of construction, but for reasons that range from “window dressing,” to the use of canons to assist in opinion writing, to a view that they are useful decision tools. Most of the judges we interviewed are not fans of Chevron, except for the judges on the D.C. Circuit, which hears the bulk of Chevron cases. Some of the judges interviewed believe that understanding Congress is important to a judge's work, while others do not see how judges can use such understanding to decide cases. Most express doubt that the Supreme Court's interpretive methodology binds the lower courts. The younger judges, who attended law school and practiced during the ascendance of textualism, are generally more formalist and accepting of the canons of construction, regardless of political affiliation. The older judges are less focused on canons, take a broader view of their delegated authority, and appear to grapple more with questions of judicial legitimacy.

The approach that emerged most clearly from our interviews might be described as intentional eclecticism. Most of the judges we spoke to are willing to consider many different kinds of argument and evidence, and defend that approach as the only democratically legitimate one. Yet at the same time many observe a gap between how they actually decide cases and how they write opinions, a gap they attribute to the disconnect between the expectations of the public and the realities of judicial decisionmaking.
Full-text on Westlaw

Chevron v. NRDC is under attack. Chevron deference to agencies' statutory interpretation is a pillar of modern government that judges and bureaucrats have used almost every day for thirty years. Until recently, most observers dismissed efforts to overrule Chevron as impossible or absurd, yet one of Justice Anthony Kennedy's last acts on the Supreme Court suggested that Chevron deference might violate the separation of powers.

Constitutional threats to Chevron are surprisingly recent and grave. In 2015, Justice Clarence Thomas was the first judge in history to write that Chevron is unconstitutional. Anti-Chevron critiques by Justices Neil Gorsuch and Brett Kavanaugh were featured elements of their Supreme Court nominations. Justice Samuel Alito joined an opinion in 2019 that condemned all administrative deference. And even though Chief Justice John Roberts's concerns have been more nuanced, his ambivalence may be decisive. A landmark ruling seems imminent--one way or the other--and now is the time to analyze relevant arguments and consequences.

This Article examines the history and merit of Chevron's constitutional critiques. Reagan-era conservatives like Antonin Scalia used to celebrate Chevron as compatible with the separation of powers, and the Supreme Court viewed administrative deference as a perfectly ordinary practice for almost two hundred years. That historical evidence supports normative arguments that Chevron is consistent with basic structures of constitutional law. Overturning Chevron would be the most radical decision in modern history about constitutional structure, upsetting hundreds of precedents, thousands of statutory provisions, and countless agency decisions. Such a ruling would transform constitutional law itself, as judges apply newly aggressive theories to destroy established tools of democratic self-governance.
Full-text on Westlaw

In 2018, Justice Kennedy wrote that the Supreme Court should “reconsider the premises” of Chevron v. NRDC based on “separation-of-powers principles.” In 2015, Justice Thomas was the first judge to argue in an opinion that Chevron is unconstitutional, and Justices Gorsuch and Kavanaugh are the only judicial nominees whose anti-Chevron critiques were featured elements of their candidacy. Petitions for certiorari have challenged Chevron’s constitutionality, echoing litigants in other federal courts, and academics have joined both sides of the debate. This Article responds to modern disputes over Chevron with a new history of how the constitutional crisis developed, a rebuttal of modern critiques, and a description of their potentially destructive effect on administrative governance and constitutional law. The Article describes a shift from Reagan-era support for Chevron to “post-Scalian” attacks. It concludes by considering anti-Chevron constitutional critiques alongside other Trumpist efforts to “deconstruct the administrative state.” To overrule Chevron would be the most radical decision about constitutional structure in eighty years, unsettling hundreds of judicial decisions, thousands of statutes, and countless agency decisions. This Article contributes to existing literature with novel historical research, and detailed engagement with anti-Chevron critiques that have become newly sophisticated and politically powerful.
Full-text on SSRN

Agencies’ interpretations of ambiguous statutes under Chevron are not subject to a rule of stare decisis. Agencies may interpret and later reinterpret ambiguous statutes without settling the statute’s meaning. This Article shows that this regime permits agencies to “interpret” law in legally unprincipled and inconsistent ways and prevents administrative statutes from meaningfully constraining agency policymaking. This Article concludes that a rule of stare decisis should govern agencies’ interpretations of ambiguous statutes just as it governs judicial holdings. Taking seriously Chevron’s recognition of agencies’ power to interpret law, the conventional justifications for stare decisis-separation of powers, legislative supremacy, and the consistency of regulatory schemes-apply with equal force to agencies as to courts.
Full-text on Westlaw

Just over a decade ago, the Supreme Court decided a landmark case in administrative law, Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.1 In an opinion written by Justice Stevens, the Court outlined what observers have come to view as a two- step process2 for construing statutes whose implementation is assigned to an administrative agency. The first step requires the reviewing court to determine whether Congress has addressed “the precise question at issue.”3 If so, then both administrators and courts must “give effect to the unambiguously expressed intent of Congress.”4 However, if the court finds that the disputed statutory provision is ambiguous, then Chevron ‘s second step requires the court to defer to “permissible”5 or “reasonable” interpretations offered by an agency that Congress has “entrusted to administer” *2 the statute.6 This holding reflects the Court’s recognition that agencies can play a legitimate policymaking role in the modern administrative state.7

Part I of this article discusses Chevron ‘s holding and especially its rationale, which has transformed the administrative law landscape. Chevron has produced a veritable cottage industry of legal scholarship, and it is one of the most frequently cited cases in administrative law. Nonetheless, critics have suggested that Chevron deference threatens to leave agencies inadequately supervised by an independent judiciary.8 These concerns are heightened where Chevron ‘s acceptance of agency policymaking flexibility might conflict with other important values, such as due process and individual rights. Thus, many commentators and courts have addressed proposed limitations on the reach of Chevron . For example, it has been argued that Chevron should not apply when the disputed issue before the court involves the scope of an agency’s jurisdiction.9 In this view, at least some jurisdictional issues create an excessive danger of agency bias, making it inappropriate for courts to defer to the agency’s own views of its powers.10 However, some courts have refused to carve out a jurisdiction exception to Chevron “because there is no discernible line between an agency’s exceeding its authority and an agency’s exceeding authorized application of its authority.”11

Part II of this article outlines two particularly important proposed exceptions to the applicability of Chevron , the criminal liability and deportation exceptions. Scholars including Cass Sunstein have argued that when courts interpret administrative statutes that are criminally enforceable,12 Chevron deference may conflict with the doctrine of lenity, or the *3 canon of strict construction of criminal statutes.13 Lenity rests on a series of related assumptions: (1) only Congress may legitimately define crime;14 (2) fair warning of the line between legal and illegal activity is required before an individual may be criminally punished;15 and (3) criminal statutes should be construed narrowly to counter risks of prosecutorial overreaching.16 For proponents of the criminal liability exception, an agency’s interpretation of an ambiguous criminal provision must be more than reasonable to merit judicial approval; the ambiguity must be resolved in favor of the defendant.17 Moreover, because …
Full-text on Westlaw

Ambiguity serves a legislative purpose. When legislators perceive a need to compromise they can, among other strategies, “obscur[e] the particular meaning of a statute, allowing different legislators to read the obscured provisions the way they wish.”1 Legislative ambiguity reaches its peak when a statute is so elegantly crafted that it credibly supports multiple inconsistent interpretations by legislators and judges. Legislators with opposing views can then claim that they have prevailed in the legislative arena, and, as long as courts continue to issue conflicting interpretations, these competing claims of legislative victory remain credible.

Formal legal doctrine, in contrast, frames legislative ambiguity as a problem to be solved rather than an opportunity to be exploited. Toward that end, judges and scholars have developed an arsenal of interpretive techniques that are designed to extract functional meaning from ambiguous statutory text and conflicting legislative history.2 The Supreme Court regularly addresses the question of statutory interpretation in its opinions and offers guidance as to *629 appropriate rules of construction.3 If these interpretive techniques are effective, then different judges faced with the challenge of construing a fixed piece of legislative text and history should produce consistent interpretations.

Legislators, staffers, and lobbyists are, however, well aware of the judiciary’s interpretive technology.4 If the judiciary can predictably ascribe a consistent meaning to a record that legislators intend to be ambiguous, then ambiguity’s value as a tool of compromise is lost. Legislators therefore have an incentive to develop a technology of ambiguity that can frustrate the judiciary’s most effective interpretive methods.5

Judges are similarly aware of legislative techniques that are used to frustrate the judicial imputation of clear meaning.6 Judges can respond by strengthening their own interpretive technology in order to frustrate the legislature’s efforts to obscure.7 Not all scholars are persuaded, however, that the judiciary is as committed to interpretive consistency as the formal canon suggests.8 A judicial preference for flexible standards of statutory interpretation over more rigid rules can, for example, be viewed as consistent with a preference for discretion.9 More broadly, judges who value the ability to exercise discretion would also rationally prefer ambiguous statutory language.10 Indeed, there is evidence that judges also practice conscious ambiguity as part of the art of judging when courts rely on vague language or avoid critical issues in order to craft decisions that maintain judicial *630 coalitions.11 The Supreme Court’s strongest proponent of precision in statutory construction, Justice Scalia, has gone so far as to observe that the high court has the ability to write an opinion “so that it says almost nothing,” if that suits the Court’s purpose.12

The legislative and judicial branches thus appear to be locked in an interpretive battle. The legislature has a clear incentive to value ambiguity because it facilitates compromise. The judiciary has crafted an array of interpretive rules designed to extract consistent meaning from intentionally ambiguous statutory utterances. There is debate, however, over the strength of the …
Full-text on Westlaw

Although the Supreme Court’s watershed decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.1 has been understood by many as defining the framework for judicial review of agency legal determinations,2 there have been longstanding questions about the application of the standards for reviewing administrative action.3 These questions have become more troublesome following the Supreme Court’s 2001 decision in United States v. Mead Corp.4 Mead established that Chevron review only applies when defined requirements are met and held that so-called Skidmore *2 5 deference applies when Chevron deference does not apply.6 Surveying the aftermath of Mead and its effect on the lower courts, one scholar has written that “Mead has muddled judicial review of agency action,”7 and Justice Antonin Scalia has recently lamented the Mead decision’s “ongoing obfuscation of this once-clear area of administrative law.”8 Another prominent scholar has opined that “a threshold question—the scope of judicial review—has become one of the most vexing in regulatory cases.”9

This Article seeks to reconcile the principles that have animated judicial review of agency legal determinations, including agency exercises of discretion, since before the enactment of the Administrative Procedure Act (“APA”).10 The reconciliation accounts for the relevant review standards defined in APA Section 706.11

*3 Critical to the reconciliation and to the coherence of the standards of review, is the determination of whether the agency or Congress has provided the source of the law being applied and reviewed in the case.12 When Congress has not clearly defined the law, the interpretive role of the court depends on whether the agency itself has made law. If the agency has made law, the court should determine only whether the agency’s decisionmaking process was reasonable when the agency defined the substantively permissible law. If the agency has not made law, then the court must itself determine the meaning of the ambiguous statute. In that latter case, the court will substitute its substantive interpretation for the agency’s interpretation in the event that they differ. This analytic approach resolves several uncertainties that characterize standards of review following Mead’s gloss on Chevron. First, it clearly defines the interpretive impact of the court’s decision that the Chevron regime either does or does not apply. Second, it identifies the proper place to pursue the Mead analysis. Third, it permits an understanding of the proper nature of Skidmore review. Finally, it allows for an understanding of the role of reviewing agency discretion under both the Chevron and Skidmore frameworks.
Full-text on Westlaw

The Supreme Court’s decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. continues to obsess academics and courts alike. Despite all the attention, however, the “Chevron revolution” never quite happens. This decision, though seen as trans-formatively important, is honored in the breach, in constant danger of being abandoned, and the subject of perpetual confusion and uncertainty. This Essay seeks both to bury and to praise Chevron.

Chevron is not a revolutionary shift of authority from the judiciary to the executive. That Chevron is dead. The Chevron that survives is an appropriate allocation of decisionmaking responsibility among the three branches, relying on the judiciary to enforce congressional decisions, but protecting agency authority and discretion where Congress has left the decision to the executive. Long may it reign.
Full-text on Westlaw

Justice Gorsuch is regarded as one of the Chevron doctrine's most ardent foes, largely though not exclusively based on his opinions as a Tenth Circuit judge in De Niz Robles v. Lynch and Gutierrez-Brizuela v. Lynch. Written for a symposium entitled Life After Scalia: Justice Gorsuch and Modern Textualism on the Supreme Court, this essay takes a deeper dive into Justice Gorsuch's Chevron jurisprudence as a Tenth Circuit judge to develop a more nuanced account and to make some predictions regarding how his views of Chevron may shape future Supreme Court decisionmaking.
Full-text on Westlaw

The issues raised by some Justices' stated desire to overrule Chevron U.S.A., Inc. v. NRDC, Inc. affect a broad swath of law and society. They are central to larger debates about overregulation, the proper role of textualism in statutory interpretation, and whether, when, and how much courts should defer to agency interpretations of statutes. These issues affect us all, because “virtually every critical government decision that affects our lives” comes out of the administrative agency process: “the air we breathe, the water we drink, the bills for our latest hospital stay, the health or safety of our workplace, the parklands we recreate in, the price of gas.”1 Chevron matters.2

Outlined in Part II are Chevron's signature rules and the objections to them. The objections include constitutional claims, textualism, the “major question” doctrine, and others. These criticisms are part of a larger conservative political, judicial, and academic attack on the post-New Deal regulatory state.3 Overregulation is a problem that should be addressed, as *18 discussed in Part III. Yet a major thesis of this article is that the attacks on Chevron are overbroad. The constitutional objections to Chevron's common law principles, in particular, are overstated. Textualism's critiques of Chevron rest, at bottom, on the doubtful claim that courts applying Chevron commonly err by placing statutory text, legislative history, and Chevron agency views all on the same footing. That calls for clarifying the principles of statutory construction, not jettisoning Chevron. While some favor kneecapping Chevron's significance with the major question doctrine, that doctrine is subjectively defined, biased against regulation, and unreliable as an arbitrator of agency power.

Chevron's critics are short-sighted in seeking to cripple the institutional powers of agencies. Whichever political party holds the White House will want its president to be able to exercise effective executive branch agency power to achieve his or her legitimate policy objectives. But this would be harder to achieve--for any president--under a textualist approach or the “major question” doctrine, as opposed to under Chevron. At the same time, Chevron's regime provides meaningful checks on abuses of agency power. These principles are illustrated by several pending high-profile cases--on Net Neutrality, the Obama program known as Deferred Action for Childhood Arrivals (DACA), and the Obama Clean Power Plan now being repealed and replaced--that are discussed below in Part IV. Observers also note that effective agency power is important to support reasonable health, safety, and environmental regulation.

Textualism, with its “objective reader” approach that presupposes that there is a single best meaning for a statute,4 limits the field of operation for Chevron and opportunities for agencies to adopt new or changed statutory interpretations to justify new regulatory action. Over-extrapolating far beyond its origins in Vermont Yankee Nuclear Power Corp. v. NRDC,5 the new textualism is a distinct minority theory that seeks to bar any reliance on *19 committee reports, sponsor statements, and other legislative history to inform statutory interpretation. By doing so, it zealously seeks to cut back “activist” statutory interpretations by courts and agencies that might provide a springboard for new regulation. But textualism is deeply flawed, as discussed in Part II.C.3. Ambiguity in statutory language is both common and inevitable.6 Textualists' exclusive focus on statutory text does not solve the problem of how to interpret ambiguous statutory texts.

Other recent attacks on Chevron, such as those invoking the Court's recent decisions on cost consideration and the major question doctrine, are discussed in Part II.D. In Michigan v. EPA, the Court announced general principles of cost consideration that apply (by virtue of the APA) to all agency rulemaking cases, subject to Congress setting a different cost-consideration standard in a particular statute.7 This is consistent with Chevron. The occasionally-invoked major question doctrine--that some decisions are too critical to leave to agencies, absent clear legislative authorization--is subjective, and often inaccurate, as discussed in Part II.D.2.

Overregulation should be addressed by means other than jettisoning Chevron. The White House and congressional critics of Chevron so far have had limited impact in reducing overregulation. They have utilized the Congressional Review Act of 19968 to override more than a dozen recently-enacted Obama-era regulations. But the major proposals to address overregulation in the 115th Congress were flawed because they focused on stripping or hamstringing federal agency rulemaking power. That approach might simply incentivize agencies to announce rules in piecemeal fashion through case-by-case adjudications rather than through general rules.9 That would make regulatory compliance more difficult, not less difficult, for regulated parties. Those proposals were not enacted in the 115th Congress.

The Trump Administration's attempts to control agency rulemaking, including its “two-for-one” Executive Order 13771 encouraging deregulation, are discussed in Part III. Other countries' experiences with regulatory budgets are noted, as well as suggestions from the RAND *20 Corporation and others for improving the Trump Administration's regulatory budget approach.

Part V argues that Chevron should survive in the future, both in the short term as a matter of politics favoring agency rulings issued by the Trump Administration, and in the long term because it “more accurately reflects the reality of government, and thus more adequately serves its needs.”10 The Supreme Court may well adjust Chevron's common law principles to alleviate concerns about overly “reflexive” court deference to agency views. This may well cut back judicial deference and agency win rates in contested cases. But the more important issues for the future of executive branch agency power will be whether the Court embraces the major question doctrine or extreme textualism's narrow reading of agency statutory power. If the Court adopts either of those theories, it could dramatically change the status quo and result in invalidating many more agency rules.
Full-text on Westlaw

The Supreme Court’s willingness to defer to agency interpretations of ambiguous statutes has vacillated over the past seventy years. The Court’s vacillation has dramatically impacted the executive’s power to make and interpret law. This Article examines how the Court augmented then constricted executive lawmaking power and ceded then reclaimed executive interpretive power with a single case and its legal progeny.

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.1 and its aftermath dramatically altered the executive’s power to make and interpret law. Prior to Chevron, Congress had the primary responsibility for lawmaking, while agencies made policy choices primarily when Congress explicitly delegated that power to them. Also, prior to Chevron, the judiciary resolved questions of statutory interpretation of regulatory statutes with a bifurcated approach: agencies did not receive deference when they resolved issues involving pure questions of law, but did receive some level of deference when they resolved issues involving questions of law application. In short, prior to Chevron, the executive was an expert advisor, not a law-maker or law interpreter.

With its holding in Chevron, the Court dramatically, and likely *142 unintentionally,2 altered executive lawmaking and interpretive power. Specifically, executive power burgeoned. The sphere of legitimate agency lawmaking expanded because of the adoption of implicit delegation as a legitimate legislative mandate. The sphere of legitimate agency interpretation also expanded because the Court replaced its bifurcated deference approach with its now familiar two-step approach, under which the Court retained interpretive power at step one, but ceded interpretive power at step two. In summary, with Chevron the executive moved from expert advisor to quasi-law maker and quasi-law interpreter.

But this transition was short-lived. Today, the Court is reclaiming the power it both surrendered and transferred with Chevron. With two important changes to Chevron’s application--restricting the types of agency interpretations entitled to deference and curbing the implied delegation rationale--the Court has begun to reclaim the interpretive power it ceded and the lawmaking power it shifted with the rise and fall of Chevron. Simply put, the Court has come full circle by expanding executive power and then dramatically contracting it.
Full-text on Westlaw

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.
Full-text on Westlaw

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.
Full-text on Westlaw

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.
Full-text on Westlaw

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.
Full-text on Westlaw

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.
Full-text on Westlaw

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.
Full-text on Westlaw

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.
Full-text on Westlaw

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.
Full-text on Westlaw

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.
Full-text on Westlaw

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.
Full-text on Westlaw

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.
Full-text on Westlaw

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.
Full-text on Westlaw

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.
Full-text on Westlaw

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.
Full-text on Westlaw

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.
Full-text on Westlaw

We are so used to Congressional gibberish that we take it for granted as though it were caused by nature. Congress doesn’t know how to create logically coherent statutes.

An example is the Vacancies Reform Act of 1998. If, while violating the Act, a President purportedly appoints a person — perhaps to be an Acting Attorney General or Acting Deputy Attorney General — every decision and action of that person is void because the person does not actually hold the office. The Act is crystal-clear that such a person would have no power, for example, to fire a Special Counsel. But the Act is far less than clear on issues concerning the circumstances that might constitute a violation. Congress enacts so much gibberish that we have become accustomed to waiting patiently for courts to tell us, years after enactment, what Congress’s words mean. Not only is that wasteful, but in a national crisis, it can be a disaster. We must be able to know instantly, within minutes, whether a purported appointment violates the Act.

The article also examines Congress’s drafting inconsistencies, illustrated by, among other things, a Tax Code section that criminalizes Presidential interference in tax audits.

The federal obstruction of justice statutes are incoherent. Reading them is like wading through glue. We can know what they mean only because courts have spent more than 130 years trying to figure them out. (As an exercise in clarity, I redrafted them, cutting their word count in half without changing the meaning. The redraft, in one of the article’s appendices, will help the reader follow the action as various people are exposed, indicted, and tried.)

The article hypothesizes some of the causes of Congressional gibberish. The main hypothesis is that legislating is two functions — creating law and enacting it. Creating law is designing it so that it works. Enacting is deciding that words will become law. Legislators are good at the enacting part but have few, if any, law-creation skills. Judging by their output, almost no one in Congress has the most important of law-creation skills — simplicity.
Full-text on SSRN

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.
Full-text on Westlaw

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.
Full-text on Westlaw

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.
Full-text on Westlaw

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.
Full-text on Westlaw

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.
Full-text on Westlaw

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.
Full-text on Westlaw

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.
Full-text on Westlaw

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.
Full-text on Westlaw

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.
Full-text on Westlaw

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.
Full-text on Westlaw

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.
Full-text on Westlaw

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.
Full-text on Westlaw

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
Full-text on Westlaw

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.
Full-text on Westlaw

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.
Full-text on Westlaw

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.
Full-text on Westlaw

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.
Full-text on Westlaw

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.
Full-text on SSRN

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.
Full-text on Westlaw

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.
Full-text on Westlaw

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.
Full-text on Westlaw

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.
Full-text on Westlaw

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.
Full-text on Westlaw

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.
Full-text on Westlaw

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.
Full-text on Westlaw

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.
Full-text on SSRN

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.
Full-text on Westlaw

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
Full-text on Westlaw

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?
Full-text on Westlaw