Next year, Harvard Law School is going to introduce a new mandatory first-year course on Legislation and Regulation. I think this move is quite salutary. Most of the law that governs us is legislative and regulatory rather than judge-made, and it is useful to introduce this reality to law students early in their education.
But it raises the question: What exactly are we going to teach them that justifies having this as a separate course? Statutory interpretation scholarship has recently been largely fixated on a battle between those who favor formalism and those who favor judicial judgment. And it is not clear a separate course is well-suited to teaching either side of that prevailing debate.
Formalism, it seems to me, suffers from many of the problems of doctrinalism. I am not, to be clear, one of those who thinks statutory language is always ambiguous and has no inherent meaning. Often it does have an obvious meaning. But it is not at all clear why legal training should help us in recognizing the obvious. And if formalism really claims that all statutory interpretations have a obvious answer that can be divined by sheer linguistic analysis, then it is just wrong. One could try to rely on canons of interpretation to resolve the nonobvious cases. But it well known that many canons have seemingly conflicting counter-canons. Even when that is not an issue, there are no clear rules for which canons to apply first, and the order of operation often dictates the result.
Judicial judgment approaches generally emphasize either how judges can best further general statutory purposes or engage in interstitial judicial lawmaking. But both variants are better analyzed if embedded within particular substantive courses, where the statutes have a particular purpose, and where one can focus on how well interstitial judicial lawmaking achieves desirable policy results in that particular area. Indeed, leading legislation books that took this approach, like the Eskridge and Frickey classic, focused on one area of law, like civil rights, in a way that made them coherent, but at the cost of making it more a book on civil rights law than on legislation generally.
We need a third approach, and in a shameless act of self-promotion, let me suggest my own approach, developed in my book Statutory Default Rules (forthcoming with Harvard University Press). As I argue in that book, we can admit that formalism often does not resolve the meaning of a statute without leaping to the conclusion that we must leave such issues to judicial judgment. Instead, we can have a system of statutory default rules that, when statutory language is unclear, is designed to constrain judges to maximize political satisfaction.
It turns out this approach goes a long way to explaining the current landscape of statutory interpretation. It explains the predominance of Chevron deference to agency interpretations, as well as the pattern of exceptions to that deference under Mead. It explains why interpretation should favor moderate interpretations, and why the real problem with Presidential signing statements lies with their timing, rather than with their lack of legislative origin. It explains that the seeming conflict of canons and counter-canons actually reflects the fact that some cases present conditions suitable for preference-estimating default rules and others for preference-eliciting ones. It offers a way of prioritizing which canon to apply first, and for guiding how we use legislative history. It even helps illuminate the seeming morass of preemption doctrine.
For more, you will have to read the book. But for present purposes, the point I want to make is just that, if we really are going to make this a separate basic subject, distinct from linguistics or substantive legal subjects, then it is going to have to offer some systematic account of a distinctive methodology that furthers some general accepted functional goal. Whether or not my book offers the right account, I think the future of statutory interpretation lies in this direction, rather than in approaches that favor either formalism or judicial judgment.
We have exactly that in Colorado (Colo. Rev. Stat. §§ 2-4-101 to 114 and 2-4-201 to 216). People still shriek about activist judges when they don't get the result they like, even when the courts specifically recite the interpretive statutes they're relying on.
How fortunate, then, that formalism makes no such claim.
The sort of statutory interpretation theory that you espouse might find a place in such a course, along with more traditional theories--much of what makes administrative law interesting are questions of interpretation and institutional competence and how they relate.
But I think there's plenty to do just covering Chevron, Mead, etc.--all of which are totally foreign to 1Ls--and introducing the basic difficulties that statutory and regulatory schemes face without attempting to making the focus of the course be statutory interpretation as such. This is much the approach that Georgetown's equivalent course (in its "alternative" first-year curriculum), Government Processes, takes, and as a student I found it both interesting and useful.
Einer, I look forward to reading your book. I've read your two Columbia articles that the book is based on, and I think you've made a significant contribution to statutory interpretation scholarship. I'm afraid I don't follow your reasoning regarding a Statutory Interpretation class, though. I don't think it is so hard to teach a Statutory Interpretation class based on a comparison of the formalism (Textualism) and judicial discretion (Intentionalism) approaches. Textualism is not an "obvious" approach at all, and I think most law students would benefit from a rigorous examination of its methodology (my students tell me that they did). Intentionalism, especially when compared to Textualism, is also not obvious, and is also worth studying. Your approach, Einer, is a dynamic approach (which you know, obviously), which argues that the meaning of statutes should change over time, as opposed to an originalist approach, which argues that the meaning of statutes is fixed at the time of the statute's enactment (except for a few exceptions, such as Chevron). I think your contribution is valuable, but you haven't convinced me that it is the only way to teach statutory interpretation (or even the best way). Almost all courts favor either a textualist or an intentionalist approach, so I think the majority of students would benefit from a focus on these approaches (along with coverage of other academic approaches, such as yours).
Sometimes I come close to suspecting that the first-year curriculum is the result of a plot to mislead students about the nature of the law. I worry about dealing with legislation in a separate course, though; I think many students are inclined to take stuff presented that way as being somehow "less real" that what they get in their "substantive" courses. This has been a problem with the many "legal process" experiments, most of which have failed, not entirely on the merits but because it's hard to market that stuff. But maybe students at Harvard are different.
PA already has a statute that instructs the courts in how to interpret legislature, settng up an order of which statutory canons to apply. 1 Pa.C.S. § 1501 et seq.
In addition, there's a model code to interpet statutes--the Uniform Statute And Rule Construction Act.
I know this stuff because I had a course in Legislation, and my prof wrote a textbook for the class. I hope that's not too much competition for your book, Einer. At any rate, the legislation class was one of the more useful classes I had.
Because the default, absent formalism, is that what is obvious is what is politically in tune with a judge's politics, tempered primarily only by their feeling that going to far will get them chased by the classic torches and pitchfork mob, whether composed of legislators or the common citizenry.
If the law and constitution is to be a living, evolving thing, absent proper--dare I say formal--amendment and legislation, such evolution should come at the behest of what fully informed and relatively randomly selected juries will endorse in the way of law and its application.
Just where in this Country is it still possible to find a "fully informed", or even a "relatively randomly selected" jury? And please, please tell me why anyone should expect any jury empaneled today to rule based upon reason and sound public policy, rather than based on passion or prejudice?
This is a strange claim for two reasons. First, it suggests that Harvard introduced a major curricular reform without actually knowing what goal it was trying to achieve. Second, it assumes that what you teach first year law students should be the latest in academic debates in law reviews and forthcoming books rather than the basics of legal thought. That is, instead of arming students with tools, the goal should be to teach them the "right" approach.
Moreover, putting the two together it suggests that Harvard's major advance is having a first year course that will teach students all about one particular solution to one particular problem in one area of academic legal scholarship. Isthatreally what 1Ls need to know?
Maybe I'm confused, but isn't formalism really just a form (no pun intended) of doctrinalism?
Legal Research and Writing I and II, except that Torts is being reduced a credit or two.
The
Empirical Legal Studies blog says,
"Our theory is two-fold. First, drawing upon carefully edited ethnographies and empirical studies, the course will provide students with a systematic overview of various practice settings. Obviously, workplace structure and incentives vary widely between large law firms, plaintiffs' lawyers, mill practice, prosecutors, public interest lawyers, etc. If students have a better theoretical and factual understanding of the modern legal marketplace, they can better understand the subtle factors that push lawyers to cross ethical lines--and the serious consequences that can follow.
Second, by frontloading legal ethics in the 1L curriculum, we hope to address the issue, flagged by both the recent Carnegie Report and the Law School Survey of Student Engagement (LSSSE), that legal education tends to marginalize ethics, morality, and personal and professional values."
The book offers an incredibly diverse range of literature on the schools of thought surrounding legislative interpretation, (not just formalism and purposivism) and in no way focuses exclusively on civil rights laws. I'm not even sure why you would make such a statement.
I found the course very helpful throughout my career. Learning the canons of construction may not be the most intellectual pursuit, but it's pretty useful. I'm glad I learned statutory interpretation in a systematic manner during school instead of just picking it up over the years.
Sadly, virtually nowhere. Although I believe it is the only sort of jury held in mind when the requirement for due process was added to the Constitution.
Were the full duties of a jury to be respected affirmatively, as opposed to actively suppressed, in the courts, I both think it would be common and that either attorney would be free to convince the jury as to what is a reasoned judgement and sound public policy, as pertained to the case at hand.
In short, I am speaking of "oughts" not "ises".
Yours, TDP, ml, msl, &pfpp
The Baylor curriculum is an outstanding model for other law schools, and this is one more reason.
Warning: This post is also a shameless act of self-promotion (the second link anyway).
That is such a bizarre thing to say. I hope you don't represent the formalist approach that way in your book. Textualists do not argue that statutes are "inherently plain," and I don't see why any statutory interpretation scholar would suggest as much.
The past couple years, Lisa Heinzerling (Mass. v. EPA) has taught the Georgetown course. Like Mr. Krinsky, I took it and thought it was great. It's good to see Harvard finally catching up to Georgetown's special curriculum. [If it's any indication as to what Harvard will do, 1Ls at Georgetown take criminal procedure but not criminal law. Here's hoping that Harvard drops property instead.]