The Volokh Conspiracy - The Future of Statutory Interpretation.

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.

	[Einer Elhauge, guest-blogging, May 25, 2007 at 9:16am] Trackbacks The Future of Statutory Interpretation. 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.