Interpretive communities: The missing element in statutory interpretation

Northwestern University Law Review

Volumn 95, Issue 2, 2001, Pages 629-688

  Blatt, William S ^a  

^a NONE

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EID: 0041866707     PISSN: 00293571     EISSN: None     Source Type: Journal    
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References (476)

1. The concept of interpretive communities is most prominently featured in the work of Stanley Fish. E.g., STANLEY FISH, DOING WHAT COMES NATURALLY: CHANGE, RHETORIC, AND THE PRACTICE OF THEORY IN LITERARY AND LEGAL STUDIES (1989) [hereinafter FISH, NATURALLY]. As used here, an interpretive community includes both readers and authors of texts. Fish uses this concept to explain why there is substantial agreement on otherwise indeterminate texts. STANLEY FISH, IS THERE A TEXT IN THIS CLASS?: THE AUTHORITY OF INTERPRETIVE COMMUNITIES 338 (1980) ("[T]he fact of agreement, rather than being a proof of the stability of objects, is testimony to the power of an interpretive community to constitute the objects upon which its members (also and simultaneously constituted) can then agree."). "Fish's concept of interpretive communities is thus a sociological generalization . . . rather than a defense of objectivity or a guide to interpretation." RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 450 (1990). This Article does not claim that texts are determinant. It does, however, claim that particular communities have authority to construe certain texts.
2. The concept of interpretive communities is most prominently featured in the work of Stanley Fish. E.g., STANLEY FISH, DOING WHAT COMES NATURALLY: CHANGE, RHETORIC, AND THE PRACTICE OF THEORY IN LITERARY AND LEGAL STUDIES (1989) [hereinafter FISH, NATURALLY]. As used here, an interpretive community includes both readers and authors of texts. Fish uses this concept to explain why there is substantial agreement on otherwise indeterminate texts. STANLEY FISH, IS THERE A TEXT IN THIS CLASS?: THE AUTHORITY OF INTERPRETIVE COMMUNITIES 338 (1980) ("[T]he fact of agreement, rather than being a proof of the stability of objects, is testimony to the power of an interpretive community to constitute the objects upon which its members (also and simultaneously constituted) can then agree."). "Fish's concept of interpretive communities is thus a sociological generalization . . . rather than a defense of objectivity or a guide to interpretation." RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 450 (1990). This Article does not claim that texts are determinant. It does, however, claim that particular communities have authority to construe certain texts.
3. The concept of interpretive communities is most prominently featured in the work of Stanley Fish. E.g., STANLEY FISH, DOING WHAT COMES NATURALLY: CHANGE, RHETORIC, AND THE PRACTICE OF THEORY IN LITERARY AND LEGAL STUDIES (1989) [hereinafter FISH, NATURALLY]. As used here, an interpretive community includes both readers and authors of texts. Fish uses this concept to explain why there is substantial agreement on otherwise indeterminate texts. STANLEY FISH, IS THERE A TEXT IN THIS CLASS?: THE AUTHORITY OF INTERPRETIVE COMMUNITIES 338 (1980) ("[T]he fact of agreement, rather than being a proof of the stability of objects, is testimony to the power of an interpretive community to constitute the objects upon which its members (also and simultaneously constituted) can then agree."). "Fish's concept of interpretive communities is thus a sociological generalization . . . rather than a defense of objectivity or a guide to interpretation." RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 450 (1990). This Article does not claim that texts are determinant. It does, however, claim that particular communities have authority to construe certain texts.
4. See, e.g., Cont'l Can Co. v. Chicago Truck Drivers, Helpers & Warehouse Workers Union (Indep.) Pension Fund, 916 F.2d 1154, 1157 (7th Cir. 1990) (Easterbrook, J.) ("You don't have to be Ludwig Wittgenstein or Hans-Georg Gadamer to know that successful communication depends on meanings shared by interpretive communities."); Bradley C. Karkkainen, "Plain Meaning": Justice Scalia's Jurisprudence of Strict Statutory Construction, 17 HARV. J.L. & PUB. POL'Y 401, 407 (1994) ("[E]ven the strictest textualist would acknowledge that the meanings of the words and sentences in a statutory text are a function of their usages within a linguistic community.").
5. The literature on statutory interpretation is immense. Representative works include: GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES (1982); WILLIAM ESKRIDGE, DYNAMIC STATUTORY INTERPRETATION (1994); ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (1997); Alexander Aleinikoff, Updating Statutory Interpretation, 87 MICH. L. REV. 20, 31 (1988); James J. Brudney, Congressional Commentary on Judicial Interpretations of Statutes: Idle Chatter or Telling Response? 93 MICH. L. REV. 1, 3-4 (1994); Frank H. Easterbrook, The Supreme Court, 1983 Term - Foreword: The Court and the Economic System, 98 HARV. L. REV. 4 (1985); Jane S. Schacter, Metademocracy: The Changing Structure of Legitimacy in Statutory Interpretation, 108 HARV. L. REV. 593 (1995); Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Meaning, 1990 SUP. CT. REV. 231; Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405 (1989).
6. The literature on statutory interpretation is immense. Representative works include: GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES (1982); WILLIAM ESKRIDGE, DYNAMIC STATUTORY INTERPRETATION (1994); ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (1997); Alexander Aleinikoff, Updating Statutory Interpretation, 87 MICH. L. REV. 20, 31 (1988); James J. Brudney, Congressional Commentary on Judicial Interpretations of Statutes: Idle Chatter or Telling Response? 93 MICH. L. REV. 1, 3-4 (1994); Frank H. Easterbrook, The Supreme Court, 1983 Term - Foreword: The Court and the Economic System, 98 HARV. L. REV. 4 (1985); Jane S. Schacter, Metademocracy: The Changing Structure of Legitimacy in Statutory Interpretation, 108 HARV. L. REV. 593 (1995); Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Meaning, 1990 SUP. CT. REV. 231; Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405 (1989).
7. The literature on statutory interpretation is immense. Representative works include: GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES (1982); WILLIAM ESKRIDGE, DYNAMIC STATUTORY INTERPRETATION (1994); ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (1997); Alexander Aleinikoff, Updating Statutory Interpretation, 87 MICH. L. REV. 20, 31 (1988); James J. Brudney, Congressional Commentary on Judicial Interpretations of Statutes: Idle Chatter or Telling Response? 93 MICH. L. REV. 1, 3-4 (1994); Frank H. Easterbrook, The Supreme Court, 1983 Term - Foreword: The Court and the Economic System, 98 HARV. L. REV. 4 (1985); Jane S. Schacter, Metademocracy: The Changing Structure of Legitimacy in Statutory Interpretation, 108 HARV. L. REV. 593 (1995); Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Meaning, 1990 SUP. CT. REV. 231; Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405 (1989).
8. The literature on statutory interpretation is immense. Representative works include: GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES (1982); WILLIAM ESKRIDGE, DYNAMIC STATUTORY INTERPRETATION (1994); ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (1997); Alexander Aleinikoff, Updating Statutory Interpretation, 87 MICH. L. REV. 20, 31 (1988); James J. Brudney, Congressional Commentary on Judicial Interpretations of Statutes: Idle Chatter or Telling Response? 93 MICH. L. REV. 1, 3-4 (1994); Frank H. Easterbrook, The Supreme Court, 1983 Term - Foreword: The Court and the Economic System, 98 HARV. L. REV. 4 (1985); Jane S. Schacter, Metademocracy: The Changing Structure of Legitimacy in Statutory Interpretation, 108 HARV. L. REV. 593 (1995); Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Meaning, 1990 SUP. CT. REV. 231; Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405 (1989).
9. The literature on statutory interpretation is immense. Representative works include: GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES (1982); WILLIAM ESKRIDGE, DYNAMIC STATUTORY INTERPRETATION (1994); ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (1997); Alexander Aleinikoff, Updating Statutory Interpretation, 87 MICH. L. REV. 20, 31 (1988); James J. Brudney, Congressional Commentary on Judicial Interpretations of Statutes: Idle Chatter or Telling Response? 93 MICH. L. REV. 1, 3-4 (1994); Frank H. Easterbrook, The Supreme Court, 1983 Term - Foreword: The Court and the Economic System, 98 HARV. L. REV. 4 (1985); Jane S. Schacter, Metademocracy: The Changing Structure of Legitimacy in Statutory Interpretation, 108 HARV. L. REV. 593 (1995); Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Meaning, 1990 SUP. CT. REV. 231; Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405 (1989).
10. The literature on statutory interpretation is immense. Representative works include: GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES (1982); WILLIAM ESKRIDGE, DYNAMIC STATUTORY INTERPRETATION (1994); ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (1997); Alexander Aleinikoff, Updating Statutory Interpretation, 87 MICH. L. REV. 20, 31 (1988); James J. Brudney, Congressional Commentary on Judicial Interpretations of Statutes: Idle Chatter or Telling Response? 93 MICH. L. REV. 1, 3-4 (1994); Frank H. Easterbrook, The Supreme Court, 1983 Term - Foreword: The Court and the Economic System, 98 HARV. L. REV. 4 (1985); Jane S. Schacter, Metademocracy: The Changing Structure of Legitimacy in Statutory Interpretation, 108 HARV. L. REV. 593 (1995); Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Meaning, 1990 SUP. CT. REV. 231; Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405 (1989).
11. The literature on statutory interpretation is immense. Representative works include: GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES (1982); WILLIAM ESKRIDGE, DYNAMIC STATUTORY INTERPRETATION (1994); ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (1997); Alexander Aleinikoff, Updating Statutory Interpretation, 87 MICH. L. REV. 20, 31 (1988); James J. Brudney, Congressional Commentary on Judicial Interpretations of Statutes: Idle Chatter or Telling Response? 93 MICH. L. REV. 1, 3-4 (1994); Frank H. Easterbrook, The Supreme Court, 1983 Term - Foreword: The Court and the Economic System, 98 HARV. L. REV. 4 (1985); Jane S. Schacter, Metademocracy: The Changing Structure of Legitimacy in Statutory Interpretation, 108 HARV. L. REV. 593 (1995); Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Meaning, 1990 SUP. CT. REV. 231; Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405 (1989).
12. The literature on statutory interpretation is immense. Representative works include: GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES (1982); WILLIAM ESKRIDGE, DYNAMIC STATUTORY INTERPRETATION (1994); ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (1997); Alexander Aleinikoff, Updating Statutory Interpretation, 87 MICH. L. REV. 20, 31 (1988); James J. Brudney, Congressional Commentary on Judicial Interpretations of Statutes: Idle Chatter or Telling Response? 93 MICH. L. REV. 1, 3-4 (1994); Frank H. Easterbrook, The Supreme Court, 1983 Term - Foreword: The Court and the Economic System, 98 HARV. L. REV. 4 (1985); Jane S. Schacter, Metademocracy: The Changing Structure of Legitimacy in Statutory Interpretation, 108 HARV. L. REV. 593 (1995); Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Meaning, 1990 SUP. CT. REV. 231; Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405 (1989).
13. The literature on statutory interpretation is immense. Representative works include: GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES (1982); WILLIAM ESKRIDGE, DYNAMIC STATUTORY INTERPRETATION (1994); ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (1997); Alexander Aleinikoff, Updating Statutory Interpretation, 87 MICH. L. REV. 20, 31 (1988); James J. Brudney, Congressional Commentary on Judicial Interpretations of Statutes: Idle Chatter or Telling Response? 93 MICH. L. REV. 1, 3-4 (1994); Frank H. Easterbrook, The Supreme Court, 1983 Term - Foreword: The Court and the Economic System, 98 HARV. L. REV. 4 (1985); Jane S. Schacter, Metademocracy: The Changing Structure of Legitimacy in Statutory Interpretation, 108 HARV. L. REV. 593 (1995); Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Meaning, 1990 SUP. CT. REV. 231; Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405 (1989).
14. See Patricia M. Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 IOWA L. REV. 195, 214 (1983) ("[C]onsistent and uniform rules for statutory construction and use of legislative materials are not being followed today. It sometimes seems that citing legislative history is still, as my late colleague Harold Leventhal once observed, akin to 'looking over a crowd and picking out your friends.'"). Perhaps the greatest source of confusion is the canons of construction. Karl Llewellyn demonstrated almost 50 years ago that for each canon an exception can be invoked. Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, 3 VAND. L. REV. 395, 401-06 (1950) (listing canons and counter canons). The choice among theories of interpretation also spawns confusion. See infra text accompanying notes 14-21.
15. See Patricia M. Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 IOWA L. REV. 195, 214 (1983) ("[C]onsistent and uniform rules for statutory construction and use of legislative materials are not being followed today. It sometimes seems that citing legislative history is still, as my late colleague Harold Leventhal once observed, akin to 'looking over a crowd and picking out your friends.'"). Perhaps the greatest source of confusion is the canons of construction. Karl Llewellyn demonstrated almost 50 years ago that for each canon an exception can be invoked. Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, 3 VAND. L. REV. 395, 401-06 (1950) (listing canons and counter canons). The choice among theories of interpretation also spawns confusion. See infra text accompanying notes 14-21.
16. See William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 STAN. L. REV. 321, 324 (1990) ("In the post-World War II era . . . legal scholars have preferred theories that offer a unitary foundation for statutory interpretation. Much of the theoretical debate has been over which of the competing foundations is the best one."); Jonathan R. Siegal, Textualism and Contextualism in Administrative Law, 78 B.U. L. REV. 1023, 1024 (1998) ("The current debate about statutory interpretation is often characterized as a battle between textualists and intentionalists.").
17. See William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 STAN. L. REV. 321, 324 (1990) ("In the post-World War II era . . . legal scholars have preferred theories that offer a unitary foundation for statutory interpretation. Much of the theoretical debate has been over which of the competing foundations is the best one."); Jonathan R. Siegal, Textualism and Contextualism in Administrative Law, 78 B.U. L. REV. 1023, 1024 (1998) ("The current debate about statutory interpretation is often characterized as a battle between textualists and intentionalists.").
18. See Larry Alexander, Practical Reasoning and Statutory Interpretation, 12 LAW & PHIL. 319, 326 (1993) (noting scholars' tendency to blend normative and descriptive observations).
19. Most cases discussed in this Article are drawn from WILLIAM N. ESKRIDGE, JR. & PHILIP P. FRICKEY, CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY (1995), a leading casebook in the field. A Lexis search conducted on March 1, 2000 in the law review database shows that most of these cases are widely cited: Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984) (701 citations); United Steelworkers of Am. v. Weber, 443 U.S. 193 (1979) (640 citations); Bob Jones Univ. v. United States, 461 U.S. 574 (1983) (561 citations); Green v. Bock Mach. Laundry Co., 490 U.S. 504 (1989) (222 citations); Griffin v. Oceanic Contractors, Inc., 458 U.S. 564 (1982) (160 citations); and United States v. Locke, 471 U.S. 84 (1985) (120 citations).
20. 443 U.S. 193 (1979).
21. See ABNER J. MIKVA & ERIC LANE, LEGISLATIVE PROCESS 855 (1995) ("Weber is one of the most controversial statutory interpretation decisions of modern times. It has led to probing debates about the powers and functions of legislative and judicial branches of government."); Philip P. Frickey, From the Big Sleep to the Big Heat: The Revival of Theory in Statutory Interpretation, 77 MINN. L. REV. 241, 245 (1992) (describing Weber as the most important statutory interpretation decision in the 1980s); see also Daniel A. Farber, Statutory Interpretation and the Idea of Progress, 94 MICH. L. REV. 1546, 1561 (1996) (agreeing that much of the contemporary debate about statutory interpretation has been sparked by Weber and observing that all current legislation casebooks use Weber as a principal case). The first chapter in Professors Eskridge and Frickey's casebook on legislation centers on Weber. ESKRIDGE & FRICKEY, supra note 7.
22. See ABNER J. MIKVA & ERIC LANE, LEGISLATIVE PROCESS 855 (1995) ("Weber is one of the most controversial statutory interpretation decisions of modern times. It has led to probing debates about the powers and functions of legislative and judicial branches of government."); Philip P. Frickey, From the Big Sleep to the Big Heat: The Revival of Theory in Statutory Interpretation, 77 MINN. L. REV. 241, 245 (1992) (describing Weber as the most important statutory interpretation decision in the 1980s); see also Daniel A. Farber, Statutory Interpretation and the Idea of Progress, 94 MICH. L. REV. 1546, 1561 (1996) (agreeing that much of the contemporary debate about statutory interpretation has been sparked by Weber and observing that all current legislation casebooks use Weber as a principal case). The first chapter in Professors Eskridge and Frickey's casebook on legislation centers on Weber. ESKRIDGE & FRICKEY, supra note 7.
23. See ABNER J. MIKVA & ERIC LANE, LEGISLATIVE PROCESS 855 (1995) ("Weber is one of the most controversial statutory interpretation decisions of modern times. It has led to probing debates about the powers and functions of legislative and judicial branches of government."); Philip P. Frickey, From the Big Sleep to the Big Heat: The Revival of Theory in Statutory Interpretation, 77 MINN. L. REV. 241, 245 (1992) (describing Weber as the most important statutory interpretation decision in the 1980s); see also Daniel A. Farber, Statutory Interpretation and the Idea of Progress, 94 MICH. L. REV. 1546, 1561 (1996) (agreeing that much of the contemporary debate about statutory interpretation has been sparked by Weber and observing that all current legislation casebooks use Weber as a principal case). The first chapter in Professors Eskridge and Frickey's casebook on legislation centers on Weber. ESKRIDGE & FRICKEY, supra note 7.
24. Preoccupation with "hard" cases pervades American legal scholarship. See generally Frederick Schauer, Easy Cases, 58 S. CAL. L. REV. 399, 407 (1985) ("Contemporary constitutional theory has become mired in a fixation with the decision of hard cases . . . . [T]he contemporary agenda has neglected an enormous portion of constitutional law. It has forgotten the easy case."); H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593, 615 (1958) (distinguishing between the "core" meanings of legal rules and the "penumbra" and observing that "preoccupation with the penumbra is . . . as rich a source of confusion in the American legal tradition as formalism in the English").
25. Preoccupation with "hard" cases pervades American legal scholarship. See generally Frederick Schauer, Easy Cases, 58 S. CAL. L. REV. 399, 407 (1985) ("Contemporary constitutional theory has become mired in a fixation with the decision of hard cases . . . . [T]he contemporary agenda has neglected an enormous portion of constitutional law. It has forgotten the easy case."); H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593, 615 (1958) (distinguishing between the "core" meanings of legal rules and the "penumbra" and observing that "preoccupation with the penumbra is . . . as rich a source of confusion in the American legal tradition as formalism in the English").
26. 467 U.S. 837 (1984).
27. See KENNETH CULP DAVIS & RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE 110 (3d ed. 1994) (describing Chevron as "one of the most important decisions in the history of administrative law"); Cass R. Sunstein, Law and Administration After Chevron, 90 COLUM. L. REV. 2071, 2075 (1990) (describing Chevron as "one of the very few defining cases in the last twenty years of American public law").
28. See KENNETH CULP DAVIS & RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE 110 (3d ed. 1994) (describing Chevron as "one of the most important decisions in the history of administrative law"); Cass R. Sunstein, Law and Administration After Chevron, 90 COLUM. L. REV. 2071, 2075 (1990) (describing Chevron as "one of the very few defining cases in the last twenty years of American public law").
29. See infra note 294.
30. See NORMAN J. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 45.05 (6th ed. 2000) (stating that when interpreting statutes, "'the intent of the legislature' is the criterion most often recited").
31. See William N. Eskridge, Jr., Legislative History Values, 66 CHI.-KENT L. REV. 365, 369-71, 391-95 (1990) (describing subjective and objective understandings of intent). Professor Eskridge further distinguishes among actual intent, conventional intent, and imaginative reconstruction. Id. at 380, 382-85; Archibald Cox, Judge Learned Hand and the Interpretation of Statutes, 60 HARV. L. REV. 370, 370-71 (1947) (distinguishing between intent as "purpose" and intent as "specific particularized application").
32. See William N. Eskridge, Jr., Legislative History Values, 66 CHI.-KENT L. REV. 365, 369-71, 391-95 (1990) (describing subjective and objective understandings of intent). Professor Eskridge further distinguishes among actual intent, conventional intent, and imaginative reconstruction. Id. at 380, 382-85; Archibald Cox, Judge Learned Hand and the Interpretation of Statutes, 60 HARV. L. REV. 370, 370-71 (1947) (distinguishing between intent as "purpose" and intent as "specific particularized application").
33. See Richard A. Posner, Statutory Interpretation - in the Classroom and in the Court Room, 50 U. CHI. L. REV. 800, 817 (1983). For a famous illustration, see Fishgold v. Sullivan Drydock & Repair Corp., 154 F.2d 785 (2d Cir. 1946), aff'd, 328 U.S. 275 (1946) (reading narrowly a pre-war statute protecting persons in military service because prior to American entry into World War II Congress would not have granted broad relief).
34. See HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW 1410, 1413-14 (10th ed. 1958).
35. See William S. Blatt, The History of Statutory Interpretation: A Study in Form and Substance, 6 CARDOZO L. REV. 799, 828-34 (1985) (describing the dominance of purposive interpretation).
36. See William N. Eskridge, Jr., Dynamic Statutory Interpretation, 135 U. PA. L. REV. 1479, 1507 (1987) ("Scholars from a variety of viewpoints agree that the idea of legislative intent is incoherent."); Nicholas S. Zeppos, The Use of Authority in Statutory Interpretation: An Empirical Analysis, 70 TEX. L. REV. 1073, 1087 (1992) (observing that adherence to intent of enacting legislature "has no serious defenders in the academy").
37. See William N. Eskridge, Jr., Dynamic Statutory Interpretation, 135 U. PA. L. REV. 1479, 1507 (1987) ("Scholars from a variety of viewpoints agree that the idea of legislative intent is incoherent."); Nicholas S. Zeppos, The Use of Authority in Statutory Interpretation: An Empirical Analysis, 70 TEX. L. REV. 1073, 1087 (1992) (observing that adherence to intent of enacting legislature "has no serious defenders in the academy").
38. See SCALIA, supra note 3, at 22 ("The text is the law, and it is the text that must be observed."); Frank H. Easterbrook, What Does Legislative History Tell Us?, 66 CHI.-KENT L. REV. 441, 449 (1990) ("The objective of statutory interpretation is to give the text a meaning appropriate to our constitutional republic.").
39. See Aleinikoff, supra note 3, at 21 (describing statutory interpretation as a voyage in which Congress builds the ship, but courts set the course); Eskridge, supra note 19, at 1516; Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539, 1584 (1988) (defending dynamic interpretation).
40. See Siegal, supra note 5, at 1029 ("A striking thing about the [current] debate is how much of it concerns the question of whether the [permissible] context includes legislative history.").
41. See Zeppos, supra note 19, at 1080-81.
42. See Nicholas S. Zeppos, Legislative History and the Interpretation of Statutes: Toward a Fact-Finding Model of Statutory Interpretation, 76 VA. L. REV. 1295, 1306 (1990) ("Legislative history is relevant if the pertinent inquiry is congressional intent."); see also W. David Slawson, Legislative History and the Need to Bring Statutory Interpretation Under the Rule of Law, 44 STAN. L. REV. 383, 395 (1992) (arguing that the use of legislative history is predicated upon the assumption that the law is legislative intent).
43. See Nicholas S. Zeppos, Legislative History and the Interpretation of Statutes: Toward a Fact-Finding Model of Statutory Interpretation, 76 VA. L. REV. 1295, 1306 (1990) ("Legislative history is relevant if the pertinent inquiry is congressional intent."); see also W. David Slawson, Legislative History and the Need to Bring Statutory Interpretation Under the Rule of Law, 44 STAN. L. REV. 383, 395 (1992) (arguing that the use of legislative history is predicated upon the assumption that the law is legislative intent).
44. See SCALIA, supra note 3, at 29-30 ("[L]egislative history should not be used as an authoritative indication of a statute's meaning.").
45. See William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621, 651-52 (1990).
46. See ESKRIDGE & FRICKEY, supra note 7, at 876-77; Karkkainen, supra note 2, at 460-61; Bradford C. Mank, Is a Textualist Approach to Statutory Interpretation Pro-Environmentalist?: Why Pragmatic Agency Decisionmaking Is Better than Judicial Literalism, 53 WASH. & LEE L. REV. 1231, 1248-50 (1996); Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 YALE L.J. 969, 992 (1992) [hereinafter Merrill, Executive Precedent] (arguing that a textualist approach "if consistently followed, would dramatically transform Chevron from a deference doctrine to a doctrine of antideference"); Thomas W. Merrill, Textualism and the Future of the Chevron Doctrine, 72 WASH. U. L.Q 351, 359-62 (1994) [hereinafter Merrill, Textualism] (observing that an increasingly textualist Supreme Court has marginalized the deference doctrine); Richard J. Pierce, Jr., The Supreme Court's New Hypertextualism: An Invitation to Cacophony and Incoherence in the Administrative State, 95 COLUM. L. REV. 749, 752 (1995). But see Orin S. Kerr, Shedding Light on Chevron: An Empirical Study of the Chevron Doctrine in the U.S. Courts of Appeals, 15 YALE J. ON REG. 1, 53 (1998) (finding no relationship between a judge's theory of interpretation and willingness to defer to agencies).
47. See ESKRIDGE & FRICKEY, supra note 7, at 876-77; Karkkainen, supra note 2, at 460-61; Bradford C. Mank, Is a Textualist Approach to Statutory Interpretation Pro-Environmentalist?: Why Pragmatic Agency Decisionmaking Is Better than Judicial Literalism, 53 WASH. & LEE L. REV. 1231, 1248-50 (1996); Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 YALE L.J. 969, 992 (1992) [hereinafter Merrill, Executive Precedent] (arguing that a textualist approach "if consistently followed, would dramatically transform Chevron from a deference doctrine to a doctrine of antideference"); Thomas W. Merrill, Textualism and the Future of the Chevron Doctrine, 72 WASH. U. L.Q 351, 359-62 (1994) [hereinafter Merrill, Textualism] (observing that an increasingly textualist Supreme Court has marginalized the deference doctrine); Richard J. Pierce, Jr., The Supreme Court's New Hypertextualism: An Invitation to Cacophony and Incoherence in the Administrative State, 95 COLUM. L. REV. 749, 752 (1995). But see Orin S. Kerr, Shedding Light on Chevron: An Empirical Study of the Chevron Doctrine in the U.S. Courts of Appeals, 15 YALE J. ON REG. 1, 53 (1998) (finding no relationship between a judge's theory of interpretation and willingness to defer to agencies).
48. See ESKRIDGE & FRICKEY, supra note 7, at 876-77; Karkkainen, supra note 2, at 460-61; Bradford C. Mank, Is a Textualist Approach to Statutory Interpretation Pro-Environmentalist?: Why Pragmatic Agency Decisionmaking Is Better than Judicial Literalism, 53 WASH. & LEE L. REV. 1231, 1248-50 (1996); Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 YALE L.J. 969, 992 (1992) [hereinafter Merrill, Executive Precedent] (arguing that a textualist approach "if consistently followed, would dramatically transform Chevron from a deference doctrine to a doctrine of antideference"); Thomas W. Merrill, Textualism and the Future of the Chevron Doctrine, 72 WASH. U. L.Q 351, 359-62 (1994) [hereinafter Merrill, Textualism] (observing that an increasingly textualist Supreme Court has marginalized the deference doctrine); Richard J. Pierce, Jr., The Supreme Court's New Hypertextualism: An Invitation to Cacophony and Incoherence in the Administrative State, 95 COLUM. L. REV. 749, 752 (1995). But see Orin S. Kerr, Shedding Light on Chevron: An Empirical Study of the Chevron Doctrine in the U.S. Courts of Appeals, 15 YALE J. ON REG. 1, 53 (1998) (finding no relationship between a judge's theory of interpretation and willingness to defer to agencies).
49. See ESKRIDGE & FRICKEY, supra note 7, at 876-77; Karkkainen, supra note 2, at 460-61; Bradford C. Mank, Is a Textualist Approach to Statutory Interpretation Pro-Environmentalist?: Why Pragmatic Agency Decisionmaking Is Better than Judicial Literalism, 53 WASH. & LEE L. REV. 1231, 1248-50 (1996); Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 YALE L.J. 969, 992 (1992) [hereinafter Merrill, Executive Precedent] (arguing that a textualist approach "if consistently followed, would dramatically transform Chevron from a deference doctrine to a doctrine of antideference"); Thomas W. Merrill, Textualism and the Future of the Chevron Doctrine, 72 WASH. U. L.Q 351, 359-62 (1994) [hereinafter Merrill, Textualism] (observing that an increasingly textualist Supreme Court has marginalized the deference doctrine); Richard J. Pierce, Jr., The Supreme Court's New Hypertextualism: An Invitation to Cacophony and Incoherence in the Administrative State, 95 COLUM. L. REV. 749, 752 (1995). But see Orin S. Kerr, Shedding Light on Chevron: An Empirical Study of the Chevron Doctrine in the U.S. Courts of Appeals, 15 YALE J. ON REG. 1, 53 (1998) (finding no relationship between a judge's theory of interpretation and willingness to defer to agencies).
50. See ESKRIDGE & FRICKEY, supra note 7, at 876-77; Karkkainen, supra note 2, at 460-61; Bradford C. Mank, Is a Textualist Approach to Statutory Interpretation Pro-Environmentalist?: Why Pragmatic Agency Decisionmaking Is Better than Judicial Literalism, 53 WASH. & LEE L. REV. 1231, 1248-50 (1996); Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 YALE L.J. 969, 992 (1992) [hereinafter Merrill, Executive Precedent] (arguing that a textualist approach "if consistently followed, would dramatically transform Chevron from a deference doctrine to a doctrine of antideference"); Thomas W. Merrill, Textualism and the Future of the Chevron Doctrine, 72 WASH. U. L.Q 351, 359-62 (1994) [hereinafter Merrill, Textualism] (observing that an increasingly textualist Supreme Court has marginalized the deference doctrine); Richard J. Pierce, Jr., The Supreme Court's New Hypertextualism: An Invitation to Cacophony and Incoherence in the Administrative State, 95 COLUM. L. REV. 749, 752 (1995). But see Orin S. Kerr, Shedding Light on Chevron: An Empirical Study of the Chevron Doctrine in the U.S. Courts of Appeals, 15 YALE J. ON REG. 1, 53 (1998) (finding no relationship between a judge's theory of interpretation and willingness to defer to agencies).
51. See Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J. 511, 521 (1992): One who finds more often (as I do) that the meaning of a statute is apparent from its text and from its relationship with other laws, thereby finds less often that the triggering requirement for Chevron deference exists. It is thus relatively rare that Chevron will require me to accept an interpretation which, though reasonable, I would not personally adopt. Contrariwise, one who abhors a "plain meaning" rule, and is willing to permit the apparent meaning of a statute to be impeached by the legislative history, will more frequently find agency-liberating ambiguity, and will discern a much broader range of "reasonable" interpretation that the agency may adopt and to which the courts must pay deference. The frequency with which Chevron will require that judge to accept an interpretation he thinks wrong is infinitely greater.
52. See Merrill, Textualism, supra note 27, at 373 ("By changing the focus from what Congress intended to what the ordinary reader would understand, textualism adopts, at least implicitly, a model of the court as an autonomous interpreter."). Moreover, [i]ntentionalism mandates an "archeological" excavation of the past, producing opinions in the style of the dry archivist sifting through countless documents in search of the tell-tale smoking gun of congressional intent. Textualism, in contrast, seems to transform statutory interpretation into a kind of exercise in judicial ingenuity. The textualist judge treats questions of interpretation like a puzzle to which it is assumed there is one right answer. . . . This exercise places a great premium on cleverness . . . . This active, creative approach to interpretation is subtly incompatible with an attitude of deference toward other institutions - whether the other institution is Congress or an administrative agency. In effect, the textualist interpreter does not find the meaning of the statute so much as to construct the meaning. Such a person will very likely experience some difficulty in deferring the meanings that other institutions have developed. Id. at 372.
53. More specifically, section 703(a), 78 Stat. 255 (codified as amended at 86 Stat. 109, 42 U.S.C. § 2000e-2(a) (1994)), provided: It shall be an unlawful employment practice for an employer - (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's, color, religion, sex, or national origin. Section 703(d), 78 Stat. 256, 42 U.S.C. § 2000e-2(d), provided: It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retaining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.
54. See United Steelworkers of Am. v. Weber, 443 U.S. 193, 201 (1979) ("It is a 'familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.'") (quoting Holy Trinity Church v. United States, 143 U.S. 457, 459 (1892)); id. at 253 (Rehnquist, J., dissenting) ("Our task in this case, like any other case involving the construction of a statute, is to give effect to the intent of Congress.").
55. See Burt Neuborne, Observations on Weber, 54 N.Y.U. L. REV. 546, 554 (1979) (noting that Justices Brennan and Rehnquist asked different questions: Justice Brennan searched for "statute's core purpose," whereas Justice Rehnquist asked "how members actually would have voted had the question explicitly been put to them").
56. See Weber, 443 U.S. at 202 (relying on the "purpose of the statute") (quoting United States v. Public Utils. Comm'n, 345 U.S. 295, 315 (1953)).
57. See id. at 202-03.
58. See id. at 220 (Rehnquist, J., dissenting) (relying on the understandings of "all Members of Congress who spoke to the issue during the legislative debates"); see also id. at 254 (Rehnquist, J., dissenting) ("[C]lose examination of what the Court proffers as the spirit of the Act reveals it as the spirit animating the present majority, not the 88th Congress.").
59. See id. at 237-51.
60. See Johnson v. Transp. Agency, 480 U.S. 616, 670 (1987) (Scalia, J., dissenting) ("Weber disregarded the text of the statute, invoking instead its 'spirit.'") (quoting Holy Trinity Church v. United States, 143 U.S. 457, 459 (1892)). Justice Burger's opinion in Weber also gave great weight to text. See Weber, 443 U.S. at 216 (Burger, J., dissenting) (refusing to join the Court's opinion because "it is contrary to the explicit language of the statute").
61. See Griggs v. Duke Power Co., 401 U.S. 424, 424-25 (1971).
62. See Weber, 443 U.S. at 210-11.
63. Id. at 211.
64. See William N. Eskridge, Spinning Legislative Supremacy, 78 GEO. L.J. 319, 319 (1989) ("Legislative supremacy has long been a shibboleth in discourse about statutory interpretation."). Legislative supremacy is traditionally based on the text of the Constitution and the political accountability of elected representatives. See U.S. CONST. art. I, sec. 1 ("All legislative Powers herein granted shall be vested in a Congress of the United States."); Osburn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 866 (1824) (determining that judicial power under Article III constrains courts to giving "effect to the will of the legislature"); Edward O. Correia, A Legislative Conception of Legislative Supremacy, 42 CASE W. RES. L. REV. 1129, 1132-39 (1992) (describing positivist and normative arguments for legislative supremacy). More generally, legislative supremacy is based on representative democracy and the rule of law. See Schacter, supra note 3, at 594 ("The impulse to reconcile the enterprise of statutory interpretation with the idea of legislative supremacy has a kind of primal quality and reflects the central preoccupation in American law with constraining judicial discretion because of the fear that judicial lawmaking will compromise democracy and undermine the rule of law."); Aleinikoff, supra note 3, at 31 ("All interpretive theories must ultimately be grounded in a political theory and a theory of law, even if the interpreter is unwilling to recognize or state the underlying premise."). For more discussion of the role of representative democracy and the rule of law in statutory interpretation, see infra notes 304-27 and accompanying text.
65. See William N. Eskridge, Spinning Legislative Supremacy, 78 GEO. L.J. 319, 319 (1989) ("Legislative supremacy has long been a shibboleth in discourse about statutory interpretation."). Legislative supremacy is traditionally based on the text of the Constitution and the political accountability of elected representatives. See U.S. CONST. art. I, sec. 1 ("All legislative Powers herein granted shall be vested in a Congress of the United States."); Osburn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 866 (1824) (determining that judicial power under Article III constrains courts to giving "effect to the will of the legislature"); Edward O. Correia, A Legislative Conception of Legislative Supremacy, 42 CASE W. RES. L. REV. 1129, 1132-39 (1992) (describing positivist and normative arguments for legislative supremacy). More generally, legislative supremacy is based on representative democracy and the rule of law. See Schacter, supra note 3, at 594 ("The impulse to reconcile the enterprise of statutory interpretation with the idea of legislative supremacy has a kind of primal quality and reflects the central preoccupation in American law with constraining judicial discretion because of the fear that judicial lawmaking will compromise democracy and undermine the rule of law."); Aleinikoff, supra note 3, at 31 ("All interpretive theories must ultimately be grounded in a political theory and a theory of law, even if the interpreter is unwilling to recognize or state the underlying premise."). For more discussion of the role of representative democracy and the rule of law in statutory interpretation, see infra notes 304-27 and accompanying text.
66. See Daniel A. Farber, Statutory Interpretation and Legislative Supremacy, 78 GEO. L.J. 281, 283 (1989) ("Legislative supremacy, as a doctrine of statutory interpretation, is grounded in the notion that, except when exercising the power of judicial review, courts are subordinate to legislatures."); Sunstein, supra note 3, at 415 ("According to the most prominent conception of the role of courts in statutory construction, judges are agents or servants of the legislature."). See generally Eskridge, supra note 41, at 322 (describing positive theory of legislative supremacy, under which judges act as relational agents, and negative theory of supremacy, under which judges should not violate legislative expectations).
67. See Jerry L. Mashaw, The Economics of Politics and the Understanding of Public Law, 65 CHI.-KENT L. REV. 123, 152 (1989) ("Faced with vague or ambiguous statutes the judiciary must use some set of background presuppositions about legislatures and legislative behavior in order to give meaning to statutes in a polity that is dedicated to legislative supremacy. Moreover, those background presuppositions cannot safely be adopted without some positive theory of politics or the legislative process."); Nicholas S. Zeppos, Justice Scalia's Textualism: The "New" Legal Process, 12 CARDOZO L. REV. 1597, 1642 (1991) ("The judicial task ultimately is to make sense of the legislative product. . . . [A] view of the legislature is an essential part of giving meaning to statutes.").
68. See Jerry L. Mashaw, The Economics of Politics and the Understanding of Public Law, 65 CHI.-KENT L. REV. 123, 152 (1989) ("Faced with vague or ambiguous statutes the judiciary must use some set of background presuppositions about legislatures and legislative behavior in order to give meaning to statutes in a polity that is dedicated to legislative supremacy. Moreover, those background presuppositions cannot safely be adopted without some positive theory of politics or the legislative process."); Nicholas S. Zeppos, Justice Scalia's Textualism: The "New" Legal Process, 12 CARDOZO L. REV. 1597, 1642 (1991) ("The judicial task ultimately is to make sense of the legislative product. . . . [A] view of the legislature is an essential part of giving meaning to statutes.").
69. FRANCIS LIEBER, LEGAL AND POLITICAL HERMENEUTICS 17-20 (3d ed. St. Louis, F.H. Thomas 1880). Professor Eskridge has recently revived this analogy. See William N. Eskridge, Jr., Fetch Some Soupmeat, 16 CARDOZO L. REV. 2209 (1995).
70. FRANCIS LIEBER, LEGAL AND POLITICAL HERMENEUTICS 17-20 (3d ed. St. Louis, F.H. Thomas 1880). Professor Eskridge has recently revived this analogy. See William N. Eskridge, Jr., Fetch Some Soupmeat, 16 CARDOZO L. REV. 2209 (1995).
71. HART & SACKS, supra note 17, at 1415.
72. See William N. Eskridge, Jr., Politics Without Romance: Implications of Public Choice Theory for Statutory Interpretation, 74 VA. L. REV. 275, 275-76 (1988) (associating deference to legislative intention with a view of government as reasonable persons acting reasonably); Slawson, supra note 24, at 398-99 (asserting that intent theory assumes that the legislature is a person).
73. See Brudney, supra note 3, at 79 (basing reliance on legislative history on the assumption of "reasonable legislators acting reasonably").
74. See Eskridge, supra note 15, at 370 (describing nineteenth-century attitudes towards statutes).
75. See Blatt, supra note 18, at 804, 807 n.43, 811 n.68, 830-33 (tracing reliance upon rule in Heydon's Case from Blackstone and nineteenth-century case law to its revival in the mid-twentieth century by Max Redin, Felix Frankfurter, and Hart and Sacks).
76. 3 Co. Rep. 7a, 76 Eng. Rep. 637 (1584). In Heydon's Case, the Court of the Exchequer said: [F]or the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered: - 1st. What was the common law before the making of the Act. 2nd. What was the mischief and defect for which the common law did not provide. 3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth. And, 4th. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico. Id. at 638.
77. See Edward L. Rubin, Beyond Public Choice: Comprehensive Rationality in the Writing and Reading of Statutes, 66 N.Y.U. L. REV. 1, 5-6 (1991) (stating that public choice theory assumes that "all political participants . . . are motivated solely by the desire to maximize their material self-interest").
78. Focusing almost exclusively on re-election, legislators themselves contribute little toward articulating society's desires. See id. at 14-19 (explaining that recent public choice analyses "rest on the assumption that legislators are motivated primarily by their desire to maximize their chance of reelection").
79. Diffusion is not the only factor causing underrepresentation. Financial capacity also has this effect. See KAY LEHMAN SCHOLZMAN & JOHN T. TIERNEY, ORGANIZED INTERESTS AND AMERICAN DEMOCRACY 65-73 (1986) (noting that interest group representation is skewed toward business groups and against those representing the less advantaged).
80. See MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION 165 (1965) ("[L]arge or latent groups have no tendency voluntarily to act to further their common interests.").
81. Majority voting cannot, for example, resolve the choice between three mutually exclusive alternatives voted in pairs. See ESKRIDGE & FRICKEY, supra note 7, at 52 for an illustration. This is a consequence of Arrow's theorem. See generally KENNETH ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES (2d ed. 1963).
82. See Eskridge, supra note 46, at 277 (arguing that the public choice vision of the legislative process undermines an intentionalist approach to statutory interpretation).
83. Special interests may use legislative history to bypass safeguards built into the legislative process. See Zeppos, supra note 24, at 1304-08 (describing how public choice critique undermines use of legislative history).
84. See Easterbrook, supra note 3, at 51 ("Interest-group legislation requires adherence to the terms of the compromise. The court cannot 'improve' on a pact that has no content other than the exact bargain among the competing interests because the pact has no purpose.").
85. See Sunstein, supra note 21, at 1548-49 ("Many republican conceptions treat politics as above all deliberative, and deliberation is to cover ends as well as means. . . . [E]xisting desires should be revisable in light of collective discussion and debate, bringing to bear alternative perspectives and additional information.") (footnote omitted).
86. See id. at 1549 ("A central point [in republicanism] is that individual preferences should not be treated as exogenous to politics. They are a function of existing practice.") (footnote omitted).
87. See id. at 1541.
88. See id. at 1584 (arguing that republicanism supports interpreting statutes in a way that could plausibly be understood as the outcome of a deliberate process).
89. See ESKRIDGE, supra note 3, at 184 (observing that, in republicanism, "the political and social cultures continuously interact in what Robert Cover calls 'jurisgenerative' (norm-or law-creating moments)").
90. See Sunstein, supra note 21, at 1582 ("[A] republican approach to statutory construction . . . repudiates the idea that the only role of courts is to ascertain legislative intent in the particular case.").
91. See William N. Eskridge, Jr., Public Values in Statutory Interpretation, 137 U. PA. L. REV. 1007, 1075-81 (1989) (describing Blackmun's position in Weber as a "public values" approach).
92. See Jorge L. Carro & Andrew R. Brann, Use of Legislative Histories by the United States Supreme Court: A Statistical Analysis, 9 J. LEGIS. 282, 302-03 (1982) (demonstrating that Justices Brennan, Blackmun, and Stevens cite legislative history more than others); Michael H. Koby, The Supreme Court's Declining Reliance on Legislative History: The Impact of Justice Scalia's Critique, 36 HARV. J. ON LEGIS. 371, 393 (1999) (confirming and updating prior study); William Popkin, An Internal Critique of Justice Scalia's Theory of Statutory Interpretation, 76 MINN. L. REV. 1133, 1135 (1992) (describing Justice Stevens's willingness to go beyond text).
93. See Jorge L. Carro & Andrew R. Brann, Use of Legislative Histories by the United States Supreme Court: A Statistical Analysis, 9 J. LEGIS. 282, 302-03 (1982) (demonstrating that Justices Brennan, Blackmun, and Stevens cite legislative history more than others); Michael H. Koby, The Supreme Court's Declining Reliance on Legislative History: The Impact of Justice Scalia's Critique, 36 HARV. J. ON LEGIS. 371, 393 (1999) (confirming and updating prior study); William Popkin, An Internal Critique of Justice Scalia's Theory of Statutory Interpretation, 76 MINN. L. REV. 1133, 1135 (1992) (describing Justice Stevens's willingness to go beyond text).
94. See Jorge L. Carro & Andrew R. Brann, Use of Legislative Histories by the United States Supreme Court: A Statistical Analysis, 9 J. LEGIS. 282, 302-03 (1982) (demonstrating that Justices Brennan, Blackmun, and Stevens cite legislative history more than others); Michael H. Koby, The Supreme Court's Declining Reliance on Legislative History: The Impact of Justice Scalia's Critique, 36 HARV. J. ON LEGIS. 371, 393 (1999) (confirming and updating prior study); William Popkin, An Internal Critique of Justice Scalia's Theory of Statutory Interpretation, 76 MINN. L. REV. 1133, 1135 (1992) (describing Justice Stevens's willingness to go beyond text).
95. See Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. CAL. L. REV. 845, 847 n.7 (1992) (quoting HART & SACHS, supra note 17, at 1415); see also supra note 45 and accompanying text.
96. See Thomas W. Merrill, Chief Justice Rehnquist, Pluralist Theory, and the Interpretation of Statutes, 25 RUTGERS L.J. 621, 642-44 (1994) (ascribing Justice Rehnquist's focus on the deal struck by Congress to a pluralist description of the legislature).
97. See id. at 663-66 (attributing Justice Scalia's textualism to pessimism about the legislative process).
98. See James J. Brudney, Congressional Commentary on Judicial Interpretations of Statutes: Idle Chatter or Telling Response?, 93 MICH. L. REV. 1, 3-4 (1994) ("Much of scholarly literature considers statutory interpretation from a judge-centered perspective, regarding statutes as one among the various sources of law to be interpreted and applied to particular controversies.").
99. See, e.g., Richard Pildes & Elizabeth Anderson, Slinging Arrows at Democracy: Social Choice Theory, Value Pluralism, and Democratic Politics, 90 COLUM. L. REV. 2121 (1990); Rubin, Beyond Public Choice, supra note 51, at 55 (comparing public choice and comprehensive rationality as descriptions of legislative behavior and as a basis for interpretive theory); Daniel Shaviro, Beyond Public Choice and Public Interest: A Study of the Legislative Process as Illustrated by Tax Legislation in the 1980s, 139 U. PA. L. REV. 1 (1990) (comparing public interest and public choice theories of legislation).
100. See, e.g., Richard Pildes & Elizabeth Anderson, Slinging Arrows at Democracy: Social Choice Theory, Value Pluralism, and Democratic Politics, 90 COLUM. L. REV. 2121 (1990); Rubin, Beyond Public Choice, supra note 51, at 55 (comparing public choice and comprehensive rationality as descriptions of legislative behavior and as a basis for interpretive theory); Daniel Shaviro, Beyond Public Choice and Public Interest: A Study of the Legislative Process as Illustrated by Tax Legislation in the 1980s, 139 U. PA. L. REV. 1 (1990) (comparing public interest and public choice theories of legislation).
101. See U.S. BUREAU OF THE CENSUS, STATISTICAL ABSTRACT OF THE UNITED STATES: 1990, at 323 (1990) (stating that in 1989, Congress had 19,504 employees).
102. See Schacter, supra note 3, at 593-94 (arguing that to interpret a
103. See Eskridge, supra note 46, at 314-15 (noting that the inferences drawn from public choice theory differ according to one's assumptions); Rubin, supra note 51, at 46 (describing the spectrum of interpretive theories based upon an interest group politics description of the legislative process). Superior judicial capacity might justify an inquiry into intent or best answer. Professors Farber and Frickey argue that public choice theory is consistent with an inquiry into legislative intent. See Daniel A. Farber & Philip P. Frickey, Legislative Intent and Public Choice, 74 VA. L. REV. 423, 461-65 (1988) (describing a pragmatic approach to legislative intent that is consistent with public choice theory). Professor Macey goes further and argues that, notwithstanding the role of interest group bargains in legislation, courts should nonetheless interpret statutes as public regarding. See Jonathan R. Macey, Promoting Public-Regarding Legislation Through Statutory Interpretation: An Interest Group Model, 86 COLUM. L. REV. 223, 250-55 (1986) (defending the traditional approach to statutory interpretation as reducing the quantity of private interest legislation).
104. See Eskridge, supra note 46, at 314-15 (noting that the inferences drawn from public choice theory differ according to one's assumptions); Rubin, supra note 51, at 46 (describing the spectrum of interpretive theories based upon an interest group politics description of the legislative process). Superior judicial capacity might justify an inquiry into intent or best answer. Professors Farber and Frickey argue that public choice theory is consistent with an inquiry into legislative intent. See Daniel A. Farber & Philip P. Frickey, Legislative Intent and Public Choice, 74 VA. L. REV. 423, 461-65 (1988) (describing a pragmatic approach to legislative intent that is consistent with public choice theory). Professor Macey goes further and argues that, notwithstanding the role of interest group bargains in legislation, courts should nonetheless interpret statutes as public regarding. See Jonathan R. Macey, Promoting Public-Regarding Legislation Through Statutory Interpretation: An Interest Group Model, 86 COLUM. L. REV. 223, 250-55 (1986) (defending the traditional approach to statutory interpretation as reducing the quantity of private interest legislation).
105. Although modern republicans assume that judges participate in deliberation, that assumption was not shared by early republicans, who were suspicious of judicial review. See Sunstein, supra note 21, at 1556. Even Sunstein and Eskridge disagree over whether public values can supersede ordinary interpretation. See Sunstein, supra note 3, at 411 n.21 (criticizing Eskridge's assumption that public values are independent of ordinary interpretation).
106. See Karl N. Llewellyn, The Constitution as an Institution, 34 COLUM. L. REV. 1, 19 (1934).
107. See JOHN W. KINGDON, AGENDAS, ALTERNATIVES, AND PUBLIC POLICIES 220 (1984). These interviews were with congressional staff, executive department personnel, journalists, consultants, academics, and researchers. Id. at 221.
108. See id. at 92.
109. According to Stanley Fish, an interpretive community is: not so much a group of individuals who shared a point of view, but a point of view or way of organizing experience that shared individuals in the sense that its assumed distinctions, categories of understanding, and stipulations of relevance and irrelevance were the content of the consciousness of community members who were therefore no longer individuals, but, insofar as they were embedded in the community's enterprise, community property. FISH, NATURALLY, supra note 1, at 141.
110. See CARL G. HEMPEL, ASPECTS OF SCIENTIFIC EXPLANATION 156 (1965). Max Weber introduced this term. See MAX WEBER, ECONOMY AND SOCIETY 19-22 (Guenther Roth & Claus Wittich eds., 1978); see also Llewellyn, Constitution as Institution, supra note 76, at 20 n.32 ("[A]ll that is intended by the use of such terms, unqualified, is, throughout this paper, twofold: first (and descriptively) that in significantly high measure the attributes of the concept are present in the life around us; second (and theoretically) that any increasing quantum of their presence or of their range or intensity where present would strengthen the truth-value of the proposition announced concerning them.").
111. See CARL G. HEMPEL, ASPECTS OF SCIENTIFIC EXPLANATION 156 (1965). Max Weber introduced this term. See MAX WEBER, ECONOMY AND SOCIETY 19-22 (Guenther Roth & Claus Wittich eds., 1978); see also Llewellyn, Constitution as Institution, supra note 76, at 20 n.32 ("[A]ll that is intended by the use of such terms, unqualified, is, throughout this paper, twofold: first (and descriptively) that in significantly high measure the attributes of the concept are present in the life around us; second (and theoretically) that any increasing quantum of their presence or of their range or intensity where present would strengthen the truth-value of the proposition announced concerning them.").
112. See HEMPEL, supra note 80, at 156; Llewellyn, supra note 76, at 20 n.32 ("the marking off of 'an interest,' 'a group,' 'an institution' is an artificial abstraction from a complexly concrete mass of phenomena . . . [and] the boundaries drawn will always be indefensible, save for as they become useful and significant for the purpose in hand."). The policy, political, and public communities are not the "only" or "true" communities involved in statutory interpretation. The only claim here is that this grouping generates useful insights.
113. Kingdon's problem stream consists of value judgments drawn from the larger culture. See KINGDON, supra note 77, at 116-17.
114. See id. at 122-51.
115. See CELIA CAMPBELL-MOHN ET AL., ENVIRONMENTAL LAW: FROM RESOURCES TO RECOVERY 79-80 (1993) (identifying 17 federal agencies with environmental law responsibilities and attributing this division to fragmented congressional committees).
116. For various descriptions of policy analysis, see, for example, GARY D. BREWER & PETER DE LEON, THE FOUNDATIONS OF POLICY ANALYSIS 33, 83, 179 (1983) (recognition of problem, identification of problem context, determination of goals and objectives, and generation of alternatives, estimation of alternatives, and selection); MELVIN J. DUBNICK & BARBARA BARDES, THINKING ABOUT PUBLIC POLICY: A PROBLEM-SOLVING APPROACH 168 (1983) (defining the problem, analyzing the problem, establishing a goal or objective, developing alternative solutions, analyzing the alternatives, selecting the "best alternatives" and evaluating the chosen alternative once selected); E.S. QUADE, ANALYSIS FOR PUBLIC DECISIONS 45-47 (1989) (decision maker should consider the objectives of the decision, the alternatives available for attaining the objectives, the impact of the alternatives, the criteria for ranking the alternatives, and the model for predicting the consequences of the alternatives); EDITH STOKEY & RICHARD ZECKHAUSER, A PRIMER FOR POLICY ANALYSIS 5-6 (1978) (establishing the context, laying out the alternatives, predicting the consequences, valuing the outcomes, making a choice); DEBORAH A. STONE, POLICY PARADOX AND POLITICAL REASON 185 (1988) (goal determination, canvassing of available alternatives, evaluation of the alternatives, and selection of the alternative most likely to reach the goal).
117. For various descriptions of policy analysis, see, for example, GARY D. BREWER & PETER DE LEON, THE FOUNDATIONS OF POLICY ANALYSIS 33, 83, 179 (1983) (recognition of problem, identification of problem context, determination of goals and objectives, and generation of alternatives, estimation of alternatives, and selection); MELVIN J. DUBNICK & BARBARA BARDES, THINKING ABOUT PUBLIC POLICY: A PROBLEM-SOLVING APPROACH 168 (1983) (defining the problem, analyzing the problem, establishing a goal or objective, developing alternative solutions, analyzing the alternatives, selecting the "best alternatives" and evaluating the chosen alternative once selected); E.S. QUADE, ANALYSIS FOR PUBLIC DECISIONS 45-47 (1989) (decision maker should consider the objectives of the decision, the alternatives available for attaining the objectives, the impact of the alternatives, the criteria for ranking the alternatives, and the model for predicting the consequences of the alternatives); EDITH STOKEY & RICHARD ZECKHAUSER, A PRIMER FOR POLICY ANALYSIS 5-6 (1978) (establishing the context, laying out the alternatives, predicting the consequences, valuing the outcomes, making a choice); DEBORAH A. STONE, POLICY PARADOX AND POLITICAL REASON 185 (1988) (goal determination, canvassing of available alternatives, evaluation of the alternatives, and selection of the alternative most likely to reach the goal).
118. For various descriptions of policy analysis, see, for example, GARY D. BREWER & PETER DE LEON, THE FOUNDATIONS OF POLICY ANALYSIS 33, 83, 179 (1983) (recognition of problem, identification of problem context, determination of goals and objectives, and generation of alternatives, estimation of alternatives, and selection); MELVIN J. DUBNICK & BARBARA BARDES, THINKING ABOUT PUBLIC POLICY: A PROBLEM-SOLVING APPROACH 168 (1983) (defining the problem, analyzing the problem, establishing a goal or objective, developing alternative solutions, analyzing the alternatives, selecting the "best alternatives" and evaluating the chosen alternative once selected); E.S. QUADE, ANALYSIS FOR PUBLIC DECISIONS 45-47 (1989) (decision maker should consider the objectives of the decision, the alternatives available for attaining the objectives, the impact of the alternatives, the criteria for ranking the alternatives, and the model for predicting the consequences of the alternatives); EDITH STOKEY & RICHARD ZECKHAUSER, A PRIMER FOR POLICY ANALYSIS 5-6 (1978) (establishing the context, laying out the alternatives, predicting the consequences, valuing the outcomes, making a choice); DEBORAH A. STONE, POLICY PARADOX AND POLITICAL REASON 185 (1988) (goal determination, canvassing of available alternatives, evaluation of the alternatives, and selection of the alternative most likely to reach the goal).
119. For various descriptions of policy analysis, see, for example, GARY D. BREWER & PETER DE LEON, THE FOUNDATIONS OF POLICY ANALYSIS 33, 83, 179 (1983) (recognition of problem, identification of problem context, determination of goals and objectives, and generation of alternatives, estimation of alternatives, and selection); MELVIN J. DUBNICK & BARBARA BARDES, THINKING ABOUT PUBLIC POLICY: A PROBLEM-SOLVING APPROACH 168 (1983) (defining the problem, analyzing the problem, establishing a goal or objective, developing alternative solutions, analyzing the alternatives, selecting the "best alternatives" and evaluating the chosen alternative once selected); E.S. QUADE, ANALYSIS FOR PUBLIC DECISIONS 45-47 (1989) (decision maker should consider the objectives of the decision, the alternatives available for attaining the objectives, the impact of the alternatives, the criteria for ranking the alternatives, and the model for predicting the consequences of the alternatives); EDITH STOKEY & RICHARD ZECKHAUSER, A PRIMER FOR POLICY ANALYSIS 5-6 (1978) (establishing the context, laying out the alternatives, predicting the consequences, valuing the outcomes, making a choice); DEBORAH A. STONE, POLICY PARADOX AND POLITICAL REASON 185 (1988) (goal determination, canvassing of available alternatives, evaluation of the alternatives, and selection of the alternative most likely to reach the goal).
120. For various descriptions of policy analysis, see, for example, GARY D. BREWER & PETER DE LEON, THE FOUNDATIONS OF POLICY ANALYSIS 33, 83, 179 (1983) (recognition of problem, identification of problem context, determination of goals and objectives, and generation of alternatives, estimation of alternatives, and selection); MELVIN J. DUBNICK & BARBARA BARDES, THINKING ABOUT PUBLIC POLICY: A PROBLEM-SOLVING APPROACH 168 (1983) (defining the problem, analyzing the problem, establishing a goal or objective, developing alternative solutions, analyzing the alternatives, selecting the "best alternatives" and evaluating the chosen alternative once selected); E.S. QUADE, ANALYSIS FOR PUBLIC DECISIONS 45-47 (1989) (decision maker should consider the objectives of the decision, the alternatives available for attaining the objectives, the impact of the alternatives, the criteria for ranking the alternatives, and the model for predicting the consequences of the alternatives); EDITH STOKEY & RICHARD ZECKHAUSER, A PRIMER FOR POLICY ANALYSIS 5-6 (1978) (establishing the context, laying out the alternatives, predicting the consequences, valuing the outcomes, making a choice); DEBORAH A. STONE, POLICY PARADOX AND POLITICAL REASON 185 (1988) (goal determination, canvassing of available alternatives, evaluation of the alternatives, and selection of the alternative most likely to reach the goal).
121. See Owen M. Fiss, Comments on Conventionalism, 58 S. CAL. L. REV. 177, 177-78 (1985) (acknowledging that a "judge is a thoroughly socialized member of a profession").
122. See Richard H. Fallon, Jr., Non-Legal Theory in Judicial Decisionmaking, 17 HARV. J.L. PUB. POL'Y 87, 88 (1994) (arguing that American law cannot be reduced to any other discipline, nor can legal analysis be reduced to any other methodology); Charles Fried, The Artificial Reason of the Law or: What Lawyers Know, 60 TEX. L. REV. 35, 38 (1981) ("[W]hat judges are expert at, is, not surprisingly, the law. . . . [T]he law is a distinct subject, a branch neither of economics nor of moral philosophy, and that it is in that subject that judges and lawyers are expert; it is that subject which law professors should expound and law students study.").
123. See Richard H. Fallon, Jr., Non-Legal Theory in Judicial Decisionmaking, 17 HARV. J.L. PUB. POL'Y 87, 88 (1994) (arguing that American law cannot be reduced to any other discipline, nor can legal analysis be reduced to any other methodology); Charles Fried, The Artificial Reason of the Law or: What Lawyers Know, 60 TEX. L. REV. 35, 38 (1981) ("[W]hat judges are expert at, is, not surprisingly, the law. . . . [T]he law is a distinct subject, a branch neither of economics nor of moral philosophy, and that it is in that subject that judges and lawyers are expert; it is that subject which law professors should expound and law students study.").
124. See generally Andrew Goldsmith, Is There Any Backbone in This Fish? Interpretive Communities, Social Criticism, and Transgressive Legal Practice, 23 LAW & SOC. INQUIRY 373 (1998) (analyzing the interpretive community of practicing lawyers).
125. See ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION 362 (1993) ("What lawyers are particularly trained to do and can generally do better than philosophers and economists is think about cases . . . . The ability to fashion hypothetical cases and empathically to explore both real and invented ones is the lawyer's professional forte."); EDWARD H. LEVI, AN INTRODUCTION TO LEGAL REASONING 1-2 (1949) (describing legal reasoning as analogical); Fried, supra note 87, at 57 ("Analogy and precedent are the stuff of the law because they are the only form of reasoning left to the law when general philosophical structures and deductive reasoning give out, overwhelmed by the mass of particular details."); Cass R. Sunstein, 106 HARV. L. REV. 741, 741 (1993) ("Reasoning by analogy is the most familiar form of legal reasoning."). Other disciplines rely more on the "top-down" theories. See Fried, supra note 87, at 57 (distinguishing law from philosophy); Sunstein, supra, at 749-50 (distinguishing legal reasoning from "top-down" theories, which apply general principles to particular cases). Others still rely on the ends-means reasoning. See Fried, supra note 87, at 46 (concluding that legal concepts cannot be reduced to economic discourse); Sunstein, On Analogical Reasoning, supra, at 758 (distinguishing legal reasoning from ends-means rationality).
126. See ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION 362 (1993) ("What lawyers are particularly trained to do and can generally do better than philosophers and economists is think about cases . . . . The ability to fashion hypothetical cases and empathically to explore both real and invented ones is the lawyer's professional forte."); EDWARD H. LEVI, AN INTRODUCTION TO LEGAL REASONING 1-2 (1949) (describing legal reasoning as analogical); Fried, supra note 87, at 57 ("Analogy and precedent are the stuff of the law because they are the only form of reasoning left to the law when general philosophical structures and deductive reasoning give out, overwhelmed by the mass of particular details."); Cass R. Sunstein, 106 HARV. L. REV. 741, 741 (1993) ("Reasoning by analogy is the most familiar form of legal reasoning."). Other disciplines rely more on the "top-down" theories. See Fried, supra note 87, at 57 (distinguishing law from philosophy); Sunstein, supra, at 749-50 (distinguishing legal reasoning from "top-down" theories, which apply general principles to particular cases). Others still rely on the ends-means reasoning. See Fried, supra note 87, at 46 (concluding that legal concepts cannot be reduced to economic discourse); Sunstein, On Analogical Reasoning, supra, at 758 (distinguishing legal reasoning from ends-means rationality).
127. See ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION 362 (1993) ("What lawyers are particularly trained to do and can generally do better than philosophers and economists is think about cases . . . . The ability to fashion hypothetical cases and empathically to explore both real and invented ones is the lawyer's professional forte."); EDWARD H. LEVI, AN INTRODUCTION TO LEGAL REASONING 1-2 (1949) (describing legal reasoning as analogical); Fried, supra note 87, at 57 ("Analogy and precedent are the stuff of the law because they are the only form of reasoning left to the law when general philosophical structures and deductive reasoning give out, overwhelmed by the mass of particular details."); Cass R. Sunstein, 106 HARV. L. REV. 741, 741 (1993) ("Reasoning by analogy is the most familiar form of legal reasoning."). Other disciplines rely more on the "top-down" theories. See Fried, supra note 87, at 57 (distinguishing law from philosophy); Sunstein, supra, at 749-50 (distinguishing legal reasoning from "top-down" theories, which apply general principles to particular cases). Others still rely on the ends-means reasoning. See Fried, supra note 87, at 46 (concluding that legal concepts cannot be reduced to economic discourse); Sunstein, On Analogical Reasoning, supra, at 758 (distinguishing legal reasoning from ends-means rationality).
128. "Reasonableness," is used descriptively here to refer to a particular way of making decisions. This method for making decisions is not necessarily better or more accurate than others.
129. See Frank H. Easterbrook, Ways of Criticizing the Court, 95 HARV. L. REV. 802, 825-29 (1982) (explaining that Arrow's Theorem only applies if there is a range of admissible choices).
130. See Rubin, supra note 51, at 47 (arguing that judges do not engage in self-interested behavior).
131. See KINGDON, supra note 77, at 152-72.
132. Kingdon's third "stream" is the "problem stream." This stream, however, is formed largely by judgments from society at large. See id. at 115.
133. See, e.g., MURRAY EDELMAN, THE SYMBOLIC USES OF POLITICS 5 (Illini Books ed. 1985) ("For most men most of the time, politics is a series of pictures in the mind, placed there by television news, newspapers, magazines, and discussions. The pictures create a moving panorama taking place in a world the mass public never quite touches, yet one its members come to fear or cheer, often with passion and sometimes with action.").
134. See James Gray Pope, Republican Moments: The Role of Direct Popular Power in the American Constitutional Order, 139 U. PA. L. REV. 287 (1990).
135. Admittedly, this analysis does not proceed as orderly as sometimes claimed. See Charles E. Lindblom, The Science of "Muddling Through," 19 PUB. ADMIN. REV. 79, 82 (1959) ("[E]valuation and empirical analysis are intertwined; that is, one chooses among values and among policies at one and the same time.").
136. See BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 6 (1991); Cass R. Sunstein, Legislative Foreword: Congress, Constitutional Moments, and the Cost-Benefit State, 48 STAN. L. REV. 247, 254 n.23 (1996) (describing the idea of a constitutional moment as "a metaphor, connoting large-scale change spurred by popular wishes").
137. See BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 6 (1991); Cass R. Sunstein, Legislative Foreword: Congress, Constitutional Moments, and the Cost-Benefit State, 48 STAN. L. REV. 247, 254 n.23 (1996) (describing the idea of a constitutional moment as "a metaphor, connoting large-scale change spurred by popular wishes").
138. See KINGDON, supra note 77, at 3-4 (distinguishing agenda setting from alternative specification).
139. See id. at 95-121. A condition becomes a problem only if there is a shared cultural judgment that something must be done. A focusing event - a disaster, crisis, or powerful symbol - provides the occasion for expressing this judgment. See ROGER W. COBB & CHARLES D. ELDER, PARTICIPATION IN AMERICAN POLITICS: THE DYNAMICS OF AGENDA-BUILDING 172-73 (2d ed. 1983) ("Policy problems are socially constructed. They arise not so much from events and circumstances as from the meanings that people attribute to events and circumstances.").
140. See Zeppos, supra note 24, at 1313 ("Virtually no members of Congress draft their own legislation. Rather, that task is left to committee staff, the Office of Legislative Counsel, or lobbyists."). The Office of Legislative Counsel drafts a huge number of bills. See KENNETH KOFMEHL, PROFESSIONAL STAFFS OF CONGRESS 194 (3d ed. 1977) (observing that the combined total drafting assignments performed by House and Senate legislative counsel offices numbered over 6,000 in 1952).
141. Members of the tax-writing committees do not vote on statutory language and the nonpartisan staff of the Joint Committee on Taxation drafts committee reports. See Michael Livingston, Congress, the Courts and the Code: Legislative History and the Interpretation of Tax Statutes, 69 TEX. L. REV. 819, 833, 838 (1991).
142. For a classic study of the politics endemic to tariff legislation, see ELMER E. SCHATTSCHNEIDER, POLITICS, PRESSURES AND THE TARIFF: A STUDY OF FREE PRIVATE ENTERPRISE IN PRESSURE POLITICS AS SHOWN IN THE 1929-1930 REVISION OF THE TARIFF (1935).
143. Public opinion polls are frequently taken in such areas. A Westlaw search conducted on November 14, 2000 in the poll database in DIALOGUE shows 901 citations to "civil rights," compared to 207 citations to "tariffs," and 79 citations to "taxation." See infra notes 241-42.
144. See Llewellyn, supra note 76, at 19 (noting that the public plays a role like that of an audience in a theater).
145. See HARRISON W. Fox, JR. & SUSAN WEBB HAMMOND, CONGRESSIONAL STAFFS: THE INVISIBLE FORCE IN AMERICAN LAWMAKING 40 (1977) ("Of the AA's, 59 percent had worked in district or state politics prior to Hill employment; indeed, in many cases, it was because of this involvement that the AA was invited to Washington as an employee.").
146. See id. ("A majority of the [personal] staff members, 55 percent, in the survey had been active in politics prior to coming to the Hill.").
147. See KOFMEHL, supra note 101, at 185 ("In accordance with the organic law of the Office, appointments were made without reference to political affiliations. In fact, if a candidate had been prominently identified with political activities, he was automatically disqualified.").
148. See id. ("[T]he legislative counsel generally followed the practice of appointing young men who had just graduated from law school and been admitted to the bar.").
149. See id. (observing that after a probationary period, assistants in legislative counsel office had "in effect permanent tenure," that vacancies were filled from the bottom rung, and that there was a remarkable continuity in the staff, with several senior staffers serving two decades or more).
150. See FOX & HAMMOND, supra note 106, at 44 ("Committee aides are highly trained specialists. Law is the predominant field, and nearly half of all committee professionals hold legal degrees."); KOFMEHL, supra note 101, at 84 (observing that educational background of professional staff compares favorably with that of employees in executive branch and other segments of congressional staff).
151. See Fox & HAMMOND, supra note 106, at 45 (noting that executive branch work is the most usual path to committee appointment); KOFMEHL, supra note 101, at 84 (observing that the educational background of professional staff compares favorably with that of employees in the executive branch and other segments of congressional staff).
152. See KINGDON, supra note 77, at 211 ("The probability of an item rising on a decision agenda is dramatically increased if all three elements - problem, policy proposal, and political receptivity - are linked in single package."); see also Llewellyn, supra note 76, at 18 (describing the working Constitution as embracing "the interlocking ways and attitudes of different groups and classes in the community - different ways and attitudes of different groups and classes, but all cogging together into a fairly well organized whole").
153. See generally McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, 57 LAW & CONTEMP. PROBS. 3 (1994) (describing "vetogates" through which legislation must pass to be enacted).
154. See generally INGOLF VOGELER, THE MYTH OF THE FAMILY FARM: AGRIBUSINESS DOMINANCE OF U.S. AGRICULTURE (1981).
155. The family farm served as the prototype for the American dream of success through hard work. See REX BURNS, SUCCESS IN AMERICA: THE YEOMAN DREAM AND THE INDUSTRIAL REVOLUTION (1976); PETER D'A. JONES, THE CONSUMER SOCIETY: A HISTORY OF AMERICAN CAPITALISM 100 (1965); JOHN MICKEL WILLIAMS, OUR RURAL HERITAGE 83 (1925).
156. The family farm served as the prototype for the American dream of success through hard work. See REX BURNS, SUCCESS IN AMERICA: THE YEOMAN DREAM AND THE INDUSTRIAL REVOLUTION (1976); PETER D'A. JONES, THE CONSUMER SOCIETY: A HISTORY OF AMERICAN CAPITALISM 100 (1965); JOHN MICKEL WILLIAMS, OUR RURAL HERITAGE 83 (1925).
157. The family farm served as the prototype for the American dream of success through hard work. See REX BURNS, SUCCESS IN AMERICA: THE YEOMAN DREAM AND THE INDUSTRIAL REVOLUTION (1976); PETER D'A. JONES, THE CONSUMER SOCIETY: A HISTORY OF AMERICAN CAPITALISM 100 (1965); JOHN MICKEL WILLIAMS, OUR RURAL HERITAGE 83 (1925).
158. See KINGDON, supra note 77, at 150 (describing the need for a viable alternative before government acts).
159. See ESKRIDGE & FRICKEY, supra note 7, at 2-3 (describing political protests as inspiring introduction of the civil rights bill).
160. See id. at 8-9 (describing how the civil rights bill was delayed for the Kennedy tax cut bill).
161. See id. at 20-22 (describing negotiations between Senators Humphrey and Dirksen).
162. See CHARLES & BARBARA WHALEN, THE LONGEST DEBATE: A LEGISLATIVE HISTORY OF THE 1964 CIVIL RIGHTS ACT 93 (1985) ("'[S]taff people on the Judiciary Committee participated in redrafting this bill, [and] duly constituted and appointed and confirmed people in the Department of Justice helped write the bill, the same general people who often help in writing difficult and technical bills which are considered by the Judiciary Committee.'") (second alteration in original) (quoting William McCulloch, ranking member of the House Judiciary Committee).
163. See ESKRIDGE & FRICKEY, supra note 7, at 14-15 (explaining that Justice Department attorneys prepared the briefing book and stood by for assistance).
164. See Easterbrook, supra note 3, at 17 ("Most statutes are interest-group compromises only in part, and the question is, 'Which part?' . . . A court sensitive to these things must start with the bargaining behind the statute but cannot stop there. This is not the place, though, for a map of the journey it must take.").
165. See WILLIAM P. BROWNE, POLITICS, PROGRAMS, AND BUREAUCRATS 161 (1980) ("The person who occupies the White House is not the 'civics book president' exerting personal influence on a vast array of public programs. Any president's influence is limited to a few key programs. . . . Chief executives accept most programs on face value and approve them just as they were developed and submitted by bureaus.").
166. See id.
167. See Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM. L. REV. 573, 586 (1984) ("As Presidents and political scientists are fond of remarking, the White House does not control policymaking in the executive departments. The President and a few hundred political appointees are at the apex of an enormous bureaucracy whose members enjoy tenure in their jobs, are subject to the constraints of statutes whose history and provisions they know in detail, and often have strong views of the public good in the field in which they work.") (citations omitted).
168. These belong to schedule C of the excepted service, noncareer senior executives, and the executive schedule. See KENNETH J. MEIER, POLITICS AND THE BUREAUCRACY: POLICYMAKING IN THE FOURTH BRANCH OF GOVERNMENT 38-39 (3d ed. 1993). Ninety percent of executive employees are part of the career civil service or another merit system.
169. See, e.g., William D. Berry, An Alternative to the Capture Theory of Regulation: The Case of State Public Utility Commissions, 28 AM. J. POL. SCI. 524 (1984); William D. Berry, Utility Regulation in the States: The Policy Effects of Professionalism and Salience to the Consumer, 23 AM. J. POL. SCI. 263 (1979).
170. See, e.g., William D. Berry, An Alternative to the Capture Theory of Regulation: The Case of State Public Utility Commissions, 28 AM. J. POL. SCI. 524 (1984); William D. Berry, Utility Regulation in the States: The Policy Effects of Professionalism and Salience to the Consumer, 23 AM. J. POL. SCI. 263 (1979).
171. See ALBERT P. BLAUSTEIN & CHARLES O. PORTER, THE AMERICAN LAWYER 269 (1954); LON L. FULLER, THE MORALITY OF LAW ch. 2 (rev. ed. 1964).
172. See ALBERT P. BLAUSTEIN & CHARLES O. PORTER, THE AMERICAN LAWYER 269 (1954); LON L. FULLER, THE MORALITY OF LAW ch. 2 (rev. ed. 1964).
173. See Cass R. Sunstein, Justice Scalia's Democratic Formalism, 107 YALE L.J. 529, 540-41 (1997) (arguing that abstract and a priori claims do not support a distinctive interpretive approach, "which must be defended by a set of pragmatic and empirical claims about various governmental institutions and how those institutions are likely to respond to different interpretive strategies. . . . The most basic point is that no context-free view of legal interpretation will make much sense.").
174. See Easterbrook, supra note 3, at 16 (distinguishing general interest laws, deserving a broad reading, from private interest laws, which should be narrowed); Richard A. Posner, Economics, Politics, and the Reading of Statutes and the Constitution, 49 U. CHI. L. REV. 263, 269-72 (1982) (dividing statutes between public interest (economically defined), public interest in other senses, public sentiment, and narrow interest group legislation).
175. See Easterbrook, supra note 3, at 14-15 (identifying two different styles of interpretation: one in which the court attributes a purpose to the statute; the other in which it treats the statute like a contract); see also Guardians Ass'n v. Civil Serv. Comm'n of N.Y., 463 U.S. 582, 641 n.12 (1983) (Stevens, J., dissenting) (recognizing that courts interpret some general, sweeping statutes "by developing legal rules on a case-by-case basis in the common-law tradition").
176. See William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 STAN. L. REV. 321, 348 (1990) (arguing that courts draw from multiple theories).
177. See Easterbrook, supra note 3, at 14 (describing interpretive style, in which "the judge starts with the statute, attributes to it certain purposes (evils to be addressed), and then brings within the statute the class of activities that produce the same or similar objectionable results. The statute's reach goes on expanding so long as there are unredressed objectionable results. The judge interprets omissions and vague terms in the statute as evidence of want of time or foresight and fills in these gaps with more in the same vein.").
178. Hart and Sacks recognized that policy analysis must be linked to text. See HART & SACKS, supra note 17, at 1411 ("The words of the statute are what the legislature has enacted as law, and all that it has the power to enact. Unenacted intentions or wishes cannot be given effect as law.").
179. See Siegel, supra note 5, at 1024 (claiming that background principles of administrative law are a dominant force in construing many administrative statutes).
180. See Jonathan R. Macey & Geoffrey P. Miller, The Canons of Statutory Construction and Judicial Preferences, 45 VAND. L. REV. 647, 659 (1992) ("When judges are certain about the policy consequences of their decisions, their confidence with respect to their predictive capabilities will enable them to decide cases on the basis of public policy.").
181. See, e.g., Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685, 1687-1701 (1976).
182. 471 U.S. 84 (1985).
183. Justice Marshall was arguably insufficiently sensitive to differences between judicial and statutory deadlines. Unlike a court-ordered filing date, the deadline in Locke was not directly communicated to the parties, who relied on erroneous information from an agency employee. See 471 U.S. at 89-90, n.7. Thus, the case for textual reading is weaker than for a court-ordered date; cf. Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 387 (1947) (Jackson, J., dissenting) ("To my mind, it is an absurdity to hold that every farmer who insures his crops knows what the Federal Register contains or even knows that there is such a publication. If he were to peruse this voluminous and dull publication as it is issued from time to time in order to make sure whether anything has been promulgated that affects his rights, he would never need crop insurance, for he would never get time to plant any crops.").
184. Locke, 471 U.S. at 93-94 (alterations in original) (quoting United States v. Boyle, 469 U.S. 241, 249 (1984)).
185. Id. at 120 (claiming that the December 31 filing was "entirely consistent with the statutory purposes").
186. Id. at 123.
187. Id. at 122-23 ("If the Bureau had issued regulations expressly stating that a December 31 filing would be considered timely . . . it is inconceivable that anyone would question the validity of its regulation.").
188. Id. at 125.
189. See Fried, supra note 87, at 39 (illustrating law's autonomy by reference to the law governing contract, tort, and restitution).
190. Such development is not necessarily confined to common law subjects. See Guardian's Ass'n, 463 U.S. at 641 n.12 (Stevens, J., dissenting) ("Congress phrased some older statutes in sweeping, general terms, expecting the federal courts to interpret them by developing legal rules on a case-by-case basis in the common-law tradition.").
191. 532 P.2d 1226 (Cal. 1975).
192. Section 1714 of the California Civil Code provides that: "Everyone is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself."
193. Li, 532 P.2d at 1243.
194. Id. at 1233 ("[I]t was the intention of the Legislature to announce and formulate existing common law principles and definitions . . . with a distinct view toward continuing judicial evolution.").
195. Id. at 1247 (Clark, J. dissenting) ("[T]he Legislature is the branch best able to effect transition from contributory negligence to comparative or some other doctrine of negligence.").
196. See RICHARD A. POSNER, THE FEDERAL COURTS: CRISIS AND REFORM 278 (1985) (approving interpretations of the Sherman Act that depart from statutory language); Frank H. Easterbrook, Statutes' Domains, 50 U. CHI. L. REV. 533, 544 (1983) ("The statute books are full of laws, of which the Sherman Act is a good example, that effectively authorize courts to create new lines of common law.").
197. See RICHARD A. POSNER, THE FEDERAL COURTS: CRISIS AND REFORM 278 (1985) (approving interpretations of the Sherman Act that depart from statutory language); Frank H. Easterbrook, Statutes' Domains, 50 U. CHI. L. REV. 533, 544 (1983) ("The statute books are full of laws, of which the Sherman Act is a good example, that effectively authorize courts to create new lines of common law.").
198. See Daniel A. Farber, Is the Supreme Court Irrelevant? Reflections on the Judicial Role in Environmental Law, 81 MINN. L. REV. 547, 547-48 (1997) ("During the past twenty years, the Court's decisions have not substantially affected environmental regulation."); id. at 549 n.7 (suggesting that similar tendency may occur in other technical areas such as tax or regulation of telecommunications and transportation).
199. 435 U.S. 519, 543 (1978) ("Absent constitutional constraints or extremely compelling circumstances . . . agencies 'should be free to fashion their own rules of procedure.'") (reviewing an agency decision to prepare an environmental impact statement).
200. See Farber, supra note 154, at 549 ("[T]he Court behaves almost as if it had deliberately undertaken to minimize its own influence on environmental law.").
201. See Macey & Miller, supra note 137, at 658 (claiming that most cases invoking plain meaning "are difficult and highly technical, and do not deal with subject areas that fall within the particular expertise of any of the justices").
202. See ESKRIDGE & FRICKEY, supra note 7, at 630-31 (exploring the admission by two nontextualists that in a complex area like bankruptcy, they might adhere to text and defer to those with more expertise: "Only after gaining greater familiarity and confidence with the bankruptcy code and the policy issues associated with it might we become more venturesome interpreters."); Robert K. Rasmussen, A Study of the Costs and Benefits of Textualism: The Supreme Court's Bankruptcy Cases, 71 WASH. U. L.Q. 535, 597 (1993) (presenting an argument for textualism in bankruptcy cases that recognizes that the Supreme Court cases "evince little knowledge about bankruptcy policy").
203. Cf. Paul L. Caron, Tax Myopia, or Mamas Don't Let Your Babies Grow Up to Be Tax Lawyers, 13 VA. TAX REV. 517, 525 (1994) (describing Supreme Court aversion to tax issues).
204. 485 U.S. 212 (1988).
205. Id. at 217-18.
206. The extrastatutory exception the court struck down in Arkansas Best had a long lineage. Created by the Supreme Court, see Corn Prods. Ref. Co. v. Comm'r, 350 U.S. 46 (1955) (denying capital asset treatment to business property), the exception underlay IRS rulings and congressional statutes. See Rev. Rul. 72-179, 1972-1 C.B. 57 (applying Corn Products); I.R.C. 1256(e)(2)(b) (1999) (statutory provision governing hedges predicated on assumption that business property is not a capital asset). By overturning this understanding, Arkansas Best created considerable confusion. See Edward Kleinbard & Suzanne F. Greenberg, Business Hedges After Arkansas Best, 43 TAX L. REV. 393, 393 (1988) ("[T]he Arkansas Best court has created substantial confusion as to the types of transactions that continue to qualify as hedges for tax purposes, and, accordingly, has left open the potential for serious tax whipsaws for both taxpayers and the Internal Revenue Service.").
207. See Posner, supra note 131, at 273 (claiming that it is "beyond the judicial competence to undertake" an inquiry into "how completely the [interest] group prevailed upon Congress to do its will").
208. See Easterbrook, supra note 3, at 15 (describing an interpretive approach that "treats the statute as a contract. [The judge] first identifies the contracting parties and then seeks to discover what they resolved and what they left unresolved . . . . A judge then implements the bargain as a faithful agent but without enthusiasm; asked to extend the scope of a back-room deal, he refuses unless the proof of the deal's scope is compelling."). Some scholars challenge the contract analogy. See, e.g., Mark L. Movsesian, Are Statutes Really "Legislative Bargains"? The Failure of the Contract Analogy in Statutory Interpretation, 76 N.C. L. REV. 1145 (1998). Whatever the ultimate merits of the analogy, the claim in this Article is relative, not absolute - that the contract analogy is most persuasive for items from the political community.
209. See Posner, supra note 16, at 817. Judge Posner later acknowledged that such reconstruction is quite difficult. See Richard A. Posner, The Jurisprudence of Skepticism, 86 MICH. L. REV. 827, 851 (1988).
210. There is disagreement over the extent to which the contract analogy permits the use of legislative history. Compare Stephen F. Ross & Daniel Tranen, The Modern Parol Evidence Rule and Its Implications for New Textualist Statutory Interpretation, 87 GEO. L.J. 195 (1998), with Movsesian, supra note 164.
211. In this sense, courts "discipline" the legislature. See Schacter, supra note 3, at 636-46.
212. 655 F.2d 951 (9th Cir. 1981).
213. Pub. L. No. 96-487, 94 Stat. 2371 (1980).
214. See No. 80-3374 (filed May 14, 1981), published in ESKRIDGE & FRICKEY, supra note 7, at 797-802.
215. See ESKRIDGE & FRICKEY, supra note 7, at 811-12.
216. See Mark H. Moore, What Sort of Ideas Become Public Ideas?, in THE POWER OF PUBLIC IDEAS 55, 79 (Robert B. Reich ed., 1990) ("[I]t is not clear reasoning or carefully developed and interpreted facts that make ideas convincing. Rather, ideas seem to become anchored in peoples's minds through illustrative anecdotes, simple diagrams and pictures, or connections with broad common-sense ideologies that define human nature and social responsibilities.").
217. See Llewellyn, supra note 76, at 24 (describing the public perspective as "the combination of intense loyalty to a symbol with total emptiness of concrete content").
218. See Steven L. Winter, The Cognitive Dimension of the Agon Between Legal Power and Narrative Meaning, 87 MICH. L. REV. 2225, 2259-60 (1989) (arguing that narrative lacks the generality, non-reflexibility, and reliability necessary for an institutionalized discourse).
219. See Steven L. Winter, Transcendental Nonsense, Metaphoric Reasoning, and the Cognitive Stakes for Law, 137 U. PA. L. REV. 1105, 1150-51 (1989) (describing the radial and container metaphors underlying speech).
220. See generally JOSEPH GOLDSTEIN, THE INTELLIGIBLE CONSTITUTION: THE SUPREME COURT'S OBLIGATION TO MAINTAIN THE CONSTITUTION AS SOMETHING WE THE PEOPLE CAN UNDERSTAND (1992).
221. M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819).
222. See Philip B. Kurland, Curia Regis: Some Comments on the Divine Right of Kings and Courts "To Say What the Law Is," 23 ARIZ. L. REV. 581, 591 (1981) (observing that whenever a judge quotes Marshall's language in M'Culloch, "you can be sure that the Court will be throwing the constitutional text, its history, and its structure to the winds in reaching its conclusion").
223. Cf. RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 134-36 (1978) (arguing that some constitutional clauses appeal to moral concepts while others lay down particular conceptions).
224. See MALCOLM M. FEELEY & EDWARD L. RUBIN, JUDICIAL POLICY MAKING AND THE MODERN STATE 219 (1998) ("Judges prefer to rely on legal texts; they will generally abandon those texts, and make decisions designed to achieve beneficial results, only when they have some assurance that the beliefs that motivate them are strongly felt and widely held, that is, that these beliefs are truly elements of social morality."); Pope, supra note 96, at 360 (urging a broad reading of "republican statutes" resulting from populist movements). Conversely, as Professor Schauer notes, textualism dominates cases lacking broad public interest. He claimed reliance on plain meaning in most Supreme Court cases in a recent term "should come as little surprise. For there was one factor that (to me) was present in every one of these cases: None of them was interesting. Not one. Compared to flag burning or affirmative action or separation of powers or political patronage, these cases struck me as real dogs." Schauer, supra note 3, at 247.
225. Cf. Llewellyn, supra note 76, at 24: Whereas the public not only know nothing of the real operation of the Constitution - they also care nothing about it. What difference whether income taxation rests on 'interpretation' or Amendment? What matter - to most - whether the 18th Amendment be on the books, and if on the books, whether it or a Volstead Act do the forbidding; whether New York has thirty-nine representatives, or fifty-two, or eighty-seven; whether Congress or the States regulate longshoremen's accident compensation; whether impeachment of judges calls for majority, two-thirds, three-fourths, or unanimous vote; whether 'to receive ambassadors' does or does not imply the power of refusing recognition to a foreign government?
226. 461 U.S. 574 (1983).
227. See Mayer G. Freed & Daniel D. Polsby, Race, Religion & Public Policy: Bob Jones University v. United States, 1983 SUP. CT. REV. 1, 2 (suggesting that "the Court was busy speaking to the press, and to posterity").
228. See I.R.C. § 501(c)(3) (2000) (exempting organizations "organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes").
229. See Freed & Polsby, supra note 183, at 5 (noting that the Court did not carefully parse statutory language but instead "wrote an opinion that . . . one encountered only on the opinion pages of newspapers, a case with an obvious outcome, dictated by clear and long-standing policy"). The amicus argued that discrimination was inconsistent with the word "charitable" in the statute. See Bob Jones, 461 U.S. at 586 ("[E]ntitlement to tax exemption depends on meeting certain common-law standards of charity."). That argument was by no means compelling. One could maintain that a charitable purpose was but one ground for tax exemption and that Bob Jones University could qualify by serving an educational or religious purpose.
230. 347 U.S. 483 (1954).
231. Bob Jones, 461 U.S. at 592-96.
232. See Robert M. Cover, Foreword, Nomos and Narrative, 97 HARV. L. REV. 4, 28 (1983) (arguing that the decision in Bob Jones was based on more than mere public policy).
233. See Stephen F. Ross, The Limited Relevance of Plain Meaning, 73 WASH. U. L.Q. 1057 (1995) (arguing that most noncriminal federal statutes "are not directed at ordinary citizen speakers of English, but at a small community of lawyers, regulators, and people subject to their specific regulations").
234. See THOMAS R. MARSHALL, PUBLIC OPINION AND THE SUPREME COURT 143-45 (1989) (describing evidence indicating that the public is ignorant of all but a few Supreme Court rulings).
235. See Easterbrook, supra note 3, at 17 (identifying private interest statutes by looking "for the indicia of rent-seeking legislation: limitations on new entry into the business, subsidies of one group by another, prohibitions of private contracting in response to the new statutory entitlements"); see also Eskridge, supra note 46, at 323-25 (describing how judicial response to statutes might vary depending upon whether costs and benefit are concentrated or distributed).
236. Political scientists have long considered the effect of the concentration of costs and benefits upon legislation. See JAMES Q. WILSON, POLITICAL ORGANIZATIONS 153 (1973); see also RANDALL B. RIPLEY & GRACE A. FRANKLIN, CONGRESS, THE BUREAUCRACY, AND PUBLIC POLICY 21-23, 25-26 (1987); DAVID J. VOLGER, THE POLITICS OF CONGRESS (1974) (describing patterns); Theodore J. Lowi, American Business, Public Policy, Case-Studies, and Political Theory, 16 WORLD POL. 677, 692-95, 703-15 (1964).
237. Political scientists have long considered the effect of the concentration of costs and benefits upon legislation. See JAMES Q. WILSON, POLITICAL ORGANIZATIONS 153 (1973); see also RANDALL B. RIPLEY & GRACE A. FRANKLIN, CONGRESS, THE BUREAUCRACY, AND PUBLIC POLICY 21-23, 25-26 (1987); DAVID J. VOLGER, THE POLITICS OF CONGRESS (1974) (describing patterns); Theodore J. Lowi, American Business, Public Policy, Case-Studies, and Political Theory, 16 WORLD POL. 677, 692-95, 703-15 (1964).
238. Political scientists have long considered the effect of the concentration of costs and benefits upon legislation. See JAMES Q. WILSON, POLITICAL ORGANIZATIONS 153 (1973); see also RANDALL B. RIPLEY & GRACE A. FRANKLIN, CONGRESS, THE BUREAUCRACY, AND PUBLIC POLICY 21-23, 25-26 (1987); DAVID J. VOLGER, THE POLITICS OF CONGRESS (1974) (describing patterns); Theodore J. Lowi, American Business, Public Policy, Case-Studies, and Political Theory, 16 WORLD POL. 677, 692-95, 703-15 (1964).
239. Political scientists have long considered the effect of the concentration of costs and benefits upon legislation. See JAMES Q. WILSON, POLITICAL ORGANIZATIONS 153 (1973); see also RANDALL B. RIPLEY & GRACE A. FRANKLIN, CONGRESS, THE BUREAUCRACY, AND PUBLIC POLICY 21-23, 25-26 (1987); DAVID J. VOLGER, THE POLITICS OF CONGRESS (1974) (describing patterns); Theodore J. Lowi, American Business, Public Policy, Case-Studies, and Political Theory, 16 WORLD POL. 677, 692-95, 703-15 (1964).
240. See Easterbrook, supra note 3, at 17 (identifying private interest laws by looking to the legislative process: who lobbied for the legislation and what deals were struck).
241. See DAVID R. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION 92 (1974) (politicians must produce results to appease organized interest groups). Other interests are more easily satisfied with mere statements. See id. at 132 ("[I]n a large class of legislative undertakings the electoral payment is for positions rather than for effects.").
242. See supra note 104 and accompanying text.
243. See RICHARD DAVIS, DECISIONS AND IMAGES: THE SUPREME COURT AND THE PRESS 73 (1994) (reporting that journalists find newsworthy those "[c]ases with potentially far-reaching implications in the larger social and political environment"); cf. Pope, supra note 96, at 361 (identifying republican statutes by widespread and serious public discussion, direct citizen action, such as social protest, and extensive activity by voluntary associations and social movements).
244. The filing of amicus briefs is an important factor in the granting of certiorari. See Gregory A. Caldeira & John R. Wright, Organized Interests and Agenda-Setting in the U.S. Supreme Court, 82 AM. POL. SCI. REV. 1109, 1122 (1988) (concluding that the filing of an amicus brief can increase the likelihood of review by 40-50%). "Through participation as amici, organized interests effectively communicate to the justices information about the array of forces at play in the litigation, who is at risk, and the number and variety of parties regarding the litigation as significant." Id. at 1123.
245. In this respect, Locke differs from Central States, Southeast & Southwest Areas Pension Fund v. Lady Baltimore Foods, Inc., 960 F.2d 1339 (7th Cir. 1992). In that case, Judge Posner disregarded a "slip of the pen" that required action "before January 12" when it was clear that members of Congress intended to convey a subsidy in the case before the court. Id. at 1346 (the "amendment was intended by every member of Congress who voted for it to exempt" the defendant). By contrast, the date enacted in Locke still permitted the benefit.
246. Brief of Amicus Curiae State of Nevada, United States v. Locke, 471 U.S. 84 (1985) (No. 83-1394).
247. Members of Congress spoke directly to the issue of whether the Act applied outside of Alaska. See ESKRIDGE & FRICKEY, supra note 7, at 801, 804 (quoting statements of Representatives Udall, Sieberling, and Weaver, and a "Dear Colleague" letter from Senator Melcher).
248. See Bob Jones, 461 U.S. 574, 595 (1983) ("Few social or political issues in our history have been more vigorously debated and more extensively ventilated than the issue of racial discrimination, particularly in education."). Furthermore, the issue was not purely policy or political. Determining the meaning of "charitable" required little knowledge of technical tax law, see Livingston, supra note 102, at 830 n.49 ("Bob Jones University was in many respects an atypical tax case, as it involved significant nontax policy questions and was largely devoid of tax 'context.'"), and the issue did not involve conferring a benefit on a concentrated group, so much as allocating the claims of two competing groups, racially discriminatory schools, and racial minorities.
249. See Freed & Polsby, supra note 183, at 1-2 (describing the "public controversy" surrounding the case). For editorials, see N.Y. TIMES, Jan. 12, 1982, at A14; Jan. 19, 1982, at A26; Feb. 5, 1982, at A38; and WASH. POST, Jan 12, 1982, at A16.
250. See Freed & Polsby, supra note 183, at 1-2 (describing the "public controversy" surrounding the case). For editorials, see N.Y. TIMES, Jan. 12, 1982, at A14; Jan. 19, 1982, at A26; Feb. 5, 1982, at A38; and WASH. POST, Jan 12, 1982, at A16.
251. See Freed & Polsby, supra note 183, at 1-2 (describing the "public controversy" surrounding the case). For editorials, see N.Y. TIMES, Jan. 12, 1982, at A14; Jan. 19, 1982, at A26; Feb. 5, 1982, at A38; and WASH. POST, Jan 12, 1982, at A16.
252. See Freed & Polsby, supra note 183, at 1-2 (describing the "public controversy" surrounding the case). For editorials, see N.Y. TIMES, Jan. 12, 1982, at A14; Jan. 19, 1982, at A26; Feb. 5, 1982, at A38; and WASH. POST, Jan 12, 1982, at A16.
253. See Briefs of Amicus Curiae The American Baptist Churches in the U.S.A., The American Civil Liberties Union, The American Jewish Committee, The Anti-Defamation League of B'nai B'rith, The Center for Law and Religious Freedom of the Christian Legal Society, The Church of God in Christ, Mennonite, The Church of God, The Church of Jesus Christ of Latter-Day Saints, William T. Coleman, Congressman Trent Lott, General Conference Mennonite Church, The Independent Sector, The International Human Rights Law Group, Laurence H. Tribe, Lawrence Lewy, The Lawyers' Committee for Civil Rights Under Law, The National Association for the Advancement of Colored People, The NAACP Legal Defense and Educational Fund, Inc., The National Association of Evangelicals, The National Association of Independent Schools, The National Committee for Amish Religious Freedom, The North Carolina Association of Black Lawyers, The National Jewish Commission on Law and Public Affairs, The United Church of Christ, Bernard Wolfman, Bob Jones Univ. v. United States, 461 U.S. 574, 595 (1983) (No. 81-1 and 81-3).
254. In the federal system, where most law is statutory, roughly 90% of published courts of appeals opinions are unanimous. See Harry T. Edwards, The Judicial Function and the Elusive Coal of Principled Decisionmaking, 1991 WIS. L. REV. 837, 856 (noting that in 1983-84, dissents were filed in 5.8% of the total cases decided by the D.C. Circuit (13% of cases decided by full opinion); in 1989-90, dissents were filed in 2.6% of the total cases (10% of cases decided by full opinion)).
255. Judge Edwards of the D.C. Circuit, for example, finds only 5-15% of his cases "very hard," by which he means involving "some significant measure of discretion." See Harry T. Edwards, The Role of a Judge in Modern Society: Some Reflections on Current Practice in Federal Appellate Adjudication, 32 CLEV. ST. L. REV. 385, 390 (1983-84).
256. See Daniel A. Farber, Do Theories of Statutory Interpretation Matter? A Case Study, 94 Nw. U. L. REV. 1409, 1432 (2000) (noting that Judges Posner and Easterbrook disagree with each other in only 1.1% of the cases).
257. For Justice Brennan, see, e.g., Mallard v. United States Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296 (1989); Communications Workers of Am. v. Beck, 487 U.S. 735 (1988); Honig v. Doe, 484 U.S. 305, 308 (1988); Int'l Paper v. Ouelette, 479 U.S. 481, 500 (1987) (Brennan, J., dissenting).
258. For Justice Scalia, see, e.g., Eli Lilly & Co. v. Medtronic, Inc., 496 U.S. 661, 669-74 (1990) (appealing to purpose of statute); Blanchard v. Bergeron, 489 U.S. 87, 100 (1989) (seeking to "develop an interpretation of the statute that is reasonable, consistent and faithful to its apparent purpose"); United States v. Fausto, 484 U.S. 439, 444 (1988) (interpreting the Civil Service Reform Act by reference to its "purpose"); see also United States v. X-Citement Video, Inc., 513 U.S. 64, 82 (1994) ("I have been willing, in the case of civil statutes, to acknowledge a doctrine of 'scrivener's error' that permits a court to give an unusual (though not unheard-of) meaning to a word which, if given its normal meaning, would produce an absurd and arguably unconstitutional result."); Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J. 511, 515 (acknowledging that policy evaluation is "part of the traditional judicial tool-kit").
259. This model is similar to Ronald Dworkin's view that statutory interpretation is like a chain novel in which legislature and judge write different chapters. Ronald Dworkin, Law as Interpretation, 60 TEX. L. REV. 541 (1982) ("Suppose that a group of novelists is engaged for a particular project and that they draw lots to determine the order of play. The lowest number writes the opening chapter of a novel, which he or she then sends to the next number, with the understanding that he is adding a chapter to that novel rather than beginning a new one, and then sends the two chapters to the next number and so on."); see also RONALD DWORKIN, LAW'S EMPIRE 313 (1986) (explaining that a judge interpreting statutes "will treat Congress as an author earlier than himself in the chain of law, though an author with special powers and responsibilities different from his own [as a judge], and he will see his own role as fundamentally the creative one of a partner continuing to develop, in what he believes is the best way, the statutory scheme Congress began. He will ask himself which reading of the act . . . shows the political history including and surrounding that statute in the better light. His view of how the statute should be read will in part depend on what certain congressmen said when debating it. But it will also depend on the best answer to political questions: how far Congress should defer to public opinion in matters of this sort, for example.").
260. This model is similar to Ronald Dworkin's view that statutory interpretation is like a chain novel in which legislature and judge write different chapters. Ronald Dworkin, Law as Interpretation, 60 TEX. L. REV. 541 (1982) ("Suppose that a group of novelists is engaged for a particular project and that they draw lots to determine the order of play. The lowest number writes the opening chapter of a novel, which he or she then sends to the next number, with the understanding that he is adding a chapter to that novel rather than beginning a new one, and then sends the two chapters to the next number and so on."); see also RONALD DWORKIN, LAW'S EMPIRE 313 (1986) (explaining that a judge interpreting statutes "will treat Congress as an author earlier than himself in the chain of law, though an author with special powers and responsibilities different from his own [as a judge], and he will see his own role as fundamentally the creative one of a partner continuing to develop, in what he believes is the best way, the statutory scheme Congress began. He will ask himself which reading of the act . . . shows the political history including and surrounding that statute in the better light. His view of how the statute should be read will in part depend on what certain congressmen said when debating it. But it will also depend on the best answer to political questions: how far Congress should defer to public opinion in matters of this sort, for example.").
261. See Eskridge & Frickey, supra note 5, at 352 (describing funnel of abstraction); see also ESKRIDGE, supra note 3, at 56 (describing a slightly different version of funnel).
262. See Eskridge & Frickey, supra note 5, at 353 ("For example, . . . the interpreter will value more highly a good argument based on the statutory text than a conflicting and equally strong argument based upon the statutory purpose.").
263. See id. at 352 ("[W]hile an apparently clear text. . . will create insuperable doubts for a contrary interpretation if the other evidence reinforces it . . . , an apparently clear text may yield if other considerations cut against it.").
264. 474 U.S. 361 (1986).
265. 12 U.S.C. § 1841(c) (1970).
266. See ESKRIDGE, supra note 3, at 1542 ("When the statutory text is reasonably determinate and reflects historically recent legislative deliberation, my cautious model of dynamic interpretation would not counsel further evolution of the statute to reflect changed circumstances of which the legislature was generally aware.").
267. 490 U.S. 504 (1989).
268. At the time, Federal Rule of Evidence 609(a) provided: For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative effect of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment. The case also involved Federal Rule of Evidence 403. See Bock Laundry, 490 U.S. at 524-26.
269. Such a rule would likely have been unconstitutional, in which case, no party, even a criminal defendant, would have been entitled to exclude a felony conviction.
270. See ESKRIDGE, supra note 3, at 68 ("Interestingly not contested [in Bock Laundry] were the propositions that, as written, Rule 609 . . . was unconstitutional, that this was the result of a drafting error, and that the Court should rewrite the rule.").
271. Scalia did claim that his rewrite did "the least violence to the text." Bock Laundry, 490 U.S. at 529.
272. See id. at 527 (Scalia, J., concurring) ("I think it entirely appropriate to consult all public materials, including the background of Rule 609(a)(1) and the legislative history of its adoption, to verify what seems to us an unthinkable disposition (civil defendants but not civil plaintiffs receive the benefit of weighing prejudice) was indeed unthought of, and thus to justify a departure from the ordinary meaning of the word 'defendant' in the Rule.").
273. See Eskridge, supra note 15, at 437 (describing Bock Laundry as an example of practical reasoning, i.e., accepting most of the text's policy judgments and unprincipled distinctions while rejecting others); see also 490 U.S. at 430-31 (finding text not helpful).
274. See Bock Laundry, 490 U.S. at 524 (concluding that Congress "intended that only the accused in a criminal case should be protected from unfair prejudice by the balance test set out in Rule 609(a)(1)").
275. See id. (Blackmun, J., dissenting) ("[T]he reasoning of the Report suggests that by 'prejudice to the defendant,' Congress meant 'prejudice to a party.'").
276. 458 U.S. 564 (1982).
277. The statute provided that "[e]very master or owner who refuses or neglects to make payments in the manner hereinbefore mentioned without sufficient cause shall pay to the seaman a sum equal to the two days' pay for each and every day during which payment is delayed beyond the respective periods." 46 U.S.C. § 596 (1983).
278. See Griffin, 458 U.S. at 574 ("Congress intended the statute to mean exactly what its plain language says.").
279. See id. at 577 n.1 (Stevens, J., dissenting) (quoting Holy Trinity Church v. United States, 143 U.S. 457 (1892)).
280. See Eskridge & Frickey, supra note 5, at 339 n.69 ("In the end, one of us is comfortable with the outcome in Griffin. The other is uncomfortable, but leaning in that direction as well.").
281. Compare Eskridge & Frickey, supra note 5, at 339 n.69 ("[I]f one concludes that the award in Griffin will deter maritime system-wide abuse of a relatively defenseless class of employees, that result seems quite plausible."), with ESKRIDGE, supra note 3, at 201 ("I am now inclined to agree with Justice John Paul Stevens.").
282. Professors Eskridge and Frickey recognize this difficulty in Griffin. See Eskridge & Frickey, supra note 5, at 349 (explaining that the Court's result was supported by the "relatively clear statutory language, the original legislative intent, the overall statutory purpose, and (to some extent) the reasonableness of the interpretation.").
283. For a similar argument, see Nicholas S. Zeppos, Judicial Candor and Statutory Interpretation, 78 GEO. L.J. 353, 408 (1989) ("Eskridge's analysis of [Weber and Dimension] as involving polar opposites in a dynamic model is open to question. The statute at issue in Dimension looks at least as indeterminate as that in Weber. Why argue against dynamic interpretation in Dimension but for judicial updating in Weber?").
284. See KARL LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS 60 (1960); RICHARD A. POSNER, PROBLEMS IN JURISPRUDENCE 100 (1990) ("Thinking like a lawyer" is "neither method nor doctrine, but a repertoire of acceptable argument and a feel for the degree and character of doctrinal stability, or more generally, for the contours of a professional culture.").
285. See KARL LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS 60 (1960); RICHARD A. POSNER, PROBLEMS IN JURISPRUDENCE 100 (1990) ("Thinking like a lawyer" is "neither method nor doctrine, but a repertoire of acceptable argument and a feel for the degree and character of doctrinal stability, or more generally, for the contours of a professional culture.").
286. See LEE EPSTEIN & JACK KNIGHT, THE CHOICES JUSTICES MAKE 149 (1998) (citing an empirical study finding that in nearly 60% of cases, a justice makes some comment about the preference and likely actions of other government actors); DAVIS, supra note 196, at 172 (reporting that over 60% of Supreme Court press corps believe that Congress or White House reaction is at a least a "somewhat important factor" in the justices' decision-making process). Even textualist judges consider the reactions of other branches. See United States v. Taylor, 487 U.S. 326, 346 (1988) (Scalia, J., concurring in part) (arguing that statutes should be interpreted "in a fashion which fosters that democratic process"); Schacter, supra note 3, at 645 (arguing that Justice Scalia and Judge Easterbrook's textualism attempts to foster democracy by encouraging better drafting and narrowing statutory law).
287. For example, when the Court accepted a case to reconsider Roe v. Wade, 410 U.S. 113 (1973), it was swamped with letters and public protests. See EDWARD LAZARUS, CLOSED CHAMBERS 373-74 (1998).
288. Justices regard some cases as trivial. See BERNARD SCHWARTZ, DECISION: How THE SUPREME COURT DECIDES CASES 113 (1996) (stating that Justice Stewart called them "dogs" or "nothing cases"); BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN 148 (1979) (noting that Justice Harlan called such cases "peewees"); id. at 425 (claiming that Justice Brennan had a scatological name for them); id. at 490 (relating that Justice Rehnquist had "nothing but contempt" for them).
289. Justices regard some cases as trivial. See BERNARD SCHWARTZ, DECISION: How THE SUPREME COURT DECIDES CASES 113 (1996) (stating that Justice Stewart called them "dogs" or "nothing cases"); BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN 148 (1979) (noting that Justice Harlan called such cases "peewees"); id. at 425 (claiming that Justice Brennan had a scatological name for them); id. at 490 (relating that Justice Rehnquist had "nothing but contempt" for them).
290. See DAVIS, supra note 196, at 172 (reporting that over half of the Supreme Court press corps believes that the legal community's potential reaction is at least "a somewhat important factor" in the Justices' decisionmaking process).
291. See id. at 147 (describing the effect of amicus briefs on grants of certiorari).
292. See id. (reporting that nearly half of the Supreme Court press corps believe that public opinion polls and press coverage of court are "somewhat important factors" in the Justices' decisionmaking process).
293. See Frickey, supra note 9, at 245 ("Weber was a very visible and important decision. In 1979, the affirmative action issue was not just on the minds of many judges, attorneys, legislators, academics, and other opinion leaders, it was a matter of general conversation."). The Court received over 25 amicus briefs from employers, employees, and civil rights groups. See Briefs of Amicus Curiae The Affirmative Action Coordinating Center; The American Civil Liberties Union; The American Federation of State, County and Municipal Employees; The American G.I. Forum; The Asian American Legal Defense and Educational Fund; The California Correctional Officers Association; The California Fair Employment Practice Commission; The Chicago Lawyers Committee for Civil Rights Under Law; The City of Los Angeles; The Committee on Academic Nondiscrimination and Integrity; The Congressional Black Caucus; The Equal Employment Advisory Council; The Government Contract Employees Association; The Lawyers' Committee for Civil Rights Under Law; The National Association for the Advancement of Colored People; The NAACP Legal Defense and Educational Fund, Inc.; The National Coordinating Committee for Trade Union Action and Democracy; The National Medical Association; The National Puerto Rican Coalition; The National Union of Hospital and Health Care Employees; The Pacific Legal Foundation; The Honorable Patricia Schroeder; The United Electrical, Radio and Machine Workers of America; The Washington Legal Foundation; The Southeastern Legal Foundation; The Women's Equal Rights Legal Defense Fund; United Steelworkers of Am. v. Weber, 443 U.S. 193 (1979) (Nos. 78-432, 78-435, 78-436).
294. See Thomas R. Hensley & Scott P. Johnson, Unanimity on the Rehnquist Court, 31 AKRON L. REV. 387, 404 (1998) ("While 51% of non-civil liberties cases were unanimous, only 27% of civil liberties cases unified the Justices."); see also C. HERMAN PRITCHETT, THE ROOSEVELT COURT: A STUDY IN JUDICIAL POLITICS AND VALUE, 1937-1947, at 25-31 (1948) (demonstrating that attitudes are a critical determinant of civil liberties cases), supra notes 104, 195 and accompanying text.
295. See Thomas R. Hensley & Scott P. Johnson, Unanimity on the Rehnquist Court, 31 AKRON L. REV. 387, 404 (1998) ("While 51% of non-civil liberties cases were unanimous, only 27% of civil liberties cases unified the Justices."); see also C. HERMAN PRITCHETT, THE ROOSEVELT COURT: A STUDY IN JUDICIAL POLITICS AND VALUE, 1937-1947, at 25-31 (1948) (demonstrating that attitudes are a critical determinant of civil liberties cases), supra notes 104, 195 and accompanying text.
296. See ESKRIDGE, supra note 3, at 1516; Zeppos, supra note 232, at 408 ("Perhaps the reason that Eskridge [argues for dynamic interpretation in Weber but not in Dimension Financial is that Eskridge] (like myself) cares more about affirmative action than he does about interstate banking."). This public quality may have persuaded Justice Marshall to join the majority, notwithstanding his textualist opinions in Locke and Arkansas Best. See supra text accompanying note 232; see also Frederick Schauer, Prediction and Particularity, 78 B.U. L. REV. 773, 785 n.32 (1998) ("[T]he Justices of the Supreme Court, like many of the rest of us, likely have stronger policy preferences about abortion, affirmative action, prayer in the schools, pornography, gay rights, and the rights of those accused of crimes than about many questions of common law or statutory interpretation. . . . That being the case, the empirical analysis might conclude that legal variables . . . would have more explanatory and predictive power for non-Supreme Court constitutional cases than they do for that quite limited set.").
297. See WILLIAM N. ESKRIDGE, JR. & PHILIP P. FRICKEY, TEACHERS' MANUAL FOR CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 21 (1995) (criticizing both Brennan and Rehnquist for "taking one broad purpose and running with it"); id. (stating that most of the legislative history cited by Brennan is equally susceptible to a color blind reading); id. at 22 (noting that "at least most of" the legislative history quoted by Rehnquist has "little to do with the issue in Weber").
298. Weber, 443 U.S. at 202 (quoting remarks of Senator Humphrey).
299. See id. at 254 (Rehnquist, J., dissenting) ("For if the spirit of the Act eludes the cold words of the statute itself, it rings out with unmistakable clarity in the words of the elected representatives who made the Act law. It is equality.").
300. See Hensley & Johnson, supra note 241, at 399 ("While 44% of routine cases were unanimous, the Court achieved unanimity in only 16% of important cases."). Routine issues were those not reported by the New York Times or the United States Supreme Court Reports: Lawyers Edition. See THOMAS HENSLEY ET AL., THE CHANGING CONSTITUTION: CONSTITUTIONAL RIGHTS AND LIBERTIES 864 (1997); see also Edward N. Beiser, The Rhode Island Supreme Court: A Well Integrated Political System, 8 LAW & SOC'Y REV. 167, 175 (1973). Quick decisions also tend to be unanimous. See Hensley & Johnson, supra note 241, at 397 ("[W]hen the Justices spent less than three months between oral argument and the decision date, the Court ruled unanimously in 55% of its decisions. Conversely, when the Justices devoted more than three months to a case, the Court resulted in unanimity only 23% of the time.").
301. See Hensley & Johnson, supra note 241, at 399 ("While 44% of routine cases were unanimous, the Court achieved unanimity in only 16% of important cases."). Routine issues were those not reported by the New York Times or the United States Supreme Court Reports: Lawyers Edition. See THOMAS HENSLEY ET AL., THE CHANGING CONSTITUTION: CONSTITUTIONAL RIGHTS AND LIBERTIES 864 (1997); see also Edward N. Beiser, The Rhode Island Supreme Court: A Well Integrated Political System, 8 LAW & SOC'Y REV. 167, 175 (1973). Quick decisions also tend to be unanimous. See Hensley & Johnson, supra note 241, at 397 ("[W]hen the Justices spent less than three months between oral argument and the decision date, the Court ruled unanimously in 55% of its decisions. Conversely, when the Justices devoted more than three months to a case, the Court resulted in unanimity only 23% of the time.").
302. See Hensley & Johnson, supra note 241, at 399 ("While 44% of routine cases were unanimous, the Court achieved unanimity in only 16% of important cases."). Routine issues were those not reported by the New York Times or the United States Supreme Court Reports: Lawyers Edition. See THOMAS HENSLEY ET AL., THE CHANGING CONSTITUTION: CONSTITUTIONAL RIGHTS AND LIBERTIES 864 (1997); see also Edward N. Beiser, The Rhode Island Supreme Court: A Well Integrated Political System, 8 LAW & SOC'Y REV. 167, 175 (1973). Quick decisions also tend to be unanimous. See Hensley & Johnson, supra note 241, at 397 ("[W]hen the Justices spent less than three months between oral argument and the decision date, the Court ruled unanimously in 55% of its decisions. Conversely, when the Justices devoted more than three months to a case, the Court resulted in unanimity only 23% of the time.").
303. The demand deposit language was added to exempt savings banks and industrial banks. See S. REP. No. 89-1179, at 12 (1966). The requirement that banks make commercial loans was added to remove a single institution. See 116 CONG. REC. 25,848 (1970) (amendment by Senator Brooke to remove the Boston Safe Deposit and Trust Co.).
304. The demand deposit language was added to exempt savings banks and industrial banks. See S. REP. No. 89-1179, at 12 (1966). The requirement that banks make commercial loans was added to remove a single institution. See 116 CONG. REC. 25,848 (1970) (amendment by Senator Brooke to remove the Boston Safe Deposit and Trust Co.).
305. See 116 CONG. REC. 25,848 (1970) (amendment by Senator Brooke).
306. See, e.g., Steve Blakely, Non-Bank Bank Controversy Blocks Key industry Legislation, 44 CONG. Q. WKLY. REP. 2143 (1986); Leon E. Wynter, Congress Is Squeezed on 'Nonbank' Issue, Growing Numbers of Firms Seek Market Entry, WALL ST. J., Mar. 12, 1986, at A6.
307. See, e.g., Steve Blakely, Non-Bank Bank Controversy Blocks Key industry Legislation, 44 CONG. Q. WKLY. REP. 2143 (1986); Leon E. Wynter, Congress Is Squeezed on 'Nonbank' Issue, Growing Numbers of Firms Seek Market Entry, WALL ST. J., Mar. 12, 1986, at A6.
308. See Briefs of Amicus Curiae Independent Bankers Association of America, Sears, Roebuck and Co., Bd. of Governors v. Dimension Fin. Corp., 474 U.S. 361 (1986) (No. 84-1274).
309. Green v. Bock Laundry Mach. Co., 490 U.S. 504, 510 (1989) ("No matter how plain the text of the Rule may be, we cannot accept an interpretation that would deny a civil plaintiff the same right to impeach an adversary's testimony that it grants to a civil defendant.").
310. See H.R. REP. No. 93-650, at 11 (1973).
311. See id.; see also 120 CONG. REC. 37,076, 37,083 (1974). The conference agreement compromised by admitting crimes involving veracity and felony convictions for which the probative value of admission exceeded the prejudicial effect to the defendant.
312. See 490 U.S. at 504.
313. See FED. R. EVID. 609(a)(1), (2) (adopted Dec. 1, 1990).
314. See Brief of Amici Curiae Commonwealth of Pennsylvania et al., Green v. Bock Laundry Mach. Co., 490 U.S. 504 (1989) (No. 87-1816).
315. See Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982) (describing the provision as "'designed to prevent, by its coercive effect, arbitrary refusals to pay wages, and thus to induce prompt payment when payment is possible'") (quoting Collie v. Fergusson, 281 U.S. 52 (1930)).
316. See id. at 576 ("It is probably true that Congress did not precisely envision the grossness of the difference in this case between the actual wages withheld and the amount of the award required by the statute.").
317. See id. at 578 n.1 (Stevens, J., dissenting) (noting the importance of avoiding absurd results).
318. See id. at 590 (Stevens, J., dissenting).
319. The purpose of the legislation generally was "the amelioration of the condition of the American seamen," and the wage provision was "designed to secure the promptest possible penalty." H.R. REP. NO. 55-1657, at 2-3 (1898); see also S. REP. No. 54-832, at 2 (1896).
320. The purpose of the legislation generally was "the amelioration of the condition of the American seamen," and the wage provision was "designed to secure the promptest possible penalty." H.R. REP. NO. 55-1657, at 2-3 (1898); see also S. REP. No. 54-832, at 2 (1896).
321. See ESKRIDGE, supra note 3, at 201 (noting that courts "have routinely imported equitable tolling exceptions" into statutes of limitations).
322. See Griffin, 458 U.S. at 580 (Stevens, J., dissenting) (citing Pacific Mail S.S. Co. v. Schmidt, 241 U.S. 245 (1916)).
323. See George A. Costello, Average Voting Members and Other "Benign Fictions": The Relative Reliability of Committee Reports, Floor Debates, and Other Sources of Legislative History, 1990 DUKE L.J. 39, 41-42 ("Over the years, courts looking to legislative history to explain statutory meaning developed a rough hierarchy of interpretational weight that should be given to the different elements of legislative history. Traditionally - and as a general matter - committee report explanations are considered more persuasive and reliable than statements made during floor debates or during hearings on a bill. Within the category of floor debates, statement of sponsors and explanations by floor managers usually are accorded the most weight, and statements by other committee members are next in importance. Statements by Members not associated with sponsorship or committee consideration of a bill are accorded little weight and statements by bill opponents generally are discounted or considered unreliable. Committee hearings are generally treated the same way as floor debates: Statements by sponsors or drafters are most persuasive, views of other witnesses seldom carry much weight, and fears of opponents usually are dismissed as unreliable."); Eskridge, supra note 26, at 636-40 (describing the recent judicial hierarchy of legislative history materials (drawing from the 1980s): committee reports, sponsor statements, rejected proposals, floor and hearing colloquy, views of nonlegislator drafters, legislative inaction, and subsequent legislative history); see also ESKRIDGE, supra note 3, at 222.
324. See Carro & Brann, supra note 66, at 291 (noting that from 1938-1979, 45% of Supreme Court legislative history citations were to House or Senate committee reports); Koby, supra note 66, at 390 (finding the same pattern).
325. See 2A SUTHERLAND STAT. CONST. § 48.06 (Norman J. Singer ed., 5th ed. 2000) ("Committee reports represent the most persuasive indicia of congressional intent in enacting a statute."); Reed Dickerson, Statutory Interpretation: Dipping Into Legislative History, 11 HOFSTRA L. REV. 1125, 1131-32 (1983) (explaining that after commission recommendations, "[c]ommittee reports are the second most reliable kind of legislative history"); Wald, supra note 4, at 201 ("Committee reports indeed remain the most widely accepted indicators of Congress's intent.").
326. See 2A SUTHERLAND STAT. CONST. § 48.06 (Norman J. Singer ed., 5th ed. 2000) ("Committee reports represent the most persuasive indicia of congressional intent in enacting a statute."); Reed Dickerson, Statutory Interpretation: Dipping Into Legislative History, 11 HOFSTRA L. REV. 1125, 1131-32 (1983) (explaining that after commission recommendations, "[c]ommittee reports are the second most reliable kind of legislative history"); Wald, supra note 4, at 201 ("Committee reports indeed remain the most widely accepted indicators of Congress's intent.").
327. A longstanding rule bars consideration of member statements. See 2A SUTHERLAND STAT. CONST. § 48.13 ("Statements by individual members of the legislature about the meaning of provisions in a bill . . . are generally held not to be admissible as aids in construing the statute."). This rule has eroded as courts increasingly consider floor statements, see id. (describing increased willingness to consider statements made in legislative debates), and hearing testimony, see Wald, supra note 4, at 202 ("The worth of hearings - selectively used - seems to be increasing. . . . In many cases the best explanation of what the legislation is about comes from the executive department or outside witnesses at the hearings."); see also Eskridge, supra note 26, at 636-40.
328. See Note, A Re-Evaluation of the Use of Legislative History in the Federal Courts, 52 COLUM. L. REV. 125, 129-30 (1952) (explaining that courts generally refuse to admit statements by individuals, but give weight to statements by drafters and legislative sponsors).
329. See Jane S. Schacter, The Pursuit of "Popular Intent": Interpretative Dilemmas in Direct Democracy, 105 YALE L.J. 107, 122 (1995) (remarking that only 2% of courts interpreting statutes adopted by popular initiative considered media reporting or advertising relevant).
330. See Zuber v. Allen, 396 U.S. 168, 186 (1969) ("A committee report represents the considered and collective understanding of those Congressmen involved in drafting and studying proposed legislation. Floor debates reflect at best the understanding of individual Congressmen. It would take extensive and thoughtful debate to detract from the plain thrust of a committee report."); see also 2A SUTHERLAND STAT. CONST. § 48.06 ("[M]ost members of Congress are likely to consult the committee report in order to gain an understanding of the purpose and effect of a bill before they cast their votes."); Eskridge, supra note 26, at 638 (suggesting that sponsor statements receive weight because sponsors "are the Members of Congress most likely to know what the proposed legislation is all about, and other Members can be expected to pay special heed to their characterizations of the legislation").
331. Justice Antonin Scalia and Judge Kozinski both recognize this fact. See Wallace v. Christensen, 802 F.2d 1539, 1560 (9th Cir. 1986) (Kozinski, J.) ("Reports are usually written by staff or lobbyists, not legislators; few if any legislators read the reports."); Hirschey v. FERC, 777 F.2d 1, 7-8 (D.C. Cir. 1985) (Scalia, J., concurring) ("I frankly doubt that it is ever reasonable to assume that the details, as opposed to the broad outlines of purpose, set forth in a committee report come to the attention of, much less are approved by, the house which enacts the committee's bill."). This recognition may underlie the recent willingness to consider floor statements, which at least reflect the intent of actual legislators. Indeed, Justice Scalia's argument that legislators do not read committee reports relied upon a colloquy on the Senate floor. See Hirschey, 77 F.2d at 7 n.1. The increasing use of floor statements suggests that the theory for using legislative history might be shifting from constructive to actual intent. The problem with relying on actual intent is that floor statements reflect only the beliefs of one person, not the entire chamber.
332. For legislation originating from an outside commission, the accompanying description is most important. See Dickerson, supra note 266, at 1130-31 (explaining that reports of official bodies charged with finding legislative solutions are the most reliable type of legislative history); 2A SUTHERLAND STAT. CONST § 48.09 (Norman J. Singer ed., 5th ed. 1992) (describing the well-settled rule that a report of a commission on a revision of statutory law is evidence of legislative intent and that such report is entitled to greater weight than the report of a standing committee). Reporters' notes for uniform laws, for example, receive great weight. See id. § 48.11 ("Official commentary on the Uniform Commercial Code has been cited as 'powerful dicta' and 'a most appropriate source' of law."). Even Justice Scalia relies on advisory committee notes. See Hohn v. United States, 524 U.S. 236, 255 (1998) (Scalia, J., dissenting) (relying on advisory committee note for meaning of federal rule of appellate procedure); United States v. Owens, 484 U.S. 554 (1988) (relying on advisory committee note for meaning of federal rule of evidence).
333. See 2A SUTHERLAND STAT. CONST., supra note 266, § 48.19 (remarking that explanations and informative materials on a proposed initiative are considered relevant legislative history for purposes of its construction after enactment).
334. See Schacter, supra note 269, at 130 ("Put simply, the hierarchy of interpretive sources that courts consult in the asserted service of locating popular intent is roughly inverse to the hierarchy of informational sources that voters consult most regularly in ballot campaigns.").
335. See Carro & Brann, supra note 66, at 291 (showing that from 1938-1979, 2% of Supreme Court legislative history citations were to House or Senate conference reports).
336. See Costello, supra note 264, at 47-50 (ranking conference committee action and reports below committee reports in hierarchy of materials).
337. See 2A SUTHERLAND STAT. CONST. § 48.06 (explaining that committee reports discussing previously enacted statutes are "'entitled to some consideration as a secondarily authoritative expression of expert opinion'") (quoting Bobsee Corp. v. United States, 411 F.2d 469 (5th Cir. 1969)). For example, in interpreting tax legislation, courts regularly examine the General Explanation prepared by staff of the Joint Committee on Taxation after enactment. See Michael Livingston, What's Blue and White and Not Quite as Good as a Committee Report: General Explanations and the Role of "Subsequent" Tax Legislative History, 11 AM. J. TAX POL'Y 91, 103 (1994) ("[C]ourts have almost uniformly been willing to consult the Blue Book.").
338. See 2A SUTHERLAND STAT. CONST. § 48.06 (explaining that committee reports discussing previously enacted statutes are "'entitled to some consideration as a secondarily authoritative expression of expert opinion'") (quoting Bobsee Corp. v. United States, 411 F.2d 469 (5th Cir. 1969)). For example, in interpreting tax legislation, courts regularly examine the General Explanation prepared by staff of the Joint Committee on Taxation after enactment. See Michael Livingston, What's Blue and White and Not Quite as Good as a Committee Report: General Explanations and the Role of "Subsequent" Tax Legislative History, 11 AM. J. TAX POL'Y 91, 103 (1994) ("[C]ourts have almost uniformly been willing to consult the Blue Book.").
339. See SUTHERLAND STAT. CONST. § 48.16 ("In construing a statute the courts refuse to consider testimony about the intent of the legislature by members of the legislature which enacted it."); see also City of Spokane v. State, 89 P.2d. 826, 828-29 (Wash. 1939) (holding legislator affidavits inadmissible on legislative intent); cf. Western Air Lines v. Bd. of Equalization, 480 U.S. 123, 130 n.* (1987) (refusing to consider lobbyist affidavit). Another example of judicial willingness to examine materials not seen by the enacting legislators is Kosak v. United States, 465 U.S. 848 (1984), in which the Supreme Court relied upon an internal Department of Justice memorandum never introduced into the legislative record. Id. at 857 n.14, 863 (Stevens, J., dissenting) ("There is no indication that any Congressman ever heard of the document or knew that it even existed."). See generally Note, The Value of Nonlegislators' Contributions to Legislative History, 79 GEO. L.J. 359 (1990).
340. See SUTHERLAND STAT. CONST. § 48.16 ("In construing a statute the courts refuse to consider testimony about the intent of the legislature by members of the legislature which enacted it."); see also City of Spokane v. State, 89 P.2d. 826, 828-29 (Wash. 1939) (holding legislator affidavits inadmissible on legislative intent); cf. Western Air Lines v. Bd. of Equalization, 480 U.S. 123, 130 n.* (1987) (refusing to consider lobbyist affidavit). Another example of judicial willingness to examine materials not seen by the enacting legislators is Kosak v. United States, 465 U.S. 848 (1984), in which the Supreme Court relied upon an internal Department of Justice memorandum never introduced into the legislative record. Id. at 857 n.14, 863 (Stevens, J., dissenting) ("There is no indication that any Congressman ever heard of the document or knew that it even existed."). See generally Note, The Value of Nonlegislators' Contributions to Legislative History, 79 GEO. L.J. 359 (1990).
341. See supra note 221.
342. See In re Sinclair, 870 F.2d 1340, 1342 (7th Cir. 1989) (arguing that legislative history "may show, too, that words with a denotation 'clear' to an outsider are terms of art, with an equally 'clear' but different meaning to an insider"); Cont'l Can Co. v. Chicago Truck Drivers, Helpers & Warehouse Workers (Indep.) Pension Fund, 916 F.2d 1154, 1158 (7th Cir. 1990) (relying on a floor manager's definition that used a term of art "in the customary way").
343. See Brudney, supra note 3, at 49 ("It is widely recognized that congressional staff play the major role in drafting legislative history."); see also C. LAWRENCE EVANS, LEADERSHIP IN COMMITTEE 127-34 (1991); KOFMEHL, supra note 101, at 118-26; Costello, supra note 264, at 137.
344. See Brudney, supra note 3, at 52 n.206 ("[F]loor statements by the bill manager and other leading sponsors also are likely to be drafted by committee staff."); see also KOFMEHL, supra note 101, at 123-24. See Brudney, supra note 3, at 53 ("The same actors who draft legislative history are involved in drafting statutory language.").
345. See Tome v. United States, 513 U.S. 150, 167 (1995) (Scalia, J., concurring) ("Having been prepared by a body of experts, the Notes are assuredly persuasive scholarly commentaries - ordinarily the most persuasive - concerning the meaning of the rules. But they bear no special authoritativeness as the work of the draftsmen."). The preference for materials from the policy community also explains the willingness to consider internal memoranda never introduced into the legislative record. See Kosak, 465 U.S. 848.
346. See Zeppos, supra note 24, at 1312 (proposing that while only a small proportion of legislators read committee reports, "this would seem to be equally true of the text of the bill") (footnote omitted).
347. See Posner, supra note 131, at 275 ("The deal is struck when the statute is enacted. If courts paid attention to subsequent expression of legislative intent not embodied in any statute, they would be unraveling the deal that had been made; they would be breaking rather than enforcing the legislative contract.").
348. Manipulation means "to change by . . . unfair means so as to serve one's own advantage." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 708 (10th ed. 1993). That word, therefore, presumes persons with differing interests. Manipulation cannot occur if the legislature is a unitary actor or deliberative forum, for in those situations there is no "other" to disadvantage.
349. This is true even of high profile bills. In describing the Civil Rights Act of 1991, for example, Professor Schacter notes that "despite the extensive press coverage the 'quota' controversy received, little of the legal complexity was - or perhaps could have been - captured in the media's characterizations and coverage of the debate." Schacter, supra note 269, at 166.
350. It has more bearing, however, on foundational issues - thus, the reliance on the Federalist papers in constitutional interpretation. See generally William N. Eskridge, Jr., Should the Supreme Court Read the Federalist but Not Statutory Legislative History?, 66 GEO. WASH. L. REV. 1301 (1998).
351. See Gregory E. Maggs, Reconciling Textualism and the Chevron Doctrine: In Defense of Justice Scalia, 28 CONN. L. REV. 393, 413 (1996) (finding that, despite his extreme views, Justice Scalia usually sided with the majority in Chevron cases); Peter H. Schuck & E. Donald Elliott, To the Chevron Station: An Empirical Study of Federal Administrative Law, 1990 DUKE L.J. 984, 1005-06 (finding that circuit courts issue a single opinion in 87% of administrative law cases).
352. See Gregory E. Maggs, Reconciling Textualism and the Chevron Doctrine: In Defense of Justice Scalia, 28 CONN. L. REV. 393, 413 (1996) (finding that, despite his extreme views, Justice Scalia usually sided with the majority in Chevron cases); Peter H. Schuck & E. Donald Elliott, To the Chevron Station: An Empirical Study of Federal Administrative Law, 1990 DUKE L.J. 984, 1005-06 (finding that circuit courts issue a single opinion in 87% of administrative law cases).
353. See Pittston Stevedoring Corp. v. Dellaventua, 544 F.2d 35, 49 (2d Cir. 1976) (explaining that, with respect to deference to agency interpretations of statutes, "there are two lines of Supreme Court decisions on this subject which are analytically in conflict"), aff'd sub nom, Northeast Marine Terminal Operating Co. v. Caputo, 432 U.S. 249 (1977); KENNETH CULP DAVIS, ADMINISTRATIVE LAW OF THE SEVENTIES 375 (1976) ("[T]he Supreme Court has long maintained two lines of cases on the scope of review of applying law to undisputed or established facts. In one line, the Court substitutes judgment and in the other it uses a reasonableness or rational basis test."); Colin S. Diver, Statutory Interpretation in the Administrative State, 133 U. PA. L. REV. 549, 563-64 (1985); Llewellyn, supra note 4, at 404 ("After enactment, judicial decision upon interpretation of particular terms and phrases controls," but "[p]ractical construction by executive officers is strong evidence of true meaning.").
354. See Pittston Stevedoring Corp. v. Dellaventua, 544 F.2d 35, 49 (2d Cir. 1976) (explaining that, with respect to deference to agency interpretations of statutes, "there are two lines of Supreme Court decisions on this subject which are analytically in conflict"), aff'd sub nom, Northeast Marine Terminal Operating Co. v. Caputo, 432 U.S. 249 (1977); KENNETH CULP DAVIS, ADMINISTRATIVE LAW OF THE SEVENTIES 375 (1976) ("[T]he Supreme Court has long maintained two lines of cases on the scope of review of applying law to undisputed or established facts. In one line, the Court substitutes judgment and in the other it uses a reasonableness or rational basis test."); Colin S. Diver, Statutory Interpretation in the Administrative State, 133 U. PA. L. REV. 549, 563-64 (1985); Llewellyn, supra note 4, at 404 ("After enactment, judicial decision upon interpretation of particular terms and phrases controls," but "[p]ractical construction by executive officers is strong evidence of true meaning.").
355. See, e.g., Udall v. Tallman, 380 U.S. 1, 16 (1965) ("When faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration.").
356. See, e.g., Barlow v. Collins, 397 U.S. 159, 166 (1970) ("[W]here the only or principal dispute relates to the meaning of the statutory term . . . the controversy must ultimately be resolved, not on the basis of matters within the special competence of the [agency], but by judicial application of canons of statutory construction.").
357. The Court wrote: When a court reviews an agency's construction of the statute that it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-43(1984) (citations omitted).
358. Although Chevron makes deference the default rule, empirical studies show little effect on deference at the Supreme Court. See Merrill, Executive
359. 467 U.S. at 842, 851-53.
360. 474 U.S. 361 (1986).
361. 467 U.S. at 865 (citations omitted).
362. 474 U.S. at 373.
363. Circuit court precedent had already defined "stationary source" as excluding plantwide application, at least for programs enacted to improve air quality. See Ala. Power v. Costle, 636 F.2d 323, 402 (D.C. Cir. 1979); ASARCO Inc. v. EPA, 578 F.2d 319, 326-27 (D.C. Cir. 1978).
364. Chevron, 467 U.S. at 845 ("Congress did not have a specific intention on the applicability of the bubble concept in these cases.").
365. Congress intended to accommodate both interests, but did not do so itself on the level of specificity presented by these cases. Perhaps that body consciously desired the Administrator to strike the balance at this level, thinking that those with great expertise and charged with responsibility for administering the provision would be in a better position to do so; perhaps it simply did not consider the question at this level; and perhaps Congress was unable to forge a coalition on either side of the question, and those on each side decided to take their chances with the scheme devised by the agency. For judicial purposes, it matters not which of these things occurred. Id. at 865.
366. See BLACK'S LAW DICTIONARY 947, 1323 (7th ed. 1999) (defining "commercial loan" and "legal right").
367. See Karen M. Gebbia-Pinetti, Statutory Interpretation, Democratic Legitimacy and Legal-System Values, 21 SETON HALL LEGIS. J. 233, 345 (1997) ("For decades, democratic legitimacy has served as the principal touchstone of statutory interpretation theory."); Schacter, supra note 3 (describing scholarly positions on statutory interpretation in terms of democracy).
368. See generally Christopher J. Peters, Adjudication as Representation, 97 COLUM. L. REV. 312, 330-37 (1997) (describing why democracy produces high quality decisions). Another tradition values democracy because the process itself is morally valuable, regardless of the ultimate decisions. See id. at 323-30. Regarding representation as a concession to necessity, see id. at 339, that tradition has little to say about representative decisionmaking.
369. JOHN STUART MILL, CONSIDERATIONS ON REPRESENTATIVE GOVERNMENT (1861), reprinted in JOHN STUART MILL, UTILITARIANISM, ON LIBERTY, AND CONSIDERATIONS ON REPRESENTATIVE GOVERNMENT 187, 224 (H.B. Acton ed., J.M. Dent & Sons 1972); see also HERBERT SPENCER, Representative Government - What Is It Good For?, in THE MAN VERSUS THE STATE 331, 375 (Liberty Classics 1981) (1892) (A "man will protect his own interests more solicitously than others will protect them for him. Manifestly, where regulations have to be made affecting the interests of several men, they are most likely to be equitably made when all those concerned are present, and have equal shares in making of them.").
370. JOHN STUART MILL, CONSIDERATIONS ON REPRESENTATIVE GOVERNMENT (1861), reprinted in JOHN STUART MILL, UTILITARIANISM, ON LIBERTY, AND CONSIDERATIONS ON REPRESENTATIVE GOVERNMENT 187, 224 (H.B. Acton ed., J.M. Dent & Sons 1972); see also HERBERT SPENCER, Representative Government - What Is It Good For?, in THE MAN VERSUS THE STATE 331, 375 (Liberty Classics 1981) (1892) (A "man will protect his own interests more solicitously than others will protect them for him. Manifestly, where regulations have to be made affecting the interests of several men, they are most likely to be equitably made when all those concerned are present, and have equal shares in making of them.").
371. JOHN STUART MILL, CONSIDERATIONS ON REPRESENTATIVE GOVERNMENT (1861), reprinted in JOHN STUART MILL, UTILITARIANISM, ON LIBERTY, AND CONSIDERATIONS ON REPRESENTATIVE GOVERNMENT 187, 224 (H.B. Acton ed., J.M. Dent & Sons 1972); see also HERBERT SPENCER, Representative Government - What Is It Good For?, in THE MAN VERSUS THE STATE 331, 375 (Liberty Classics 1981) (1892) (A "man will protect his own interests more solicitously than others will protect them for him. Manifestly, where regulations have to be made affecting the interests of several men, they are most likely to be equitably made when all those concerned are present, and have equal shares in making of them.").
372. Madison claimed that a representative government would "refine and enlarge the public views by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations." THE FEDERALIST No. 10, at 126 (James Madison) (Isaac Kramnick ed., 1987).
373. See THE FEDERALIST NO. 53, at 328 (James Madison) (Isaac Kramnick ed., 1987) ("No man can be a competent legislator who does not add to an upright intention and sound judgment a certain degree of knowledge of the subject on which he is to legislate.").
374. HANNA FENICHEL PITKIN, THE CONCEPT OF REPRESENTATION 165 (1967).
375. The more a theorist sees political issues as questions of knowledge, to which it is possible to find correct, objectively valid answers, the more inclined he will be to regard the representative as an expert and to find the opinion of the constituency irrelevant. If political issues are like scientific or even mathematical problems, it is foolish to try to solve them by counting noses in the constituency. On the other hand, the more a theorist takes political issues to be arbitrary and irrational choices, matters of whim or taste, the less it makes sense for a representative to barge ahead on his own, ignoring the tastes of those for whom he is supposed to be acting. If political choices are like the choice between, say, two kinds of food, the representative can only please either his own taste or theirs, and the latter seems the only justifiable choice. Id. at 211.
376. Llewellyn, supra note 76, at 26.
377. See STEVEN J. BURTON, AN INTRODUCTION TO LAW AND LEGAL REASONING 210 (1985) ("The people must delegate responsibility for operating and monitoring the legitimacy of the legal system in its details to a smaller community of persons.").
378. See Breyer, supra note 67, at 859 ("[The legislative] process requires each legislator to rely upon staff, in the first instance to separate the matters that are significant from those that are not; it requires each legislator to make decisions about, and to resolve with other legislators, each significant matter; and it requires each legislator further to rely upon drafters and negotiators to carry out the legislator's decisions.").
379. See PITKIN, supra note 309, at 116 (recognizing that in a democracy all officials might be deemed "representatives" because all agencies of the government are servants of the sovereign people).
380. Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527, 536 (1947). The entire statement reads: Statutes are not archeological documents to be studied in a library. They are written to guide the actions of men. As Mr. Justice Holmes remarked upon some Indian legislation "The word was addressed to the Indian mind." If a statute is written for ordinary folk, it would be arbitrary not to assume that Congress intended its words to be read with the minds of ordinary men. If they are addressed to specialists, they must be read with the minds of specialists, (citation omitted).
381. See ROBERTO MANGABEIRA UNGER, WHAT SHOULD LEGAL ANALYSIS BECOME? 114 (1996): What matters is for the judge to form a view of [purpose] that is continuous with the real world of discourse and conflict from which that fragment of law came. Moreover, the view should recognize the contestable and factional quality of each of the interests, concerns, and assumptions to which it appeals They count not because they are the best and wisest but because they won, and were settled, earlier down the road of lawmaking. Deference to literal meanings and shared expectations is simply the limiting case of a more general commitment to respect the capacity of parties and movements to win in politics, and to encode and enshrine their victories in law.
382. See Richard H. Fallon, Jr., "The Rule of Law" as a Concept in Constitutional Discourse, 97 COLUM. L. REV. 1, 37 n.187 (1997) ("Although democratically accountable lawmaking is not strictly necessary for the Rule of Law, it is reasonable to anticipate that the elements of the Rule of Law . . . are likely to be most fully realized when applicable rules and principles enjoy the support of democratic majorities or have been adopted through democratic processes.").
383. See Gebbia-Pinetti, supra note 304, at 236, 266, 315 (describing legal system values as a second foundation for statutory interpretation).
384. Lon Fuller defined "law" by reference to eight criteria: generality, publicity, prospectivity, clarity, noncontradictoriness, capability of being followed, stability, and congruence between norms stated and norms as applied. See LON L. FULLER, THE MORALITY OF LAW 33-39 (rev. ed. 1964).
385. See Fallon, supra note 317, at 8.
386. Id. at 6 ("The Rule of Law is best conceived as comprising multiple strands. . . . It is a mistake to think of particular criteria as necessary in all contexts for the Rule of Law. Rather, we should recognize that the strands of the Rule of Law are complexly interwoven, and we should begin to consider which values or criteria are presumptively primary under which conditions.") (italics omitted).
387. See, e.g., RAOUL BERGER, FEDERALISM: THE FOUNDERS' DESIGN 19-20 (1987).
388. See, e.g., Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1183 (1989).
389. See, e.g., HART & SACKS, supra note 17, at 3-6.
390. Thus, formalism does not necessarily require adopting plain meaning. See Stephen F. Ross, The Limited Relevance of Plain Meaning, 73 WASH. U. L.Q. 1057, 1059 (1995): [T]he concept of the "rule-of-law" is . . . frequently employed to describe the proposition that "citizens ought to be able to read the statute books and know their rights and duties." Today, of course, . . . legal rules are not communicated to the ordinary citizen "by their verbal formulation in the statute books.". . . Where non-criminal statutes do apply to the citizenry, they usually do so via administrative regulations . . . or concern special areas of law that no ordinary citizen would attempt to comply with without legal advice. Lawyers, unlike ordinary speakers of English, are likely to be familiar with the usual means of communication in the sub-community - the statute's background and legislative history. (footnotes omitted).
391. See JAMES M. LANDIS, THE ADMINISTRATIVE PROCESS 23-24 (1938) (arguing that professional expertise provides a rule of law for administrative decision making).
392. Fallon, supra note 317, at 24-36. Justice Scalia, for example, subscribes to both originalism and formalism, which sometimes conflict. See id. at 28, 30.
393. See FED. R. EVID. 609(a)(1), 609(a)(2) (effective December 1, 1990).
394. Another factor cutting against the Court's opinion is that narrowing the political deal mitigates flaws in the legislative process. See infra text accompanying note 355.
395. See ESKRIDGE, supra note 3, at 201 ("The history of the statute suggests that Congress did not expect such draconian recoveries when it made relatively minor amendments to the statute in 1898, and the statute's purpose was just as much to compensate seamen as to deter employers from wrongdoing.").
396. Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 589 (1982) (Stevens, J., dissenting) (quoting A. CONAN DOYLE, Silver Blaze, in THE COMPLETE SHERLOCK HOLMES 383 (1938)).
397. See ESKRIDGE, supra note 3, at 201 ("[E]quitable tolling of the double wages period . . . was widely accepted within the relevant interpretive communities (shipowners, insurers, labor organizations) during this century.").
398. See ESKRIDGE & FRICKEY, supra note 7, at 633 (distinguishing between theories and doctrines of interpretation).
399. See Llewellyn, supra note 4, at 404 ("Words are to be taken in their ordinary meaning unless they are technical terms or words of art," but "[p]opular words may bear a technical meaning and technical words may have a popular signification.").
400. Id. at 402 ("Statutes in pari materia must be construed together."). This principle also applies to borrowed statutes, see Zerbe v. State, 578 P.2d 597 (Ala. 1978), and subsequent statutes, see 3 SUTHERLAND STAT. CONST. § 49.11 (Norman J. Singer ed., 5th ed. 2000).
401. See Llewellyn, supra note 4, at 404 ("Every word and clause must be given effect.").
402. See id. at 405 (stating that general terms "may be limited by specific terms with which they are associated" and "[w]here general words follow an enumeration they are to be held as applying only to persons and things of the same general kind or class specifically mentioned (ejusdem generis).").
403. See Geoffrey P. Miller, Pragmatics and the Maxims of Interpretation, 1990 WIS. L. REV. 1179, 1200 (defending ejusdem generis because it "reflects the speaker's intention").
404. See supra text accompanying notes 164-66.
405. See Eskridge, supra note 19; Frickey, supra note 9, at 245, 259; see also RONALD DWORKIN, How to Read the Civil Rights Act. in A MATTER OF PRINCIPLE 316, 327 (1985) (arguing that Brennan's result reflects "the best political justification for the statute").
406. See John F. Manning, Textualism as a Nondelegation Doctrine, 97 COLUM. L. REV. 673, 721 (1997) (criticizing the hierarchy of legislative history for giving committee reports more weight than member statements).
407. See Llewellyn, supra note 4, at 404 (describing canons conferring ordinary meaning on statutory language).
408. 149 U.S. 304 (1893).
409. Id.
410. See Llewellyn, supra note 4, at 402 ("A statute is not in pari materia if its scope and aim are distinct or where a legislative design to depart from the general purpose or policy of previous enactments may be apparent.").
411. See Posner, supra note 131, at 274 ("If some statutes . . . reflect the pressure of narrow interest groups rather than any coherent view of the public interest, it is perilous for courts to use one statute to illuminate the meaning of another. There is no assurance that the particular constellation of political pressure that produced the first statute was also at play when the second was adopted.").
412. See Llewellyn, supra note 4, at 404 (explaining that language may be rejected as surplusage "[i]f inadvertently inserted or if repugnant to the rest of the statute").
413. See Francis J. Vaas, Title VII: Legislative History, 7 B.C. INDUS. & COM. L. REV. 431, 450 (1966).
414. See 42 U.S.C. § 2000e-2(j) (2000) (providing that nothing in the Civil Rights Act requires granting preferential treatment because of race).
415. Section 703(j) was arguably unnecessary because Section 703(a) already prohibited discrimination on the basis of race. See ESKRIDGE & FRICKEY, supra note 7, at 22 (describing many amendments as "cosmetic").
416. See Llewellyn, supra note 4, at 405 ("General terms are to receive a general construction," and "general words must operate on something.").
417. See id.
418. Cf. Easterbrook, supra note 3, at 16 ("The more detailed the law, the more evidence of interest-group compromise.").
419. See UNGER, supra note 316, at 117-18 ("The ideal of popular self-government usually finds its best judicial defense in the modesty of the standard practice . . . . [Nevertheless, there are] circumstances in which the judges may properly take it upon themselves to cut through a Gordian knot in the law with their swords of constructive interpretation. They may do so under the promptings of the ideal of popular self-government.").
420. See supra text accompanying note 171 (discussing Montana Wilderness).
421. One example is the tradition of reading statutes in favor of Indians. See Philip P. Frickey, Congressional Intent, Practical Reasoning, and the Dynamic Nature of Federal Indian Law, 78 CAL. L. REV. 1137, 1177-78 (1990) (describing the tradition of preserving Indian rights from congressional encroachment, unless Congress has spoken clearly on the issue).
422. Doctrinally, the question is often whether a court should apply strict construction to statutes in derogation of the common law and liberal construction to remedial legislation. See Llewellyn, supra note 4, at 401 ("Statutes in derogation of the common law will not be extended by construction," but "[s]uch acts will be liberally construed if their nature is remedial."); see also id. at 402 ("A statute imposing a new penalty or forfeiture, or a new liability or disability, or creating a new right or action will not be construed as having a retroactive effect," but "[r]emedial statutes are to be liberally construed and if a retroactive interpretation will promote the ends of justice, they should receive such construction.").
423. Technically, these cases did not liberally construe civil rights acts. No such statute applied in Bob Jones, and Weber narrowly construed the Civil Rights Act of 1964. Both cases, however, increased the power of groups arguably underrepresented in the legislature.
424. See generally DWORKIN, supra note 340, at 327; Bruce A. Ackerman, Beyond Carolene Products, 98 HARV. L. REV. 713 (1985); Daniel A. Farber & Philip P. Frickey, Is Carolene Products Dead? Reflections on Affirmative Action and the Dynamics of Civil Rights Legislation, 79 CAL. L. REV. 685 (1991).
425. See generally DWORKIN, supra note 340, at 327; Bruce A. Ackerman, Beyond Carolene Products, 98 HARV. L. REV. 713 (1985); Daniel A. Farber & Philip P. Frickey, Is Carolene Products Dead? Reflections on Affirmative Action and the Dynamics of Civil Rights Legislation, 79 CAL. L. REV. 685 (1991).
426. See Geoffrey P. Miller, The True Story of Carolene Products, 1987 SUP. CT. REV. 397, 428 ("[D]iscrete and insular minorities are exactly the groups that are likely to obtain disproportionately large benefits from the political process.").
427. See Johnson v. Transp. Agency, 480 U.S. 616, 676-77 (1987) (Scalia, J., dissenting) (noting that extension of Weber would accommodate the demands of organized groups at the expense of unknown, unaffluent, unorganized individuals).
428. Popular symbols create the consensus necessary to mobilize mass support. See COBB & ELDER, supra note 100, at 28 (arguing that symbols provide the vehicle through which diverse motivations, expectations and values are synchronized to make collective action possible); STONE, supra note 85, at 125 (1988) (noting that ambiguity of symbols "allows highly conflictual issues to move from stalemate to action.").
429. See UNGER, supra note 316, at 118 (describing judicial activism as "a gamble for support," and observing that its claims for legitimacy "are greatly strengthened" when reformers "can appeal to a broad-based current of opinion in society").
430. See Plessy v. Ferguson, 163 U.S. 537 (1896) (establishing separate but equal doctrine). Rarely does a judicial decision itself shape public opinion. See MARSHALL, supra note 190, at 154 (concluding that few Supreme Court decisions change public opinion).
431. See David Millon, The Sherman Act and the Balance of Power, 61 S. CAL. L. REV. 1219, 1224 (1988) (attributing the Sherman Act to "pervasive public outrage over the great trusts, and popular demand for the restoration of a balance of economic power in American society").
432. 15 U.S.C. § 1 (1999).
433. 221 U.S. 1 (1911).
434. WILLIAM LETWIN, LAW AND ECONOMIC POLICY IN AMERICA 253 (1965).
435. See RICHARD HOFSTADTER, What Happened to the Antitrust Movement?, in THE PARANOID STYLE IN AMERICAN POLITICS AND OTHER ESSAYS 189 (1965).
436. See LETWIN, supra note 369, at 76-77 (observing that economists believed efforts to limit combinations were futile, and lawyers believed the common law was an adequate remedy). Robert Bork finds in the Act an intent to prohibit inefficient combinations, see Robert Bork, Legislative Intent and the Policy of the Sherman Act, 9 J.L. & ECON. 7, 7, 10 (1966) (finding economic efficiency to be the purpose behind the Sherman Act), a belief limited to economists, see Robert H. Lande, Wealth Transfers as the Original and Primary Concern of Antitrust: The Efficiency Interpretation Challenged, 34 HASTINGS L.J. 65, 88 (1982) (arguing that legislators who enacted the Sherman Act did not know that monopolies caused allocative inefficiency).
437. See LETWIN, supra note 369, at 76-77 (observing that economists believed efforts to limit combinations were futile, and lawyers believed the common law was an adequate remedy). Robert Bork finds in the Act an intent to prohibit inefficient combinations, see Robert Bork, Legislative Intent and the Policy of the Sherman Act, 9 J.L. & ECON. 7, 7, 10 (1966) (finding economic efficiency to be the purpose behind the Sherman Act), a belief limited to economists, see Robert H. Lande, Wealth Transfers as the Original and Primary Concern of Antitrust: The Efficiency Interpretation Challenged, 34 HASTINGS L.J. 65, 88 (1982) (arguing that legislators who enacted the Sherman Act did not know that monopolies caused allocative inefficiency).
438. See supra note 153 (describing Posner and Easterbrcok's views); see also William F. Baxter, Separation of Powers, Proseculorial Discretion, and the "Common Law" Nature of Antitrust Law, 60 TEX. L. REV. 661 (1982) (arguing that the antitrust laws delegate authority to the judiciary and executive).
439. 543 N.E.2d 49 (N.Y. 1989).
440. See id. at 52 ("[T]he term 'family' is not defined in the rent-control code and the legislative history is devoid of any specific reference to the non-eviction provision."). The rent control statute was enacted in 1946, see Emergency Housing Rent Control Law of 1946, L. 1946, ch. 274, codified as amended at N.Y. UNCONSOL. LAWS §§ 8581-8597 (McKinney 1987), and the policy of not evicting family members dates back to that period. See, e.g., Park East Land Corp. v. Fikelstein, 299 N.Y. 70 (N.Y. 1949). The regulation at issue in the case was originally issued in 1962. See New York City Rent, Rehabilitation and Eviction Regulation sec. 56(d).
441. Statutes prohibiting discrimination on the basis of sexual orientation were not enacted until the 1980s. See Jane S. Schacter, The Gay Civil Rights Debate in the States: Decoding the Discourse of Equivalents, 29 HARV. C.R.-C.L. L. REV. 283, 286-87 (1994). In Braschi, the court received seven amicus briefs. See Briefs of Amicus Curiae The Association of the Bar of the City of New York; The City of New York; Family Service America; The Gay Men's Health Crisis, Inc.; The Lambda Legal Defense and Education Fund; The Legal Aid Society of New York City; Community Action for Legal Services; Inc., Braschi v. Stahl Ass'n Co., 543 N.E.2d 49 (N.Y. 1989) (No. 02194-87). In fact, the New York State legislature ultimately codified the Court's holding. See Rent Stabilization Code, N.Y. Comp. Codes R. & Regs. Tit. 9, 2520.6(o)(2) (1990).
442. Compare William N. Eskridge, Jr., Overruling Statutory Precedents, 76 GEO. L.J. 1361 (1988) (criticizing the presumption against overruling statutory precedents), with Lawrence C. Marshall, "Let Congress Do It": The Case for an Absolute Rule of Statutory Stare Decisis, 88 MICH. L. REV. 177 (1989) (taking the contrary position).
443. Compare William N. Eskridge, Jr., Overruling Statutory Precedents, 76 GEO. L.J. 1361 (1988) (criticizing the presumption against overruling statutory precedents), with Lawrence C. Marshall, "Let Congress Do It": The Case for an Absolute Rule of Statutory Stare Decisis, 88 MICH. L. REV. 177 (1989) (taking the contrary position).
444. See Eskridge, supra note 376, at 1397 ("The traditional argument for the super-strong presumption is that once the Court interprets a statute, Congress is the institution competent to change that interpretation."); Marshall, supra note 376, at 184 ("The conventional explanation for the heightened role of stare decisis in statutory cases is that congressional failure to enact legislation reversing a judicial decision indicates Congress's approval of the Court's interpretation of an earlier statute.").
445. See William N. Eskridge, Jr., Interpreting Legislative Inaction, 87 MICH. L. REV. 67, 94 (1988). See generally John Grabow, Congressional Silence and the Search for Legislative Intent: A Venture into "Speculative Unrealities," 64 B.U. L. REV. 737 (1984).
446. See William N. Eskridge, Jr., Interpreting Legislative Inaction, 87 MICH. L. REV. 67, 94 (1988). See generally John Grabow, Congressional Silence and the Search for Legislative Intent: A Venture into "Speculative Unrealities," 64 B.U. L. REV. 737 (1984).
447. Professor Eskridge observes, for example, that notwithstanding their majority status, white men have not convinced Congress to overrule Weber. See Eskridge, supra note 376, at 1410-11.
448. See Marshall, supra note 376, at 210.
449. See HARRY WELLINGTON, INTERPRETING THE CONSTITUTION: THE SUPREME COURT AND THE PROCESS OF ADJUDICATION 11 (1990); Abner J. Mikva, How Well Does Congress Support and Defend the Constitution?, 61 N.C. L. REV. 587, 609 (1983) (claiming that "most Supreme Court decisions never come to the attention of Congress"). Professor Eskridge has shown that the number of congressional overrides increased from 1967 to 1990 and that almost half of the Supreme Court decisions are considered in oversight hearings. See William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 YALE L.J. 331, 338, 343 (1991). Still, only 7% of Supreme Court decisions are overridden, id. at 350, and staff interest may account for much of the hearing activity, id. at 339 (attributing increased attention to growth in congressional staff). Moreover, as Eskridge concedes, few circuit court cases receive congressional attention. Id. at 343, n.29 (citing study by Robert Katzman indicating that staff was unaware of 12 of 15 significant statutory cases decided in the D.C. Circuit in 1989).
450. See HARRY WELLINGTON, INTERPRETING THE CONSTITUTION: THE SUPREME COURT AND THE PROCESS OF ADJUDICATION 11 (1990); Abner J. Mikva, How Well Does Congress Support and Defend the Constitution?, 61 N.C. L. REV. 587, 609 (1983) (claiming that "most Supreme Court decisions never come to the attention of Congress"). Professor Eskridge has shown that the number of congressional overrides increased from 1967 to 1990 and that almost half of the Supreme Court decisions are considered in oversight hearings. See William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 YALE L.J. 331, 338, 343 (1991). Still, only 7% of Supreme Court decisions are overridden, id. at 350, and staff interest may account for much of the hearing activity, id. at 339 (attributing increased attention to growth in congressional staff). Moreover, as Eskridge concedes, few circuit court cases receive congressional attention. Id. at 343, n.29 (citing study by Robert Katzman indicating that staff was unaware of 12 of 15 significant statutory cases decided in the D.C. Circuit in 1989).
451. See HARRY WELLINGTON, INTERPRETING THE CONSTITUTION: THE SUPREME COURT AND THE PROCESS OF ADJUDICATION 11 (1990); Abner J. Mikva, How Well Does Congress Support and Defend the Constitution?, 61 N.C. L. REV. 587, 609 (1983) (claiming that "most Supreme Court decisions never come to the attention of Congress"). Professor Eskridge has shown that the number of congressional overrides increased from 1967 to 1990 and that almost half of the Supreme Court decisions are considered in oversight hearings. See William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 YALE L.J. 331, 338, 343 (1991). Still, only 7% of Supreme Court decisions are overridden, id. at 350, and staff interest may account for much of the hearing activity, id. at 339 (attributing increased attention to growth in congressional staff). Moreover, as Eskridge concedes, few circuit court cases receive congressional attention. Id. at 343, n.29 (citing study by Robert Katzman indicating that staff was unaware of 12 of 15 significant statutory cases decided in the D.C. Circuit in 1989).
452. Public community interest is critical to congressional action. See Joseph Ignagni et al., Statutory Construction and Congressional Response, 26 AM. POL. Q. 459, 477 (1998) (concluding that Congress is most likely to respond to Supreme Court disposition of salient issues).
453. The canon avoiding constitutional issues, for example, departs from likely legislative understandings, but may nonetheless serve the rule of law. Although Congress probably intends to legislate to the extent of its power, the canon protects the judicial function. See HENRY J. FRIENDLY, Mr. Justice Frankfurter and the Reading of Statutes, in BENCHMARKS 211 (1967) ("The strongest basis for the rule is . . . that the Supreme Court ought not to indulge in what, if adverse, is likely to be only a constitutional advisory opinion.").
454. 467 U.S. 837 (1984).
455. See Diver, supra note 291, at 562 n.95 (listing factors cited by the Supreme Court in deciding whether to defer to administrative interpretations).
456. See Merrill, Executive Precedent, supra note 27, at 976 (stating that Chevron "contained several features that can only be described as 'revolutionary'") (quoting Kenneth W. Starr, Judicial Review in the Post-Chevron Era, 3 YALE J. ON REG. 283, 284 (1986)); see also ESKRIDGE & FRICKEY, supra note 7, at 861 ("The conventional wisdom in administrative law is, or at least until recently was, that Chevron was a revolutionary decision that ushered in a new period of greater deference to agency interpretations of statutes they are charged with enforcing.").
457. Merrill, Executive Precedent, supra note 27, at 977 ("[T]he two-step structure makes deference an all-or-nothing matter. . . . In effect, Chevron transformed a regime that allowed courts to give agencies deference along a sliding scale into a regime with an on/off switch.").
458. Id. ("As a result [of Chevron], independent judgment now requires special justification, and deference is the default rule.").
459. See id. (arguing that the Chevron "framework appears to exclude any examination of the multiple factors historically relied upon by courts [in deciding whether to defer to agency interpretations of statutes]. . . . [N]one of the traditional factors fits under step one or step two of the new framework.").
460. See id. at 978 ("In addition to its novel framework, Chevron also broke new ground by invoking democratic theory as a basis for requiring deference to executive interpretations.").
461. See 467 U.S. at 865-66 ("While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices - resolving the competing interests which Congress itself either inadvertently did not resolve or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.").
462. See Merrill, Executive Precedent, supra note 27, at 978 ("In order to make deference a general default rule, the Court had to come up with some universal reason why administrative interpretations should be preferred to the judgments of Article III courts. Democratic theory supplied the justification: agency decisionmaking is always more democratic than judicial decisionmaking because all agencies are accountable (to some degree) to the President and the President is elected by the people.").
463. See id. at 1008-09 (comparing judges and agencies to courts from coordinate jurisdictions).
464. Executive interpreters have greater expertise on matters that are highly technical or complex; they have more familiarity with the overall structure of a statutory program, and with the policies followed under these programs; and they are more accountable to the public. On the other hand, courts are more insulated from political pressures than agencies; their members are more likely to be selected for their legal abilities than are agency heads; they may be able to hire better law clerks; and they may have more time to do research and write opinions, if only because they are exempt from the statutory deadlines often imposed on agencies. Id. at 1009.
465. See ESKRIDGE & FRICKEY, supra note 7, at 860 (noting that deference to agency interpretations of law is traditionally based on expertise). Chevron itself acknowledged the importance of expertise. The Court alluded to the "great expertise" of the agency and noted that "judges are not experts in the field." 467 U.S. at 865.
466. See Merrill, Executive Precedent, supra note 27, at 998 ("Chevron almost guarantees that in every case the independent views of the judiciary will be given either too much or too little weight, and concomitantly, that the views of the agency will be given either too little or too much deference.").
467. See, e.g., Aluminum Co. of Am. v. Cent. Lincoln Peoples' Util. Dist., 467 U.S. 380, 390 (1984).
468. See Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (explaining that the weight accorded administrative interpretation depends upon "the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade").
469. See BERNARD SCHWARTZ, ADMINISTRATIVE LAW 664-66 (2d ed. 1984) (discussing case where agencies adopted conflicting positions on the meaning of a statute).
470. By lowering emissions standards, the regulation was distributional in that it benefited industries at the expense of the public. Political interest is also evident in the shift in EPA positions that occurred with a change in Administrations. See Chevron, 467 U.S. at 857-58. Finally, several amicus briefs were filed in the Supreme Court. See Briefs of Amici Curiae The American Gas Association, The Commonwealth of Pennsylvania, The Mid-America Legal Foundation, The Pacific Legal Foundation, The United Steelworkers of America, Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984) (No. 82-1005).
471. The President's high visibility and broad constituency makes him least vulnerable to interest group pressure. See STEVEN KELMAN, MAKING PUBLIC POLICY 83-87 (1987) (ascribing a President's public spiritedness to voters' conception of the presidency); DAVID R. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION 169 (1974) ("Since presidents can be held individually accountable for broad policy effects and states of affairs, they are likely to go about their business with a vigorous insistence on instrumental rationality.").
472. The President's high visibility and broad constituency makes him least vulnerable to interest group pressure. See STEVEN KELMAN, MAKING PUBLIC POLICY 83-87 (1987) (ascribing a President's public spiritedness to voters' conception of the presidency); DAVID R. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION 169 (1974) ("Since presidents can be held individually accountable for broad policy effects and states of affairs, they are likely to go about their business with a vigorous insistence on instrumental rationality.").
473. See ESKRIDGE & FRICKEY, supra note 7, at 860 (noting that deference to agency interpretations of law is traditionally based on "neutrality," i.e., insulation from "partisan" pressures). The traditional factors favor interpretations that are insulated from political factors by giving weight to interpretations that are long-standing, see, e.g., United States v. Clark, 454 U.S. 555, 565 (1982); Haig v. Agee, 453 U.S. 280, 291 (1981), or contemporaneous with enactment of the statute, see Norwegian Nitrogen Prods. Co. v. United States, 288 U.S. 294, 315 (1933).
474. See Maislin Indus., U.S., Inc. v. Primary Steel, Inc., 497 U.S. 116, 130-31 (1990) (holding Chevron inapplicable when the Court has already interpreted the statute); Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212 (1988) (holding Chevron inapplicable to agency litigating positions); Edward J. DeBartolo Corp. v. Fla. Gold Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 574-75 (1988) (relying on canon avoiding constitutional issues rather than the Chevron rule); INS v. Cardoza-Fonseca, 480 U.S. 421, 446-48 (1987) (holding Chevron inapplicable to a "pure question of statutory construction"). The Court has backtracked on some of these exceptions. See Rust v. Sullivan, 500 U.S. 173 (1991) (refusing to follow DeBartolo); NLRB v. United Food & Commercial Worker Union, Local 23, 484 U.S. 112, 133-34 (1987) (Scalia, J., concurring) (stating that Cardoza-Fonseca is no longer being followed by the Court).
475. See Merrill, Executive Precedent, supra note 27, at 990-92 (describing how the first step in the Chevron test, which originally required an examination of "specific intention" on the "precise issue" at hand, has been modified as requiring a determination of the plain meaning of the statute as a whole).
476. Professor Merrill has shown that the Court has adopted its framework in only 36% of its cases from 1984 to 1990, while citing traditional factors in 37%. See Merrill, Executive Precedent, supra note 27, at 981.