Should courts give stare decisis effect to statutory interpretation methodology?

Georgetown Law Journal

Volumn 96, Issue 6, 2008, Pages 1863-1911

  Foster, Sydney ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 51149107598     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (240)

1. See, e.g., Boggs v. Muncy, 497 U.S. 1043,1043 (1990) (Brennan & Marshall, JJ., dissenting); see also HAROLD J. SPAETH & JEFFREY A. SEGAL, MAJORITY RULE OR MINORITY WILL: ADHERENCE TO PRECEDENT ON THE U.S. SUPREME COURT 223, 225-26 (1999) (listing progeny of Gregg in which Justices Brennan and Marshall persisted in their anti-death-penalty views); Martha Minow, A Tribute to Justice Thurgood Marshall, 105 HARV. L. REV. 66, 75 (1991).
2. Gregg v. Georgia, 428 U.S. 153 (1976).
3. "Stare decisis" is short for the Latin phrase stare decisis et non quieta movere, meaning "[t]o stand by things decided, and not to disturb settled points." BLACK'S LAW DICTIONARY 1443 (8th ed. 2004). Under the doctrine of stare decisis, the Supreme Court must adhere to its precedent unless there is a "special justification" for departing from precedent, see infra note 27 and accompanying text, and lower courts must strictly adhere to precedents of higher courts, see infra note 30 and accompanying text.
4. See, e.g.. Earl M. Maltz, No Rules in a Knife Fight: Chief Justice Rehnquist and the Doctrine of Stare Decisis, 25 RUTGERS L.J. 669, 676 (1994); see also Jordan Steiker, The Long Road Up from Barbarism: Thurgood Marshall and the Death Penalty, 71 TEX. L. REV. 1131, 1132 (1993). For a response to some of these criticisms, see William J. Brennan, Jr., In Defense of Dissents, 37 HASTINGS L.J. 427, 436-37 (1987).
5. See U.S. CONST. art. I, § 7.
6. Wis. Pub. Intervenor v. Mortier, 501 U.S. 597 (1991).
7. See id. at 616-23 (Scalia, J., concurring in the judgment).
8. Id. at 610 n.4 (majority opinion).
9. Id.
10. See, e.g., William N. Eskridge, Jr., Textualism, the Unknown Ideal?, 96 MICH. L. REV. 1509, 1519 & nn.33-34 (1998); Thomas W. Merrill, Textualism and the Future of the Chevron Doctrine, 72 WASH. U. L.Q. 351, 365 (1994); Catherine T. Strove, The Paradox of Delegation: Interpreting the Federal Rules of Civil Procedure, 150 U. PA. L. REV. 1099, 1161-63 & n.261 (2002). For a recent example of Justice Scalia making his views on legislative history known in Court opinions, see Safeco Insurance Co. of America v. Burr, 127 S. Ct. 2201, 2205 n.* (2007), a case in which Justice Scalia concurred in the entire majority opinion with the exception of two footnotes discussing legislative history.
11. Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 3, 36 (Amy Gutmann ed., 1997).
12. To be clear, I am not contending that Justice Scalia's persistence with respect to the legislative history issue is necessarily aberrational when compared to the persistence of other Justices with respect to substantive law issues. Cf. SPAETH & SEGAL, supra note 1, at 287 (concluding from an empirical study that Justices who dissent from a controlling opinion later acquiesce in that opinion only about twelve percent of the time). Nor am I contending that the practice of persistent dissents is unjustified under a regime of stare decisis. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2793-94 (2007) (Kennedy, J., concurring in part and concurring in the judgment); Henry Paul Monaghan, Stare Decisis and Constitutional Adjudication, 88 COLUM. L. REV. 723, 755 n.184 (1988). Instead, I suggest merely that the reaction to Justice Scalia's persistence is aberrational when compared with the reaction to other Justices' persistence with respect to substantive law precedents, because in the substantive law context but not the statutory interpretation methodology context, Justices are sometimes criticized on the ground that they are not following the doctrine of stare decisis. See supra notes 3-4 and accompanying text; cf. Maurice Kelman, The Forked Path of Dissent, 1985 SUP. CT. REV. 227, 230 (noting that when a Justice dissents from the Court's resolution of a particular question, he has several options in subsequent cases raising that question, including "abandon[ing] past dissent under the pressure of stare decisis").
13. See, e.g., Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568-69 (2005) (describing two problems with using legislative history and stating that "[w]e need not comment here on whether these problems are sufficiently prevalent to render legislative history inherently unreliable in all circumstances, a point on which Members of this Court have disagreed").
14. Several scholars have noted in passing that courts do not give stare decisis effect to doctrines of statutory interpretation. See, e.g., Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 HARV. L. REV. 2085, 2144 (2002); Jonathan R. Siegel, The Polymorphic Principle and the Judicial Role in Statutory Interpretation, 84 TEX. L. REV. 339, 385-86 (2005); see also infra note 45 (citing other scholars noting this phenomenon).
15. See 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); see also, e.g., RICHARD A. POSNER, THE FEDERAL COURTS: CRISIS AND REFORM 276 (1985). For criticism of Llewellyn's view that the pairs of canons are actually in conflict, see, for example, EINER ELHAUGE, STATUTORY DEFAULT RULES: HOW TO INTERPRET UNCLEAR LEGISLATION 188-202 (2008); William N. Eskridge, Jr., Norms, Empiricism, and Canons in Statutory Interpretation, 66 U. CHI. L. REV. 671, 679 (1999); Scalia, supra note 11, at 26-27; and Adrian Vermeule, Interpretive Choice, 75 N.Y.U. L. REV. 74,140 (2000).
16. See Jonathan R. Macey & Geoffrey P. Miller, The Canons of Statutory Construction and Judicial Preferences, 45 VAND. L. REV. 647, 648 (1992).
17. See, e.g., ELHAUGE, supra note 15, at 2; WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION 280-81 (1994).
18. HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW 1169 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994).
19. Scalia, supra note 11, at 3, 14; see Philip P. Frickey, Interpretive-Regime Change, 38 LOY. L.A. L. REV. 1971, 1971-72 (2005); Gary E. O'Connor, Restatement (First) of Statutory Interpretation, 7 N.Y.U. J. LEGIS. & PUB. POL'Y 333, 334 (2004); Rosenkranz, supra note 14, at 2088.
20. See, e.g., Robert H. Jackson, The Meaning of Statutes: What Congress Says or What the Court Says, 34 A.B.A. J. 535, 537 (1948); McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 GEO. L.J. 705, 712, 716 (1992); Amanda L. Tyler, Continuity, Coherence, and the Canons, 99 NW. U. L. REV. 1389, 1419-21 (2005); cf. Eskridge, supra note 15, at 679 (noting that "[f]ew would object" to increased predictability in statutory interpretation).
21. See ADRIAN VERMEULE, JUDGING UNDER UNCERTAINTY 118-19 (2006) (concluding that courts should not adopt interpretive approaches that can be justified only when all or almost all judges adopt the same approach).
22. Rosenkranz, supra note 14, at 2151-53.
23. O'Connor, supra note 19, at 334.
24. Two scholars have observed that the literature does not address the question of whether courts should apply the doctrine of stare decisis in the statutory interpretation methodology context. See Rosenkranz, supra note 14, at 2145 n.267; Siegel, supra note 14, at 389.
25. Thus, to be clear, I do not use the word "substantive" in the sense that is often contrasted with "procedural."
26. William N. Eskridge, Jr., Overruling Statutory Precedents, 76 GEO. L.J. 1361,1362 (1988).
27. Dickerson v. United States, 530 U.S. 428, 443 (2000) (internal quotation marks omitted). For descriptions of the Supreme Court's doctrine about what constitutes a "special justification" for departing from Court precedent, see, for example, Caleb Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 VA. L. REV. 1, 2 (2001); and John Paul Stevens, The Life Span of a Judge-Made Rule, 58 N.Y.U. L. REV. 1, 9 (1983). Note that whether the current doctrine about "special justification" effectuates the goal of properly balancing the costs and benefits of adhering to precedent is beyond the scope of this Article. Others have criticized the current doctrine on the ground that the Court does not consider the right set of factors when determining whether to adhere to precedent. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833,958-66 (1992) (Rehnquist, C.J., concurring in the judgment in part and dissenting in part) (criticizing the opinion of the Court in Casey for considering the extent to which Roe v. Wade, 410 U.S. 113 (1973), "resolve[d]... [an] intensely divisive controversy" in determining whether to give Roe stare decisis effect (internal quotation marks omitted)); Eskridge, supra note 26, at 1388 (proposing that the Court replace its current doctrine governing when to give statutory precedents stare decisis effect with consideration of three specified factors). In addition, some have criticized the current doctrine for not giving the appropriate amount of weight to the factors that the Court does consider. See, e.g., Nelson, supra (arguing that the Court should give more weight to whether a precedent was "demonstrably erroneous"). I need not resolve the question of whether the particular doctrine the Court has adopted effectuates the goals of stare decisis, however, because I seek merely to prove that the net benefits of adhering to precedent in the statutory interpretation methodology context are positive and are greater than the net benefits of adhering to precedent in the substantive law context.
28. See ESKRIDGE, supra note 17, at 276. For a nuanced analysis of rules of statutory interpretation that are derived from the Constitution, see Rosenkranz, supra note 14, at 2092-102 (describing three categories of constitutional rules; "constitutional starting-point rules," "constitutional default rules," and "constitutional mandatory rules"). But cf. infra note 40 (pointing out that Rosenkranz's taxonomy may be missing an important category of rules derived from the Constitution).
29. This Article is thus inextricably linked to the rich literature that has evaluated this practice of giving doctrines of substantive law different levels of stare decisis effect depending on the source from which they are derived. Compare Eskridge, supra note 26, at 1363 (arguing that the Supreme Court should replace the "super-strong presumption against overruling statutory precedents" with a normal strong presumption), with Lawrence C. Marshall, "Let Congress Do It": The Case for an Absolute Rule of Statutory Stare Decisis, 88 MICH. L. REV. 177, 183 (1989) [hereinafter Marshall, "Let Congress Do It"] (contending that the Court should adopt an absolute rule of stare decisis for statutory and common law decisions). For a subsequent exchange between William Eskridge and Lawrence Marshall about these issues, compare William N. Eskridge, Jr., The Case of the Amorous Defendant: Criticizing Absolute Stare Decisis for Statutory Cases, 88 MICH. L. REV. 2450 (1990), with Lawrence C. Marshall, Contempt of Congress: A Reply to the Critics of an Absolute Rule of Statutory Stare Decisis, 88 MICH. L. REV. 2467 (1990) [hereinafter Marshall, Contempt of Congress]. The normative question whether the source from which a doctrine is derived should affect the level of stare decisis effect that that doctrine receives is, however, orthogonal to the question addressed in this Article, as this Article's thesis is simply that, holding all other relevant factors constant, there is a stronger case for giving stare decisis effect to statutory interpretation doctrine than there is for giving stare decisis effect to substantive law doctrine.
30. For a description of the rule that lower courts must strictly adhere to higher-court precedent, see Evan H. Caminker, Why Must Inferior Courts Obey Superior Court Precedents?, 46 STAN. L. REV. 817, 818 (1994).
31. See infra section III.B (addressing this objection).
32. See infra Part I.
33. 28 U.S.C. § 1652 (2000).
34. 304 U.S. 64 (1938).
35. See infra section II.A.
36. See infra section II.B.
37. See infra section II.C.
38. See infra Part III.
39. Compare Gary Lawson, Mostly Unconstitutional: The Case Against Precedent Revisited, 5 AVE MARIA L. REV. 1, 3-4 (2007) [hereinafter Lawson, Mostly Unconstitutional] (arguing that the doctrine of horizontal stare decisis in the Supreme Court-the doctrine governing when the Supreme Court must adhere to its own precedent-is almost always unconstitutional when that doctrine is applied to precedents deciding questions of constitutional law), and Gary Lawson, The Constitutional Case Against Precedent, 17 HARV. J.L. & PUB. POL'Y 23 (1994) (arguing that the doctrine of horizontal stare decisis in the Supreme Court is always unconstitutional when applied to precedents deciding questions of constitutional law and that arguments in support of this proposition probably apply equally to questions of statutory law but not to questions of common law), with Akhil Reed Amar, On Lawson on Precedent, 17 HARV. J.L. & PUB. POL'Y 39 (1994) (criticizing Lawson's argument), Richard H. Fallon, Jr., Stare Decisis and the Constitution: An Essay on Constitutional Methodology, 76 N.Y.U. L. REV. 570, 577 (2001) (arguing that the doctrine of horizontal stare decisis for constitutional law is constitutionally authorized), Charles Fried, Reply to Lawson, 17 HARV. J.L. & PUB. POL'Y 35 (1994) (criticizing Lawson's argument), and Frederick Schauer, Precedent and the Necessary Externality of Constitutional Norms, 17 HARV. J.L. & PUB. POL'Y 45 (1994) (same).
40. Compare, e.g.. Fallon, supra note 39, at 591-94 (arguing that the Constitution prohibits Congress from abrogating stare decisis), and Gary Lawson, Controlling Precedent: Congressional Regulation of Judicial Decision-Making, 18 CONST. COMMENT. 191, 194 (2001) (same), with John Harrison, The Power of Congress over the Rules of Precedent, 50 DUKE L.J. 503, 504-05 (2000) (arguing that the Constitution permits Congress to "modify rules of precedent in pursuit of accuracy, economy, stability, and predictability in the law"), and Michael Stokes Paulsen, Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe and Casey?, 109 YALE L. J. 1535,1540,1594 (2000) (arguing that the Constitution prohibits Congress from mandating stare decisis but permits Congress to abrogate stare decisis). Cf. also Bradley Scott Shannon, May Stare Decisis Be Abrogated by Rule?, 67 OHIO ST. L.J. 645 (2006) (addressing the related question of whether the federal courts may promulgate formal rules abrogating stare decisis). As an aside, note that if it is the case that legislation about stare decisis is constitutionally prohibited but that courts have discretion to choose from a range of options regarding stare decisis, then it follows that Nicholas Rosenkranz's taxonomy for the constitutional status of rules, see supra note 28, is incomplete because it omits rules that are changeable by courts but not by Congress. See Rosenkranz, supra note 14, at 2092-102 (describing three categories of constitutional rules: "constitutional starting-point rules," "constitutional default rules," and "constitutional mandatory rules").
41. Nicholas Rosenkranz has speculated that Justice Scalia's rationale for refusing to adhere to the Court's legislative history precedent may be that "choice of interpretive methodology [is] not merely... an inalienable component of the judicial power but rather [is] an inalienable prerogative of each individual Article III judge." Rosenkranz, supra note 14, at 2145 n.267. In addition, Larry Alexander and Saikrishna Prakash have argued that Article III does not give courts the "authority to create binding rules of interpretation that it will use to construe federal statutes." Larry Alexander & Saikrishna Prakash, Mother May I? Imposing Mandatory Prospective Rules of Statutory Interpretation, 20 CONST. COMMENT. 97, 102 (2003); cf. also Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. CAL. L. REV. 845, 870 (1992) (questioning the legal authority of the judiciary to adopt new canons of construction but seeming not to question the authority of the judiciary to follow well-established canons).
42. Cf., e.g., James E. Ryan, Does It Take a Theory? Originalism, Active Liberty, and Minimalism, 58 STAN. L. REV. 1623 (2006) (book review) (discussing originalism and two other general theories of constitutional interpretation-active liberty and minimalism).
43. Cf., e.g., Steven G. Calabresi, "A Shining City on a Hill": American Exceptionalism and the Supreme Court's Practice of Relying on Foreign Law, 86 B.U. L. REV. 1335 (2006) (discussing, two schools of thought as to whether foreign law should be relied upon in deciding American cases).
44. For example, an obvious difference between the constitutional interpretation and statutory interpretation contexts is that while statutory interpretation doctrine is capable of influencing how statutes are drafted, constitutional interpretation doctrine is not capable of influencing how constitutional provisions are drafted, with the exception of subsequently adopted constitutional amendments. Cf., e.g., Jonathan T. Molot, Ambivalence About Formalism, 93 VA. L. REV. 1 (2007) (analyzing divergent approaches to the principal-agent relationship in the literatures about statutory interpretation and constitutional theory).
45. See Frickey, supra note 19, at 1976; Joseph A. Grundfest & A.C. Pritchard, Statutes with Multiple Personality Disorders: The Value of Ambiguity in Statutory Design and Interpretation, 54 STAN. L. REV. 627, 682 n.183 (2002); Morell E. Mullins, Sr., Tools, Not Rules: The Heuristic Nature of Statutory Interpretation, 30 J. LEGIS. 1, 68 (2003); Rosenkranz, supra note 14, at 2144; Jonathan R. Siegel, Judicial Interpretation in the Cost-Benefit Crucible, 92 MINN. L. REV. 387, 3% (2007) [hereinafter Siegel, Judicial Interpretation}; Siegel, supra note 14, at 385-86; Robert Weisberg, The Calabresian Judicial Artist: Statutes and the New Legal Process, 35 STAN. L. REV. 213, 213-14 (1983); cf. Charles Fried, Five to Four: Reflections on the School Voucher Case, 116 HARV. L. REV. 163, 181 (2002) ("[T]n; cases turning on the construction of statutes there may be agreement about a particular interpretation of a particular statute, but a more enduring disagreement about the general method for interpreting statutes-for example, about the use of legislative history.").
46. See, e.g., United States v. Shabani, 513 U.S. 10, 13 (1994); Bob Jones Univ. v. United States, 461 U.S. 574, 586 (1983); Bowsher v. Merck & Co., 460 U.S. 824, 831 (1983). Examples also abound in lower courts. See, e.g., M.A. ex rel. E.S. v. State-Operated Sch. Dist, 344 F.3d 335, 348 (3d Cir. 2003).
47. See, e.g., Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005) ("As we have repeatedly held, the authoritative statement is the statutory text, not the legislative history or any other extrinsic material."); Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003) ("As we have held repeatedly, the canon expressio unius est exclusio alterius does not apply to every statutory listing or grouping...."); see also Ali v. Fed. Bureau of Prisons, 128 S. Ct. 831, 841 (2008) (Kennedy, J., dissenting) (noting in a statutory interpretation case that "[b]oth the analytic framework and the specific interpretation the Court now employs become binding on the federal courts").
48. 511 U.S. 244, 264 (1994) (internal quotation marks omitted); cf. Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 837 (1990) (stating, in a pie-Landgraf case that noted the tension between the two doctrines at issue in Landgraf, that "[w]e need not in this case... reconcile the two lines of precedent... because under either view, where the congressional intent is clear, it governs"); In re Sinclair, 870 F.2d 1340, 1341-44 (7th Cir. 1989) (Easterbrcok, J.) (purporting to "harmon[ize]" seemingly inconsistent "advice from the Supreme Court" about when it is permissible to consult legislative history).
49. See, e.g., Caleb Nelson, What Is Textualism?, 91 VA. L. REV. 347, 359 (2005) (citing Covalt v. Carey Canada, Inc., 860 F.2d 1434, 1438-39 (7th Cir. 1988) (Easterbrook, J.), for the proposition that federal courts-but not state courts-are unanimous in concluding that they may not rely on affidavits or testimony of legislators to determine the meaning of statutes).
50. 467 U.S. 837 (1984).
51. Thomas W. Merrill & Kristin E. Hickman, Chevron's Domain, 89 GEO. L.J. 833, 839 (2001).
52. Cass R. Sunstein, Chevron Step Zero, 92 VA. L. REV. 187, 188 (2006). But see infra note 55 and accompanying text (describing scholarship suggesting that Chevron is not the fixed point in statutory interpretation that many scholars seem to believe it to be).
53. See, e.g., JED RUBENFELD, REVOLUTION BY JUDICIARY 4 (2005) (stating that "[w]hen judges are called on to interpret statutes, well-known precepts apply" and claiming that these precepts are "matters of law, in the sense that they are expressly laid out in hundreds of cases, and lower court judges can be reversed for failing to follow them" (emphasis omitted)); Mullins, supra note 45, at 3-5; cf. Antonin Scalia, Speech on Use of Legislative History 18 (delivered between fall 1985 and spring 1986 at various law schools) (on file at Harvard Law School Library) (stating in a speech delivered while he was a judge on the D.C. Circuit that "[a]s an intermediate federal judge, I can hardly ignore legislative history when I know it will be used by the Supreme Court").
54. Cf. SPAETH & SEGAL, supra note 1, at 6, 43 (arguing that the fact that courts cite precedent in their opinions does not demonstrate that those precedents had any effect on the decision); Lawrence M. Friedman et al., State Supreme Courts: A Century of Style and Citation, 33 STAN. L. REV. 773, 801 (1981) (conducting an empirical study on the citation practices of state supreme courts and finding that forty percent of all case citations in the period between 1870 and 1970 were to out-of-state authorities).
55. The Chevron doctrine may be an example of just such a doctrine: empirical studies, including a recent comprehensive study by William Eskridge and Lauren Baer, have demonstrated that not only does the Supreme Court frequently fail to apply the Chevron framework in circumstances in which the doctrine seems to call for its application, but also no Justices even mention Chevron in many of those cases. See William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 GEO. L.J. 1083, 1089-90 (2008) (conducting an empirical study of all 1014 Supreme Court opinions decided after Chevron and before Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), in which an agency interpretation of a statute was at issue and concluding, inter alia, that "the Court usually does not apply Chevron to cases that are, according to [the Court's own] opinions, Ctevron-eligible"); Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 YALE L.J. 969, 970, 980 (1992) (examining all Supreme Court decisions from the 1981 Term through the 1990 Term, noting that in the 1990 Term, the Court used the Chevron framework in approximately half the cases that one or more Justices perceived to be presenting a deference question, and concluding that "the Court does not regard Chevron as a universal test for determining when to defer to executive interpretations").
56. See Michael Abramowicz & Maxwell Stearns, Defining Dicta, 57 STAN. L. REV. 953, 995-96 & n.120 (2005); cf. Anthony T. Kronman, Precedent and Tradition, 99 YALE L.J. 1029, 1031-32 (1990) (noting that even in code-based systems, there is a norm of some respect for precedent).
57. Conn. Nat'1 Bank v. Germain, 503 U.S. 249, 253 (1992).
58. Chickasaw Nation v. United States, 534 U.S. 84, 94 (2001) (internal quotation marks omitted); see also Ali v. Fed. Bureau of Prisons, 128 S. Ct. 831, 841 (2008) (Kennedy, J., dissenting) ("[C]anons do not demand wooden reliance and are not by themselves dispositive, but they do function as helpful guides in construing ambiguous statutory provisions."); J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int'l, Inc., 534 U.S. 124, 156 (2001) (Breyer, J., dissenting) ("[C]anons are not mandatory rules. They are guides to help courts determine likely legislative intent."); Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 20 (1979) ("Even settled rules of statutory construction could yield, of course, to persuasive evidence of a contrary legislative intent.").
59. 278 U.S. 41,48 (1928); see also Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440,455 (1989) (citing Boston Sand & Gravel for this proposition); cf. Longview Fibre Co. v. Rasmussen, 980 F.2d 1307,1313 (9th Cir. 1992) (making a similar statement).
60. See supra note 27 (addressing the Court's doctrine relating to circumstances in which it will overrule precedent).
61. 478 U.S. 186 (1986), overruled by Lawrence v. Texas, 539 U.S. 558, 577 (2003).
62. Lawrence v. Texas, 539 U.S. 558 (2008).
63. Id. at 577.
64. See id. at 577-78. For other examples of opinions in the substantive law context that expressly consider the doctrine of stare decisis before overruling a past decision, see Leegin Creative Leather Products, Inc. v. PSKS, Inc., 127 S. Ct. 2705, 2720-25 (2007) ("Stare decisis, we conclude, does not compel our continued adherence to the per se rule against vertical price restraints."), and Payne v. Tennessee, 501 U.S. 808, 827-30 (1991) (considering the doctrine of stare decisis before overruling the precedent at issue and also cataloguing the thirty-three instances in which the Court had overruled its constitutional precedents in the prior twenty years).
65. See, e.g., Abdul-Kabir v. Quarterman, 127 S. Ct. 1654, 1685 (2007) (Scalia, J., dissenting) (claiming that the Court overruled Johnson v. Texas, 509 U.S. 350 (1993), sub silentio); Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356, 382 (2006) (Thomas, J., dissenting) (claiming that the Court overruled Hoffman v. Connecticut Department of Income Maintenance, 492 U.S. 96 (1989), sub silentio).
66. See Nelson, supra note 27, at 2-3; see also supra note 27.
67. See United States ex rel. Fong Foo v. Shaughnessy, 234 F.2d 715, 719 (2d Cir. 1955), quoted in SPAETH & SEGAL, supra note 1, at 3.
68. Georgia v. McCollum, 505 U.S. 42, 59-60 (1992) (Rehnquist, C.J., concurring) (citation omitted). For other examples of Justices similarly being so explicit, see SPAETH & SEGAL, supra note 1, at 5-6, 48-282 tbls.3.1-8.2 (listing examples of cases of this sort under the "strong precedent" category).
69. See, e.g., BedRoc Ltd. v. United States, 541 U.S. 176,183 (2004) (plurality opinion) ("While we share the concerns expressed in the [Watt v.] Western Nuclear Inc., 462 U.S. 36 (1983),] dissent, we decline to overrule our recent precedent." (citation omitted)); Dickerson v. United States, 530 U.S. 428, 432 (2000) (declining to overrule Miranda v. Arizona, 384 U.S. 436 (1966)); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 854-69 (1992) (O'Connor, Kennedy, and Souter, JJ.) (declining to overrule Roe v. Wade, 410 U.S. 113 (1973)).
70. To be clear, the scope of the remainder of this Part is limited. It addresses "horizontal stare decisis" at the Supreme Court level-that is, whether the Supreme Court follows the doctrine of stare decisis with respect to its own statutory interpretation methodology precedents. See Thomas R. Lee, Stare Decisis in Economic Perspective: An Economic Analysis of the Supreme Court's Doctrine of Precedent, 78 N.C. L. REV. 643, 649 (2000) (describing the difference between horizontal and vertical stare decisis). It does not, however, address "vertical stare decisis" in the federal courts-that is, whether lower federal courts follow the doctrine of stare decisis with respect to the statutory interpretation methodology precedents of higher courts. Nor does it address whether there is horizontal or vertical stare decisis in the state courts for statutory interpretation doctrine. Interesting though consideration of these questions would be, a showing that there is no horizontal stare decisis at the Supreme Court level is adequate to establish that the normative arguments in Parts II and III are the basis of a call for change, not a justification of the status quo. That said, there is evidence that at least some lower courts do not always give doctrines of statutory interpretation stare decisis effect. See W. David Slawson, Legislative History and the Need To Bring Statutory Interpretation Under the Rule of Law, 44 STAN. L. REV. 383, 383 (1992) ("As far as I know, there is not a single instance in which a court or agency has been reversed for using legislative history incorrectly."); see also William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621, 646-47 (1990) (noting that circuit court judges were on the forefront of the textualist charge in the 1980s).
71. 143 U.S. 457 (1892).
72. See, e.g., Aldridge v. Williams, 44 U.S. (3 How.) 9, 24 (1845) ("[T]he judgment of the court cannot, in any degree, be influenced by the construction placed upon it by individual members of Congress in the debate which took place on its passage."); see also ESKRIDGE, supra note 17, at 208, 393 n.5 (noting that nineteenth century courts followed the "English Rule" that barred inquiry into extrinsic facts when interpreting a statute); Hans W. Baade, "Original Intent" in Historical Perspective: Some Critical Glosses, 69 TEX. L. REV. 1001, 1063-84 (1991) ("It is generally held that the legislative history of an act is inadmissible." (quoting Tennant v. Kuhlmeier, 120 N.W. 689, 690 (Iowa 1909))).
73. Baade, supra note 72, at 1091 n.644; see also VERMEULE, supra note 21, at 88 (stating that "[although nineteenth-century decisions sometimes referred to legislative history in its broader sense of 'the public history of the times' against which the legislature acted, and a few prior opinions had quietly breached the traditional rule, Holy Trinity was the first majority opinion of the Supreme Court to give legislative history sufficient weight to trump contrary statutory text" (footnotes omitted) (quoting Aldridge, 44 U.S. (3 How.) at 24)). True, there were fits and starts in the Court's application of the new Holy Trinity rule that legislative history is fair game when interpreting statutes. As Justice Scalia has noted, "[a]s late as 1897, [the Court] stated quite clearly that there is 'a general acquiescence in the doctrine that debates in Congress are not appropriate sources of information from which to discover the meaning of the language of a statute passed by that body.'" Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 622 (1991) (Scalia, J., concurring in the judgment) (quoting United States v. Trans-Mo. Freight Ass'n, 166 U.S. 290, 318 (1897)); see also Baade, supra note 72, at 1086-102 (tracing the uneven history of the plain meaning rule). Eventually, however, the Court more consistently sanctioned the use of legislative history. See William N. Eskridge, Jr., No Frills Textualism, 119 HARV. L. REV. 2041, 2054 (2006) (book review); Frickey, supra note 19, at 1972; Scalia, supra note 11, at 30.
74. See 143 U.S. at 458.
75. An unstated premise of this argument is that stare decisis doctrine was sufficiently entrenched by the time the Court decided Holy Trinity in 1892, a premise that has been established by other scholars. See Frederick G. Kempin, Jr., Precedent and Stare Decisis: The Critical Years, 1800 to 1850, 3 AM J. LEGAL HIST. 28, 36 (1959); cf. SPAETH & SEGAL, supra note 1, at 289 fig.9.1 (representing in graphical form the extent to which precedent constrained the Supreme Court as a function of time and demonstrating that under the authors' definition of constraint, precedent was functioning as a constraint in 1892 at levels that were comparable to later time periods).
76. Adrian Vermeule, Three Strategies of Interpretation, 42 SAN DIEGO L. REV. 607,617 (2005).
77. Id. at 617-18.
78. See 143 U.S. at 464-65.
79. 377 U.S. 426 (1964).
80. 422 U.S. 66 (1975).
81. 442 U.S. 560 (1979).
82. 444 U.S. 11(1979).
83. Jonathan T. Molot, The Rise and Fall of Textualism, 106 COLUM. L. REV. 1, 62 (2006).
84. 441 U.S. 677 (1979).
85. Id. at 698-99; see also John F. Manning, The Absurdity Doctrine, 116 HARV. L. REV. 2387, 2474 n.318 (2003).
86. See Cannon, 441 U.S. at 698-99.
87. Moreover, it is common for the Court to completely ignore whether it frustrates congressional intent when it applies rules of statutory interpretation to statutes passed before those rules were established. Alexander v. Sandoval, 532 U.S. 275 (2001), another case in the implied-right-of-action line of cases, provides an example. In Sandoval, a case decided in the post-Touche Ross/Transamerica era, the Court expressly refused to interpret the Civil Rights Act of 1964, passed in the pre-Cort era, in light of the pre-Corf case law, contending that it would not consider "contemporary legal context" when the text was clear. See id. at 287-88.
88. See ESKRIDGE, supra note 17, at 283-85; William N. Eskridge, Jr. & Philip P. Frickey, The Supreme Court, 1993 Term-Foreword: Law as Equilibrium, 108 HARV. L. REV. 26, 68-69 (1994). 89. 473 U.S. 234 (1985).
89. See ESKRIDGE, supra note 17, at 284.
90. See 42 U.S.C. § 2000d-7(a)(1) (2000) (enacted in 1986).
91. S. REP. No. 99-388, at 27-28 (1986).
92. For example, Eskridge has argued that the Court worked a similar bait-and-switch on Congress in Dellmuth v. Muth, 491 U.S. 223 (1989), by applying the Atascadero clear statement rule to a statute Congress enacted before the Court decided Atascadero. See ESKRIDGE, supra note 17, at 284-85.
93. Many scholars have noted the Court's frequent vacillation on interpretative principles. See, e.g., VERMEULE, supra note 21, at 134-35; Ward Farnsworth, Signatures of Ideology: The Case of the Supreme Court's Criminal Docket, 104 MICH. L. REV. 67, 99 (2005); Marshall, "Let Congress Do It," supra note 29, at 238 n.41; Siegel, supra note 14, at 385-88; Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405, 414 (1989); Adrian Vermeide, The Cycles of Statutory Interpretation, 68 U. CHI. L. REV. 149, 149, 182-87 (2001).
94. For examples, see Frickey, supra note 19, at 1980-81 (describing three groups of Justices that emerge in the debates over textualism and purposivism: (1) textualists, (2) purposivists, and (3) those "not motivated by any rigid theory of statutory interpretation"); and Siegel, supra note 14, at 388-90 (categorizing Justices with respect to their approach to a canon of interpretation the author calls the "polymorphic principle" according to whether they have a firm position on the canon and observing that many of the Justices' votes reveal that they do not).
95. See John F. Manning, Competing Presumptions About Statutory Coherence, 74 FORDHAM L. REV. 2009, 2009-10 (2006).
96. See, e.g., Frickey, supra note 19, at 1977-81 (discussing Justice Stevens's purposivist majority opinion and Justice Scalia's textualist dissent in Chisom v. Roemer, 501 U.S. 380 (1991), and Justice Scalia's textualist majority opinion and Justice Stevens's purposivist dissent in West Virginia University Hospitals, Inc. v. Cowry, 499 U.S. 83 (1991)); Manning, supra note 96, at 2033-34 & nn.114-15 (listing examples of recent purposivist and textualist opinions); see also Michael C. Dorf, The Supreme Court, 1997 Term-Foreword: The Limits of Socratic Deliberation, 112 HARV. L. REV. 4, 9-10 (1998) (stating that "during the 1997 Term, the purposivists won most of the battles in which interpretive methodology appeared to make a difference," and thus implying that the purposivist approach is neither uniformly adhered to nor uniformly rejected).
97. 499 U.S. at 112 (Stevens, J., dissenting); see also Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 343 n.37 (1993) (Stevens, J., dissenting) (noting that "the Court departs from [the] practice" of "construing]... [a] statute in accordance with its intended purpose" and stating that "[t]his represents a sad and unjustified abandonment of a valuable interpretive tradition").
98. See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 254-55 (1985) (Brennan, J., dissenting, joined by Marshall, Blackmun, & Stevens, JJ.).
99. See, e.g., Blatchford v. Native Vill. of Noatak & Circle Vill., 501 U.S. 775, 790 (1991) (Blackmun, J., dissenting, joined by Marshall & Stevens, JJ.); Dellmuth v. Muth, 491 U.S. 223, 239-41 (1989) (Brennan, J., dissenting, joined by Marshall, Blackmun, & Stevens, JJ.).
100. See supra notes 5-12 and accompanying text.
101. Harold Spaeth and Jeffrey Segal conducted an empirical study that sought to determine the degree to which Justices adhere to substantive law precedent with which they initially disagreed. See SPAETH & SEGAL, supra note 1, at 23. Spaeth and Segal did not, however, examine the extent to which Justices adhere to interpretive law precedent with which they initially disagreed. See id. at 25-33 (explaining the methodology for the study). Spaeth and Segal identified sets of cases, each of which consisted of one "precedential" case and one or more "progeny" cases, and they sought to determine whether Justices dissenting from a precedential case concurred in or voted with the majority in any progeny cases. The connections between the precedential cases and the progeny cases were, however, based on substantive law, not interpretive methodology. Indeed, in one circumstance, Spaeth and Segal explicitly noted that they excluded from their analysis the set of cases consisting of Gregory v. Ashcroft, 501 U.S. 452 (1991), and Hilton v. South Carolina Commission, 502 U.S. 197 (1992), even though Justice Harry Blackmun dissented from Gregory, the majority opinion in Hilton cited Gregory, and Justice Blackmun concurred in the judgment in Hilton. Spaeth and Segal explained that they excluded this set of cases because Hilton cited Gregory merely for a rule of statutory construction. See SPAETH & SEGAL, supra note 1, at 284-85.
102. See supra note 45 (listing scholars who have asserted that courts do not give stare decisis effect to statutory interpretation methodology).
103. Even if an empirical study found that Justices occasionally adhere to interpretive precedent with which they once disagreed, it would not follow that statutory interpretation methodology gets stare decisis effect in the same sense and to the same degree that substantive law gets stare decisis effect. First, if the rate at which Justices acquiesce to interpretive precedents with which they once disagreed is substantially lower than the rate at which Justices acquiesce to substantive precedents with which they once disagreed, then any stare decisis effect the Court gives to doctrines of statutory interpretation would be lesser in degree. Moreover, the failure of the Court to engage in stare decisis analysis before overruling interpretive precedents is a significant departure from stare decisis doctrine.
104. Several scholars have noted that there is some agreement about interpretive principles when those principles are pitched at an abstract level but that there is disagreement over the particulars of those principles. See, e.g., Frickey, supra note 19, at 1989-90 (suggesting the rule of lenity is one such example); Vermeule, supra note 94, at 149 (arguing that "at a very high level of abstraction," interpretive doctrine is "very stable," but with the addition of "some detail... interpretive doctrine appears markedly unstable").
105. 127 S. Ct. 1534(2007).
106. 20 U.S.C. § 7701 et. seq. (2000 & Supp. 2005). Specifically, the Court addressed whether regulations at 34 C.F.R. pt. 222, subpt. K, App., ¶ 1 (2006), interpreting 20 U.S.C. § 7709(b)(2)(B)(i) were valid. See Zuni, 127 S. Ct. at 1538-39.
107. Justice Stephen Breyer wrote for a five-Justice majority, Justices Stevens and Kennedy each wrote a concurring opinion, and Justices Scalia and Souter each wrote a dissenting opinion. See Zuni, 127 S. Ct. at 1537.
108. One of the disagreements not discussed in the text had to do with the order of exposition in the majority opinion. Justice Breyer's majority opinion first considered the purposes and history of the statutory provision and then considered the text of the provision. See id. at 1541. Justice Scalia strenuously objected to this sequence, see id. at 1551-52 (Scalia, J., dissenting), and Justice Kennedy noted that he would have preferred a different sequence but that he considered the order to be an issue of exposition, not substance, see id. at 1550-51 (Kennedy, J., concurring).
109. Compare id. at 1543-46 (majority opinion), with id. at 1551-55 (Scalia, J., dissenting), and id. at 1559 (Souter, J., dissenting).
110. Cf. Farnsworth, supra note 94, at 99 ("We are confronted with a familiar gap-an incompleteness-that law can't close: it can give instructions about what to do with ambiguity, but judges are on their own in deciding whether ambiguity is present in the first place.").
111. Cf. Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J. 511, 520-21 (noting the potential for disagreement over whether meaning is "plain" for purposes of Chevron); cf. also John Manning, Textualism and the Equity of the Statute, 101 COLUM. L. REV. 1, 16 n.64 (2001) (describing scholarship contending that there is no intrinsic "plain meaning" but rather that the meaning a reader finds to be "plain" depends on her interpretive community). That said, stare decisis can serve to increase the consistency of some principles of interpretation courts apply in determining the plain meaning of a statutory provision. For example, under a regime of stare decisis, case law could establish what pieces of contextual evidence can be considered when determining whether language has a plain meaning.
112. Compare Zuni, 127 S. Ct. at 1550 (Stevens, J., concurring) (yes), with id. at 1552 (Scalia, J., dissenting) (no). Cf. also Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1988 (2007) (Stevens, J., dissenting) ("Just a few weeks ago [in Zuni] some of my colleagues [Justice Scalia and those who joined his dissent in Zuni] explained that a strict interpretation of the literal text of statutory language is essential to avoid judicial decisions that are not faithful to the intent of Congress. I happen to believe that there are cases in which other tools of construction are more reliable than text...." (citation omitted)). The majority found that the interpretation in the regulations fell within the plain language of the statute and thus did not rule on this question. See Zuni, 127 S. Ct. at 1543 (majority opinion). To the extent that the majority opinion addressed the question, it was unclear about where it stood. Compare id. ("[N]ormally neither the legislative history nor the reasonableness of the Secretary's method would be determinative if the plain language of the statute unambiguously indicated that Congress sought to foreclose the Secretary's interpretation." (emphasis added)), with id. ("Under this Court's precedents, if the intent of Congress is clear and unambiguously expressed by the statutory language at issue, that would be the end of our analysis.").
113. Zuni, 127 S. Ct. at 1552 (Scalia, J., dissenting).
114. Id. at 1555.
115. See supra note 27 (addressing the circumstances recognized by the Supreme Court in which it need not follow precedent and the scope of this Article with respect to questions related to those circumstances).
116. 28 U.S.C. § 1652 (2000).
117. 304 U.S. 64, 78 (1938).
118. See, e.g., Exxon Corp. v. Eagerton, 462 U.S. 176,181 n.3 (1983) ("[T]he weight to be given to the legislative history of an Alabama statute is a matter of Alabama law to be determined by the Supreme Court of Alabama."); Smiley v. Kansas, 196 U.S. 447, 455 (1905) ("Nor is it material mat the state court ascertains the meaning and scope of the statute as well as its validity by pursuing a different rule of construction from what we recognize.... The power to determine the meaning of a statute carries with it the power to prescribe its extent and limitations, as well as the method by which they shall be determined."); Bass v. County of Butte, 458 F.3d 978,981 (9th Cir. 2006) (stating that the court "must follow the state's rules of statutory interpretation); C&H Nationwide, Inc. v. Norwest Bank Tex. NA, 208 F.3d 490, 495 (5th Cir. 2000) (noting that when interpreting a state statute, "the statutory construction techniques employed in [federal cases interpreting federal statutes] are inapposite"); see also 2 NORMAN J. SINGER, SUTHERLAND ON STATUTES AND STATUTORY CONSTRUCTION § 37:1 (6th ed. 2001) ("Since the rules, methods, and principles of statutory construction are means for ascertaining the substance of statutes, those employed in the enacting state are most naturally applicable."); cf. Benjamin C. Classman, Making State Law in Federal Court, 41 GONZ. L. REV. 237, 298-99 (2006) (analyzing a decision of the Third Circuit later reversed by the Supreme Court in Fidelity Union Trust Co. v. Field, 311 U.S. 169 (1940), and stating that the Third Circuit erred under Erie by failing to apply state-law principles of interpretation to the state statute at issue). To be sure, this branch of the Rules of Decision Act and Erie law is one that merits further study. As the cases just cited demonstrate, many courts have expressly stated that federal courts must adhere to state principles of interpretation when interpreting state statutes. Some federal courts interpreting state statutes have, however, cited federal cases for principles of interpretation without explicitly addressing the appropriateness of doing so, thus perhaps implicitly suggesting that federal courts may apply federal principles of statutory interpretation to state statutes. See, e.g., Clark v. Arizona, 126 S. Ct. 2709, 2723 n.24 (2006). But as Part I established, citation to authority does not always suggest that that authority is binding. The lack of attention to the rule that federal courts must apply state principles of interpretation when interpreting state statutes suggests, however, that adherence to that rule may not be uniform.
119. See Bradford R. Clark, Ascertaining the Laws of the Several States: Positivism and Judicial Federalism After Erie, 145 U. PA. L. REV. 1459, 1495 (1997).
120. In addition to the two likely rationales for the rule described in the text, see infra pp. 1910-11, it may be that the rule is at times justified under the theory that federal courts must follow state rules of statutory interpretation when those rules have been codified. If sound, this theory could explain why federal courts adhere to a large portion of state rules of statutory interpretation, given that state legislatures have codified principles of statutory interpretation to a much greater degree than has Congress. See Rosenkranz, supra note 14, at 2089 & n.10 (describing state codes of statutory interpretation). Not all rules of state statutory interpretation are-or can be-codified, however, and thus, this justification cannot fully explain adherence to the principle that federal courts must apply state rules of interpretation when interpreting state statutes.
121. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting). Similarly, Justice Holmes noted that "one of the first things for a court to remember is that people care more to know that the rules of the game will be stuck to, than to have the best possible rules." Letter from Oliver Wendell Hohnes, Jr. to Franklin Ford (Feb. 8, 1908), in OLIVER WENDELL HOLMES, JR., THE ESSENTIAL HOLMES 201 (Richard A. Posner ed., 1992).
122. See Lee, supra note 70, at 657-59; Frederick Schauer, Legal Development and the Problem of Systemic Transition, 13 J. CONTEMP. LEGAL ISSUES 261, 265-66 (2003); Michael P. Van Alstine, The Costs of Legal Change, 49 UCLA L. REV. 789, 795, 861-63 (2002). Such a doctrine should take into account not only case-specific transition costs and benefits, such as whether there has been reliance on the precedent at issue, but also systemic transition costs and benefits, such as whether overruling precedents in particular circumstances will engender insufficient reliance on precedent generally. Cf. Eskridge & Frickey, supra note 88, at 81 (noting that when the Court "disrupts... a stable practice [in a particular case] it is not only unsettling a specific legal regime, but is also raising the possibility of general insecurity, in which neither private parties nor Congress can rely on settled law").
123. William N. Eskridge, Jr. & John Ferejohn, Politics, Interpretation, and the Rule of Law, in THE RULE OF LAW: NOMOS XXXVI265,267 (Ian Shapiro ed., 1994). William Eskridge credits John Ferejohn with coining the term "interpretive regime." ESKRIDGE, supra note 17, at 276; Eskridge & Frickey, supra note 88, at 66.
124. Eskridge & Frickey, supra note 88, at 66; see also ESKRIDGE, supra note 17, at 276-77.
125. Rosenkranz, supra note 14, at 2141-42.
126. Id. at 2142.
127. Eskridge & Frickey, inpra note 88, at 66.
128. Id.
129. Id. at 67; ,see also ESKRIDGE, supra note 17, at 277; Tyler, supra note 20, at 1420 (noting that consistently applied interpretive principles "ha[ve] the potential... to reap efficiency gains... for the drafters of legislation").
130. See, e.g., Frank Easterbrook, Statutes' Domains, 50 U. CHI. L. REV. 533, 540 (1983); Rosenkranz, supra note 14, at 2142 (noting that whether courts adopt the expressio unius canon or a conflicting canon is "relatively insignificant... so long as all concerned-legislators, judges, and citizens-know what the rule is" so that they can draft statutes accordingly).
131. See Chisom v. Roemer, 501 U.S. 380, 417 (1991) (Scalia, J., dissenting) (stating that the Court's "highest responsibility in the field of statutory construction is to read the laws in a consistent way, giving Congress a sure means by which it may work the people's will"); McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, 57 LAW & CONTEMP. PROBS., Winter & Spring 1994, at 3, 13; Tyler, supra note 20, at 1420; cf. ESKRIDGE, supra note 17, at 277 ("As an agent of the legislature, the Court does its job best when it comes up with a transparent interpretive regime-a coherent and clear set of textual and substantive canons-for that allows legislators to coordinate their bargaining activities and predict the application of their statutes most easily."); Eskridge & Ferejohn, supra note 124, at 274 (arguing that "legislative action is conditioned by expectations of court behavior and cannot be comprehended independently of those expectations").
132. See Eskridge & Ferejohn, supra note 124, at 268.
133. ESKRIDGE, supra note 17, at 234, 283-84; Eskridge, supra note 70, at 683-84; Eskridge & Frickey, supra note 88, at 85; see also Breyer, supra note 41, at 872; cf. Pennsylvania v. Union Gas Co., 491 U.S. 1, 35 (1989) (Scalia, J., concurring in part and dissenting in part) (arguing that overruling Hans v. Louisiana, 134 U.S. 1 (1890), would work a bait-and-switch on post-Hans Congresses that had relied on Hans), overruled by Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (19%). At times, the Court itself has attempted to mitigate this bait-and-switch problem by considering the interpretive principles that were in place at the time Congress passed the statute being interpreted. See supra text accompanying notes 85-86. Usually, however, the Court refuses to apply older interpretive principles to statutes, opting instead to apply newer principles regardless of whether it upsets the expectations of the enacting Congress. See supra note 87.
134. See Daniel A. Farber, Statutory Interpretation and Legislative Supremacy, 78 GEO. L.J. 281, 283-94 (1989) (describing the scope of the legislative supremacy principle); cf. Slawson, supra note 70, at 416 ("The principle of legislative supremacy requires that Congress be able to predict how its statutes will be interpreted.").
135. Eskridge & Frickey, supra note 88, at 67.
136. Id.; see also Eskridge & Ferejohn, supra note 124, at 282-84.
137. Vermeule, supra note 15, at 140; see also Finley v. United States, 490 U.S. 545, 556 (1989) ("[W]hat is of paramount importance is that Congress be able to legislate against a background of clear interpretive rules.").
138. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393,406 (1932) (Brandeis, J., dissenting).
139. See ESKRIDGE, supra note 17, at 278; see also Rosenkranz, supra note 14, at 2142-43.
140. See, e.g., Payne v. Tennessee, 501 U.S. 808, 827 (1991) ("Stare decisis is the preferred course because it promotes... predictable[] and consistent development of legal principles...."); Stefanie A. Lindquist & Frank B. Cross, Empirically Testing Dworkin's Chain Novel Theory: Studying the Path of Precedent, 80 N.Y.U. L. REV. 1156, 1159-60 (2005).
141. See, e.g., ESKRIDGE, supra note 17, at 231; Elizabeth Garrett, Legal Scholarship in the Age of Legislation, 34 TULSA L.J. 679, 688 (1999); Robert A. Katzmann, Bridging the Statutory Gulf Between Courts and Congress: A Challenge for Positive Political Theory, 80 GEO. L.J. 653, 662 (1992); Abner J. Mikva, Reading and Writing Statutes, 48 U. PITT. L. REV. 627, 629 (1987); Richard A. Posner, Statutory Interpretation-in the Classroom and in the Courtroom, 50 U. CHI. L. REV. 800, 806 (1983).
142. See Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. REV. 575, 600-05 (2002) (summarizing findings along these lines based on a series of interviews with attorneys in the Legislative Counsel's office and legislative staffers). For example, at least some legislators are aware of Justice Scalia's textualist approach. See, e.g., Joan Biskupic, Scalia Sees No Justice in Trying To Judge Intent of Congress on a Law, WASH. POST, May 11, 1993, at A4 (noting that Representative Barney Frank argued that a committee report should not be used to resolve a dispute because of Justice Scalia). In addition, some evidence suggests that Congress knows the Chevron default. See Elizabeth Garrett, Legislating Chevron, 101 MICH. L. REV. 2637, 2656-57 (2003) (describing empirical studies suggesting this fact, but questioning the studies and noting that the knowledge of the Chevron doctrine might not affect legislative drafting); cf. McNary v. Haitian Refugee Ctr. Inc., 498 U.S. 479, 496 (1991) ("It is presumable that Congress legislates with knowledge of our basic rules of statutory construction....").
143. See Tyler, supra note 20, at 1420-21 & n.149; see also ESKRIDGE, supra note 17, at 279. Moreover, only if there were empirical certainty about Congress's inability to respond to clearer interpretative doctrine would there be a convincing argument that giving stare decisis effect to statutory interpretation doctrine cannot reap rule-of-law and coordination benefits. The present empirical uncertainty about whether Congress can respond to a regime of stare decisis for statutory interpretation methodology is not sufficient on its own to defeat the argument for giving stare decisis effect to statutory interpretation methodology addressed in this section. Cf. Vermeule, supra note 15, at 147-48 (making an analogous argument).
144. See ESKRIDGE, supra note 17, at 279; VERMEULE, supra note 21, at 145; Eskridge & Ferejohn, supra note 124, at 282; Eskridge & Frickey, supra note 88, at 67-68; see also Rosenkranz, supra note 14, at 2143.
145. See VERMEULE, supra note 21, at 145; Eskridge & Ferejohn, supra note 124, at 284.
146. See ESKRIDGE, supra note 17, at 279. For more examples, see, VERMEULE, supra note 21, at 145 (noting the distributive consequences of many clear statement rules of the Rehnquist Court).
147. See ESKRIDGE, supra note 17, at 279-30.
148. See Sunstein, supra note 94, at 412 (characterizing the choice among competing interpretive norms as "inevitably value-laden").
149. See Alexander Volokh, Choosing Interpretive Methods: A Positive Theory of Judges and Everyone Else, 83 N.Y.U. L. REV. 769, 777-78 (2008); cf. ELHAUGE, supra note 15, at 5-6 (observing that statutory interpretation is unlike the area of contracts and corporate law, where it is generally assumed that all parties want the most efficient default rules). For examples of different positions on the canons, see id., at 13-14 (arguing that courts should apply default rules in the following order of preference: (1) "current preferences default rules," (2) "enactor preferences default rules," (3) "preference-eliciting default rules," and (4) "supplemental default rules"); David L. Shapiro, Continuity and Change in Statutory Interpretation, 67 N.Y.U. L. REV. 921 (1992) (arguing for canons of construction that emphasize continuity over change); Sunstein, supra note 94, at 463 (proposing a set of canons meant to "promote constitutional purposes and to improve the operation of deliberative government" in the regulatory state); Tyler, supra note 20 (arguing for canons of interpretation that emphasize continuity and coherence).
150. Put differently, the expressio unius canon requires courts to "assume[] that a statutory list is exhaustive unless the legislature has clearly provided that the list is merely illustrative[.]" Vermeule, supra note 15, at 75.
151. Eskridge & Ferejohn, supra note 124, at 283; see, e.g., ELHAUGE, supra note 15, at 189; Posner, supra note 142, at 813. But see Geoffrey P. Miller, Pragmatics and the Maxims of Interpretation, 1990 WIS. L. REV. 1179, 1183, 1195-96 (arguing that the expressio unius canon is consistent with Paul Grice's philosophy of language and suggesting that this "homolog[y]" means that such canons "capture something important about the meaning of words").
152. U.S. CONST. art. I, § 1; see, e.g., John F. Manning, Textualism as a Non-Delegation Doctrine, 97 COLUM. L. REV. 673, 695 (1997).
153. U.S. CONST. art. I, § 7; see also supra notes 5-7 and accompanying text.
154. See Erin O'Hara, Social Constraint or Implicit Collusion?: Toward a Game Theoretic Analysis of Stare Decisis, 24 SETON HALL L. REV. 736, 744-47 (1993).
155. To extend the analysis to courts that consist of a number of multi-member panels, the focus must change from the proportion of judges holding particular normative views to the proportion of panels in which those views can prevail. Under both a regime of no stare decisis and a regime of stare decisis, (he proportion of decisions that are attractive from the perspective of any given normative theory depends only on the proportion of panels with a majority of judges willing to sign on to that normative theory. By taking an intertemporal perspective, this analysis can also be extended to a court that consists of a single multi-member panel. Under both a regime of no stare decisis and a regime of stare decisis, the proportion of decisions that are attractive from the perspective of any given normative theory depends only on the proportion of panels over time with a majority of judges willing to sign on to that normative theory.
156. That giving doctrines of statutory interpretation stronger stare decisis effect than courts give doctrines of substantive law will result in higher error costs does not affect the analysis. The important point is that if the net benefits of stare decisis in the statutory interpretation setting exceed the net benefits of stare decisis in the substantive law setting, it follows that doctrine should reflect this different cost-benefit calculus such that the stare decisis effect that statutory interpretation methodology precedents receive is stronger than the stare decisis effect that substantive law precedents receive.
157. The Supreme Court has articulated the interests served by stare decisis doctrine on many occasions. See, e.g., Payne v. Tennessee, 501 U.S. 808, 827 (1991) ("Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process."). For literature offering an overview of the many rationales for following precedent, see Daniel A. Farber, The Rule of Law and the Law of Precedents, 90 MINN. L. REV. 1173, 1177-80 (2006); Kronman, supra note 56, at 1037-40; Lawson, Mostly Unconstitutional supra note 39, at 9-11; Earl Maltz, The Nature of Precedent, 66 N.C. L. REV. 367 (1988); and Frederick Schauer, Precedent, 39 STAN. L. REV. 571, 595-602 (1987). For literature analyzing particular rationales for following precedent, see, for example, Jill E. Fisch, The Implications of Transition Theory for Stare Decisis, 13 J. CONTEMP. LEGAL ISSUES 93 (2003); Lee, supra note 70; Jonathan R. Macey, The Internal and External Costs and Benefits of Stare Decisis, 65 CHI.-KENT L. REV. 93 (1989); Christopher J. Peters, Foolish Consistency: On Equality, Integrity, and Justice in Stare Decisis, 105 YALE L.J. 2031, 2037 (1996).
158. In theory, predictability is, of course, not the same as stability. See Lewis A. Kornhauser, An Economic Perspective on Stare Decisis, 65 CHI.-KENT L. REV. 63, 77 (1989). In practice, however, as Evan Caminker has observed, "change in legal rules is often difficult to foresee," and thus "only the preservation of legal precedent can ensure a high degree of predictability." Caminker, supra note 30, at 851 n.142.
159. See Lee, supra note 70, at 648-51; Richard A. Posner, Past-Dependency, Pragmatism, and Critique of History in Adjudication and Legal Scholarship, 67 U. CHI. L. REV. 573, 591 (2000). Under a regime of stare decisis, parties may face increased costs in precedent-setting cases because of a higher investment in those cases. Those increased costs are, however, "dwarfed" by the cost savings for parties described in the text. VERMEULE, supra note 21, at 224; Todd J. Zywicki, The Rise and Fall of Efficiency in the Common Law: A Supply-Side Analysis, 97 NW. U. L. REV. 1551, 1581 (2003).
160. As then-Judge Cardozo noted, "the labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one's own course of bricks on the secure foundation of the courses laid by others who had gone before him." BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 149 (1921); see also Thomas R. Lee, Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court, 52 VAND. L. REV. 647, 652 (1999); Schauer, supra note 158, at 599-600. Importantly, many scholars have argued that courts also save costs under a regime of stare decisis for reasons that are independent of the impact stare decisis has on the number of cases and issues courts decide. See, e.g., Macey, supra note 158, at 95 (arguing that stare decisis facilitates "specialization" by judges and thus reaps efficiency gains); O'Hara, supra note 155, at 743 (same). And although a regime of stare decisis increases some costs of judging by imposing costs of identifying relevant precedents and determining whether precedents should be overruled, those increased costs are not offset by the other cost savings for courts. See Maltz, supra note 158, at 370.
161. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 855-56 (1992) (O'Connor, Kennedy, and Souter, JJ.). Scholars have questioned whether reliance interests furnish an adequate justification for stare decisis. See, e.g., Fisch, supra note 158, at 111-12; Maltz, supra note 158, at 368-69. The answer to this question is not, however, relevant for purposes of this Article, because to the extent that stare decisis does serve reliance interests, it does so to similar degrees in the statutory interpretation methodology and substantive law contexts. See text accompanying notes 162- 63.
162. Cf. Tyler, supra note 20, at 1420 (noting that consistently applied interpretive principles "ha[ve] the potential... to reap efficiency gains... for... those actors who must adapt their behavior based upon a prediction of how the court will interpret certain statutory law (e.g., whether a new standard will be read strictly or permissively)").
163. See, e.g., Payne v. Tennessee, 501 U.S. 808, 827 (1991); Farber, supra note 158, at 1178-79; Schauer, supra note 158, at 595-97.
164. See Casey, 505 U.S. at 854; Lindquist & Cross, supra note 141, at 1160.
165. See Casey, 505 U.S. at 866; Vasquez v. Hillery, 474 U.S. 254, 265-66 (1986); THOMAS G. HANSFORD & JAMES F. SPRIGGS II, THE POLITICS OF PRECEDENT ON THE U.S. SUPREME COURT 19 (2006).
166. VERMEULE, supra note 21, at 118-19. As Vermeule points out, a particular approach to interpretation may be justified on several grounds, and unless all grounds require coordination, the approach is not necessarily unjustified when judicial coordination cannot be assumed. See id. at 119.
167. For purposes of this Article, by "critical mass," I mean the proportion of judges whom can be counted on to follow a given doctrine under a regime of stare decisis. To state the point in the text a bit more precisely: suppose that under a regime of no stare decisis, only a% of judges will adhere to a particular approach, while under a regime of stare decisis, b% of judges will adhere to that approach, where a > b. Under a regime of no stare decisis, judges can reasonably adopt any approach that can be justified when less than or equal to a% of judges adopt the approach. In contrast, under a regime of stare decisis, judges can reasonably adopt any approach that can be justified when less than or equal to b% of judges adopt the approach. Thus a regime of stare decisis expands the set of possible approaches that judges can rightly adopt as compared with a regime of no stare decisis. To be sure, if an approach can be justifiably adopted only when greater than b% of judges adopt the approach, then stare decisis cannot furnish a rationale for adopting the approach. But for stare decisis to have a salutary effect on this dimension, it need only increase the set of sound rules; it need not increase that set to the maximum extent possible. Vermeule seems to express some skepticism that a doctrine of precedent can result in sufficient coordination. See id. at 130. Critically, however, Vermeule concedes that judicial coordination is not impossible, see id. at 132, and to the extent that Vermeule is arguing that stare decisis doctrine cannot result in the necessary coordination, his argument is unconvincing because it is overbroad. Cf. ELHAUGE, supra note 15, at 333 (arguing that vertical stare decisis can achieve necessary coordination in the lower courts for preference-eliciting default rules).
168. See, e.g., ROSENKRANZ, supra note 14, at 2144; Scalia, supra note 11, at 36-37; see also VERMEULE, supra note 21, at 192-97 (making a more sophisticated version of this argument that relies on decision theory).
169. See Rosenkranz, supra note 14, at 2144; Siegel, Judicial Interpretation, supra note 45, 406-14 (making this argument and offering some "crude statistical analysis" to support the empirical proposition that an individual Justice eschewing legislative history does not necessarily have a marginal impact on the use of legislative history in Supreme Court briefs). But see VERMEULE, supra note 21, at 226.
170. Eskridge, supra note 73, at 2054 n.43.
171. See, e.g., VERMEULE, supra note 21, at 132-34 (contending that some arguments for textualism, the canon of avoidance, clear statement rules, nondelegation canons, and the rule of lenity require coordination); Bernard W. Bell, Using Statutory Interpretation To Improve the Legislative Process: Can It Be Done in the Post-Chevron Era?, 13 J.L. & POL. 105, 151-56 (1997); Siegel, Judicial Interpretation, supra note 45, at 406-14. But see ELHAUGE, supra note 15, at 332-34 (arguing that some of the rules that Vermeule contends require coordination do not, in fact, require coordination).
172. See, e.g., Fisch, supra note 158, at 94; Lee, supra note 70, at 654; Emily Sherwin, Judges as Rulemakers, 73 U. CHI. L. REV. 919, 925 (2006). Oona Hathaway has analyzed how stare decisis doctrine should be changed to account for another cost-the cost of path dependence. See Oona A. Hathaway, Path Dependence in the Law: The Course and Pattern of Legal Change in a Common Law System, 86 IOWA L. REV. 601, 651-55 (2001) (arguing that courts should grant less deference to precedent when the costs of path dependence are likely to be high); see also VERMEULE, supra note 21, at 127.
173. Lewis Komhauser has developed a four-part taxonomy for the sources of such error "changes in values, changes in die world, improvements in information, and incompetence." Komhauser, supra note 159, at 68.
174. See supra notes 145-55 and accompanying text; Eskridge & Frickey, supra note 88, at 67-68.
175. See supra notes 155-56 and accompanying text
176. Compare, e.g., SPAETH & SEGAL, supra note 1, at 287 (conducting an empirical study examining whether the votes of Supreme Court Justices who initially dissented from controlling opinions changed in subsequent cases to support the controlling opinion, and concluding that they did so only about twelve percent of the time), with, e.g., Emerson H. Tiller & Frank B. Cross, What Is Legal Doctrine?, 100 NW. U. L. REV. 517, 525 n.36 (2006) (collecting studies criticizing SPAETH & SEGAL, supra note 1); Howard Gillman, What's Law Got To Do with It? Judicial Behavioralists Test the 'Legal Model' of Judicial Decision Making, 26 LAW & SOC. INQUIRY 465 (2001) (reviewing SPAETH & SEGAL, supra note 1).
177. See, e.g., SPAETH & SEGAL, supra note 1, at 287 (acknowledging findings that precedent constrained judges about twelve percent of the time); Fisch, supra note 158, at 95-96. See generally HANSFORD & SPRIGGS, supra note 166, at 9-13, 129 (describing scholarship about whether precedent actually constrains judges); Abramowicz & Stearns, supra note 56, at 1047; Michael J.
178. See, e.g., HANSFORD & SPRIGGS, supra note 166, at 27 (developing a model in which Supreme Court Justices follow the doctrine of stare decisis as a way of imposing their policy preferences on existing precedent and as a way of legitimizing new policy choices); Ethan Bueno de Mesquita & Matthew Stephenson, Informative Precedent and Intrajudicial Communication, 96 AM. POL. SCI. REV. 755 (2002) (developing a model in which policy-oriented higher-court judges adhere to stare decisis as a way of improving their ability to communicate with lower-court judges); cf. Nelson, supra note 27, at 48-49 (describing why judges might want to adopt a doctrine of stare decisis despite the fact that it limits their discretion).
179. The blow would not necessarily be fatal because the interests served by the doctrine of stare decisis are stronger in the statutory interpretation methodology context as compared with the substantive law context. Thus the degree to which stare decisis constrains judges need not be as high in the statutory interpretation context as it is in the substantive law context in order to justify imposition of the doctrine. Moreover, it could be that judges would respond quite differently to extra-strong stare decisis as compared with regular stare decisis.
180. In addition to the practical question addressed in the text, this Article raises the practical question of which institution-courts or Congress-should, from a policy perspective, initiate the change, and how exactly the change should be initiated. Cf. supra note 40 (describing the related question of which institution can, from a constitutional perspective, initiate the change). For example, if the Supreme Court should be the actor to initiate change, should it do so in one fell swoop in a particular opinion, and if so, how should it choose the opinion in which to make the change? These questions are interesting ones but are complicated enough that they are beyond the scope of this Article, which addresses only what is the best doctrine from a policy perspective.
181. Cf. Vermeule, supra note 15, at 144-45 (asking a similar question about whether stare decisis doctrine applies to the Court's practice of giving statutory precedents super-strong stare decisis effect and noting the importance of determining whether the transition costs of changing to a particular interpretive approach are worth the benefits).
182. See supra note 123 and accompanying text.
183. See supra note 123 and accompanying text.
184. See supra section II.B.2.
185. See Lee, supra note 70, at 669-70.
186. See id. at 650-51, 669-70. Similarly, reliance interests are not as strong when the legal regime displaced by a predictable regime is unpredictable rather than predictable. Cf. Vermeule, supra note 15, at 145 n.279 (arguing that a "move to a rule excluding legislative history would [probably not] be too destabilizing" because "there is no real doctrinal status quo with respect to legislative history, so there is nothing to destabilize"). Moreover, reliance interests having to do with already-interpreted statutes are already protected because opinions interpreting substantive statutory law get stare decisis effect regardless of whether the methods that were employed to interpret those statutes would still be used. See, e.g., Frickey, supra note 19, at 1976. Thus, the only reliance interests that might be unprotected by a switch to a regime of stare decisis for statutory interpretation methodology have to do with yet-to-be interpreted statutes. But the post-regime-change interpretation of any given statute is likely to be one of the pre-regime-change interpretations that the statute was susceptible to, given that post-regime-change decisions will generally employ principles of interpretation that had some basis in pre-regime-change precedent. Any reliance interests arising out of the pre-regime-change approach to interpretation are therefore quite weak.
187. Patterson v. McLean Credit Union, 491 U.S. 164, 173 (1989) superseded by statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1072, as recognized in Landgraf v. USI Film Prods., 511 U.S. 244 (1994); see Lee, supra note 70, at 669-70. For a Supreme Court case holding that overruling a precedent was permissible on the ground that the precedent was "unworkable," see, Payne v. Tennessee, 501 U.S. 808, 827-28 (1991). See generally Lauren Vicki Stark, Note, The Unworkable Unworkability Test, 80 N.Y.U. L. REV. 1665 (2005) (describing the Court's doctrine on unworkability).
188. See Slawson, supra note 70, at 415 ("It might be thought that subjecting statutory interpretation to the rule of law would be impossible, because a person could no more be compelled to give a statute he read a certain meaning than he could be compelled, say, to give an apple he ate the taste of an orange."); cf. JAMES BRADLEY THAYER, A PRELIMINARY TREATISE ON EVIDENCE AT THE COMMON LAW 314 n.1 (1898) ("The law has no mandamus to the logical faculty; it orders nobody to draw inferences."). There is a constitutional dimension to this argument, see supra note 41; cf. Rosenkranz, supra note 14, at 2102-06 (considering the related question of whether congressionally created rules of interpretation are a violation of the separation of powers principle because they impinge on the judicial power and concluding that they are not).
189. See Slawson, supra note 70, at 415-16.
190. FED. R. EVID. 404(a).
191. See, e.g., CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, EVIDENCE UNDER THE RULES 1 (5th ed. 2004); Frederick Schauer, On the Supposed Jury-Dependence of Evidence Law, 155 U. PA. L. REV. 165,178-79(2006).
192. See, e.g., Hammer v. United States, 271 U.S. 620, 626 (1926). See generally Charles L. Barzun, Rules of Weight, 83 NOTRE DAME L. REV. (forthcoming May 2008) (manuscript at 8-9, on file with author) (discussing this and other rules of weight in evidence law).
193. Richard H. Fallen, Jr., The Supreme Court, 1996 Term-Foreword: Implementing the Constitution, 111 HARV. L. REV. 54, 57 (1997); see also id. at 67-74 (describing other kinds of tests and offering a typology for the tests).
194. See id. at 88-90; see also, e.g., Ian Ayres & Sydney Foster, Don't Tell, Don't Ask: Narrow Tailoring After Grutter and Gratz, 85 TEX. L. REV. 517, 521-27, 541-65 (2007) (describing the intricate narrow-tailoring prong of the strict scrutiny test).
195. U.S. CONST. amend. XIV.
196. See Slawson, supra note 70, at 384,415-16.
197. Cf. United States v. Andersen, 895 F.2d 641, 647-48 (9th Cir. 1990) (Kozinski, J., dissenting) (noting that sentencing courts are required under 18 U.S.C. § 3553(a) to consider the Sentencing Commission's Commentary to the Sentencing Guidelines and that "[i]t would be reversible error for a district court to refuse to consider Guidelines Commentary when imposing sentence; surely, the same is true of the court of appeals" (footnote omitted)).
198. See, e.g., ROBERT S. SUMMERS, LON L. FULLER 122 (1984); Daniel A. Farber, The Inevitability of Practical Reason: Statutes, Formalism, and the Rule of Law, 45 VAND. L. REV. 533, 540-41 (1992); Siegel, supra note 14, at 341; Cass R. Sunstein, Principles, Not Fictions, 57 U. CHI. L. REV. 1247, 1254 (1990); see also J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int'l, Inc., 534 U.S. 124, 156 (2001) (Breyer, J., dissenting).
199. The literature on the distinction between rules and standards is vast. See, e.g., Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 DUKE L.J. 557 (1992); Kathleen M. Sullivan, The Supreme Court, 1991 Term-Foreword: The Justices of Rules and Standards, 106 HARV. L. REV. 22 (1992).
200. See, e.g., Frederick Schauer, The Tyranny of Choice and the Rulification of Standards, 14 J. CONTEMP. LEGAL ISSUES 803, 804, 806-07 (2005) (listing several standards from the substantive law setting).
201. There may, however, be a concern that stare decisis doctrine would favor rules over standards, resulting in a greater proportion of rules than exist in the current regime, a result that would be objectionable to those who favor standards over rules generally or in particular circumstances. For example, it may be more difficult to overrule a precedent establishing the rule that courts may not consult legislative history than it is to overrule a precedent establishing a standard for when courts may consult legislative history, as the former is more likely to be workable than the latter. See supra note 188 (describing the unworkability doctrine). More generally, there may be a concern that the distribution of doctrines under a regime of stare decisis would differ from the current distribution on multiple dimensions beyond the rules/standards dimension. That the distributions might change is not, however, a justification for not giving stare decisis effect to statutory interpretation doctrine. To the contrary, by hypothesis, these shifts in distributions should occur only if courts conclude that such distributions better balance all of the relevant known costs and benefits, including transition costs and benefits. By contrast, the current regime does not factor transition costs and benefits into the calculus and is thus inferior.
202. See Lee, supra note 70, at 675-76; cf. Daniel J. Meltzer, The Supreme Court's Judicial Passivity, 2002 SUP. CT. REV. 343, 409 n.255 (2002) ("Statutory interpretation is an art, and I do not believe that meta-instructions can be shaped with sufficient determinacy that they can effectively order judges who may be otherwise inclined to adopt what Congress might view as a more 'correct' approach to decision making."); Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1182 (1989) (arguing that "at the point where an appellate judge says that the remaining issue must be decided on the basis of the totality of the circumstances, or by a balancing of all the factors involved," he has "passed the point where 'law,' properly speaking, has any further application," and, as a consequence, "equality of treatment is difficult to demonstrate and, in a multi-tiered judicial system, impossible to achieve; predictability is destroyed; judicial arbitrariness is facilitated; judicial courage is impaired").
203. See, e.g., State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 429 (2003) (Scalia, J., dissenting); Ewing v. California, 538 U.S. 11, 31 (2003) (Scalia, J., concurring in the judgment); Itel Containers Int'l Corp. v. Huddleston, 507 U.S. 60, 78-79 (1993) (Scalia, J., concurring in part and concurring in the judgment) (stating his belief that stare decisis requires adherence to precedent only when such adherence serves the "principal purposes of stare decisis, which are to protect reliance interests and to foster stability in the law" but that "[n]either of those purposes is significantly furthered by... apply[ing]... vague and open-ended tests").
204. Cf. Rosenkranz, supra note 14, at 2150-51 (making the same point about a federal rule about consulting legislative history).
205. Cf. id. at 2147-48 (arguing that Congress should adopt a rule along the following lines: "[w]hen Courts have recourse to a dictionary in interpreting any federal statute enacted after this one, it shall be the Oxford English Dictionary, second edition, and no other"). To be effective-and coherent-the rule proposed in the text about "Webster's would require further specification, of course. For example, it would need to identify what dictionary to consult for statutes passed before the date of publication for the first edition of Webster's Dictionary and which version of Webster's Dictionary should be authoritative, as over time many versions have been created, including versions labeled "New International" and "New Collegiate." Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Has Become a Fortress: The United States Supreme Court's Use of Dictionaries, 47 BUFF. L. REV. 227, 236-38 (1999) (describing the history of Webster's).
206. See Rosenkranz, supra note 14, at 2147-48.
207. Id. at 2147.
208. See Farber, supra note 158, at 1203; see also Hayden C. Covington, The American Doctrine of Stare Decisis, 24 TEX. L. REV. 190, 193 (1945).
209. 543 U.S. 371 (2005).
210. See Siegel, supra note 14, at 339-40).
211. See id. at 340; Clark, 543 U.S. at 378-85.
212. See Siegel, supra note 14, at 340-41.
213. Schauer, supra note 201, at 803.
214. Relatedly, rules about standards that take particular approaches off the table usefully constrain future interpreters. For example, the "practical reasoning" approach to statutory interpretation is often criticized as "a purely intuitive, ad hoc method of reaching conclusions." Farber, supra note 199, at 541. Even its advocates, however, state that there are limits to what counts as acceptable reasoning under the approach, see id. at 542, and thus if courts were to give stare decisis effect to decisions employing practical reasoning, these unacceptable approaches could be weeded out from the case law. Cf. Farnsworth, supra note 94, at 98 (noting the benefits of taking particular approaches off the table).
215. See Siegel, supra note 14, at 357-58 (contending that the Court adopted this principle in Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667 (1986), and Shalala v. Illinois Council on Long Term Care, Inc., 529 U.S. 1 (2000)).
216. 517 U.S. 690 (1996).
217. Id. at 698 (internal quotation marks omitted).
218. Id.
219. To the extent that cases make such judgments explicitly, they may establish "sub-sub-principles" and thus may employ the second mechanism described in this section.
220. Grundfest & Pritchard, supra note 45, at 640, 681; see also Richard A. Posner, Legislation and Its Interpretation: A Primer, 68 NEB. L. REV. 431, 40 (1989).
221. Grundfest & Pritchard, supra note 45, at 682.
222. See Eric Lane, Legislative Process and Its Judicial Renderings: A Study in Contrast, 48 U. PITT. L. REV. 639, 650 (1987) ("[A]though some bills are intentionally vague, this occurs infrequently."); Nourse & Schacter, supra note 143, at 594 (noting that "[s]taffers regularly cited two clarity-undermining dynamics: the lack of sufficient time and the phenomenon of deliberate ambiguity").
223. See Rosenkranz, supra note 14, at 2155.
224. See supra notes 177-80 and accompanying text.
225. See Molot, supra note 44, at 8-12.
226. See supra notes 145-54 and accompanying text.
227. See supra note 146 and accompanying text.
228. See supra notes 155-56 and accompanying text.
229. Bell, supra note 172, at 150-51; see also VERMEULE, supra note 21, at 155; J. Clark Kelso & Charles D. Kelso, Statutory Interpretation: Four Theories in Disarray, 53 SMU L. REV. 81, 82 (2000).
230. Frederick Schauer has recently addressed a closely related-but different-concern: that judicial decisionmaking can result in suboptimal substantive rules because the facts of the dispute can have a distorting effect on judicial reasoning about the optimal rule. See Frederick Schauer, Do Cases Make Bad Law?, 73 U. CHI. L. REV. 883, 894-95 (2006). To the extent that this phenomenon exists, however, it exists to a similar degree with respect to substantive law doctrine and statutory interpretation doctrine. This concern is thus not a reason for treating substantive law and statutory interpretation doctrine differently with respect to stare decisis.
231. See Farnsworth, supra note 94, at 97-98.
232. See id.
233. Of course, the rule of lenity is not distributionally neutral, so this example also suggests that when selecting among competing interpretive principles that are not distributionally neutral, substantive policy preferences do not always dictate judges' choices.
234. Cf. Bell, supra note 172, at 152 (stating that uniformity in interpretive method will be difficult for courts to achieve because of "judicial interest in the substantive issues" and the "small likelihood that the Supreme Court will take cases primarily to resolve... methodological issues"); cf. also Ellen P. Aprill & Nancy Staudt, Theories of Statutory Interpretation (and Their Limits), 38 LOY. L. A. L. REV. 1899, 1904 (2005) (arguing that "judges will not constrain themselves by the new-textualism in cases when it interferes with what they perceive as the best and most rational outcome for a given case").
235. See supra pp. 1906-07.
236. See Evan H. Caminker, Precedent and Prediction: The Forward-Looking Aspects of Inferior Court Decisionmaking, 73 TEX. L. REV. 1, 11-12 (1994); Schauer, supra note 158, at 589.
237. Rosenkranz, supra note 14, at 2151-53 (arguing that the latter proposal is superior to the former one). Gary O'Connor has offered another competing solution, proposing that the American Law Institute create a Restatement of Statutory Interpretation to help alleviate the problem of inconsistent approaches. See O'Connor, supra note 19, at 334. My proposal and O'Connor's proposal are not mutually exclusive. Giving stare decisis effect to doctrines of interpretation is, however, more likely to bring needed consistency to doctrines of statutory interpretation, given that O'Connor's proposed Restatement would lack the force of law.
238. For a debate about the constitutionality of Rosenkranz's proposal, compare Rosenkranz, supra note 14, at 2140 (contending that legislation about interpretation is generally constitutional but noting that the Constitution does impose some limits on such legislation), with Alexander & Prakash, supra note 41, at 109 (arguing that it is unconstitutional for Congress to legislate prospective mandatory rules of interpretation). For a discussion of the constitutionality of my proposal, see supra note 39-41 and accompanying text.
239. See Rosenkranz, supra note 14, at 2108-09 (describing a taxonomy of the constitutional status of rules of interpretation and noting that some rules are "constitutional mandatory rule[s]" that Congress may not change).
240. See Cass R. Sunstein & Adrian Vermeule, Interpretation and Institutions, 101 MICH. L. REV. 885, 890 n. 13 (2003).