The inexorable radicalizaron of textualism

University of Pennsylvania Law Review

Volumn 158, Issue 1, 2009, Pages 117-178

  Siegel, Jonathan R ^a  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

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EID: 74049089308     PISSN: 00419907     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (385)

1. See, e.g, William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621 (1990);
2. James M. Landis, A Note on "Statutory Interpretation," 43 HARV. L. REV. 886 (1930);
3. John F. Manning, Deriving Rules of Statutory Interpretation from the Constitution, 101 COLUM. L., REV. 1648 (2001);
4. Max Radin, Statutory Interpretation, 43 HARV. L. REV. 863 (1930);
5. Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405 (1989);
6. Adrian Vermeule, The Cycles of Statutory Interpretation, 68 U. CHI. L. REV. 149 (2001);
7. Patricia M. Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 IOWA L. REV. 195 (1983).
8. See infra Part I.
9. 'Id.
10. Id.
11. See generally sources cited supra note 1.
12. See infra subsections III.B.1-2. Compare Barnhart v. Sigmon COAL CO., 534 U.S. 438, 462 (2002) (refusing to "alter the text" of a statute in order to satisfy "policy" concerns), with id. at 462-63 (Stevens, J., dissenting) (arguing against the majority's holding on the ground that it "produces absurd results"); Conroy v. Aniskoff, 507 U.S. 511, 517-18 (1993) (using legislative history in statutory interpretation), with id at 518-28 (Scalia.J., concurring) (arguing that the majority's appeal to legislative history was improper in the face of an unambiguous statutory command); United States v. Locke, 471 U.S. 84, 93-94 (1985) (adhering to a literal reading of the plain language of a statute), with id. at 117 (Stevens, J., dissenting) (arguing that the majority's reliance on text was "contrary to the intent of Congress").
13. See Jonathan T. Molot, The Rise and Fall of Textualism, 106 COLUM. L. REV. 1 (2006);
14. Caleb Nelson, What Is Textualism?, 91 VA. L. REV. 347 (2005).
15. Molot, supra note 7, at 35-36.
16. Id. at 30.
17. Id. at 59.
18. Id.
19. Id. at 64.
20. Nelson, supra note 7, at 372-403.
21. Id. at 34849, 352-53, 372.
22. Id. at 349, 353-54.
23. 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, 22 (Amy Gutmann ed., 1997) (emphasis added); see also United States ex rel Feingold v. AdminaStar Fed., Inc., 324 F.3d 492, 495 (7th Cir. 2003) ("[T]he text is the law, and it is the text to which we must adhere."); United States v. Evans, 148 F.3d 477, 483 n.8 (5di Qr. 1998) (quoting the statement from Scalia, supra); Frank H. Easterbrook, The Role of Original Intent in Statutory Construction, 11
24. HARV. J.L. & PUB. POL'Y 59, 60 (1988) ("The words of the statute, and not die intent of the drafters, are the 'law.'").
25. Omychund v. Barker, (1744) 26 Eng. Rep. 15, 23 (Ch.) (argument of counsel) (emphasis omitted).
26. See RICHARD A. POSNER, HOW JUDGES THINK 204 (2008) (noting that academic criticism is "potentially a powerful constraint" on judicial behavior because judges care about their reputation and about being good judges).
27. Molot, supra note 7, at 59.
28. See Green v. Bock Laundry Mach. Co., 490 U.S. 504, 527 (1989) (Scalia, J., concurring) (noting that it is appropriate to depart from statutory text that produces "an absurd, and perhaps unconstitutional, result"); John F. Manning, The Absurdity Doctrine, 116 HARV. L. REV. 2387, 2388 (2003) (noting that the absurd results exception "flourished even during the most textually oriented periods of the [Supreme] Court's history").
29. See, e.g, United States v. X-Citement Video, Inc., 513 U.S. 64, 82 (1994) (Scalia, J., dissenting) (noting approval of the "scrivener's error" doctrine); Scalia, supra note 16, at 20 (same).
30. See infra Section III A.
31. See infra Section III.B.
32. E.g., Scalia, supra note 16, at 16;Jonadian R. Siegel, Textualism and Contextualism in Administrative Law, 78 B.U. L. REV. 1023 (1998).
33. Nelson, supra note 7, at 352; Scalia, supra note 16, at 16-17, 22-23; see also cases cited supra note 16.
34. Scalia, supra note 16, at 22.
35. Id. at 23 (quoting OLIVER WENDELL HOLMES, The Theory of Legal Interpretation, in COLLECTED LEGAL PAPERS 203,207 (1920)).
36. Id. at 17,35.
37. Nelson, supra note 7, at 351-52; Patricia M. Wald, the Sizzling Sleeper: The Use of Legislative History in Construing Statutes in the 1988-89 Term of the United States Supreme Court, 39 AM. U. L. REV. 277, 281, 301 (1990).
38. Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982) (emphasis added); see also id. at 577 (Stevens, J., dissenting) ("In final analysis, any question of statutory construction requires the judge to decide how the legislature intended its enactment to apply to the case at hand."); Reiche v. Smythe, 80 U.S. (13 Wall.) 162, 164 (1871) ("If it be true that it is the duty of the court to ascertain the meaning of the legislature from the words used in the statute and the subject-matter to which it relates, there is an equal duty to restrict the meaning of general words, whenever it is found necessary to do so, in order to carry out the legislative intention." (citing Brewer's Lessee v. Blougher, 39 U.S. (14 Pet.) 178,198 (1840))).
39. As noted above, textualists regularly proclaim that "the text is the law." It is less common for intentionalists to say that "the intent is the law." In the famous Chevron case from administrative law, the Supreme Court did make the frequently quoted
40. Statement that "[i]f a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect" Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984) (emphasis added). But Chevron was more a statement about die distribution of power between the legislature and the executive than a statement about how to interpret the commands of the legislature. The case is not generally understood as commanding courts to adopt intentionalism as an interpretive method, and one should not put too much weight on the choice of words in this one sentence.
41. HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW 1374 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994). Hart and Sacks immediately add the qualification that the court should make sure "that it does not give the words ... a meaning thiey will not bear." Id. Also, the purposivist does not seek simply to carry out the intention of the legislature with respect to the question at issue in a given case, but the purposivist does focus on statutory purposes and believes that statutes must be presumed to be purposive acts. Id. at 1124.
42. Id. at 1125.
43. Id. at 1124 (italics omitted).
44. For an extended argument to the contrary, see ADRIAN VERMEULE, JUDGING UNDER UNCERTAINTY: AN INSTITUTIONAL THEORY OF LEGAL INTERPRETATION (2006). Vermeule argues that textualists and intentionalists could "bracket" their disagreement about goals because, given the empirical uncertainty about the usefulness of different methods, they should reach the same conclusions about the best methods regardless of which of their goals is correct Id. at 2, 7.
45. See Siegel, supra note 24, at 1029-30 (noting that much of the interpretation debate focused on this conflict).
46. Compare John F. Manning, Textualism and the Equity of the Statute, 101 COLUM. L. REV. 1, 98-108 (2001) (contending that judges cannot engage in "equitable interpretation" of a statute), with William N. Eskridge.Jr., All About Words: Early Understandings of the "Judicial Power" in Statutory Interpretation, 1776-1806,101 COLUM. L. REV. 990 (2001) (responding to Manning's argument).
47. Molot, supra note 7, at 30.
48. Id. at 29-30. Molot uses the term "purposivism" to cover both purposivism and intentionalism. Id. at 3 & n.2.
49. See id at 25.
50. Id.
51. Id at 28.
52. Id.
53. Id. at 25.
54. See, e.g., Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 HARV. J.L. & PUB. POL'Y 61, 68 (1994) ("Intent is elusive for a natural person, fictive for a collective body.").
55. Molot, supra note 7, at 30-31.
56. Id at 34-35.
57. Id. at 35.
58. Id. Molot suggests that there are still some differences among the schools of drought regarding how interpreters should consult context, but he regards these differences as minor. Id. at 36-40.
59. Id. at 59.
60. Id. at 48-51.
61. Id. at 59-60, 69.
62. Id at 2.
63. Id. at 30.
64. Zd. at 43. 36 Zd. at 4.
65. See sujpra notes 24-31 and accompanying text.
66. Nelson, supra note 7, at 353-54 (emphasis added).
67. Id. at 354. Nelson recognizes that textualists "might not embrace" his description of their approach, id. at 417, which is also putting it mildly. Leading textualists deny the very existence of the legislative intent that Nelson claims they seek to implement E.g., Easterbrook, supra note 45, at 68.
68. Nelson, supra note 7, at 356.
69. Id at 355.
70. Even with regard to the most noted distinction between the methods, the textualists' rejection of legislative history, Nelson sees the issue as arising primarily from a disagreement about legislative history's reliability rather than its legitimacy. Id at 362-63. Nelson recognizes that textualists also apparently object to legislative history as illegitimate, but he sees this as a repackaging of their concern about reliability. Id at 364-65.
71. See id. at 372-73 (arguing that this contrast is capable of generating most of the methodological debates between textualists, who incline toward the rule-based approach, and intentionalists, who favor the more holistic approach). This textualist preference for rules, Nelson suggests, applies both to the textualists' preference for applying fixed rules of statutory interpretation rather than a looser holistic approach and to their preference for interpreting statutes so that the statutes themselves impose rules, as opposed to standards. Id.
72. See id. at 373 ("[T] he methodological differences between judges whom we think of as textualists and judges whom we think of as intentionalists might relate less to the basic goals of interpretation than to the assumptions and attitudes that interpreters bring to their common task.").
73. John F. Manning, Textualism and Legislative Intent, 91 VA. L. REV. 419, 423-26 (2005) [hereinafter Manning, Nelson Response]; John F. Manning, What Divides Textual-
74. istsfromPurposivists?, 106 COLUM. L. REV. 70, 75-76 (2006) [hereinafter Manning, Molot Response].
75. See Manning, Nelson Response, supra note 66, at 423.
76. See id. at 421, 423-24 (noting that textualists seek "a sort of 'objectified' intent-
77. the intent that a reasonable person would gather from the text of the law, placed alongside the remainder of the corpus juris" (internal quotation marks omitted) (quoting Scalia, supra note 16, at 17)).
78. Manning, Molot Response, supra note 66, at 91.
79. Id. at 92-93.
80. Id.
81. Id at 79 (internal quotation marks omitted) (quoting White v. United States, 191 U.S. 545, 551 (1903)).
82. Id at 80 (internal quotation marks omitted) (quoting Scalia, supra note 16, at 37). 74 Zd. at 81-83.
83. See id. at 84 ("[T]extualists recognize that the relevant context for a statutory text includes die mischiefs the authors were addressing. Thus, when a statute is ambiguous, textualists think it quite appropriate to resolve that ambiguity in light of the sta-
84. tute's apparent overall purpose." (footnotes omitted)); see also Manning, supra note 20, at 2408 ("[T]extualists believe it is appropriate, if not necessary, for an interpreter to consider a statute's apparent background purpose or policy implications in choosing among competing interpretations.").
85. See Manning, Molot Response, supra note 66, at 85-91 ("Contrary to popular perception, prevailing methods of purposivism rely on many of the methods that textualists hold dear.").
86. Molot, supra note 7, at 3.
87. See, e.g, id. at 66-68 (examining MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218 (1994), and FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000), cases in which the statutory text at issue was not starkly clear).
88. See infra Part III.
89. Scalia, supra note 16, at 22.
90. Id. at 23 (quoting HOLMES, supra note 27, at 207); see also id. at 22-23 ("I don't care what their intention was. I only want to know what the words mean." (internal quotation marks omitted) (quoting an unpublished letter by Justice Holmes)).
91. See Manning, Aceton Response, supra note 66, at 419-20.
92. See id. at 420, 423; Molot, supra note 7, at 28 ("Because legislation has no single author, but instead is enacted by many different officials, textualists could deny the existence of coherent statutory purposes without embracing a radical postmodern view
93. regarding indeterminacy of language."); see also Easterbrook, supra note 45, at 68 ("Intent is elusive for a natural person, fictive for a collective body.... [N]o 'meaning'... can be imputed to the legislature.").
94. See Manning, Nelson Response, supra note 66, at 420; Scalia, supra note 16, at 32.
95. See, e.g., Adrian Vermeule, Legislative History and the Limits of Juthcial Competence: The Untold Story o/Holy Trinity Church, 50 STAN. L. REV. 1833, 1838 (1998) (questioning juthcial competence to discern legislative intent from legislative history given structural features of the juthcial process).
96. See Manning, Molot Response, supra note 66, at 86 (noting the canonical status of Hart and Sacks) ; see generally HART & SACKS, supra note 32.
97. HART & SACKS, supra note 32, at 1124-25.
98. Manning, supra note 20, at 2416-17; see also Manning, Molot Response, supra note 66, at 103.
99. See Manning, Molot Response, supra note 66, at 104 ("Whatever else might be said of the legislative process, it is quite clear that, in aggregate, the complex legislative procedures create many opportunities for legislators, committees, or minority coalitions to slow or stop the progress of legislation, often if not always making some form of compromise essential to the bill's ultimate passage."); seeatoWlliam N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning 42 STAN. L. REV. 321, 334-35 (1990) (noting how public-choice theory, interest-group theory, and more traditional institutional political theory posit that the legislative process fails to produce statutes reflecting legislative purpose or intent).
100. See Manning, supra note 20, at 2411-12.
101. Molot, supra note 7, at 35.
102. Siegel, supra note 24, at 1057.
103. See Molot, supra note 7, at 32-33 (noting that "textualism has had a measurable impact on judges and Justices who do not include thiemselves among textualism's adherents" and that such judges now "heed textualism's warnings about the pitfalls of strong purposivism" and have "alterfed] their approach to statutory interpretation").
104. Scalia, supra note 16, at 22 (emphasis added).
105. See id. at 22-23 (quoting Felix Frankfurter, Some Reflections on the Reading of Statutes, 57 COLUM. L. REV. 527, 538 (1947)).
106. See, e.g., id. at 35 ("A statute ... has a claim to our attention simply because Article I, Section 7 of the Constitution provides that since it has been passed by the prescribed majority... it is a law.").
107. See, e.g, Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia J., concurring in die judgment) ("The greatest defect of legislative history is its illegitimacy. We are governed by laws, not by the intentions of legislators.
108. As the Court said in 1844: "The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself.'" (quoting Aldridge v. Williams, 44 U.S. (3 How.) 9, 24 (1845))).
109. Scalia, supra note 16, at 35.
110. Molot, supra note 7, at 36;
111. see also Nelson, supra note 7, at 347-48 (asserting that the "textualist" label "tends toward caricature" and that the rhetoric used to define textualism and intentionalism exaggerates the distinction between the two approaches).
112. Cf. Frank H. Easterbrook, Statutes'Domains, 50 U. CHI. L. REV. 533, 536 (1983) ("The invocation of 'plain meaning' just sweeps under the rug the process by which meaning is divined.").
113. Molot, supra note 7, at 35; see also Nelson, supra note 7, at 348 ("[N]o 'textualist' favors isolating statutory language from its surrounding context.").
114. Molot, supra note 7, at 40.
115. Id. at 35 (emphasis added).
116. See, e.g, LUDWIG WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS pt. I, §§138-242 (G.E.M. Anscombe trans., 3d ed. 1958) (arguing that textual meaning depends on common usage);
117. see also Easterbrook, supra note 100, at 536 (citing Wittgenstein for this point).
118. See, e.g., John F. Manning, The Eleventh Amendment and the Reading of Precise Constitutional Texts, 113 YALE L.J. 1663, 1703 & n.146 (2004) (discussing this point and noting that "texts are sometimes determinate in context");
119. Frederick Schauer, Formalism, 97 YALE L. J. 509, 526 (1988) (disclaiming the view that language can be perfecdy understood without attention to context, yet asserting that "some number of linguistic conventions, or rules of language, are known and shared by all people having competence in the English language").
120. See 1 PENG XINWEI, A MONETARY HISTORY OF CHINA xlvi-xlvii, 249-57 (Edward H. Kaplan trans., 1994).
121. Id. at 250-51.
122. Id at 252-54.
123. Id. at 252.
124. Peng states that among historians and numismatists who have debated the origins of the crescent for centuries, the one point of general agreement is that the crescent was first made by an empress's fingernail. Id But he suggests the alternative possibility that the crescent represents the moon and appeared as the result of the influence of foreign coins that bore images of the moon.
125. Id. at 252-54.
126. Pub. L. No. 109-2, 119 Stat 4 (codified as amended in scattered sections of 28 U.S.C). After this Article was drafted, and some four years after the original adoption of CAFA, Congress fixed the error discussed herein, effective December 1, 2009. See Statutory Time-Periods Technical Amendments Act of 2009, Pub. L. No. 111-16, §§6(2), 7, 123 Stat 1607, 1608-09 (to be codified at 28 U.S.C. §1453(c)(1)).
127. CAFA §4(a), 28 U.S.C. §1332(d) (2006). Where the amount in controversy exceeds $5,000,000, the Act permits a class action based on "minimal diversity"diversity between any one plaintiff class member and any one defendant-contrary to the normal requirement of "complete diversity."
128. Id. §5(a), 28 U.S.C. §1453(b). Contrary to normal principles, the Act permits removal without regard to whether any defendant is a citizen of the forum state, and it also permits removal by any one defendant without the consent of other defendants.
129. Id This "normal principle" is established by 28 U.S.C. §1447(d), which provides that "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise."
130. CAFA §5(a), 28 U.S.C. §1453(c)(1).
131. Id. (emphasis added).
132. See Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 354 (1976) (Rehnquist, J., dissenting) ("Congress' purpose in barring review of all remand orders has always been very clear-to prevent the additional delay which a removing party may achieve by seeking appellate reconsideration of an order of remand."), abrogated by Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996).
133. S. REP. NO. 109-14, at 49 (2005) (emphasis added). This report is actually not part of the "legislative history" of CAFA because it was not finished until after CAFA had already become law.
134. Compare id. at 1 (noting that the report was ordered printed on February 28, 2005), with CAFA, Pub. L. 109-2, 119 Stat 4, 14 (2005) (noting that CAFA was signed into law on February 18, 2005).
135. Judicial consideration of such postenactment legislative history would offend the constitutional rule against congressional self-aggrandizement See Jonathan R. Siegel, The Use of Legislative History in a System of Separated Powers, 53 VAND. L. REV. 1457, 1520-24 (2000) (arguing against judicial use of postenactment legislative history on grounds that "use of legislative materials is permissible because statutes may be deemed to incorporate them by reference," and that because legislators cannot have relied on and incorporated postenactment legislative history when voting, such text should not be used). But in this case the report only confirms what other indicators already strongly suggest
136. CAFA §5(a), 28 U.S.C. §1453(c) (2). Some extensions of this time are allowed, but without the consent of the parties the court can extend the time only by ten days. Id. If the appeal is not resolved within the time limits, it must be denied.
137. Id. §5(a), 28 U.S.C§1453(c)(3).
138. See, e.g, FDICv. Craft, 157 F.3d 697, 697 (9th Cir. 1998) (providing an example of an appeal resolved more than four years after oral argument).
139. See generally Siegel, supra note 24 (arguing for judicial use of background understandings as a guide to statutory interpretation).
140. See, e.g., 29 U.S.C. §626(d) (2006) (imposing a sixty-day waiting period after filing a charge with the Equal Employment Opportunity Commission before bringing a suit under the Age Discrimination in Employment Act); 42 U.S.C. §2000e-5(f)(1) (2006) (establishing a similar 180-day waiting period before bringing suit under Title VII of the Civil Rights Act of 1964).
141. See, e.g., 28 U.S.C. §1292(b) (imposing a ten-day appeal period for discretionary interlocutory appeals);
142. id. §2101(a) (imposing a thirty-day appeal period for cases subject to direct appeal to the Supreme Court);
143. id. §2107 (a) (imposing a thirty-day appeal period from entry of judgment in district court in civil cases);
144. id. §2107 (b) (imposing a sixty-day appeal period in cases in which the United States is a party);
145. FED. R. APP. P. 4(b) (1) (imposing a ten-day appeal period for criminal cases).
146. See Pritchett v. Office Depot, Inc., 420 F.3d 1090, 1093 n.2 (10th Cir. 2005) (noting the "seven-day waiting period followed by a limidess window for appeal").
147. See Adam N. Steinman, "Less" Is "More"? Textualism, Intentionalism, and a Better Solution to the Class Action Fairness Act's Appellate Deadline Riddle, 92 IOWA L. REV. 1183, 1187-89 (2007) (noting that this provision in CAFA is the opposite of what Congress meant, as made clear by the fact that "CAFA is accompanied by uniquely reliable evidence of legislative intent").
148. See, e.g., Molot, supra note 7, at 35, 40.
149. See Manning, supra note 20, at 2458-65.
150. See id. at 2465-76.
151. Id. at 2392-93;
152. Molot, supra note 7, at 34-35;
153. Scalia, supra note 16, at 23.
154. Of course, some textualists would escape this result by applying the "absurd results" exception. See infra Part III.
155. Estate of Pew v. Cardarelli, 527 F.3d 25, 27-28 (2d Cir. 2008);
156. Morgan v. Gay, 466 F.3d 276, 279 (3d Cir. 2006); Miedema v. Maytag Corp., 450 F.3d 1322, 1326 (11th Cir. 2006);
157. Amalgamated Transit Union Local 1309 v. Laidlaw Transit Servs., Inc., 435 F.3d 1140, 1146 (9th Cir. 2006), reh'g denied 448 F.3d 1092 (9th Cir. 2006);
158. Pritchett v. Office Depot, Inc., 420 F.3d 1090,1093 n.2 (10th Qr. 2005).
159. But see Spivey v. Vertrue, Inc., 528 F.3d 982, 983-85 (7th Cr. 2008) (taking a slighdy different approach that allows appeals widhin seven days but does not reject appeals after seven days). The courts have not held that "less" means "more"; they have held that the statute should be implemented as though it contained the word "more" rather than "less."
160. See, e.g., Amalgamated Transit Union, 435 F.3d at 1146;
161. Pritchett, 420 F.3d at 1093 n.2.
162. For a sample of Judge Kozinski's views, see generally Alex Kozinski, Should Reading Legislative History Be an Impeachable Offense?, 31 SUFFOLK U. L. REV. 807 (1998).
163. Amalgamated Transit Union, 448 F.3d at 1096 (Bybee, J., dissenting) (internal quotation marks omitted) (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917)).
164. Id. at 1095 (emphasis added). Judge Bybee's suggestion that the majority opinion amounted to an abuse of power is particularly striking when one remembers that he is the same person who, in his previous capacity as Assistant Attorney General for the Office of Legal Counsel, signed the "torture memo" that declared that the President could disregard a statutory prohibition against torture-presumably without, in Bybee's opinion, abusing any power. Memorandum from Jay S. Bybee, Assistant Att'y Gen., Office of Legal Counsel, to Alberto R. Gonzales, Counsel to the President 46 (Aug. 1, 2002), available at http://www.washingtonpost.com/wp-srv/nation/documents/ dojinterrogationmemo20020801.pdf.
165. Molot, supra note 7, at 3.
166. Id. at 30.
167. Nelson, supra note 7, at 353-54 (emphasis added).
168. Manning, supra note 20, at 2459 & n.263.
169. Aristode argued against textualism when he recommended that "in a situation in which the law speaks universally, but the case at issue happens to fall outside the universal formula, it is correct to rectify the shortcoming, in other words, the omission and mistake of the lawgiver due to the generality of his statement." ARISTOTLE, NICOMACHEAN ETHICS §1137b, at 142 (Martin Ostwald trans., 1962). Aristode relied on the intentionalist principle that "[s]uch a rectification corresponds to what the lawgiver himself would have said if he were present, and what he would have enacted if he had known [of this particular case]."
170. Id.
171. See generally Jonathan R. Siegel, What Statutory Drafting Errors Teach Us About Statutory Interpretation, 69 GEO. WASH. L. REV. 309 (2001).
172. See, e.g, id. at 358 &n.221.
173. In the case of CAFA, even an intentionalist or purposivist might decide, in the end, to apply the statute as written. Reading the statute as though it said "not more than 7 days" would, one can be confident, implement the legislative intent, but it would turn the statute into a dangerous trap for the unwary litigant An intentionalist reading of statutory text would often have the effect of removing a trap for the unwary, see, e.g., United States v. Locke, 471 U.S. 84, 117-19 (1985) (Stevens, J., dissenting), but in this case it would create one. A lawyer checking the statute to see when to file an appeal from a district court's ruling on a remand motion in a class action would be in danger of losing the right to appeal altogether. If the lawyer simply did what the statute said and applied for permission to appeal after first waiting seven days, the appeal would, under the proposed statutory reading, be jurisdictionally out of time. In light of this problem, a court might well conclude that the statute does not pose an appropriate occasion for judicial reform of statutory text and that it would be better to put up with the incongruities produced by applying the statute as written.
174. See Spivey v. Vertrue, Inc., 528 F.3d 982, 984-85 (7th Qr. 2008).
175. Nelson devotes attention to the problem of statutory drafting errors and recognizes that it appears to undercut the claim that textualists seek to implement legislative intent, but he concludes that it shows only that textualists are more cautious than intentionalists in concluding that statutory text reflects a drafting error. See Nelson, supra note 7, at 377-83.
176. For more on this point, see infra Section IIIA.
177. Molot, supra note 7, at 35.
178. See, e.g., Nelson, supra note 7, at 356.
179. See, e.g., Molot, supra note 7, at 35;
180. Nelson, supra note 7, at 355.
181. See Nelson, supra note 7, at 355-56.
182. See Molot, supra note 7, at 2.
183. Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 203 (1819).
184. U.S. Nat'l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 462 (1993).
185. The Supreme Court's use of the term "scrivener's error" in this context is actually quite recent The Court's rejection of literal reading of statutory text that produces an "absurd result" is more than a century old, see, e.g., Heydenfeldt v. Daney Gold & Silver Mining Co., 93 U.S. 634, 638 (1876), but theNational Bank case is die first in which the Court invoked theterm "scrivener's error" in exercising the power of statutory correction.
186. Neither theCourt nor any Justice used theterm before 1985, when Justice Stevens used it in his opinion in United States v. Locke, 471 U.S. 84, 123 (1985) (Stevens, J., dissenting). Older cases from other courts show theterm used almost invariably in connection with errors made either by private parties in drafting contracts or similar instruments or by courts or court clerks in connection with judgments. Courts consider themselves empowered to disregard such errors.
187. See, e.g., Christensen v. Felton, 322 F.2d 323, 325 (9th Qr. 1963) (disregarding a scrivener's error in a contract). But at least some older cases use theterm with reference to judicial reform of statutes.
188. See, e.g., In re Deuel, 101 N.Y.S. 1037, 1038-39 (N.Y. App. Div. 1906) (correcting a "scrivener's error" diat resulted in the omission of theterm "not" in a statute).
189. See Green v. Bock Laundry Mach. Co., 490 U.S. 504, 527-30 (1989) (Scalia, J., concurring) (applying the absurd results exception);
190. Scalia, supra note 16, at 20-21.
191. See, e.g., Nelson, supra note 7, at 356.
192. See Siegel, supra note 24, at 1100-01.
193. See, e.g., WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION 45-46 ( 1994) ;
194. Veronica M. Dougherty, Absurdity and the Limits of Literalism: Defining the Absurd Result Principle in Statutory Interpretation, 44 AM. U. L. REV. 127, 158-59 (1994);
195. Melvin Aron Eisenberg, Strict Textualism, 29 LOY. L.A. L. REV. 13, 29 (1995);
196. Siegel, supra note 24, at 1100;
197. Siegel, supra note 142, at 333-35.
198. Nelson, supra note 7, at 356;
199. see also Scalia, supra note 16, at 20 ("The objective import of such a statute is clear enough.").
200. See supra Part II.
201. The case is different from cases in which appropriate attention to context can provide thenecessary clue to textual meaning. See, e.g., infra notes 195-97 and accompanying text Here, thecontext indicates that the statutory phrase "not less dian 7 days" conflicts with thelikely legislative intent, but it does not change themeaning of thephrase.
202. See cases cited supra note 132.
203. See Morgan v. Gay, 466 F.3d 276, 278-79 (3d Cir. 2006); Miedema v. Maytag Corp., 450 F.3d 1322, 1326 (11th Cir. 2006);
204. Amalgamated Transit Union Local 1309 v. Laidlaw Transit Servs., Inc., 435 F.3d 1140, 1146 (9th Cir. 2006), reh'g denied, 448 F.3d 1092 (9th Cir. 2006);
205. Pritchett v. Office Depot, Inc., 420 F.3d 1090, 1093 n.2 (10th Cir. 2005).
206. The fifth court did say, "We join our sister circuits in interpreting the statute to mean 'not more than 7 days,'" Estate of Pew v. Cardarelli, 527 F.3d 25, 28 (2d Cir. 2008), which could be understood as saying that thecourt really held that to be themeaning of thestatutory text. But thecourt's use of theterm "interpreting" leaves the matter a little unclear, and thecourt also relied on the"'uncontested legislative intent,'" id.
207. (quoting Morgan, 466 F.3d at 277), so thebasis of thecourt's holding is not entirely certain. The court only devoted a single paragraph to the issue.
208. It may be true, as Nelson claims, that a certain degree of error correction is inherent in theprocess of understanding text If CAFA said that a court of appeals could accept an appeal that was brought "not morr than seven days" after entry of a district court's order, a faithful reader might correct "morr" to "more," because "morr" is not a word at all. Even if theerroneous text were an actual word, but a word that led to no grammatical meaning at all-if, for example, thestatute permitted acceptance of an appeal brought "not moor than seven days" after entry of thedistrict court's ordercorrection to "more" would be appropriate and could still be considered part of faithfully ascertaining (as opposed to changing) themeaning of thetext; that is, it could still be consistent with an interpretive method called "textualism." But this is because theinterpreter might validly assume that thetext to be interpreted has some meaning, and in these examples refusal to correct "morr" or "moor" to "more" would leave a text that has no coherent meaning whatsoever. By contrast, where, as in theactual CAFA, the text has a perfectly grammatical meaning, correcting even an obvious error necessarily changes, rather dian ascertains, themeaning of thetext Such change is inconsistent widi the fundamental axiom of textualism. Indeed, in accordance with theprogressive radicalization of textualism that this Article chronicles, one might foresee a day when textualists would reject even thecorrection of errors that leave text with no meaning. See infra note 304.
209. Seinfeld: The Bubble Boy (NBC television broadcast Oct 6, 1992).
210. Eisenberg, supra note 156, at 29.
211. See supra note 17 and accompanying text.
212. Manning, supra note 20.
213. Id. at 2388.
214. Id. at 2390.
215. Id.at 2454.
216. See id. at 2390.
217. Id. In a footnote, Manning admits thepossibility of applying thescrivener's error doctrine, but he suggests that it should be limited to cases involving ungrammatical or internally inconsistent statutory text-for example, when a statute contains a cross-reference to the wrong statutory section. See id at 2459 n.265.
218. VERMEULE, supra note 35.
219. Id. at 192-205.
220. Id. at 20, 38-39.
221. Id. at 83.
222. Manning also relies on formalist, constitutional reasoning that draws on the bicameralism and presentment requirements of Article I, Section 7, although his reasoning is more subde dian simply asserting diat, by virtue of these requirements, statutory text is thelaw. See Manning, supra note 20, at 2431-46. Vermeule eschews constitutional justification and reaches his conclusions solely on institutional and empirical grounds.
223. See VERMEULE, supra note 35, at 10, 30.
224. John C. Nagle, Textualism's Exceptions, ISSUES IN LEGAL SCHOLARSHIP, 2002, http://www.bepress.com/ils/iss3/ art15.
225. Id. at 2.
226. Id.
227. Id. at 2-3.
228. Id. at 2.
229. Nagle also relies on some more pragmatic arguments: he claims that theabsurd results exception undermines therole of Congress in correcting its own mistakes, id. at 3-4, wastes the time of courts and advocates who must consider whether the exception applies in any given case, id at 5, rarely comes up anyway, id at 5, and could be done without, id. at 8. But he is clear that the dleoretical clash between the absurd results exception and therule that statutory text is thelaw is a prime basis for his rejection of the absurd results principle. Id, at 1-2.
230. Molot, supra note 7, at 35.
231. Id. at 48.
232. Id. at 43.
233. The CAFA error provides a good illustration of thedistinction between the absurd results doctrine and the scrivener's error doctrine. As I have previously explained, see Siegel, supra note 142, at 326-32, thedoctrines embody subdy but significandy different assertions about judicial power. The absurd results exception, at least according to themore stringent textualists, applies where a statute as written could not serve any plausible purpose without regard for the legislature's actual purpose.
234. See, e.g., Clinton v. City of New York, 524 U.S. 417, 455 (1998) (Scalia,J., concurring in part and dissenting in part) ("It may be unlikely that this is what Congress actually had in mind; but it is what Congress said, it is not so absurd as to be an obvious mistake, and it is therefore the law."). The scrivener's error exception applies where it is obvious that the statutory text deviates from legislative intent and it is also obvious what thelegislature intended, without regard to whether theresult following from thestatutory text would be absurd.
235. See Siegel, supra note 142, at 326-32;
236. see also Andrew S. Gold, Absurd Results, Scrivener's Errors, and Statutory Interpretation, 75 U. CIN. L. REV. 25, 56-57 (2006). Although an absurd result may certainly follow from a scrivener's error, so that botth exceptions may apply to the same statutory text, either exception may also apply when the other does not. CAFA's error does not produce a result that is absurd; as noted above, see supra note 123 and accompanying text, there are situations in which Congress imposes a waiting period before a party may take some action, and Congress could, theoretically, have intended to do so in CAFA. But surely the text is erroneous, and surely it is clear what Congress intended.
237. Amalgamated Transit Union Local 1309 v. Laidlaw Transit Servs., Inc., 448 F.3d 1092,1097 (9di Cir. 2006) (Bybee, J., dissenting).
238. Id. at 1098. Apparendy, these judges would limit theexception to cases in which a scrivener's error has caused thelegislature to produce a nonsensical or ungrammatical sentence (and there are certainly plenty of those, see, e.g., 28 U.S.C. §158 (2006) (referring to thepower of "thecourt of appeals in which theappeal in pending")) and to cases of erroneous statutory cross-references.
239. See Amalgamated Transit Union, 448 F.3d at 1097 (Bybee.J., dissenting).
240. Amalgamated Transit Union, 448 F.3d at 1099 (Bybee.J., dissenting).
241. Id. at 1096 (alterations in original) (internal quotation marks omitted).
242. Id.
243. Scalia, supra note 16, at 20; see also K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 324 n.2 (1988) (Scalia, J., concurring in part and dissenting in part) ("[I]t is a venerable principle that a law will not be interpreted to produce absurd results.").
244. Amalgamated Transit Union, 448 F.3d at 1098 (Bybee, J., dissenting).
245. See Nagle, supra note 177, at 5 ("[I]t is surprising how difficult it is to locate any recent reported cases in which either the absurd results rule or the scrivener's error rule unequivocally defeated the plain meaning of the statutory text").
246. Actually, it is a close question whedier rejection of the absurd results principle or of considering purpose in statutory construction would be the more significant development or the better proof of the distance diat remains between interpretive methods. Purposive argumentation affects more cases, but the absurd results exception has a bigger impact on the cases it does affect
247. Smith v. United States, 508 U.S. 223, 241-42 (1993) (Scalia, J., dissenting);
248. see also Scalia, supra note 16, at 23-24.
249. 508 U.S. at 242-44 (Scalia, J., dissenting).
250. See United States v. Kirby, 74 U.S. (7 Wall.) 482, 487 (1868) (citing Puffendorf's discussion of this statute). The doctor in the hypothetical is prosecuted for letting the blood of a person who falls down in the street in a fit, even though this treatment was in accordance with the medical practice of the time.
251. Id.
252. Manning, supra note 20, at 2461-62.
253. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 325 (1988) (Scalia, J., concurring in part and dissenting in part).
254. In re Cavanaugh, 306 F.3d. 726, 731 (9th Cir. 2002);
255. see also FEC v. Toledano, 317 F.3d 939, 948 (9th Cir. 2002)
256. (quoting In re Cavanaugh, 306 F.3d at 731).
257. Walton v. United Consumers Club, Inc., 786 F.2d 303, 310 (7th Cir. 1986).
258. Manning, Molot Response, supra note 66, at 76.
259. Id at 103. Manning's approach is more realist than formalist Although he ties his analysis to the constitutional enactment process, his concern does not seem to be that text enacted by that process simply is the law so much as that the complexities of the process require compromises and that the necessity for compromise makes it inappropriate to assume that statutes should always be interpreted so as to fulfill their overall purposes.
260. For example, in Toledano, the defendant had violated the clear statutory requirement that "[e]very person who receives a contribution for an audiorized political committee shall, no later than 10 days after receiving such contribution, forward to the treasurer such contribution." 2 U.S.C. §432 (2006). The defendant argued that his behavior should be excused because it did not implicate any purpose of the statute inasmuch as the treasurer had learned of the contribution in time to file statutorily required reports.
261. Toledano, 317 F.3d at 947. It was diis argument that the court rejected on the ground that "Congress enacts statutes, not purposes."
262. Id. at 948.
263. In re Cavanaugh, 306 F.3d at 731.
264. This is an inevitable feature of writing about statutory interpretation. Each example typically requires the reader to learn fine details of a different, and often unfamiliar, statutory scheme. Jonathan R. Siegel, The Polymorphic Principle and the Judicial Role in Statutory Interpretation, 84 TEX. L. REV. 339, 354 (2005).
265. 549 U.S. 483 (2007).
266. Id. at 485.
267. 48 U.S.C. §1423a (2006);
268. see also 549 U.S. at 485-86.
269. 549 U.S. at 486.
270. Id. at 485-86.
271. Id.
272. Id.
273. Id.
274. GUAM CODE ANN. tit 11, §24102(f) (2003); 549 U.S. at 486.
275. GUAM CODE ANN. tit 11, §24103. The assessment and tax values have since been amended.
276. See infra note 232.
277. In re Request of Governor Felix P. Camacho, 2003 Guam 16 ¶ 1.
278. 549 U.S. at 492.
279. Id at 488-89.
280. Id. at 489.
281. Id. at 489-90.
282. Id. at 491.
283. Id. at 492 (Souter, J., concurring in part and dissenting in part).
284. Id.
285. Id. at 495.
286. Id.
287. Id. at 495 n.5.
288. The result is as curious as it would be if Congress had decreed that no state could have a speed limit higher than "fifty-five" but had left it up to each state's legislature to specify the units involved, so that a state could have whatever speed limit it wanted simply by specifying that "fifty-five" referred to something other than miles per hour.
289. 549 U.S. at 491.
290. The statement is questionable because even though property owners might well notice if the legislature multiplied their assessments by ten, those same property owners would surely also notice that dieir tax had not changed if the legislature simultaneously divided the tax rate by ten. So it is hard to see what "political check" would exist on this maneuver.
291. Guam's Attorney General asserted that the use of assessed value "ties the [Guam] legislature's ability to incur debt to its willingness to tax." 549 U.S. at 495 (Souter.J., concurring in part and dissenting in part). But this is not so: assessed value is an arbitrary figure that has nothing to do with willingness to tax. A legislature that sets assessed value at 35% of appraised value does not display only half as much willingness to tax as a legislature that sets assessed value at 70% of appraised value because the legislature can always adjust the tax rate to achieve the desired level of taxation. By contrast, appraised value is not arbitrary: it is tied to market realities, and taxpayers have an incentive to ensure that the appraised value of their property is not unrealistically high.
292. In 2007, Guam doubled assessed value to 70% of appraised value but cut the tax rate to 0.125% for land and 0.5% for improvements. GUAM CODE ANN. tit. 11, §§24102(f), 24103 (2007). Two years later, Guam used the same ploy again. In 2009, Guam raised assessed value to 90% of appraised value but cut the tax rate to 7/72 of 1% for land and 7/18 of 1% for improvements.
293. GUAM CODE ANN. tit. 11, §§24102(f), 24103 (2009). Simple multiplication shows that these changes are purely cosmetic and do not alter taxes by a penny. Guam's actions show that its statutory debt limit, as interpreted by the Supreme Court, is no limit at all.
294. 549 U.S. at 485-86.
295. Contrary to the Court's reasoning, reading the term "tax valuation" to mean "appraised valuation" would not drain the word "tax" of meaning. As Justice Souter pointed out, even if the term "tax valuation" referred to appraised value, it would still be limited to the appraised value actually used for tax purposes, as opposed to any other appraised value, particularly an appraised value used solely for calculating Guam's debt limit Id at 492-93 (Souter.J., concurring in part and dissenting in part).
296. 550 U.S. 81 (2007).
297. Id. at 84-85;
298. see also Impact Aid Act, 20 U.S.C. §§7701-7709 (2006).
299. 20 U.S.C. §7701; 550 U.S. at 84-85.
300. 20 U.S.C. §7709(a); 550 U.S. at 85.
301. 20 U.S.C. §7709(b)(1); 550 U.S. at 85.
302. 20 U.S.C. §7709(b)(2)(A); 550 U.S. at 85. The determination is made with regard to expenditures (or revenues) in the second year preceding the year for which the determination is made. §7709(b)(2)(A). Also, the statute permits the determination to be made with regard to per-pupil revenues as well as per-pupil expenditures, id., but the Court referred to per-pupil expenditures throughout its opinion.
303. 20 U.S.C. §7709 (b)(2) (B) (i).
304. Id The actual statutory text uses the phrase "local educational agencies," see id., but the Court, throughout its opinion, used the simpler phrase "school districts" in place of "educational agencies."
305. 550 U.S. at 86.
306. Id.
307. Under either mediod, the Secretary would have to decide how to handle fractions. That is, whether the Secretary disregarded 5% of school districts or school districts that account for 5% of the state's student population, the Secretary would have to decide what to do if the 5% limit were reached in the middle of a school district The statute gives no clear instruction on this point However, the fractions problem is not relevant to the interpretive issue posed by the Zuni case. It was ignored by the Court and will be similarly ignored here.
308. 550 U.S. at 88.
309. The choice between four and five would have depended on the Secretary's resolution of the fractions problem. See supra note 245.
310. 550 U.S. at 89.
311. Brief for the Federal Respondent at 23, Zuni, 550 U.S. 81 (No. 05-15-0) [hereinafter Government's Zuni Brief].
312. 550 U.S. at 88.
313. Id.
314. Id.
315. The Court noted that it was departing from its "normal order of discussion" by not considering the language first, which it justified on the basis of "the technical nature of the language in question." Id at 90. As Justice Scalia observed in dissent, one also suspects that the Court inverted the normal order because it found the history and purpose arguments so powerful.
316. Id at 108-09 (Scalia, J., dissenting).
317. Id. at 90 (majority opinion).
318. Id.
319. Id.
320. Id.
321. See id.;
322. Zuni Pub. Seh. Dist No. 89. v. U.S. Dep't of Educ., 393 F.3d 1158, 1161 (10th Cir. 2004).
323. 550 U.S. at 90-91.
324. Id at 90-95.
325. The differences can be even starker than in Zuni In New Mexico, as noted above, the smallest school district has fifty-seven students. Ohio has three school districts that each have no more than six students. Government's Zuni Brief, supra note 249, at 32 n. 12.
326. In Zuni, disregarding only 5% of the school districts at each end of the ranked list would have resulted in disregarding less than 2% of the state's student population, radier than the 10% of the student population allowed by the Secretary's mediod. 550 U.S. at 91-93.
327. Id.
328. Id.
329. Id. at 90-91.
330. Id. at 111-12 (Scalia,J., dissenting).
331. Id.
332. Id. at 109-10.
333. Id. at 117.
334. Id. at 121.
335. Id.
336. Id. at 122.
337. Scholars have expressed doubts on this score and have suggested that legislative history may be as likely to mislead a court as to help it discern true legislative intent. VERMEULE, supra note 35, at 90;
338. Nelson, supra note 7, at 363-64.
339. But see Manning, supra note 20, at 2417 (suggesting that courts cannot tell whether apparendy odd statutory language reflects such an unrecorded compromise).
340. 550 U.S. at 106 (Stevens, J., concurring). Of course, the possibility remains that, notwithstanding how clearly the agency intended the language to codify its existing practice, the members of Congress who voted for the language understood it differently. Still, as Justice Stevens observed, the language did come from the agency, and the sponsors of the legislation introduced it "on behalf of the administration," id. at 106 n.2 (internal quotation marks omitted)
341. (quoting 139 CONG. REC. 23, 416 (1993)), so the inference that Congress understood itself to be approving the administration's desires seems a fair one. Certainly it seems extremely unlikely that the language resulted from an "unrecorded compromise" intended by members of Congress to serve goals that could not be perceived by a court.
342. See, e.g., Nelson, supra note 7, at 354-55.
343. See, e.g., Molot, supra note 7, at 2, 35.
344. Zuni, 550 U.S. at 120-21 (Scalia, J., dissenting).
345. Id. at 121-22.
346. In fairness, one must note that Zuni is in one sense a less perfect illustration of this point than Limtiaco. In Limtiaco, even the textualist opinion acknowledged that the statutory provision is ambiguous (or at least had no established meaning), Limtiaco v. Camacho, 550 U.S. 483, 489-90 (2007), so it is particularly striking that the opinion rejected purposive argumentation. In Zuni, there is at least some argument that the statutory text is unambiguously clear, which, to a textualist, might preclude consideration of statutory purpose. Still, a dispassionate analysis of the statutory language at issue in Zuni would probably conclude that it is not so perfecdy clear as to preclude all purposive argumentation. It is true that when one talks of locating something on a percentile scale, it is usually a percentile scale made up of the class of people or things of which the one being located on the scale is a member. For example, a student who says "my GPA is at the ninety-fifth percentile" implicidy posits a percentile scale made up of the GPAs of a group of students of which the student is a member. So the statutory language at issue in Zuni most naturally lends itself to the interpretation given injustice Scalia's dissent because it most naturally suggests a percentile scale of school districts. On text alone, Justice Scalia had the better interpretation. But it is not impossible to rank some person or thing on a percentile distribution of a group of which the ranked person or thing is not a member. For example, in a school in which the students belong to various clubs, school rules might give special recognition to "those clubs with average GPAs above the ninety-fifth percentile of GPAs at the school." This rule could mean that one should first consider what GPA is the ninety-fifth percentile of GPAs for all students in the school, and then recognize those clubs that have an average GPA above that GPA. The number of clubs qualifying under this rule might be zero (if, for example, students joined clubs on bases unrelated to GPA so that the average GPA of each club would tend to be about the fiftieth percentile of GPAs at the school), or it might be many (if the students with the very highest GPAs tended to congregate in the same clubs). The point is that the rule does not have to call for ranking the clubs by average GPA, and dien awarding recognition to the clubs with average GPAs at the ninety-fifdi percentile of club average GPAs (which would always lead to exactly 5% of the clubs being so recognized). As the Court's opinion in Zuni observed, the statutory language at issue calls for a percentile distribution but does not expressly state what population is to make up that distribution. 550 U.S. at 94-95.
347. Thus, it is not implausible that the statute should be understood to require all of a state's students to be ranked by per-pupil education expenditures and dien to require the identification of the school districts widi per-pupil expenditures at the fifth and ninety-fifth percentiles on this list Such a ranking does require the somewhat artificial imputation to each student of the per-pupil expenditures of the school district where that student attends school, see id. at 111-14 (Scalia, J., dissenting), but it is not a wholly implausible reading of the statutory language, and it is the reading that best fulfills the statutory purpose. In another sense, Zuni is the better illustration of the point made in the text because, unlike the majority opinion in Limtiaco, the Zuni dissent explicitly ties its rejection of purposive argumentation to the formalist aspect of textualism.
348. Id at 119-23.
349. See Molot, supra note 7, at 43.
350. Incidentally, one interesting conclusion to note from this highly scientific sample of two cases is that Justice Alito is not a textualist He joined the nontextualist opinion in both Limtiaco and Zuni
351. See Eskridge, supra note 37 (highlighting historical use of nontextualist sources);
352. William N. Eskridge, Jr., Dynamic Statutory Interpretation, 135 U. PA. L. REV. 1479, 1498-1511 (1987) (detailing arguments supporting nontextualist readings);
353. Siegel, supra note 24, at 1094-98 (discussing recognition of interpretational flexibility in British and American law);
354. see also supra note 30 and accompanying text
355. See Jonathan R. Siegel, Judicial Interpretation in the Cost-Benefit Crucible, 92 MINN. L. REV. 387, 404(2007).
356. Most of the time, all of the approaches to interpretation of a statute lead to the same result, which is the result indicated by the statutory text Id.
357. L.L. Fuller, Legal Fictions, 25 ILL. L. REV. 363, 370 (1930).
358. Id.
359. See Molot, supra note 7, at 32-33 (discussing how many intentionalists and purposivists now "heed textualism's warnings"). Indeed, an interpreter who has given enough thought to interpretive methodology to call himself an "intentionalist" or "purposivist" has probably received so much exposure to the valid, realist logic of textualism that he probably pays more attention to statutory text than interpreters who simply go about interpretation without thinking deeply about the process.
360. Siegel, supra note 24, at 1057.
361. See supra note 176 and accompanying text (describing Manning and Vermeule's rejection of the absurd results exception).
362. See supra Part III.
363. See infra Section IV.B (discussing the future of intentionalism and purposivism).
364. Scalia, supra note 16, at 25;
365. see also id. at 26 ("'A statute cannot go beyond its text' Hooray for that" (quoting 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 (1950))).
366. Easterbrook, supra note 16, at 60.
367. Id.
368. Kozinski, supra note 134, at 813;
369. see also In re Cavanaugh, 306 F.3d. 726, 731-32 (9th Cir. 2002) ("Congress enacts statutes, not purposes, and courts may not depart from the statutory text because they believe some other arrangement would better serve the legislative goals.").
370. Manning, supra note 37, at 70-78.
371. Id.
372. Id.
373. Id. at 76-77.
374. Id. at 77-78.
375. Manning, supra note 75, at 2417, 2424-31, 2437-38.
376. See id. at 2485-86 ("[T] he Court should acknowledge that negating perceived absurdities that arise from clear statutory texts in fact entails the exercise of judicial authority to displace the outcomes of the legislative process. [T] he Court should permit such displacement only when the legislature's action violates the Constitution.").
377. Manning is apparently willing to countenance a limited scrivener's error doctrine, which would permit correction only of "obvious clerical or typographical errors." Id. at 2459 n.265. But really, even if a typographical error resulted in a statute that means nothing at all, how could a court know that this result was not the product of an unrecorded compromise? As Justice Holmes once remarked, "It is not unknown, when opinion is divided, that qualifications sometimes are inserted into an act that are hoped to make it ineffective." United States v. Plowman, 216 U.S. 372, 375 (1910). Perhaps the unrecorded compromise was to pass a bill that did nothing. Thus, the same argument that causes Manning to reject the absurdity doctrine should logically compel him to reject the scrivener's error doctrine as well.
378. Zuni Pub. Sch. Dist No. 89 v. Dep't of Educ., 550 U.S. 81, 104-05 (Stevens, J., concurring) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)).
379. See, e.g., Wald, supra note 29, at 301 (identifying her desire "to advance rather than impede or frustrate the will of Congress" (emphasis omitted)).
380. See Manning, supra note 20, at 2417 (rejecting the intentionalist premise "that judges can reliably ascribe an odd statutory application to legislative inadvertence on the assumption that the problem could and would have been corrected had it come to light").
381. See supra subsection II.B.2.
382. Nelson, supra note 7, at 381-82. Nelson does not actually adopt the argument, but explains its appeal for those who favor rule-based interpretive methodologies. Id.
383. Vermeule's book is based on the argument that, even if everyone agreed that the goal of interpretation is to implement legislative intent, courts should still always apply clear statutory text because no one can empirically prove that interpretive rules that permit departures from clear statutory text will not lead to more overall errors than a rule of sticking to statutory text in all cases. VERMEULE, supra note 35.
384. See Siegel, supra note 284, at 419-23.
385. Id.