The states as laboratories of statutory interpretation: Methodological consensus and the new modified textualism

Yale Law Journal

Volumn 119, Issue 8, 2010, Pages 1750-1862

  Gluck, Abbe R ^a  

^a Columbia Law School ^*

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77954519040     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (409)

1. See, e.g., Jonathan T. Molot, The Rise and Fall of Textualism, 106 COLUM. L. REV. 1, 2 (2006) ("Textualism has outlived its utility as an intellectual movement."). Others have argued, less dramatically, that the major battles in statutory interpretation are largely over. See Henry Paul Monaghan, Supremacy Clause Textualism, 110 COLUM. L. REV. (forthcoming Apr. 2010) (manuscript at 1, on file with author). But cf. John F. Manning, What Divides Textualists from Purposivists?, 106 COLUM. L. REV. 70, 77 (2006) (acknowledging that "serious and thoughtful commentators have wondered of late whether there is anything left of textualism" but arguing that critical differences remain).
2. See, e.g., William N. Eskridge, Jr. & Philip P. Frickey, The Supreme Court, 1993 Term-Foreword: Law as Equilibrium, 108 HARV. L. REV. 26, 57 (1994); Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 HARV. L. REV. 2085, 2088 (2002); Adrian Vermeule, The Judiciary Is a They, Not an It: Interpretive Theory and the Fallacy of Division, 14 J. CONTEMP. LEGAL ISSUES 549 (2005).
3. See ADMIN. OFFICE OF THE U.S. COURTS, JUDICIAL BUSINESS OF THE UNITED STATES COURTS: 2007 REPORT OF THE DIRECTOR 46 tbl.S-1, 84 tbl.A-1 (2008).
4. See COURT STATISTICS PROJECT, NAT'L CTR. FOR STATE COURTS, EXAMINING THE WORK OF STATE COURTS, 2007: A NATIONAL PERSPECTIVE FROM THE COURT STATISTICS PROJECT 13 (2008). The vast majority of the state court caseload is statutory. See Judith S. Kaye, State Courts at the Dawn of a New Century: Common Law Courts Reading Statutes and Constitutions, 70 N.Y.U. L. REV. 1, 3 (1995).
5. Molot, supra note 1, at 5.
6. Linda D. Jellum, "Which Is To Be Master," the Judiciary or the Legislature? When Statutory Directives Violate Separation of Powers, 56 UCLA L. REV. 837 (2009); Gary E. O'Connor, Restatement (First) of Statutory Interpretation, 7 N.Y.U. J. LEGIS. & PUB. POL'Y 333 (2004); Rosenkranz, supra note 2.
7. See, e.g., Adrian Vermeule, Interpretive Choice, 75 N.Y.U. L. REV. 74 (2000); sources cited supra note 2.
8. By "formalistic," I mean clearly defined, ex ante interpretive rules arranged to be applied in a consistent order. But the characteristics of the particular rules chosen (for instance, whether and when legislative history may be consulted) need not themselves be rigid. Cf. Cass R. Sunstein, Must Formalism Be Defended Empirically?, 66 U. CHI. L. REV. 636, 638 (1999) ("[F]ormalist strategies . . . entail three commitments: to promoting compliance with all applicable legal formalities (whether or not they make sense in the individual case), to ensuring rule-bound law . . . and to constraining the discretion of judges . . . .").
9. See Sydney Foster, Should Courts Give Stare Decisis Effect to Statutory Interpretation Methodology?, 96 GEO. L.J. 1863 (2008); Jordan Wilder Connors, Note, Treating Like Subdecisions Alike: The Scope of Stare Decisis as Applied to Judicial Methodology, 108 COLUM. L. REV. 681 (2008).
10. For related work, see Anthony J. Bellia, Jr., State Courts and the Interpretation of Federal Statutes, 59 VAND. L. REV. 1501 (2006), which discusses early American state court approaches to state and federal methodology; Einer Elhauge, Preference-Estimating Statutory Default Rules, 102 COLUM. L. REV. 2027, 2057-58 (2002), which discusses some state-legislated interpretive rules; Jellum, supra note 6, at 844-45, which discusses legislated interpretive rules in Connecticut and Delaware as examples for a broader separation-of-powers discussion; and Jacob Scott, Codified Canons and the Common Law of Interpretation, 98 GEO. L.J. 341 (2010), which is the first attempt to catalogue all states' legislated rules but does not examine court responses to them. Alex B. Long's work is a notable exception in that it looks at modern state cases, but in the limited context of "borrowed" federal employment statutes. Alex B. Long, "If the Train Should Jump the Track . . .": Divergent Interpretations of State and Federal Employment Discrimination Statutes, 40 GA. L. REV. 469 (2006). In addition, a chapter in a forthcoming book by Lawrence Solan discusses some state legislated rules, and Norman J. Singer's famous treatise references an extraordinary number of state cases. NORMAN J. SINGER, SUTHERLAND ON STATUTES AND STATUTORY CONSTRUCTION (6th ed. 2000); LAWRENCE SOLAN, THE LANGUAGE OF STATUTES: LAWS AND THEIR INTERPRETATION 6-23 to -50 (forthcoming 2010).
11. There has likewise been very little study of statutory interpretation in the lower federal courts. See FRANK B. CROSS, THE THEORY AND PRACTICE OF STATUTORY INTERPRETATION 180-200 (2009) (providing the first preliminary study of statutory interpretation in the lower federal courts).
12. See Portland Gen. Elec. Co. v. Bureau of Labor & Indus., 859 P.2d 1143 (Or. 1993); infra Subsection II.B.1.
13. See infra note 133 and accompanying text.
14. See infra notes 125, 279-285 and accompanying text.
15. See infra notes 286-288 and accompanying text.
16. See infra Part II.
17. See Jonathan T. Molot, Ambivalence About Formalism, 93 VA. L. REV. 1, 50-52 (2007) (proposing a compromise methodology); see also Manning, supra note 1, at 75, 94-95 (arguing textualists would not accept the Molot compromise); Jonathan R. Siegel, The Inexorable Radicalization of Textualism, 158 U. PENN. L. REV. 117 (2009) (arguing textualists are too formalist to compromise).
18. See infra Section II.A. for a description of state selection and how the case studies were compiled.
19. Cf. Vermeule, supra note 7, at 109-110 (arguing that uniformity concerns would prevent such decentralization).
20. See COURT STATISTICS PROJECT, NAT'L CTR. FOR STATE COURTS, STATE COURT CASELOAD STATISTICS, 2007, at 152 tbl.10 (2008). For present purposes, my interest is in what the controlling state rule is, and therefore it is appropriate to look to the court of last resort for the articulation of controlling law. The largest comparative methodological study to date has likewise limited its scope only to highest court opinions. See Zenon Bankowski et al., On Method and Methodology, in INTERPRETING STATUTES: A COMPARATIVE STUDY 9, 14 (D. Neil MacCormick & Robert S. Summers eds., 1991) (justifying their international comparative study's restriction to high court decisions because "written opinions of higher courts . . . are normally the best legal examples available of . . . confronting, in a methodologically self-conscious fashion, the problems of justifying decisions on the interpretation of statutes").
21. See Abbe R. Gluck, Intersystemic Statutory Interpretation: Methodological Choice and the Erie Doctrine (unpublished manuscript, on file with author). Other separate categories worthy of consideration concern the work of state agencies and the interpretive rules that apply when states "borrow" statutes from the U.S. Code.
22. Id. at 1.
23. 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).
24. See Foster, supra note 9, at 1866 & n.19; Philip P. Frickey, Interpretive-Regime Change, 38 LOY. L.A. L. REV. 1971, 1971 (2005); Rosenkranz, supra note 2, at 2088.
25. See H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593, 606-08 (1958) (crafting this hypothetical).
26. Vermeule, supra note 7, at 76 (calling this a problem of "interpretive choice").
27. I make this point only with respect to statutory interpretation in general. In some specific areas, most notably the agency-deference area, the U.S. Supreme Court has articulated special regimes. See infra Subsection III.A.1 (discussing Chevron's relevance to these broader questions).
28. William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621, 623 (1990).
29. See id. at 624; Manning, supra note 1, at 71-75. Additional interpretive theories, such as "imaginative reconstruction," Richard A. Posner, Statutory Interpretation-In the Classroom and in the Courtroom, 50 U. CHI. L. REV. 800, 817-18 (1983), and "intentionalism," Peter L. Strauss, The Common Law and Statutes, 70 U. COLO. L. REV. 225, 227 (1999), have been advanced that add to the mix.
30. The vast literature on this debate cannot be done justice here. E.g., WILLIAM N. ESKRIDGE, JR., PHILIP P. FRICKEY & ELIZABETH GARRETT, CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 689-846 (4th ed. 2007); KENT GREENAWALT, LEGISLATION: STATUTORY INTERPRETATION (1999); ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (Amy Gutmann ed., 1997); Eskridge, supra note 29; Frickey, supra note 25; Manning, supra note 1; Molot, supra note 1; Caleb Nelson, What Is Textualism?, 91 VA. L. REV. 347, 372 (2005); Strauss, supra note 30; Cass R. Sunstein & Adrian Vermeule, Interpretation and Institutions, 101 MICH. L. REV. 885, 917-19 (2003).
31. See SCALIA, supra note 31, at 23-25. I use the term "legisprudence," as Eskridge does, supra note 29, at 624, to refer to "the jurisprudence of legislation."
32. These concepts have been fully developed elsewhere. See, e.g., Molot, supra note 1, at 25-29 (describing textualism's "interpretive theory," its "constitutional theory," and its "institutional analysis").
33. See SCALIA, supra note 31, at 16-23.
34. See John F. Manning, Textualism and the Equity of the Statute, 101 COLUM. L. REV. 1 (2001).
35. See SCALIA, supra note 31, at 30-36.
36. "Context" generally refers to how the contested term fits into the statutory scheme as a whole-e.g., how it is used in other statutes, or later in the same statute. The "textual canons" all find "meaning from the words of the statute and nothing else." ESKRIDGE ET AL., supra note 31, at 849. Some typical such canons include the "rule against superfluities" (construe words so as not to render other statutory terms superfluous), ejusdem generis (interpret general term in list of statutory terms to be "of the same type" as the other terms), and exclusio unius (presume from inclusion of enumerated terms that omitted terms are intentionally excluded).
37. See SCALIA, supra note 31, at 32.
38. See U.S. CONST. art. I, § 7; SCALIA, supra note 31, at 35.
39. John F. Manning, Textualism as a Nondelegation Doctrine, 97 COLUM. L. REV. 673, 698-99 (1997).
40. See SCALIA, supra note 31, at 27-29; Manning, supra note 1, at 82-83; Nelson, supra note 31, at 384-85.
41. See SCALIA, supra note 31, at 23-37; Manning, supra note 35; Sunstein, supra note 8, at 652-53.
42. See Peter L. Strauss, The Courts and Congress: Should Judges Disdain Political History?, 98 COLUM. L. REV. 242 (1998).
43. See STEPHEN BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION (2005); Jody Freeman & Adrian Vermeule, Massachusetts v. EPA: From Politics to Expertise, 2007 SUP. CT. REV. 51, 86 (calling Justices Stevens and Breyer "the Court's most committed purposivists").
44. HART & SACKS, supra note 24, at 1374.
45. Strauss, supra note 30, at 243.
46. See, e.g., WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION 125 (1994) (advancing an aggressive brand of purposivism, arguing that courts should update statutes to deal with modern problems).
47. Thomas W. Merrill, Textualism and the Future of the Chevron Doctrine, 72 WASH. U. L.Q. 351, 357, 373 (1994); see also Eskridge, supra note 29, at 641 (predicting that textualism's influence might expand).
48. Charles Tiefer, The Reconceptualization of Legislative History in the Supreme Court, 2000 WIS.
49. L. REV. 205; Nicholas S. Zeppos, The Use of Authority in Statutory Interpretation: An Empirical Analysis, 70 TEX. L. REV. 1073, 1103 (1992).
50. Molot, supra note 1, at 3; see Manning, supra note 1, at 78; see also James J. Brudney & Corey Ditslear, The Decline and Fall of Legislative History?: Patterns of Supreme Court Reliance in the Burger and Rehnquist Eras, 89 JUDICATURE 220, 229 (2006) (discussing the reduced use of legislative history as a result of Justice Scalia's influence); cf. Zeppos, supra note 49, at 1103 (finding that "text is a dominant source of authority" in statutory interpretation cases).
51. See SCALIA, supra note 31, at 25 ("[O]f course it's formalistic! The rule of law is about form."); Nelson, supra note 31, at 375-76.
52. Rosenkranz, supra note 2, at 2144-45 ("[T]he Justices do not seem to treat methodology as part of the holding . . . . [M]any cases feature clear majorities that explicitly ratify the use of legislative history. But Justice Scalia never concedes that he is bound to that methodology by stare decisis." (internal citation omitted)); Jonathan R. Siegel, The Polymorphic Principle and the Judicial Role in Statutory Interpretation, 84 TEX. L. REV. 339, 389 (2005) ("[S]tare decisis effect attaches to the ultimate holding . but not to general methodological pronouncements, no matter how apparently firm."). This claim applies only to general statutory interpretation methodology. I argue, infra Subsection III.A.1., that the Chevron regime is an important specific exception.
53. See, e.g., Eskridge & Frickey, supra note 2, at 57; Adrian Vermeule, The Cycles of Statutory Interpretation, 68 U. CHI. L. REV. 149, 149 (2001).
54. The Court applies heightened stare decisis to substantive (as opposed to methodological) statutory precedents. See, e.g., CBOCS W., Inc. v. Humphries, 128 S. Ct. 1951, 1958 (2008) (quoting Patterson v. McLean Credit Union, 491 U.S. 164, 172 (1989)) (observing that stare decisis "'ha[s] special force in the area of statutory interpretation'").
55. See Zuni Pub. Sch. Dist. v. Dep't of Educ., 550 U.S. 81 (2007); Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581 (2004); see also Carcieri v. Salazar, 129 S. Ct. 1058, 1068-71 (2009) (Breyer, J., concurring) (emphasizing legislative history omitted by the textualist majority); Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 243 (2008) (Breyer, J., dissenting) ("I write separately to emphasize . . . that the relevant context extends . . . well beyond purely textual devices.").
56. See, e.g., Entergy Corp. v. Riverkeeper, Inc., 129 S. Ct. 1498 (2009) (raising the question whether courts can use legislative history to clarify text and so prevent application of the agency deference canon, as argued by the dissent); United States v. Hayes, 129 S. Ct. 1079 (2009) (debating with the dissent whether legislative history or the rule of lenity best resolves statutory ambiguity); Ali, 552 U.S at 214 (debating with the dissent whether textual canons or legislative history best resolves ambiguity). The division among the Justices about the use of legislative history is of course part of this ongoing debate. Some Justices, like Justice Stevens, will consider it whenever useful; others, like Justice Scalia, generally eliminate it entirely; still others, like Chief Justice Roberts and Justice Alito, will consider it but only in a very limited fashion. See infra notes 307-308 and accompanying text.
57. See Fla. Dep't of Revenue v. Piccadilly Cafeterias, Inc., 128 S. Ct. 2326, 2338 (2008); cf. Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405, 498 (1989) (arguing that canons should be ranked to make interpretation more predictable).
58. Divisions also remain over when particular canons apply in the first place. For differing approaches to the use of the ejusdem generis and noscitur a sociis canons, see Ali, 552 U.S. at 230-31 (Kennedy, J., dissenting); and Dolan v. U.S. Postal Serv., 546 U.S. 481, 495 (2006) (Thomas, J., dissenting). For differing approaches to the applicability of the presumption against preemption, see Wyeth v. Levine, 129 S. Ct. 1187, 1194-95 & n.3 (2009); id. at 1229 n.14 (Thomas, J., concurring); and Engine Mfrs. Ass'n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246, 256 (2004).
59. See, e.g., William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 STAN. L. REV. 321, 353, 364 (1990) (arguing that their model of the Court's array of interpretive tools illustrates that interpretation is consistent enough, even though their model weighs, but does not rank, the tools, and instead calls for a "to and fro movement among the considerations").
60. Id. at 353.
61. Eskridge & Frickey, supra note 2, at 66-67; Amanda L. Tyler, Continuity, Coherence and the Canons, 99 NW. U. L. REV. 1389, 1418-21 (2005); cf. EINER ELHAUGE, STATUTORY DEFAULT RULES: HOW TO INTERPRET UNCLEAR LEGISLATION 235 (2008) (arguing that a set of default rules of construction would decrease "legal uncertainty and the costs of ascertaining what the law says . . . [and] control discretionary choices by lower courts"); Foster, supra note 9, at 1892-94 (making the same point with respect to methodological stare decisis).
62. See Foster, supra note 9 (arguing same in stare decisis context); cf. William N. Eskridge, Jr., No Frills Textualism, 119 HARV. L. REV. 2041, 2072 (2006) (reviewing ADRIAN VERMEULE, JUDGING UNDER UNCERTAINTY (2006)) (arguing that strict textualism's apparently objective framework might make "the public . . . perceive the federal courts to be less political").
63. Cf. Bankowski et al., supra note 21, at 17 (stating that attention to "stated justifications" in statutory cases "is in fact worthy of study itself, since . . . it represents an effort at self-conscious public justification [and] . . . enables us to understand what are regarded as satisfactory and publicly acknowledgeable grounds for decision making").
64. See, e.g., Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 HARV. J.L. & PUB. POL'Y 61, 63-64 (1994) (arguing that "understandable commands, consistently interpreted" and "predictability" are two of the objectives that give rise to textualism).
65. Rosenkranz, supra note 2, at 2087, 2156. For responses, see O'Connor, supra note 6; and Scott, supra note 10.
66. Vermeule, supra note 7, at 74. But cf. ADRIAN VERMEULE, JUDGING UNDER UNCERTAINTY (2006) (arguing later that judges should follow clear text and, if text is unclear, defer to agency interpretations).
67. See Foster, supra note 9; Connors, supra note 9. The three proposals are not uncontroversial. The Rosenkranz approach raises separation of powers concerns. See Jellum, supra note 6, at 840; Rosenkranz, supra note 2, at 2102; Jonathan R. Siegel, The Use of Legislative History in a System of Separated Powers, 53 VAND. L. REV. 1457, 1501 (2000). Other concerns are intrabranch in nature, for example, can the 2010 Congress enact rules that control the interpretation of legislation enacted by future congresses? But cf. Eric A. Posner & Adrian Vermeule, Legislative Entrenchment: A Reappraisal, 111 YALE L.J. 1665, 1697-98 (2001) (arguing that if any objections to legislated rules should be made, they should be made on separation-of-powers, not "entrenchment," grounds). The stare decisis approach raises similar questions about whether courts today can bind the reasoning processes of future courts. Foster, supra note 9, at 1900. The formalistic approach poses the problem of how courts should actually choose the governing methodological framework. Vermeule, supra note 7, at 100.
68. See Vermeule, supra note 7, at 100 (calling "interpretive choice an exercise in decisionmaking under conditions of severe empirical uncertainty"); cf. Richard A. Posner, Reply: The Institutional Dimension of Statutory and Constitutional Interpretation, 101 MICH. L. REV. 952, 965-66 (2003) (doubting the feasibility of earlier-proposed state court empirical studies, but also asking whether there is any real-world data on state use of the "absurd-results exception to strict construction").
69. This literature has been largely informed by social choice theory. See, e.g., Frank H. Easterbrook, Ways of Criticizing the Court, 95 HARV. L. REV. 802, 823-31 (1975); Vermeule, supra note 2.
70. In initially surveying the fifty states, I used the Westlaw "key numbering" subject-matter classification system and searched state highest court opinions over the previous decade within the Westlaw "Statutes/Construction and Operation" key number. Also searched were all federal court of appeals and state highest court cases in the Westlaw "State Law as Rules of Decision" key number, the Westlaw "Comity in General" key number, and the Westlaw "Suits involving Validity or Construction of State Statutes" key number.
71. See infra notes 279-285 and accompanying text.
72. See, e.g., District of Columbia v. Fitzgerald, 953 A.2d 288, 299-300 (D.C. 2008) (holding that interpretation must accord with policy and that legislative history may be considered at outset); Samiento v. World Yacht Inc., 883 N.E.2d 990, 994 (N.Y. 2008) (holding that legislative history may be viewed even where a statute's text is clear).
73. For those five states, I have read the entire population of cases located through the following search strategies. For four of the five states, I have read all of the state highest court cases over the past decade (ending July 1, 2009) in the Westlaw "Statutes" key number (185 cases for Oregon; 256 cases for Wisconsin, but with particular attention to the 135 Wisconsin cases decided after the 2004 leading statutory interpretation opinion; 218 cases for Michigan; and 238 for Texas, but with particular focus on the 120 Texas cases in which legislative history, the "Code Construction Act," or the relevant section of that Act is referenced). For Connecticut, I have focused on the 244 cases decided after the 2003 leading opinion establishing a new interpretive methodology. I have also read a number of cases from each state decided prior to the decade studied, where necessary to trace the evolution of a particular doctrine; and additionally searched for statutory cases in ways other than through the key number system (e.g., using search terms such as "legislative history") to ensure that the cases within the "Statutes" key number comprised most or all of the relevant cases. Student researchers have cross-checked the conclusions I have drawn from the Michigan and Wisconsin cases, all of the Connecticut and Texas cases referencing legislative history or the legislated rule on which this Article focuses with respect to those states, and additionally read all of the Oregon cases over the past five years (two previous studies by others, discussed infra text accompanying notes 96-100, compiled data on Oregon from 1993 to 2006 against which I could compare my own observations for those years). We also conducted detailed case readings for Oregon cases from 1988 to 1992. In addition, I have interviewed justices from all five state supreme courts and members of the states' attorneys general's offices to further confirm the observations I have drawn from the decisions. Since state supreme court review is discretionary in all five states studied, the cases studied here are necessarily drawn from a pool that the high courts have selected, rather than the total state court caseload. See CONN. R. APP. P. § 84-1; MICH. C.R. 7.301; OR. R. APP. P. 9.07; TEX. R. APP. P. 56.1(a), 66.2; WIS. R. APP. P. 809.62(1). But this limitation should be of minimal concern. My focus is on the creation of generally applicable statutory interpretation regimes-i.e., regimes that apply to all state statutory cases, regardless of subject matter. Whether a state supreme court tends to grant review of a certain type of statutory case more than others should not be of much concern in that regard. Further to that end, my interest is in what the controlling state rule is, and therefore it is appropriate to look to the court of last resort. The limitation to highest court cases is hardest to assess, however, in the area of methodological stare decisis. I obviously cannot draw conclusions about state lower appellate court practice without reviewing such cases. For this reason, I have tried to distinguish, wherever possible, between horizontal methodological stare decisis-when the state supreme court itself follows its own previous methodological statements from case to case-and vertical methodological stare decisis, which involves the relationship between higher and lower courts. A limited focus on state supreme court opinions still allows one to observe horizontal stare decisis, and, indeed, the literature about the lack of methodological stare decisis has for the most part focused on the horizontal element. See Foster, supra note 9. Any observations I make about lower court treatment of state supreme court opinions are far more tentative, as they are based on lower court citations to those opinions or concepts stated therein and not a full study of lower court interpretive practice.
74. But see CROSS, supra note 11, at 183-84 (relying on, in empirical study about federal statutory methodologies, the number of cases in the Westlaw database that contain specific search terms, such as "legislative history").
75. Cf. Jason J. Czarnezki & William K. Ford, The Phantom Philosophy? An Empirical Investigation of Legal Interpretation, 65 MD. L. REV. 841, 865 (2006) (noting "lingering concerns about . . . coding for . . . the plain meaning rule . . . . because many judges reference the 'plain' or 'unambiguous' text without clearly following or rejecting the rule"). But see CROSS, supra note 11, at 183-84, 187 (arguing that "careful opinion reading" is unrealistic given the number of federal court cases).
76. Cf. Jack Knight, Are Empiricists Asking the Right Questions About Judicial Decisionmaking?, 58 DUKE L.J. 1531, 1532-33, 1542 (2009) (arguing that "empirical studies . . . had focused too narrowly on the disposition of the case" and urging "a broader conception of the elements of judicial choice . . . the arguments in support of their votes" and "the ways in which judges balance the various causal factors" that produce the decision).
77. 859 P.2d 1143 (Or. 1993).
78. See Jack. L. Landau, The Intended Meaning of "Legislative Intent" and Its Implications for Statutory Construction in Oregon, 76 OR. L. REV. 47, 50 (1997).
79. See Jack. L. Landau, The Intended Meaning of "Legislative Intent" and Its Implications for Statutory Construction in Oregon, 76 OR. L. REV. 47, 50 (1997).
80. A Westlaw search of all Oregon Supreme Court opinions since the 1993 PGE decision reveals only twenty dissenting opinions in which the PGE methodology is discussed and, in each case, the dissenting justice is in agreement that the framework applies and only disagrees with respect to its case-specific application, e.g., whether the text in question is in fact ambiguous. See Bergmann v. Hutton, 101 P.3d 353, 361 (Or. 2004) (Kistler, J., dissenting); In re Marriage of Weber, 91 P.3d 706, 714 (Or. 2004) (Durham, J., dissenting); Mabon v. Myers, 33 P.3d 988, 991 (Or. 2001) (Durham, J., dissenting); King Estate Winery, Inc. v. Dep't of Revenue, 988 P.2d 369, 374 (Or. 1999) (Riggs, J., dissenting); Shasta View Irrigation Dist. v. Amoco Chems. Corp., 986 P.2d 536, 543 (Or. 1999) (Durham, J., concurring in part and dissenting in part); State v. Hall, 966 P.2d 208, 211 (Or. 1998) (Durham, J., dissenting); Schultz v. Bank of the W., C.B.C., 934 P.2d 421, 426 (Or. 1997) (Graber, J., dissenting); State v. K.P., 921 P.2d 380, 386 (Or. 1996) (Graber, J., concurring in part and dissenting in part); Owens v. Maass, 918 P.2d 808, 817 (Or. 1996) (Unis, J., dissenting); Atiyeh v. State, 918 P.2d 795, 796 (Or. 1996) (Fadeley, J., dissenting); Or. State Police Officers' Ass'n v. State, 918 P.2d 765, 790 (Or. 1996) (Gillette, J., concurring in part and dissenting in part); GPL Treatment, Ltd. v. La.-Pac. Corp., 914 P.2d 682, 690 (Or. 1996) (Graber, J., dissenting); State v. Guzek, 906 P.2d 272, 288 (Or. 1995) (Graber, J., dissenting); Errand v. Cascade Steel Rolling Mills, Inc., 888 P.2d 544, 552 (Or. 1995) (Graber, J., dissenting); SAIF Corp. v. Allen, 881 P.2d 773, 790 (Or. 1994) (Graber, J., concurring in part and dissenting in part); State v. Arnold, 879 P.2d 1272, 1278 (Or. 1994) (Fadeley, J., dissenting); id. at 1279 (Durham, J., dissenting); State v. Stevens, 879 P.2d 162, 169 (Or. 1994) (Van Hoomissen, J., dissenting); Marks v. McKenzie High Sch. Fact-Finding Team, 878 P.2d 417, 426 (Or. 1994) (Unis, J., dissenting); To v. State Farm Mut. Ins., 873 P.2d 1072, 1079 (Or. 1994) (Graber, J., dissenting); Stanley ex rel. Griffin v. TriCounty Metro. Transp. Dist., 870 P.2d 808, 816 (Or. 1994) (Unis, J., dissenting).
81. Jack L. Landau, The Mysterious Disappearance of PGE, 2009 OR. APP. ALMANAC 153, 153.
82. See OR. REV. STAT. § 174.020 (2007).
83. See infra note 117 and accompanying text.
84. The framework has been discussed in one article and one comment in the Willamette Law Review, and several writings by Oregon Court of Appeals Judge Jack Landau. See Steven J. Johansen, What Does Ambiguous Mean? Making Sense of Statutory Analysis in Oregon, 34 WILLAMETTE L. REV. 219, 228-31 (1998); Landau, supra note 78; Landau, supra note 81; Jack L. Landau, Some Observations About Statutory Construction in Oregon, 32 WILLAMETTE L. REV. 1 (1996); Robert M. Wilsey, Comment, Paltry, General & Eclectic: Why the Oregon Supreme Court Should Scrap PGE v. Bureau of Labor & Industries, 44 WILLAMETTE L. REV. 615 (2008). It never appears to have been cited in a general article about statutory interpretation.
85. PGE, 859 P.2d 1143, 1146 (Or. 1993) (emphasis added) (internal citations omitted).
86. See ESKRIDGE ET AL., supra note 31, at 849.
87. Id. at 848; see supra note 37 (explaining textual canons).
88. See Wilsey, supra note 84, at 624 (noting that the Oregon Supreme Court has firmly held that legislative history may not be consulted if text is clear).
89. See SCALIA, supra note 31, at 27; Manning, supra note 1, at 82; Nelson, supra note 31, at 385.
90. The Oregon Supreme Court has relied on the canon of constitutional avoidance only once in statutory cases since PGE. See Westwood Homeowners Ass'n v. Lane County, 864 P.2d 350, 359 (Or. 1993). But the Oregon Court of Appeals looks to the avoidance canon occasionally as part of the third tier of the PGE test. See, e.g., State v. Bordeaux, 185 P.3d 524, 530 (Or. Ct. App. 2008); State v. Soreng, 145 P.3d 195, 197 (Or. Ct. App. 2006). The Oregon Supreme Court has not applied the rule of lenity in a statutory construction case since PGE was decided, recently cast doubt on whether it ever existed, and broadly read a recent statutory enactment to eliminate it entirely. See Bailey v. Lampert, 153 P.3d 95, 98 (Or. 2007).
91. State v. Vasquez-Rubio, 917 P.2d 494, 497-98 (Or. 1996).
92. Id.; see also Young v. State, 983 P.2d 1044, 1048 (Or. Ct. App. 1999) ("PGE relegated the absurd-result maxim to the third level of statutory analysis . . . .").
93. See, e.g., William N. Eskridge, Jr., Textualism, the Unknown Ideal?, 96 MICH. L. REV. 1509, 1555 (1998); John F. Manning, The Absurdity Doctrine, 116 HARV. L. REV. 2387, 2393-95 (2003).
94. See Siegel, supra note 18, at 151-52.
95. The Oregon Chief Justice when PGE was decided (but not the case's author) was Wallace P. Carson, Jr., who was generally frustrated by the unpredictability occasioned by the lack of clear interpretive methodologies in the federal courts. See Wallace P. Carson, Jr., "Last Things Last": A Methodological Approach to Legal Argument in State Courts, 19 WILLAMETTE L. REV. 641, 646 (1983) (quoting Justice Blackmun and expressing accord with his "continuing dissatisfaction and discomfort with the [U.S. Supreme] Court's vacillation"); id. at 649. It should come as no surprise that Carson was the only justice on the Oregon court who also had been a state legislator and one of the few who had previously served as a trial court judge. His former law clerks reported that Carson "understood the need for clarity and stability in appellate decisions as a means to assist trial courts in the consistent and correct implementation of law . . . . [He] also appreciated the need for clear and consistent judicial decisions to assist legislators in drafting statutes." Lisa Norris-Lampe, Sara Kobak & Sean O'Day, Chief Justice Wallace P. Carson, Jr.: Contributions to Oregon Law, 43 WILLAMETTE L. REV. 499, 501 (2007). Carson is credited with implementing methodological frameworks across several other areas of state law as well, including constitutional and contract cases. See id. at 502-03.
96. Johansen, supra note 84, at 227-28.
97. Id. at 244 n.169, 247.
98. See Wilsey, supra note 84, at 616-17.
99. The Oregon Supreme Court decides relatively few merits cases per year: it decided seventy-four merits cases in 2008 and seventy-nine merits cases in 2007. See Or. Judicial Dep't, Supreme Court Slip Opinions, http://www.publications.ojd.state.or.us/supreme.htm#2007ops (last visited Feb. 11, 2009) (excluding opinions answering requests for mandamus, petitions for reconsideration, and requests for certifications of ballot titles). To check for whether a different methodology was being used in cases in which PGE was not cited, a student researcher also read every Oregon Supreme Court case decided in 2007 and 2008 within the Westlaw "Statutes" key number. Of those cases, only twenty-three did not cite PGE, and all twenty-three of those cases faithfully applied the PGE methodology and were not distinguishable from the PGE-citing cases in substance or result.
100. Wilsey, supra note 84, at 616 & n.11 (arguing PGE caused "the near total disappearance of legislative history in the decisionmaking of the Oregon Supreme Court").
101. As part of this project, a student researcher and I read every Oregon Supreme Court case decided from 1988 to 1992 in both the Westlaw "Statutes" key number and, additionally, any case (even outside the key number) in which the term "legislative history" appeared. Of the 156 cases found, fifty-one were not relevant (e.g., they were constitutional, initiative, or agency cases, or a statute was mentioned only tangentially); thirty-four applied something close to the PGE methodology (e.g., they either used only textual analysis, or used an implicit or explicit ambiguity threshold before consultation of legislative history); and seventy-one looked to legislative history or substantive canons at the outset to bolster textual analysis, even if text was declared clear.
102. Telephone Interview with Virginia L. Linder, Justice, Or. Supreme Court (July 16, 2009) (recalling her impression of the pre-PGE case law as an attorney, before she became a judge).
103. This is to be distinguished from legislative history. Oregon's reference to statutory history entails textual and structural examination of earlier enacted versions of the statute.
104. Specifically, over fifty-nine cases across that five-year period, the court relied on "plain language" analysis in thirty-six cases; dictionary definitions in twenty-four cases; statutory definition sections in nineteen cases; other statutes in twenty-seven cases; statutory context (historical evolution/statutory structure) in thirty-one cases; state law precedent in twenty-three cases; and textual canons in twenty-six cases. It relied on rules of grammar in ten cases; on law review articles and treatises in two cases; federal law precedents in three cases; other textual tools in seven cases (specifically, the legislative acquiescence rule (two cases); the presumption that statutes incorporate common law concepts (two cases); the borrowed statute rule (one case); reference to subsequently enacted legislation (one case); and the presumption that amended statutes incorporate intervening judicial decisions (one case)); legislative history in nine cases; legislative "purpose" in two cases; agency construction in two cases; other states' laws in two cases; consequences in two cases; substantive canons (the rule against implied repeals) in one case; "common sense" in one case; and did not rely on executive construction, public policy, or "dynamic" interpretive methods in any cases.
105. Five cases relied on exclusio unius; five on the presumption of consistent usage; five on the rule against superfluities; five on ejusdem generis; four on the rule that presumes a different meaning to different terms used in the same statute; three on the rule that courts should not insert what has been omitted (similar to exclusio); three on "specific controls the general"; two on the rule that specialized terms shall be given their trade/specialized meaning; and one on in pari materia. One study has attempted to count every textual canon the court has ever used in PGE's first tier. See Wilsey, supra note 84, at 625-28 (counting seventeen textual canons total, but several overlap). All of the rules identified can fairly be said to be the uncontroversial "classic" textual canons recognized by federal courts and commentators alike, typified by the rules referenced above.
106. A recent student comment is critical of the Oregon Supreme Court's inclusion of what the court calls "context"-i.e., precedents, the text of other statutes, and the evolution (previously enacted versions) of the statute-in step one, and argues that it muddies its clarity. See Wilsey, supra note 84, at 638-40. But such contextual evidence is commonly used by federal textualists as well.
107. Young v. State, 983 P.2d 1044, 1050 (Or. Ct. App. 1999) (Haselton, J., concurring) (disagreeing with PGE's holding that the absurd results rule should not apply in textual analysis, stating "fidelity to PGE has driven our court to patently silly results," but conceding that "PGE is authoritative"); Grijalva v. Safeco Ins. Co. of Am., 956 P.2d 995, 1002 (Or. Ct. App. 1998) (Haselton, J., concurring) ("Under PGE . . . our construction . . . is 'correct'-and, indeed, inevitable. But in the real world . . . that construction defies common sense . . . ."); see State v. Chilson, 182 P.3d 241, 242-43 (Or. Ct. App. 2008) (same); Dockins v. State Farm Ins. Co., 963 P.2d 119, 120 (Or. Ct. App. 1998) (Wollheim, J., concurring) (following concurrence in Grijalva).
108. See, e.g., Jones v. Gen. Motors Corp., 939 P.2d 608, 614-15 (Or. 1997) (refusing to consider legislative history, which advocates argued pointed to an opposite conclusion than statutory text); Deluxe Cabinet Works v. Messmer, 915 P.2d, 1053 1056-57 (Or. Ct. App. 1996) (refusing to rely on legislative history even where the statutory text failed to accomplish the overruling of the court decision intended by the legislature). Not incidentally, Jones precipitated the legislature's enactment of the statute intended to partially override PGE. Email Interview with Jack L. Landau, Judge, Oregon Court of Appeals (Jan. 5, 2010).
109. Oregon Blue Book: Oregon Supreme Court Members, http://bluebook.state.or.us/state/judicial/judicial02.htm (last visited Feb. 8, 2010). Nine justices joined the court post-PGE, most of them long before it considered amending the PGE test last year: one in 1994, one in 1997, one in 1998, two in 2001, one in 2003, one in 2006, and one in 2007. Id.
110. For example, eighty-seven of the Oregon Supreme Court briefs available in the Westlaw database between 2007 and 2008 expressly cited PGE as the controlling framework. Many of the briefs were structured in three sections to match the three-step PGE test. See, e.g., Brief on the Merits of Petitioners on Review, Friends of the Columbia Gorge, Inc. v. Columbia River Gorge Comm'n, 212 P.3d 1243 (Or. 2009) (No. S055915), 2008 WL 4144169 [hereinafter Brief, Friends of the Columbia Gorge]; Brief on the Merits of Petitioners on Review, MAN Aktiengesellschaft v. DaimlerChrysler AG, 208 P.3d 964 (Or. 2009) (No. S055861), 2008 WL 4144166 [hereinafter Brief, MAN Aktiengesellschaft]; Brief on the Merits of Respondent on Review, Oregon Dep't of Justice, MAN Aktiengesellschaft, 208 P.3d 964 (No. S055861), 2008 WL 5415648; Brief on the Merits of Petitioner on Review, O'Hara v. Bd. of Parole & Post-Prison Supervision, 203 P.3d 213 (Or. 2009) (No. S055839), 2008 WL 4525138; Petitioner's Brief on the Merits, Oregon v. Kuznetsov, 199 P.3d 311 (Or. 2008) (No. S055487), 2008 WL 2520898; Petitioner's Brief on the Merits, State v. Fries, 185 P.3d 453 (Or. 2008) (No. S055136), 2007 WL 4778720; Petitioner's Brief on the Merits, Gafur v. Legacy Good Samaritan Hosp. & Med. Ctr., 185 P.3d 446 (Or. 2008) (No. S055175), 2007 WL 5029553; Appellant's Brief on the Merits, State v. Hankins, 151 P.3d 149 (Or. 2007) (No. S52438), 2007 WL 4778726. Many also extensively engaged the question whether the lower courts had applied the PGE test correctly to their cases and often argued that failure to do so was reason for reversal. See, e.g., Brief, Friends of the Columbia Gorge, supra, at *6; Respondent on Review's Brief on the Merits at *10, Liles v. Damon Corp., 198 P.3d 926 (Or. 2008) (No. S054734), 2007 WL 4542009; Brief of Amicus Curiae Bureau of Labor and Indus. at *5, Gafur, 185 P.3d 446 (No. S055175), 2008 WL 5721672.
111. Nike, Inc. v. McCarthy, 379 F.3d 576, 581 n.4 (9th Cir. 2004); see also Young, 983 P.2d at 1048 ("[T]o the extent that PGE established a statutory-construction methodology that is inconsistent with cases that predate PGE's publication date, PGE controls.").
112. Or. Advocacy Ctr. v. Mink, 322 F.3d 1101, 1114 n.7 (9th Cir. 2003); see also Dep't of Envtl. Quality Or. v. Spar Inv. Co., 64 F. App'x 648, 649 (9th Cir. 2003) (quoting PGE for the proposition that the "Oregon Supreme Court has instructed that '[i]f the legislature's intent is clear from [an] . . . inquiry into text and context, further inquiry is unnecessary,'" and refusing to look at legislative history of statute in question).
113. OR. REV. STAT. § 174.020(3) (2009).
114. ANDREA SHARTEL, STAFF MEASURE SUMMARY, S. 71-HB 367 A (Or. 2001); Testimony of Philip Schradle, Special Counsel to the Att'y Gen., House Judiciary Comm. (Apr. 11, 2001) ("[U]nder this bill, every case where the meaning of a statute is involved would require extensive research through the legislative history."). The irony of course is that this legislative attempt to overrule PGE's textual focus involved a statute whose text did not contradict PGE. See note 118, infra, for details on how the court dealt with this twist.
115. Even a casual review of available online Oregon Supreme Court briefs (not currently available before 2007) reveals a substantial number that addressed the possible conflict between the legislated rule and PGE. See, e.g., Brief, MAN Aktiengesellschaft, supra note 110, at *14 & n.9 (arguing that the court of appeals erred by consulting legislative history under PGE because text was clear and that section 174.020 does not trump PGE); Brief on the Merits of Insurers Amici Curiae at 3, Mid-Century Ins. Co. v. Perkins, 195 P.3d 59 (Or. 2008) (No. S054652), 2007 WL 6120819 (arguing that section 174.020 "liberalized the rules of construction"); Respondent Friesen Lumber Co.'s Brief on the Merits at *15-19, Weston v. Camp's Lumber & Building Supply, Inc., 160 P.3d 633 (Or. 2007) (No. S54085), 2007 WL 4471114 (offering extended discussion of whether section 174.020 overrules PGE's text-only first step).
116. See, e.g., Nike, 379 F.3d at 581 n.4 (following approach of lower courts and assuming "the amendments . . . did not alter the [PGE] statutory interpretation methodology"); Or. Advocacy Ctr., 322 F.3d at 1114 n.7 ("[W]e assume that the Portland General Electric framework remains controlling."). The Oregon Court of Appeals remarked on the apparent conflict in State v. Rodriguez-Barrera, 159 P.3d 1201, 1204 (Or. Ct. App. 2007), which stated that "[f]or the most part, we appear to have ignored [the statute], reciting instead the
117. State v. Gaines, 155 P.3d 61 (Or. Ct. App.), review granted, 169 P.3d 1268 (Or. 2007) (table decision).
118. State v. Gaines, 206 P.3d 1042 (Or. 2009). The court first noted that the text of the statute, because it provides only that a court "may" consult legislative history, could be unambiguously read not to affect PGE. Id. at 1047. However, the court decided to apply an unprecedented exception to PGE given the ironic circumstances of the case (the question being whether the legislated rule intended to require consideration of legislative history even in the face of clear text), and so consulted the legislative history of the legislated rule absent a finding of ambiguity. Id. at 1048. Based on that history, the court concluded that the legislature intended to amend PGE to move consultation of legislative history to the first step of the analysis, but left it to the courts to decide how much weight to give to legislative history once consulted. Id. at 1049. The court also reconfirmed that substantive canons may be employed only in the last step. Id. at 1051.
119. Id. at 1050.
120. Id. at 1051 (finding that when text is clear, "no weight can be given to legislative history that . . . even confirms . . . that legislators intended something different" (emphasis added)).
121. Early cases applying Gaines have illustrated the confusion. Compare State v. Parkins, 211 P.3d 262 (Or. 2009) (retaining PGE progression of looking to text as first step and then proceeding to legislative history after going through textual analysis and finding it ambiguous), and State v. White, 211 P.3d 248 (Or. 2009) (same), with State v. Ritchie, 208 P.3d 981, 985 (Or. Ct. App. 2009) (finding text clear and so reviewing only legislative history proffered by party and consulting no additional history), and In re Marriage of A.C.H. & D.R.H., 210 P.3d 929 (Or. Ct. App. 2009) (same), with Ram Technical Servs., Inc. v. Koresko, 208 P.3d 950, 960-61 (Or. 2009) (using legislative history to confirm conclusions reached from textual analysis), and State v. Williams, 209 P. 3d 842, 844-45 (Or. Ct. App. 2009) (same). A comprehensive review of all statutory interpretation cases decided after Gaines was not conducted as part of this project, but would be informative.
122. This information is current as of February 27, 2010.
123. Even according to its critics, the PGE framework was applied "religiously," Landau, supra note 78, at 50. But I have not verified its application in every case across the entire sixteen-year period. The Gaines opinion identifies several cases in which, it argues, PGE may have been applied less strictly. The opinion identifies four cases in which legislative history was used to confirm textual analysis without an explicit ambiguity finding, and it identifies four other cases in which PGE was applied, but with a less explicit ambiguity finding than typical; in each case the court conducted textual analysis then looked to legislative history to remove any "doubt" left by textual analysis. See Gaines, 206 P.3d at 1049 n.6; see also, e.g., Ware v. Hall, 154 P.3d 118, 122 n.6 (Or. 2007).
124. 1 U.S.C. §§ 1-2 (2006).
125. See generally Scott, supra note 10 (cataloging the legislated canons).
126. See infra note 359 and accompanying text.
127. Evidence of this broader trend is discussed infra notes 279-285 and accompanying text.
128. See Rosenkranz, supra note 2.
129. Texas and Connecticut differ not only in size and demography but also institutionally: Connecticut's highest court judges are appointed, while Texas's are elected; the Connecticut General Assembly meets every year, while Texas's is by law allowed to meet only every other year. See THE COUNCIL OF STATE GOV'TS, BOOK OF THE STATES 81-82, 286-87 (Audrey S. Wall et al. eds., 2008) [hereinafter BOOK OF THE STATES]; JOINT COMM. ON LEGISLATIVE MGMT., OFFICE OF LEGISLATIVE RESEARCH, CONN. GEN. ASSEMBLY, THIS IS YOUR GENERAL ASSEMBLY 1 (2009), available at http://www.cga.ct.gov/asp/Content/This_is_Your_General _Assembly.pdf; The Handbook of Texas Online, Texas Legislature, http://www.tshaonline.org/handbook/online/articles/TT/mkt2.html (last visited Feb. 24, 2010). Both states' legislatures are essentially the same size: the Connecticut Assembly has 187 members, and the Texas Legislature has 181. See BOOK OF THE STATES, supra, at 85.
130. TEX. GOV'T CODE ANN. § 311.023 (Vernon 2005) (emphasis added).
131. Id. § 312.006(a) (entitled "Liberal Construction").
132. Id. § 312.005 (emphasis added) (entitled "Legislative Intent"). Although section 312 is part of a subchapter that applies specifically to civil statutes, the Texas Penal Code specifically provides: "Unless a different construction is required by the context, Sections 311.011, 311.012, 311.014, 311.015, and 311.021 through 311.032 of Chapter 311, Government Code (Code Construction Act), apply to the construction of this code." TEX. PENAL CODE ANN. § 1.05(b) (Vernon 2003). In addition, the Penal Code states that "[t]he rule that a penal statute is to be strictly construed does not apply to this code. The provisions of this code shall be construed according to the fair import of their terms, to promote justice and effect the objectives of the code." Id. § 1.05(a). Thus, as in Oregon, the Texas Legislature has arguably abolished the rule of lenity.
133. See Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991) (leading case holding that court would not follow the rule); see also, e.g., Williams v. State, 273 S.W.3d 200, 215 (Tex. Crim. App. 2008) (holding that the court will only consult extratextual sources when the plain language of a statute is ambiguous or when the text would lead to absurd results); Ex parte Noyola, 215 S.W.3d 862 (Tex. Crim. App. 2007) ("[W]e may consult 'extra-textual factors such as legislative history only when the plain language of the statute is ambiguous or when a literal interpretation would lead to absurd results.'" (quoting Ex parte Spann, 132 S.W.3d 390, 393 (Tex. Crim. App. 2004))); Ex parte Medellin, 223 S.W.3d 315 (Tex. Crim. App. 2006) (same); Ex parte Spann, 132 S.W.3d 390 (Tex. Crim. App. 2004) (same).
134. Boykin, 818 S.W.2d at 785.
135. Id. at 786 n.4 (quoting Sparks v. State, 174 S.W. 351, 352 (Tex. Ct. App. 1915)).
136. Boykin, 818 S.W.2d at 786 n.4 ("[I]nterpretation statutes that seek[] to control the attitude or the subjective thoughts of the judiciary violate the separation of powers doctrine." (internal quotation marks omitted)).
137. See, e.g., Ex Parte Hernandez, 275 S.W.3d 895, 898 n.14 (Tex. Crim. App. 2009) ("[W]e are obligated to construe a statute in accordance with the plain meaning of its text unless the plain meaning leads to absurd results that the Legislature could not have possibly intended." (citing Boykin, 818 S.W.2d at 785)); Fielding v. State, 266 S.W.3d 627, 633 (Tex. App. 2008) (same); State v. Young, 242 S.W.3d 926, 928 (Tex. Crim. App. 2008) (same); State v. Colyandro, 233 S.W.3d 870, 875 (Tex. Crim. App. 2007) ("[O]ur decision in Boykin v. State . . . established our principal rules for statutory interpretation . . . ."); State v. Cowsert, 207 S.W.3d 347, 350 (Tex. Crim. App. 2006) ("[U]nder Boykin, we must follow the plain meaning of the text. Analysis of the legislative history is neither required nor permitted . . . ."); Getts v. State, 155 S.W.3d 153, 157 (Tex. Crim. App. 2005); ("Boykin instructs us to follow the literal text if it is unambiguous and not absurd, and that is what we do in this case. There is no basis here for proceeding to extra-textual factors such as legislative intent.").
138. Boykin, 818 S.W.2d at 785 (citing TEX. CONST. art. II, § 1).
139. Boykin, 818 S.W.2d at 786 & n.4 (citing, inter alia, W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83 (1991); Demarest v. Manspeaker, 498 U.S. 184 (1991); Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440 (1989) (Kennedy, J., concurring); Caminetti v. United States, 242 U.S. 470 (1917); 1 WAYNE R. LAFAVE & AUSTIN W. SCOTT, SUBSTANTIVE CRIMINAL LAW § 2.2 (1986); SINGER, supra note 10, §§ 46.01-46.07); James C. Thomas, Statutory Construction When Legislation Is Viewed as a Legal Institution, 3 HARV. J. ON LEGIS. 191, 211 n.85 (1966)). But the court also sometimes references other legislated rules to which it has not objected. See, e.g., Ex parte Keller, 173 S.W.3d 492, 500 (Tex. Crim. App. 2005) (using a different provision of the Code Construction Act to resolve an incorporation-by-reference question).
140. Boykin, 818 S.W.2d at 786 & n.4.
141. See, e.g., City of Rockwall v. Hughes, 246 S.W.3d 621, 626 (Tex. 2008) ("When a statute's language is clear and unambiguous, it is inappropriate to resort to rules of construction or extrinsic aids to construe the language."); id. at 626 n.6 (citing the Code Construction Act in a footnote as permitting the court to look to legislative history even if there is no ambiguity, but concluding that legislative history would not be useful in that case); Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 651-52 (Tex. 2006) ("[E]nacted language is what constitutes the law, and when a statute's words are unambiguous . . . the judge's inquiry is at an end."); id. at 652 n.4 ("[W]hile the Code Construction Act expressly authorizes courts to use a range of construction aids, including legislative history, Tex.
142. TEX. GOV'T CODE § 312.006(b) (Vernon 2005).
143. Energy Serv. Co. of Bowie v. Superior Snubbing Servs., Inc., 236 S.W.3d 190, 194 n.17 (Tex. 2007) (internal quotation marks omitted). See infra notes 281-282 and accompanying text for a discussion of the national trend of evading this kind of legislated rule.
144. TEX. PENAL CODE § 1.05(a) (Vernon 2005) ("The rule that a penal statute is to be strictly construed does not apply to this code.").
145. See, e.g., Ex parte Forward, 258 S.W.3d 151, 154 n.19 (Tex. Crim. App. 2008) (noting that the Texas Code of Criminal Procedure contains an even more strongly worded abrogation of the rule of lenity, but stating that "even if the 'rule of lenity' applies" it does so only when the statute is ambiguous); State v. Johnson, 219 S.W.3d 386, 388 & n.9 (Tex. Crim. App. 2007) (stating that the rule applies to all statutes outside the Penal Code); Cuellar v. State, 70 S.W.3d 815, 819 n.5 (Tex. Crim. App. 2002) (declining to apply the rule of lenity due to a lack of ambiguity, not due to statutory prohibition); Vineyard v. State, 958 S.W.2d 834, 837-38 (Tex. Crim. App. 1998) (same); Iglehart v. State, 837 S.W.2d 122, 127 n.5 (Tex. Crim. App. 1992) (same); Zachary Price, The Rule of Lenity as a Rule of Structure, 72 FORDHAM L. REV. 885, 904 (2004) ("Courts in several states-Arizona, Idaho, New Hampshire, North Dakota, South Dakota, and Texas-continue to employ the rule of lenity despite statutes directing them not to.").
146. State v. Neesley, 196 S.W.3d 356, 361 (Tex. Crim. App. 2006) (holding it may "easily avoid the conflict . . . [with the] Boykin rule by finding ambiguity when the parties took polar opposite interpretations of the text"); Allen v. State, 11 S.W.3d 474 (Tex. Crim. App. 2000) (same).
147. In re CPDC, Inc., 337 F.3d 436, 438 (5th Cir. 2003) (emphasis added); see Wright v. Ford Motor Co., 508 F.3d 263 (5th Cir. 2007) (refusing to even examine legislative history in a Texas products liability law dispute because the "statutory language [wa]s clear"); CenterPoint Energy Houston Elec. LLC v. Harris County Toll Road Auth., 436 F.3d 541 (5th Cir. 2005) (same). Indeed, the Fifth Circuit sometimes goes out of its way to cite the Code Construction Act for legislated interpretive rules to which the Texas courts have not objected, but then expressly omits the legislative history provision over which there is conflict. For example, in a 2004 case involving the construction of a Texas car-dealer statute, the Fifth Circuit recited what it deemed to be "Texas principles of statutory interpretation," and cited both Texas case law and the Code Construction Act. Nevertheless, two paragraphs later, the court squarely rejected appellants' request that it consider "legislative and statutory history" on the ground that "[u]nder Texas principles of statutory interpretation . . . legislative history cannot be used to alter or disregard the express terms of a code provision when its meaning is clear from the code." Int'l Truck & Engine Corp. v. Bray, 372 F.3d 717, 723-24 (5th Cir. 2004) (emphasis added); see also In re Rippstein, 195 F. App'x 200, 202 (5th Cir. 2006) ("If a statute is unambiguous, a court may not employ other rules of construction to create ambiguity . . . ."). But see Jones v. City of Palestine, 266 F. App'x 320, 322 (5th Cir. 2008) (stating atypically that "[r]egardless of ambiguity, courts can also consider other factors to determine the Legislature's intent").
148. 816 A.2d 562, 578, 582 (Conn. 2003) ("We now make explicit [that] . . . in performing the process of statutory interpretation, we do not follow the plain meaning rule in whatever formulation it may appear" and instead will "consider all relevant sources of meaning of the language at issue . . . without first having to cross any threshold of ambiguity of the language.").
149. See id. at 577-78. The court went to pains to emphasize that although one justice dissented from part of the holding on the death penalty statute at issue, she joined the opinion as it related to methodology, and "[t]hus, this court, by a vote of five to two, endorsed the process of statutory interpretation that we outline herein . . . . Thus, resolution of those questions will affect, not only the present case, but other pending and future cases, and will give guidance to the bar." Id. at 576 n.18.
150. Id. at 582.
151. See H.R. 5033, 2003 Gen. Assem., Reg. Sess. (Conn. 2003); see id. (stating that the statute is a direct response to Courchesne).
152. 2003 Conn. Pub. Acts 154 (codified at CONN. GEN. STAT. § 1-2z (2003)) ("The meaning of the statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.").
153. Courchesne, 816 A.2d at 568 (internal quotation marks omitted).
154. Id. at 576 n.19.
155. See id. ("Alaska . . . specifically has rejected 'the plain meaning rule' . . . . [and] by statute, Texas specifically provides that . . . 'whether or not the statute is considered ambiguous . . . a court may consider . . . other matters . . . .'" (citing TEX. GOV'T CODE ANN. § 311.023 (Vernon 1998))). Notably, its citation to Texas was based only on the Texas Code Construction Act which, as we have seen, has not been followed consistently by the Texas courts. 156. For example, the court refused to enter "a semiotic debate . . . about whether a group such as a legislature can have an 'intent,'" noting instead the legislature's own frequent statutory references to the "'intent of the General Assembly,'" id. at 578 n.21 (citing CONN. GEN. STAT. § 47-210(a)), argued the hypocrisy of textualism's "absurd results" exception, id. at 586, emphasized the manipulability of any ambiguity threshold, id. at 583, and disputed that a purposive approach implicates any separation-of-powers concerns on the ground that "there is nothing in either the federal or the Connecticut constitutional doctrine . . . that compels any particular method . . . of statutory interpretation," id. at 588.
156. Id. at 605 n.8, 611-12 (Zarella, J., dissenting). The dissent also cited to the mainstream public choice literature for the proposition that legislation is more often the product of compromise than of single legislative intent. Id. at 610.
157. See id. at 609-19. The dissenters also quoted Justice Scalia at length in arguing that the fact that "only the text of a statute formally has been approved by the legislature and signed into law by the executive" constitutionally requires a textual approach, id. at 612-13, and stated they were "particularly troubled by [the majority's] approach because [they] agree[d] with John M. Walker, Jr., the chief judge of the United States Court of Appeals for the Second Circuit who recently assessed the lack of usefulness of the purposive method of statutory interpretation," id. at 609.
158. Id. at 617-18. The Connecticut textualists also support the "legislative acquiescence" doctrine, which has been strongly critiqued by federal-side textualist judges and scholars. See State v. Salamon, 949 A.2d 1092, 1147-48 (Conn. 2008) (Zarella, J., dissenting). Unlike the Oregon justices, however, Connecticut's dissenters viewed interpretive principles as "judicial philosophy, not . . . substantive law," and refused to be bound by the methodological aspects of the opinion. Courchesne, 816 A.2d at 610 (Zarella, J., dissenting). Thus, it is questionable how constraining the Courchesne rule would have been had it not been legislatively overruled.
159. Courchesne, 816 A.2d at 618 n.23 (Zarella, J., dissenting).
160. Conn. Joint Judiciary Comm., Report on Bills Favorably Reported by Committee, H.R. 5033 (2003), available at http://www.cga.ct.gov/2003/jfr/h/2003HB-05033-R00JUD-JFR.htm.
161. Conn. H. Tran. 79 (May 20, 2003) (statement of Rep. Fox, Member, H. Comm. on the Judiciary), available at http://cga.ct.gov/asp/menu/Search.asp.
162. See Goodyear v. Discala, 849 A.2d 791, 796 (Conn. 2004) (applying the statute for the first time, in June 2004); Dinto Elec. Contractors, Inc. v. City of Waterbury, 835 A.2d 33, 39 & n.10 (Conn. 2003) (mentioning the statute for the first time but declining to apply it). The statute went into effect in October 2003.
163. The court has concluded that section 1-2z only "kicks in" once the court does not find ambiguity. See, e.g., Bell Atlantic Nynex Mobile, Inc. v. Comm'r of Revenue Servs., 869 A.2d 611, 617-18 & n.13 (Conn. 2005) (also quoting Courchesne for the applicable approach to statutory interpretation); Wiseman v. Armstrong, 850 A.2d 114, 118 n.10 (Conn. 2004) ("[I]n the present case, the relevant statutory text and the relationship of that text to other statutes is not plain and unambiguous. Accordingly, our analysis does not involve this new legislation."); Cahaly v. Benistar Prop. Exch. Trust Co., 842 A.2d 1113, 1116 n.4 (Conn. 2004) (same). There are of course exceptions, a few cases in which the court recites the language of section 1-2z at the outset of its statutory discussion, but these references are typically little more than formulaic recitations of the rule that one begins an interpretive task with the text. See, e.g., In re William D., 933 A.2d 1147, 1152 (Conn. 2007) (stating that the court "begin[s], as directed by General Statutes § 1-2z, with the relevant text" but then, even admitting "that the definition of child [in another subsection] could be applied literally to" the section at issue, "eschew[ing] such a mechanistic application of the definition given internal inconsistencies and consequences that would ensure in clear contravention of the broader purposes of the delinquency scheme," and so looking to extrinsic sources). Ironically, the court found that the word "text" in section 1-2z was itself ambiguous and therefore looked to the overruling statute's own legislative history to construe it. Hummel v. Marten Transp., Ltd., 923 A.2d 657, 670 (Conn. 2007).
164. See, e.g., Goldstar Med. Servs., Inc. v. Dep't of Soc. Servs., 955 A.2d 15, 24-25 (Conn. 2008); State v. Jenkins, 954 A.2d 806, 812 (Conn. 2008).
165. E.g., Rivers v. City of New Britain, 950 A.2d 1247, 1247-59 (Conn. 2008) (construing the exception to include a situation in which an "important public safety feature of [the statute] is thwarted" by plain-text interpretation).
166. Hummel, 923 A.2d at 671.
167. See, e.g., Lombardo's Ravioli Kitchen, Inc. v. Ryan, 842 A.2d 1089, 1095 (Conn. 2004) ("Because the parties in the present case do not claim that the relevant statutory text, along with the relationship of that text to other statutes, is plain and unambiguous, our analysis is not limited by this new legislation."); see also, e.g., R.C. Equity Group, LLC v. Zoning Comm'n, 939 A.2d 1122 (Conn. 2008) (disregarding section 1-2z because neither party contended it constrained the court's interpretation).
168. See Weems v. Citigroup, Inc., 961 A.2d 349, 355 (Conn. 2008) (looking to extratextual evidence because text was "subject to two different reasonable readings"); Heim v. Zoning Bd. of Appeals, 960 A.2d 1018, 1023 n.7 (Conn. 2008) (rejecting, without explanation, view of plaintiffs that text was unambiguous); Heim v. Zoning Bd. of Appeals, 953 A.2d 877, 881 & n.7 (Conn. 2008) (disagreeing with plaintiffs' claim that text was clear); State v. Jenkins, 954 A.2d 806, 812 & n.12 (Conn. 2008) (same); State v. DeJesus, 953 A.2d 45 (Conn. 2008); Stiffler v. Cont'l Ins. Co., 950 A.2d 1270 (Conn. 2008); Rivers v. City of New Britain, 950 A.2d 1247, 1259 (Conn. 2008); Location Realty, Inc. v. Colaccino, 949 A.2d 1189, 1202 (Conn. 2008) (finding "strong[] support[]" in the plain text, but without "express[] and unambiguous[]" evidence, "turn[ing] to its legislative history for clarification"); State v. Salamon, 949 A.2d 1092, 1109-10 (Conn. 2008); State v. Peters, 946 A.2d 1231, 1235 (Conn. 2008); Comm'r of Envtl. Prot. v. Mellon, 945 A.2d 464 (Conn. 2008); State v. Winer, 945 A.2d 430, 436 (Conn. 2008); State v. Cote, 945 A.2d 412, 468 n.7 (Conn. 2008); Curry v. Allan S. Goodman, Inc., 944 A.2d 925 (Conn. 2008); State v. Marsh & McLennan Cos., 944 A.2d 315 (Conn. 2008); Esposito v. Simkins Indus., 943 A.2d 456 (Conn. 2008); Levesque v. Bristol Hosp., Inc., 943 A.2d 430 (Conn. 2008); Harpaz v. Laidlaw Transit, Inc., 942 A.2d 396 (Conn. 2008); Jim's Auto Body v. Comm'r of Motor Vehicles, 942 A.2d 305, 317 (Conn. 2008) ("We find both parties' interpretations to be reasonable, thereby demonstrating the ambiguity of the term . . . and we are, therefore, permitted to consider extratextual sources in construing it."); Caruso v. City of Bridgeport, 941 A.2d 266 (Conn. 2008); Cambodian Buddhist Soc'y of Conn., Inc. v. Planning & Zoning Comm'n, 941 A.2d 868 (Conn. 2008); R.C. Equity Group, LLC, 939 A.2d at 1128 n.13 (declining to apply the plain-meaning rule because "[n]either party contends . . . that § 1-2z limits our review"); Am. Promotional Events, Inc. v. Blumenthal, 937 A.2d 1184, 1191 n.16, 1193 (Conn. 2008) (citing Courchesne for guidance on when a court may consider the rule of lenity); see also Salamon, 949 A.2d at 1136 (Borden, J., concurring) (noting that the majority looked at extratextual materials after finding "a slim but adequate reed on which to base a finding of ambiguity"); Fish v. Fish, 939 A.2d 1040, 1052 (Conn. 2008) (not citing section 1-2z but, after finding the text "not defined," looking to legislative history); Evanuska v. City of Danbury, 939 A.2d 1174, 1179 n.5 (Conn. 2008) (finding the text ambiguous and so holding that extratextual sources may be consulted, but noting there was no legislative history available). For cases finding the text clear, and therefore that section 1-2z applies, see Smith v. Andrews, 959 A.2d 597 (Conn. 2008); Goldstar Medical Services, Inc. v. Department of Social Services, 955 A.2d 15 (Conn. 2008); Earl B. v. Commissioner of Children & Families, 952 A.2d 32 (Conn. 2008); State ex rel. Gregan v. Koczur, 947 A.2d 282 (Conn. 2008); McWeeny v. City of Hartford, 946 A.2d 862 (Conn. 2008); Testa v. Geressy, 943 A.2d 1075 (Conn. 2008); Town of Groton v. Mardie Lane Homes, LLC, 943 A.2d 449 (Conn. 2008); Vincent v. City of New Haven, 941 A.2d 932 (Conn. 2008); State v. John F.M., 940 A.2d 755 (Conn. 2008); Town of Bloomfield v. United Electric, 939 A.2d 561 (Conn. 2008); and Felician Sisters of St. Francis of Connecticut, Inc. v. Historic District Commissioner of Enfield, 937 A.2d 39 (Conn. 2008). See also First Nat'l Bank of Litchfield v. Miller, 939 A.2d 572 (Conn. 2008) (declining to mention section 1-2z but using the same analysis). But see Jellum, supra note 6, at 844-46. Jellum contrasts the story of section 1-2z with Evans v. State, 872 A.2d 539 (Del. 2005), in which the Delaware Supreme Court struck down a legislated rule. Jellum argues that, in contrast to Delaware, Connecticut meekly submitted to section 1-2z. But just because Oregon, Texas, and Connecticut's legislated rules remain on the books, it does not mean their highest courts have submitted to them.
169. See Pasquariello v. Stop & Shop Cos., 916 A.2d 803, 809 n.8 (Conn. 2007) (noting but declining to reach the constitutional issue on the ground that the statutory text was ambiguous and so section 1-2z did not constrain the court from using the Courchesne methodology); Teresa T. v. Ragaglia, 865 A.2d 428, 434 n.6 (Conn. 2005) (holding that although "[b]oth parties filed supplemental briefs addressing whether [section 1-2z] violates the doctrine of separation of powers . . . [the court's] conclusion that the language of [the statute in question] is ambiguous, however, makes it unnecessary . . . to determine the constitutionality" of section 1-2z). For concerns about the constitutionality of section 1-2z, see, for example, Justice Borden's concurring opinion in Kinsey v. Pacific Employers Insurance Co., 891 A.2d 959, 970-71 (Conn. 2006) (Borden, J., concurring), which states that "[i]t can be seriously argued that § 1-2z . . . governs a subject matter lying exclusively within the judicial power."
170. The number of diversity cases from Connecticut alone during that period is difficult to determine, but the Second Circuit typically hears between 250 and 320 civil diversity cases each year. Approximately 300 to 350 cases of all kinds per year come to the Second Circuit from Connecticut, compared with approximately 3000 from New York. See USCourts.gov, Judicial Business of the United States Courts, http://www.uscourts.gov/judbususc/judbus.html (tables B-3 and B-7 for the years 2003 to 2008) (last visited Dec. 12, 2009).
171. See Baghdady v. Baghdady, No. 3:05-cv-1494, 2008 WL 4630487, at *5 (D. Conn. Oct. 17, 2008); Great N. Ins. Co. v. RLJ Plumbing & Heating, Inc., No. Civ.A.3:04CV899, 2006 WL 1526066, at *7 (D. Conn. May 25, 2006); Mason Capital, Ltd. v. Kaman Corp., No. 3:05CV1470, 2005 WL 2850083, at *8 (D. Conn. Oct. 31, 2005).
172. VICKI JACKSON, CONSTITUTIONAL ENGAGEMENT IN A TRANSNATIONAL ERA 11-12, 39, 71 (2010).
173. The issues we have seen regarding legislated rules of construction do not come into play in Wisconsin and Michigan because Wisconsin's chapter on "Construction of Statutes" and Michigan's enacted "General Rules of Construction" do not legislate any interpretive methodology; they simply define uncontroversial items such as use of singular and plural. MICH. COMP. LAWS ANN. §§ 8.3-8.3u (West 2004 & Supp. 2007); WIS. STAT. ANN. §§ 990.01-.08 (West 2007 & Supp. 2009).
174. Shirley S. Abrahamson, Reincarnation of State Courts, 36 SW. L.J 951, 966 (1982).
175. Shirley S. Abrahamson, Reincarnation of State Courts, 36 SW. L.J 951, 966 (1982).
176. See State ex rel. Kalal v. Circuit Court, 681 N.W.2d 110, 127-28 (Wis. 2004) (Abrahamson, C.J., concurring) ("It is important . . . that litigants, lawyers, legislators, courts, and the people of Wisconsin know and understand our approach to legislative interpretation.").
177. See id. at 123 (majority opinion) ("Wisconsin's statutory interpretation case law has evolved in something of a combination fashion, generating some analytical confusion. Accordingly, we now conclude that the general framework for statutory interpretation in Wisconsin requires some clarification.").
178. Id. at 124.
179. Id. at 122, 126 n.9, 128 n.3 (citing Justices Holmes, Frankfurter and Jackson, as well as various Supreme Court cases and law review articles discussing statutory interpretation in the federal courts by scholars including Justice Scalia and Professors Cass Sunstein, Daniel Farber, Philip Frickey, and Burt Neuborne). The justices who disfavor Kalal's rule that ambiguity must be found before legislative history may be consulted have cited as many federal sources in support of their own approach as does the majority in support of textualism. Abrahamson based her Kalal concurrence on a prior opinion that relied almost exclusively on the opinions of Justices Scalia, Breyer, and Frankfurter, and federal Judges Richard Posner and Abner Mikva; and on federally focused academic writings by Professors T. Alexander Aleinikoff, Ronald Dworkin, William Eskridge, and Max Radin; and endorsed the Connecticut Supreme Court's rejection of the plain-meaning rule in Courchesne. See id. at 136 (Abrahamson, C.J., concurring) (relying on In re Commitment of Byers, 665 N.W.2d 729, 738-42 (Wis. 2003)). Two other Wisconsin Supreme Court justices also have urged a more elastic interpretation of the Kalal framework. See, e.g., State v. Grunke, 752 N.W.2d 769, 780-81 (Wis. 2008) (Bradley, J., concurring); State v. Hayes, 681 N.W.2d 203, 218 (Wis. 2004) (Bradley, J., concurring); Kalal, 681 N.W.2d at 137 (Bradley, J., concurring); Byers, 665 N.W.2d at 742-43 (Bablitch, J., concurring); State v. Peters, 665 N.W.2d 171, 180-81 (Wis. 2003) (Bablitch, J., concurring).
180. Kalal, 681 N.W.2d at 126.
181. See, e.g., State v. Doss, 754 N.W.2d 150, 158 (Wis. 2008) (unanimous opinion) (holding "questions of statutory interpretation . . . are reviewed de novo under the standards set forth by" Kalal); Grunke, 752 N.W.2d at 774-75; Town of Madison v. County of Dane, 752 N.W.2d 260 (Wis. 2008) (majority, concurring opinion of C.J. Abrahamson, and dissent all agreeing that the Kalal plain-meaning approach governs); Teschendorf v. State Farm Ins. Cos., 717 N.W.2d 258, 263 (Wis. 2006) ("[T]his court adheres to the proposition that statutory interpretation begins with the language of the statute, and if the meaning there is plain, the inquiry ordinarily ends." (citing Kalal)); All Star Rent a Car, Inc. v. Wis. Dep't of Transp., 716 N.W.2d 506 (Wis. 2006) (majority opinion, joined by Abrahamson, C.J., and Bradley, J.) (stating that "[w]hen we interpret a statute, we rely on the criteria set out in . . . Kalal"); Kontowicz v. Am. Standard Ins. Co. of Wis., 714 N.W.2d 105, 121 (Wis. 2006) (referring to Wisconsin's rules of statutory construction as "the Kalal methodology"); James Cape & Sons Co. v. Mulcahy, 700 N.W.2d 243, 249 (Wis. 2005) (stating in unanimous opinion that "[t]he court clarified the appropriate analysis for statutory interpretation in [Kalal]"); Hayes, 681 N.W.2d at 226 n.1 (Sykes, J., concurring); State v. Aufderhaar, 700 N.W.2d 4, 10-11 (rejecting the argument that the court may apply the approach preferred by Justice Abrahamson over the Kalal majority approach), aff'd, 700 N.W.2d 4, 10-11 (Wis. 2005) (unanimous decision) ("For our interpretation of these statutes, we rely on the criteria of statutory interpretation set out in . . . Kalal."). In 2008 alone, the state supreme court expressly referred to Kalal as providing the governing framework in seventeen cases. See Doss, 754 N.W.2d at 158; Hefty v. Strickhouser, 752 N.W.2d 820, 831 (Wis. 2008); Sands v. Whitnall Sch. Dist., 754 N.W.2d 439, 445 (Wis. 2008); Grunke, 752 N.W.2d at 774; Larry v. Harris, 752 N.W.2d 279, 286 (Wis. 2008); Town of Madison, 752 N.W.2d at 266; Watton v. Hegerty, 751 N.W.2d 369, 377 (Wis. 2008); State v. MacArthur, 750 N.W.2d 910, 914 (Wis. 2008); C. Coakley Relocation Sys., Inc. v. City of Milwaukee, 750 N.W.2d 900, 905 (Wis. 2008); In re Doe Petition, 750 N.W.2d 873, 886 (Wis. 2008); State v. Duchow, 749 N.W.2d 913, 917 (Wis. 2008); State v. Popenhagen, 749 N.W.2d 611, 642 n.56 (Wis. 2008); Richards v. Badger Mut. Ins. Co., 749 N.W.2d 581, 587 (Wis. 2008); Estate of Matteson v. Matteson, 749 N.W.2d 557, 567 (Wis. 2008); State v. Quintana, 748 N.W.2d 447, 452 (Wis. 2008); Stuart v. Weisflog's Showroom Gallery, Inc., 746 N.W.2d 762, 767 (Wis. 2008); State v. Schaefer, 746 N.W.2d 457, 472 (Wis. 2008). Reviewing all state supreme court cases in the Westlaw statutes key number since January 1, 2004, Kalal is cited for the court's methodological approach in 103 of 145 cases; in the remaining forty-two cases, twenty-three concerned statutory interpretation (the others were agency deference or cases in which the question at issue was not one of statutory construction). Twelve of the twenty-three recited and applied the Kalal formula (without citing Kalal itself); six focused only on plain language (and so were consistent with Kalal but did not specifically recite the methodology with respect to extrinsic evidence). The remaining five, all of which were authored by Kalal's main opponents, Justices Abrahamson and Bradley, began with text but moved to extrinsic sources without an express finding of ambiguity and without discussing whether they were proceeding under Kalal.
182. Conclusions about lower courts are more tentative, as there are many more cases in the lower courts and many are unreported. But searching the Westlaw database for lower court cases that cite Kalal reveals 232 Wisconsin appellate court opinions and more than 300 online state appellate court briefs that rely on Kalal for the methodological approach. Searching a different way, searching all Wisconsin appellate court opinions in the Westlaw "Statutes" key number between the date of the Kalal decision and July 1, 2009, Kalal is cited for the governing approach in 113 out of 195 reported cases. Of the remaining eighty-two cases, twenty-five are agency deference cases and so use Wisconsin's special agency deference regime; eleven are not statutory interpretation cases (they are cases about matters such as standards of review or proper procedural enactment of statutes); and two do not discuss methodology. Of the remaining forty-four-the basic statutory interpretation cases-all but one applied the Kalal framework: specifically, in twenty cases the framework was recited; and in twenty-three the court applied plain-language analysis consistent with the Kalal framework without reciting it.
183. See, e.g., Grunke, 752 N.W.2d at 780 (Abrahamson, C.J., concurring); id. (Bradley, J., dissenting); Lornson v. Siddiqui, 735 N.W.2d 55, 76 (Wis. 2007) (Crooks, J., joined by Abrahamson, C.J., and Bradley, J., concurring in part and dissenting in part) ("Under Kalal, since the plain meaning of [the contested statutes] . . . are evident . . . [another statute] is not relevant here, nor is the supposed legislative history.").
184. Noffke v. Bakke, 760 N.W.2d 156, 172-73 (Wis. 2009) (Abrahamson, C.J., concurring) (arguing dictionary definitions of "sport" and "team" do not resolve whether cheerleading is a "sport involving amateur teams" within ordinary meaning as required by Kalal and instead looking to the enacted statement of statutory purpose).
185. See, e.g., Warehouse II, LLC v. State Dep't of Transp., 715 N.W.2d 213, 226 (Wis. 2006) (Abrahamson, C.J., dissenting).
186. See, e.g., Sands, 754 N.W.2d at 445 (joining majority opinion using Kalal as governing framework); Town of Madison, 752 N.W.2d at 266 (same); MacArthur, 750 N.W.2d at 914 (same); id. at 924 (Bradley, J., concurring) (arguing that the plain text supported the majority's reading even though it was uncertain that the textual approach comported with actual legislative intent); Duchow, 749 N.W.2d at 917 (unanimously applying Kalal framework); Quintana, 748 N.W.2d at 452 (same); State v. DeLain, 695 N.W.2d 484, 488 (Wis. 2005) (stating unanimously that "plain meaning" rule is "required by" Kalal).
187. Sands, 754 N.W.2d at 439; Doss, 754 N.W.2d at 150; MacArthur, 750 N.W.2d at 910 (majority opinion, joined by Abrahamson, C.J., but not Bradley, J.); C. Coakley Relocation Sys., 750 N.W.2d at 900; Duchow, 749 N.W.2d at 913; Matteson, 749 N.W.2d at 557; Quintana, 748 N.W.2d at 447; Stuart, 746 N.W.2d at 762 (Abrahamson, C.J., joining the majority on the statutory interpretation issue, and concurring in part on another point). In another case not included in the totals in the text, Hefty v. Strickhouser, 752 N.W.2d 820, 831 (Wis. 2008), Kalal was cited for the proposition that interpretation begins with the plain text, but not for an overarching framework; the court applied a strictly literal interpretation, and Abrahamson and Bradley joined.
188. Noffke, 760 N.W.2d at 172-73 (Abrahamson, C.J., concurring) (disagreeing with majority's view that the dictionary definitions accurately set forth "ordinary meaning" of the words "team" and "sport"); County of Dane v. Labor & Indus. Review, 759 N.W.2d 571, 584 (Wis. 2009) (Abrahamson, C.J., concurring) (disagreeing with the majority's view that prior enacted versions of statutes are part of Kalal textual analysis); Wis. Dep't of Revenue v. Menasha Corp., 754 N.W.2d 95, 131 (Wis. 2008) (Abrahamson, C.J., dissenting) (disagreeing with the majority's interpretation of text but not the majority's citation to Kalal for its support for a plain-meaning interpretation of an administrative rule); Grunke, 752 N.W.2d at 780 (Abrahamson, C.J., concurring) (disagreeing with the majority's view that the text was clear); id. (Bradley, J., dissenting) (same); Larry v. Harris, 752 N.W.2d 279, 292 (Wis. 2008) (Abrahamson, C.J., concurring) (writing separately to make a point about retroactive notice, not reliance on Kalal); Town of Madison, 752 N.W.2d at 273 (Abrahamson, C.J., concurring) (arguing that "[t]he majority opinion applies [the statute] according to its literal text, a well-accepted approach to statutory interpretation," but urging the legislature to amend the statute); MacArthur, 750 N.W.2d at 924 (Bradley, J., concurring) (arguing that the text was clear but expressing doubt as to whether the text was consistent with legislative intent); Richards v. Badger Mut. Ins. Co., 749 N.W.2d 581, 597 (Wis. 2008) (Abrahamson, C.J., dissenting) (arguing that the text was clear); State v. Schafer, 746 N.W.2d 457, 481 (Wis. 2008) (Abrahamson, C.J., concurring) (chiding the majority for moving beyond textual analysis to theories about criminal law).
189. See Watton v. Hegerty, 751 N.W.2d 369, 384 (Wis. 2008) (Abrahamson, C.J., concurring) (urging reliance on more interpretive tools "without deceptively characterizing its analysis as a 'plain language' analysis"). Even in that case, Abrahamson does not advocate overruling Kalal, and it is unclear whether her argument for a more eclectic approach was based on the fact she believed the specific text was unclear or was intended to be an argument for a new general approach. Earlier, in 2006, Abrahamson had more forthrightly urged the court to abandon the ambiguity threshold. Teschendorf v. State Farm Ins. Cos., 717 N.W.2d 258, 276 (Wis. 2006) (Abrahamson, C.J., concurring) ("A better approach to statutory interpretation would be to drop the ambiguous/unambiguous/literal/plain meaning pretense and instead take a comprehensive view . . . ."). Abrahamson has not argued for such a change since.
190. The governor appoints justices to fill vacancies with unexpired terms, but the justices must run in nonpartisan elections for their full terms. BOOK OF THE STATES, supra note 129, at 286.
191. Maura D. Corrigan, Textualism in Action: Judicial Restraint on the Michigan Supreme Court, 8 TEX. REV. L. & POL. 261, 263-64 (2004).
192. See, e.g., CORNELL W. CLAYTON, THE POLITICS OF JUSTICE 151 (1992); T.R. Goldman, The Flower of the Reagan Revolution, LAW.COM, Aug. 3, 2005, http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=900005544676.
193. Abigail Thernstrom, Op-Ed., Trial Lawyers Target Three Michigan Judges Up for Election, WALL ST. J., May 8, 2000, at A43.
194. See Corrigan, supra note 192, at 264; Clifford W. Taylor, A Government of Laws, and Not of Men, 22 T.M. COOLEY L. REV. 199, 208 (2005); sources cited infra note 222.
195. See Nelson P. Miller, "Judicial Politics": Restoring the Michigan Supreme Court, MICH. B.J., Jan. 2006, at 38, 38; Todd C. Berg, Marilyn Kelly Named New Michigan Supreme Court Chief Justice, MICH. LAW. WKLY., Jan. 12, 2009 (noting the court overruled sixty-one precedents between 2000 and 2005, compared with eighteen in the prior five-year period); see also People v. Hawkins, 668 N.W.2d 602, 618, 622 (Mich. 2003) (Cavanagh, J., dissenting) (chastising the court for disregarding "the strong presumption that a high court's construction of a statute should be given a heightened stare decisis effect").
196. See Corrigan, supra note 192, at 263; Taylor, supra note 195, at 201.
197. The legislative acquiescence rule is generally used by courts to impute legislative assent to a court's interpretation of a statute from the failure of legislative action aimed at overriding the decision.
198. Donajkowski v. Alpena Power Co., 596 N.W.2d 574, 582 (Mich. 1999).
199. Id. at 582-83. Not to be outdone in comparative analysis, the purposivists, in defending the legislative acquiescence rule, also invoked federal cases and data regarding U.S. congressional responses to the rule. See Hawkins, 668 N.W.2d at 619 (Cavanagh, J., dissenting).
200. Paige v. City of Sterling Heights, 720 N.W.2d 219, 232 (Mich. 2006) (characterizing dissenter's argument in favor of reinstating legislative acquiescence rule as "ignor[ing] the holding of this Court in Donajkowski" and "reveal[ing] how little fidelity he has to precedent"); People v. Gardner, 753 N.W.2d 78, 89 (Mich. 2008) (arguing that the acquiescence rule was "squarely rejected by this Court" in Donajowski).
201. See, e.g., Dimmitt & Owens Fin., Inc. v. Deloitte & Touche (ISC), L.L.C., 752 N.W.2d 37 (Mich. 2008); Lash v. City of Traverse City, 735 N.W.2d 628, 633 (Mich. 2007); Renny v. Mich. Dep't of Transp., 734 N.W.2d 518, 521 (Mich. 2007); Paige, 720 N.W.2d at 231; Donajkowski, 596 N.W.2d at 577.
202. People v. McIntire, 599 N.W.2d 102, 107 n.8 (Mich. 1999) (finding that the rule against absurdities cannot be applied when the text is clear); see also Corrigan, supra note 192, at 264-65 (summarizing decisions in which the court "rejected" absurd results and legislative acquiescence rules).
203. See In re Complaint of Rovas Against SBC Mich., 754 N.W.2d 259, 265-72 (Mich. 2008).
204. See, e.g., Mich. Fed'n of Teachers v. Univ. of Mich., 753 N.W.2d 28, 33 (Mich. 2008) ("'If the language of a statute is clear and unambiguous, the plain meaning of the statute reflects the legislative intent and judicial construction is not permitted.'" (quoting Herald Co. v. Bay City, 614 N.W. 2d 873 (Mich. 2000))); Ernsting v. Ave Maria Coll., 742 N.W.2d 112, 112 (Mich. 2007) (denying leave to appeal but publishing an order to chide the appellate court for using the canon); Mayor of Lansing v. Mich. Pub. Serv. Comm'n, 680 N.W.2d 840, 846 (Mich. 2004) ("A finding of ambiguity, of course, enables an appellate judge to bypass traditional approaches to interpretation . . . and engage in a . . . reading of 'legislative history.'"); In re Certified Question, 659 N.W.2d 597, 600 n.5 (Mich. 2003) ("This Court has recognized the benefit of using legislative history when a statute is ambiguous and construction of an ambiguous provision becomes necessary." (internal citations omitted)); Koontz v. Ameritech Servs., Inc., 645 N.W.2d 34, 42 (Mich. 2002) (citing Justice Scalia's book and calling canons "dice-loading" rules); Crowe v. City of Detroit, 631 N.W.2d 293, 300 (Mich. 2001) ("[I]f the statutory language were ambiguous, our first duty is to attempt to discern the legislative intent underlying the ambiguous words. Only if that inquiry is fruitless, or produces no clear demonstration of intent, does a court resort to the remedial preferential rule . . . ."); Corrigan, supra note 192, at 265 (summarizing decisions in which the court held that "resorting to legislative history is never proper where a statutory text is unambiguous" and that "so-called preferential rules of interpretation should only be used as a last resort"); Maura D. Corrigan & J. Michael Thomas, "Dice Loading" Rules of Statutory Interpretation, 59 N.Y.U. ANN. SURV. AM. L. 231, 233 (2003) (detailing problems with substantive canons and noting that Michigan has "moved away" from them).
205. See Crowe, 631 N.W.2d at 300.
206. See Koontz, 645 N.W.2d at 42.
207. See Rovas, 754 N.W.2d at 265, 271-72. The Chevron doctrine had previously been "approvingly cited" by the Michigan Supreme Court in some cases. Id. at 271 n.63.
208. Id. at 271-72.
209. Id. at 267, 269. The other primary justification was that Chevron-type deference worked a delegation of judicial authority that was impermissible under the state constitution. Id. at 270, 272. The state rule now is that courts should not "defer" to agency constructions but that such constructions receive "the most respectful consideration and ought not to be overruled without cogent reasons." Id. at 276 (citation and emphasis omitted).
210. Hanner v. City of Dearborn Heights, No. 277957, 2008 WL 4274427, at *2 (Mich. Ct. App. Sept. 18, 2008); see, e.g., Priority Health v. Comm'r of Office of Fin. & Ins. Servs., 770 N.W.2d 457, 459 (Mich. Ct. App. 2009); Mich. Envtl. Council v. Mich. Pub. Serv. Comm'n, 2008 WL 4958719, at *3 (Mich. Ct. App. Nov. 20, 2008); In re Application of Consumers Energy Co., 761 N.W.2d 346, 349, 351 (Mich. Ct. App. 2008); Buckley v. Prof'l Plaza Clinic Corp., 761 N.W.2d 284, 289 (Mich. Ct. App. 2008); Alvan Motor Freight, Inc. v. Dep't of Treasury, 761 N.W.2d 269, 272, 277 (Mich. Ct. App. 2008).
211. People v. McIntire, 599 N.W.2d 102, 107-08 & n.8 (Mich. 1999) (quoting SCALIA, supra note 31, at 21).
212. See, e.g., Township of Casco v. Sec'y of State, 701 N.W.2d 102, 121-22 (Mich. 2005) (Young, J., concurring in part and dissenting in part); Piccalo v. Nix, 643 N.W.2d 233, 233 (Mich. 2002) (per curiam) (vacating and remanding the lower court opinion expressly in light of McIntire's rejection of the absurd results rule).
213. Cameron v. Auto Club Ins. Ass'n, 718 N.W.2d 784 (Mich. 2006); see also Detroit Int'l Bridge Co. v. Commodities Exp. Co., 760 N.W.2d 565, 573 (Mich. Ct. App. 2008) (describing Cameron as "binding precedent").
214. Cameron, 718 N.W.2d at 822 n.56 (Kelly, J., dissenting) (emphasis added).
215. See, e.g., Dan De Farms, Inc. v. Sterling Farm Supply Inc., 633 N.W.2d 824, 824 (Mich. 2001) (per curiam) (vacating and remanding in lieu of granting leave to appeal) ("Without finding an ambiguity in the statutory language, the Court of Appeals considered extra-textual 'evidence' of intent, including legislative history. On remand . . . [t]he Court of Appeals must begin by examining the language of [the statute]. If it is unambiguous, then the Court is to apply the statute as written. The Court may engage in further judicial construction only if it determines that the statutory language is ambiguous.").
216. See People v. Gardner, 753 N.W.2d 78, 95 (Mich. 2008) (Cavanagh, J., dissenting); Nat'l Pride at Work, Inc. v. Governor, 748 N.W.2d 524, 548 n.34 (Mich. 2008) (Kelly, J., dissenting); Cameron, 718 N.W.2d at 821-22.
217. Haynes v. Neshewat, 729 N.W.2d 488 (Mich. 2007); id. at 495 (Kelly, J., concurring).
218. See Hummel v. Marten Transp., 923 A.2d 657, 671 (Conn. 2007); Mastriano v. Bd. of Parole, 159 P.3d 1151, 1154-55 (Or. 2007).
219. See, e.g., Gardner, 753 N.W.2d at 78 (overruling holding that counting prior felonies for habitual offender statutes must arise from separate criminal incidents because prior cases relied on legislative history rather than plain text); People v. Hawkins, 668 N.W.2d 602, 609, 615 (Mich. 2003) (overruling prior construction of state exclusionary rule because prior opinions did not apply a literal approach).
220. Over the past several years, the methodological debate had grown increasingly politicized, and the justices began taking their views to the voting public. See, e.g., Corrigan, supra note 192; Corrigan & Thomas, supra note 205; Marilyn Kelly & John Postulka, The Fatal Weakness in the Michigan Supreme Court Majority's Textualist Approach to Statutory Construction, 10 T.M. COOLEY J. PRAC. & CLINICAL L. 287 (2008); Taylor, supra note 195; Clifford Taylor, Who Is in Charge Here? Some Thoughts on Judicial Review, 77 MICH. B.J. 32 (1998); Clifford W. Taylor, Who's in Charge: A Traditional View of Separation of Powers, 1997 DET. C.L. REV. 769; see also Paige v. City of Sterling Heights, 720 N.W.2d 219, 230 (Mich. 2006) (arguing a nontextualist "find[s] a way, no matter how tendentious . . . to declare that which he wishes to be ambiguous . . . ."); Memorandum from Elizabeth A. Weaver, Justice, Michigan Supreme Court, Dissent to Election of Chief Justice Clifford Taylor as Chief Justice (Jan. 5, 2007) (publicly objecting to Taylor's reelection as chief justice in memorandum styled as a dissent).
221. See Todd C. Berg, Michigan Supreme Court Chief Justice Taylor Defends His Court's Rulings, MICH. LAW. WKLY., Oct. 27, 2008 (quoting Taylor, who said that "[w]e're remaking the legal culture . . . saying what the law is and not what it ought to be"); Editorial, Taylor for Another Term on the Michigan Supreme Court, BAY CITY TIMES (Mich.), Oct. 14, 2008, at A7; David Eggert, Judge Challenges Chief Justice for High Court, GRAND RAPIDS PRESS, Oct. 19, 2008, at A24 (describing the challenger's campaign-trail criticism of Taylor's interpretation of the term "any person" in an environmental law case); GOP Can't Be Supremely Sure About Court Seat, FLINT J. (Mich.), Nov. 2, 2008, at A11 ("Critics say the court's strict interpretation of Michigan statutes has closed the courthouse doors to those seeking justice and the lawyers who represent them."); Zachary Gorchow, State Supreme Court: Chief Justice's Challenger Pulls Off Upset, DETROIT FREE PRESS, Nov. 5, 2008, at 7 ("[B]usiness interests and Republicans said Taylor and his fellow conservatives have taken a more literal interpretation of the law that has created a better climate to do business in Michigan."); Pat Shellenbarger, Stakes Spending High in Michigan Supreme Court Race Between Taylor, Hathaway, GRAND RAPIDS PRESS (Mich.), Oct. 31, 2008, at A1, available at http://blog.mlive.com/grpress/news_impact/2008/10/stakes_spending_high_in_michig/print.html.
222. The ten-year period studied as part of this project ended July 1, 2009, and by that date no statutory cases had been decided by the new purposivist majority altering the framework. My analysis of the two more recent cases is therefore based only on readings of those two cases and not on a broader reading of all statutory cases decided since July 1, 2009.
223. See People v. Gardner, 753 N.W.2d 78, 100 n.12 (Mich. 2008) (Cavanagh, J., dissenting) ("Principles of stare decisis . . . demand respect for precedent whether judicial methods of interpretation change or stay the same." (quoting CBOCS W., Inc. v. Humphries, 128 S. Ct. 1951, 1961 (2008))). Stare decisis for statutory precedents is not the same as stare decisis for interpretive methodology. The former concerns outcomes of cases, the latter the tools used to reach them. The U.S. Supreme Court generally gives extra precedential weight to substantive statutory precedents (which are different from methodological statements). See supra note 54.
224. U.S. Fidelity Ins. & Guar. Co. v. Mich. Catastrophic Claims Ass'n, Nos. 133466, 133468, 2009 WL 2184822 (Mich. July 21, 2009), rev'd on reh'g, 759 N.W.2d 154 (Mich. Dec. 29, 2008).
225. See id. at *10 (Young, J., dissenting) ("The facts have not changed . . . . The parties' arguments have not changed. And the rationale advanced in the opinions of this Court has not changed. Yet, within a matter of months, a decision of this Court, thoughtfully briefed, argued, and considered by seven justices, is no longer worth the paper it was written on . . . The reason is obvious: On January 1, 2009, the composition of this Court changed."). Also of note is the fact that, even when styled as a dissent prior to the court-composition change, the opinion adhered faithfully to the text-based interpretive hierarchy that governed (and in fact used only textual analysis). When the opinion was reproduced after the election as a majority opinion, it retained essentially the same textual analysis, although it added additional policy arguments supporting the textual analysis in conclusion. Id. at *9.
226. 773 N.W.2d 564 (Mich. 2009).
227. Id. at 567.
228. Id. at 579-80.
229. Id. at 570 & n.36 (citing Fluor Enters. Inc. v. Dep't of Treasury, 730 N.W.2d 722, 732 n.4 (2007) (Kelly, J., concurring)).
230. Id. at 570 & n.36 (citing Fluor Enters. Inc. v. Dep't of Treasury, 730 N.W.2d 722, 732 n.4 (2007) (Kelly, J., concurring)).
231. See supra Section I.C.
232. Jellum, supra note 6; Rosenkranz, supra note 2, at 2088 n.10; and Scott, supra note 10, all recognize, and to a varied degree engage with, the existence of legislated rules in the states.
233. See VERMEULE, supra note 66, at 125; Eskridge & Frickey, supra note 2; cf. Amanda Frost, Overvaluing Uniformity, 94 VA. L. REV. 1567, 1613 (2008) (arguing that courts could never systemically "standardize interpretation of federal law . . . but rather must address statutory ambiguity piecemeal"). In fact, the Oregon and Connecticut Supreme Courts announced their new regimes in single opinions, sua sponte. See infra note 247 and accompanying text.
234. See Frickey, supra note 25, at 1994-95.
235. See Helen Hershkoff, State Courts and the "Passive Virtues": Rethinking the Judicial Function, 114 HARV. L. REV. 1833, 1887 (2001); G. Alan Tarr, Understanding State Constitutions, 65 TEMP. L. REV. 1169 (1992).
236. Twenty-two states elect their judges; thirteen (including D.C.) use appointment (by either the governor, the legislature, or a nominating commission); the remaining sixteen use a combination of initial appointment and retention elections. Terms range from life (which is rare) to initial terms of office as short as one year prior to a retention election. See BOOK OF THE STATES, supra note 129, at 286-87; Am. Judicature Soc'y, Judicial Selection Methods in the States, http://www.ajs.org/selection/sel_state-select-map.asp (last visited Feb. 8, 2010). Specifically with respect to the states studied, Connecticut's justices are appointed; Texas's are elected in partisan elections; and Oregon's, Michigan's, and Wisconsin's are elected in non-partisan elections. BOOK OF THE STATES, supra note 129, at 286-87.
237. Helen Hershkoff, Positive Rights and State Constitutions: The Limits of Federal Rationality Review, 112 HARV. L. REV. 1131, 1169 (1999) (discussing the policy work of even unelected state judges as an "essential aspect of the judicial role"); Long, supra note 10, at 500-03; see Christine M. Durham, The Judicial Branch in State Government: Parables of Law, Politics, and Power, 76 N.Y.U. L. REV. 1601, 1622 (2001) ("State courts are, willy-nilly, players in an arena in which policy, power, politics, and law can be difficult or impossible to distinguish . . . .").
238. See Hans A. Linde, Observations of a State Court Judge, in JUDGES AND LEGISLATORS: TOWARD INSTITUTIONAL COMITY 117, 117-18 (Robert A. Katzmann ed., 1988); Long, supra note 10, at 502-03.
239. See, e.g., Shirley S. Abrahamson & Robert L. Hughes, Shall We Dance? Steps for Legislatures and Judges in Statutory Interpretation, 75 MINN. L. REV. 1045 (1991) (summarizing the mechanisms for court-legislative interaction in various states).
240. Kaye, supra note 4, at 23 (noting that "the state legislative/judicial relationship often takes the form of an open dialogue"); Long, supra note 10, at 501-02.
241. That Connecticut's justices prefer a purposivist approach while the four other states prefer a textualist approach highlights that institutional differences exist across the states themselves, too. One possible explanation for the difference might be that, of the five states, only Connecticut's justices are appointed. But detailed explanations of interstate differences are beyond the scope of this project, and must be left to other experts and future work. See, e.g., Nat'l Conf. of State Legislatures, Full-and Part-Time Legislatures, http://www.ncsl.org/?tabid=16701 (last visited Feb. 8, 2010) (stating that Michigan and Wisconsin have full-time legislatures and are "more similar to Congress," whereas legislators in Oregon, Texas, and Connecticut "spend more than two-thirds of a full time job being legislators," but generally have outside employment). See generally THE BOOK OF THE STATES, supra note 129 (providing detailed statistical data about all fifty state governments).
242. See, e.g., Yogman v. Parrott, 937 P.2d 1019, 1021 (Or. 1997) (contracts); Ecumenical Ministries v. Or. State Lottery Comm'n, 871 P.2d 106, 110-11 (Or. 1994) (initiatives); Priest v. Pearce, 840 P.2d 65, 67-69 (Or. 1992) (original constitutional provisions).
243. See State v. Beno, 341 N.W.2d 668, 675 (Wis. 1984).
244. See G. ALAN TARR, UNDERSTANDING STATE CONSTITUTIONS 194-99 (1998); Robert F. Williams, In the Glare of the Supreme Court: Continuing Methodology and Legitimacy Problems in Independent State Constitutional Rights Adjudication, 72 NOTRE DAME L. REV. 1015 (1997). Williams identifies a trend across state courts "in what seems like a teaching opinion, [to] set[] forth a list of . . . criteria . . . under which it says it will feel justified in interpreting its state constitution more broadly than the Federal Constitution. These criteria, then, are used by advocates . . . and judges to decide claims . . . ." Williams, supra, at 1021.
245. See Alan Schwartz & Robert E. Scott, Contract Interpretation Redux, 119 YALE L.J. 926, 928 n.1 (2010) (noting that thirty-eight states follow a "formalist" approach to contract interpretation.").
246. Landau, supra note 84, at 13 ("The adoption of a particular methodology for construing statutes was not at issue in PGE and was not the subject of briefing by the parties. Clearly, the court intended to present such a fully developed methodology for some time, and it was simply waiting for the appropriate vehicle by which to do so."); Telephone Interview with David Rice, Assistant Att'y Gen., Wis. Att'y Gen.'s Office (Jan. 7, 2009) (interviewee argued Kalal).
247. See Hershkoff, supra note 236, at 1871-75. Statistics available from 2006 provide a picture of the enormity of the state court docket. In 2006, 102.4 million cases (in all kinds of courts, including traffic, domestic, and juvenile, which make up a large portion of the docket) were filed, reactivated or reopened in all state courts combined; subtracting traffic, domestic and juvenile cases left 21.6 million criminal and 17.3 million civil cases. In the five states studied, the trial courts (all kinds of courts) in Connecticut disposed of 517,942 cases that year; Michigan, 4.3 million; Oregon, 612,855; Texas, 11.9 million; and Wisconsin, 1.5 million. The intermediate court totals for 2006 were: Connecticut, 1097; Michigan, 8283; Oregon, 3502; Texas, 11,784; and Wisconsin, 3132. COURT STATISTICS PROJECT, supra note 21, at 107, 154 tbls.2 & 11. In contrast, in 2008, the combined civil and criminal filings for all the federal district courts totaled 338,153 and, for all the federal courts of appeals, 61,104. ADMIN. OFFICE OF THE U.S. COURTS, JUDICIAL BUSINESS OF THE UNITED STATES COURTS 11 (2009). In 2006, the number of non-highest court judges in each state was approximately: Connecticut, 323; Michigan, 614; Oregon, 450; Texas, 3222; and Wisconsin, 503. COURT STATISTICS PROJECT, supra note 21, at 96 fig.G. The docket sizes of the state supreme courts are somewhat more comparable to that of the U.S. Supreme Court, with, for 2006, state highest courts issuing the following number of merits decisions: Connecticut, 158; Michigan, 50; Oregon, 96; Texas supreme, 84; Texas criminal, 243; and Wisconsin, 158. Id. at 197 tbl.17. However, the state highest courts generally have fewer staff.
248. See, e.g., 1 KENT GREENAWALT, LEGAL INTERPRETATION, OTHER DISCIPLINES AND PRIVATELY CREATED TEXTS (forthcoming 2010) (manuscript of chapter 8, on file with author); Schwartz & Scott, supra note 246.
249. See, e.g., Thomas v. Progressive Cas. Ins. Co., 749 N.W.2d 678, 684 n.5 (Iowa 2008) ("Cases interpreting language in statutes are persuasive authority in interpreting contractual language. In both situations, the court strives to determine intent . . . ."); Tackney v. U.S. Naval Acad. Alumni Ass'n, 971 A.2d 309, 318 (Md. 2009) ("It is a fundamental principle that the rules used to interpret statutes, contracts and other written instruments are applicable when construing corporate charters . . . ." (quoting Gentle v. SinglePoint Fin., Inc., 788 A.2d 111, 113 (Del. 2003))); Petersen v. Magna Corp., 773 N.W.2d 564, 603 (Mich. 2009) (Markman, J., dissenting) (listing interpretive factors for statute and contract interpretation as interchangeable and providing a single list of factors as equally applicable to both); Horse Creek Conservation Dist. v. State ex rel. Wyo. Att'y Gen., No. S-08-0200, 2009 WL 4021664, at *11 (Wyo. Nov. 23, 2009) ("As statutory and contract interpretation principles make clear, the plain and ordinary meaning of the word governs.").
250. I am indebted to Bill Eskridge for this point. But see infra note 402 and accompanying text (making a counterargument). It may also be, as Richard Briffault suggested to me, that reaching consensus is easier in the states because the generally shorter terms of state court justices may result in more similarly minded people (i.e., people relatively close in age and perhaps political affiliation) sitting on the same court. In contrast, because of life tenure, federal judges appointed decades apart, by different presidents, must hear cases together.
251. See Abrahamson, supra note 175, at 966 (suggesting that state courts take the lead in making law more coherent because "the [U.S.] Supreme Court . . . is the court most remote from the problems of everyday concern for the administration of justice").
252. Peter L. Strauss, One Hundred Fifty Cases per Year: Some Implications of the Supreme Court's Limited Resources for Judicial Review of Agency Action, 87 COLUM. L. REV. 1093, 1121 (1987).
253. Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-43 (1984). Other cases, together with Chevron, make up the Court's entire deference regime regarding agency statutory interpretation. E.g., United States v. Mead Corp., 533 U.S. 218, 226-27 (2001) (explaining when Chevron applies); Skidmore v. Swift & Co., 323 U.S. 134, 139-40 (1944) (applying a less deferential standard).
254. The question in Chevron was whether the "EPA's decision to allow States to treat all of the pollution-emitting devices within the same industrial grouping as though they were encased within a single 'bubble' [was] based on a reasonable construction of the [Clean Air Act] term 'stationary source.'" 467 U.S. at 840.
255. A forthcoming article by Bill Eskridge and Connor Raso takes some issue with my conclusion on this point. William N. Eskridge, Jr. & Connor N. Raso, Chevron as a Canon, Not a Precedent: An Empirical Test of What Motivates Judges in Agency Deference Cases, 110 COLUM. L. REV. (forthcoming 2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1440392. They argue that, in practice, the Justices do not treat Chevron as "binding." However, they concede my point that the Justices "believe that the proper interpretation of Chevron . . . is binding on the Supreme Court and lower courts . . . [and the] Court has repeatedly said or acted as though Chevron is binding as a matter of stare decisis." Id. at 24 (emphasis added). Moreover, they do not claim that the Court would not be capable of following any consensus regime; rather they imply that the wide spectrum of deference regimes currently applied by the Court would have to be simplified to become more transparent and predictable. Id. at 57-58.
256. The docket pressures on the Supreme Court greatly limit its capacity to provide uniform national guidance on all questions of federal law. In the administrative law context, it is true, there exists a national body-the agency-that can give federal law uniform meaning. As Strauss observes, Chevron transfers considerable decisional authority away from lower courts to national agencies in the interest of such uniformity, thus making Chevron "a device for managing the courts of appeals that can reduce . . . the Supreme Court's need to police their decisions." Strauss, supra note 253, at 1121. In contrast, in nonagency statutory cases, the Court alone does not have the resources to provide the same kind of substantive guidance to lower courts that agency interpretations may provide; but this does not mean that some Court-articulated guidance as to how the interpretive process should occur would not also have beneficial lower court coordinating effects. Indeed, during the period of textualism's early ascendancy, Frederick Schauer made a similar "case management" argument about the benefits of Supreme Court coordination around a text-based statutory interpretation methodology. Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Meaning, 1990 SUP. CT. REV. 231, 255 (arguing that a text-based rule would relieve the Justices and their clerks of the need to "become truly internally expert in every subject," bring more "institutional stability," and, from a normative standpoint, have the desirable benefit of furthering intracourt agreement).
257. See, e.g., 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 (2008); Thomas J. Miles & Cass R. Sunstein, Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron, 73 U. CHI. L. REV. 823 (2006).
258. See infra Section IV.B (discussing illustrative data from close studies of Oregon).
259. Under the modified textualist regimes in the states studied, courts first determine whether textual analysis alone can answer the statutory question. In contrast, under Chevron, the Court looks for something arguably more vague: whether, under any principles of statutory construction-which can include more than textual analysis-the statute forecloses agency discretion or instead whether the statute has a "zone of indeterminacy." Kenneth A. Bamberger & Peter L. Strauss, Chevron's Two Steps, 95 VA. L. REV. 611, 624 (2009); see Peter L. Strauss, Overseers or "the Deciders"-The Courts in Administrative Law, 75 U. CHI. L. REV. 815, 820 (2008) ("Beyond its cryptic reference to 'traditional tools of statutory interpretation,' Chevron does not say how the courts are to perform their customary, independent role of law definition." (citation omitted)).
260. See supra note 254. The existence of other frameworks arguably enables more manipulability because there is the initial question of whether Chevron even applies, before consideration of how it is applied. But notably this fact has not led scholars to argue that Chevron is not worth preserving. To the contrary, it has led to arguments for even clearer, more rigid rules governing when it applies. See Thomas W. Merrill & Kathryn Tongue Watts, Agency Rules with the Force of Law: The Original Convention, 116 HARV. L. REV. 467, 580 (2002) (arguing that the Court should adopt a canon "about which kinds of delegations should sustain Chevron deference," which "would function like a presumptive rule, and rules are generally better than broad standards for exercising control over subordinate actors in a hierarchy"); Strauss, supra note 253. Other differences also may be relevant, e.g., differences in the politics and personalities of various courts as well as differences in the ways in which judges approach questions of agency deference and "straight" statutory interpretation.
261. See Thomas J. Miles & Cass R. Sunstein, The New Legal Realism, 75 U. CHI. L. REV. 831, 844 (2008) ("In most domains, the division between Republican and Democratic appointees, while significant, is far from huge; the law, as such, seems to be having a constraining effect . . . . We are speaking, moreover, of the most contested areas of the law, where political differences are most likely to break out . . . . For those who believe in the rule of law, and in the discipline imposed by the legal system . . . [t]he glass is half empty, perhaps, but it is also half full."). See also Frank B. Cross, Decisionmaking in the U.S. Circuit Courts of Appeals, 91 CAL. L. REV. 1457, 1514 (2003), which offers an empirical analysis and concludes that "[a]cknowledging a material role for politics or strategy in judicial decisionmaking does not mean that legal reasoning is necessarily meaningless. The law may moderate the effects of political leanings in some cases or supplant them entirely in others. The presence of ideological or other determinants in some cases leaves a considerable role for the accurate operation of the traditional legal model."
262. This is likely the case even though all five state supreme courts studied in this Article have discretionary jurisdiction. Cf. Elizabeth Garrett, Preferences, Laws and Default Rules, 122 HARV. L. REV. 2104, 2127 (2009) (reviewing EINER ELHAUGE, STATUTORY DEFAULT RULES: HOW TO INTERPRET UNCLEAR LEGISLATION (2008)) (arguing that Elhauge "uses only Supreme Court cases as evidence of what the judiciary is doing . . . and so he selects among an already skewed sample of all statutory interpretation cases").
263. See, e.g., ESKRIDGE ET AL., supra note 31 (using the Griggs/Weber/Johnson trilogy of discrimination/affirmative action cases as the three principal cases in first 123 pages of leading textbook, and using those cases to outline the fundamental questions of the field). Along with some less divisive cases, later principal cases include: Gonzales v. Oregon, 546 U.S. 243 (2006) (considering assisted suicide statute); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) (considering whether FDA can regulate nicotine as a drug); Bob Jones Univ. v. United States, 461 U.S. 574 (1983) (considering whether a university with a racially discriminatory admissions policy based on religious principles may receive a federal charitable tax exemption); TVA v. Hill, 437 U.S. 153 (1978) (famous "snail darter" case pitting the Endangered Species Act against the one-hundred million dollar Tellico Dam project); Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970) (discussing a widow who fell into a rare loophole that potentially prevented her from recovering for her longshoreman-husband's death); Palm Beach County Canvassing Bd. v. Harris, 772 So.2d 1220 (Fla. 2000) (the decision underlying Bush v. Gore).
264. See Merrill & Watts, supra note 261; Strauss, supra note 253.
265. See, e.g., Cross, supra note 262, at 1459 (providing an empirical study of federal appellate decisions that "find[s] that legal and political factors are statistically significant determinants of decisions, with legal factors having the greatest impact"); Miles & Sunstein, supra note 258, at 859 ("[W]hen a circuit court applies Chevron, the influence of panel composition on judicial decisionmaking appears largely cabined to politically unified panels. These patterns suggest the possibility that Chevron is succeeding in eliminating the influence of circuit judges' political preferences in review of agency decisions, at least within the domain of politically mixed panels."); Miles & Sunstein, supra note 262; cf. Mark J. Richards & Herbert M. Kritzer, Jurisprudential Regimes in Supreme Court Decision Making, 96 AM. POL. SCI. REV. 305, 315 (2002) (arguing that constraining effects of "jurisprudential regimes" in freedom of expression cases show that "[l]aw matters" even in Supreme Court decisionmaking).
266. Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. CAL. L. REV. 845, 862 (1992) ("[U]nlike lower courts, the Supreme Court frequently interprets statutory provisions arising out of serious political disagreement . . . . Federal courts of appeals, however, consider many more cases each year, and many more less important cases . . . Their workload includes many unclear statutory provisions where lack of clarity does not reflect major political controversy. Such cases usually do not involve conflicting legislative history; in fact, the history itself often is clear enough to clarify the statute . . . ."); Harry T. Edwards & Michael A. Livermore, Pitfalls of Empirical Studies That Attempt To Understand the Factors Affecting Appellate Decisionmaking, 58 DUKE L.J. 1895, 1901 (2009) ("[M]y Colleagues and I are committed to applying the law and adhering to controlling precedent, not giving vent to our personal political and ideological leanings, and . . . we achieve this goal most of the time."); Patricia M. Wald, A Response to Tiller and Cross, 99 COLUM. L. REV. 235, 235 (1999) (criticizing a study asserting that ideology drives most judicial decisions).
267. It is worth noting that, even in the U.S. Supreme Court, a significant number of statutory interpretation cases are decided unanimously, a fact that indicates that not all of these cases are so normatively difficult that it is implausible to imagine that the Justices could settle on a consistent interpretive approach. Cf. Richard H. Fallon, Jr., Constitutional Constraints, 97 CAL. L. REV. 975, 1004 (2009) ("Unanimous opinions provide some evidence that justices of otherwise diverse ideological outlooks acknowledge the existence of rules capable of dictating legally correct outcomes-not chosen on the basis of ideological preferences-when those rules clearly apply."). There were twelve unanimous statutory interpretation decisions in the 2008 Term and nine in the 2007 Term. See Nijhawan v. Holder, 129 S. Ct. 2299 (2009); United States ex rel. Eisenstein v. City of New York, 129 S. Ct. 2230 (2009); Republic of Iraq v. Beaty, 129 S. Ct. 2183 (2009); Abuelhawa v. United States, 129 S. Ct. 2102 (2009); Carlsbad Tech., Inc. v. HIF Bio, Inc., 129 S. Ct. 1862 (2009); United States v. Navajo Nation, 129 S. Ct. 1547 (2009); Hawaii v. Office of Hawaiian Affairs, 129 S. Ct. 1436 (2009); Kansas v. Colorado, 129 S. Ct. 1294 (2009); United States v. Eurodif S.A., 129 S. Ct. 878 (2009); Kennedy v. Plan Adm'r for DuPont Sav. & Inv. Plan, 129 S. Ct. 865 (2009); Fitzgerald v. Barnstable Sch. Comm., 129 S. Ct. 788 (2009); Jimenez v. Quarterman, 129 S. Ct. 681 (2009); Bridge v. Phoenix Bond & Indem. Co., 128 S. Ct. 2131 (2008); Allison Engine Co. v. United States, 128 S. Ct. 2123 (2008); Cuellar v. United States, 128 S. Ct. 1994 (2008); Burgess v. United States, 553 U.S. 124 (2008); United States v. Clintwood Elkhorn Mining Co., 553 U.S. 1 (2008); Boulware v. United States, 552 U.S. 421 (2008); Knight v. Comm'r, 552 U.S. 181 (2008); Logan v. United States, 552 U.S. 23 (2007); CSX Transp. Inc. v. Ga. State Bd. of Equalization, 552. U.S. 9 (2007).
268. This discussion focuses only on methodological stare decisis in the statutory context. It is possible that different considerations apply in the constitutional context, where the nature of the question is different-i.e., how to interpret a difficult-to-amend, old document versus how to interpret statutes that still may be drafted or amended after precedential methodological regimes are imposed. Indeed, it is because of this difference-that statutes are much easier to enact and amend in response to court decisions than are constitutional amendments-that courts generally attach different levels of substantive stare decisis to constitutional and statutory precedents, giving stronger precedential effect to statutory decisions. See supra note 54.
269. Connecticut is less clear on this, as evidenced by the Courchesne dissent's argument that interpretive principles are "judicial philosophy, not . . . substantive law." 816 A.2d 562, 610 (Conn. 2003) (Zarella, J., dissenting).
270. See, e.g., sources cited supra note 107.
271. See supra note 216 and accompanying text.
272. Foster, supra note 9, at 1898.
273. See Foster, supra note 9, at 1898.
274. See Hummel v. Marten Transp., 923 A.2d 657, 671 (Conn. 2007); Mastriano v. Bd. of Parole, 159 P.3d 1151, 1154-55 (Or. 2007).
275. Cf. Henry Paul Monaghan, Stare Decisis and Constitutional Adjudication, 88 COLUM. L. REV. 723 (1988) (arguing that one purpose of stare decisis is to promote stability).
276. A closely related question was also recently considered by the U.S. Supreme Court. See CBOCS W., Inc. v. Humphries, 128 S. Ct. 1951, 1961 (2008) (holding that 42 U.S.C. § 1981 (2006) encompasses retaliation claims, and interpreting the provision consistently with the 1969 interpretation of § 1982, even though the earlier precedent was decided using a much less text-centric methodology than the Court would use today); John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 135, 137 (2008) (rejecting the suggestion that the adoption, in 1990, of "a more general rule to replace our prior ad hoc approach for determining whether a Government-related statute of limitations is subject to equitable tolling" overruled several nineteenth-century precedents interpreting the Court of Claims limitation statute as "more absolute [in] nature"). In both cases, the Court held that changes in methodology do not "justify reexamination of well-established prior law. Principles of stare decisis . . . demand respect for precedent whether judicial methods of interpretation change or stay the same." CBOCS W., 128 S. Ct. at 1961. The alternative, the Court held, was too unsettling, because it "threaten[s] to substitute disruption, confusion, and uncertainty for necessary legal stability." John R. Sand & Gravel Co., 552 U.S. at 139.
277. See infra notes 279-282 and accompanying text.
278. Einer Elhauge, Preference-Eliciting Statutory Default Rules, 102 COLUM. L. REV. 2162, 2203 (2002).
279. Id. at 2204; see SOLAN, supra note 10, at 6-45 to -50; Price, supra note 145, at 904 (reaching the same conclusions about legislated lenity rules).
280. Elhauge, supra note 279, at 2268 (citing ARIZ. REV. STAT. ANN. § 1-211 (1995); CAL. CIV. PROC. CODE § 4 (West 1982); IDAHO CODE ANN. § 73-102 (1999); IOWA CODE ANN. § 4.2 (West 2001); KY. REV. STAT. ANN. § 446.080 (LexisNexis 1999); MO. ANN. STAT. § 1.010 (West 2000); MONT. CODE ANN. § 1-2-103 (2001); N.M. STAT. ANN. § 12-2A-18 (LexisNexis 1998); N.D. CENT. CODE § 1-02-01 (1987); OKLA. STAT. ANN. tit. 25, § 29 (West 1987); 1 PA. CONS. STAT. ANN. § 1928 (West 1995); S.C. CODE ANN. §§ 14-1-60, 15-1-10, 18-1-170, 19-1-10 (1977); S.D. CODIFIED LAWS § 2-14-12 (1992); TEX. GOV'T CODE ANN. § 312.006 (Vernon 1998); UTAH CODE ANN. § 68-3-2 (2000); and WASH. REV. CODE ANN. § 1.12.010 (West 2001)). Legislatures oppose the canon for the obvious reason that they do not want their statutory enactments unduly narrowed based on outdated presumptions about the dominance of the common law.
281. E.g., Hayes v. Continental Ins. Co., 872 P.2d 668, 676-78 (Ariz. 1994); Brodie v. Workers' Comp. Appeals Bd., 156 P.3d 1100, 1107 (Cal. 2007); Thomson v. City of Lewiston, 50 P.3d 488, 493 (Idaho 2002); State v. Dullard, 668 N.W.2d 585, 595 (Iowa 2003); Sunburst Sch. Dist. No. 2 v. Texaco, Inc., 165 P.3d 1079, 1091 (Mont. 2007); Burke v. Webb Boats, Inc., 37 P.3d 811, 814 (Okla. 2001); Everhart v. PMA Ins. Group, 938 A.2d 301, 307 (Pa. 2007); see also Estate of Williams v. Williams, 12 S.W.3d 302, 307 (Mo. 2000) ("Where doubt exists about the meaning . . . of words in a statute, the words should be given the meaning which makes the least, rather than the most, change in the common law.").
282. See supra note 115.
283. Boykin v. State, 818 S.W.2d. 782, 786 n.4 (Tex. Crim. App. 1991) (internal quotation marks omitted).
284. Evans v. State, 872 A.2d 539, 500 (Del. 2005) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)). Evans, which is discussed in Jellum, supra note 6, at 844-46, involved a previous statutory interpretation opinion by the Delaware Supreme Court holding that a convicted rapist, who was sentenced to life, could nevertheless be given a conditional release date. The Legislature enacted a statute overriding the decision and prohibiting courts from "interpret[ing] statutes . . . when the text is clear." DEL. CODE ANN. tit. 10, §§ 5402-5403 (2005). The Delaware Supreme Court declared the new law unconstitutional. Evans, 872 A.2d at 549-50.
285. Conn. H.R. Tran. 79 (May 20, 2003) (statement of Rep. Fox), available at http://cga.ct.gov/asp/menu/Search.asp (follow "Advanced Legislative Document Search hyperlink; then search in "Session Transcripts" database).
286. Conn. S. Tran. 44 (May 29, 2003) (statement of Sen. Kissel), available at http://cga.ct.gov/asp/menu/Search.asp (follow "Advanced Legislative Document Search hyperlink; then search in "Session Transcripts" database).
287. Conn. S. Tran. 44-45 (May 29, 2003) (statement of Sen. McDonald).
288. Manning, supra note 35, at 7.
289. See Nelson, supra note 31, at 355; Rosenkranz, supra note 2, at 2138; Siegel, supra note 67, at 1491. Manning argues that textualists would accept most legislated interpretive rules but- and here he diverges from others-would not accept a particular rule that ordered courts to admit legislative history. See John F. Manning, Putting Legislative History to a Vote: A Response to Professor Siegel, 53 VAND. L. REV. 1529, 1533 (2000). In Manning's view, Congress has no more authority than courts to order the impermissible circumvention of Article I's bicameralism/presentment process. See id. at 1541. But the state courts generally do not justify their objection to legislated rules based on legislative history-specific reasons; rather, they object generally to legislative interference with the judicial function.
290. See D. Neil MacCormick & Robert S. Summers, Interpretation and Justification, in INTERPRETING STATUTES, supra note 21, at 511, 543 (noting that many countries have tried to enact legislated rules but "there is little evidence [they] . . . have had very positive effects"); Kate Tokeley, Interpretation of Legislation: Trends in Statutory Interpretation and the Judicial Process, 33 VICTORIA U. WELLINGTON L. REV. 545, 549 (2002) (observing that New Zealand courts "for a long time failed to consistently apply the statutory mandate"); Goh Yihan, A Comparative Account of Statutory Interpretation in Singapore, 29 STATUTE L. REV. 195, 214-17 (noting that the High Court of Australia took ten years to firmly incorporate a legislative rule as the authoritative methodology and that Singapore similarly "took some time to interpret [a legislative rule] in its correct spirit").
291. See sources cited supra note 292.
292. This assumes of course that the underlying legislated rule itself is constitutional. Cf. Manning, supra note 291 (arguing that a legislated rule authorizing legislative history use is unconstitutional not because Congress has no authority to issue legislative directions but because, in his view, reliance on legislative history is unconstitutional).
293. See U.C.C. § 2-202 & cmt.1 (1977) (codifying the parol evidence rule and rejecting the plain-meaning rule); id. § 1-303 & cmt.1 (adopting a contextualist approach and rejecting a plain-meaning methodology). This Article discusses only legislated rules that apply to entire state codes but, like the UCC, there are also state statutes that dictate rules of interpretation for specific parts or sections of a state code.
294. See, e.g., 21 U.S.C. § 854(d) (2006) (penalizing investment of illicit drug profits and directing that the "provisions of this section shall be liberally construed to effectuate its remedial purposes"). RICO's statement of findings, enacted in the public law and codified as a note to the statute, has the same direction. Pub. L. No. 91-452, § 904(a), 84 Stat. 922 947 (1970) (codified at 18 U.S.C. § 1961 note).
295. 1 U.S.C. §§ 1-7 (2006).
296. Civil Rights Act of 1991, Pub. L. No. 102-166, § 105(b) (codified at 42 U.S.C. § 1981 (2006) ("No statements other than the interpretive memorandum appearing at Vol. 137 Congressional Record § 15276 . . . shall be considered legislative history of, or relied upon in any way as legislative history in construing or applying, any provision of this Act."); see SOLAN, supra note 10, at 6-34, 6-42 to -43 (providing more examples).
297. Linda Jellum has done the most recent extensive study. She conducts functional and formalist analyses and concludes that definitional legislated rules are constitutionally
298. permissible, but that legislated rules that tell judges how to construe statutes "are likely unconstitutional when enacted to apply generally to many statutes, but not when enacted to apply specifically to just one." Jellum, supra note 6, at 841-42; see also Alan R. Romero, Note, Interpretive Directions in Statutes, 31 HARV. J. ON LEGIS. 211, 223 (1994) (arguing for a distinction between "specifying the appropriate guiding principles or interpretive attitude (strict or liberal construction)" and "insisting that courts consult or not consult certain sources" on the ground that the former types of rules are permissible because they are "just evidence of legislative intent"); sources cited supra note 291 (arguing that Congress has the authority to legislate rules of interpretation).
299. Gluck, supra note 22.
300. Most states now do produce legislative history, and the variety and accessibility of the documents continue to improve; few, however, have legislative history operations comparable to Congress's. See infra note 398.
301. Eskridge, supra note 29, at 626.
302. Id. at 626-27.
303. Brudney & Ditslear, supra note 50; Michael H. Koby, The Supreme Court's Declining Reliance on Legislative History: The Impact of Justice Scalia's Critique, 36 HARV. J. ON LEGIS. 369, 386 (1999); Merrill, supra note 48, at 354.
304. Contra Jane S. Schacter, The Confounding Common Law Originalism in Recent Supreme Court Statutory Interpretation: Implications for the Legislative History Debate and Beyond, 51 STAN. L. REV. 1, 18 (1998) (showing that judicial "policy norms" were used by the majority opinion in seventy-three percent of statutory cases and canons of construction were used in fifty-six percent of majority opinions for the 1996 Term, by textualists and purposivists alike).
305. The empirical scholarship acknowledges that even these moderating Justices continue to use many substantive canons. Further, while the scholarship shows there has been a reduction in legislative history use, what it does not show is that this means these Justices consistently approach all cases using the same progression or hierarchy of sources. See supra notes 304-305.
306. Searching the Westlaw database for all of Roberts's and Alito's majority opinions in which legislative history was mentioned in any opinion in the case revealed seven opinions for Alito and one for Roberts. Of the Alito opinions, three consider proffered history but find it unpersuasive. Richlin Sec. Serv. Co. v. Chertoff, 128 S. Ct. 2007, 2015-18 (2008); Gomez-Perez v. Potter, 128 S. Ct. 1931, 1939 (2008); James v. United States, 550 U.S. 192, 201 (2007). One looks to history to confirm textual analysis. Zedner v. United States, 547 U.S. 489, 501-02 (2006). And three engage in something similar to modified textualism. Boyle v. United States, 129 S. Ct 2237, 2246 (2009) (refusing to address purpose, legislative history, or lenity arguments "[b]ecause the statutory language is clear"); Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 629-30, 642-43 (2007) (refusing to engage in policy analysis in light of Title VII's text and precedents; acknowledging legislative history but arguing that it does not help the dissent); Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 304 (2006) ("[W]here everything other than the legislative history overwhelmingly [supports the outcome], the legislative history is simply not enough."). In the Westlaw "Statutes" database there are three additional Alito opinions, with no reference to legislative history, decided purely on textual analysis. Allison Engine Co. v. United States ex rel. Sanders, 128 S. Ct. 2123 (2009); Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007); BP Am. Prod. Co. v. Burton, 549 U.S. 84 (2006); see also Elliot M. Davis, Note, The Newer Textualism: Justice Alito's Statutory Interpretation, 30 HARV. J.L. & PUB. POL'Y 983, 983-84 (2007) (arguing that Alito will consult legislative history, even without ambiguity, for evidence of context or to confirm textual analysis). The sole Roberts opinion in a case that mentions legislative history is Dean v. United States, 129 S. Ct 1849 (2009), which was decided based on textual analysis alone, as were all of the Roberts opinions in the Westlaw "Statutes" database in general. See Knight v. Comm'r, 552 U.S. 181 (2008); CSX Transp. Inc. v. Ga. State Bd. of Equalization, 552 U.S. 9 (2007); Hinck v. United States, 550 U.S. 501 (2007); Rumsfeld v. Forum for Academic & Institutional Rights, 547 U.S. 47
307. Compare Boumediene v. Bush, 128 S. Ct. 2229, 2266 (2008) (observing that "legislative history confirms what the plain text strongly suggests"), with Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 473 (1989) (Kennedy, J., concurring) (objecting to the use of legislative history to trump text, stating that "[w]here . . . the unambiguous language of a statute embraces certain conduct . . . it does not foster a democratic exegesis for the Court to rummage through unauthoritative materials to consult the spirit of the legislation in order to discover an alternative interpretation").
308. See, e.g., United States v. Hayes, 129 S. Ct. 1079 (2009) (Ginsburg, J.) (holding that the text was clear, but also looking to practical considerations and legislative history to confirm the interpretation); Zuni Pub. Sch. Dist. No. 89 v. Dep't of Educ. 550 U.S. 81, 89 (2007) (Breyer, J.) (consulting legislative history and purpose before engaging in a textual analysis); id. at 106 (Stevens, J., concurring) ("There is no reason why we must confine ourselves to, or begin our analysis with, the statutory text if other tools of statutory construction provide better evidence of congressional intent with respect to the precise point at issue."); Kircher v. Putnam Funds Trust, 547 U.S. 633, 643 (2006) (Souter, J.) (using legislative history to corroborate text read as clear); Scheidler v. Nat'l Org. for Women, Inc., 547 U.S. 9, 19-20 (2006) (Breyer, J.) (consulting the legislative history after concluding that the statute was clear); Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 572 (2005) (Stevens, J., dissenting) ("I remain convinced that it is unwise to treat the ambiguity vel non of a statute as determinative of whether legislative history is consulted."); Gen. Dynamics v. Cline, 540 U.S. 581 (2004) (Souter, J.) (looking to legislative and social history before engaging in a textual analysis).
309. See, e.g., Caminetti v. United States, 242 U.S. 470, 485 (1917) ("Where the language is plain and admits of no more than one meaning, the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion."). I am indebted to Phil Frickey for this insight.
310. See Frank H. Easterbrook, Judicial Discretion in Statutory Interpretation, 57 OKLA. L. REV. 1, 19 (2004); cf. Jack M. Beermann, Common Law Elements of the Section 1983 Action, 72 CHI.-KENT L. REV. 695, 698-99 (1997) (arguing that most ideologically conservative interpretations of 42 U.S.C. § 1983 (2006) have not been textualist).
311. Because Oregon justices are elected through nonpartisan elections, it is difficult to conclusively identify elected justices as "Republican" or "Democrat." However, most justices first take their seats through gubernatorial appointment due to vacancy. At the time PGE was decided, three Oregon justices had been appointed by a Republican governor, two by a Democrat governor, and two had been elected outright. The court now has four justices appointed by a Democrat, one by a Republican, and two elected outright. See OREGON SECRETARY OF STATE, ARCHIVES DIVISION, 2009-2010 OREGON BLUEBOOK 321 2009.
312. PGE, 859 P.2d 1143, 1144 (Or. 1993) (construing the statute to allow an employee to take accrued paid sick leave as part of parental leave).
313. See Connecticut Supreme Court Historical Society, Justices of the Connecticut Supreme Court, http://www.jud.state.ct.us/HistoricalSociety/justices/default.htm (last visited Mar. 5, 2010).
314. State v. Courchesne, 816 A.2d562, 569 (Conn. 2003) ("We acknowledge that, if we were to apply the . . . language literally . . . the defendant's contention probably carries more weight.").
315. See, e.g., Elected Officials Directory, The Texas Tribune, Elected Officials Directory, http://www.texastribune.org/directory (last visited Feb. 20, 2010) (noting that all judges were Republicans in 2010); TEXAS STATE DIRECTORY: THE COMPREHENSIVE GUIDE TO THE DECISION-MAKERS IN TEXAS GOVERNMENT 121-22 (2003) (noting that all judges were Republicans in 2003); TEXAS STATE DIRECTORY: THE COMPREHENSIVE GUIDE TO THE DECISION-MAKERS IN TEXAS GOVERNMENT 117-18 (1997) (noting that three judges were Democrats and six judges were Republicans in 1997); TEXAS STATE DIRECTORY: THE COMPREHENSIVE GUIDE TO THE DECISION-MAKERS IN TEXAS GOVERNMENT 111-12 (1992) (noting that all judges were Democrats in 1992); TEXAS STATE DIRECTORY: THE
316. Boykin v. State, 818 S.W.2d 782, 785-86 (Tex. Crim. App. 1991) (refusing to hold that a defendant's reference to the slang term "rock" sufficed for conviction under a statute requiring express reference to a controlled substance).
317. Siegel, supra note 18, at 175.
318. Manning, supra note 1, at 93.
319. Nelson, supra note 31, at 373.
320. SCALIA, supra note 31, at 24 ("[A] good textualist is not a literalist . . . .").
321. Manning, supra note 1, at 76-77.
322. Two studies have collected statistics concerning the application of the PGE framework, including legislative history, covering the period from PGE's creation in 1993 through 2006. See Johansen, supra note 84 (covering 1993 to 1998); Wilsey, supra note 84 (covering 1999 to 2006). In addition, as part of this project, all Oregon Supreme Court cases between 2005 and April 30, 2009 in which PGE was cited (fifty-nine total) were read closely and coded for numerous factors, including specific interpretive tools used. (To confirm that using cases in which PGE was cited provided an appropriate sample, all Oregon Supreme Court cases coded in the Westlaw key number "Statutes" decided in 2007 and 2008 were reviewed; all but twenty-three cited PGE, and the twenty-three that did not still applied the three-step framework.) This discussion excludes all post-Gaines cases. See supra note 118 and accompanying text.
323. Johansen, supra note 84, at 221 n.9, 244 n.169.
324. See Wilsey, supra note 84, at 616-17.
325. In particular, it would be useful to examine information from a more politically polarized bench, such as Michigan's. But we have to start somewhere, and Oregon, because of PGE's long history and relatively apolitical supreme court bench, provides a good foundation for this work.
326. Cf. Ward Farnsworth, Dustin F. Guzior & Anup Malani, Ambiguity about Ambiguity: An Empirical Inquiry into Legal Interpretation, 2 J. LEGAL ANALYSIS (forthcoming 2010) (manuscript at 24), http://ssrn.com/abstract =1441860.
327. See CROSS, supra note 11, at 142-48 (providing an empirical study of U.S. Supreme Court interpretation from 1994 to 2002).
328. See supra note 323.
329. SCALIA, supra note 31, at 23. But see supra note 106 (discussing a student comment arguing that this type of multifaceted textual analysis undermines the predictability of the PGE framework).
330. See Arthur Andersen LLP v. Carlisle, 129 S. Ct. 1896, 1900 (2009) (relying only on statute's "clear and unambiguous terms"); Carlsbad Tech., Inc. v. HIF BIO, Inc., 129 S. Ct. 1862 (2009) (relying on the precedents and dictionaries defining "subject matter jurisdiction"); United States v. Navajo Nation, 129 S. Ct. 1547 (2009) (relying on plain language and the precedent established by an earlier opinion in the same case); Jimenez v. Quarterman, 129 S. Ct. 681, 685 (2009) (relying on "plain language" and precedent); Bridge v. Phoenix Bond & Indemnity Co., 128 S. Ct. 2131 (2008) (relying on plain text); Cuellar v. United States, 128 S. Ct. 1994, 2000 (2008) (relying on plain text of the money laundering statute and the dictionary definition of word "designed" therein); Riegel v. Medtronic, Inc., 128 S. Ct. 999, 1008 (2008) (relying on "normal meaning" and previous opinions interpreting the term "state 'requirements'" to include common law duties, and looking to agency view for confirmation).
331. Cuomo v. Clearing House Ass'n, 129 S. Ct. 2710 (2009) (relying on plain text, precedent, a dictionary, common law practice, and absurd results canon); Atl. Sounding Co. v. Townsend, 129 S. Ct. 2561 (2009) (looking to common law backdrop and three canons: broad construction for remedial statutes, Congress is aware of prior cases when it legislates, and exclusio unius); United States ex rel. Eisenstein v. New York, 129 S. Ct. 2230 (2009) (relying on two textual canons: the rule against superfluities and exclusio unius). Both Atlantic Sounding and Cuomo are atypical because, in each, the textualist opinion writer (Thomas in the former and Scalia in the latter) is joined only by the Court's four "liberal"/purposivist Justices.
332. See Republic of Iraq v. Beaty, 129 S. Ct. 2183 (2009) (discussing the absurd results canon); Fla. Dep't of Revenue v. Piccadilly Cafeterias, Inc., 128 S. Ct. 2326, 2338 (2008) (applying the "federalism" canon). There were five other majority statutory interpretation opinions authored by Justices Scalia or Thomas that divided the Court across the usual
333. A nice example from the most recent Term is Justice Breyer's complex textualist analysis for a unanimous Court in Nijhawan v. Holder, 129 S. Ct. 2294 (2009).
334. Brudney & Ditslear, supra note 50; Koby, supra note 304; Merrill, supra note 48.
335. Nelson, supra note 31, at 394.
336. ESKRIDGE ET AL., supra note 31, app. B, at 29-41 (listing substantive canons used by the Court); cf. Zeppos, supra note 49, at 1092 ("[E]lasticity in interpretation may, in fact, come about because there are so many available sources of authority from which to choose. . .
337. Cf. 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) (arguing that for every canon of interpretation there is a competing canon that undermines it). The Court also could try to rank the canons. Cass Sunstein suggested decades ago that "it should be possible to achieve a more precise understanding of statutory construction-both as a descriptive and as a normative matter-by generating a hierarchy of interpretive principles." Sunstein, supra note 57, at 498.
338. SCALIA, supra note 31, at 27-28; see Manning, supra note 93, at 2473 ("One must acknowledge that the more particular background conventions endorsed by textualists often vest the judiciary with a range of discretion that is not apparent from the statutory text.").
339. See, e.g., In re Certified Question, 659 N.W.2d 597, 600 n.5 (Mich. 2003) ("[A]ctions of the Legislature intended to repudiate the judicial construction of a statute . . . or actions of the Legislature in considering various alternatives in language in statutory provisions before settling on the language actually enacted" are among the "highest quality" legislative history whereas "[o]f considerably diminished quality as legislative history are forms that do not involve an act of the Legislature," such as "staff analyses."); State ex rel. Kalal v. Circuit Court, 681 N.W.2d 110, 131-36 (Wis. 2004) (Abrahamson, C.J., concurring) (cataloging and discussing the respective merits of thirteen different types of legislative history ranging from statutory historical notes to executive veto messages).
340. See James C. Brudney, Below the Surface: Comparing Legislative History Usage by the House of Lords and the Supreme Court, 85 WASH. U. L. REV. 1, 60 (2007). Until 1992, England's House of Lords had a complete ban on the consultation of legislative history. See Pepper v. Hart, [1993] 1 All E.R. 42 (H.L.) (U.K.) (lifting ban); Brudney, supra, at 2.
341. Brudney, supra note 341, at 63.
342. Id. at 60, 63. For Brudney, however, who has argued not only for more subtle variations in weight given to different types of legislative history but also for more complex variations (such as different interpretive conventions for statutes addressing different subject areas), the states' middle ground might not be enough without further refinement.
343. Once judges are forced to go beyond statutory text (the only thing that goes through the bicameralism/presentment process), each of the remaining interpretive tools is equally outside the process. Likewise, Manning's argument that treating legislative history as "authoritative" violates the nondelegation doctrine (an argument not widely embraced by other textualists in any event) loses much force when legislative history is formally subordinated to textual analysis in all cases, because Manning's main objection in this context is to legislative history being treated as "authoritative," not to it being used at all. See Manning, supra note 40; see also Elhauge, supra note 10, at 2071 (explaining this aspect of Manning's critique and arguing that "Manning's argument, if credited, would thus explain why such legislative statements should not be given authoritative weight, but not why they should be ignored altogether").
344. It seems relevant here that the use of substantive canons is much less frequent in many of the European civil code (as opposed to common law) systems. See Robert R. Summers & Michele Taruffo, Interpretation and Comparative Analysis, in INTERPRETING STATUTES, supra note 21, at 461, 473.
345. Manning, supra note 1.
346. This observation merits more attention than space here permits, and I am developing it in a separate project.
347. Cf. Jamal Greene, Selling Originalism, 97 GEO. L.J. 657, 664 (2009) (arguing that, in the constitutional context, originalism has been a public relations success in positioning itself as "more consistent with constitutional democracy than are its competitors").
348. See sources cited supra note 304.
349. It is for this reason that scholars like Jonathan Siegel believe purposivists will win the methodological wars and ultimately improve their theory to engender broad consensus. Siegel, supra note 18, at 176 ("[P]urposivism [does not] cease to be purposivism[] by accepting these accommodations . . . . [E]ven intentionalists and purposivists can, and often will, recognize that following statutory text may be the only solution to a particular case.").
350. But see id. at 174-75 (arguing that the existence of such cases will prevent textualism from engendering broad compromise).
351. See, e.g., Gross v. FBL Fin. Servs., Inc. 129 S. Ct. 2343, 2356 (2009) (Stevens, J., dissenting) (arguing that the majority "ignore[s] the conclusion compelled by this interpretation of the Act: [precedential] construction of 'because of' remains the governing law for ADEA claims"); Fla. Dep't of Revenue v. Piccadilly Cafeterias, Inc., 128 S. Ct. 2326, 2341-43 (2008) (Breyer, J., dissenting) ("The statute's purpose is apparent on its face . . . . [T]he majority . . . [has] fail[ed] . . . to work with this important tool of statutory interpretation . . . ."); United States v. Williams, 128 S. Ct. 1830, 1847 (2008) (Stevens, J., concurring) ("First, I believe the result to be compelled by the principle that 'every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.'"); Frost, supra note 234, at 589 n.76 ("Although sometimes courts will candidly admit that a law is susceptible to more than one interpretation, more often they will claim that the text, structure, and legislative history compels the result.").
352. See, e.g., In re Mental Health Ass'n of Heartland, 221 P.3d 580, 583 (Kan. 2009) ("Only if the statutory language is not plain and unambiguous are the courts called upon to resort to canons of statutory construction or consult legislative history."); see also Miklosy v. Regents of Univ. of Cal., 188 P.3d 629 (Cal. 2008); Stamp v. Vail Corp., 172 P.3d 437 (Colo. 2007); Abdulkadir v. State, 610 S.E.2d 50 (Ga. 2005); State v. Hickman, 191 P.3d 1098 (Idaho 2008); O'Casek v. Children's Home & Aid Soc'y, 892 N.E.2d 994 (Ill. 2008); Empire Props., LLC v. Hardy, 873 A.2d 1187 (Md. 2005); 81 Spooner Rd. LLC v. Town of Brookline, 891 N.E.2d 219 (Mass. 2008); Miss. State Univ. v. PETA, 992 So.2d 595 (Miss. 2008); Ravalli County v. Erickson, 85 P.3d 772, 774 (Mont. 2004);Pizzullo v. N.J. Mfrs. Ins. Co., 952 A.2d 1077 (N.J. 2008); Reopelle v. Workforce Safety & Ins., 748 N.W.2d 722 (N.D. 2008); Wellington v. Mahoning County Bd. of Elections, 882 N.E.2d 420 (Ohio 2008); Commonwealth v. Fedorek, 946 A.2d 93 (Pa. 2008); Slama v. Landmann Jungman Hosp., 654 N.W.2d 826, 828 (S.D. 2002); In re Det. of Martin, 182 P.3d 951 (Wash. 2008); Parker Land & Cattle Co. v. Wyo. Game & Fish Comm'n, 845 P.2d 1040, 1043 (Wyo. 1993). New York and D.C. are typically less strict. See, for example, District of Columbia v. Fitzgerald, 953 A.2d 288, 300 (D.C. 2008); and Samiento v. World Yacht Inc., 883 N.E.2d 990, 994 (N.Y. 2008), which are discussed supra note 72.
353. State v. Courchesne, 816 A.2d 562, 569 (Conn. 2003). Alan Tarr has observed a similar dominance of textualism in state constitutional rulings. See TARR, supra note 245, at 195. The
354. Although not referenced by the Connecticut Supreme Court, the New York and D.C. highest courts also at times use a purposivist or eclectic approach. See Fitzgerald, 953 A.2d at 300; Samiento, 883 N.E.2d at 994.
355. District of Columbia v. Heller, 128 S. Ct. 2783 (2008) (Breyer, J., dissenting); id. at 2853 (noting that most state highest courts have used the same standard of review for gun law cases with "'surprisingly little variation,'" and "[w]hile these state cases obviously are not controlling, they are instructive . . . [a]nd they thus provide some comfort regarding the practical wisdom of following the approach" (internal citation omitted)).
356. Sunstein and Posner have argued in favor of references to foreign law based on the simple intuition (illuminated through their discussion of the Condorcet Jury Theorem) that if a majority of similarly situated governments reach the same result, that result, more likely than not, is correct. The following example from their article is clearly relevant: "[T]he Supreme Court of Texas is deciding whether to adopt rule A or instead rule B. Suppose too that the vast majority of states have adopted rule A. If we assume that each state is more likely than not to make the right decision, in the sense of being well motivated and more likely than not correct in its beliefs, then there is good reason to believe that the Supreme Court of Texas should, in fact, adopt rule A." Eric A. Posner & Cass R. Sunstein, The Law of Other States, 59 STAN. L. REV. 131, 142 (2006).
357. See Scott, supra note 10, at 11-28.
358. See id. at 353 tbl.7 (citing COLO. REV. STAT. § 2-4-203(c) (2008); CONN. GEN. STAT. § 1-2z (2007); HAW. REV. STAT. § 1-15(2) (1993); IOWA CODE § 4.6(3) (2004); MINN. STAT. § 645.16(7) (2008); N.M. STAT. § 12-2A-20(c)(2) (2005 & Supp. 2008); N.D. CENT. CODE, § 1-02-39 (1996); OHIO REV. CODE ANN. § 1.49(c) (Lexis Nexis 1990); OR. REV. STAT. ANN.
359. See Scott, supra note 10, at 34-38; cf. Handle with Care, Inc. v. Dep't of Human Servs., 406 N.W.2d 518 (Minn. 1987) (disregarding legislative rule prohibiting courts from relying on taped proceedings for proof of intent in light of state statute authorizing consultation of "contemporaneous legislative history" when statute is ambiguous, MINN. STAT. § 645.16(7).
360. See Scott, supra note 65, at 41, 43; supra notes 279-282.
361. Of course, the textualists' constitutional arguments would remain; legislative approval of an unconstitutional practice does not make that practice constitutional.
362. See Acts Interpretation Act, 1901, §§ 15AA, 15AB (Austl.) (setting forth Australian purposive/contextual approach and listing which extrinsic aids may be considered); RUTH SULLIVAN, SULLIVAN AND DRIEDGER ON THE CONSTRUCTION OF STATUTES (4th ed. 2002) (detailing Canada's controlling purposivist approach, called the "modern principle"); James R. Maxeiner, Legal Certainty: A European Alternative to American Legal Indeterminacy?, 15 TUL. J. INT'L & COMP. L. 541, 544 (2007) (arguing that the European experience challenges assumptions based on the American experience "that high levels of legal indeterminacy are inevitable" and that, for example, German statutory interpretation is more determinate); Yihan, supra note 292, at 201-02 (arguing that the lack of a "tolerably consistent approach to statutory interpretation" led, in Singapore, Australia, and New Zealand, to legislatively enacted "authoritative direction in the face of conflicting approaches"). See generally Nial Fennelly, Legal Interpretation at the European Court of Justice, 20 FORDHAM INT'L L.J. 656 (1997) (describing the European Court of Justice's "teleological" approach as focused on uniformity and harmonizing European law, even if extratexual means are required to do so). Though international comparisons are far beyond the scope of this Article, it also is interesting to note that statutory interpretation in civil law countries, where almost all law is code-based, is more open-ended, a fact some attribute to the very general language of the comprehensive codes, which therefore must be construed broadly by judges. See Konrad Zweigert & Hans-Jürgen Puttfarken, Statutory Interpretation-Civilian Style, 44 TUL. L. REV. 704, 707 (1970).
363. Eskridge & Frickey, supra note 59, at 371.
364. See Peter L. Strauss, Statutes That Are Not Static: The Case of the APA, 14 J. CONTEMP. LEGAL ISSUES 767, 772 (2005) ("Scholars writing about interpreting statutes disagree about much, yet generally agree on some propositions . . . equal law-makers to the legislature.").
365. See supra note 54.
366. See supra note 250 and accompanying text.
367. Other examples might include the now-defunct four-part test, articulated by the Court in Cort v. Ash, 422 U.S. 66, 78 (1975), concerning when to imply a private cause of action, or the four-part test used to determine whether a stay should be granted, see, e.g., Nken v. Holder, 129 S. Ct. 1749 (2009).
368. Much of this comes from the so-called "attitudinalist" political science literature, among the most well known of which are JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED (2002); and JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL 228 (1993).
369. Supra Section III.A; see also Fallon, supra note 268, at 978 & n.16 (2009) (collecting studies and noting that "[p]olitical scientific studies that attempt to account for judges and justices being motivated by a sense of legal obligation . . . have not yet attracted the attention in legal scholarship that they deserve").
370. Cf. Monaghan, supra note 276, at 748 ("[A]dherence to precedent is defended by pointing to the important values in decisionmaking that are promoted thereby: consistency, coherence, fairness, equality, predictability and efficiency.").
371. See supra note 61 and accompanying text.
372. See supra note 62 and accompanying text.
373. See Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. REV. 575, 600-01 (2002).
374. See, e.g., T. Alexander Aleinikoff & Theodore M. Shaw, The Costs of Incoherence: A Comment on Plain Meaning, West Virginia University Hospitals, Inc. v. Casey, and Due Process of Statutory Interpretation, 45 VAND. L. REV. 687, 702 (1992) ("[G]iven the number of clerks and briefs available to the Court, it seems that a Justice can rather quickly 'get up to speed' on a difficult statute. There is also no reason why individual justices might not specialize in
375. particular areas of the law and be delegated the responsibility for writing the opinions of the Court in cases arising in such areas . . . . The Court is not a football team that needs to get its
376. signals straight in order to compete effectively . . . .")
377. See 2 THE ALMANAC OF THE FEDERAL JUDICIARY 2-6 (Megan Rosen et al. eds., 2010).
378. Merrill & Watts, supra note 262, at 580-81 (emphasis added); see Strauss, supra note 253. Judge Posner has similarly observed that "[m]ore of the work of [the federal appellate] courts really is technical . . . . [M]ost of the appeals they get can be decided uncontroversially
379. by the application of settled principles . . . . The institutional role is more easily played at the
380. court of appeals level." RICHARD A. POSNER, THE FEDERAL COURTS: CHALLENGE AND REFORM 367 (1999).
381. Richard A. Posner, The Role of the Judge in the Twenty-First Century, 86 B.U. L. REV. 1049, 1051 (2006); Vermeule, supra note 2, at 582 (arguing that the "portray[al] of judging as a creative activity . . . [in which] statutory interpretation . . . is merely an extension of
382. common-law adjudication . . . [pays] little attention . . . to the collective structures of adjudication"). Posner, however, does not advocate for consistent interpretive regimes but, rather, favors a judicial pragmatism/intuition model that is only sometimes formalistic. See Posner, supra, at 1053.
383. See Gluck, supra note 22.
384. Monaghan, supra note 276, at 744-45.
385. See supra notes 104-105 and accompanying text. 382. See supra notes 101-102 and accompanying text. 383. See supra note 110 and accompanying text. 384. Interview with Jack L. Landau, supra note 108.
386. See Monaghan, supra note 276, at 753.
387. Cf. Robert Weisberg, The Calabresian Judicial Artist: Statutes and the New Legal Process, 35 STAN. L. REV. 213, 252 (1983) ("[R]equiring judges to justify their decisions according to a fairly formal rhetoric will at least reduce the excesses of result orientation to some degree.").
388. Schauer, supra note 257, at 232.
389. This concept of the "second best" also responds to some of the literature that uses cycling and other coordination theory to argue that judges on multimember courts will never be able to agree on a single interpretive framework; even that literature acknowledges that cycling might be able to stop, at least for some period, if the goal is not to stop in a place considered "first best" by all participants. Vermeule, supra note 2, at 559 ("Even if coordination on some particular interpretive approach would be best for all concerned, judicial disagreement about which approach is indeed best will sometimes produce voting cycles, in turn creating the potential for institutional instability.").
390. Indeed, the leading treatise on Canadian statutory interpretation argues that Canada's all-things-considered purposive framework, although considered to be the official, controlling framework, has done little to make the interpretive process more predictable. See SULLIVAN, supra note 363; cf. Richard A. Posner, The Jurisprudence of Skepticism, 86 MICH. L. REV. 827, 887 (1988) (arguing that the "open-ended" interpretive model proposed by Farber and Frickey "will not reassure anyone who would like to think that the decisions in tough cases reflect more than the judges 'personal values'").
391. See, e.g., Molot, supra note 18, at 51 (proposing "a balanced version of textualism," under which courts would consider all possible interpretive sources at the outset, but give more weight to text the more powerful the textual evidence). But see Manning, supra note 1, at 75, 94-95 (arguing that textualism's strong conceptualization of legislative supremacy requires a hierarchy in which text always trumps purpose and policy and an approach not as "holistically inclusive").
392. Indeed, in other contexts-such as bench trials in which judges must also decide evidentiary motions-we trust judges to review but then set aside certain evidence as not relevant or not appropriate to their decisionmaking.
393. See Landau, supra note 81, at 155 (making the same observation).
394. See Strauss, supra note 365, at 779, 782.
395. Vermeule, supra note 53, at 150 (arguing that "interpretive doctrine displays a regular tendency to oscillate" as a result of, inter alia, judges and legislators continuously adjusting their expectations about the other's behavior).
396. See Tarr, supra note 236, at 1173.
397. See supra notes 134-136, 197, 210, 285.
398. Some states still do not produce "official" legislative histories, but it is possible to individually retrieve relevant items in most states. See, e.g., AM. SOC'Y OF LEGISLATIVE CLERKS & SEC'YS, INSIDE THE LEGISLATIVE PROCESS 8-23 (2007) (noting that "most legislative bodies record committee meetings [and floor debates] in some format," and that state responses to a national survey indicate that "[d]etermining legislative intent is another reason that 30 legislative bodies record floor sessions"); WILLIAM H. MANZ, GUIDE TO STATE LEGISLATIVE AND ADMINISTRATIVE MATERIALS (2002). In the five states studied, for example, available items include bill versions, house and senate journal bill analyses, fiscal analyses, testimony, audio tapes of floor and committee hearings/debates, committee and other reports, and correspondence. See CONN. STATE LIBRARY, GUIDE TO CONNECTICUT LEGISLATIVE HISTORY, available at http://www.cslib.org/leghis.asp (last visited Feb. 8, 2010); LEGISLATIVE REFERENCE LIBRARY OF TEX., COMPILING TEXAS LEGISLATIVE HISTORY, available at http://www.lrl.state.tx.us/legis/intent/legintentbrochure.pdf (2008); OR. STATE ARCHIVES, OREGON LEGISLATIVE RECORDS GUIDE, available at http://www.sos.state.or.us/archives/legislative/legislative_guide/legal.html (last visited Feb. 8, 2010); WISCONSIN LEGISLATIVE REFERENCE BUREAU, RESEARCHING LEGISLATIVE HISTORY IN WISCONSIN, available at http://www.legis.state.wi.us/lrb/pubs/wb/06wb10.pdf (2006); Mich. State Univ. Libraries, Sources of Michigan Legislative History, http://www.michigan.gov/documents/leghist_43770_7.pdf (last visited March 5, 2010). For a listing of all state legislative history resources, see Ind. Univ. Law Library, State Legislative History Guides on the Web, http://www.law.indiana.edu/lawlibrary/research/guides/statelegislative/index.shtml (last visited March 5, 2010).
399. Or, relatedly, perhaps the former paucity of legislative history materials created a stronger state court tradition of and comfort level with relying only on textual analysis.
400. See supra note 251 and accompanying text.
401. See Joanna M. Shepherd, Are Appointed Judges Strategic Too?, 58 DUKE L.J. 1589, 1602, 1604-05 (2009).
402. Eskridge & Frickey, supra note 59, at 364, 378.
403. Indeed, several states that appear resistant to a text-based approach (New York, the District of Columbia, Alaska) have appointed, not elected, highest court benches. See THE COUNCIL OF STATE GOVERNMENTS, supra note 129, at 267-96.
404. Cf. Paul W. Kahn, Interpretation and Authority in State Constitutionalism, 106 HARV. L. REV. 1147 (1993). Kahn argues that, in the constitutional context, "[s]tate courts should be talking with each other, as well as with the federal courts and even with academics. All are engaged in a search for the meaning of common concepts." Id. at 1163.
405. See supra note 217 and accompanying text.
406. See State ex rel. Kalal v. Circuit Court, 681 N.W.2d 1110, 127-37 (Wis. 2004) (Abrahamson, C.J., concurring).
407. See, e.g., Bankowski et al., supra note 21 (comparing methodology among the United States, United Kingdom, Argentina, Germany, Finland, Italy, Poland, and Sweden); cf. Adrian Vermeule, The Judicial Power in the State (and Federal) Courts, 2000 SUP. CT. REV. 357, 359 ("[T]he differences between the relevant state constitutions and the federal constitution are much smaller than the differences involved in the transnational comparisons that are a staple of comparative constitutional law.").
408. For example, a circuit court may have opined on the utility of the rule against absurdities and courts in the jurisdiction may be adhering to that rule.
409. See Gluck, supra note 22.