Statutory interpretation as a multifarious enterprise

Northwestern University Law Review

Volumn 104, Issue 4, 2010, Pages 1559-1586

  Rakoff, Todd D ^a  

^a The Earth Institute at Columbia University   (Colombia)

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EID: 79952465823     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (147)

1. Henry, M. Hart, JR. & Albert, M. Sacks, The Legal Process 1169 (William N. Eskridge & Philip P. Frickey eds., 1994).
2. For a recent, comprehensive review of the state of the literature
3. See Frank B. Cross, The Theory And Practice Of Statutory Interpretation (2009). For a briefer treatment,
4. See Elizabeth Garrett, Legislation and Statutory Interpretation, in The Oxford Handbook Of Law And Politics 360, 360-75 (Keith E. Whittington et al. eds., 2008).
5. See James J. Brudney & Corey Ditslear, Canons of Construction and the Elusive Quest for Neutral Reasoning, 58 VAND. L. REV. 1, 44-51 (2005)
6. 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, 14-37 (1998);
7. Nicholas S. Zeppos, The Use of Authority in Statutory Interpretation: An Empirical Analysis, 70 Tex. L. Rev. 1073, 1091-120 (1992).
8. Family and Medical Leave Act of 1993, Pub. L. No. 103-3, 107 Stat. 6 (codified in scattered sections of 29 and 5 U.S.C.).
9. 29 U.S.C. § 2612(a)(1)(C) (2006).
10. Id. § 2611(7). The included phrase "son or daughter" is also a defined term.
11. See id. § 2611(12).
12. See S. REP. NO. 103-3 (1993).
13. This report is the principal piece of legislative history because the Senate's bill became the finally enacted language and because the Committee was chaired by Senator Kennedy, long-time sponsor of the legislation.
14. Id. at 10.
15. Id. at 10-11.
16. 29 U.S.C. § 2612(f).
17. S. REP. NO. 103-3, at 28.
18. Id. at 2.
19. I should perhaps point out that this "spouses employed by the same employer" provision differentiates among other cases because its limitation on leave applies to "care for a sick parent under subparagraph (C)" while subparagraph (C) itself speaks of "care for the spouse, or a son, daughter, or parent, of the employee." 29 U.S.C. § 2612 (a)(1)(C). This would apparently allow both parents to take their full leaves to care for the same sick child, even if they worked for the same employer; accordingly, the provision as a whole seems to underexecute the idea of not giving employers an incentive to refuse to hire both married partners. In the absence of evidence as to why this was done, perhaps the best that can be said is that there may have been a deal here to go so far and no further. Even if that were the explanation, it does not destroy the point made in the text. The statute only needs to address the case of caring for a sick parent-or, if you like, the limitation on caring for a sick parent contained in this provision was only worth bargaining for-if, without the language, both spouses would be entitled to take protected leave.
20. The statutory definition would still do work: it would exclude step-parents (unless they qualified under "in loco parentis").
21. See 29 U.S.C. § 2611(7).
22. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
23. 29 U.S.C. § 2617.
24. Id. § 2654.
25. 533 U.S. 218, 226-27 (2001).
26. 29 C.F.R. § 825.113 (1995).
27. 29 C.F.R. § 825.122 (2009).
28. See Family and Medical Leave Act of 1993, 73 Fed. Reg. 67,934, 67,950-51 (Nov. 17, 2008).
29. Family and Medical Leave Act of 1993, 60 Fed. Reg. 2180, 2191 (Jan. 6, 1995).
30. C.F.R. § 825.202 (1995).
31. The unhelpful discussion of this language in the statement of basis and purpose is in Family and Medical Leave Act of 1993, 60 Fed. Reg. at 2201.
32. The new regulation is organized differently but seems to end up at the same conclusion.
33. See 29 C.F.R. § 825.201 (2009).
34. The statement of basis and purpose offers little enlightenment.
35. See Family and Medical Leave Act of 1993, 73 Fed. Reg. at 67,973.
36. See Carcieri V. Salazar, 129 S. Ct. 1058, 1069 (2009) (Breyer, J., concurring) (rejecting Chevron deference although there was statutory ambiguity because the decision did not implicate departmental expertise).
37. 29 U.S.C. § 2612(a)(1)(C) (2006).
38. See Justice Gray's mix of linguistic and behavioral evidence when speaking for the Court in Nix v. Hedden, 149 U.S. 304 (1893), where the question (for tariff purposes) was whether the tomato was a fruit or a vegetable: Botanically speaking, tomatoes are the fruit of a vine, just as are cucumbers, squashes, beans, and peas. But in the common language of the people, whether sellers or consumers of provisions, all these are vegetables, which are grown in kitchen gardens, and which, whether eaten cooked or raw, are, like potatoes, carrots, parsnips, turnips, beets, cauliflower, cabbage, celery, and lettuce, usually served at dinner in, with or after the soup, fish, or meats which constitute the principal part of the repast, and not, like fruits generally, as dessert.
39. Id. at 307.
40. Should we also ask how employers conceive of this situation? I think not. An employer asked to grant leave might (or might not) have an opinion on whether care for a parent-in-law should qualify, but it would not be an active participant in the underlying caregiving situation. However, the practices of employers might well be relevant for other issues arising under the Act, such as what constitutes employment at a specific worksite-which is relevant for purposes of counting the number of employees in order to apply the Act's exclusion of small employers.
41. 29 U.S.C. § 2601(b)(1).
42. See supra Part I.A.
43. I should acknowledge that I have purposefully avoided giving either method any of the possible conventional names that might be used to describe it for fear of entangling my argument in various controversies that would be subsidiary to my main point.
44. See, e.g., CROSS, supra note 2, at 199-200 (describing trends in circuit court practice of varying methods of statutory interpretation)
45. Brudney & Ditslear, supra note 3, at 28.
46. As will become clearer, this list is not meant to represent a hierarchy of authority either top to bottom or bottom to top, but rather an open field of choices that has to be put down on paper somehow.
47. This becomes clear if one considers how trade practice, for example, is proven in court as an institutional usage. For a particularly clear case arising from the parallel body of law in which parties have tried to prove trade usage for purposes of interpreting the language of a contract,
48. See Frigaliment Importing Co. v. B.N.S. Int'l Sales Corp., 190 F. Supp. 116, 117, 119 (S.D.N.Y. 1960), in which parties tried to prove the trade usage of the word "chicken."
49. See, e.g., John F. Manning, Textualism as a Nondelegation Doctrine, 97 COLUM. L. REV. 673, 695-706 (1997).
50. I acknowledge that I have suppressed many local disputes (such as whether judges should, or should not, consult legislative history) in my effort to present a broader terrain that, it seems to me, has often been missed.
51. Perhaps this is the place to mention that I do not propose to address the further complications raised when there is a large span of time between the passage of a statute and its application to a novel question.
52. The issues are thoughtfully canvassed in William N. Eskridge, Jr., Dynamic Statutory Interpretation (1994),
53. and Peter L. Strauss, On Resegregating the Worlds of Statute and Common Law, 1994 Sup. Ct. Rev. 429.
54. See Jonathan Molot, The Rise and Fall of Textualism, 106 colum. L. Rev. 1, 23-29 (2006) (moderate textualism has prevailed and only minor squabbles remain).
55. But see John F. Manning, What Divides Textualists from Purposivists?, 106 Colum. L. Rev. 70, 110-11 (2006)
56. Something substantial does remain). To get a clear statement of what I have presented as the second method, it may be necessary to go back as far
57. As 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, 397 (1950),
58. Claiming that what matters most is "the sense of the situation as seen by the court."
59. See, e.g., Antonin Scalia, A Matter OF Interpretation: Federal Courts And The Law 22 (1997) ("It is simply not compatible with democratic theory that laws mean whatever they ought to mean, and that unelected judges decide what that is.").
60. The justices of thirty-eight out of fifty state supreme courts face some sort of election; the twelve outliers are in New England, along the eastern seaboard, and in Hawaii.
61. See Jed Handelsman Shugerman, Economic Crisis and the Rise of Judicial Elections and Judicial Review, 123 Harv. L. Rev. 1061, 1063-64 & n.2 (2010).
62. The failure of the recent literature to take account of this fact may come from the present tendency-not universally shared, but a real one-to view the question "How should statutes be interpreted?" as synonymous with the question "How should the Supreme Court of the United States interpret statutes?" The writers on legislation from earlier generations tended to deal with statutes on a much larger canvas.
63. See, e.g., James McCauley Landis, Statutes and the Sources of Law, in Harvard Legal Essays 213, 213-34 (Roscoe Pound ed., 1934);
64. Roscoe Pound, Common Law and Legislation, 21 Harv. L. Rev. 383 (1908).
65. The same point would apply to theories that emphasize other particularities of the Federal Constitution.
66. See, e.g., John Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 58-70 (2001) (arguing that in considering role of federal judges vis-à-vis legislation, it is important to consider specific features of the U.S. Constitution such as life tenure for judges and protection of interests of small states in apportionment of the Senate).
67. See, e.g., Norman J. Singer & J.D. Shambie Singer, Criteria of Interpretation, in Statutes And Statutory Construction § 45 (7th ed., 2007).
68. See Kent Greenawalt, A Pluralist Approach to Interpretation: Wills and Contracts, 42 San Diego L. Rev. 533, 548 (2005) ("Unofficial interpretation is the crucial backdrop for official interpretation.").
69. See Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457, 457-62 (1897) (asserting that predicting what judges will do is the central inquiry of the bad man as well as the good).
70. The proposition that administrative agencies, when interpreting statutes, ought not mimic judicial analysis was first asserted with regard to the use of legislative history
71. in Peter L. Strauss, When the Judge Is Not the Primary Official with Responsibility to Read: Agency Interpretation and the Problem of Legislative History, 66 Chi.-Kent L. Rev. 321, 351-53 (1990).
72. The claim was expanded to a broad range of interpretive techniques in Jerry L. Mashaw, Norms, Practices, and the Paradox of Deference: A Preliminary Inquiry into Agency Statutory Interpretation, 57 Admin. L. Rev. 501, 504-36 (2005),
73. With which Adrian Vermeule, Judging Under Uncertainty 213-15 (2006),
74. Is basically in agreement. For a defense of the proposition that agencies should mimic judges,
75. See Richard J. Pierce, Jr., How Agencies Should Give Meaning to the Statutes They Administer: A Response to Mashaw and Strauss, 59 Admin. L. Rev. 197 (2007),
76. To which Mashaw responded with Agency-Centered or Court-Centered Administrative Law? A Dialogue with Richard Pierce on Agency Statutory Interpretation, 59 Admin. L. Rev. 889 (2007).
77. See Edward L. Rubin, Law and Legislation in the Administrative State, 89 Colum. L. Rev. 369, 371-72 (1989).
78. Id. at 380-85.
79. Id. at 411, 418.
80. The basic article on the matter is probably still Louis L. Jaffe, Law Making by Private Groups, 51 Harv. L. Rev. 201 (1937). For a recent treatment,
81. See Gillian E. Metzger, Private Delegations, Due Process, and the Duty to Supervise, in Government By Contract 291, 291-309 (Jody Freeman & Martha Minow eds., 2009).
82. Most famously, this was the stance taken by Justice Jackson.
83. See, e.g., Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 396 (1951) (Jackson, J., concurring.).
84. Of course, if, on the particular issue, the statute means the same thing in all of the potentially relevant frames of reference, this analysis can be elided.
85. Henry J. Friendly, Benchmarks 203-04 (1967) (citations to Justice Frankfurter's opinions omitted).
86. Id. at 203.
87. See, e.g., Williams V. Wilmington Trust Co., 345 F.3d 128, 133 (2d Cir. 2003) (Katzmann, J.) (stating that "owner" in a seaman's wage statute should be understood as "owner" is traditionally understood in admiralty law).
88. On this point particularly, the multifarious approach I am proposing seems to me to differ from what is often referred to as the "pragmatic" school of interpretation. For instance, William Eskridge and Philip Frickey present their method as having a distinct form (their "funnel of abstraction") superior to purposivism, intentionalism, and textualism, and applicable in general to questions of statutory construction.
89. See William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan. L. Rev. 321, 324-25, 353 (1990).
90. The fact that the method itself is an all-things-considered method does not deny that the authors seem to assume that there is basically one type of statute and one proper structure within which the issues should be addressed. That their mention of what they term "highly technical statutes," to be read as understood by "the 'common sense' of the special audience to which the statute is addressed," appears only in a footnote,
91. id. at 355 n.124.
92. Seems to me to confirm the point.
93. The truth of this proposition is more often acknowledged than its importance is recognized. For example, Cass Sunstein's ambitious effort to organize the interpretation of statutory texts in modern times appears to assume that even though we can generate only partial "substantive" canons to use for interpretation, there is still a single systemic point of view from which interpretation in general can proceed.
94. Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405 (1989).
95. At the same time, in a footnote Sunstein says: "It is important to emphasize that my approach is directed to regulatory statutes."
96. Id. at 411 n.20.
97. But there is little discussion of which statutes in "the regulatory state" are to be thought of as "regulatory statutes" or of what we are to do with the rest of the legislature's output. Is the FMLA a "regulatory statute"?
98. See, e.g., 29 U.S.C. § 158(b)(5) (2006) (explicitly directing the Labor Board to consider "the practices and customs of labor organizations in the particular industry" in deciding whether union membership fees are "excessive or discriminatory");
99. § 213(a)(1) (2006) (explicitly delegating power to the Secretary of Labor to define and delimit statutory terms "bona fide executive, administrative or profess sional capacity" and "capacity of outside salesman").
100. In the common case of a statute administered by an agency, there is a general delegation to the agency to make rules or decide cases and a general delegation to the judges to review what the agency has done, with the interpretive materials to be used by each of these potential delegatees undefined and the line between the two delegations itself notoriously in need of definition.
101. This point was famously made by Justice Stevens in Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 865 (1984).
102. In their empirical study of legislative drafting by the Senate Judiciary Committee, Victoria Nourse and Jane Schacter found that contending congressional staffers understood that leaving language ambiguous was in effect delegating decisionmaking elsewhere, with the hope that someone else would decide the disputed point their respective ways.
103. Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. REV. 575, 596-97 (2002).
104. More broadly, their work shows that, for the Senate at least, the desire to get agreement and achieve results is more important than the desire to write precise language to satisfy interpretive virtues.
105. So held in Corning Glass Works v. Brennan, 417 U.S. 188, 201-03 (1974) (stating that "working conditions" does not include the time of day worked).
106. Cf. Todd D. Rakoff, Washington v. Davis and the Objective Theory of Contracts, 29 HARV. C.R.- C.L. L. REV. 63, 89 (noting that public officials can fairly be held to know common meanings as "their stock in trade").
107. The complexities of this point are nicely developed in Kent Greenawalt, Are Mental States Relevant for Statutory and Constitutional Interpretation?, 85 CORNELL L. REV. 1609, 1672 (2000)
108. Readers attend to the purposes of writers and writers formulate communications in light of what they perceive will be the understandings of readers.). The interactions of the drafters and readers are also addressed in Caleb Nelson, What is Textualism?, 91 VA. L. REV. 347 (2005),
109. And in Peter M. Tiersma, A Message in a Bottle: Text, Autonomy, and Statutory Interpretation, 76 Tul. L. Rev. 431 (2001).
110. In deciding litigated cases, there is also the matter of what the evidence shows; judges are inevitably drawn to frames of reference that provide an answer for the matter at hand.
111. See Daniel A. Farber, The Inevitability of Practical Reason: Statutes, Formalism, and the Rule of Law, 45 Vand. L. Rev. 533, 559 (1992)
112. For ordinary citizens, the precise language of complex statutes may be much less accessible than an understanding of its general purposes, as they relate to shared social norms, so 'plain meaning' interpretation may be more effective in creating traps for the unwary than in easing their way.
113. Although perhaps mentioned in passing, the thrust of this point seems to me to be missing from what Cass Sunstein and Adrian Vermeule call their "potentially sensible" institutional defense of "formalism," that is to say, of a "plain meaning" approach to interpretation.
114. Cass R. Sunstein & Adrian Vermeule, Interpretation and Institutions, 101 Mich. L. Rev. 885, 921 (2003);
115. See also Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Meaning, 1990 Sup. Ct. Rev. 231 (arguing that plain-meaning interpretation serves an important stabilizing function).
116. Cass R. Sunstein, Chevron Step Zero, 92 Va. L. Rev. 187, 191 (2006).
117. The term itself originated in Thomas W. Merrill & Kristen E. Hickman, Chevron's Domain, 89 Geo. L.J. 833, 836 (2001).
118. 533 U.S. 218 (2001).
119. Id. at 226-27.
120. Id. at 227.
121. Barnhart v. Walton, 535 U.S. 212, 222 (2002)
122. Breyer, J., speaking for eight members of the Court
123. See Thomas W. Merrill & Kathryn Tongue Watts, Agency Rules with the Force of Law: The Original Convention, 116 Harv. L. Rev. 467, 472-74 (2002).
124. Lisa Schultz Bressman, How Mead Has Muddled Judicial Review of Agency Action, 58 Vand. L. Rev. 1443, 1445-48 (2005).
125. William N. Eskridge & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 Geo. L.J. 1083, 1090 (2008)
126. To our surprise, we found that the Court usually does not apply Chevron to cases that are, according to Mead and other opinions, Chevron-eligible.
127. See also id. at 1120-23
128. Describing additional details). Although I have not done the extensive research that would be necessary to prove the idea, it may be that the analysis I put forth explains some of these otherwise hard-to-understand Chevron-avoiding cases. Perhaps the questions raised in these cases were not questions of deference versus no deference (the way the matter is usually put) but rather questions of whether the agency's viewpoint or another viewpoint furnished the best frame of reference, with the Court (inarticulately) choosing another point of view.
129. The argument that we would do best to have a simple, broad test for giving deference to agencies is ably presented in VERMUELE, supra note 46. But Vermeule does not address the reasons why judges might want to defect from such a system, especially when it is recognized that the choice is not merely between court and agency but rather implicates a whole range of possible institutional interpreters.
130. Cf. Richard A. Posner, Reply: The Institutional Dimension of Statutory and Constitutional Interpretation, 101 Mich. L. Rev. 952 (2003) (discussing a broad range of institutional factors).
131. Perhaps not surprisingly, Eskridge and Baer, having found widespread Chevron avoidance by the Supreme Court, concluded that the most significant factor leading the Court in fact to accord Chevronlevel deference was "the agency applying special expertise to a technical issue, seriously applying its understanding for the facts to carry out congressional purposes." Eskridge & Baer, supra note 73, at 1180.
132. See discussion supra Part II.
133. 29 U.S.C. § 2654 (2006).
134. Friendly, supra note 53, at 204.
135. 29 U.S.C. §§ 2651-2654.
136. Id. § 2617(a).
137. Id. § 2619(a).
138. The form of the notice can be found at 29 C.F.R. pt. 825, App. C (2009).
139. Both the original form, Family and Medical Leave Act of 1993, 60 Fed. Reg. 2180, 2275 (Jan. 6, 1995),
140. And the new form, Family and Medical Leave Act of 1993, 73 Fed. Reg. 67,934, 68,123 (Nov. 17, 2008),
141. say that leave is available to care for the employee's spouse, son, daughter, or parent who has a serious health condition without explicitly addressing parents-in-law yea or nay.
142. Barnhart v. Walton, 535 U.S. 212, 222 (2002).
143. The law of trade usage, for example, would mostly disappear if common terms could not be proven to have uncommon meanings. The contrary is the truth. For a recent example,
144. see Mason Capital, Ltd. v. Kaman Corp., No. 3:05CV1470, 2005 WL 2850083,
145. 10 D. Conn. Oct. 31, 2005) (involving expert testimony as to trade practice used to override a grammatical rule even where applicable state statute requires "plain meaning" to prevail). While not phrased in these terms, it seems to me that Justice Breyer's opinion in Zuni Public School District No. 89 v. Department of Education, 550 U.S. 81 (2007),
146. Proceeds on much the same theory. Some readers may also be tempted to say that my argument is clouded by an unjustified preference for using the more diffuse items found at the bottom of my list of possible interpretive resources. It is true that I think that, in the ordinary discussion of statutory interpretation, there is less consideration of trade usages and social practices than is justified, but that is because I think, as I have argued here, that there should be an open field of evaluation. It is obvious that there are many cases that should be decided by reference only to the sorts of official texts found at the top of the list. To take an extreme example, in FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000),
147. The issue was the authority of the Food and Drug Administration (FDA) to regulate cigarettes on the ground that nicotine was a drug. As the Court rightly saw, this presented a high-stakes separation of powers question; the Court had to decide whether Congress had, or had not, transferred a very large block of power to the FDA. The center of gravity lay in the statements and actions of official institutions; whether cigarettes or nicotine were or were not "drugs" in ordinary usage and practice would have no bearing on that matter.