Statutory interpretation from the inside-an empirical study of congressional drafting, delegation, and the canons: Part I

Stanford Law Review

Volumn 65, Issue 5, 2013, Pages 901-1026

  Gluck, Abbe R ^a   Bressman, Lisa Schultz ^b  

^a YALE UNIVERSITY   (United States)

^b VANDERBILT UNIVERSITY LAW SCHOOL   (United States)

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[No Author keywords available]

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EID: 84876232707     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (452)

1. See infra Part II.A.
2. Eighteen did not have formal counsel titles but performed substantially the same (or a more supervisory) role. Fourteen respondents (including one law student) were nonlawyers specifically identified to us by others as staffers who serve in the capacity of counsels. For a detailed description of our sample and our methodology.
3. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside: Methods Appendix, Stan. L. Rev. (May 2013), http://www.stanfordlawreview.org/sites/default/files/Gluck_Bressman_65_Stan._L._Rev._Methods_Appendix.pdf [hereinafter Methods Appendix].
4. See Methods Appendix, supra note 2; infra Part I.B.
5. Specifically, we asked eighty-five questions, with fifteen questions containing three to ten subparts. Throughout this Article, we refer to those questions and responses using the question number with the prefix "Q."
6. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
7. See United States v. Mead Corp., 533 U.S. 218 (2001).
8. See Barnhart v. Walton, 535 U.S. 212 (2002).
9. Lisa Schultz Bressman & Abbe R. Gluck, Statutory Interpretation from the In-side-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming 2014).
10. Some statutory interpretation doctrines are already tailored by subject matter-for example, the canon that bankruptcy statutes should be construed to give the debtor a "fresh start"-or by institution, as Chevron exemplifies. Others theorists might offer more functional typologies: for example, one might construct different interpretive rules for statutes with different objectives-for instance, appropriating statutes versus rights-protective statutes. Thanks to Bruce Ackerman, who suggested this functional alternative.
11. Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. Rev. 575 (2002).
12. Nourse and Schacter readily acknowledged the limitations of their study. They interviewed only eighteen staffers, all but two of whom worked on the Senate Judiciary Committee, and their study focused on a few broad questions about how text is drafted rather than a more specific or quantitative inquiry into different kinds of canons or other drafting influences.
13. See Methods Appendix, supra note 2; infra Part I.B.
14. Thanks to Brad Clark for suggesting this term.
15. Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 61 (2012) ("The canons influence not just how courts approach texts but also the techniques that legal drafters follow in preparing those texts.").
16. Matthew Christiansen & William N. Eskridge., Overriding the Supreme Court's Statutory Interpretation Decisions, 1967-2011 (unpublished manuscript) (on file with authors) (showing that congressional overrides of Supreme Court decisions declined dramatically after the 1998 impeachment of President Clinton);
17. Richard L. Hasen, End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 S. Cal. L. Rev. (forthcoming 2013) (manuscript at 105), available at http://ssrn.com/ abstract=2130190 (arguing that a "dramatic[]" drop in overrides began even earlier).
18. Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 Harv. L. Rev. 2085 (2002).
19. Scalia & Garner, supra note 13;
20. William N. Eskridge, The New Textualism and Normative Canons, 113 Colum. L. Rev. 531 (2013) (reviewing Scalia & Garner, supra note 13); Richard A. Posner, The Incoherence of Antonin Scalia, New Republic (Aug. 24, 2012), http://www.tnr.com/article/magazine/books-and-arts/106441/scalia-garner-reading-the-law-textual-originalism (reviewing Scalia & Garner, supra note 13); David Lat, The Benchslap Dispatches: Posner v. Scalia-Is It Personal?, Above the Law (Sept. 5, 2012), http://abovethelaw.com/2012/09/the-benchslap-dispatches-posner-v-scalia-is-it-personal.
21. John Paul Stevens, Judicial Predilections, 6 Nev. L.J. 1, 1-2 (2005);
22. William N. Eskridge, Textualism, the Unknown Ideal?, 96 Mich. L. Rev. 1509, 1548-1549 (1998) (reviewing Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (1997)).
23. Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. Cal. L. Rev. 845, 867 (1992).
24. Stephen Breyer, Making Our Democracy Work: A Judge's View 92 (2010).
25. John F. Manning, Textualism and Legislative Intent, 91 Va. L. Rev. 419, 424 (2005); see Scalia, supra note 17, at 23-25.
26. See Scalia & Garner, supra note 13, at 51, 61.
27. Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 110 (2010) (suggesting that application of the substantive canons is inconsistent with faithful-agent theory);
28. Thomas W. Merrill, Faithful Agent, Integrative, and Welfarist Interpretation, 14 Lewis & Clark L. Rev. 1565, 1596-1597 (2010) (same).
29. Adrian Vermeule, The Judiciary Is a They, Not an It: Interpretive Theory and the Fallacy of Division, 14 J. Contemp. Legal Issues 549, 583 (2005).
30. Adrian Vermeule, Judging Under Uncertainty: An Institutional Theory of Legal Interpretation 1 (2006);
31. Cass R. Sunstein & Adrian Vermeule, Interpretation and Institutions, 101 Mich. L. Rev. 885, 887, 921-922, 929-31 (2003).
32. For a different view of how to effectuate legislative supremacy
33. Einer Elhauge, Preference-Estimating Statutory Default Rules, 102 Colum. L. Rev. 2027, 2030, 2032 (2002) (advocating for default rules designed to maximize political preferences);
34. Einer Elhauge, Preference-Eliciting Statutory Default Rules, 102 Colum. L. Rev. 2162, 2165 (2002) [hereinafter Elhauge, Preference-Eliciting] (advocating for default rules that "provoke a legislative reaction").
35. Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Meaning, 1990 Sup. Ct. Rev. 231, 232 (advocating the plain meaning rule as a "second-best coordinating device").
36. Elizabeth Garrett, Attention to Context in Statutory Interpretation: Applying the Lessons of Dynamic Statutory Interpretation to Omnibus Legislation, Issues Legal Scholarship, art. 1, 2002, at 7, available at http://www.bepress.com/ils/iss3/art1 (subscription required).
37. See Scalia, supra note 17, at 32; Manning, supra note 20, at 420-21.
38. Nourse & Schacter, supra note 10, at 597-616; see also Sunstein & Vermeule, supra note 24, at 922-25 (arguing that generalist courts are not competent to accurately ascertain congressional preferences).
39. Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405, 503-504 (1989).
40. Amy Barrett's important article, supra note 22, has fleshed out this argument in detail with respect to the substantive canons.
41. See Scalia, supra note 17, at 16-17;
42. Bradley C. Karkkainen, "Plain Meaning": Justice Scalia's Jurisprudence of Strict Statutory Construction, 17 Harv. J.L. & Pub. Pol'y 401, 407 (1994).
43. See Breyer, supra note 19, at 98-99.
44. David J. Barron & Elena Kagan, Chevron's Nondelegation Doctrine, 2001 Sup. Ct. Rev. 201, 203;
45. Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 370 (1986);
46. Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 517.
47. Scalia, supra note 33, at 517.
48. See Breyer, supra note 19, at 119.
49. Nourse & Schacter, supra note 10.
50. The article has been cited in sixty-four law review pieces, including
51. Chai Rachel Feldblum, The Art of Legislative Lawyering and the Six Circles Theory of Advocacy, 34 McGeorge L. Rev. 785, 820 n.48, 822 n.54 (2003);
52. Anita S. Krishnakumar, Representation Reinforcement: A Legislative Solution to a Legislative Process Problem, 46 Harv. J. on Legis. 1, 13 n.55 (2009);
53. Todd D. Rakoff, Essay, Statutory Interpretation as a Multifarious Enterprise, 104 Nw. U. L. Rev. 1559, 1579 n.60 (2010);
54. Brian G. Slocum, The Importance of Being Ambiguous: Substantive Canons, Stare Decisis, and the Central Role of Ambiguity Determinations in the Administrative State, 69 Md. L. Rev. 791, 822 n.167 (2010).
55. Sixteen of their respondents were Senate Judiciary staff counsels; two were counsels in the Senate Office of Legislative Counsel with responsibilities for working on statutes drafted by the Judiciary Committee. Nourse & Schacter, supra note 10, at 578-79.
56. By most accounts, the Senate Judiciary Committee is an atypical committee; it is staffed almost entirely by lawyers who are widely viewed to have more drafting expertise than most other congressional counsels.
57. We decided to avoid questions based on numerical values and, instead, opened each interview by asking those interviewed about their 'most recent' drafting experience. Based on the account given, we could then proceed to ask whether that drafting experience was typical or not of general practice
58. For a summary of their findings.
59. See, e.g., Krishnakumar, supra note 37, at 13 & n.55 (citing the Nourse and Schacter article for the proposition that, "in the vast majority of cases, Congress is likely to ignore these [interpretive] rules");
60. William N. Eskridge., No Frills Textualism, 119 Harv. L. Rev. 2041, 2049 n.32 (2006) (book review) (citing the Nourse and Schacter article for the proposition that "congressional drafters generally do not consider and often are unaware of the textual and substantive canons the Court uses").
61. Lockhart v. United States, 546 U.S. 142, 148 (2005) (Scalia, J., concurring) ("[L]egislative express-reference or express-statement requirements may function as background canons of interpretation of which Congress is presumptively aware."); AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 397 (1999) ("Congress is well aware that the ambiguities it chooses to produce in a statute will be resolved by the implementing agency." (citation omitted)); Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 531 n.22 (1983) ("Congress... appear[s] to have been generally aware that the statute would be construed by common-law courts in accordance with traditional canons.").
62. Caleb Nelson, What Is Textualism?, 91 Va. L. Rev. 347, 381-382 (2005).
63. Einer Elhauge, Statutory Default Rules: How to Interpret Unclear Legislation 235 (2008);
64. William N. Eskridge & Philip P. Frickey, The Supreme Court, 1993 Term-Foreword: Law as Equilibrium, 108 Harv. L. Rev. 26, 66-67 (1994);
65. Abbe R. Gluck, The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism, 119 Yale L.J. 1750, 1757 (2010);
66. Amanda L. Tyler, Continuity, Coherence, and the Canons, 99 Nw. U. L. Rev. 1389, 1418-1421 (2005).
67. Kenneth A. Shepsle, Congress Is a "They," Not an "It": Legislative Intent as Oxymoron, 12 Int'l Rev. L. & Econ. 239, 240 (1992) (summarizing the major impact of economics and public choice theory on statutory interpretation theory and doctrine). For a classic in this genre
68. David R. Mayhew, Congress: The Electoral Connection (2d ed. 2004).
69. For a few of many examples of the literature on the committee system
70. E. Scott Adler, Why Congressional Reforms Fail: Reelection and the House Committee System (2002);
71. Richard F. Fenno, Congressmen in Committees (1973);
72. David C. King, Turf Wars: How Congressional Committees Claim Jurisdiction (1997);
73. Keith Krehbiel, Information and Legislative Organization (1991).
74. The pathbreaking work here is Barbara Sinclair, Unorthodox Lawmaking: New Legislative Processes in the U.S. Congress (4th ed. 2012).
75. David Epstein & Sharyn O'Halloran, Delegating Powers: A Transaction Cost Politics Approach to Policy Making Under Separate Powers 91-93 & tbl. 5.1 (1999);
76. David E. Lewis, Presidents and the Politics of Agency Design: Political Insulation in the United States Government Bureaucracy, 1946-1997, at 39-69 (2003);
77. Mathew D. McCubbins & Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols Versus Fire Alarms, 28 Am. J. Pol. Sci. 165, 165-166 (1984);
78. Mathew D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 Va. L. Rev. 431, 468-481 (1989);
79. Terry M. Moe, The Politics of Bureaucratic Structure, in Can the Government Govern? 267, 267 (John E. Chubb & Paul E. Peterson eds., 1989).
80. For empirical studies of the Court's deployment of Chevron
81. Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 Yale L.J. 969, 981-984 & tbls. 1- 2 (1992);
82. Thomas J. Miles & Cass R. Sunstein, Do Judges Make Regulatory Policy? An Em pirical Examination of Chevron, 73 U. Chi. L. Rev. 823, 835-836 & tbls. 2-3 (2006);
83. Peter H. Schuck & E. Donald Elliott, To the Chevron Station: An Empirical Study of Federal Ad ministrative Law, 1990 Duke L.J. 984. For studies focusing on the application of Mead and Skidmore
84. Lisa Schultz Bressman, How Mead Has Muddled Judicial Review of Agency Action, 58 Vand. L. Rev. 1443 (2005);
85. Kristin E. Hickman & Matthew D. Krueger, In Search of the Modern Skidmore Standard, 107 Colum. L. Rev. 1235 (2007).
86. William Eskridge and Lauren Baer have also examined how the Court applies the various deference doctrines.
87. 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, 1090, 1098-1120 (2008);
88. Connor N. Raso & William N. Eskridge Jr., Chevron as a Canon, Not a Precedent: An Empirical Study of What Moti vates Justices in Agency Deference Cases, 110 Colum. L. Rev. 1727 (2010).
89. William N. Eskridge Jr., Norms, Empiricism, and Canons in Statutory Interpretation, 66 U. Chi. L. Rev. 671, 675 (1999) (noting the difficulty in testing assumptions such as whether canons have prodemocracy effects);
90. Cass R. Sunstein, Must Formalism Be Defended Empirically?, 66 U. Chi. L. Rev. 636, 642 (1999)
91. ("The principal qualification to my basic thesis-that formalism must be defended empirically-comes from the fact that without normative claims of some kind, it is impossible to know what counts as a 'mistake' or an 'injustice' in interpretation....");
92. Adrian Vermeule, Interpretation, Empiricism, and the Closure Problem, 66 U. Chi. L. Rev. 698, 701 (1999)
93. ("Many of the empirical questions relevant to the choice of interpretive doctrines are... unanswerable, at least at an acceptable level of cost or within a useful period of time.").
94. Vermeule, supra note 51, at 703 (footnote omitted); see also Eskridge, supra note 51, at 675; Sunstein, supra note 51, at 644.
95. Robert A. Katzmann, Statutes, 87 N.Y.U. L. Rev. 637, 660 (2012).
96. See Methods Appendix, supra note 2.
97. Specifically, we asked eighty-five questions with fifteen questions containing three to ten subparts. Two of these questions (77A and 32a) were added after the first batch of interviews took place. We designed the questions ourselves and based most of them on current doctrinal tests applied by courts or on arguments that have been central to the academic debates. We tested the questions on four colleagues with law and political science backgrounds, as well as four students who had worked on Capitol Hill, and we amended the questions based on their feedback.
98. For details on how we coded the comments, see Methods Appendix, supra note 2.
99. Gary King et al., Designing Social Inquiry: Scientific Inference in Qualitative Research (1994);
100. Herbert M. Kritzer, Stories from the Field: Collecting Data Outside Over There, in Practicing Ethnography in Law: New Dialogues, Enduring Methods 143, 154 (June Starr & Mark Goodale eds., 2002);
101. Helen Metzner & Floyd Mann, A Limited Comparison of Two Methods of Data Collection: The Fixed Alternative Questionnaire and the Open-Ended Interview, 17 Am. Soc. Rev. 486 (1952).
102. See Methods Appendix, supra note 2 (explaining the inclusion of thirteen nonlawyers and one law student).
103. At all points during our survey, Democrats held the majority in the Senate and Republicans held the majority in the House.
104. Three of the nonpartisan staffers worked on congressional committees; the rest were Legislative Counsels. The Nourse and Schacter study was also bipartisan. See Nourse & Schacter, supra note 10, at 578.
105. Matthew E. Glassman, Cong. Research Serv., RS20856, Office of Legislative Counsel: Senate 1-2 (2008);
106. Thomas P. Carr, Cong. Research Serv., RS20735, Office of Legislative Counsel: House 1-2 (2004).
107. Cf. Nourse & Schacter, supra note 10, at 581-82 (making the same assumption for staff of the Senate Judiciary Committee). The counsel title often connotes seniority as well as a law degree.
108. As detailed in the Methods Appendix, the true population of counsels is likely less than 650. As also elaborated there, because of the difficulty in determining the precise characteristics of the true population of legislative drafters, we computed the few statistical analyses that we report in two ways: first, using both a "super population" assumption-treating the actual population as if it were drawn from an infinitely-sized super population-and second, treating the actual population of counsels as being with a size of 650. Otherwise, we simply report only the raw data. Unless noted, the results were the same using both populations. See Methods Appendix, supra note 2.
109. As detailed in the Methods Appendix, we obtained most of the data from Legistorm as of the fourth quarter of 2011 (when the survey was conducted), and supplemented it with additional (primarily educational) information from Westlaw.
110. We were not surprised by this. Given how understudied the role of Legislative Counsel has been, we aggressively pursued interviews with those counsels by approaching the heads of their offices.
111. We were not able to obtain educational information for nearly half of the control and survey groups, with a greater share of missing data from the control group than from the survey group. Moreover, those working in the Offices of Legislative Counsel often do not have any educational information available on Legistorm, so the analysis excluded most of the Legislative Counsels.
112. These figures exclude Questions 1 to 10 and 82, which were all demographic questions, and Questions 78 and 83, which asked respondents what they would change if they could about the process and whether there was anything they wished to add. These figures also combine "never" and "rarely" responses and, separately, "always" and "often" responses when those options were offered.
113. For classic studies of Congress as an institution-rather than about the use of legal doctrine in the drafting process, see Fenno, supra note 47, app. A at 292 (conducting 280 interviews with committee members, thirty-seven with committee staff, fifty-four with executive officials, thirteen with clientele group officials, and twelve with House leaders from 1959 to 1968, and finding that committee decisions and the decisionmaking process differed depending on the member goals and environmental constraints of each committee during this period); and Richard F. Fenno, Jr., Home Style: House Members in Their Districts 249 (1978) (conducting a qualitative study of how members of Congress perceived their constituencies by travelling with members of Congress in their districts using the "participant observation" method from 1970 to 1977).
114. William N. Eskridge Jr. et al., Cases and Materials on Legislation: Statutes and the Creation of Public Policy 971-1066 (4th ed. 2007) (describing legislative history as an "extrinsic canon").
115. See Gluck, supra note 45, at 1817-18 (illustrating that the administrative law doctrines are canons); Raso & Eskridge, supra note 50, at 1751-66, 1794-1815 (same).
116. John F. Manning, Continuity and the Legislative Design, 79 Notre Dame L. Rev. 1863, 1864-1865 (2004);
117. John Copeland Nagle, Waiving Sovereign Immunity in an Age of Clear Statement Rules, 1995 Wis. L. Rev. 771, 801-802.
118. William D. Popkin, An "Internal" Critique of Justice Scalia's Theory of Statutory Interpretation, 76 Minn. L. Rev. 1133, 1143 (1992).
119. Scalia, supra note 17, at 29.
120. James J. Brudney, Canon Shortfalls and the Virtues of Political Branch Interpretive Assets, 98 Calif. L. Rev. 1199, 1203 (2010);
121. James J. Brudney & Corey Ditslear, Canons of Construction and the Elusive Quest for Neutral Reasoning, 58 Vand. L. Rev. 1, 12 (2005).
122. Lisa Schultz Bressman, Chevron's Mistake, 58 Duke L.J. 549, 559-566 (2009);
123. Evan J. Criddle, Chevron's Consensus, 88 B.U. L. Rev. 1271, 1283-1284 (2008);
124. Mark Seidenfeld, Chevron's Foundation, 86 Notre Dame L. Rev. 273, 277 (2011);
125. Matthew C. Stephenson & Miri Pogoriler, Seminole Rock's Domain, 79 Geo. Wash. L. Rev. 1449, 1449-1450 (2011).
126. Breyer, supra note 18, at 847-63.
127. David L. Shapiro, Continuity and Change in Statutory Interpretation, 67 N.Y.U. L. Rev. 921, 943 (1992); Tyler, supra note 45, at 1393.
128. See Eskridge & Frickey, supra note 45, at 66-67; John F. Manning, Legal Realism and the Canons' Revival, 5 Green Bag 2d 283, 294 (2002);
129. 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, 1095, 1118-22 (1987) (describing Chevron as a judicial coordinating rule).
130. Stephenson & Pogoriler, supra note 75, at 1456; Sunstein & Vermeule, supra note 24, at 926-927.
131. William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593 (1992);
132. Cass R. Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev. 315 (2000).
133. Barrett, supra note 22, at 110-11.
134. For these purposes, we count only those questions directly addressing a particular canon. There were twenty-four separate questions with zero to seven subparts each. But many additional questions also implicated these rules (for example, our question about whether omnibus legislation is as likely to be internally consistent as single-subject legislation).
135. Specifically, ten questions with zero to ten subparts each.
136. Specifically, eighteen questions with zero to nine subparts each. For this purpose, we double-count Q15 as both as a "federalism canon" question and an "administrative law doctrine" question, as that question asks whether drafters expect federal agencies to resolve ambiguities relating to preemption of state law.
137. It is not clear whether the Nourse and Schacter study inquired about the canons by formal or informal name or whether they inquired into any specific canons. The article states only that "respondents volunteered several interpretive principles: the rule of lenity, the avoidance of constitutional questions, and the Chevron doctrine, for example," Nourse & Schacter, supra note 10, at 601, and they did not reproduce their questions or the responses.
138. The only canons for which we did not do this were the rule of lenity and Skidmore. In the interests of time, we proceeded directly to inquiring about those canons by name. With respect to Chevron and Mead, the survey had separate sections concerning the deference doctrines by name and by concept, and, because we scrambled the survey sections to test whether question order affected the results, some respondents were asked about the deference doctrines by name first, while others were asked about them first by concept.
139. William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 664 (1990); Sunstein, supra note 29, at 455.
140. (stating that the inclusion of specific terms never or rarely signifies the exclusion of terms not mentioned). Thirteen percent of respondents declined to pick any answer choice. Of that number, all but two noted that drafters are often sloppy, that "lists are dangerous," or that drafters sometimes "forget" to think about the implications of making exceptions in parts of the statute but not others. The remaining two offered comments stating that the presumption was exclusive unless there were words to the contrary, so they have been counted above.
141. Twenty-two respondents answered sometimes, and sixteen answered "other," with the majority of those who answered other explaining that they did not know or did not understand the question. We recognize that our formulation of the concept underlying noscitur and ejusdem is somewhat broader than the actual rule. We were unable to be as precise as we would have liked in this question. The alternative, to give a more specific version of the rule, was difficult to do without leading. When we piloted the idea of giving respondents an example of statutory language raising the presumptions effectuated by these canons, our test audience told us that it felt like a "law school exam" and was unduly complex.
142. Using the rule against superfluities, many courts would likely interpret such an intentionally redundant statutory provision to mean that "medical service provider" does not include a "hospital" (or else the term hospital would be redundant). Thus, if another section of the same statute referred only to "medical service providers," courts would interpret hospitals to be excluded, even though according to our respondents, that would likely be the opposite of the intended result-to ensure stakeholders that hospitals were certainly included in the first place.
143. Anita S. Krishnakumar, Statutory Interpretation in the Roberts Court's First Era: An Empirical and Doctrinal Analysis, 62 Hastings L.J. 221, 243 & n.100 (2010).
144. Cheryl Boudreau et al., What Statutes Mean: Interpretive Lessons from Positive Theories of Communication and Legislation, 44 San Diego L. Rev. 957, 972 (2007);
145. Victoria Nourse, Misunderstanding Congress: Statutory Interpretation, the Supermajoritarian Difficulty, and the Separation of Powers, 99 Geo. L.J. 1119, 1142 (2011);
146. Nourse & Schacter, supra note 10, at 596 (noting that drafters use deliberate ambiguity to reach consensus).
147. See Berryman v. Bd. of Trustees of Whitman Coll., 222 U.S. 334, 349 (1912) (calling construction in contravention of the rule "repugnant to the plain intent of the act, as manifested from its language"); John F. Manning, What Divides Textualists from Purposivists?, 106 Colum. L. Rev. 70, 100-01 (2006); see also Scalia & Garner, supra note 13, at 179 (expressly rejecting arguments that the rule does not "match political reality" and instead arguing that "the surplusage canon is well known: Statutes should be carefully drafted, and encouraging courts to ignore sloppily inserted words results in legislative free-riding and increasingly slipshod drafting.... [I]f the legislators themselves are not mindful of ferreting out words and phrases that contribute nothing to meaning, they ought to hire eagle-eyed editors who are"); cf. Duncan v. Walker, 533 U.S. 167, 174 (2001) ("It is our duty to give effect, if possible, to every clause and word of a statute." (internal quotation marks omitted)).
148. See Corley v. United States, 556 U.S. 303, 314 (2009) (calling superfluities "one of the most basic interpretive canons"); id. at 325 (Alito, J., dissenting) ("Congress could sensibly have seen some practical value in the redundancy" (internal quotation marks omitted)); Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 113-14 (2001) (rejecting argument that would make a provision superfluous); id. at 140 (Souter, J., dissenting) (arguing that Congress used superfluous language in "ex abundanti cautela, abundance of caution").
149. Nourse recently used drafting reality to undermine the rule against superfluities in another way.
150. Victoria Nourse, A Decision Theory of Statutory Interpretation: Legislative History by the Rules, 122 Yale L.J. 70, 130 (2012) (arguing that the difficulty of attaining cloture in the Senate leads senators to acquiesce to postcloture amendments containing redundant language because "proponents will want to see the already-filibustered bill move forward").
151. This argument does not undermine our findings and was not mentioned by our respondents, but it may add another reason to question the link between this rule and the legislative process.
152. See generally Sinclair, supra note 48.
153. Q44a. That number rose to about 96% when we inquired whether a term used multiple times in the same section (as opposed to an entire act) is intended to have a consistent meaning. Q44b.
154. Id. We use the term "omnibus" to refer to bundled statutes that are not appropriations statutes. Appropriations statutes are drafted by different subcommittees of the same committee (Appropriations) and, as we discuss, were singled out by our respondents to be of a different character.
155. See Scalia & Garner, supra note 13, at 167 ("Perhaps no interpretive fault is more common than the failure to follow the whole-text canon, which calls on the judicial interpreter to consider the entire text, in view of its structure and of the physical and logical relation of its many parts."); see also Eskridge et al., supra note 69, at 866.
156. See Taniguchi v. Kan Pac. Saipan, Ltd., 132 S. Ct. 1997, 2004-05 (2012); Hall v. United States, 132 S. Ct. 1882, 1891 (2012); Mohamad v. Palestinian Auth., 132 S. Ct. 1702, 1708 (2012).
157. See Gustafson v. Alloyd Co., 513 U.S. 561 (1995) (numbers based on Westlaw key note search).
158. Based on a search of the Westlaw Supreme Court database for the words "committee" and "jurisdiction" in the same sentence, no Supreme Court case over the past thirty years appears to have referenced the issue of committee jurisdiction as relevant to an interpretive question. Likewise, our search of the Westlaw database revealed little evidence that the Court treats nonappropriations omnibus bills differently from ordinary single-subject legislation, although it occasionally recognizes the difficulty of imputing legislative omniscience in the context of appropriations. See, e.g., Salazar v. Buono, 130 S. Ct. 1803, 1840 (2010) (Stevens, J., dissenting) (chiding the majority for looking for evidence "buried in a defense appropriations bill" and contrasting appropriations bills to major statutes involving "years of careful study," and citing the omnibus Bipartisan Campaign Finance Reform Act as such an example (internal quotation marks omitted)).
159. Scalia & Garner, supra note 13, at 51. But Scalia and Garner are realistically cautious about the rule's applicability across unrelated statutes. Id. at 172-73.
160. Q44e. Only 15% said dictionaries were always or often used.
161. Adam Liptak, Justices Turning More Frequently to Dictionary, and Not Just for Big Words, N.Y. Times, June 14, 2011, at A11, available at http://www.nytimes.com/2011/ 06/14/us/14bar.html.
162. Id. (citing Jeffrey L. Kirchmeier & Samuel A. Thumma, Scaling the Lexicon Fortress: The United States Supreme Court's Use of Dictionaries in the Twenty-First Century, 94 Marq. L. Rev. 77, 85 (2010)).
163. Dolan v. U.S. Postal Serv., 546 U.S. 481, 494 (2006) (Thomas, J., dissenting). For other examples, see Taniguchi v. Kan Pac. Saipan, Ltd., 132 S. Ct. 1997, 2002 (2012); and Schindler Elevator Corp. v. United States ex rel. Kirk, 131 S. Ct. 1885, 1891 (2011).
164. Commentators have long observed that dictionaries are conservative or lag behind the times when it comes to use of ordinary speech.
165. Phillip A. Rubin, Note, War of the Words: How Courts Can Use Dictionaries in Accordance with Textualist Principles, 60 Duke L.J. 167, 186-187 (2010);
166. Gertrude Block, The Punctuated Lawyer, Fed. Law., July 1996, at 40, 40. Others have focused on the problem of using dictionary definitions out of context.
167. Craig Hoffman, Parse the Sentence First: Curbing the Urge to Resort to the Dictionary when Interpreting Legal Texts, 6 N.Y.U. J. Legis. & Pub. Pol'y 401, 404-406 (2003);
168. A. Raymond Randolph, Dictionaries, Plain Meaning, and Context in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol'y 71, 73-74 (1994).
169. James J. Brudney & Lawrence Baum, Oasis or Mirage: The Supreme Court's Thirst for Dictionaries in the Rehnquist and Roberts Eras 71-72 (Fordham Law Sch. Legal Studies, Working Paper No. 2195644, 2013), available at http://ssrn.com/abstract=2195644;
170. see also Gustafson v. Alloyd Co., 513 U.S. 561, 585 (1995) (Thomas, J., dissenting) (chiding the majority for not deferring to a statutory definition); id. at 597 (Ginsburg, J. dissenting) (same).
171. See Eskridge & Baer, supra note 50, at 1098-1120 (counting at least twelve different deference doctrines).
172. 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, 401-406 (1950) (arguing that for every canon there is a countercanon).
173. See Eskridge & Frickey, supra note 80, at 630-36.
174. See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985).
175. Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). The Court has also articulated clear statement rules in other contexts, such as nonretroactivity of statutes.
176. John F. Manning, Clear Statement Rules and the Constitution, 110 Colum. L. Rev. 399, 411-412 (2010).
177. Atascadero, 473 U.S. at 242.
178. See Q17. Of those who were familiar with only one canon, 90% were familiar only with the presumption against preemption and 10% only with the federalism canon.
179. See Eskridge & Frickey, supra note 80, at 631;
180. Elizabeth Garrett, Legal Scholarship in the Age of Legislation, 34 Tulsa L.J. 679, 685-686 (1999) (noting that a goal of the federalism canon is "to force Congress to pay close and sustained attention to the issue and to deliberate fully before acting"); Vermeule, supra note 23, at 564.
181. Scalia, supra note 17, at 29.
182. Q14. Sixteen of these respondents also commented that drafters tend to anticipate that courts will rule on preemption in accordance with the drafters' own federalism views. Id.
183. See, e.g., Gregory v. Ashcroft, 501 U.S. 452 (1991); Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947).
184. An interesting question beyond the scope of this Article is whether the federally oriented vantage point of congressional staffers undermines longstanding arguments that the states' representation in Congress ensures that state interests are represented in the statute-making process.
185. Herbert Wechsler, The Political Safeguards of Federalism: The Rôle of the States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543 (1954).
186. Gregory, 501 U.S. at 461.
187. More than 72% of our respondents told us that we were asking the right questions about how federalism comes into play in the drafting process. Q19. In their qualitative comments, 9% of respondents emphasized that the importance of federalism depends on the subject matter being considered. Nine percent (including two respondents who also mentioned subject area) emphasized that federalism plays a much larger role in the statute-making process than merely serving as a factor in drafting, either as a central political issue or as an overarching question about the philosophy of government.
188. Matthew C. Stephenson, The Price of Public Action: Constitutional Doctrine and the Judicial Manipulation of Legislative Enactment Costs, 118 Yale L.J. 2, 36-39 (2008) (arguing that "clear statement rules... foster deliberation and careful consideration on constitutionally sensitive topics" and that "legislators or interest groups will not be able to sneak something by a majority of the enacting coalition").
189. Eskridge & Frickey, supra note 80, at 597, 611-12.
190. Eighty-one percent of respondents said it would make a difference to their drafting practices if courts were more consistent about the canons they applied. Q67.
191. Most rules that our respondents named were not what judges and scholars would classify as clear statement rules. For example, receiving multiple mentions as clear statement rules were Chevron, the rule of lenity, the presumption in favor of severability, and the textual canons "the specific controls the general" and expressio unius. The only actual clear statement rules mentioned-the abrogation of sovereign immunity, federalism, and the creation of private rights of action-were noted by just six respondents (one mentioned two, the other five each mentioned one). Q34; Q35. Before asking respondents to name specific clear statement rules, we asked whether they were familiar with interpretive rules to the effect that ambiguities in statutes will be construed in a particular way absent a clear statement to the contrary. Sixty-seven percent said they were, see Q34, but, as mentioned, few could name any.
192. Roderick M. Hills, Against Preemption: How Federalism Can Improve the National Legislative Process, 82 N.Y.U. L. Rev. 1, 61 (2007) (noting that "numerous commentators" have noted that the Court has found "an intent to preempt even without anything remotely like 'clear and manifest' evidence of such intent").
193. See, e.g., United States v. Hayes, 555 U.S. 415, 436-37 (2009) (Roberts, C.J., dissenting) (arguing that the majority should have turned to the rule of lenity, not legislative history, to resolve the case).
194. See Scalia & Garner, supra note 13, at 31; Barrett, supra note 22, at 128-29 (outlining the history of the rule of lenity); see also id. at 128 (arguing that some substantive canons' "long pedigree makes it difficult to dismiss their use as fundamentally inconsistent with the limits that the Constitution imposes upon the exercise of judicial power").
195. Scalia & Garner, supra note 13, at 31.
196. Q30-Q31 (including three people who said "other" but whose comments-for example, "It only applies in cases of ambiguity"-revealed knowledge of the rule).
197. To keep the survey under sixty minutes in duration, we unfortunately eliminated our question about lenity by concept because we did not expect that the lenity would be unknown by name to so many of our respondents.
198. As discussed in the companion Article, our data are mixed on this point. We did not find a statistically significant difference between Judiciary and non-Judiciary staff with respect to awareness or use of many of the canons studied. See Bressman & Gluck, supra note 8.
199. See Elhauge, Preference-Eliciting, supra note 24, at 2203. Some courts have ignored these legislative prohibitions, presumably based on the conclusion that the rule implements constitutionally derived principles (due process and notice) that legislatures cannot override. See Gluck, supra note 45, at 1824-25.
200. The remaining respondents said "don't know" (fifteen respondents) or that they assumed courts would "strike down" ambiguous statutes (one respondent). Id.
201. Q32a. One additional respondent said "sometimes we think courts will avoid the question."
202. See, e.g., Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988) ("Congress, like this Court, is bound by and swears an oath to uphold the Constitution. The courts will therefore not lightly assume that Congress intended to infringe constitutionally protected liberties or usurp power constitutionally forbidden it.").
203. Scalia & Garner, supra note 13, at xxvii (arguing that their interpretive approach will "discourage legislative free-riding, whereby legal drafters idly assume that judges will save them from their blunders").
204. Victoria F. Nourse, Two Kinds of Plain Meaning, 76 Brook. L. Rev. 997, 1003-1005 (2011).
205. John F. Manning, The New Purposivism, 2011 Sup. Ct. Rev. 113, 155 (emphasis omitted).
206. Compare, e.g., Green v. Bock Laundry Mach. Co., 490 U.S. 504, 528 (1989) (Scalia, J., concurring in the judgment) ("The meaning of terms... ought to be determined... most in accord with context and ordinary usage, and thus most likely to have been understood by the whole Congress which voted on the words of the statute (not to mention the citizens subject to it)...."), with Scalia, supra note 17, at 17 ("We look for a sort of 'objectified' intent-the intent that a reasonable person would gather from the text of the law, placed alongside the remainder of the corpus juris.").
207. See Barrett, supra note 22, at 181 (arguing that the "judicial power to safeguard the Constitution" using constitutionally inspired substantive canons "can be understood to qualify the [faithful-agent] duty that otherwise flows from the principle of legislative supremacy"); Merrill, supra note 22, at 1597 (contending that no coherent account exists to justify textualists' use of rules external to the text under a faithful-agent model and that no interpreters are purely faithful agents).
208. Jerry Mashaw, As If Republican Interpretation, 97 Yale L.J. 1685, 1686 (1988) ("Any theory of statutory interpretation is at base a theory about constitutional law.").
209. See Manning, supra note 159.
210. Cf. The Federalist No. 83, at 496 (Alexander Hamilton) (Clinton Rossiter ed., 1961) ("The rules of legal interpretation are rules of common sense.... The true test, therefore, of a just application of them is its conformity to the source from which they are derived.").
211. Compare Scalia & Garner, supra note 13, at 245 (suggesting that legislated interpretive rules are "problematic"), with Abbe R. Gluck, The Federal Common Law of Statutory Interpretation: Erie for the Age of Statutes, 54 Wm. & Mary L. Rev. 753 (2013) [hereinafter Gluck, Federal Common Law], Gluck, supra note 45, 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), and Rosenkranz, supra note 15 (each drawing a different line between certain canons that Congress might legislate and certain rules that would remain in the exclusive judicial domain). For a discussion of legislated interpretation rules in the states, see Jacob Scott, Codified Canons and the Common Law of Interpretation, 98 Geo. L.J. 341 (2010).
212. Donald G. Morgan, Congress and the Constitution: A Study of Responsibility (1966) (arguing that Congress has an obligation to engage in constitutional interpretation);
213. Paul Brest, The Conscientious Legislator's Guide to Constitutional Interpretation, 27 Stan. L. Rev. 585 (1975) (same);
214. Robert C. Post & Reva B. Siegel, Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act, 112 Yale L.J. 1943 (2003)
215. (arguing that the Court does not and should not monopolize constitutional interpretation).
216. See Nelson, supra note 44, at 381-82.
217. See Manning, supra note 20, at 423.
218. See Q67 ("It's a conversation between Congress and the courts."); id. ("[I]f they move in a consistent direction over time it will affect how we draft.").
219. Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 218-21 (2008).
220. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009).
221. Atl. Sounding Co. v. Townsend, 557 U.S. 404, 415-16 (2009).
222. Dodd v. United States, 545 U.S. 353, 358 (2005).
223. Chickasaw Nation v. United States, 534 U.S. 84, 89 (2001).
224. Carcieri v. Salazar, 555 U.S. 379, 388 (2009).
225. Begay v. United States, 553 U.S. 137, 144 (2008).
226. Zuni Pub. Sch. Dist. No. 89 v. Dep't of Educ., 550 U.S. 81, 86, 97-98 (2007).
227. Rousey v. Jacoway, 544 U.S. 320, 329 (2005).
228. Watson v. Philip Morris Cos., 551 U.S. 142, 151-52 (2007).
229. Knight v. Comm'r, 552 U.S. 181, 192 (2008).
230. See generally Brudney & Baum, supra note 118.
231. But cf. Scalia & Garner, supra note 13, at 296 (noting that an early justification for the rule was the presumption that "a just legislature will not decree punishment without making clear what conduct incurs the punishment").
232. See Eskridge et al., supra note 69, at 884-88; Note
233. Antonin Scalia, Essay, Assorted Canards of Contemporary Legal Analysis, 40 Case W. Res. L. Rev. 581, 582-583 (1990).
234. Some also argue that lenity serves a nondelegation or separation of powers function, ensuring that only Congress, not the judiciary, legislates federal crimes.
235. John F. Manning, Lessons from a Nondelegation Canon, 83 Notre Dame L. Rev. 1541, 1561 n.62 (2008).
236. See Eskridge et al., supra note 69, at 885-86; Scalia, supra note 183, at 582-83.
237. To the extent that interest groups may bring judicial decisions that apply clear statement rules to Congress's attention, such application of clear statement rules may ultimately have their desired effect regardless of whether Congress knows about them when drafting. One implication of our study may be that clear statement rules have more of an ex post effect on drafting than the ex ante effect typically assumed, if they are made known to Congress by stakeholders after cases are litigated. But this "postenactment" theory of clear statement rules still depends on a dialogue-someone on the other side must bring the judicial decision to Congress's attention-the existence of which remains in need of empirical verification.
238. See, e.g., Manning, supra note 124, at 425-26.
239. These questions may become more complicated to the extent one believes that Congress itself plays a role in constitutional interpretation and may reach different constitutional conclusions from the courts. See generally Post & Siegel, supra note 166 (advancing such a view).
240. See Mashaw, supra note 162, at 1692. Some claim that Congress may intend precisely the opposite. See Manning, supra note 124, at 419 n.108 (arguing that "virtually no one (except the Supreme Court Justices)" views "the idea that Congress intends to stay well within the boundaries of constitutionality" as "resting upon a plausible account of what a rational legislator would intend"). We also see a parallel here to the "scrivener's error" doctrine, which we have never seen challenged as incompatible with faithful agency even though it involves judicial rewriting of statutes: courts fulfill their duties as faithful agents when correcting obvious typos in the statute that Congress never could have intended.
241. Jonathan R. Siegel, The Polymorphic Principle and the Judicial Role in Statutory Interpretation, 84 Tex. L. Rev. 339, 375 (2005).
242. See Manning, supra note 124, at 419 n.108.
243. Theorists often assert these justifications simultaneously. For example, Scalia and Garner's statement that "[t]he presumption is based on an assumption of what Congress, in our federal system, would or should normally desire" conflates a reflective conceptualization of the canon with a proactive one. Scalia & Garner, supra note 13, at 293.
244. See Garrett, supra note 128, at 686 ("Because these interpretive methods are justified largely on the basis of their effects on future congressional action, their legitimacy rests on predictions about changes in congressional behavior. Scholarship providing detailed empirical studies of current congressional behavior... [is] virtually nonexistent.").
245. See Sunstein, supra note 80, at 317;
246. Bradford R. Clark, Process-Based Preemption, in Preemption Choice: The Theory, Law, and Reality of Federalism's Core Question 192 (William W. Buzbee ed., 2009) (arguing that the presumption against preemption and clear statement rules, even if they do not reflect congressional intent, help the courts enforce the political safeguards of federalism by keeping the decision in Congress's hands); Elhauge, Preference-Eliciting, supra note 24, at 2165 (calling these congressional "preference-eliciting" rules).
247. Hans A. Linde, Due Process of Lawmaking, 55 Neb. L. Rev. 197, 199 (1976);
248. Neal Devins, Essay, Party Polarization and Judicial Review: Lessons from the Affordable Care Act, 106 Nw. U. L. Rev. 1821, 1837 (2012) ("There is no such thing as 'due process in lawmaking,' obligating Congress to hold hearings or anything else.").
249. Susan Rose-Ackerman et al., "Due Process of Lawmaking": United States, South Africa, Germany, and the European Union (forthcoming 2014).
250. For two important exceptions
251. Dan T. Coenen, The Rehnquist Court, Structural Due Process, and Semi substantive Constitutional Review, 75 S. Cal. L. Rev. 1281, 1285 (2002) (illustrating how certain canons, particularly clear statement rules, seem aimed at the process by which laws are enacted);
252. Philip P. Frickey & Steven S. Smith, Judicial Review, the Congressional Process, and the Federalism Cases: An Interdisciplinary Critique, 111 Yale L.J. 1707, 1715 (2002) (noting that canons protect under enforced norms).
253. In fact, judicial application of the presumption functions in precisely the opposite way, allowing courts to avoid any federalism-related constitutional questions by breaking ties in favor of state law.
254. Scholars have similarly argued that some statutory interpretation rules allow the courts a lower-heat method of engaging in substantive constitutional review. See Eskridge & Frickey, supra note 80 (arguing the Court has tried to change constitutional boundaries through its use of clear statement rules in statutory cases).
255. Lozman v. City of Riviera Beach, 133 S. Ct. 735, 744 (2013) (Breyer, J.) ("Consistency of interpretation of related state and federal laws is a virtue in that it helps to create simplicity making the law easier to understand and to follow for lawyers and for nonlawyers alike."); Green v. Bock Laundry Mach. Co., 490 U.S. 504, 528 (1989) (Scalia, J., concurring in the judgment) ("The meaning of terms on the statute books ought to be determined... on the basis of which meaning is... most compatible with the surrounding body of law into which the provision must be integrated...."); Scalia, supra note 17, at 16; Garrett, supra note 26, at 7.
256. William W. Buzbee, The One-Congress Fiction in Statutory Interpretation, 149 U. Pa. L. Rev. 171 (2000) (elaborating on Justice Scalia's views about the judicial obligation to impose coherence on the U.S. Code).
257. Scalia & Garner, supra note 13, at 252.
258. Schauer, supra note 25, at 232 (arguing for application of the plain meaning rule on these grounds).
259. See Eskridge & Frickey, supra note 45, at 66-67 (arguing that consistently applied interpretive rules would have efficiency and coordinating effects for judges, lawyers, and Congress); Strauss, supra note 78, at 1117-18, 1121 (arguing that Chevron is a court-organizing rule through which the Supreme Court aims to manage and make more uniform the work of lower courts).
260. Henry Hart, Albert Sacks, and Karl Llewellyn have gotten highways' worth of mileage out of their observations to this effect.
261. Henry M. Hart & 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); Llewellyn, supra note 120, at 401-06.
262. Sydney Foster, Should Courts Give Stare Decisis Effect to Statutory Interpretation Methodology?, 96 Geo. L.J. 1863, 1866 (2008) (explaining that courts do not treat statutory interpretation methodology as precedential).
263. Abbe R. Gluck, Intersystemic Statutory Interpretation: Methodology as "Law" and the Erie Doctrine, 120 Yale L.J. 1898 (2011) (illustrating that courts do not view statutory interpretation rules to be as "law-like" as they view choice of law, contract interpretation, constitutional implementation, and other analogous rules, and exploring judicial reluctance to adopt a more consistent approach).
264. See Foster, supra note 203, at 1866; Gluck, supra note 203, at 1901.
265. Richard H. Pildes & Cass R. Sunstein, Reinventing the Regulatory State, 62 U. Chi. L. Rev. 1, 66 (1995) ("Policy choices do not just bring about certain immediate material consequences; they also will be understood, at times, to be important for what they reflect about various value commitments-about which values take priority over others, or how various values are best understood.").
266. Adam M. Samaha, Regulation for the Sake of Appearance, 125 Harv. L. Rev. 1563 (2012) (arguing that certain appearances, even if unlinked to reality, are often necessary to inspire public confidence).
267. See Hasen, supra note 14, at 4 (italics and internal quotation marks omitted) (explaining, using empirical research, that congressional overrides of Supreme Court statutory interpretations are rare).
268. Garrett, supra note 26, at 7.
269. Hart & Sacks, supra note 202, at 1374 (noting that it is not "the court's function... to ascertain the intention of the legislature with respect to the matter in issue"); id. at 1380 (noting that the interpreting institution "should strive to develop a coherent and reasoned pattern of applications intelligibly related to the general purpose").
270. Scalia & Garner, supra note 13, at xxviii.
271. Breyer, supra note 18, at 867; see also Breyer, supra note 19, at 92.
272. Scalia & Garner, supra note 13, at xxviii ("Nontextual interpretation... makes 'statesmen' of judges... .").
273. After seeming to reach an equilibrium, the debate over legislative history appears to have intensified again in recent years. See Gluck, supra note 203, at 1909 n.22 (collecting cases from Justice Sotomayor's first Term). For a few more recent examples, see Mohamad v. Palestinian Auth., 132 S. Ct. 1702, 1710 (2012) (stating that the text of the statute is clear and thus that legislative history need not be relied upon); id. at 1711 (Breyer, J., concurring) (disagreeing that the relevant statutory text is clear and consulting legislative history); Cole-man v. Court of Appeals, 132 S. Ct. 1327, 1338 (2012) (Scalia, J., concurring in the judgment) (disagreeing with the plurality opinion's reliance on the legislative record rather than the text alone); Reynolds v. United States, 132 S. Ct. 975, 986 n.* (2012) (Scalia, J., dissenting) (arguing that the majority's consultation of legislative history is "superfluous"); Gonzalez v. Thaler, 132 S. Ct. 641, 662-63 (2012) (Scalia, J., dissenting) (critiquing the Court's use of legislative history); DePierre v. United States, 131 S. Ct. 2225, 2237-38 (2011) (Scal-ia, J., concurring in part and concurring in the judgment) (claiming that detours into legislative history are "needless" and "not harmless"); and Bruesewitz v. Wyeth LLC, 131 S. Ct. 1068, 1081-82 (2011) (acknowledging that the legitimacy of legislative history is not accepted by all of the Justices).
274. See Scalia, supra note 17, at 35.
275. See, e.g., id. at 32-34; cf.
276. Adrian Vermeule, Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church, 50 Stan. L. Rev. 1833, 1860-1876 (1998) (focusing on how legislative history research taxes judicial competence).
277. John F. Manning, Textualism as a Nondelegation Doctrine, 97 Colum. L. Rev. 673, 698-699 (1997).
278. Q68b and Q77A. We discuss in the companion Article what might be deemed a twist on the "law-politics" divide in our findings. Although choice of interpretive methodology has been heavily politicized in courts, our respondents' political loyalties did not appear to affect their answers to our questions. Cf. Katzmann, supra note 53, at 670 ("It is a bipartisan institutional perspective within Congress that courts should consider reliable legislative history and that failing to do so impugns Congress's workways.").
279. Boudreau et al., supra note 98, at 974 ("[J]udges should trust only those sources that were trustworthy for the ... legislators who passed the bill ... . Stated differently, if legislators in their conversations ignore certain sources of information because those sources are not trustworthy, then so should judges.").
280. Sixty-eight percent of our Legislative Counsel respondents told us that legislative history was a useful tool for statutory drafters, see Q59, and 79% of our Legislative Counsel respondents told us that legislative history was a useful tool for courts seeking to determine what Congress intended, see Q68.
281. Nourse & Schacter, supra note 10, at 585.
282. Walter J. Oleszek, Congressional Procedures and the Policy Process 27 (5th ed. 2001) argues that senators rely more on their staffs than House members because senators are more "generalist" legislators, but our study did not elicit that distinction. See Q62; Q63.
283. The legislative history of appropriations legislation offers an intriguing and important exception. See infra note 275 and accompanying text.
284. James J. Brudney, Congressional Commentary on Judicial Interpretations of Statutes: Idle Chatter or Telling Response?, 93 Mich. L. Rev. 1, 28 (1994) (quoting members of Congress on the "importance of committee reports to their own understanding of statutory text").
285. Eight respondents made this point, after which we confirmed it with several of our respondents on those committees via confidential e-mails. For examples of the Finance Committee markup documents, see Search for Senate Finance Committee Markups, U.S. Senate Committee on Fin., http://www.finance.senate.gov/legislation (last visited May 2, 2013) (search for "markup").
286. See Oleszek, supra note 219, at 88 (arguing that members generally "defer[] to the committee's decisions" because "[c]ommittee members and their staffs have a high degree of expertise on the subjects within their jurisdiction, and a bill comes under its sharpest congressional scrutiny at the committee stage"). 224. Eskridge, supra note 88, at 677; Manning, supra note 215, at 706.
287. Daniel J. Bussel, Textualism's Failures: A Study of Overruled Bankruptcy Decisions, 53 Vand. L. Rev. 887, 898 (2000).
288. See Katzmann, supra note 53, at 659-60; sources cited supra note 98.
289. As in the Nourse and Schacter study, we found that many of our respondents were aware of Justice Scalia's distaste for legislative history, but that the critique had little real-world impact on reducing the production of it, at least in part because it serves so many functions apart from influencing judicial interpretation. See Nourse & Schacter, supra note 10, at 607; cf., e.g., Q61 ("Justice Scalia needs to recognize that not every person dealing with legislative history is a complete buffoon or an idiot.").
290. Accord Brudney, supra note 221, at 55-56 (noting that committee reports are directed at members of Congress and their staffs, regulated entities, agencies, and courts).
291. These findings comport with some recent scholarship about how Congress communicates. See Boudreau et al., supra note 98, at 970; Nourse, supra note 98, at 1131-34.
292. This is a slightly different point from that suggested by other scholars who have previously thought about the level of detail in text versus history.
293. Jonathan R. Siegel, The Use of Legislative History in a System of Separated Powers, 53 Vand. L. Rev. 1457, 1509-1510 (2000) (arguing that putting clarifying language in legislative history obviates the risk that additional statutory text would create more ambiguity).
294. Compare, e.g., Shepsle, supra note 46 (arguing that it is "fruitless to attribute intent to the product of [Congress's] collective efforts"), with Breyer, supra note 19, at 99 ("It is not conceptually difficult, however, to attribute a purpose to a corporate body such as Congress. Corporations, companies, partnerships, ... and legislatures engage in intentional activities ... .").
295. In re Sinclair, 870 F.2d 1340, 1343 (7th Cir. 1989) (Easterbrook, J.); cf. Blanchard v. Bergeron, 489 U.S. 87, 98-99 (1989) (Scalia, J., concurring in part and concurring in the judgment) (noting "[w]hat a heady feeling it must be for a young staffer" to be able to change the meaning of a statute by inserting legislative history into the record).
296. Specifically, thirty-four respondents said either that legislative history was essential regardless of text (seventeen respondents); that it should be consulted first after text (nine respondents); or that it should be consulted after text perhaps along with other evidence (ten respondents). Two of these respondents said both that it was essential and should be consulted after text. Q77A.
297. For pronouncements on the particular reliability of sponsor statements, see Corley v. United States, 556 U.S. 303, 318 (2009) ("[A] sponsor's statement to the full Senate carries considerable weight ... ."); Pub. Emps. Ret. Sys. v. Betts, 492 U.S. 158, 190 (1989) (Marshall, J., dissenting) (quoting Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 564 (1976)); and Cnty. of Washington v. Gunther, 452 U.S. 161, 187 n.2 (1981) (Rehnquist, J., dissenting) (quoting Algonquin SNG, 426 U.S. at 564). Cf. Bankamerica Corp. v. United States, 462 U.S. 122, 145 (1983) (White, J., dissenting) (construing text "[i]n light of the statements of the men most familiar with the circumstances surrounding the addition" of that text). For statements about the reliability of committee and conference reports, see Garcia v. United States, 469 U.S. 70, 76 (1984) (remarking that "Committee Reports are 'more authoritative' than comments from the floor" (quoting United States v. O'Brien, 391 U.S. 367, 385 (1968))); Simpson v. United States, 435 U.S. 6, 17 (1978) (Rehnquist, J., dissenting) ("The report of a joint conference committee of both Houses of Congress, for example, or the report of a Senate or a House committee, is accorded a good deal more weight than the remarks even of the sponsor of a particular portion of a bill on the floor of the chamber."); and United States v. UAW, 352 U.S. 567, 585-86 (1957). For statements on the lesser reliability of opponents' statements, see Bryan v. United States, 524 U.S. 184, 196 (1998); and Shell Oil Co. v. Iowa Dep't of Revenue, 488 U.S. 19, 29 (1988). For statements that the Court gives little weight to subsequent legislative history, see Barber v. Thomas, 130 S. Ct. 2499, 2507 (2010) ("And whatever interpretive force one attaches to legislative history, the Court normally gives little weight to statements, such as those of the individual legislators, made after the bill in question has become law."); Massachusetts v. EPA, 549 U.S. 497, 530 n.27 (2007); and Heintz v. Jenkins, 514 U.S. 291, 298 (1995). See also Eskridge, supra note 88, at 636 (arguing that the Court applies a de facto hierarchy of legislative history).
298. Q61d, f. When asked whether these types of legislative history were also very reliable for courts or agencies (and not just legislators, as the previous question had inquired), those numbers were 57% (one type of report) and 77% (both types of reports), respectively.
299. See generally Sinclair, supra note 48, at 266-68.
300. Kenneth A. Shepsle & Barry R. Weingast, The Institutional Foundations of Committee Power, 81 Am. Pol. Sci. Rev. 85 (1987);
301. Barry R. Weingast & William J. Marshall, The Industrial Organization of Congress; or, Why Legislatures, Like Firms, Are Not Organized as Markets, 96 J. Pol. Econ. 132, 150-153 (1988).
302. See generally Sinclair, supra note 48.
303. Specifically, 51% said it played a different role, and an additional 7% who answered "other" or "true" offered comments to the same effect. We distinguish nonappropriations omnibus bills from appropriations bills because we inquired about them separately and also because our respondents distinguished them. Appropriations bills are typically drafted by various subcommittees of the larger Appropriations Committee, whereas other omnibus bills are often composed of many different bills, written by different committees, which are ultimately packaged together by leadership right before going to the floor- without the various committees necessarily expecting that result when they drafted the bills in the first place.
304. Allen Schick, The Federal Budget: Politics, Policy, Process 271 (3d ed. 2007).
305. ("Usually Legislative Counsel doesn't, but appropriations is one area where there is a mark up to committee report and members offer amendments to committee re-ports-we help with those amendments.").
306. Garrett, supra note 26, at 9-10. For further discussion of the link between Garrett's work and our findings, see our companion Article. Bressman & Gluck, supra note 8.
307. A Westlaw search for "omnibus" in the Supreme Court database produced 220 cases. Apart from the occasional acknowledgement of a statute's omnibus nature-see, e.g., Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 498 (1999) (Stevens, J., concurring in the judgment) (noting that it was "not surprising" that a 750-page omnibus bill contained a scrivener's error); Perez v. Brownell, 356 U.S. 44, 56 (1958) (noting that it was "not surprising" that certain provisions that "constituted but a small portion of a long omnibus nationality statute" received "little attention ... in debate and hearings")-the Court appears not to have distinguished between these and other types of statutes. We note a recent move that may indicate a change in this trend, although not relating to legislative history use. In the 2012 health reform decision, the joint dissent suggested a special new severability canon for omnibus legislation. See Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2675-76 (2012) (joint dissent).
308. See, e.g., Dixon v. United States, 548 U.S. 1, 12-13 (2006) (construing the Omnibus Crime Control and Safe Streets Act and noting, "[t]here is no evidence in the Act's structure or history that Congress actually considered the question"); United States v. Gonza-les, 520 U.S. 1, 13 (1997) (Stevens, J., dissenting) (construing Omnibus Crime Control Act of 1970 and noting that if Congress had intended a particular result, "I think there would have been some mention of this important change in the legislative history"); Lukhard v. Reed, 481 U.S. 368, 384-85 (1987) (Powell, J., dissenting) (construing the Omnibus Budget Reconciliation Act of 1981 and noting that "neither the language ... nor its legislative history indicates that Congress intended to change the meaning of 'income'" (quoting Brief for the Secretary of Health and Human Services as Respondent Supporting Petitioner at 15, Lukhard, 481 U.S. 368 (No. 85-1358), 1986 WL 727449) (some internal quotation marks omitted)).
309. See, e.g., Hein v. Freedom from Religion Found., 551 U.S. 587, 608 n.7 (2007) (plurality opinion) ("[A] fundamental principle of appropriations law is that where Congress merely appropriates lump-sum amounts without statutorily restricting what can be done with those funds, ... indicia in committee reports and other legislative history as to how the funds should or are expected to be spent do not establish any legal requirements on the agency." (quoting Lincoln v. Vigil, 508 U.S. 182, 192 (1993)) (internal quotation marks omitted)); Tenn. Valley Auth. v. Hill, 437 U.S. 153, 191 (1978) ("Expressions of committees dealing with requests for appropriations cannot be equated with statutes enacted by Congress ... ."). A Westlaw search of the term "appropriation!" within the same sentence as any one of "legislative history," "Senate report," "House report," "committee report," "conference committee," and "floor debate" in the Supreme Court database produced seven opinions decided since 2000, five of which were apposite. Four treated appropriations legislative history in this same manner. See Salazar v. Ramah Navajo Chapter, 132 S. Ct. 2181, 2194 (2012); Bruesewitz v. Wyeth LLC, 131 S. Ct. 1068, 1082 (2011); Hein, 551 U.S. at 608 n.7; Cherokee Nation of Okla. v. Leavitt, 543 U.S. 631, 644, 646 (2005). One result, Salazar v. Buono, 130 S. Ct. 1803, 1840 (2010) (Stevens, J., dissenting), focused on the lack of evidence of congressional deliberation in the legislative record for provisions "buried in a defense appropriations bill."
310. 437 U.S. at 189 ("In support of [its] view, TVA points to the statements found in various House and Senate Appropriations Committees' Reports; ... those Reports generally reflected the attitude of the Committees either that the Act did not apply to Tellico or that the dam should be completed regardless of the provisions of the Act... . There is nothing in the appropriations measures, as passed, which states that the Tellico Project was to be completed irrespective of the requirements of the Endangered Species Act.").
311. See Nourse, supra note 101, at 133. Congress might have good reasons for not wanting judicial doctrine aligned with its practice (including the fact that substantive legislation is not supposed to be done through appropriations); our goal is simply to raise the question. Schick argues that Congress uses legislative history to direct agency spending in order to give agencies as much flexibility as possible with the use of those funds. Schick, supra note 274, at 271. On such a theory, Congress might not want courts to strictly enforce statements in appropriations legislative history. Thanks to Nick Parrillo for this insight.
312. Nourse & Schacter, supra note 10, at 585.
313. Id. These respondents mentioned either right before passage, right after, or both as the window of time when legislative history was reliable. Forty percent of respondents mentioned that there was a window both before and after passage.
314. See Eskridge et al., supra note 69, at 1040.
315. Nourse, supra note 101, at 109-10.
316. This figure was computed using relevant comments from Q63, plus coded comments elsewhere in the survey that referenced such factors in the context of legislative history.
317. Markup, U.S. Senate, http://www.senate.gov/reference/glossary_term/ markup.htm (last visited May 2, 2013).
318. A search of Supreme Court cases shows that the Court has cited only five colloquies since 2000, and usually the Court is reluctant to rely upon them. See, e.g., Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 598-99 (2004) (rejecting reliance on a colloquy despite the fact that it included the legislation's sponsor); Barnhart v. Sigmon Coal Co., 534 U.S. 438, 456-57 (2002) (same).
319. William N. Eskridge, et al., Legislation and Statutory Interpretation 308 (2d ed. 2006) (discussing the risk that "interest groups will seek to plant friendly comments in the reports and induce their legislative allies to engage in planned colloquies that reflect a slanted understanding of the statute");
320. William S. Moorhead, A Congressman Looks at the Planned Colloquy and Its Effect in the Interpretation of Statutes, 45 A.B.A. J. 1314, 1314 (1959);
321. 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, 342 (1990).
322. One of the few colloquies discussed at length in a Supreme Court case, the colloquy between Senators Kyl and Graham referred to in Hamdan v. Rumsfeld, was singled out by some respondents as an example of the unreliable type. See Hamdan v. Rumsfeld, 548 U.S. 557, 580 n.10 (2006) (noting that "those statements appear to have been inserted into the Congressional Record after the Senate debate").
323. Based on a search of Westlaw's Supreme Court database for "markup," "markup," or "mark up."
324. Mohamad v. Palestinian Auth., 132 S. Ct. 1702, 1710 (2012); Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 130 S. Ct. 1605, 1619 n.14 (2010); Virginia v. Maryland, 540 U.S. 56, 78 (2003). But see Jerman, 130 S. Ct. at 1627 (Scalia, J., concurring in part and concurring in the judgment) ("Is the conscientious attorney really expected to dig out such mini-nuggets of 'congressional intent' from floor remarks, committee hearings, committee markups, and committee reports covering many different bills over many years? When the Court addresses such far-a field legislative history merely 'for the sake of completeness,' it encourages and indeed prescribes such wasteful over-lawyering." (citation omitted)).
325. Judge Patricia Wald noted this problem three decades ago.
326. Patricia M. Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 Iowa L. Rev. 195, 202 (1983)
327. ("[S]ome of the more diffused, less critical parts of the process-hearings and debates-are transcribed ... for later use by the courts; some of the chief moments of decision-committee markups and conference committee proceedings-are not.").
328. See supra note 193 and accompanying text.
329. Nourse has made a similar point about purposivists in her argument that judges should pay more attention to the internal, formalized rules of Congress. Nourse, supra note 101, at 87 (arguing that purposivists "are as oblivious of congressional rules as are textualists" and so do not use legislative history well or correctly).
330. James J. Brudney, Below the Surface: Comparing Legislative History Usage by the House of Lords and the Supreme Court, 85 Wash. U. L. Rev. 1, 58-63 (2007) (arguing that the debate over legislative history seems better focused on distinguishing among different kinds of legislative history than the "all or nothing" debate that continues in the U.S. Supreme Court).
331. Brudney, supra note 221, at 56.
332. Accord Katzmann, supra note 53, at 694.
333. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
334. United States v. Mead Corp., 533 U.S. 218 (2001).
335. Cass R. Sunstein, Chevron Step Zero, 92 Va. L. Rev. 187, 240-242 (2006) (discussing the application of the so-called "major questions" doctrine in FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000)).
336. Henry P. Monaghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1 (1983).
337. See Chevron, 467 U.S. at 865-66.
338. Cass R. Sunstein, Law and Administration After Chevron, 90 Colum. L. Rev. 2071, 2086-2087 (1990).
339. See Strauss, supra note 78, at 1121.
340. See, e.g., United States v. Mead Corp., 533 U.S. 218, 239-61 (2001) (Scalia, J., dissenting); Vermeule, supra note 24, at 183-229.
341. John F. Duffy, Administrative Common Law in Judicial Review, 77 Tex. L. Rev. 113, 197-198 (1998) (criticizing the Chevron doctrine as violating the Administrative Procedure Act because it allows agencies de facto rulemaking power);
342. Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 Colum. L. Rev. 452, 525 (1989) (critiquing Chevron for violating separation of powers principles).
343. John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1 (2001) (arguing that courts act as faithful agents even when they overturn agency interpretations if doing so is based on legislative, not judicial, commands);
344. Jerry L. Mashaw, Norms, Practices, and the Paradox of Deference: A Preliminary Inquiry into Agency Statutory Interpretation, 57 Admin. L. Rev. 501 (2005) (suggesting that courts act as faithful agents when they avoid political processes and defer to those connected to political processes);
345. Thomas W. Merrill, Essay, Textualism and the Future of the Chevron Doctrine, 72 Wash. U. L.Q. 351, 353 (1994) (noting that courts act as faithful agents of the legislature when they seek to determine the meaning of a statute, but as faithful agents of agencies when the statute is ambiguous);
346. Deborah N. Pearlstein, After Deference: Formalizing the Judicial Power for Foreign Relations Law, 159 U. Pa. L. Rev. 783, 827-828 (2011) (arguing that courts act as faithful agents only if they are following legislative intent to delegate).
347. Lisa Schultz Bressman, Essay, Reclaiming the Legal Fiction of Congressional Delegation, 97 Va. L. Rev. 2009, 2025-2034 (2011) (reviewing the academic literature and demonstrating consensus).
348. Cass R. Sunstein, Beyond Marbury: The Executive's Power to Say What the Law Is, 115 Yale L.J. 2580, 2602-2610 (2006).
349. See, e.g., Breyer, supra note 19, at 118-19.
350. Specifically, we asked eighteen questions with zero to nine subparts each; we double-counted Q15, as discussed in note 84, above.
351. See Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).
352. 336. See supra Part I.A.
353. We believe the true numbers are actually lower with respect to familiarity with Skidmore and Mead and were inflated by the way in which we initially asked the question. On the first two days of interviews, we asked respondents if they were familiar with any of the three doctrines. Eight answered they were familiar with all three. After that point, however, we asked the questions differently: we asked only about Chevron, and then awaited respondents' answers before asking about Skidmore, and then in turn asked about Mead. After we made that change, very few respondents told us they were familiar with Skidmore or Mead.
354. Fifteen percent of respondents said that Skidmore played a role in the drafting process and 10% said Mead did. However, these responses are likely inflated for the same reasons stated above in note 337. Q21.
355. Q66. As one respondent put it, when answering a question on a different topic in the survey: "Each of the Justices is mostly consistent, but they each have their own inconsistencies ... . Chevron is fairly settled." Id.
356. The focus on specificity obviously runs in two directions. On the one hand, thirty-two respondents told us that Chevron incentivizes them to be more specific because they want to control the agency. See, e.g., Q21 ("We've had to be more specific because when you leave ambiguities, agencies will run with it," and "[i]f an agency has shown from its past behavior that it won't do what you want, you put it in black and white."). On the other hand, nine respondents (including one of the thirty-two mentioned above) made comments like "Chevron sometimes gives us comfort when things are ambiguous because we can't get more clarity." Id.
357. Mayo Found. for Med. Educ. & Research v. United States, 131 S. Ct. 704, 709, 711, 716 (2011) (deferring to agency interpretation of "student" for purposes of the exclusion from taxation of any "service performed in the employ of ... a school, college, or university ... if such service is performed by a student who is enrolled and regularly attending classes at [the school]" (omissions in original) (quoting 26 U.S.C. § 3121(b)(10)) (internal quotation marks omitted)); Fed. Express Corp. v. Holowecki, 552 U.S. 389, 395, 403 (2008) (deferring to agency interpretation of "charge" under ADEA requirement that "[n]o civil action ... be commenced ... until 60 days after a charge alleging unlawful discrimination has been filed" (quoting 29 U.S.C. § 626(d)) (internal quotation mark omitted)); Zuni Pub. Sch. Dist. No. 89 v. Dep't of Educ., 550 U.S. 81, 88-89, 100, app. B at 102 (2007) (deferring to agency interpretation of "percentile" for purposes of federal education law directing that "local educational agencies with per-pupil expenditures or revenues above the 95th percentile or below the 5th percentile of such expenditures or revenues in the State" be disregarded (quoting 34 C.F.R. § 222.162) (internal quotation marks omitted)).
358. See United States v. Mead Corp., 533 U.S. 218, 239 (2001) (Scalia, J., dissenting).
359. See id. at 236-37 (majority opinion).
360. See, e.g., Barron & Kagan, supra note 33, at 212-13.
361. See Sunstein, supra note 322, at 198-206 (summarizing the debate between Justices Scalia and Breyer over these doctrines).
362. Six respondents answered "other."
363. See Barnhart v. Walton, 535 U.S. 212, 219-22 (2002).
364. See Bressman, supra note 75, at 582.
365. See Epstein & O'Halloran, supra note 49, at 121-62.
366. ("We usually consult with the agency when drafting. We listen to them and make sure they can do what they need to do. We have faith in the professionals to give us technical advice on drafting. They can be an independent voice to help you draft it the right way.") Of course, our drafters also told us they sometimes avoided the agency, particularly when they were aware of a conflicting position. See, e.g., id. ("There are some pieces of legislation that you will never attempt to move to the floor without consulting the agency first ... but if the agency has a different view from my boss, I don't care what the agency thinks.").
367. (stating that the party of the President matters "if regulations are expected to be implemented fairly quickly").
368. Compare, for instance, one response to Question 54 ("Most people take a longer view that there are statutes that will outlast a particular administration."), with another response to the same question ("If you don't think about the next administration, you're a fool. But drafters often ignore this because they want to give their administration what it wants."). We cannot make strong claims about how the different signals of delegation might work together. Although we asked about each of the different signals in separate questions, we did not directly ask, for example, whether longstanding interpretation alone (Barnhart) would be a sufficient signal in the absence of the Mead factor. It is our impression that Mead's signal alone would be sufficient for our respondents, but we cannot offer hypotheses about the others.
369. See Eskridge & Baer, supra note 50, at 1090, 1097-1120.
370. See, e.g., id. ("For example, with criminal statutes, it is unlikely that they would expect federal agencies to be involved in interpreting."); id. ("In criminal law, we are more specific, whereas in complex areas like healthcare we give more discretion."); id. ("In the criminal code there is less deference than others-more constitutional law coming into play.").
371. See, e.g., id. ("In dealing with foreign affairs, we give a lot of deference to the Department of State because what you don't want to do is undo centuries of foreign affairs law."); id. ("The degree of deference definitely depends on which agency-for example, national security, we defer much more, we give them much broader leeway."); id. ("Homeland security issues get more gap-filling authority.").
372. Id. ("Tax law and criminal law are two very specific areas where it's almost required by court precedent that we be very specific."); id. ("In the tax world, a lot of deference goes to prior IRS interpretations.").
373. Of the remaining respondents, eight told us they were only familiar with one subject area.
374. See Eskridge & Baer, supra note 50, at 1097-1120.
375. Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 468 (2001) (Scalia, J.).
376. For a sampling of articles discussing and debating the major questions doctrine,
377. Lisa Schultz Bressman, Deference and Democracy, 75 Geo. Wash. L. Rev. 761, 776-779 (2007);
378. Jody Freeman & Adrian Vermeule, Massachusetts v. EPA: From Politics to Expertise, 2007 Sup. Ct. Rev. 51, 76-78;
379. John F. Manning, The Nondelegation Doctrine as a Canon of Avoidance, 2000 Sup. Ct. Rev. 223; and Sunstein, supra note 332, at 2605-10.
380. See, e.g., Nourse & Schacter, supra note 10, at 576-77.
381. ("Sometimes because of controversy, we can't say what to include- either complexity or controversy."); id. ("But sometimes you have to punt."); id. (stating that drafters might leave ambiguous language "[w]hen we can't reach agreement").
382. For excellent discussions of the various views and illustrations of the competing positions
383. Nina A. Mendelson, Chevron and Preemption, 102 Mich. L. Rev. 737, 740-742 (2004);
384. Catherine M. Sharkey, Essay, What Riegel Portends for FDA Preemption of State Law Products Liability Claims, 103 Nw. U. L. Rev. 437, 444 (2009) (arguing that courts should consider agency input on the preemption question);
385. Ernest A. Young, Executive Preemption, 102 Nw. U. L. Rev. 869, 870-871 (2008).
386. Catherine M. Sharkey, Products Liability Preemption: An Institutional Approach, 76 Geo. Wash. L. Rev. 449, 455 (2008) (noting that the Court "has been less than forthcoming about its reliance upon the views of the agency" in preemption cases).
387. See City of Arlington, Tex. v. FCC, 668 F.3d 229, 248 (5th Cir.), cert. granted, 133 S. Ct. 524 (2012) (No. 11-1545) (presenting the question whether Chevron deference applies to an agency's determination of its own jurisdiction).
388. See 529 U.S. 120, 131-36 (2000).
389. See 546 U.S. 243, 267-69 (2006).
390. Jody Freeman & Jim Rossi, Agency Coordination in Shared Regulatory Space, 125 Harv. L. Rev. 1131 (2012);
391. Jacob E. Gersen, Overlapping and Underlapping Jurisdiction in Administrative Law, 2006 Sup. Ct. Rev. 201, 212;
392. Eric Biber, The More the Merrier: Multiple Agencies and the Future of Administrative Law Scholarship, 125 Harv. L. Rev. F. 78, 82-83 (2012), http://www.harvardlawreview.org/issues/125/march12/forum_868.php (responding to Freeman & Rossi, supra);
393. Keith Bradley, The Design of Agency Interactions, 111 Colum. L. Rev. 745, 750-756 (2011);
394. Jason Marisam, Duplicative Delegations, 63 Admin. L. Rev. 181, 187-190 (2011).
395. Abbe R. Gluck, Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond, 121 Yale L.J. 534, 565-566 (2011);
396. Philip J. Weiser, Chevron, Cooperative Federalism, and Telecommunications Reform, 52 Vand. L. Rev. 1, 3 (1999).
397. 499 U.S. 144, 151-57 (1991).
398. In seeking to explain why delegation to multiple agencies occurs, Freeman and Rossi were interested in the role of committees, but did not explore whether jurisdiction might help answer the doctrinal question. Freeman & Rossi, supra note 403, at 1139 ("Perhaps such delegations [to multiple agencies] are best explained as by-products of the congressional committee system ... . This view predicts that, whenever the assignment of bureaucratic authority is up for grabs, committees will work hard to ensure that their agencies get some piece of the pie.").
399. ("It depends entirely on the committee of jurisdiction: the committee wants the agency over which they have jurisdiction to have the lead: this is a territorial thing because we have power over them.").
400. A few respondents (seven or 5% of all respondents) emphasized that one reason drafters try to signal in this manner is because they understand the doctrinal and pragmatic confusion that may otherwise result: "When there's an ambiguity, we try to clarify or you end up with each agency claiming Chevron deference and with a circuit split." Id. Another put it more vividly as trying to avoid "some kind of food fight."
401. Freeman & Rossi, supra note 403, at 1155-81.
402. Id. at 1158 (Endangered Species Act); id. at 1168 (Dodd-Frank Act).
403. Id. at 1168 n.172 (citing Curtis W. Copeland, Cong. Research Serv., R41472,
404. Rulemaking Requirements and Authorities in the Dodd-Frank Wall Street Reform and Consumer Protection Act 6-7 (2010), available at http://www.llsdc.org/attachments/files/255/CRS-R41472.pdf).
405. Copeland, supra note 416, at 7-8 (listing examples of such provisions).
406. A Westlaw search of the U.S. Code on March 19, 2013, of the word combination "'shall jointly' /p 'issue'" returned thirty results, of which we determined that twelve involved multiple agencies issuing rules or regulations under a single statute. See, e.g., 7 U.S.C. § 8411(d) (2011) (stating that "the Secretary of Health and Human Services and the Secretary of Agriculture shall jointly issue regulations" regarding certain overlap agents and toxins); 16 U.S.C. § 460q-1(e) ("Prior to the approval of any zoning ordinance for the purposes of this section, the Secretary of the Interior and the Secretary of Agriculture shall jointly issue regulations, which may be amended from time to time, specifying standards for such zoning ordinances."). A search on March 22, 2013, of the word combination "'shall jointly' /p 'adopt'" and "'shall jointly' /p 'prescribe'" returned five and twenty-nine results, respectively, of which we determined three and seventeen, respectively, to involve multiple agencies prescribing or adopting rules or regulations under a single statute. See, e.g., 15 U.S.C. § 78c(a)(4)(F) ("The [Securities and Exchange] Commission and the Board of Governors of the Federal Reserve System shall jointly adopt a single set of rules or regulations to implement the exceptions in subparagraph (B)."); 15 U.S.C. § 1269(b) ("The Secretary of the Treasury and the [Consumer Products Safety] Commission shall jointly prescribe regulations for the efficient enforcement of the provisions of section 1273 of this title ... ."). A search on March 18, 2013, of the word combination "'in consultation with' /p 'issue'" returned seventy-five results, of which we determined thirty-eight to involve multiple agencies issuing rules or regulations under a single statute. See, e.g., 12 U.S.C. § 5709 (providing that "[t]he Secretary [of the Treasury], in consultation with the Administrator of the Small Business Administration, shall issue such regulations and other guidance as the Secretary determines necessary" to implement the statute, which provided for the State Small Business Credit Initiative); 16 U.S.C. § 1385(f) (stating that "[t]he Secretary [of Commerce], in consultation with the Secretary of the Treasury, shall issue regulations to implement" the Dolphin Protection Consumer Information Act). A search on March 25, 2013, of the word combinations "'in consultation with' /p 'adopt'" and "'in consultation with' /p 'prescribe'" returned thirty-two and 155 results, respectively, of which we determined six and fifty-nine to involve multiple agencies adopting or prescribing rules or regulations under a single statute. See, e.g., 16 U.S.C. § 1371(a)(3)(A) ("The Secretary [of the Interior], on the basis of best scientific evidence available and in consultation with the Marine Mammal Commission, is authorized and directed, from time to time, ... to adopt suitable regulations ... ."); 49 U.S.C. § 32304(h) ("In consultation with the Secretaries of Commerce and the Treasury, the Secretary of Transportation shall prescribe regulations necessary to carry out this section."). A search on March 28, 2013, of the word combination "'in coordination with' /p 'issue'" returned twenty-seven results, of which we determined three to involve multiple agencies issuing rules or regulations under a single statute; a search on March 25, 2013, of the word combinations "'in coordination with' /p 'adopt'" and "'in coordination with' /p 'prescribe'" returned three and thirteen results, respectively, of which none and six, respectively, involved agencies adopting or prescribing rules or regulations under a single statute. See, e.g., 12 U.S.C. § 5365(i)(2)(C) ("Each Federal primary financial regulatory agency, in coordination with the Board of Governors and the Federal Insurance Office, shall issue consistent and comparable regulations to implement this paragraph ... ."); 49 U.S.C. § 21106(c) ("[T]he Secretary of Transportation, in coordination with the Secretary of Labor, shall prescribe regulations to implement subsection (a)(1) to protect the safety and health of any employees and individuals employed to maintain the right of way of a railroad carrier that uses camp cars ... .").
407. Searching for federal court decisions using the phrase "shall jointly" and citing "467 U.S. 837" (Chevron) in the Westlaw federal courts database, we found four results, none of which applied "shall jointly" in the context of two agencies and a single statute. See Metro. Hosp., Inc. v. U.S. Dep't of Health & Human Servs., 702 F. Supp. 2d 808, 812, 826 (W.D. Mich. 2010) ("The parties shall jointly file a proposed Judgment ... ." (capitalization altered)), rev'd on other grounds, Nos. 11-2465, 11-2466, 2013 WL 1223307 (6th Cir. Mar. 27, 2013); Anderson v. U.S. Dep't of Hous. & Urban Dev., No. 06-3298, 2010 WL 1407983, at *1, *6 (E.D. La. Mar. 25, 2010); Graboski v. Guiliani, 937 F. Supp. 258, 261, 268 (S.D.N.Y. 1996), aff'd sub nom. Castellano v. City of New York, 142 F.3d 58 (2d Cir. 1998); Hughes Aircraft Co. v. United States, 29 Fed. Cl. 197, 223, 229 (1993). Searching for federal court decisions involving the phrase "in consultation with" and citing "467 U.S. 837" (Chevron) in the Westlaw federal courts database, we found 201 cases, a large number of which involved consultation requirements but none of which involved the question of which agency was the lead agency, most likely because the "in consultation" signal makes Congress's intended lead-agency designee clear to courts when it is considered. See, e.g., Nat'l Ass'n of Homebuilders v. Defenders of Wildlife, 551 U.S. 644, 662 (2007) (noting that the Endangered Species Act provides that "'[e]ach Federal agency shall, in consultation with and with the assistance of the Secretary [of the Interior], insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize' endangered or threatened species or their habitats," and describing the "no-jeopardy requirement" as "imperative" (first alteration and omission in original) (quoting 16 U.S.C. § 1536(a)(2)); Fed. Energy Regulatory Comm'n v. Mississippi, 456 U.S. 742, 751 (1982) (noting that the Public Utility Regulatory Policies Act of 1978 "directs FERC, in consultation with state regulatory authorities, to promulgate 'such rules as it determines necessary to encourage cogeneration and small power production'"); Nat'l Petrochem. & Refiners Ass'n v. EPA, 630 F.3d 145, 149 n.14 (D.C. Cir. 2010) (noting that the Energy Independence and Security Act of 2007 authorizes the EPA Administrator, "in consultation with the Secretaries of the Agriculture and Energy Departments," to waive certain provisions of the Act); see also Cal. Wilderness Coal. v. U.S. Dep't of Energy, 631 F.3d 1072, 1079-80, 1087-89 (9th Cir. 2011) (interpreting "consultation" within the context of the Energy Policy Act of 2005, which provides that the Secretary of Energy "in consultation with affected States, shall conduct a study of electric transmission congestion," as requiring more than response to comments submitted by the states, and collecting cases interpreting "consultation" in other statutes in a similar fashion). Our findings on this point thus might not change the result in any prior case, but they do suggest that drafters use certain linguistic conventions to designate relationships between or among agencies and that these conventions might be relevant to courts going forward, particularly as multiple-agency statutes proliferate.
408. 546 U.S. 243, 265 (2006) (alteration and omission in original) (emphasis added) (quoting 42 U.S.C. § 290bb-2a).
409. See H.R. 18583, 91st Cong. (1970); H.R. Rep. No. 91-1444, pt. 1 (1970), reprinted in 1970 U.S.C.C.A.N. 4566.
410. Staff of H. Comm. on Interstate & Foreign Commerce, 91st Cong., Interim Report on Activities Through August 14, 1970, at 1, 3, 6 (Comm. Print 1970).
411. See, e.g., United States v. Mead Corp., 533 U.S. 218, 243 (Scalia, J., dissenting); see also Barron & Kagan, supra note 33, at 225-34.
412. Empirical studies of Mead so suggest.
413. Bressman, supra note 50; Adrian Vermeule, Introduction: Mead in the Trenches, 71 Geo. Wash. L. Rev. 347 (2003).
414. See Bressman, supra note 75, at 599-606.
415. 550 U.S. 81, 90-91 (2007).
416. See id. at 106 (Stevens, J. concurring); id. at 107 (Kennedy, J., concurring); id. at 116-17, 121-22 (Scalia, J., dissenting).
417. See id. at 89-91 (majority opinion).
418. See id. at 90, 100.
419. See id. at 106 (Stevens, J., concurring); id. at 107 (Kennedy, J., concurring).
420. See id. at 108, 113-16 (Scalia, J., dissenting). Justice Souter joined only Part I of Justice Scalia's dissent. See id. at 123 (Souter, J., dissenting).
421. Courts also might leave questions of whether the agency followed the instructions in the legislative history for "reasonableness" review under Step Two or arbitrary and capricious review.
422. Abbe R. Gluck, Federalism from Federal Statutes: Health Reform, Medicaid, and the Old-Fashioned Federalists' Gamble, 81 Fordham L. Rev. 1749, 1750-1751 (2013) (explaining how the federalism canons reflect a modern understanding of how the post-New Deal Congress interacts with the states).
423. See Breyer, supra note 19, at 92.
424. Katzmann, supra note 53, at 670 ("When courts construe statutes in ways that respect what legislators consider their work product, the judiciary promotes comity with the first branch of government.").
425. See supra note 14 and accompanying text.
426. Erie R.R. v. Tompkins, 304 U.S. 64 (1938).
427. Consider, for example, the common textualist justification for canons that go back hundreds of years: "[T]heir long pedigree makes it difficult to dismiss their use as fundamentally inconsistent with the limits that the Constitution imposes upon the exercise of judicial power." Barrett, supra note 22, at 128; see also Gluck, Federal Common Law, supra note 165 (discussing canons as federal common law even after Erie).
428. For the pre-Erie conception of the common law as something to be discovered, not created, see Swift v. Tyson, 41 U.S. (16 Pet.) 1, 18-19 (1842).
429. Compare Scalia & Garner, supra note 13, at 51, with id. at 61 (omission in original) (internal quotation mark omitted).
430. John F. Manning, Second-Generation Textualism, 98 Calif. L. Rev. 1287, 1306-1307 (2010) (explaining why textualism's recent emphasis on the constitutional argument against legislative history puts the theory "on firmer ground").
431. For elaboration of this question, see generally Gluck, Federal Common Law, supra note 165.
432. Mashaw, supra note 162, at 1686.
433. We have some doubts about this conclusion, which we present in the companion Article.
434. For example, about 70% of those who knew the federalism canons knew the rule against superfluities-70% for preemption, 71% for federalism, as compared to 38% and 52% of those who did not know the federalism canons (at 99% confidence for the first and 95% for the second using the super population assumption; 99% confidence for both using a population of 650 counsels), and almost half of the respondents who knew the federalism canons knew expressio unius, although only the preemption findings on expressio unius were statistically significant (at 95% confidence using the super population assumption; 99% confidence using a population of 650 counsels). Of those who knew Chevron, 68% knew the rule against superfluities (at 99% confidence using both populations), and 49% knew expressio unius (95% confidence using the super population assumption; 99% confidence using a population of 650 counsels).
435. Where significant, it was at the 95% confidence level. All statistics were computed from cross tabs of the demographic characteristics (i.e., age or experience) and the responses to each survey question, without other controls. Significance for the super population assumption was computed using Fisher's exact test and Pearson's chi-squared test. Significance for the population of 650 was computed using a corrected Pearson's chi-squared test.
436. Q8; Q17; Q20; Q45a-g (omitting one respondent who was currently in law school). We note that the ranking of law schools attended generally had no significant impact on the results, whether measuring the top fourteen law schools versus the rest or the top fifty versus the rest (omitting from the calculation the many respondents for whom we did not have law school information). Based on the information we have, however, those who attended elite schools were more likely to know in pari materia and expressio unius, and to say they drafted in accordance with the rule against superfluities.
437. When asked by respondents, we defined "legislation or statutory interpretation course" to cover only those subjects or legislative drafting or the legislative process. We did not include statute-based courses such as tax law (which several respondents asked about) in that number.
438. 457. Q9; Q20; Q21; Q35; Q45a, b, d; Q68a, d.
439. Ruth Bader Ginsburg & Peter W. Huber, The Intercircuit Committee, 100 Harv. L. Rev. 1417, 1431-1432 (1987) (suggesting a congressional committee to propose minor changes to ambiguous legislation and noting similar proposals by Judge Friendly and Justice Stevens).
440. See Katzmann, supra note 53, at 686-93 (describing a pilot project for transmitting D.C. Circuit statutory interpretation opinions to the House of Representatives); Nourse & Schacter, supra note 10, at 621-22.
441. See Ginsburg & Huber, supra note 458, at 1426 ("Nonuniform application of national statutes, most especially those intended for the micromanagement of human affairs, is unsettling and on balance undesirable. We neither want nor need the reflective fluidity of judge-made common law; we need the definition, discipline, and precision of a well-written statute."); see also id. at 1417.
442. See Katzmann, supra note 53, at 693.
443. See Rosenkranz, supra note 15, at 2088, 2143-48.
444. See supra notes 282, 312, and accompanying text.
445. See Morgan, supra note 166, at 12-15, 331; Brest, supra note 166, at 587-89.
446. See Bressman & Gluck, supra note 8.
447. Shirley S. Abrahamson & Robert L. Hughes, Shall We Dance? Steps for Legislators and Judges in Statutory Interpretation, 75 Minn. L. Rev. 1045, 1059-1064 (1991) (describing similar offices in several states).
448. See Ginsburg & Huber, supra note 458, at 1432; Katzmann, supra note 53, at 687 (noting that Justice Stevens supported a similar proposal).
449. Scalia & Garner, supra note 13, at 245 (calling this question "academic" on the ground that "[a]part from the rule-of-lenity abridgments ..., the only common enactments directing judicial interpretation that we are aware of are those prescribing that the provisions of a statute 'are to be liberally construed'").
450. For examples of the Court's reliance on savings clauses, see Chamber of Commerce v. Whiting, 131 S. Ct. 1968, 1973 (2011); and Williamson v. Mazda Motor of Am., Inc., 131 S. Ct. 1131, 1135-36 (2011). For examples of reliance on severability clauses, see Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2607 (2012) ("[The Medicaid statute] includes a severability clause confirming we need go no further."); and Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686 (1987). For examples of reliance on preemption clauses, see Nat'l Meat Ass'n v. Harris, 132 S. Ct. 965, 970 (2012); Whiting, 131 S. Ct. at 1977. ERISA's savings clause has been cited in at least twenty-six cases in the U.S. Supreme Court, fifty-three cases in state supreme courts, and 352 cases in the courts of appeals. Its preemption clause has been cited at least fifteen times in the Supreme Court, eighty times in state supreme courts, and 349 times in the federal courts of appeals. These numbers are derived from a Westlaw KeyCite search of 29 U.S.C. § 1144, limited to terms "savings" or "preemption clause." For elaboration of this point, see Gluck, Federal Common Law, supra note 165, at 801-04.
451. 29 U.S.C. § 1144(b)(2)(A) (2011).
452. Rosenkranz, supra note 15 (arguing that Congress could legislate interpretive canons that are not constitutionally required).