Today, statutes make up the bulk of the relevant law heard in federal courts and arguably represent the most important source of American law. The proper means of judicial interpretation of those statutes have been the subject of great attention and dispute over the years. This book provides new insights into the theory and practice of statutory interpretation by courts.
Cross offers the first comprehensive analysis of statutory interpretation and includes extensive empirical evidence of Supreme Court practice. He offers a thorough review of the active disputes over the appropriate approaches to statutory interpretations, namely whether courts should rely exclusively on the text or also examine the legislative history. The book then considers the use of these approaches by the justices of the recent Rehnquist Court and the degree to which they were applied by the justices, either sincerely or in pursuit of an ideological agenda.
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About the Author
Frank B. Cross is the Herbert D. Kelleher Centennial Professor of Business Law at the University of Texas. He is the author of Decision Making in the U.S. Courts of Appeals (Stanford, 2007), and The Failed Promise of Originalism (Stanford, 2012), among other books.
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The Theory and Practice of Statutory Interpretation
By FRANK B. CROSS
STANFORD UNIVERSITY PRESSCopyright © 2009 Board of Trustees of the Leland Stanford Junior University
All right reserved.
Chapter OneThe Goal of Statutory Interpretation
The goal of statutory interpretation should be central to understanding its theory and practice. Unfortunately, there is no consensus about the proper goal of this interpretive enterprise, either politically or legally. Fortunately, consensus is unnecessary for purposes of this book. However, it remains important to understand the goal of statutory interpretation in order to evaluate the different theories set forth in the book. Practices and consequences cannot be appreciated in the abstract, especially given the concern about unconstrained willful ideological discretion of the judiciary. Consequently, this chapter sets forth, relatively briefly, the theories about the appropriate purpose of judicial interpretation of statutes.
The judicial power, including that of statutory interpretation, derives from the Constitution. The Constitution, however, does not provide much guidance on the relevant question. It simply "leaves statutory interpretation to be resolved by the 'judicial power' without specifying how that interpretation should be conducted." No provision "sets out explicit instructions to judges about the limits of interpretiveflexibility." The Constitution leaves us with only the broad principle that statutory interpretation should be a "judicial" exercise, which leaves considerable discretion about the proper nature of judging the application of statutes in individual cases. Various leading scholars have claimed that their proposed interpretive method is constitutionally inspired, or even required, but they have reached this same conclusion in support of different approaches. While some substantive interpretive canons, discussed in Chapter 4, have an apparent constitutional provenance, there is no accepted general thesis of constitutionally directed statutory interpretation.
Historically, the dispute over the goal of statutory interpretation has largely been drawn between those who believe that judges should hew closely to their assessment of what the legislature intended, based upon all available evidence of that intent, and those who think that the purpose is simply to give effect to the statutory language adopted by the legislature and eschew consideration of extrinsic evidence about the legislature's intent. This dispute is closely bound up with the interpretive theories of each school, and it will be explicated further in succeeding chapters. Those who believe that the purpose of the process is to discern intent commonly argue for consideration of legislative history, while those who would limit interpretation to language are of the textualist school. A third purpose has also emerged, which contends that interpretation should be guided by a concern for the best policy consequences under the circumstances. This is generally considered the pragmatic approach to interpretation, which uses its own discretionary standards.
The debate over the proper purpose of statutory interpretation has lasted for many decades. The Supreme Court has cycled among different purposes at different times. While one approach or another has gained ascendancy for a time, it has eventually lost this position. None of the theories have knocked out competing theories. For most of our history, the different theories have coexisted. This book does not purport to resolve the proper theoretical basis for statutory interpretation, but it is important to understand these theories, as their application is examined and evaluated.
This introductory chapter first sets forth the overall theoretical construct for statutory interpretation disputes. The interpretive role of courts should be seen, I contend, as an exercise of power delegated by the legislature. The courts should view themselves as agents who do the bidding of Congress in their interpretations of congressional statutes. Next, I review the major interpretive theories and how they may fit within this delegation scheme. Finally, I summarize the overriding issue of faithless judicial ideological decision making, which pervades the debate over interpretive methods and is discussed throughout the book.
Statutory Interpretation as Delegated Power
Before examining the competing purposes for statutory interpretation, it is important to address its context. Congress passes statutes but does not apply them to individual cases; the judiciary is in charge of that task in our constitutional model. In statutory interpretation cases, judges are applying the legislation passed by Congress. Consequently, judges are often viewed as fiduciaries, or agents, of the legislature. Thus, "[m]ost academic theories of statutory interpretation, and perhaps all judicial ones, see judges as agents of Congress." This is the theory of legislative supremacy in the statutory sphere.
Legally, judges are not true delegatees but have their own independent constitutional interpretive authority that is not derivative of the legislature. The Constitution invests the judicial power in the judiciary, and this serves as its authority to interpret statutes when deciding cases. However, this declaration begs the question of what the "judicial power" means. The judicial power is not that of arbitrary decision making nor that of legislating. The delegation theory suggests that viewing themselves as legislative agents when interpreting statutes is the proper understanding of how judicial power should be exercised.
In this schema, the legislature is the principal and the courts are its agent, analogous to private agency relationships. A corporation, for example, relies on individual officers and employees to carry out its business. The law recognizes the corporation as a principal and the officers as its agents, who are delegated authority to advance the interests of the corporate principal. Because the corporation and its directors are unable themselves to make every day-to-day managerial decision to carry out their broad business policies, they provide this authority to others through delegation. This delegation may provide more or less discretion to an agent. The agent may have broad authority to take action, as in the case of a legal power of attorney, or quite limited authority to take only a given action or actions below a certain monetary threshold. Moreover, there is some residuum of authority that cannot be delegated to officers but must be reserved for the board of directors, under corporate law.
Analogously, the legislature is like a board of directors that sets national policy but delegates its implementation. The executive branch is somewhat like the officers of the corporation, in its actions applying the law. The federal judiciary has a separate constitutional authority, but its ability to exercise that authority is often governed by the legislature, which has some jurisdictional control and, more significantly, adopts the laws that the judiciary is to interpret. The legislature lacks the resources to control the case-by-case interpretation and application of those laws, and this is the judicial power delegated to the judiciary by statutes.
William Eskridge has argued that legislation by its very nature "delegates policy-making authority to agencies and courts." A major article by Matthew Stephenson examines the delegation issue in an elaborate form. He reviews the evidence of delegation and specifically analyzes why legislatures delegate some questions to courts but others to agencies of the executive branch and notes that courts exhibit more stability over time and more ideological heterogeneity across issues. Of course, courts have the authority to review agency actions, so any delegation to agencies ultimately transfers some authority to the courts. Indeed, Congress uses courts to monitor and control abuses of its delegation to agencies though legislation such as the Administrative Procedures Act.
The delegation context has been extensively explored in the context of administrative agencies. One major theoretical construct is based on the assumption that constituents care less about the details of policy than about their effectiveness. Legislators will delegate more authority to bureaucrats, on this theory, when they believe that bureaucratic expertise will yield better policy outcomes. Congress "often lacks the knowledge it needs to obtain desired policy outcomes." Because Congress has such a broad agenda and legislative action is so costly, it is difficult for the legislature to monitor and modify its statutes in light of their practical effect in particular applications. Agencies, though, have a better ability to perform this ongoing function. Although ideologically the agency will not align perfectly with the legislature, the common interest in successful policy outcomes may overcome any such differences.
Epstein and O'Halloran's classic work on such agency delegation notes that a reason "that bureaucracies are created in the first place is to implement policies in areas where Congress has neither the time nor the expertise to micromanage policy decisions." They hypothesize that legislators will delegate more where a policy area is complex and informationally intensive. Epstein and O'Halloran then constructed a quantitative index for the extent of statutory delegation to federal agencies. They analyzed the extent of degrees of discretion in different statutes over time and found that the magnitude of discretionary delegation to agencies varied slightly with the executive branch's political alignment and that greater delegation existed in complex areas.
As Stephenson notes, the decision to delegate to courts parallels that of agency delegation, though his theory is not complete. Some have theorized that delegation to courts is riskier for Congress than delegation to agencies, because judicial independence gives the legislature less control over judicial decisions. In some ways, delegation to courts may be less risky, though, because the judiciary contains many different judges with many different ideological preferences, in contrast to an executive branch largely under the control of a single president. Moreover, judicial decisions are made on a case-by-case basis rather than a top-down determination by a national agency in the form of a rule. The advantages of this process are discussed in Chapter 5. In any event, this book is not about the delegation choice of agencies versus courts. It is about the legislative decision to delegate decision-making discretion to courts by using more ambiguous statutory language or leaving gaps in the statute to be filled by judicial application. The next section describes the distinct types of legislative delegation.
Types of Delegation
The legislative delegation to courts takes two distinct forms. The first might be called "background delegation." No matter how precisely Congress may attempt to draft, it is humanly impossible to foresee every future circumstance. H. L. A. Hart suggested that hard cases arose from the legislature's "inability to anticipate" future circumstances. Judge Posner has noted that the realities of the legislative process make it unrealistic for Congress to consider "fully the potential application of their words to novel settings." James Madison himself wrote that "[a]ll new laws, though penned with the greatest technical skill and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal." Some cases will arise that fall through the cracks, or interstices, of the statutory language. Statutes remain on the books indefinitely while society changes around them. They will constantly be applied to new circumstances which may not even have existed at the time of their passage. With these new circumstances not being clearly governed by the statutory language, the court must nevertheless somehow interpret the language to rule on the case. The delegation construct means that the court should do so with an eye to what the legislature might have intended for the case, had it known of those circumstances.
The second form might be called "direct delegation." This involves the legislature affirmatively delegating decision-making authority to the courts. In this case, the legislature purposely leaves issues unresolved in the statutory language, issues that must be settled by courts applying that language to particular disputes. Such direct delegation may arise for a variety of reasons. It may be that Congress could not reach agreement on precise language and, rather than abandon the legislation in toto, chose to leave the statutory lacuna. The Supreme Court recently concluded that in passing the 1991 Civil Rights Act, the members of Congress simply "agreed to disagree about whether and to what extent the Act applies to preenactment conduct." Hence, they left the issue unresolved for the courts to settle. Alternatively, it may be that Congress thought that government policy reflected in statute could be better made by the case-by-case development of law than by setting a "one size fits all" uniform national statutory rule. Cynics might suggest that such broad direct delegation reflects "lack of will: Congress may recognize a potentially divisive issue but decide to finesse the issue with ambiguous or incomplete language." Some consider this an inappropriate form of delegation, an attempt to escape accountability for legislative determinations. In this event, greater interpretive discretion suits the ends of Congress. Yet another reason might be the enlistment of court power in monitoring the actions of the executive branch.
An obvious example of such direct delegation is found in the 1980 adoption of the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), the federal Superfund statute. This law, of great economic and environmental importance, was hastily adopted by Congress and contained many unresolved gaps in application. One plain example of delegation was the question of the joint and several liabilities of CERCLA defendants. The original bill provided for such liability, but the provision was deleted from the final bill. The deletion was not accompanied by an alternative standard, though, and Congress openly left the resolution of the liability apportionment question to the courts that would apply the law. Another gap in CERCLA involved the standards for causation that would govern liability under the statute, which the Congress did not directly define. The same was true of many important contested issues such as the liability of parent and successor corporations under the act. Indeed, CERCLA's legislative history indicates that Congress intended to have some issues about the scope of liability determined under common law principles, the application of which was explicitly endorsed in the legislative history of the Superfund Amendments and Reauthorization Act (SARA), which amended CERCLA. CERCLA provides an example of substantial direct delegation of decision-making authority to courts.
This process of legislative delegation to the courts was closely studied in the context of federal labor law. This study analyzes direct delegation and how "legislators sometimes deliberately include ambiguous language in statutes that allows judges to make policy choices as they resolve interpretive controversies about the meaning of the ambiguous language." Examination of labor laws, such as the Wagner Act, Clayton Act, and Erdman Act, revealed that legislators carefully avoided creating precise rules but delegated many controversial decisions to the courts, even though Congress foresaw those controversies. Not entirely pleased with the courts' resolution of those issues, the legislature later adopted clearer linguistic requirements in the Norris-LaGuardia Act to limit the courts' choices. The history demonstrated how the legislature titrated judicial discretion based on the circumstances of the legislation it addressed.
A more recent study of the Private Securities Litigation Reform Act also illustrated direct delegation. In attempting to tighten judicial standards for securities fraud actions, Congress focused on requirements for plaintiffs pleading the scienter standard for liability. Congress resolved that plaintiffs be forced to plead facts demonstrating a "strong inference" of scienter but said little about precisely what this meant. The study of the act's passage demonstrated that the record was replete with contradictory positions on the meaning of the standard and ultimately ducked the issue, leaving it to the courts to flesh out the statutory standard with meaning.
Excerpted from The Theory and Practice of Statutory Interpretation by FRANK B. CROSS Copyright © 2009 by Board of Trustees of the Leland Stanford Junior University. Excerpted by permission.
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Table of Contents
1. The Goal of Statutory Interpretation....................1
2. Textualism and Statutory Interpretation....................24
3. Legislative History and Statutory Interpretation....................58
4. The Canons of Statutory Interpretation....................85
5. Pragmatism and Dynamic Statutory Interpretation....................102
6. The Justices and Their Practice of Statutory Interpretation....................134
7. Ideology and the Practice of Statutory Interpretation....................159
8. Statutory Interpretation in the Lower Federal Courts....................180