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All theories of statutory interpretation rely on an idea of how Congress operates. A commonly held supposition among scholars is that the procedures used in the creation of legislation are unsophisticated and almost anarchic. This supposition exists because scholars generally give little consideration to the underlying actors and their evolving roles in the drafting process. This Article deconstructs the many steps of, and actors involved in, the statutory-drafting process. It reveals an evolving process that is the opposite of what scholars generally believe: While Congress historically did not have the capacity or resources to draft statutes well, it has evolved through the last forty years to arrive at a point where modern statutes are carefully researched by professional researchers and clearly drafted by nonpartisan professional legislative drafters, with the entire process overseen by hundreds of specialized committee staff and countless lobbyists. This Article uses this better understanding of the evolution of Congress's institutional competence to explain how the rise of judicial textualism over the last few decades should be viewed at least partially as a response to Congress's improved drafting process. And not only do these practical findings provide a descriptive account of judicial behavior, they also provide a basis from which to make normative judgments about how to undertake statutory interpretation based on the era in which a statute was drafted, a method that this Article terms "intertemporal statutory interpretation." This Article demonstrates how consideration of the evolution of the real-world legislative process can allow for more fully developed theories of statutory interpretation. [ABSTRACT FROM AUTHOR]

In this Essay, Professor Burbank comments on the essays by Professors Nagareda and Issacharoff. Welcoming the opportunity to revisit the interplay between procedure and substantive law and the question of democratic accountability that Professor Nagareda's essay presents, Professor Burbank concludes that the parts of that essay are greater than the whole. He finds that Professor Nagareda's pursuit of unifying themes and a general normative theory leads to inconsistencies in classification between procedure and substance and to an impoverished vision of institutional legitimacy. Professor Burbank voices concern that this quest, which is also evident in the current draft of the American Law Institute's Principles of the Law of Aggregate Litigation, denies the complex interaction of procedure and substantive law and takes an essentialist view, shaped by current federal arrangements, on normative questions, including questions of institutional legitimacy. Noting that both Professor Nagareda and Professor Issacharoff discuss the implications of the Class Action Fairness Act of 2005 (CAFA) for choice of law in nationwide class actions, but that their essays reach radically different conclusions, Professor Burbank finds neither persuasive on the critical question of legal authority. He argues that Professor Issacharoff attempts to beat Congress at the hypocrisy game, cherrypicking congressional statements to justify a choice of law result precisely the opposite of that sought by the statute's promoters. He also disagrees with Professor Nagareda's claim that CAFA instantiates a broader principle of institutional legitimacy. Agreeing, however, with both authors that CAFA affords good reason to reconsider the Supreme Court's Erie jurisprudence, in particular Klaxon Co. v. Stentor Electric Manufacturing Co., Professor Burbank offers an analytical path to the conclusion that under CAFA a federal court may not be required to follow state choice of law doctrine that ‘bootstraps’ for the purpose of enabling aggregation. [ABSTRACT FROM AUTHOR]