Search

This Article reports the results of a survey of a diverse group of forty-two federal appellate judges concerning their approaches to statutory interpretation. The study reveals important differences between their approaches and the approach that the Supreme Court purports to take. It also helps to substantiate the irrelevance of the enduring, but now-boring, textualism-versus-purposivism debate. None of the judges we interviewed was willing to associate himself or herself with "textualism" without qualification. All consult legislative history. Most eschew dictionaries. All utilize at least some canons of construction, but for reasons that range from "window dressing," to the use of canons to assist in opinion writing, to a view that they are useful decision tools. Most of the judges we interviewed are not fans of Chevron, except for the judges on the D.C. Circuit, which hears the bulk of Chevron cases. Some of the judges interviewed believe that understanding Congress is important to a judge's work, while others do not see how judges can use such understanding to decide cases. Most express doubt that the Supreme Court's interpretive methodology binds the lower courts. The younger judges, who attended law school and practiced during the ascendance of textualism, are generally more formalist and accepting of the canons of construction, regardless of political affiliation. The older judges are less focused on canons, take a broader view of their delegated authority, and appear to grapple more with questions of judicial legitimacy. The approach that emerged most clearly from our interviews might be described as intentional eclecticism. Most of the judges we spoke to are willing to consider many different kinds of argument and evidence, and defend that approach as the only democratically legitimate one. Yet at the same time many observe a gap between how they actually decide cases and how they write opinions, a gap they attribute to the disconnect between the expectations of the public and the realities of judicial decisionmaking. [ABSTRACT FROM AUTHOR]

Justice Scalia, in the end, was no interpretive formalist. He would not be pleased to hear this claim, but the fact is that formalism has not succeeded in statutory interpretation, and in fact, the textualism that Justice Scalia deserves so much credit for creating never really embraced formalism at all. Textualism lacks all the conditions necessary for formalism. It does not have a defined set of predictable rules ordered to ensure objective application. Instead, we have more than one hundred interpretive presumptions-the presumptions favored by textualists-with no defined method of choosing among them. These doctrines of the field are not treated as precedent or even as law that a higher court or Congress is entitled to make. Instead, they occupy the unique status of being viewed as inherently personal to the individual judge, a status not shared by any other doctrines applied by Article III courts. The doctrines do not have a theorized jurisprudence that legitimates their source, ties them to a sovereign lawmaking power, or even indicates where the rules come from. Justice Scalia himself was never willing to admit that many canons-including ones he himself invented-are judicial creations, and hence, federal common law; to the contrary, he argued that treating them as common law might be unconstitutional. Justice Scalia's incomparable contributions to statutory interpretation deserve great recognition. But even though his successful effort to create the modern field was ostensibly grounded in the rule of law, he either never really wanted formalism to succeed, or did not fully appreciate its implications. What would it take to make statutory interpretation truly formalist? Why did Justice Scalia's vision fall short? Answering these questions is essential to understanding his legacy, what textualism really is, and what he wanted it to be. [ABSTRACT FROM AUTHOR]

The formalist project in statutory interpretation, as it has defined itself, has been a failure. That project--typified by but not limited to Justice Antonin Scalia's brand of textualism--has been doomed because even its staunchest supporters have been unwilling to carry it out. The rules that judges employ are too numerous to be predictably chosen. There is no ranking among them. They are not treated as blackletter, precedential law. Even formalist-textualist judges, it turns out, crave interpretive flexibility, do not want to be controlled by other courts or Congress, and feel the need to show their interpretive actions are democratically linked to Congress. What we actually have instead is an approach whose legitimacy depends, in large part, on understanding how Congress works. Establishing the incomplete execution of formalism is a crucial first step in this argument, because the fiction that textualism has been successful in achieving its goals has prevented us from seeing what judges actually want and, in fact, are actually doing. With that understanding, it becomes clear that better judicial understanding of the realities of congressional drafting practice will not only make statutory interpretation practice more legitimate, but also advance the enterprise of what most judges--even formalists--already see their job to be. If formalism originally began as a second-best alternative to understanding Congress, understanding Congress has emerged as a second-best alternative to carrying out the formalist project. After laying this groundwork, this Essay offers ten new rules of statutory interpretation--objective, formalism-compatible rules, but rules grounded in congressional practice. It especially highlights one new rule--the CBO Canon--and then offers nine more, including an anticonsistency presumption and presumptions about different legislative vehicles, multiple agency delegations, dictionaries, and special legislative history. Judges of all interpretive stripes have shown new interest in applying this kind of real-world understanding of the legislative process to statutory interpretation doctrine. The goals here are to explore why that might be the case; to meet some of the objections that have been raised about the use of such evidence; and to offer examples to illustrate the very possibility of what might be, and in some cases already is. [ABSTRACT FROM AUTHOR]

The article focuses on the politics of the litigation, the opinions regarding the legislative process of the U.S. Affordable Care Act (ACA). It mentions that the decision of the U.S. Supreme Court in the case King v. Burwell which challenges the ACA with the vision of the U.S. Congress regarding both the textualism and purposivism. It also mentions that the decision of U.S. Supreme Court of the Marbury v. Madison.

This is the second of two Articles relaying the results of the most extensive survey to date of 137 congressional drafters about the doctrines of statutory interpretation and administrative delegation. The first Article focused on our respondents' knowledge and use of the interpretive principles that courts apply. This second Article moves away from the judicial perspective. Our findings here highlight the overlooked legislative underbelly: the personnel, structural, and process-related factors that, our respondents repeatedly volunteered, drive the details of the drafting process more than judicial rules of interpretation. These factors range from the fragmentation caused by the committee system, to the centrality of nonpartisan professional staff in the drafting of statutory text, to the use of increasingly unorthodox legislative procedures--each of which, our respondents told us, affects statutory consistency and use of legislative history in different and important ways. Our respondents also painted a picture of legislative staffers in a primary interpretive conversation with agencies, not with courts, and as using different kinds of signals for their communications with agencies than courts consider. Most of the structural, personnel, and process-related influences that our respondents emphasized have not been recognized by courts or scholars, but understanding them calls into question almost every presumption of statutory interpretation in current deployment. The findings undermine the claims of both textualists and purposivists that their theories are most democracy enhancing, because neither makes satisfactory efforts to really reflect congressional expectations. Our findings challenge textualism's operating assumption that text is always the best evidence of the legislative bargain and suggest more relevant--but still formalist--structural features that might do better. Our findings further reveal that, although purposivists or eclectic theorists may have the right idea with a more contextual approach, many of the factors on which they focus are not the same ones that Congress utilizes. With respect to delegation, our findings suggest that, for both types of theorists, Chevron now seems too text- and court-centric to actually capture congressional intent to delegate, although that has been its asserted purpose. In the end, our findings raise the question whether the kind of "faithful agent" approach to interpretation that most judges currently employ--one aimed at effectuating legislative deals and often focused on granular textual details--can ever be successful. We thus look to different paradigms less dependent on how Congress works, including rule-of-law and pragmatic approaches to interpretation. These alternatives respond to the problem of the sausage factory, but pose different challenges in light of the modern judicial sensibility's pronounced concern with legislative supremacy. [ABSTRACT FROM AUTHOR]