Gluck & Schultz Bressman: Statutory Interpretation from the Inside: An Empirical Study of Congressional Drafting

Professor Abbe R. Gluck of Yale Law School and Associate Dean Lisa Schultz Bressman of Vanderbilt Law School have posted Statutory Interpretation from the Inside — An Empirical Study of Congressional Drafting, Delegation and the Canons: Part I, forthcoming in Stanford Law Review.

Here is the abstract:

What role should the realities of the legislative drafting process play in the theories and doctrines of statutory interpretation and administrative law? The ongoing debates frequently turn on empirical assumptions about how Congress drafts and what interpretive rules Congress knows, but there has been almost no testing of whether any of these assumptions reflect legislative reality. We have attempted to fill that void. This is the first of two Articles reporting the results of the most extensive empirical study to date — a survey of 137 congressional counsels drawn from both parties, both chambers of Congress and spanning multiple committees — on topics ranging from drafters’ knowledge and use of the textual and substantive canons of interpretation, to legislative history, the administrative law deference doctrines, the legislative process and the Court-Congress relationship.

Our findings have implications for virtually every swath of the interpretive debates. We can report, for instance, that there are some canons that our drafters know and use — Chevron and the presumption against preemption, for example, but that there are other canons that our drafters know, but consciously reject in favor of political or other considerations, including the presumption in favor of consistent usage, the rule against superfluities, and dictionary use; and still other canons, like Mead and noscitur a sociis, that our drafters do not know as legal rules but that seem to be accurate judicial reflections of how Congress drafts. Our interviews also elicited a treasure trove of information about key influences on the drafting process that legal doctrine rarely considers, from the variety of audiences for legislative history, to the way in which the personal reputation of particular agency heads affects delegation decisions, to the fact that drafting conventions depend on the type of statute being drafted and its path through Congress.

All of these findings, and many others, allow us to press for a more precise answer to one of the field’s foundational questions: that is, what should be the purpose of these canons of interpretation? Judges, often using the unhelpful generalization that they are Congress’s “faithful agents,” have legitimized these doctrines using a variety of conflicting justifications, some of which turn on empirical reality, some of which do not, and most of which aim to justify many different types of canons that seem to be doing very different types of work. Do the canons reflect how Congress actually drafts, and so effectuate legislative supremacy? Or do judges use the canons for more dialogical reasons, such as to encourage Congress to draft more precisely — and does Congress listen? Might the canons, despite how “neutral” some appear, instead be understood to effectuate judicial values that are external to the legislative process — such as advancing constitutional norms or imposing coherence on the U.S. Code? Our study illuminates this variety across the normative bases for the canons also reveals that each set of justifications rests on a very different vision of the judicial power and the Court-Congress relationship.

HT @rickhasen

Stevenson on the Costs of Codification

Professor Dru Stevenson of South Texas College of Law has posted a working paper entitled Costs of Codification, on SSRN.

Here is the abstract:

Between the Civil War and World War II, every [U.S.] state and the federal government shifted toward codified versions of their statutes. Academia has so far ignored the systemic effects of this dramatic change. For example, the consensus view in the academic literature about rules and standards has been that precise rules present higher enactment costs for legislatures than would general standards, while vague standards present higher information costs for courts and citizens than do rules. Systematic codification – featuring hierarchical format and numbering, topical arrangement, and cross-references – inverts this relationship, lowering transaction costs for legislatures and increasing information costs for courts and citizens, as statutes proliferate. This Article takes a first look at this problem. On the legislative side, codification makes it easier for special interest groups to obtain their desired legislation. It facilitates Coasean bargaining between legislators, and encourages legislative borrowing, which diminishes the “laboratories of democracy” phenomenon. For the courts, codification changes how judges interpret statutes, prompting them to focus more on the meaning of individual words than on the overall policy goals of enactment, and to rely more on external sources, such as legislative history. For both legislators and courts, codification functions as a Hartian rule of recognition, signaling legality for enacted rules. For the citizenry, the reduced legislative costs mean increased legislative output, yielding rapid proliferation of statutes and unmanageable legal information costs. More disturbingly, codification also fosters overcriminalization. While it may not be appropriate to revert to the pre-codified regime now, reexamining the unintended effects of codification can inform present and future choices for our legal system.

HT @johnpmayer

Scalia and Garner on Reading Law: The Interpretation of Legal Texts

Associate Justice Antonin Scalia of the U.S. Supreme Court and Bryan A. Garner, Esq., of LawProse have published Reading Law: The Interpretation of Legal Texts (West, 2012).

Here is the publisher’s description of the book:

[...] Scalia and Garner systematically explain all the most important principles of constitutional, statutory, and contractual interpretation in an engaging and informative style – with hundreds of illustrations from actual cases. Is a burrito a sandwich? Is a corporation entitled to personal privacy? If you trade a gun for drugs, are you “using a gun” in a drug transaction? The authors grapple with these and dozens of equally curious questions while explaining the most principled, lucid, and reliable techniques for deriving meaning from authoritative texts. Meanwhile, the book takes up some of the most controversial issues in modern jurisprudence. [...]

Mouritsen on Assessing Corpus Linguistics as an Empirical Path to Plain Meaning

Stephen C. Mouritsen, M.A., Esq., of Cravath, Swaine and Moore LLP, has published Hard Cases and Hard Data: Assessing Corpus Linguistics as an Empirical Path to Plain Meaning, Columbia Science and Technology Law Review, 13, 156-205 (2011). Here is the abstract:

The Plain Meaning Rule is often assailed on the grounds that it is unprincipled — that it substitutes for careful analysis an interpreter’s ad hoc and impressionistic intuition about the meaning of legal texts. But what if judges and lawyers had the means to test their intuitions about plain meaning systematically? Then initial linguistic impressions about the meaning of a legal text might be viewed as hypotheses to be tested, rather than determinative criteria upon which to base important decisions.

There exists very little legal scholarship on corpus linguistics — the study of language function and use through large, electronic linguistic databases called corpora — and the role that corpus methods might play in legal interpretation. This omission becomes more and more striking as scholars and jurists (and even the United States Supreme Court) have found themselves persuaded by corpus-based arguments.

This Article argues that the plain or ordinary meaning of a given term in a given context is an empirical matter that may be quantified through corpus-based methods. These methods, when applied to questions of legal ambiguity, present significant advantages over existing empirical approaches to plain meaning and over the prevailing intuition-based interpretive approach of many courts. Because large, sophisticated linguistic corpora are widely available and easy to use, and because corpus methods offer a more principled and systematic alternative to the impressionistic interpretation of legal texts, corpus linguistics may one day revolutionize the process of legal interpretation.

HT @aabibliographer.

Abstracts for Papers Presented at Current Legal Issues Colloquium 2011: Law and Language

Abstracts have been posted for the papers presented at Current Legal Issues Colloquium 2011 – Law and Language, held 4-5 July 2011 at University College London Faculty of Laws. The papers concern a range of current issues in the fields of linguistics, text analysis, rhetoric, and textual interpretation, all as applied to legal texts.

Ringhand & Collins on An Empirical Analysis of the Senate Judiciary Committee Hearings of Supreme Court Nominees, 1939-2009

Professor Lori A. Ringhand of the University of Georgia School of Law and Professor Paul M. Collins, Jr. of the University of North Texas Department of Political Science have posted May it Please the Senate: An Empirical Analysis of the Senate Judiciary Committee Hearings of Supreme Court Nominees, 1939-2009 (2010). Here is the abstract:

This paper examines the questions asked and answers given by every Supreme Court nominee who has appeared to testify before the Senate Judiciary Committee since 1939. In doing so, it uses a new dataset developed by the authors. This database, which provides a much-needed empirical foundation for scholarship in emerging areas of constitutional law and political science, captures all of the statements made at the hearings and codes these comments by issue area, subissue area, party of the appointing president, and party of the questioning senator. The dataset allows us to quantify for the first time such things as which issues are most frequently discussed at the hearings, whether those issues have changed over time, and whether they vary depending on the party of the appointing president and the party of the questioning senator. We also investigate if questioning patterns differ depending on the race or gender of the nominee. Some of our results are unsurprising: for example, the hearings have become longer. Others, however, challenge conventional wisdom: the Bork hearing is less of an outlier in several ways than is frequently assumed, and abortion has not dominated the hearings. We also discover that there is issue area variation over time, and that there are notable disparities in the issues addressed by Democratic versus Republican senators. Finally, we find that female and minority nominees face a significantly different hearing environment than do white male nominees.

Click here for an infographic — created by GOOD and MGMT. design — based on some of the data in this paper.

HT @cmccool.

Calabresi & Easterbrook on Statutory Interpretation

Two interesting new papers about statutory interpretation, by Senior Circuit Judge Guido Calabresi and Chief Circuit Judge Frank H. Easterbrook, have been published by the Harvard Journal of Law and Public Policy, Volume 33, No. 3, Summer 2010:

• Guido Calabresi, Being Honest About Being Honest Agents;
• Frank H. Easterbrook, Judges as Honest Agents.

Both papers address the resolution, “The United States Constitution Requires Federal Courts to Interpret Statutes as Honest Agents of the Enacting Congress.”

The papers were originally delivered during the Annual Rosenkranz Debate and Luncheon: Statutory Interpretation, at the 2009 Federalist Society National Lawyers’ Convention, held 12-14 November 2009 in Washington, DC.

The debate was moderated by Professor John F. Manning of Harvard Law School.

Click here for video of the debate.

Farnsworth et al. on Ambiguity About Ambiguity: An Empirical Inquiry into Legal Interpretation

Associate Dean Ward Farnsworth of Boston University School of Law, and colleages, have published Ambiguity About Ambiguity: An Empirical Inquiry into Legal Interpretation, forthcoming in Journal of Legal Analysis. Here is the abstract:

Most scholarship on statutory interpretation discusses what courts should do with ambiguous statutes. This paper investigates the crucial and analytically prior question of what ambiguity in law is. Does a claim that a text is ambiguous mean the judge is uncertain about its meaning? Or is it a claim that ordinary readers of English, as a group, would disagree about what the text means? This distinction is of considerable theoretical interest. It also turns out to be highly consequential as a practical matter.

To demonstrate, we developed a survey instrument for exploring determinations of ambiguity and administered it to nearly 1,000 law students. We find that asking respondents whether a statute is “ambiguous” in their own minds produces answers that are strongly biased by their policy preferences. But asking respondents whether the text would likely be read the same way by ordinary readers of English does not produce answers biased in this way. This discrepancy leads to important questions about which of those two ways of thinking about ambiguity is more legally relevant. It also has potential implications for how cases are decided and for how law is taught.

HT ELS Blog.

Originalism 2.0 Conference at Penn Law

[NOTE: Videos of several of the panels are now available.]

Originalism 2.0: The 2010 National Student Symposium of the Federalist Society, was held 26-27 February 2010 at the University of Pennsylvania School of Law, in Philadelphia, Pennsylvania, USA.

Click here for the conference program.

Click here for the list of speakers.

Click here for an archive of Twitter tweets from the first, fourth, & fifth of the conference panels. The Twitter hashtag for the conference was #orig20.

If the conference video is Webcast at some future time, a link will be added here.

[NOTE: Last updated 17 March 2010.]

Levmore on Ambiguous Statutes

Dean Saul Levmore of the University of Chicago Law School has published Ambiguous Statutes. Here is the abstract:

“Judge Frank Easterbrook is known for insisting that legislative intent is a misconception, bordering on oxymoron. He has also advanced the idea that legislative bargains should be upheld by courts and that where a legislature leaves a ‘gap,’ courts should be non-activist rather than eager gap-fillers. Still, there are many cases where legislation leaves ambiguities. I suggest that the cause of an ambiguity has some bearing on the best way for a judge to resolve it. Easterbrook decisions, including an Equal Pay Act case, where (unequal) wages were based on prior compensation, are used to reveal various strategies for dealing with ambiguous statutes. One conclusion is that it is almost inevitable that even a non-activist judge will occasionally resort to guess-work about legislative intent – and that such intent, while unlikely as a matter of public-choice or aggregation theory, is not quite impossible to construe correctly. I conclude with the conjecture that the inclination to attach great significance to statutory language may be something that falls out of favor because of the reality of the enactment process.”

HT @aabibliographer.