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Federal Legislative History: Statutory Interpretation

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What is Statutory Interpretation?

Statutory interpretation (also called statutory construction) is the act of interpreting a statute particularly when the text of the statute seems contradictory or ambiguous. There are numerous principles or "canons" that have been developed by the courts and applied to the interpretation of individual statutes.

See the CALI tutorial on Statutory Interpretation (available to Villanova students and faculty--email  Lori Corso for access) for more information.

Government Documents

• Statutory interpretation and the uses of legislative history : hearing before the Subcommittee on Courts, Intellectual Property, and the Administration of Justice of the Committee on the Judiciary, House of Representatives, One Hundred First Congress, sec Available in print (Gov Doc #: Y 4.J 89/1:101/107) or online via Hathi Trust
• Using and misusing legislative history : a re-evaluation of the status of legislative history in statutory interpretation Available in print (Gov Doc # J 1.96:H 62) or online via Hathi Trust

Free Resources

• Georgetown Writing Center's Guide to Reading, Interpreting and Applying Statutes
• Statutory Interpretation: General Principles and Recent Trends 2014 Congressional Research Service Report

Print Resources at Villanova

• Guide to Statutory Interpretation by Michael Sinclair Call Number: Reference: KF425 .S55 2000 Publication Date: 2000

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Approaches to statutory interpretation.

Statutory interpretation is the process of determining the meaning and purpose of a law (statute) passed by a legislative body. There are several approaches to statutory interpretation, including: Literal approach This approach involves interpreting the words of a statute according to their ordinary and grammatical meaning, without considering the legislative intent or purpose behind the law. This approach is also known as the "plain meaning" or "textualist" approach. Purposive approach This approach considers the legislative intent and purpose behind the law, and seeks to interpret the statute in a manner that furthers its overall objective. This approach is also known as the "teleological" or "contextual" approach. Golden rule approach This approach is a modified form of the literal approach, and involves using the literal approach unless it leads to an absurd result. In such cases, the court may depart from the literal interpretation and adopt a purposive approach. Mischief rule approach This approach is based on the idea that the purpose of a statute is to remedy a particular mischief or defect in the law that existed prior to the passage of the statute. The court must interpret the statute in a manner that advances this remedial purpose. Harmonious construction approach This approach involves interpreting a statute in a manner that is consistent with other laws and the Constitution, and avoids interpreting it in a way that leads to an absurd or unjust result. These are the main approaches to statutory interpretation used by courts which often adopt a combination of these approaches when interpreting a statute.

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Fixing Statutory Interpretation

• Brett M. Kavanaugh
• Response to Judge Kavanaugh’s Review of Judging Statutes  by  Robert A. Katzmann
• See full issue

Statutory interpretation has improved dramatically over the last generation, thanks to the extraordinary influence of Justice Scalia. Statutory text matters much more than it once did. If the text is sufficiently clear, the text usually controls. The text of the law is the law. As Justice Kagan recently stated, “we’re all textualists now.” By emphasizing the centrality of the words of the statute, Justice Scalia brought about a massive and enduring change in American law.

But more work remains. As Justice Scalia’s separate opinions in recent years suggest, certain aspects of statutory interpretation are still troubling. In my view, one primary problem stands out. Several substantive principles of interpretation — such as constitutional avoidance, use of legislative history, and Chevron — depend on an initial determination of whether a text is clear or ambiguous. But judges often cannot make that initial clarity versus ambiguity decision in a settled, principled, or evenhanded way.

The upshot is that judges sometimes decide (or appear to decide) high-profile and important statutory cases not by using settled, agreed-upon rules of the road, but instead by selectively picking from among a wealth of canons of construction. Those decisions leave the bar and the public understandably skeptical that courts are really acting as neutral, impartial umpires in certain statutory interpretation cases.

The need for better rules of the road is underscored by a recent book written by Robert Katzmann, the very distinguished Chief Judge of the Second Circuit. I know Chief Judge Katzmann from our service together on the Judicial Branch Committee of the Judicial Conference, where he served for many years as Chairman by appointment of the Chief Justice. Chief Judge Katzmann is one of America’s finest judges and a true role model for me and many others, both in how he approaches his job and in how he seeks to improve the system of justice.

His new book Judging Statutes is a pleasure to read. It is succinct and educational. Chief Judge Katzmann’s goal is to show that various tools of statutory interpretation, especially legislative history, can enhance judges’ understanding of statutory meaning and allow them “to be faithful to the work of the people’s representatives memorialized in statutory language” (p. 105).

As would be natural with any two judges on a topic of this kind, I agree with some parts of Chief Judge Katzmann’s book and not with others. But even where I disagree, I have learned a great deal.

Every judge, lawyer, law professor, and law student who interprets statutes — which is to say every judge, lawyer, law professor, and law student — should read this book carefully. To paraphrase Justice Frankfurter: read the book, read the book, read the book.

Judging Statutes has caused me to think even more deeply about statutory interpretation and about what judges should be trying to achieve when we confront statutory cases. For me, one overarching goal is to make judging a neutral, impartial process in all cases — not just statutory interpretation cases. Like cases should be treated alike by judges of all ideological and philosophical stripes, regardless of the subject matter and regardless of the identity of the parties to the case.

To be sure, some may conceive of judging more as a partisan or policymaking exercise in which judges should or necessarily must bring their policy and philosophical predilections to bear on the text at hand.

I disagree with that vision of the federal judge in our constitutional system. The American rule of law, as I see it, depends on neutral, impartial judges who say what the law is, not what the law should be. Judges are umpires, or at least should always strive to be umpires. In a perfect world, at least as I envision it, the outcomes of legal disputes would not often vary based solely on the backgrounds, political affiliations, or policy views of judges.

In my view, this goal is not merely personal preference but a constitutional mandate in a separation of powers system. Article I assigns Congress, along with the President, the power to make laws. Article III grants the courts the “judicial Power” to interpret those laws in individual “Cases” and “Controversies.” When courts apply doctrines that allow them to rewrite the laws (in effect), they are encroaching on the legislature’s Article I power.

But the vision of the judge as umpire raises a natural question: how can we move toward that ideal in our judicial system, where judges come from many different backgrounds and may have a variety of strong ideological, political, and policy predispositions?

To be candid, it is probably not possible in all cases, depending on the nature of the legal inquiry. After all, on occasion the relevant constitutional or statutory provision may actually require the judge to consider policy and perform a common law–like function.

But in most statutory cases, the issue is one of interpretation. To assist the interpretive process, judges over time have devised many semantic and substantive canons of construction — what we might refer to collectively as the interpretive rules of the road. To make judges more neutral and impartial in statutory interpretation cases, we should carefully examine the interpretive rules of the road and try to settle as many of them in advance as we can. Doing so would make the rules more predictable in application. In other words, if we could achieve more agreement ahead of time on the rules of the road, there would be many fewer disputed calls in actual cases. That in turn would be enormously beneficial to the neutral and impartial rule of law, and to the ideal and reality of a principled, nonpartisan judiciary.

With that objective in mind, I will advance one overarching argument in this Book Review. A number of interpretive canons of statutory interpretation depend on an initial evaluation of whether the statutory text is clear or ambiguous. But because it is so difficult to make those clarity versus ambiguity determinations in a coherent, evenhanded way, courts should reduce the number of canons of construction that depend on an initial finding of ambiguity. Instead, courts should seek the best reading of the statute by interpreting the words of the statute, taking account of the context of the whole statute, and applying the agreed-upon semantic canons. Once they have discerned the best reading of the text in that way, they can depart from that baseline if required to do so by any relevant substantive canons — for example, the absurdity doctrine.

To be clear, I fully appreciate that disputed calls will always arise in statutory interpretation. Figuring out the best reading of the statute is not always an easy task. I am not a modern-day Yogi Berra, who once purportedly said that there would be no more close calls if we just moved first base.

But the current situation in statutory interpretation, as I see it, is more akin to a situation where umpires can, at least on some pitches, largely define their own strike zones. My solution is to define the strike zone in advance much more precisely so that each umpire is operating within the same guidelines. If we do that, we will need to worry less about who the umpire is when the next pitch is thrown.

That’s just too hard, some might argue. Statutory interpretation is an inherently complex process, they say. It’s all politics anyway, others contend. I have heard the excuses. I’m not buying it. In my view, it is a mistake to think that the current mess in statutory interpretation is somehow the natural and unalterable order of things. Put simply, we can do better in the realm of statutory interpretation. And for the sake of the neutral and impartial rule of law, we must do better.

* Judge, United States Court of Appeals for the District of Columbia Circuit.

• Statutory Interpretation

June 10, 2016

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Statutory Structure

abstract . One of the least controversial tools of statutory interpretation the Supreme Court employs is also one of its least examined: the use of a statute’s “structure.” For decades—but particularly under Chief Justice Roberts—the Court has determined the meaning of ambiguous statutory provisions through reference to the “structure,” “scheme,” or “plan” of a statute. Despite its ubiquity in the Court’s opinions, however, structural argument in statutory interpretation has gone largely unexamined by scholars. This Note attempts to fill that gap.

Through an analysis of recent case law, this Note categorizes the types of structural argument employed by the Court in its statutory-interpretation cases and the various assumptions needed to motivate such arguments. This fine-grained mapping permits a closer normative evaluation of structural argument and , in particular, of its compatibility with different methodologies of statutory interpretation. All dominant methods for reading statutes have good reason—on their own terms—to employ some types of structural argument, which demonstrates its cross-methodological appeal. But purposive reasoning best embodies the assumptions of coherence and rational design that undergird structuralism. The sway of this type of argument over a hypertextualist Supreme Court thus suggests the enduring need for purposive reasoning, particularly as the traditional tools of purposivism—such as legislative history—have been largely abandoned.

author. Yale Law School, J.D. 2023; University of Oxford, D.Phil. 2020, M.Phil. 2018; University of Virginia, B.A. 2016. Special thanks to William N. Eskridge, Jr.—who taught me not just how to read a statute, but also how to think about the act of reading a statute—for supervising this project and providing extensive feedback. I am indebted also to the following individuals for their invaluable commentary at various points of the drafting process: Katherine Fang, Robert C. Post, Daniel R. Ortiz, Judith Resnik, Isabella Soparkar , Kannon Shanmugam, and the Honorable Paul J. Watford. The editors of the Yale Law Journal , in particular Zachary J. Krislov, Jessica Huang, and Milo Hudson, were generous and insightful in bringing this Note to publication. This Note has been improved by those mentioned above and others unnamed; all errors or omissions are my own.

Introduction

It is now uncontroversial to start, and often end, statutory interpretation with the text of the statute to be interpreted. 1 The ascendancy of the “new textualism” 2 has transformed statutory interpretation at the Supreme Court, prompting extensive commentary on the methods and merits of textualist analysis. 3 The recent fissures within the textualist camp, exposed in Bostock v. Clayton County , 4 have only added grist to the mill. 5 As the Court’s interpretive practices have moved closer and closer to the statutory text, the academy’s attention has followed.

But another interpretive practice with nearly equal dominance has received scant scholarly attention: namely, argument from statutory structure. Every Justice on the Supreme Court in the October 2021 Term had previously authored or joined an opinion that employed arguments from statutory structure. 6 Numerous casebooks and treatises describe and approve of the use of structural argumentation. 7 But despite this apparently widespread acceptance, little has been written to explain what, precisely, argument from statutory structure is. When the Court intones—as it often does—that its interpretation of a provision accords with a statute’s “design and structure,” 8 with “the structure of the statutory scheme,” 9 or with the broader “context and structure” 10 of an act of Congress, what does it mean to say? And what does it hope to accomplish? This Note offers some answers.

Of course, structural argument in constitutional law is nearly as old as the text of the Constitution itself. Chief Justice Marshall was an early and aggressive employer of structural argument in seminal cases such as Marbury v. Madison 11 and McCulloch v. Maryland . 12 The use of structural argument in constitutional interpretation has accordingly received much more scholarly attention. 13 However, despite some similarities to structural argument in statutory interpretation, argument from constitutional structure is also meaningfully different. 14 Ordinary statutes are not governing charters. In general, they are not meant to create a governing architecture from which foundational principles can be inferred. More often, they are precise, complex, and limited documents addressing a particular problem. The structural arguments made to interpret statutes thus deserve to be examined on their own terms.

Though the Roberts Court has made particularly fruitful use of structural argument, for at least seventy years the Supreme Court has recognized that its job is to give “all of [a statute] . . . the most harmonious, comprehensive meaning possible.” 15 Structural argument is thus a species of what some have called the “[w]hole act rule,” or the injunction that “[e]ach statutory provision should be read by reference to the whole act and the statutory scheme.” 16 Canons of construction that fall under this rule include familiar ones like the rule against surplusage (avoid construing a provision such that it would make another provision in the statute redundant) and the rule of meaningful variation (presume that differences in language between provisions in the same statute indicate differences in meaning). 17 Given its family resemblance to these well-known canons of construction—which have not themselves escaped scholarly attention 18 —it is all the more surprising that structural argument has so far received little critical analysis. 19

It is also curious that a Supreme Court increasingly dominated by textualists has deployed structural arguments so widely and transsubstantively . 20 Structuralism pairs naturally with programmatic statutory schemes—like the Affordable Care Act (ACA) 21 or the Clean Air Act (CAA) 22 —for which questions about harmonious operation or implementation make the most sense. But the Justices have used the tools of structural analysis to interpret statutes without such ambitions, like civil-rights legislation 23 and federal criminal law, 24 which are mostly concerned with setting standards of liability. A central query of this Note is why the Court turns so frequently to structural argument, even outside the confines of Congress’s programmatic enactments.

By way of preview, one way to answer that question is: “purposivism.” The turn to structure could be considered a turn to purposivism. Now, this answer is admittedly incomplete. As I will show, some types of structural argument the Court uses are not explicitly premised on any articulable statutory purpose, but rather on appeals to coherence, symmetry, and context. And structural argument is explicitly tied to statutory text in a way that makes it highly attractive for textualist interpreters who are wary of purposivism’s traditional embrace of extrinsic sources of statutory meaning. Often, however, structural argument is plainly an attempt to understand what the statute is meant to accomplish —and thus to discern its purpose. Indeed, the reference to a statute’s “design” or “structure” presupposes coherence, implying a rational drafter with identifiable aims. 25 The wide appeal of structural argument, especially for textualist interpreters, suggests that it is where purposivism now lives on, clothed in new (textualist) garb. To adapt Justice Kagan’s quip, 26 if we are all textualists now, we might also all be purposivists . 27

The goals of this Note are both descriptive and normative. Descriptively, it aims to document a widely used tool of statutory interpretation that has not yet received any sustained treatment. The type of argument that the Court is making when it argues from structure varies considerably, even when the terminology the Court uses does not. Thirty years after scholars first began to notice that a textualist Supreme Court was increasingly turning to structural argument to replace extratextual sources of statutory meaning, 28 a typology of structural argument will enable readers of the Court’s opinions and regulated parties better to understand the reasoning upon which the Court’s judgments rest.

To guide this inquiry, I map below three broad categories of structural argument that the Court has employed in statutory cases. All of these categories take root from a background assumption of coherence . That is, structural argument in all its forms presumes that statutes are, to some degree, “logically or aesthetically ordered or integrated,” “having clarity or intelligibility.” 29 But the categories I map below emphasize different dimensions of coherence, roughly in increasing levels of abstraction: starting with the coherence of how the words, paragraphs, and written provisions of the statute interrelate and ending with the coherence of a given interpretation with the normative policy or purpose of the statute. 30

The first category of structural argument is what I call compositional structuralism . This type of structural argument draws inferences about meaning from the way a statute is composed in its constituent parts. The Court has used at least three subcategories of compositional-structural argument. One resolves ambiguity by paying attention to the “location” of a provision in either the original statute or the U.S. Code. 31 Another draws on what might be called the “geometry” of the statute, evidenced by recognizable physical patterns formed by the presentation of the provisions themselves, such as their sequencing or symmetry. 32 And a final one—“aperture”—calibrates the substantive specificity of a provision to the specificity of surrounding provisions, thus cabining the interpretive space. 33 These various forms of structural argument derive from the structure of a statute as a written text. They trade on the assumption that text drafters, whatever their substantive ends, compose documents in a coherent fashion for their readers.

A second category is operational structuralism . Rather than assuming only that Congress drafts coherent texts, this type of argument assumes that Congress designs coherent statutory schemes, understood as legislative programs that provide direction to actors. Operational-structural arguments are primarily available for the interpretation of programmatic statutes. This type of structuralism resolves ambiguity by interpreting the statute in the most harmonious way possible and by declining to adopt interpretations of a provision that would undermine, contradict, or defeat the point of other provisions. It is both the most familiar 34 and the most easily manipulated form of structural argument. One casebook describes it as a way of showing how “each provision play[s] a role in constructing a coherent policy,” thus allowing interpreters to see “what role to assign the ambiguous provision.” 35 At its strongest, a structural argument of this type points out an incompatibility between the interpretations of two provisions: both cannot be true at the same time, either as a matter of practical operation or as a matter of logic. 36 Less demandingly, operational-structural arguments attempt to show that one interpretation is “incoherent” with other parts of the statute, either because it would embody a contradictory premise or because it would “impute to Congress a purpose to paralyze with one hand what it sought to promote with the other.” 37

On the other end of the spectrum, structure from coherence bleeds into an argument about the purpose of the statute—and thus, the third category presented in this Note, purposive structuralism . Strictly speaking, operational structuralism does not require drawing any conclusions about the normative or policy aims that Congress seeks to accomplish in its statutes; rather, it assumes that—whatever those aims—Congress will not pursue them in a contradictory fashion. Often, however, there is nothing strictly “incoherent” or “incompatible” about a certain interpretation other than that it would not as effectively serve the purpose of the statute as a judge or Justice conceives of it. This type of argument is purposive, even though it is gleaned from the structure of the statute. Purposive-structural arguments employ a notion of normative coherence, seeking to privilege one interpretation over another based on how closely it fits with the policy the statute seeks to advance. There is nothing magical about this type of argument: the Court simply uses the terminology of structural argument—which has broad appeal—to make arguments about the purpose of a statute. It is striking, however, that a Court that has moved aggressively away from purposive reasoning still regularly engages in it under the guise of the uncontroversial argument from statutory structure. 38 For those who believe that a primary goal of statutory interpretation is to effectuate the rational purposes of the legislature, this is good news.

By clarifying an undifferentiated area of statutory interpretation, this Note will also permit better normative evaluation of the use of structural argument. Not all uses of structure are created equal, nor can all be easily squared with the theoretical justifications that dominate the Court. Thus, the second aim of this Note is to evaluate structural argument in light of the various interpretive methodologies on the Court. Both textualists and purposivists readily turn to statutory structure, and both have good reasons—on their own terms—for doing so. But the theoretical assumptions underlying structural argument sit uneasily next to some of the presuppositions of textualist methodology. Insofar as structural argument assumes a rational statute drafter or rational outside reader, 39 it asks much of an interpretive method that claims to take such individuals as they are. It is a puzzle, therefore, that the Court’s textualist Justices so readily employ all types of argument from statutory structure. Tracing the links and gaps between textualism and structural argument can help both to illustrate its enduring appeal across methodologies and to demonstrate the continuing need for purposive reasoning of some kind, despite the Court’s aversion to the word.

Finally, this Note seeks to bolster the legitimacy of structural argument as an interpretive practice. Structural argument has become all the more necessary as the current Court has shut the door to extrinsic sources of determining statutory meaning, like legislative history. 40 In an era of “unorthodox lawmaking,” 41 in which statutes are often cobbled together from disparate legislative committees, there is some danger in interpretive practices that presume that regulated parties or statute drafters are really looking at the whole text. But, by assuming that Congress acts rationally—even if it drafts distractedly—structural argument can help to legitimize statutory interpretation. To varying extents, structural arguments can serve core interpretive values, such as the rule of law, democratic accountability, and good governance. It deserves to be taken seriously by statutory interpreters with disparate methodological commitments.

Moreover, structuralism’s value exceeds merely its capacity to accommodate purposive reasoning. In King v. Burwell , Chief Justice Roberts’s opinion for the majority relied heavily on structural arguments of various kinds, employing them to trump the plain meaning of the statutory terms in the ACA. 42 Justice Scalia, writing in dissent, accused the majority of hiding purposive reasoning behind the language of structure. 43 Though some of Roberts’s structural moves surely aimed to vindicate the purpose of the ACA, however, many others were simply commonsense methods of reading terms in their context or of avoiding internal contradictions. And Scalia himself deployed his own structural counters, implicitly conceding its utility as a method of argumentation. 44 Uncovering the logic and persuasive force of various forms of structural argument rebuts the argument that it is simply a form of dressed-up purposivism—even if, as I will show, it sometimes is, and even if that development is to be warmly encouraged.

Part I clarifies what judges and Justices mean when they invoke the term “statutory structure” and compares structural argument in statutory interpretation to its analog in constitutional interpretation and to other methods of using the “whole act” to interpret a statute. Part II maps three broad categories and five subcategories of structural argument and provides case examples to illustrate. Part III assesses structural argument normatively and methodologically. In addition to examining how structuralism serves rule-of-law, democratic-accountability, and governance values, this Part assesses how well the three categories of structural argument map onto the dominant interpretive theories of purposivism and textualism, concluding that each theory has good—but different—reasons to use at least some forms of structural argument. However, Part III also concludes that pragmatic and purposive methods of interpretation better match the underlying presuppositions of structural argument—that Congress pursues rational ends rationally—than do textualist methods. The genius of structural argument thus lies in its capacity to find justification in any interpretive framework while providing cover for a pragmatic and purposive way of reading statutes.

Volume 133’s Emerging Scholar of the Year: Robyn Powell

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The proposition is so uncontroversial that it is now a trope to establish it via a citation to Justice Elena Kagan’s famous quip that “[w] e’re all textualists now.” Harvard Law School, The Antonin Scalia Lecture: A Dialogue with Justice Elena Kagan on the Reading of Statutes , YouTube at 08:28 (Nov. 25, 2015), https: ‌ // ‌ www ‌ .youtube ‌ .com ‌ /watch ‌ ?v ‌ =dpEtszFT0Tg [https: ‌ // ‌ perma ‌ .cc ‌ /N97K ‌ -77W4]; see, e.g. , Tara Leigh Grove, Which Textualism? , 134 Harv. L. Rev. 265, 265 n.1 (2020); Diarmuid F. O’Scannlain , “We Are All Textualists Now”: The Legacy of Justice Antonin Scalia , 91 St. John’s L. Rev . 303, 304 (2017).

William N. Eskridge, Jr., The New Textualism , 37 UCLA L. Rev . 621, 623 (1990) (“The new textualism posits that once the Court has ascertained a statute’s plain meaning [through textual analysis], consideration of legislative history becomes irrelevant. Legislative history should not even be consulted to confirm the apparent meaning of a statutory text.”).

For defenses of textualism (constitutional and statutory), see Antonin Scalia , Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws , in A Matter of Interpretation 3, 23-25 (Amy Gutmann ed., 1997); John F. Manning, What Divides Textualists from Purposivists ? , 106 Colum. L. Rev . 70, 96-109 (2006); and Akhil Reed Amar, The Supreme Court, 1999 Term — Foreword: The Document and the Doctrine , 114 Harv. L. Rev . 26, 27-28 (2000). For critiques and alternatives, see William N. Eskridge, Jr., Dynamic Statutory Interpretation , 135 U. Pa. L. Rev . 1479, 1479-92 (1987); Jonathan R. Siegel, The Inexorable Radicalization of Textualism , 158 U. Pa. L. Rev . 117, 120-22 (2009); and Victoria Nourse , Misreading Law, Misreading Democracy 64-68 (2016).

140 S. Ct. 1731 (2020).

See Grove, supra note 1, at 266-67; William N. Eskridge, Jr. & Victoria F. Nourse , Textual Gerrymandering: The Eclipse of Republican Government in the Era of Statutory Populism , 96 N.Y.U. L. Rev. 1718, 1768-77 (2021); Abbe R. Gluck, Justice Scalia’s Unfinished Business in Statutory Interpretation: Where Textualism’s Formalism Gave Up , 92 Notre Dame L. Rev . 2053, 2061-67 (2017); Victoria Nourse , Textualism 3.0: Statutory Interpretation After Justice Scalia , 70 Ala. L. Rev. 667, 668-70 (2019).

See Territory of Guam v. United States, 141 S. Ct. 1608, 1613-14 (2021) (Thomas, J.); King v. Burwell, 576 U.S. 473, 492-98 (2015) (Roberts, C.J.); Niz -Chavez v. Garland, 141 S. Ct. 1474, 1482-85 (2021) (Gorsuch, J.); Johnson v. Guzman Chavez, 141 S. Ct. 2271, 2289-90 (2021) (Alito, J.); HollyFrontier Cheyenne Refin ., LLC v. Renewable Fuels Ass’n , 141 S. Ct. 2172, 2187-88 (2021) (Barrett, J., dissenting); Abramski v. United States, 573 U.S. 169, 181-83 (2014) (Kagan, J.); Roberts v. Sea-Land Servs., Inc., 566 U.S. 93, 101-04 (2012) (Sotomayor, J.); Barton v. Barr, 140 S. Ct. 1442, 1458-60 (2020) (Sotomayor, J., joined by Breyer, Kagan & Ginsburg, JJ., dissenting).

See, e.g. , William N. Eskridge, Jr., Abbe R. Gluck & Victoria F. Nourse , Statutes, Regulation, and Interpretation: Legislation and Administration in the Republic of Statutes 464, 470-71 (2014) [hereinafter Eskridge et al., Statutes, Regulation, and Interpretation ]; Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 180-82 (2012); William N. Eskridge, Jr., Interpreting Law: A Primer on How to Read Statutes and the Constitution 116 & n.80, 414 & nn.52-54 (2016) [hereinafter Eskridge, Interpreting Law] ; William N. Eskridge, Jr., James J. Brudney & Josh Chafetz , Legislation and Statutory Interpretation 246-53 (3d ed. 2022) [hereinafter Eskridge et al., Legislation and Statutory Interpretation ].

Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 353 (2013).

Santa Clara Pueblo v. Martinez , 436 U.S. 49, 61 (1978).

Burwell , 576 U.S. at 497.

5 U.S. (1 Cranch ) 137, 178-80 (1803); see also Amar, supra note 3, at 32 (commenting on the structural aspects of Justice Marshall’s opinion).

17 U.S. (1 Wheat.) 316, 381-88 (1819).

See, e.g. , Charles L. Black, Jr., Structure and Relationship in Constitutional Law 7-32 (1969); Philip Bobbitt, Constitutional Fate: Theory of the Constitution 74-92 (1982); Akhil Reed Amar, America’s Unwritten Constitution 1-47 (2012); Akhil Reed Amar, Intratextualism , 112 Harv. L. Rev. 747, 751-53 (1999) [hereinafter Amar, Intertextualism ]; Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation , 108 Harv. L. Rev . 1221, 1235-36 (1995); John F. Manning, The Supreme Court, 2013 Term—Foreword: The Means of Constitutional Power , 128 Harv. L. Rev . 1, 30-48 (2014); Casey L. Westover, Structural Interpretation and the New Federalism: Finding the Proper Balance Between State Sovereignty and Federal Supremacy , 88 Marq . L. Rev . 693, 695-99 (2005).

See infra notes 64-67 and accompanying text.

Clark v. Uebersee Finanz-Korporation , 332 U.S. 480, 488 (1947).

Eskridge , Interpreting Law, supra note 7, at 411.

Id. at 412-13.

See, e.g. , Anita S. Krishnakumar, Backdoor Purposivism , 69 Duke L.J. 1275, 1313-19 (2020) [hereinafter Krishnakumar, Backdoor Purposivism ]; Anita S. Krishnakumar, Dueling Canons , 65 Duke L.J. 909, 967-71 (2015).

This lacuna may be attributable to the Justices’ tendency to refer to “structure” when what they mean is really a different species of the whole-act rule, such as rules against surplusage or the rule of meaningful variation. See, e.g. , Alexander v. Sandoval, 532 U.S. 275, 288-89 (2001); HollyFrontier Cheyenne Refin ., LLC v. Renewable Fuels Ass’n , 141 S. Ct. 2172, 2187-88 (2021) (Barrett, J., dissenting).

See infra Section III .B (noting certain incompatibilities between textualism and structural argument).

See, e.g. , King v. Burwell, 576 U.S. 473, 492-97 (2015) (interpreting the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010) (codified in scattered sections of the U.S. Code)).

See, e.g. , Util. Air Regul . Grp. v. EPA, 573 U.S. 302, 319 (2014) (interpreting the Clean Air Act, 42 U.S.C. §§ 7401-7671q (2018)).

See, e.g. , Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 353-54 (2013) (interpreting Title VII of the Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (codified as amended in scattered sections of 42 U.S.C.)).

See, e.g. , Dean v. United States, 556 U.S. 568, 578-79 (2009) (Stevens, J., dissenting) (interpreting 18 U.S.C. § 924 (2018)).

See infra Part I.

See supra note 1.

Cf. Manning, supra note 3, at 78-91 ( addressing the “common ground” between textualists and purposivists ).

See Eskridge, supra note 2, at 660-63; George H. Taylor, Structural Textualism , 75 B.U. L. Rev . 321, 341-54 (1995) .

Coherent , Merriam-Webster , https: ‌ // ‌ www ‌ .merriam ‌ -webster ‌ .com ‌ /dictionary ‌ /coherent [https: ‌ // ‌ perma ‌ .cc ‌ /GPT3 ‌ -UAMY].

These categories, presented in the order found in this Note, might therefore be analogized to the “Funnel of Abstraction” that William N. Eskridge, Jr., Philip P. Frickey , and Elizabeth Garrett devised to illustrate their pragmatic method of statutory interpretation. See William N. Eskridge, Jr., Philip P. Frickey & Elizabeth Garrett, Cases and Materials on Statutory Interpretation 297 ( 2012).

See infra Section II .A.1.

See infra Section II .A.2.

See infra Section II .A.3.

See, e.g. , Cass R. Sunstein, Interpreting Statutes in the Regulatory State , 103 Harv. L. Rev . 405, 425 (1989) (describing structural argument as the maxim that “an interpretation should be disfavored if it would make the disputed provision fit awkwardly with another provision or produce internal redundancy or confusion”).

Eskridge et al., Legislation and Statutory Interpretation , supra note 7, at 247.

See infra Section II .B.1.

Clark v. Uebersee Finanz-Korporation , A.G., 332 U.S. 480, 489 (1947); see infra Section II .B.2.

I am not the first one to point out that the Roberts Court engages in this “backdoor purposivism.” Krishnakumar, Backdoor Purposivism , supra note 18, at 1276; see also Richard M. Re, The New Holy Trinity , 18 Green Bag 2d 407 , 417 (2015) (“[P] urposive and pragmatic considerations help set the Court’s interpretive expectations and so inform the Court’s textualist judgment.”). Nor am I the first to frame purposive arguments as a type of whole-act, structural argument. See Eskridge , Interpreting Law, supra note 7, at 105 (describing the “purpose canon” as the injunction that “the judge ought to interpret statutory provisions in light of the statutory plan”). However, I am the first to theorize the differences between purposive-structural arguments and other types of structural arguments and to demonstrate how structuralism is used to render purposive reasoning more palatable. Whether the Roberts Court, with its current conservative supermajority, continues to engage in such backdoor purposivism is a question that future scholarship will have to document.

See infra Sections III .B.1-2.

See Azar v. Allina Health Servs., 139 S. Ct. 1804, 1814 (2019) (“[L] egislative history is not the law.” ( quoting Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1631 (2018))).

Barbara Sinclair, Unorthodox Lawmaking: New Legislative Processes in the U.S. Congress passim (5th ed. 2016).

See King v. Burwell, 576 U.S. 473, 492-97 (2015).

See id. at 510-11 (Scalia, J., dissenting) (“Only by concentrating on the law’s terms can a judge hope to uncover the scheme of the statute , rather than some other scheme that the judge thinks desirable.”).

See id. at 508-09.

• statutory interpretation

Statutory interpretation is the process where courts interpret and apply legislation; also known as statutory construction . Although sometimes the words of a statute may have a plain meaning; in many cases there may be some level of ambiguity in the words of the statute that must be resolved by a  judge .To find the true meanings of statutes, judges use various tools of statutory interpretation, including traditional canons of statutory interpretation, legislative history, and purpose.

In the United States, there are two main theories of statutory interpretation ( purposivism and textualism ) on how judges can best adhere to this ideal of legislative supremacy. Regardless of their interpretive theory, judges use a lot of the same tools to gather evidence of statutory meaning, as followed:

• Judges often begin by looking at the ordinary meaning of the statutory text. 
• Courts interpret specific provisions by looking at the broader statutory context. 
• Judges may turn to the canons of construction , which are guides and presumptions about how courts ordinarily read statutes. 
• Courts may look at the legislative history of a provision. 
• Judges may consider how a statute has been implemented. 

Although both purposivists and textualists may use these same tools, judges’ theory of statutory interpretation may influence the order in which these tools are applied and how much weight is given to each tool.

[Last updated in August of 2022 by the Wex Definitions Team ] 

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Statutory Interpretation

2 Essay Statutes’ Domains and Judges’ Prerogatives David A. Strauss Gerald Ratner Distinguished Service Professor of Law, The University of Chicago Law School Judicial Decision-Making Statutory Interpretation Textualism

2 Essay The Limits of Textualism: Cooper v IBM Personal Pension Plan Julie A. Roin Seymour Logan Professor of Law, The University of Chicago Law School Statutory Interpretation Textualism

I benefited greatly from conversations with Zak Rosenfield, Rosalind Dixon, and Julie Roin.

I am grateful to participants in workshops at the Harvard, University of Virginia, University of Michigan, and University of Chicago Law Schools, and to Mary Anne Case, Barry Cushman, Elizabeth Emens, Richard Fallon, Barry Friedman, Don Herzog, Christine Jolls, Michael Klarman, Jacob Levy, Eric Posner, Richard Primus, Adam Samaha, Kirsten Smolensky, Geoffrey Stone, Cass Sunstein, John Sylla, and Adrian Vermeule for comments on earlier versions of this Article. I also thank Mark Sherman and Karen Courtheoux for excellent research assistance and the Sonnenschein Faculty Fund at The University of Chicago Law School for financial support.

Thanks to John Gardner, Leslie Green, Mark Greenberg, and Scott Shapiro for useful discussion of these issues on various occasions, and to Greenberg for quite helpful discussion of an early draft of this Article. I also benefited from questions and comments by students in my Spring 2007 Jurisprudence class at the University of Texas at Austin when we discussed this topic. Workshop audiences at a variety of venues provided valuable feedback and discussion: the Faculty of Law and Program in Social and Political Theory, Research School of Social Sciences, Australian National University; UCLA School of Law; the Institute for Philosophical Investigation, National Autonomous University of Mexico; the jurisprudence departments of the Faculties of Law at the Universities of Genoa in Italy and Girona in Spain, and the University of Chicago Law School. Of the many who helped me on these occasions, I should mention especially Peter Cane, Riccardo Guastini, Larry Laudan, Adam Muchmore, Martha Nussbaum, Giovanni Ratti, Jane Stapleton, and Ed Stein.

2 Comment 79.1 Life during (and after) Wartime: Enforceability of Waivers under USERRA David Ogles BA 2007, Emory University; JD Candidate 2012, University of Chicago Law School Labor Law Statutory Interpretation War and Conflict

We thank Jim Brudney, Annie Decker, Jeffrey Dobbins, Amanda Frost, Abbe Gluck, Helen Hershkoff, the Honorable Hans Linde (retired Justice of the Oregon Supreme Court), Jeffrey Pojanowski, David Pozen, and Mark Tushnet for incisive comments on earlier drafts; Michelle Anderson, Richard Schragger, Richard Briffault, Rick Hills, and Howie Erichson for conversations about aspects of this project; and Joseph Struble for research assistance. Portions of this Article were presented at the 2012 meeting of the Association of American Law Schools, where the audience provided helpful feedback. Professor Leib also thanks the one hundred or so students in his Legislation classes at UC Berkeley and at UC Hastings who provided an answer on a final exam to the question of how, if at all, elected judges should interpret statutes differently from their federal counterparts.

2 Comment 80.1 Deference to Agency Statutory Interpretations First Advanced in Litigation? The Chevron Two-Step and the Skidmore Shuffle Bradley George Hubbard BS 2010, University of Missouri; MAcc 2010, University of Missouri; JD Candidate 2013, The University of Chicago Law School Administrative Law Chevron Statutory Interpretation

My thanks to Gary Lawson, Larry Solum, and Sherif Girgis for comments on fragments of early drafts. (Do not blame them for what I say.)Akhil Amar is an old and dear friend. We were roommates and constitutional law sparring partners as students at Yale Law School in the early 1980s. We disagreed wildly and occasionally vehemently—yet somehow still cheerfully—over many things. We continue to disagree over a great many things today—including (as this review demonstrates) nearly everything in his recent book. As noted below, I have reviewed two of Akhil’s other books highly favorably. See note 3. I hope he will forgive me this unfavorable— but still cheerful—review, which I offer in the same spirit as our dorm-room screaming matches thirty years ago. (You told me I could let you have it, if I thought you deserved it, Akhil. Well, here it is!)

2 Comment 81.3 Maybe Once, Maybe Twice: Using the Rule of Lenity to Determine Whether 18 USC § 924(c) Defines One Crime or Two F. Italia Patti BA 2008, The University of Chicago; JD Candidate 2014, The University of Chicago Law School Criminal Defense Criminal Law Sentencing Statutory Interpretation

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STATUTORY INTERPRETATION FROM THE OUTSIDE

Kevin tobia,* brian g. slocum** & victoria nourse***.

How should judges decide which linguistic canons to apply in inter­preting statutes? One important answer looks to the inside of the legisla­tive process: Follow the canons that lawmakers contemplate. A different answer, based on the “ordinary meaning” doctrine, looks to the outside: Follow the canons that guide an ordinary person’s understanding of the legal text. We offer a novel framework for empirically testing linguistic canons “from the outside,” recruiting 4,500 people from the United States and a sample of law students to evaluate hypothetical scenarios that correspond to each canon’s triggering conditions. The empirical findings provide evidence about which traditional canons “ordinary meaning” actually supports.

This Essay’s theory and empirical study carry several further impli­cations. First, linguistic canons are not a closed set. We discovered possi­ble new canons that are not yet reflected as legal canons, including a “nonbinary gender canon” and a “quantifier domain restriction canon.” Second, we suggest a new understanding of the ordinary mean­ing doctrine itself, as one focused on the ordinary interpretation of rules, as opposed to the traditional focus on “ordinary language” generally. Third, many of the canons reflect that ordinary people interpret rules with an intuitive anti-literalism. This anti-literalism finding challenges textualist assumptions about ordinary meaning. Most broadly, we hope this Essay initiates a new research program in empirical legal interpretation. If ordinary meaning is relevant to legal interpretation, interpreters should look to evidence of how ordinary people actu­ally understand legal rules. We see our experiments as a first step in that new direction.

The full text of this Essay can be found by clicking the PDF link to the left.

* Associate Professor of Law, Georgetown University Law Center.

** Distinguished Professor of Law, University of the Pacific, McGeorge School of Law.

*** Ralph V. Whitworth Professor of Law, Georgetown University Law Center. For helpful comments, we thank Bernard Black, Bill Buzbee, Erin Carroll, Josh Chafetz, Christoph Engel, Andreas Engert, William Eskridge, Ezra Friedman, Brian Galle, Neal Goldfarb, Hanjo Hamann, Joe Kimble, Anita Krishnakumar, Tom Lee, Daniel Rodriguez, Corrado Roversi, Sarath Sanga, Mike Seidman, Amy Semet, Josh Teitelbaum, Michele Ubertone, and audiences at the Free University of Berlin Empirical Legal Studies Center, the Max Planck Institute for Research on Collective Goods, Georgetown University Law Center, Northwestern University Law School, the University of Chicago Law School, and the University of Bologna. For outstanding editorial assistance, we thank Larisa Antonisse and the staff of the Columbia Law Review . This empirical research was funded by the Swiss National Science Foundation Spark Grant for “The Ordinary Meaning of Law,” CRSK-1_190713.

Introduction

“American courts have no intelligible, generally accepted, and con­sistently applied theory of statutory interpretation.” 1 1 Henry M. Hart, Jr. & 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). ... Close This Hart and Sacks lament is frequently quoted but misleading. 2 2 See David S. Louk, The Audiences of Statutes, 105 Cornell L. Rev. 137, 150 (2019) (“A common trope in discussions of statutory interpretation theory is that American judges lack a principled method of interpreting statutes, something legal theorists and members of the judiciary alike have long recognized.”). ... Close Despite extensive and ongo­ing debate about how to interpret statutes, most plausible theories share one common principle: a commitment to “ordinary meaning.” 3 3 See Brian G. Slocum, Ordinary Meaning: A Theory of the Most Fundamental Principle of Legal Interpretation 1–3 (2015) [hereinafter Slocum, Ordinary Meaning]; see also William N. Eskridge, Interpreting Law: A Primer on How to Read Statutes and the Constitution 33–41 (2016) [hereinafter Eskridge, Interpreting Law]; Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 33 (2012); Lawrence M. Solan, The Language of Statutes: Laws and Their Interpretation 53 (2010). ... Close This Essay focuses on statutory interpretation, but its theory and empirical analysis may extend more broadly. “Ordinary meaning” plays a crucial role in in­terpreting most legal texts: from contracts and wills, to treaties and the U.S. Constitution. 4 4 See, e.g., Cal. Civ. Code § 1644 (2018) (“The words of a contract are to be understood in their ordinary and popular sense . . . .”); Cal. Prob. Code § 21122 (2018) (“The words of an instrument are to be given their ordinary and grammatical meaning unless the intention to use them in another sense is clear and their intended meaning can be ascertained.”); Curtis J. Mahoney, Note, Treaties as Contracts: Textualism, Contract Theory, and the Interpretation of Treaties, 116 Yale L.J. 824, 829–32 (2007) (describing the Supreme Court’s recent approach to treaty interpretation, which often focuses on the plain meaning of terms in a treaty); Lawrence B. Solum, The Constraint Principle: Original Meaning and Constitutional Practice 3 (Apr. 3, 2019), https://ssrn.com/abstract=2940215 [https://perma.cc/P7JR-9RDM] (unpublished manuscript) (“The dominant strain of con- temporary originalism emphasizes the public meaning of the constitutional text . . . .”). ... Close Normatively, the doctrine often finds justification for “ordinary” language principles based on notice, predictability, and the no­tion that the public should be able to read, understand, and rely upon legal texts. 5 5 See William N. Eskridge Jr., Brian G. Slocum & Stefan Th. Gries, The Meaning of Sex : Dynamic Words, Novel Applications, and Original Public Meaning, 119 Mich. L. Rev. 1503, 1516–17 (2021) [hereinafter Eskridge et al., The Meaning of Sex]. ... Close

Increasingly, the Supreme Court has emphasized that the interpretive process begins by giving statutory language its ordinary meaning. 6 6 See, e.g., Bostock v. Clayton County, 140 S. Ct. 1731, 1738 (2020) (“This court normally interprets a statute in accord with the ordinary public meaning of its terms . . . .”); Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2364 (2019) (“In statutory interpretation disputes, a court’s proper starting point lies in a careful examination of the ordinary meaning and structure of the law itself.”). ... Close For some, interpretation begins and ends with ordinary meaning. Modern tex­tualists believe that ordinary meaning should significantly constrain inter­pretation; other considerations enter only if ordinary meaning is indeter­minate. 7 7 See, e.g., Victoria Nourse, Textualism 3.0: Statutory Interpretation After Justice Scalia, 70 Ala. L. Rev. 667, 669 (2019) (acknowledging but questioning the premise that ordinary meaning constrains as between results in a case). ... Close Purposivists agree that ordinary meaning is at least relevant to interpretation, 8 8 See, e.g., Eskridge, Interpreting Law, supra note 3, at 35 (“There are excellent reasons for the primacy of the ordinary meaning rule.”). ... Close alongside other criteria including legislative intent (typi­cally ascertained via legislative history). 9 9 See Robert A. Katzmann, Judging Statutes 31–35 (2014) (explaining the purposivist approach to statutory interpretation). ... Close Few deny that ordinary meaning is regularly deployed by all members of the current Supreme Court. 10 10 As Justice Elena Kagan famously declared of the Court, “We’re all textualists now.” Harvard Law School, The Scalia Lecture: A Dialogue with Justice Kagan on the Reading of Statutes, YouTube, at 08:29 (Nov. 25, 2015), https://youtu.be/dpEtszFT0Tg (on file with the Columbia Law Review ). This statement depends upon an essential ambiguity: whether one begins or ends with the text. ... Close Con­sider the Court’s recent landmark decision in Bostock v. Clayton County . 11 11 140 S. Ct. 1731. ... Close The Justices divided sharply, but all the opinions—both the majority and two dissents—invoked “ordinary meaning” in determining whether the term “sex” in Title VII’s antidiscrimination provision includes sexual orientation and transgender discrimination. 12 12 Id. at 1750 (Gorsuch, J.) (“[T]he law’s ordinary meaning at the time of enactment usually governs . . . .”); id. at 1767 (Alito, J., dissenting) (“The ordinary meaning of discrimination because of ‘sex’ was discrimination because of a person’s biological sex, not sexual orientation or gender identity.”); id. at 1825 (Kavanaugh, J., dissenting) (“[C]ourts must follow ordinary meaning, not literal meaning.”). ... Close Not surprisingly, cutting-edge statutory interpretation theory has turned its focus on “ordinary meaning.” 13 13 E.g., Tara Leigh Grove, Which Textualism?, 134 Harv. L. Rev. 265 (2020); Anita S. Krishnakumar, MetaRules for Ordinary Meaning, 134 Harv. L. Rev. Forum 167 (2021) [hereinafter Krishnakumar, MetaRules]; Thomas R. Lee & Stephen C. Mouritsen, Judging Ordinary Meaning, 127 Yale L.J. 788 (2018); James A. Macleod, Finding Original Public Meaning, 56 Ga. L. Rev. (forthcoming 2021), https://ssrn.com/abstract=3729005 [https://perma.cc/8DCR-EFK6] [hereinafter Macleod, Finding Original Public Meaning]; Slocum, Ordinary Meaning, supra note 3; Lawrence M. Solan & Tammy Gales, Finding Ordinary Meaning in Law: The Judge, the Dictionary, or the Corpus?, 1 Int’l J. Legal Discourse 253 (2016); Kevin P. Tobia, Testing Ordinary Meaning, 134 Harv. L. Rev. 726 (2020) [hereinafter Tobia, Testing Ordinary Meaning]; Kevin Tobia & John Mikhail, Two Types of Empirical Textualism, 86 Brook. L. Rev. 461 (2021). ... Close

In fact, “ordinary meaning” is likely to grow in importance. Figure 1 reflects citations to “ordinary meaning,” “plain meaning,” and “legislative history” across six million U.S. cases in Harvard Law School’s Caselaw Ac­cess Project. Over the past fifty years, citation to “ordinary meaning” has tripled. By way of comparison, citation to “legislative history” has halved from its peak.

Figure 1. U.S. Case Law Citations to Ordinary Meaning, Plain Meaning, and Legislative History 14 14 [1]. Caselaw Access Project, Harv. L. Sch. (2018) (retrieved Nov. 2, 2021). ... Close

These patterns provide a rough impression of interpretive trends. More robust empirical work supports the same conclusion, particularly in high-profile Supreme Court cases. A recent study of the Supreme Court’s use of interpretive tools found that between 2005 and 2017, the Roberts Court relied on “text” and “plain meaning” in 41% of all opinions and 50% of majority opinions. 15 15 Anita S. Krishnakumar, Cracking the Whole Code Rule, 96 N.Y.U. L. Rev. 76, 97 (2021). ... Close The Court relied on text more than intent, purpose, or legislative history. 16 16 See id. ... Close The Court has recently gained three new textualists, as lower federal courts welcome a new cohort of exceptionally young judges, similarly committed to textualism. 17 17 See John Gramlich, How Trump Compares With Other Recent Presidents in Appointing Federal Judges, Pew Rsch. Ctr. (Jan. 13, 2021), https://www.pewresearch.org/fact-tank/2021/01/13/how-trump-compares-with-other-recent-presidents-in-appointing-federal-judges/ [https://perma.cc/R7L9-4D8P]; Moiz Syed, Charting the Long-Term Impact of Trump’s Judicial Appointments, ProPublica (Oct. 30, 2020), https://projects.propublica.org/trump-young-judges/ [https://perma.cc/W3AX-YRR3] (explaining that President Trump appointed a record number of federal judges and that his appointees to the Supreme Court and appeals courts are younger than appointees by presidents going back to President Nixon by about four years on average); see also Jason Zengerle, How the Trump Administration Is Remaking the Courts, N.Y. Times Mag. (Aug. 22, 2018), https://www.nytimes.com/2018/08/22/magazine/trump-remaking-courts-judiciary.html (on file with the Columbia Law Review ) (noting President Trump’s “commit[ment] to . . . nominating and appointing judges that are committed originalists and textualists” (internal quotation marks omitted) (quoting Donald McGahn, White House counsel to President Trump)). ... Close

So how do courts determine a statute’s “ordinary meaning”? Sometimes the debate centers on the meaning of individual terms, 18 18 See Victoria Nourse, Misreading Law, Misreading Democracy 18 (2016) [hereinafter Nourse, Misreading Law] (arguing that there are almost always two apparent meanings for key terms). ... Close with judges increasingly relying on tools like dictionaries. 19 19 See, e.g., James J. Brudney & Lawrence Baum, Oasis or Mirage: The Supreme Court’s Thirst for Dictionaries in the Rehnquist and Roberts Eras, 55 Wm. & Mary L. Rev. 483, 493 (2013) (arguing that dictionaries have been “overused and abused by the Court”). ... Close Dictionaries provide evi­dence about how individual terms are used in nonlegal communications. 20 20 Although dictionaries can provide general information about word meanings, the judicial practice of relying on dictionaries to define statutory terms is fraught with problems. See Ellen P. Aprill, The Law of the Word: Dictionary Shopping in the Supreme Court, 30 Ariz. St. L.J. 275, 297–30 (1998) (stating that the level of “linguistic analysis” performed by courts rarely rises above “dictionary shopping”). ... Close But statutes contain complex expressions, with terms embedded in specific contexts. 21 21 See generally Peter M. Tiersma, Some Myths About Legal Language, 2 Law, Culture & Humanities 29 (2005) [hereinafter Tiersma, Myths] (explaining that the way legal texts are drafted adds to their complexity). ... Close This complexity raises difficult questions about the relationship between the conventional meaning of a term and its context.

Often, contextual patterns are so frequently repeated that they are taken to trigger regular assumptions about “ordinary meaning.” Take the well-known case of McBoyle v. United States , which required the Court to determine whether an airplane is a “vehicle” under the National Motor Vehicle Theft Act. 22 22 283 U.S. 25, 25–26 (1931). ... Close This Act punishes those who knowingly transport a stolen “automobile, automobile truck, automobile wagon, motor cycle, or any other self-propelled vehicle not designed for running on rails.” 23 23 See id. ... Close Jus­tice Oliver Wendell Holmes Jr., writing for the Court, found that the stat­ute did not apply to an aircraft: An airplane is not a vehicle. 24 24 See id. at 26. ... Close

If one focuses on the term “vehicle,” the Court’s conclusion might seem puzzling. Isn’t an airplane a vehicle? 25 25 Some have questioned whether the ordinary meaning of “vehicle” includes air- planes. See Lee & Mouritsen, supra note 13, at 840. Nevertheless, even if some doubt exists, the specific context in McBoyle significantly bolstered the Court’s claim that an airplane was not a vehicle. See McBoyle , 283 U.S. at 26. ... Close But any puzzlement lessens when we consider the ordinary meaning of “vehicle” in context . The general words, “any other . . . vehicle,” come after a long list of more spe­cific terms: automobile, automobile truck, automobile wagon, and motor­cycle. 26 26 McBoyle , 283 U.S. at 26. ... Close Perhaps, based on this context, an ordinary reader would under­stand the statutory rule to be more specific: “Vehicle” refers to automobiles, motorcycles, and similar entities, like buses, that are designed for traveling on land. But vehicles of a very different nature (e.g., canoes or airplanes) are not “vehicles” in this context. 27 27 For Justice Brett Kavanaugh, even the question whether a baby stroller is a vehicle in this context may be difficult. See Bostock v. Clayton County, 140 S. Ct. 1731, 1825 (2020) (Kavanaugh, J., dissenting) (asserting that a “statutory ban on ‘vehicles in the park’ would literally encompass a baby stroller” but that “the word ‘vehicle,’ in its ordinary meaning, does not encompass baby strollers”). ... Close “Vehicle” thus communicates something different when it is placed at the end of a list in a rule. The ejusdem generis canon captures this intuition: When general words follow an enumerated class of things, the general words should be construed to apply to things of the same general nature. 28 28 See Larry Alexander, Bad Beginnings, 145 U. Pa. L. Rev. 57, 65 (1996) (“When general words follow specific words in a statute, the general words are to be given a ‘sense analogous to that of the particular words.’” (quoting Scott Brewer, Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument by Analogy, 109 Harv. L. Rev. 923, 937 (1996))); see also infra section I.C. ... Close Thus, a statute referring just to “vehicles” may include airplanes as vehicles, but a statute that includes “vehicles” at the end of a list of specific examples might con­vey a different, narrower meaning.

Judges rely heavily on dozens of interpretive principles like ejusdem generis . 29 29 See William N. Eskridge, Jr., Philip P. Frickey, Elizabeth Garrett & James J. Brudney, Cases and Materials on Legislation and Regulation: Statutes and the Creation of Public Policy 1195–215 (5th ed. 2014) [hereinafter Eskridge et al., Cases and Materials 2014] (identifying at least 161 different interpretive canons). ... Close These principles are so long standing and frequently applied that they are referred to as “canons” of interpretation. 30 30 See id. at 1195. ... Close In fact, judges cite in­terpretive canons more frequently now than in the past. 31 31 See Anita S. Krishnakumar & Victoria F. Nourse, The Canon Wars, 97 Tex. L. Rev. 163, 167 (2018) (arguing that recent Supreme Court cases have focused extensively on the canons of construction); Nina A. Mendelson, Change, Creation, and Unpredictability in Statutory Interpretation: Interpretive Canon Use in the Roberts Court’s First Decade, 117 Mich. L. Rev. 71, 73 (2018) (“The lion’s share of Roberts Court majority opinions engages at least one interpretive canon in resolving a question of statutory meaning.” ). ... Close Yet, some courts and commentators also criticize canons as unjustified. 32 32 See, e.g., Jesse M. Cross, When Courts Should Ignore Statutory Text, 26 Geo. Mason L. Rev. 453, 459–60 (2018) (arguing that many canons of construction must be modified or discarded because they are inaccurate). ... Close

Debates about canons’ justification center on two very different em­pirical questions. One concerns whether legislative authors contemplate the canon when drafting. 33 33 See, e.g., Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation From the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 906–07 (2013) [hereinafter Gluck & Bressman, Statutory Interpretation Part I] (surveying congressional staff and finding that many either ignore or reject certain canons). ... Close The other concerns whether the canon reflects how ordinary people reading the statute would understand the language. 34 34 Cf. William N. Eskridge Jr. & Victoria F. Nourse, Textual Gerrymandering: The Eclipse of Republican Government in an Era of Statutory Populism, N.Y.U. L. Rev. (forthcoming 2021) (manuscript at 4), https://ssrn.com/abstract=3809925 [https://perma.cc/SE3M-CGP4] (noting some scholars’ concern that canons may be manipulated to “create an arbitrary façade of plain meaning”). These explanations of the justifications are slightly oversimplified. In each case, it is possible that a canon might be justified even if the authors or audience could not themselves name the canon. For example, even if legislative drafters are unfamiliar with the term “ ejusdem generis ,” it might be that applying the rule nevertheless helpfully captures features of intended meaning. Similarly, most non-lawyers would be unfamiliar with the term “ ejusdem generis .” But it might be that the rule nevertheless helps explain how ordinary people understand statutory language. In each case, the key empirical question is about whether applying the canon brings interpreters closer to meaning—intended or ordinary. ... Close William Eskridge and Victoria Nourse have described these justifications as grounded in the “production” versus the “consumer” economies of statutory interpretation. 35 35 See id. at 2. ... Close The production economy emphasizes the statute’s authors; the consumer economy emphasizes its readers. 36 36 See id. ... Close

The empirical claim that canons reflect the meanings of the statute’s producers or authors motivated Abbe Gluck and Lisa Bressman’s seminal work: Statutory Interpretation from the Inside . 37 37 Gluck & Bressman, Statutory Interpretation Part I, supra note 33, at 905. ... Close In 2013, Gluck and Bressman published a survey of 137 congressional staffers from both chambers of Congress on topics relating to statutory interpretation, including the staf­fers’ knowledge and use of interpretive canons. 38 38 See Lisa Schultz Bressman & Abbe R. Gluck, Statutory Interpretation From the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. 725, 728 (2014) [hereinafter Bressman & Gluck, Statutory Interpretation Part II]; Gluck & Bressman, Statutory Interpretation Part I, supra note 33, at 905–06. Judges have cited the Gluck and Bressman studies for the proposition that canons should not be used in interpretation since they are not deployed by drafters. See, e.g., James v. Heinrich, 960 N.W.2d. 350, 380 (Wis. 2021) (Dallett, J., dissenting). Our study focuses on a different population, ordinary readers, and suggests that ordinary readers understand law consistently with many (but not all) linguistic canons. ... Close The survey, designed to explore the role the realities of legislative drafting should play in the the­ories and doctrines of statutory interpretation, revealed that there are some canons the drafters know and use, some the drafters reject in favor of other considerations, and some the drafters do not know as rules but that seem to accurately reflect how Congress drafts. 39 39 See Bressman & Gluck, Statutory Interpretation Part II, supra note 38, at 732–33. In 2002, Victoria Nourse and Jane Schacter published the first case study of legislative drafting by Senate Judiciary Committee staffers, assuming that, of all congressional staffers, these were the “ most likely to be schooled in the rules of clarity, canons of construction, and statutory interpretation.” Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. Rev. 575, 582 (2002). The authors found that canons were not a “central part” of the drafting process. Id. at 614. As one staffer explained, “[W]e are conscious of . . . what a court will do, but not at the level of expressio unius .” Id. at 601. In future work, we hope to ask congressional staffers the same questions we have posed to ordinary readers in this study. ... Close

Critics of Gluck and Bressman, however, maintain that “insiders’” views on canons are not the relevant measure; such studies simply seek to unearth an unfathomable congressional mind. 40 40 John F. Manning, Without the Pretense of Legislative Intent, 130 Harv. L. Rev. 2397, 2430–31 (2017); see also Amy Coney Barrett, Congressional Insiders and Outsiders, 84 U. Chi. L. Rev. 2193, 2200–01 (2017) (arguing that Gluck and Bressman take the position of the “hypothetical insider who knows how Congress works” whereas the textualist insists that the “relevant user of language be ordinary ”); John F. Manning, Inside Congress’s Mind, 115 Colum. L. Rev. 1911, 1941 (2015) [hereinafter Manning, Inside Congress’s Mind] (arguing that the Gluck and Bressman studies support skepticism about looking for answers in Congress’s mind). ... Close Rather than focus on the producers of statutes, they urge focus on the consumers of statutes, the ordinary reader. As Justice Samuel Alito just urged  in  the  2020–2021  Term,  canons  are  only  useful  if  they  reflect  ordinary meaning. 41 41 See Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1175 (2021) (Alito, J., concurring). For the theoretical importance of ordinary meaning, see Slocum, Ordinary Meaning, supra note 3, at 1–3. ... Close That is, a canon’s validity comes from ordinary people’s linguistic practices. The key question would be: Is the canon a guide to how ordinary people would under­stand the language in the statute? For example, when considering the stat­ute at issue in McBoyle , would an ordinary person implicitly understand that the scope of “any other . . . vehicle” is partly restricted—meaning not literally any vehicle but only those sufficiently similar to the enumerated ones? If yes, this would support an empirically based justification for ejusdem generis , grounded not in legislative intent or practice but in ordi­nary meaning. 42 42 It would also suggest that “any vehicle” does not always mean literally any vehicle. We propose a new ordinary meaning canon, the “quantifier domain restriction canon,” that reflects this possibility. See infra section I.C. ... Close

The Supreme Court increasingly relies on text and ordinary meaning to resolve interpretive disputes, as do lower courts. 43 43 See supra notes 6–17 and accompanying text (noting courts’ increasing reliance on text and ordinary meaning). ... Close This calls for a complement to Gluck and Bressman’s groundbreaking empirical work, namely a new analysis of statutory interpretation from the outside . Recently, Chief Justice John Roberts alluded to this intriguing possibility in oral argument:

[If] our objective is to settle upon the most natural meaning of the statutory language to an ordinary speaker of English . . . the most probably useful way of settling all these questions would be to take a poll of 100 ordinary . . . speakers of English and ask them what [the statute] means, right? 44 44 Transcript of Oral Argument at 51–52, Facebook, Inc. , 141 S. Ct. 1163 (No. 19-511), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2020/19-511_l537.pdf [https://perma.cc/XEP7-QBE5]. ... Close

Such an approach was once considered beyond legal academics’ ca­pacity, 45 45 See Adrian Vermeule, Interpretation, Empiricism, and the Closure Problem, 66 U. Chi. L. Rev. 698, 701 (1999) (“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.”). ... Close but no more. There is a rich and growing literature in psychology, linguistics, and cognitive science concerning people’s understanding of language. 46 46 See, e.g., Dirk Geeraerts, Theories of Lexical Semantics 230 (2010) (“[N]ew word senses emerge in the context of actual language use.”). ... Close In law, the new field of “experimental jurisprudence” has already demonstrated that scholars can conduct experiments to better understand the ordinary cognition of law. 47 47 The field builds on work in experimental philosophy. See, e.g., Joshua Knobe & Shaun Nichols, An Experimental Philosophy Manifesto, in Experimental Philosophy 3 (Joshua Knobe & Shaun Nichols eds., 2008); Stephen Stich & Kevin P. Tobia, Experimental Philosophy and the Philosophical Tradition, in A Companion to Experimental Philosophy 5 (Justin Sytsma & Wesley Buckwalter eds., 2016). For an empirical study assessing the replicability of experimental philosophy studies, see Florian Cova, Brent Strickland, Angela Abatista, Aurélien Allard, James Andow, Mario Attie, James Beebe, Renatas Berniūnas, Jordane Boudesseul, Matteo Colombo, Fiery Cushman, Rodrigo Diaz, Noah N’Djaye, Nikolai van Dongen, Vilius Dranseika, Brian D. Earp, Antonio Gaitán Torres, Ivar Hannikainen, José V. Hernández-Conde, Wenjia Hu, François Jaquet, Kareem Khalifa, Hanna Kim, Markus Kneer, Joshua Knobe, Miklos Kurthy, Anthony Lantian, Shen-yi Liao, Edouard Machery, Tania Moerenhout, Christian Mott, Mark Phelan, Jonathan Phillips, Navin Rambharose, Kevin Reuter, Felipe Romero, Paulo Sousa, Jan Sprenger, Emile Thalabard, Kevin Tobia, Hugo Viciana, Daniel Wilkenfeld & Xiang Zhou, Estimating the Reproducibility of Experimental Philosophy, 12 Rev. Phil. & Psych. 9 (2021). See generally The Cambridge Handbook of Experimental Jurisprudence (Kevin Tobia ed., forthcoming). ... Close Thus far, those studies have focused on central legal concepts, such as causation, 48 48 See Joshua Knobe & Scott Shapiro, Proximate Cause Explained: An Essay in Experimental Jurisprudence, 88 U. Chi. L. Rev. 165 (2021); James A. Macleod, Ordinary Causation: A Study in Experimental Statutory Interpretation, 94 Ind. L.J. 957 (2019). ... Close con­sent, 49 49 See Roseanna Sommers, Commonsense Consent, 129 Yale L.J. 2232 (2020). ... Close intent, 50 50 See Markus Kneer & Sacha Bourgeois-Gironde, Mens Rea Ascription, Expertise and Outcome Effects: Professional Judges Surveyed, 169 Cognition 139 (2017); Sydney Levine, John Mikhail & Alan M. Leslie, Presumed Innocent? How Tacit Assumptions of Intentional Structure Shape Moral Judgment, 147 J. Experimental Psych.: Gen. 1728 (2018). ... Close reasonableness, 51 51 See Christopher Brett Jaeger, The Empirical Reasonable Person, 72 Ala. L. Rev. 887 (2021); Kevin P. Tobia, How People Judge What Is Reasonable, 70 Ala. L. Rev. 293 (2018) [hereinafter Tobia, How People Judge What Is Reasonable]. ... Close law itself, 52 52 E.g., Brian Flanagan & Ivar R. Hannikainen, The Folk Concept of Law: Law Is Intrinsically Moral, Australasian J. Phil. (2020); Ivar R. Hannikainen, Kevin P. Tobia, Guilherme da F. C. F. de Almeida, Raff Donelson, Vilius Dranseika, Markus Kneer, Niek Strohmaier, Piotr Bystranowski, Kristina Dolinina, Bartosz Janik, Sothie Keo, Eglė Lauraitytė, Alice Liefgreen, Maciej Próchnicki, Alejandro Rosas & Noel Struchiner, Are There Cross-Cultural Legal Principles? Modal Reasoning Uncovers Procedural Constraints on Law, Cognitive Sci., Aug. 2021, at 1. ... Close and many others. 53 53 Kevin P. Tobia, Law and the Cognitive Science of Ordinary Concepts, in Law and Mind: A Survey of Law and the Cognitive Sciences 86 (2021) (examining the relationship between folk psychology (laypeople’s commonsense understandings) and the law); Kevin P. Tobia, Experimental Jurisprudence, 89 U. Chi. L. Rev. (forthcoming 2022), https://ssrn.com/abstract=3680107 [https://perma.cc/XJW9-SYJV] [hereinafter Tobia, Experimental Jurisprudence] (debunking myths about experimental jurisprudence and arguing that it is a form of traditional jurisprudence rather than a social scientific replacement of jurisprudence). ... Close Other studies have focused on how ordinary people understand word meanings or how they would resolve specific interpretive disputes. 54 54 See, e.g., Omri Ben-Shahar & Lior Jacob Strahilevitz, Interpreting Contracts via Surveys and Experiments, 92 N.Y.U. L. Rev. 1753, 1765 (2017); Shlomo Klapper, Soren Schmidt & Tor Tarantola, Ordinary Meaning From Ordinary People (unpublished manuscript) (on file with the Columbia Law Review ). ... Close But, as the McBoyle case suggests, the ordinary meaning of statutes does not arise solely from individual word meanings, and commonly occurring types of context and inferences are also important topics of study. Statutes are writ­ten in sentences, which must be interpreted in light of relevant context in order to understand the rules expressed. An important legal-interpretive question concerns how ordinary people tend to understand this kind of language.

This Essay takes a first step in this new direction: the empirical study of interpretive canons from an ordinary meaning perspective. Surveying ordinary people might seem straightforward, but designing useful experiments requires very careful theory. In Part I, we develop a framework for empirically testing interpretive canons. We describe the three relevant el­ements of interpretive canons (triggering, application, and cancellation) and explain that the triggering element is our focus. A canon’s “trigger” is the linguistic condition making the canon applicable, such as a comma or a certain word or type of phrase. 55 55 See infra section I.A. ... Close This focus, we argue, is necessary to determine whether ordinary people implicitly apply an interpretive canon in accordance with its definition. In addition, focusing on canon triggers has the potential to help resolve longstanding interpretive problems that have plagued courts, such as poorly defined canons and conflicts between canons.

In Parts II and III, we implement our framework through a survey of 4,500 demographically representative people recruited from the United States, as well as a sample of over one-hundred first-year U.S. law students. The survey tested over a dozen interpretive canons. 56 56 The canons tested include what we term “Category One” canons, which have relatively straightforward triggering conditions, as well as “Category Two” canons, which have more complex triggering conditions. For a list of the canons and their definitions, see infra Part II. ... Close Our study provides crucial evidence for textualists and others committed to ordinary meaning. Currently, judges and scholars assume that certain canons reflect or­dinary meaning on the basis of intuition or tradition. The survey directly addresses this fundamental empirical question about ordinary meaning: Which (if any) of the interpretive canons actually reflect how ordinary peo­ple understand language? 57 57 The survey posed hypothetical scenarios, corresponding to each canon’s triggering conditions, to determine whether ordinary people implicitly invoke the canons when interpreting both legal and nonlegal rules. To preview our findings: Many existing interpretive canons reflect how ordinary people understand rules, but some popular canons do not. For instance, ordinary people interpret rules in ways that correspond with various longstanding canons such as ejusdem generis and noscitur a sociis but not in accordance with the popular but frequently criticized canon expressio unius est exclusio alterius . In addition, ordinary people implicitly resolve the conflict between the series-qualifier canon and the rule of the last antecedent by interpreting modifiers consistently with the series-qualifier canon. ... Close

Part IV considers three broader implications of our work for statutory interpretation theory. First, the results support a new approach toward “or­dinary meaning” itself. There is great debate concerning whether that doc­trine refers to the ordinary meaning of (1) “legal language” or (2) “ordi­nary language.” We find that people intuitively apply canons across both legal and ordinary rules. That is, surprisingly little turns on whether people understand language as ordinary or legal, so long as it is language in a rule. We suggest that the legal/ordinary language dichotomy obscures a more fundamental aspect of the ordinary meaning doctrine: It is a doctrine about ordinary understanding of language in rules . The canons do not nec­essarily apply wherever there is “ordinary language” or “legal language”; rather, they apply to interpretation of rules . A judge who fails to appreciate the significance of “rule-like” contextual features may misinterpret ordinary meaning from “the outside.” For example, dictionary def­initions that are not based on rule-like contexts may not reflect the under­standing of “ordinary readers.”

Second, we argue that our results suggest the importance of anti-liter­alism in assessing ordinary meaning. Our study reveals that ordinary peo­ple often interpret rules nonliterally. This bears on recent debates at the heart of textualist theory. 58 58 See infra section IV.B.1 (discussing literal interpretations). ... Close Our findings support rejecting ordinary mean­ing as being synonymous with literal meaning. Specifically, several of the canons implicitly applied by ordinary people result in nonliteral meanings. 59 59 See infra section IV.B.2 (discussing examples including gender canons, number canons, ejusdem generis , and noscitur a sociis ). ... Close Perhaps most importantly, such a commitment to nonliteralism challenges modern textualist practices and may have the salutary effect of decreasing judicial reliance on dictionary definitions and increasing judicial sensitivity to context.

Third, we argue that interpretive canons should be understood as an open set , despite conventional assumptions that the traditional canons cap­ture all relevant language generalizations. Our study provides evidence in support of two new ordinary meaning canons—ones not traditionally rec­ognized by law, but that can be justified on the basis of ordinary meaning. One we term the “nonbinary gender canon.” 60 60 This canon holds that masculine and plural pronouns like “he/his” and “they” also include the feminine (e.g., “her”) and nonbinary (e.g., “they”). See infra section II.B.1. ... Close The other we term the “quantifier domain restriction canon.” 61 61 This canon holds that the scope of quantifiers (e.g., “any”) is typically implicitly restricted by context, which is a linguistic fact the Supreme Court has long struggled to recognize. See infra section II.C.4. ... Close Courts committed to ordinary meaning have no less reason to rely on newly discovered canons than tra­ditional ones assumed to reflect ordinary meaning. More broadly, this the­ory of ordinary meaning canons as an “open set” invites empirical discov­ery of new language canons, allowing a much more dynamic statutory interpretation based on linguistic dynamism. This dynamism is not only consistent with textualists’ ordinary meaning commitments; it is justi­fied by them. 62 62 See infra section IV.C. ... Close

We conclude by arguing for a new empirical research agenda in law and language. This project is ambitious and forward-looking, testing fun­damental empirical assumptions underpinning interpretive canons, dis­covering entirely new canons, reconceptualizing the ordinary meaning doctrine as one concerned with rules, proposing an anti-literalist view of some interpretive canons, and articulating a program for future research. We see our study as a first step in this new direction. We hope future stud­ies uncover further evidence about the triggering conditions of certain canons, discover additional “hidden” ordinary meaning canons, and test how canons are cancelled or whether they are applied consistently.

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A-Level Law: Statutory Interpretation Essay + Model + Plan

Subject: Law and legal studies

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Essay Topic: Statutory Interpretation Specification: Eduqas Marks: 15

This is a 15 mark sources of law style essay on statutory interpretation. This is designed for the Eduqas A-Level Law specification, English Legal Systems paper.

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TWO USES OF PURPOSE IN STATUTORY INTERPRETATION

Statute Law Review (forthcoming)

37 Pages Posted: 24 Jul 2024

Mark Mancini

Thompson Rivers University - Faculty of Law

Date Written: July 18, 2024

Despite apparent agreement on the approach to the interpretation of statutes in Canada, a system of presumptive parliamentary sovereignty, judges differ on a fundamental point: how purpose is used in interpretation. Some judges craft arguments that view the text as the medium through which the legislature expresses its intention, using purpose to shed light on the meaning of the text in defined ways ("text-as-medium" interpretation). Others see the background purposes or values of the statutory context as binding constraints in a coherent legal order, with text as merely a signal to meaning ("purpose-as-medium" interpretation). This paper argues that text-as-medium interpretation offers the most persuasive account of the use of purpose in interpretation, especially in a system of legislative sovereignty, which constrains interpretive choice. By bringing to light the commitments of these two interpretive arguments in the Canadian context for the first time, the paper also raises deeper normative questions about how to view legislation in a Westminster-type parliamentary democracy. These questions are fundamental to the relationship between sovereign legislatures and courts.

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Not Just Title IX: How the Chevron Decision Could Affect Education Regulations

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The U.S. Supreme Court last month overruled a landmark 1984 decision that required courts to generally defer to federal agencies’ “reasonable interpretations” of federal law.

The decision in that case, Loper Bright Enterprises v. Raimondo , could have some major implications for regulations issued by the U.S. Department of Education, possibly leading to more challenges to such rules and giving judges greater power to interpret federal education laws.

Here is a closer look at what happened and what’s at stake.

What did the Supreme Court rule?

In its June 28 decision in Loper Bright , the court overruled a 1984 decision, Chevron U.S.A. Inc. v. Natural Resources Defense Council , that has had a significant impact on federal agencies and their many regulations interpreting ambiguous federal statutes.

Writing for a 6-3 court, Chief Justice John G. Roberts Jr. said courts must exercise their independent judgment in deciding whether a federal agency has acted within its statutory authority. He said Cabinet departments and other federal agencies “have no special competence in resolving statutory ambiguities. Courts do.”

How might this involve the U.S. Department of Education?

Like other federal agencies, the Education Department operates under numerous federal statutes and promulgates hundreds of pages of regulations building on those laws. One of the department’s most recent regulations seeks to update the department’s interpretation of Title IX of the Education Amendments of 1972—the landmark federal law that bars sex discrimination in federally funded schools and colleges.

The new Title IX rule is set to take effect on Aug. 1 but has been blocked in 21 states and at some schools in other states by injunctions stemming from legal challenges. Most of those lawsuits focus on the regulation’s interpretation of Title IX as barring discrimination based on gender identity.

What effect has Loper Bright played regarding the new Title IX rule?

One prominent opponent of the Education Department regulation, Alliance Defending Freedom, cited the then-pending rule in a friend-of-the-court brief in Loper Bright. In the brief , the alliance said: “No court should be forced by Chevron to defer to the department’s claim that Title IX means the opposite of what it says. The statute deals with discrimination on the basis of sex, not gender identity, and Title IX’s direct reference to a male-female binary excludes any gender identity interpretation.”

The alliance is behind several of the legal challenges to the regulation, assisting several states, school districts, and groups such as Moms for Liberty in suing the department. Two federal district courts ruled on injunctions before the Supreme Court issued its Loper Bright decision.

Those courts did at least a minimal analysis about whether the new regulation merited deference under the Chevron rule. They concluded that the answer was no.

“An agency has no authority to promulgate a regulation that undoes the unambiguous language of the statute,” U.S. District Judge Danny C. Reeves of Lexington, Ky., said in a June 17 ruling. The Education Department was putting forth an unreasonable interpretation of Title IX’s prohibition on sex discrimination, he said.

What does the Biden administration and the challengers to the Title IX rule say about the effect of Loper Bright?

The U.S. Department of Justice, in an appeals court filing on behalf of U.S. Secretary of Education Miguel Cardona in response to one of the injunctions blocking the rule, said that the Loper Bright decision “does not affect the outcome of this case (or the validity of the [Title IX] rule) because neither the rule nor [the administration’s] arguments in defense of the rule rely on Chevron deference.”

The department’s recognition in the regulation “that discrimination on the basis of gender identity is necessarily sex discrimination prohibited by Title IX is based on the unambiguous text” of the statute, the filing said.

Alliance Defending Freedom takes a different view of the statute, of course, and it argues that if Loper Bright had gone the other way and preserved Chevron deference, the Education Department would have been quick to invoke such deference in defense of the Title IX rule.

“I think it would be pretty crazy to think the administration wouldn’t rely on Chevron if they had it at their disposal,” said Jonathan Scruggs, a senior counsel and vice president at ADF. “Taking out Chevron takes out a club in the department’s bag. It’s not the only club, but it’s an important one. Because it’s now gone, we can litigate the key issues, which is the meaning of the text.”

What other Education Department regulations might be affected?

A review of court decisions by Education Week found several in which the Chevron test was applied in challenges to Education Department regulations in the K-12 arena.

For example, in 1998, a federal appeals court deferred under Chevron to the Education Department’s interpretation of Title VI of the Civil Rights Act of 1964, which bars discrimination based on race (among other factors) in federally funded programs. The court deferred to the department’s 1994 regulation that a school district’s failure to respond to racial harassment of a student by her peers was a violation of Title VI.

In 2012, a federal appeals court deferred under Chevron to an Education Department regulation requiring state and local agencies to reimburse parents and guardians for an independent educational evaluation of their children with disabilities.

In 2020, however, a federal district court held that a department regulation about the distribution of funding among public and private schools under the pandemic-inspired CARES Act was not owed deference under Chevron . Several states challenged a Trump administration rule that allowed more money to go to private schools, and the district court ruled that the statute unambiguously took the opposite view of the administration’s reading.

“When Congress has spoken clearly, as it did in [the statute], ‘‘that is the end of the matter,’ the ruling stated.

Just last year, in another case involving the Individuals With Disabilities Education Act, a federal appeals court held that an Education Department regulation about who qualifies as a parent who can make educational decisions about a child with a disability was not entitled to deference under Chevron because the statute itself had spoken clearly that multiple persons could qualify for the role of parent in a particular case.

Is the Loper Bright decision likely to lead to fresh challenges of Education Department regulations?

That seems to be a distinct possibility.

“There’s just a new paradigm,” said Sonja Trainor, the executive director of the National School Attorneys Association. “ Chevron is a big pillar of administrative law. It has always been assumed that if the statute is ambiguous, you do what the agency says.”

Trainor said some school districts around the country might be motivated to challenge certain Education Department interpretations of not just Title IX, but also laws affecting students with disabilities, including Section 504 of the Rehabilitation Act. That law bars discrimination based on disability in federally funded programs and sometimes imposes certain requirements on districts different from, or in addition to, the IDEA.

Other regulations, such as those addressing accountability under the Title I program of the Elementary and Secondary Education Act (and its descendants such as the No Child Left Behind Act), have been unpopular and could be ripe for challenges.

What does Congress think of all this?

On June 30, Sen. Bill Cassidy of Louisiana, the ranking Republican on the Senate education committee, sent a letter to Cardona asserting that the Education Department had repeatedly exceeded congressional authorization with its regulations. He alluded to the new Title IX rule among other issues.

Cassidy demanded that Cardona respond to a series of sharp questions, including, “How will the department change its current practices to enforce the laws as Congress writes them, and not to improperly legislate via agency action?”

An Education Department spokesperson said: “We have received the letter and are reviewing it.”

Francisco M. Negrón Jr., the founder of K12 Counsel, an education law consulting firm in Washington, said he thought the Cassidy letter was a bit over the top.

“Even in the evisceration of Chevron , the justices did not remove the ability of federal agencies to make regulations and promulgate them,” he said.

Meanwhile, on the other side of the aisle, Sen. Elizabeth Warren, D-Mass., and several of her colleagues this week introduced a bill that would essentially overturn Loper Bright by codifying the Chevron deference doctrine into law.

Reed D. Rubinstein, a former acting general counsel of the Education Department during the Trump administration, supports the Loper Bright decision (like many conservatives do), despite having served in a job where he helped write and defend education regulations.

“I think the court may have gotten it right,” said Rubinstein, now the senior vice president of the America First Legal Foundation in Washington. “There are times when Congress has done its job poorly, and [in the department] you are trying [to] figure out what Congress means with a new law and then implement it.”

Executive branch officials “are going to have to stick to their constitutional duties and adhere to the text of the laws,” he said. “Where they don’t, the courts are going to have to check them. But, also, judges can’t become policy czars.”

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The Dismissal of the Trump Classified Documents Case Is Deeply Dangerous

By Neal K. Katyal

Mr. Katyal is a professor at Georgetown University Law Center.

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Judge Cannon asserts that no law of Congress authorizes the special counsel. That is palpably false. The special counsel regulations were drafted under specific congressional laws authorizing them.

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