Against coherence in statutory interpretation.

Author:Ohlendorf, John David


A long tradition in legal theory views the judicial role as centrally including the duty to make the entire body of law "speak with one voice. " This coherence ideal permeates much of the law of statutory interpretation, but one body of doctrine that it has particularly influenced is the set of standards that federal courts use to determine when a newly enacted statute overrides preexisting legal rules. Determining whether Congress implicitly intends to preempt state law, repeal previous legislation, or displace federal common law is an increasingly important part of the "ordinary diet of the law. " And although, this Article maintains, modern preemption doctrine is largely consistent with the presumptive judicial role in statutory interpretation--that of Congress's faithful agent--the desire for coherence has motivated the Court to develop standards governing repeal and displacement that deviate from the preemption framework.

This Article argues that courts should abandon the quest for coherence in statutory interpretation. In a reasonably pluralistic society like ours, widespread agreement on a coherent ranking of basic values is unlikely. Against this backdrop of deep disagreement, collective social action is purchased only by hammering out specific compromises, and the overall pattern of compromises is unlikely to be coherent. Imposing coherence on the body of law accordingly unravels the very compromises that allowed the legislature to act and, in doing so, both disrespects the process of mutual compromise that made collective action possible and impedes future legislative action. Recognizing the importance of compromise to modern legislation should lead to the rejection of normative coherence as an ideal in statutory interpretation. And, absent some other justification for their current divergence, the doctrinal standards for repeal and displacement should be unified with the current preemption framework.


In unpublished teaching materials that would come to represent, for later generations, a near-canonical encapsulation of mid-twentieth-century American thought about public law and legal theory, Henry Hart, Jr., and Albert Sacks articulated a vision of the American legal system as "a single system of law: it speaks, in relation to any particular question with only one ultimately authoritative voice." (1) On one understanding, the metaphor of speaking with one voice is banal. Amy system of law that applies across a large, diverse geographical area and purports to be a single, comprehensive system must include mechanisms for avoiding logical inconsistency. Were people routinely governed by two inconsistent yet equally authoritative legal rules--directions to [phi] and not to [phi]--the legal system would surely "like Pavlov's dogs ... suffer a nervous breakdown." (2)

But elsewhere in the legal process materials, Hart and Sacks indicate that they have in mind a more robust understanding of the single-voice metaphor. They repeatedly press the reader to consider which outcome in a given case "harmonizes best with the general body of statutory law." (3) Near the beginning of their materials, they suggestively ask: "Does not a legal system require some means for rationalizing the fabric of its law as a whole?" (4) By the time one emerges from the other end of the materials, the particular means that Hart and Sacks have in mind is no mystery: it falls to courts, through a process of "reasoned elaboration," (5) to interpret statutes " 'if possible, so as to harmonize them with more general principles and policies' of law." (6) For Hart and Sacks, then, the single-voice metaphor involves some larger consistency of basic purpose, a vision of law as a seamless web formed of coherent and mutually reinforcing strands.

Hart and Sacks are not alone in urging courts to consider, in interpreting statutes, what outcome fits most coherently into the fabric of law as a whole. Ronald Dworkin, almost certainly the most influential legal philosopher of the late twentieth century and one of many intellectual heirs to Hart and Sacks's thought, (7) famously urged courts to "identify legal rights and duties, so far as possible, on the assumption that they were all created by a single author--the community personified--expressing a coherent conception of justice and fairness." (8) However, the sheer intellectual dominance of the coherence ideal is perhaps best demonstrated by Justice Antonin Scalia. Scalia--the fiercest modern proponent of a formalist alternative to Legal Process Theory (9)--has embraced the judicial duty to "make sense rather than nonsense out of the corpus juris" by construing ambiguous statutory language so as to fit "most logically and comfortably into the body of both previously and subsequently enacted law." (10) The impulse toward coherence runs deep.

One domain that has been profoundly influenced by the coherence ideal is the set of doctrines that determine when legislatively enacted rules are taken to have superseded previously existing legal rules. (11) When Congress enacts a new set of legal rules but remains silent regarding the effect of its handiwork on preexisting bodies of law, it falls to courts to determine the extent to which the new rules trump the old. And courts have articulated a set of standards to aid them in interpreting Congress's silence on this point. To determine implied congressional preemption of state law, the Court has developed a set of legal standards that, this Article argues, are reasonably well adapted to faithfully determining congressional intent, as expressed by text in context. But the doctrinal tests that the Court has developed to govern the other two primary areas of supersession diverge from the preemption paradigm. The standards for determining whether Congress has impliedly repealed previous federal legislation are significantly more demanding than preemption doctrine, and the standards governing displacement of federal common law are significantly less so.

This divergence in the Court's supersession doctrine demands explanation for intrinsic, practical reasons; questions concerning congressional supersession of preexisting legal norms make up an increasingly important part of the federal docket. However, the divergence deserves attention for another, deeper reason: it raises fundamental questions about the appropriate role of the coherence ideal. Below, I argue that the divergence of the Court's three supersession (12) doctrines is in large part explained by the tension between two models of the judicial role: the fidelity model and the coherence model. While the current preemption framework is largely consistent with the judiciary's usual role in cases of statutory interpretation--that of Congress's faithful agent--courts have been led both to undervalue Congress's intent to impliedly repeal legislation and to place a thumb on the scale in favor of displacement of federal common law out of a desire to make the total body of law fit together as harmoniously as possible.

This Article argues that the coherence ideal fails to justify the courts' departure from their presumptive duty to faithfully carry out Congress's will. Coherence fails as a justification because it is inconsistent with the central feature of lawmaking in a modern democracy: the importance of compromise. As citizens of the United States, we disagree persistently and sometimes stridently over the appropriate priority among basic values, and we act together when our value systems come apart only by striking particular compromises, one by one. In a society marked by what John Rawls termed "reasonable pluralism," (13) this process of mutual compromise is what enables collective social action; but the overall pattern of compromises that results is unlikely to exhibit global normative coherence precisely because it is made up of the bargains struck in the face of disagreement between basic value systems. Accordingly, when they impose coherence on the body of law, judges unravel the very compromises that allowed Congress to act.

Such unraveling is pernicious in two ways. Looking back, disrespecting the compromises embedded in the law disrespects the citizens and representatives who were willing to set aside some of their own views in the name of working together as a society; looking forward, refusal to honor such compromises gums up the process that enables legislation to move forward in a pluralistic society, making future collective action harder to achieve. Coherence, then, is both unrealistic and unattractive when imposed on the corpus juris of a large, diverse, federal republic like the United States. Courts should abandon the quest for coherence in statutory interpretation. And rejection of the coherence ideal shifts the burden to those who would defend the Court's current supersession doctrine to put forward some persuasive justification not sounding in coherence. Absent such a justification, the divergence should be abandoned, and the two estranged types of supersession--repeal and displacement--should be governed by the doctrinal standard currently governing preemption.

The Article unfolds in five Parts. Part I unpacks the idea of coherence and fleshes out the coherence and fidelity models of supersession. Part II examines preemption. It briefly recounts how early preemption doctrine exhibited the desire for coherence, but argues that, as currently articulated, the doctrine does a reasonably good job of discerning and carrying out congressional intent. Part III turns to repeal, examining the ways in which it diverges from preemption and the role that coherence has played in this divergence. Part IV undertakes similar analysis of displacement. Part V turns to the theoretical case against the coherence model. An eclectic set of powerful theoretical considerations suggests that coherence is both inconsistent with fidelity and insufficiently attractive to justify...

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