Calling on U.S. courts to adopt Canada's unified approach to statutory interpretation.

• Date: 22 March 2014
• Author: Pichhadze, Amir

1. INTRODUCTION

   In the United States, courts have been divided between the new-textualist and purposive approaches to statutory interpretation, although currently the new-textualist approach appears to dominate. (1) This paper encourages courts using either approach to consider adopting the "unified textual, contextual and purposive approach to statutory interpretation" (2) (also referred to as the "words-in-total-contexts approach" (3)), as it has been developed by the Supreme Court of Canada in recent years.

2. STATUTORY INTERPRETATION IN THE UNITED STATES: NEW TEXTUALIST AND PURPOSIVE APPROACHES

   The common objective of all approaches to statutory interpretation is "to ascertain and effectuate the legislative intent wherever possible." (4) This common objective is typically referred to as a cardinal rule of interpretation. The approaches differ, however, in their conception of the legislative intent as well as in their method of ascertaining that intent. And the various ways in which to interpret statutes all fit within the broad categories of either the textualist or the purposive approach. (5)

   The legal systems of the past were usually dominated by a "word-oriented (i.e. objective) approach" to interpretation. (6) This objective approach, which is broadly referred to in the United States as textualism, is based on the plain-meaning rule. Textualism has evolved over time from the traditional approach (commonly referred to as old textualism), which relies on a soft plain-meaning rule, to the more recent new textualism, which relies on a hard plain-meaning rule. (7)

   According to the traditional textualist approach, the goal of statutory interpretation was to identify and give effect to the intent and purpose of the enacting Congress based on the plain meaning of the statutory text, derived by using the aid of dictionaries and generally accepted conceptions of ordinary parlance. (8) Yet, the courts using this approach would also consult the legislative history (9) in order to check for evidence of congressional intention inconsistent with the intention conveyed by the plain meaning of the words. (10) If such inconsistency is found, then under this traditional approach, "the plainest meaning can be trumped by contradictory legislative history." (11) This result, which led to characterizations of the old textualists' reliance on the statute's plain meaning as soft, was exemplified by cases such as INS v. Cardoza-Fonseca (12) and TV A v. Hill. (13)

   By the 1980s, the traditional textualist approach attracted significant criticism, (14) which influenced some members of the United States Supreme Court--notably Justice Scalia--to increasingly replace the old textualism with a new approach. This new textualism "favors understanding the text the way a reasonable reader would have read it at the time it was enacted," and its adherents' goal "is not to discover ... what the legislature wanted, but rather what it said." (15) Indeed, if asked how a court--presumed to embody the reasonable person (16)--should ascertain the intention conveyed by the plain meaning of a statute, the new textualists' reply is that judges "must study the language of the text as a whole, and if the statute is plain, they should give it its plain meaning"; that "[t]hey may also consult dictionaries and linguistic aids to equip themselves with information about how readers understood the statute at the time of its enactment"; and that "[t]hey may consult interpretive maxims in effect at the time of enactment." (17) New textualists believe in addition that "a text cannot be understood out of context," and "permit interpreters to consult other statutes passed by the legislature, in order to draw inferences from the legislature's use of similar language." (18) They do not, however, "allow interpreters to consult legislative history or the system's fundamental values as they existed at the time of interpretation." (19) Thus, "[e]ven when the plain language leads to absurdity, or when the language is unclear, interpreters may not consult legislative history or fundamental values," and "have no choice but to say that the issue lies beyond the reach of the statute" (20) if they are acting in accordance with new-textualist principles.

   Therefore, reliance on the plain meaning of statutory text has moved farther toward the hard end of the analytic scale under the new-textualist approach. (21) Not only will judges who follow this approach not replace the plain meaning of terms with a constructed legislative intent based on the legislative history, they will not even consider the legislative history unless the statutory terms are ambiguous or absurd, or if their plain meaning seems unreasonable. (22) As the Supreme Court of the United States has held,

   [t]he preeminent canon of statutory interpretation requires us to "presume that [the] legislature says in a statute what it means and means in a statute what it says there." ... Thus, our inquiry begins with the statutory text, and ends there as well if the text is unambiguous. (23) Some judges have, however, resorted to the purposive approach to interpretation, which requires the court to ascertain and give effect to the actual intention of Congress. (24) Justice Breyer, for example, acknowledges that judges "should not substitute" their own policy views "for the statute that Congress enacted," (25) but takes the position that the Court's members "certainly should consider Congress' view of the policy for the statute it created" and should remember that the legislators' view "inheres in the statute's purpose." (26) He notes that "[statutory interpretation is not a game of blind man's bluff," concluding that "[j]udges are free to consider statutory language in light of a statute's basic purposes." (27)

   This focus on ascertaining the actual intentions of the enacting Congress results in a "willingness to consider an array of extrinsic interpretative aids, including legislative history." (28) Moreover, a purposivist would "generally feel freer to go beyond the confines of statutory text and will not necessarily find that text trumps contradictory evidence of purpose." (29)

3. THE APPROACH TO CONTRACTUAL INTERPRETATION IN THE UNITED STATES: A DIFFERENT TREND

   The cardinal rule that guides statutory interpretation--intent--also guides the interpretation of contracts. (30) Not surprisingly, the question of how to approach the interpretation of the parties' intention in a contract has also been debated. At one end of the debate were advocates--most notable being Professor Williston--of the plain-meaning approach, which resembles textualism. At the other end of the debate were advocates--most notable being Professor Corbin--of the modern approach, which resembles the purposive approach.

   1. Willis ton

      According to Williston, the courts must ascertain and give effect to the objectively manifested intentions of the parties, as they were conveyed by the terms of the contract, either expressly or by implication. (31) To clarify, the objective intentions are those that a reasonable person would have identified based on the plain meaning of the terms of the contract. (32) Hence, Williston believed that a court should not be concerned with the parties' actual subjective intentions, except to the extent that those were objectively manifested through the terms of the contract. Where, however, the parties' intentions could not be derived from the plain meaning of the terms, Williston instructed judges

      to use "secondary" canons of interpretation, which did not inquire as to the actual intent of the parties, but instead reflected generalizations about the use of language and judicially-created normative views about how contracts ought to be drafted. (33) Because this approach is focused on ascertaining and giving effect to intentions that are objectively manifested by the plain meaning of the terms of the contract, extrinsic evidence should not be admissible "to prove the actual intent of the parties." (34) It is the intent conveyed by the terms that must be ascertained and given effect.

   2. Corbin

      In contrast to Williston, Corbin argued that the courts must ascertain and give effect to the parties' actual subjective intent.

      To ascertain their actual intentions, the court must take into account not only the terms of the contract (i.e. terms within the four comers of the agreement that make up the agreement's internal contexts) but also extrinsic evidence of the agreement's relevant external contexts (commonly referred to as its "factual matrix," "matrix of facts," and "surrounding circumstances") irrespective of whether the contractual terms were ambiguous. (35)

      There has been a growing gravitation in the United States towards this modern approach to contractual interpretation. The California courts, for example, were early adopters, (36) and the modern purposive approach has been embraced by the Restatement as well. (37)

   3. The Implications for Statutory Interpretation

      One commentator has noted that "American law is ready to consult authorial intent in contracts and wills," and wondered why it is...