A decision theory of statutory interpretation: legislative history by the rules.

• Author: Nourse, Victoria F.
• Position: Introduction through I. Rethinking Legislative "Intent" as Constitutional Heuristic, p. 70-90

INTRODUCTION I. RETHINKING LEGISLATIVE "INTENT" AS CONSTITUTIONAL HEURISTIC A. Intent as an Injunction About Judging to Judges B. The Poverty of Current Theory on Congressional Procedure C. Positive Political Theory D. Rule-Based Decision Theory II. SIMPLE PRINCIPLES FOR READING LEGISLATIVE HISTORY A. First Principle: Never Read Legislative History Without Knowing Congress's Own Rules B. Second Principle: Later Textual Decisions Trump Earlier Ones 1. Green v. Bock Laundry Machine Co. 2. United Steelworkers v. Weber C. Third Principle: The Best Legislative History Is Not Identified by Type, but by Specificity to the Interpretive Question and Proximity to the Textual Decision D. Fourth Principle: Never Cite Legislative History Without Knowing Who Won and Who lost the Textual Debate E. Fifth Principle: Structure-Induced Misunderstandings: Congress's Rules May Create Ambiguity for Courts but Not for Congress III. DECISION THEORY RELATIVE TO THE ALTERNATIVES A. The "It's Too Complex" Argument B. The "Legislative History Costs Too Much" Argument C. The "Let's Discipline Congress" Argument D. The Democracy Argument IV. RULE-BASED DECISION THEORY VERSUS OTHER POSITIVE POLITICAL THEORY APPROACHES A. Anticipation-Response Theory B. Signaling Theory CONCLUSION INTRODUCTION

Legislative history's fires still burn, despite repeated attempts to extinguish them. The Supreme Court and the courts of appeals routinely invoke legislative history when statutory text is ambiguous. (1) Even textualists (2) suggest that legislative history might be consulted to determine Congress's meanings in cases of apparent absurdity. Since neither scholars nor lawyers dispute that, as a matter of fact, legislative history is used, the question is how it is best used.

More than occasionally, law professors reveal a stunning lack of knowledge about Congress's rules. This reflects the failure of the standard law school curriculum, with its courses on civil procedure, criminal procedure, and administrative procedure, but none on legislative procedure. (3) Perhaps not surprisingly then, the average lawyer learns to read the congressional record in ways he or she would never read a judicial opinion or trial record. No lawyer would confuse a dissent with a majority opinion, or pleadings with jury instructions, and yet the equivalent occurs regularly in standard judicial and scholarly legislative histories. Scholars and law students dismantle congressional reports and debates as if early reports (at the pleading stage) were interchangeable with much-altered bills (jury instructions) and as if statements of those who lost the debate (dissenting opinions) amount to authoritative statements of meaning (majority opinions). Such readings invite legislative history's critics to shout "activism." But, as we will see, there is a better and more objective way to understand legislative history: by the rules.

In this Article, I offer a decision theory (4) of statutory interpretation that aims to make the reading of legislative history empirically sound, normatively appealing, and far easier, because it defers to Congress's own rules. (5) Legislative history by the rules is likely to appear as common sense to those who have actually worked in a legislature,

but few persons on the bench or in the legal academy have such experience. (6) As political scientists generally believe, legislative rules help Congress achieve stability and equilibrium in an otherwise chaotic atmosphere. (7) As even those skeptical of legislative history have explained, these rules are "'second nature' in our political culture"; in effect, they are Congress's constitution. (8) As legislative scholars have long known, "without a positive theory," any normative theory of statutory interpretation may be misguided and even futile. (9)

Those who scoff at legislative "intent" should read on. Let us agree that the anthropomorphic metaphor portraying Congress as a single person misleads. When it comes to the judiciary, lawyers understand this: they do not charge the multimember Supreme Court with having no "intent" and, from this premise, dismiss judicial opinions as if the Court had made no decision. First-year law students easily recognize the difference between majority and dissenting opinions. Yet the simple distinction between winners and losers appears to have sporadic influence on standard judicial use of legislative history. (10) Untutored in basic legislative distinctions, judges and scholars cannot differentiate between reliable history and biased or manufactured history, precisely the abuse textualists decry.

Congress makes decisions within a set of endogenous rules. (11) These rules can be used to cull the wheat from the chaff of legislative history; in fact, they can even be used to support claims about the centrality of key texts. This should be good news for lawyers and judges because this approach may simplify the process of analyzing and identifying relevant legislative history. For textualists, a decision theory may help identify central texts in cases where texts conflict, and, for purposivists, it may strengthen and objectify their legislative history arguments. It should also be good news for positive political theorists who have claimed, for over a decade, that existing theories of statutory interpretation--including textualism--lack an approach that appreciates "how legislation is actually created and how elected officials" operate. (12)

Part I of this Article argues that we must move beyond the great debates about abstract questions of legislative intent, and turn to Congress's own rules. The realist critique of legislative intent as a fiction has been a diversion. No one looks for the nine-Justice Supreme Court's intent in determining the meaning of a judicial decision, and no one need look for the fictional intent of Congress in searching for the meaning of its decisions. The term "legislative intent" is obscuring, even for those of us who consider ourselves "originalists" in matters of statutory interpretation. Intent is simply a constitutional heuristic used to remind judges that, in the end, it is not their decision, but Congress's. (13) Legislative intent, then, is not an accurate description of Congress, but a message for judges...