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

• Author: Nourse, Victoria F.
• Position: III. Decision Theory Relative to the Alternatives through Conclusion, with footnotes, p. 134-152

3. DECISION THEORY RELATIVE TO THE ALTERNATIVES

   In Part II, I showed how Congress's rules should change how we read statutory text and history. In a sense this should be obvious. Procedural context matters to courts--so why should it be irrelevant to congressional debate or text? If we force students to imbibe rules of evidence, civil procedure, and securities regulation, why not the rules that amount to their representatives' internal "constitution"? In this Part, I respond to the major practical and theoretical objections to this approach and place decision theory within the context of a positive, empirically based theory of legislation.

   1. The "It's Too Complex" Argument

      Some legal scholars or judges are quick to say that legislative procedures are simply too complex for lawyers or judges. (280) As Judge Posner once remarked, most theories of statutory interpretation are not guided by an "overall theory of legislation." (281) Lawyers and judges would find it "otiose, impractical and pretentious to try to develop one." (282) Charitably interpreted, this claim assumes that lawyers do not, and cannot, know anything about legislative processes. My quarrel is with that assumption. Query whether House and Senate rules are any more complex than the Federal Rules of Civil Procedure or the Federal Rules of Evidence. Lawyers have no problem tackling the massive Code of Federal Regulations or the General Agreement on Trade and Tariffs but pale when faced with a document like the Senate rules that is substantially smaller. I have invoked fewer than a dozen congressional rules in this Article. Is it really "too complex" or difficult for judges and academics to learn a dozen congressional rules? (283)

      Others might argue that there really are no rules because Congress's rules are not entrenched. (284) Congress's rules may be evaded by unanimous consent in the Senate or a "special rule" in the House. But these are the exceptions that prove the existence of the rules. No one claims that the Federal Rules of Civil Procedure or the Federal Rules of Evidence are not really rules because Congress does in fact amend them. Standing rules of the House and Senate do in fact regularize the processes affecting members' run-of-the-mill behavior. (285) Just because we have all heard stories about conference committees including extraneous material (286) does not mean that members do not go to extreme lengths to enforce the rules of conference committees. For example, on a weekend shortly before Christmas in 2005, Senators Carl Levin and John Warner temporarily revoked their signatures on a conference report because House members sought to add extraneous material. (287) This anecdote demonstrates what positive political theorists embrace: "[L]egislators value the stability in legislative outcomes that flows from the legislature's internal structure and procedures...." (288)

      In fact, most of the rules essential to understanding legislative institutions stem from a simple structurally fixed premise: plurality. How can 535 people write a brief together without a division of labor (committees devoted to particular issues), rules for resolving disputes (sequential referral), and ultimate compromises made (conference committees)? For example, consider the unwritten rule that "legislative precedent" matters. In voting on bills or drafting bills, members often look to prior bills so that their policy positions are consistent over time and, in the case of drafting, so that it is easier to pass the bill--the author can argue that the bill presents no great change in law, and it has already passed the relevant legislative body. Just as no written constitutional rule binds the judiciary to precedent, no written rule binds the Congress to its prior textual precedents. And yet, textual precedent has a powerful effect in Congress. Relying on precedent reduces information costs; it makes decisions easier. This is true of individual judges and individual representatives as well. Let us say that Representative X has voted for bill Y for three sessions of Congress. The likelihood is very high that he will vote for it again; the likelihood is also very high that his staff will want precisely the same language voted on earlier to avoid the costs of considering new and unexpected outcomes. Relative to the current uncoordinated system, one based on Congress's rules is likely to decrease complexity and increase simplicity.

   2. The "Legislative History Costs Too Much" Argument

      One of the more significant arguments against legislative history, akin to the complexity argument, is that even if legislative history is no more complex than other areas of law, relative to a focus on the text itself, it increases litigation costs. (289) Some have even suggested that the costs of investigating legislative history "may ... tend to skew judicial evaluation in favor of claims ... advanced by affluent parties" with greater resources to mine the legislative record. (290) The question remains whether such concerns demand an exclusionary rule--a rule excluding all legislative history from consideration. (291) An exclusionary rule (no legislative history) stance does not necessarily reduce interpretive costs below those that might be saved by a rule-based decision theory. As Professor Vermeule has made clear, there is no unified judicial view on any particular statutory interpretation approach, including a legislative history exclusionary rule. (292) The vast majority of courts still use legislative history to some extent. Relative to the present practice in which there is no central agreement upon what counts as reliable legislative history, rule-based decision theory's focus on the last decision may render the legislative history quite manageable. It may well be impossible, as Professor Vermeule has noted, to assess whether courts make more errors with legislative history than without it. (293) However, relative to a rule of uncoordinated picking and choosing of legislative history, one that simplifies and objectifies legislative history reduces costs. It reduces costs by decreasing the amount of relevant legislative history and increasing the coordination of those courts looking to legislative history.

      In theory, rule-based decision theory could even reduce the total interpretive costs below the level imposed by a strong exclusionary rule, meaning a rule allowing the interpreter to consider text only. Just as legislative history is subject to "picking and choosing," so too is text. As we have seen above, rule-based decision theory has the effect of focusing on the texts central to Congress's decision. Perhaps more importantly, the costs of an exclusionary rule cannot simply be calculated by what is left out. If a court does not use legislative history, it uses something else to resolve ambiguity, whether canons of interpretation, prior precedent, or other statutes, all of which impose interpretive costs. Such costs can be quite large, as, for example, when a court canvasses the whole code looking to vast numbers of other statutes. (294) In Public Citizen v. U.S. Department of Justice, we saw how decision theory made it unnecessary to either invoke the absurdity doctrine or answer a constitutional question. (295)

      The exclusionary view also risks a different kind of cost: entrenching the views of superminorities. Because no text comes with a sign indicating it was inserted by the majority or the minority, only by looking to the legislative history can one be certain that one is not embracing a result sought by a filibustering minority. The best available empirical evidence shows that textualist decisions tend to be overridden by Congress at greater rates than non-textual decisions. (296) This shows not only that textualism may increase the cost of legislating but also that textualist decisions could easily reflect the views of a superminority. This result has an inevitable entrenching effect. Given congressional inertia and the need for a supermajority to overcome the inevitable Senate filibuster, losing parties are likely to find it quite difficult to elicit congressional reversals of erroneous textualist interpretations in cases of low political salience or where minorities' interests are at stake. If a rule-based approach reduces that risk, it may well be less costly than the exclusionary view, where cost is defined not purely in terms of information costs or judicial resources, but in the larger normative sense of legitimacy in a democratic order. As we have seen, although textualism claims to be a majoritarian approach, there is nothing preventing such an approach from entrenching the will of the few at the expense of the many. The same is unfortunately true of purposivism, but here the risk is smaller since purposivists are at least willing to look at legislative history.

   3. The "Let's Discipline Congress" Argument

      A number of scholars have suggested that the problems of ambiguity would be solved if Congress were simply "punished" when it created ambiguity. (297) As Einer Elhauge has written in one of the most sophisticated forms of this approach, courts should force Congress to reveal Congress's preferences more accurately. (298) In fact, such judicially imposed default rules are likely to be unsuccessful. As Professor Vermeule has argued, for such rules to be effective, judges must agree upon them, and there is no evidence that judges can or will reach such a consistent agreement. (299) More importantly, even if judges were to agree upon them, they would have to communicate their rulings consistently to Congress, and Congress would consistently have to "hear" those rules. (300) Outside decisions of wide public notice or application to a powerful interest group, the empirical evidence suggests that Congress pays little attention to the internal minutiae of appellate decisions. (301) This reflects the obvious fact that no one ever lost an election by failing...