Author:Bernstein, Anya

TABLE OF CONTENTS I. INTRODUCTION: OUTSOURCING TO DEMOCRATIZE 438 II. THE USES OF LANGUAGE USE 442 A. Quotation, Relevance, and Reliability 444 B. Linguistics and Democracy 451 1. Speech Communities and Their Habits 453 2. Ordinary Versus Statutory 462 III. METHOD CONTRA THEORY 466 A. Who Speaks for the People? 467 B. Who Plays the King? 473 IV. CANON LAW: UNRULY RULES 476 A. Decision Rules for Interpretive Rules 477 B. What Are Rules For? 482 V. DEMOCRATIZING INTERPRETATION 487 A. There's No Deciding Not to Decide 488 B. Either-or/Both-and 490 C. Structural Uncertainty 496 VI. CONCLUSION: DEMOCRACY AND DISPUTE 502 I. INTRODUCTION: OUTSOUECING TO DEMOCRATIZE

Judges interpreting statutes sometimes act uncomfortable with the power they wield. Commentators, too, have pushed judges to minimize their interpretive authority. (1) But sometimes an act that seems to diminish someone's power sneakily preserves or even enhances it instead. The sociologist Pierre Bourdieu presents a nice example: a newspaper praises a provincial French mayor for the "thoughtful gesture" of giving a speech in the local dialect. (2) Why is speaking to constituents in their own language so very thoughtful? Only because of an unspoken background hierarchy that ranks dialects lower than standard French. (3) Everyone concerned "tacitly recognize [s] the unwritten law which prescribes [standard] French as the only acceptable language for formal speeches." (4) By appearing to subvert existing power relations, the mayor actually "derive [s] profit" from them. (5)

I argue here that American judges (and legal theorists) often do something similar when discussing the interpretation of statutes. (6) They seem to outsource the authority to interpret while actually keeping power firmly in the judge's hands. Judges are subtly pushed to outsource in this way by a legal culture that is suspicious of their power, and that treats statutory interpretation as largely a quest for a single right answer. In contrast, the legal system judges operate in facilitates, and even depends on, ambiguity and change. It also vests great power in judges, whether they like it or not.

Subject to these contradictory demands--to hold power but not to wield it, to find answers that are final, yet subject to reinterpretation--judges might understandably attempt to outsource interpretive responsibility to less controversial sources. It seems likely that judges often attempt to outsource in good faith. That does not, however, make these practices any more rational; the point is the effect, not the intent. As I explain below, both outsourcing interpretation and the impression of certainty it supports actually undermine whatever democratic impulses may give rise to them. (7) Asking judges to give up the discretion we thrust on them only promotes that internal contradiction.

Instead of asking judges to give up the authority we give them, we should demand that they exercise that authority well. That requires, first of all, responsible reason-giving. Reason-giving is a central requirement in our system--it is part of how our common-law adjudicative structure supports the rule of law instead of undermining it. (8) But reason-giving can only do its legitimating work if the reasons given are themselves reasonable. In this context, that involves acknowledging, and providing justification for, the ways judges arrive at interpretations. It also involves acknowledging the limits of those approaches and developing them to better suit the inquiry. I suggest that letting method take a central role and recognizing the inevitable limitations of any interpretive approach serves democracy better than imagining an external arbiter of meaning to provide an illusory certainty.

In previous work, I identified two structuring but usually invisible choices on which statutory interpretation depends. (9) First, judges must select what they will interpret, such as a statutory term, an entire phrase, or an idea the statute implicates. (10) Judges also have to situate the thing they will interpret within a context they themselves construct by drawing, for instance, on the statute, other legal sources from different time periods, general legal principles, nonlegal sources, or their own understandings about how the world works. (11)

Selecting and situating statutory text form the infrastructure for any interpretation. (12) There is thus no way to avoid making crucial normative and methodological choices in legal interpretation. Yet, legal writers often avoid acknowledging such decisions by laying claim to objective, inevitable, or independently legitimate justifications. (13)

In this Article, I focus on three ways that judicial opinions situate statutory text: in ordinary language use, in audiences' understandings of linguistic expression, and in canons setting out interpretive rules. Each approach appears to outsource interpretive power to others--ordinary speakers, legal audiences, and generalized rules--but actually hands it right back to the judge. This process depends on not acknowledging the decisions underlying each approach. This Article illuminates those hidden choices and their implications for interpretation.

I first introduce three common ways judges outsource interpretation. In Part II, I explain how judges appear to hand the interpretive reins over to ordinary speakers. The sources they choose, however, are neither reliable nor relevant indicators of the language use they claim to present. Even more reliable methods such as corpus linguistics require judges to make hard decisions. Whose speech should count? How can we access it? What data helps interpret the nonordinary language of statutes? While appearing to give interpretation over to ordinary speakers, then, judges actually hand it right back to themselves. (14)

Part III considers how judges outsource interpretation to a statute's audience. Textualism instructs judges to interpret a statute as its addressees would understand it. (15) Yet, textualism also precludes identifying who comprises that audience and proscribes recourse to any actual audience's view. This odd mismatch of aspiration and technique rests on a formalist view of lawmaking that stands in considerable tension with our actual legal system.

Part IV considers how judges outsource to canons of interpretation laid down by other legal actors over time. Judges use canons in notoriously inconsistent ways, at least in part because there is no ordering principle for choosing among them. I argue that the real problem is deeper: we have little reflection on, much less agreement about, what ends canons do--or should--serve. (16) Thus, even judges who submit to binding rules must choose how to be bound.

Part V considers what outsourcing accomplishes and what it elides. Judges' claims to neutral, objective sources that yield interpretive certainty obscure the normative and methodological decisions that inevitably go into interpretation, as well as the way that legal pronouncements are inherently subject to reinterpretation. (17) That can be distressing; outsourcing may address that distress by giving judges recourse to something larger than themselves. Yet, our system vests great power in judges to exercise judgment. Insisting that judges abdicate the very authority we also insist they wield makes for a quixotic quest. Though it may be more difficult, facing indeterminacy head on serves our democratic aspirations better. (18)

Part V also suggests that rather than accepting specious claims to certainty, we should assume that interpretation will be subject to debate and scrutinize interpreters' methods. Democratizing interpretation might require judges to more explicitly make and defend the hard decisions that outsourcing obscures. That is just what the requirement of judicial reason-giving implies. (19)

Finally, my critique suggests that the audiences and evaluators of legal interpretation--that is, all of us--should avoid asking how well a given approach fixes a meaning. (20) Instead, we might consider how it affects interpretive power and legal authority in practice. In this, we would only be acknowledging the obvious: that judges are not strangers to the system of legal power in our democracy, but rather form an integral part of it. Since there is no denying that power, it makes sense to evaluate how judges wield and distribute it. Bourdieu calls his mayor's dip into dialect a "strategy of condescension." (21) We should not stand for being condescended to.


    Judges sometimes base assertions about what statutory terms mean on evidence of how others use those terms. (22) They might quote instances of language use to demonstrate what a term means to speakers (23) or cite a dictionary that describes the term's contours. (24) This seems to fix meaning through a normative appeal that itself is based on an empirical claim. The empirical claim is that people--some people--use the term in some particular way. The normative appeal suggests that those people are, in some democratically appropriate way, the relevant ones for determining the meaning in the statute.

    Opinions generally leave this claim about factually accurate democratic propriety implicit. But that assumption--that the quotation presents an accurate depiction of democratically relevant language use--is important. It is what renders an opinion's reliance on the language use of others legitimate. Without that assumption, the language use of others would be extraneous to the legal interpretation. Of course, not all opinions that quote the language use of others take it as dispositive evidence of meaning. Opinions sometimes use others' language use to get a sense of what a word might mean, or even to show the absence of a clear answer. In this Article, I am particularly interested in situations where judges present information about language use as though it solved the problem of meaning-making. But...

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