Interpretation step zero: a limit on methodology as 'law'.

• Author: Tutt, Andrew

Legislated interpretive rules are everywhere. International law has them, (1) every state has them, (2) and Congress does too. (3) Even the Federal Rules of Civil Procedure open with an oft-overlooked legislated interpretive rule. (4) Most of these rules are modest. The federal Dictionary Act, for instance, cautions that singular words include their plural counterparts, (5) and that "he" can also mean "she." (6) Many state interpretive statutes are similarly timid, decreeing bromides. (7)

Some rules go further, however, and begin to tread on weightier aspects of the interpretive enterprise. As of 2011, twenty-four states have enacted the Model Penal Code's interpretive rules, (8) directing courts to infer that in the absence of a specified mens rea, the mens rea is assumed to be recklessness. (9) Others have repealed the common law rule of lenity, a rule that calls upon courts to construe ambiguous penal statutes in favor of the accused. (10) Congress, for its part, has attempted to create several national security "clear statement" rules, (11) while some states have sought to require that courts ignore legislative history unless the text is ambiguous, (12) or do the opposite and permit recourse to legislative history even if the text is clear. (13)

Yet, often, these legislated interpretive rules fail. (14) This sets a puzzle for scholars and judges alike, one that has led to considerable recent debate over the legal status of such rules. (15) But scholars seem to agree on one particular point: Judicial failures to implement binding interpretive rules are a product of "reluctance," (16) "resistance," (17) and "evasion." (18) These failures are part of a calculated strategy of judicial opposition, the product of a conscious decision to ignore the interpretive rules.

These accounts no doubt contain some truth. But this Comment argues that they mask a deeper, though more difficult to express, anxiety. Judges cannot apply a legally binding interpretive framework without first overcoming an unavoidable and often insurmountable interpretive obstacle--step zero, the initial inquiry into whether the interpretive framework applies at all. Making this step zero determination often forces judges into the middle of an intertemporal clash between a past and present legislature--a difficult lose-lose situation. This step zero problem ultimately means that binding interpretive methodologies are almost sure to unravel unless there is methodological consensus among past and future legislatures.

Parts I and II explain the structural tension implicit in mandating an interpretive methodology without first achieving interpretive consensus. Part III shows how this tension operates in practice, while disputing the resistance hypothesis. While scholars ordinarily attribute failures to follow rules mandating binding interpretive methodologies to judicial willfulness, this criticism is unwarranted. Judges who fail to heed interpretive rules are often among the legislature's most faithful agents. Judges may fail to implement binding methodological frameworks not because they won't, but because they can't.

1. THE IMPOSSIBILITY OF INFINITE REGRESS

   Prior to the application of any legal rule, a court must first determine whether the rule applies. This is step zero. (19) Treating interpretive methodology as law is no different. (20) To treat an interpretive methodology as law requires that, before applying the methodology, the judge first decide whether the methodology governs the interpretation of the particular statute in the particular case in which it is invoked. The judge cannot rely on the statute itself to determine whether to apply the statute because whether the statutory interpretation methodology in the statute should be applied is precisely what needs to be determined. The judge must instead, therefore, appeal to some other source of interpretive authority before applying the methodological framework. (21)

   For example, if precedent requires the application of a particular statutory interpretation methodology, deciding whether the methodology should be used to interpret a particular statute depends on that judge's theory of precedent. (22) More importantly, at least for those who advocate legislated interpretive rules, if a methodological statute, M, tells a judge to apply a particular statutory interpretation methodology to some subset of statutes, a judge interpreting some substantive statute, S, must first determine if the statutory interpretation methodology required by M applies to the specific statute, S. This requires the judge to interpret M using an interpretive methodology whose authority is not derived from the directives of M.

   Not only must the judge interpret M without reference to M to decide if it applies to S, but in the process the judge must also interpret S to determine if S falls within the class of statutes subject to M. While this could be a simple matter (such as deciding whether S is a statute at all) it could be as difficult as determining whether S is a penal statute, or whether the legislature, in enacting statute S, intended that S not be subject to M's interpretive methodology.

   Thus, in applying M to S, the judge must first apply at least some independent interpretive criteria outside the scope of M to determine whether M applies to S. But, as the next Part explains, certain axioms accepted by all interpreters--textualists and purposivists alike--counsel that in many situations, statutes dictating methodological rules cannot be applied to later substantive statutes without violating important legal norms.

2. THE PROBLEMS WITH LEGISLATING STATUTORY INTERPRETATION METHODOLOGY

   To interpret statute S according to statute M demands that a judge first determine whether M applies to S. This application requires two (and potentially three) inquiries: First, did the legislature that enacted M intend for M to govern the interpretation of S? (23) Second, did the legislature that enacted S intend for S to be covered by M? (24) And, perhaps, third, are there any other reasons (of natural law, separation of powers, or special circumstances) why M should not apply to S? (25)

   These questions reveal that M's scope will often be cabined--with respect to statutes enacted both before and after M--to conform with widely held interpretive norms. There are two reasons for this. First, it is a nearly universal rule of interpretation that the specific governs the general. (26) There are strong policy considerations undergirding this rule, most importantly the problem of unintended consequences. (27) If a legislature enacts a general rule, often it has not foreseen, and cannot foresee, all of that rule's potential implications.

   Second, it is a foundational rule of statutory interpretation that no legislature may bind the hands of its successors. (28) Therefore, if a subsequent legislature passes S and does not wish for S to be interpreted according to M's methodology, the interpreter is at least as bound to honor that choice as he is to honor M. (29)

   Thus, imagine that after M is enacted, a legislature passes S. Two obstacles confront the judge applying M to S. First, it might be difficult to determine if the broad class of statues to which M was meant to apply includes S. For instance, if M requires that federal statutes conferring a federal "right" should be interpreted in a particular manner, the interpreter may be required to ask whether S confers a right at all, a potentially difficult inquiry. (30) But even if S is interpreted as within the class covered by M, the inquiry does not end, for the legislature that passed S may not have even considered M, and the application of M to S may fundamentally interfere with S's substantive aims. At this point, a court probably will not apply M to S, because the general aims of M will interfere with the specific aims of S. (31)

3. THE ISSUE IN PRACTICE: TWO CASE STUDIES

   These problems with legislated statutory interpretation methodology are the principal reason that such rules so often fail. This is not mere postulate. Often, courts' stated reasons for failing to interpret statutes...