A more modest proposal than a common law for the age of statutes: greater reliance in statutory interpretation on the concept of interpretative intention.

• Author: Imwinkelried, Edward J.

"The limits of honest interpretation are too constricting...."

Guido Calabresi (1)

As Judge Calabresi has observed, American law has entered a new Age of Statutes. (2) Indeed, American law has undergone "statutorification." (3) At one time, our law consisted largely of common-law doctrine. However, today statutes have become the primary, dominant source of American law. (4)

Moreover, in the Judge's words, we are "[c]hoking on [s]tatutes." (5) Many of the statutes are old ones, (6) rendered obsolete by changes that occurred after their enactment. (7) When American statutes were few in number, it was feasible for the legislatures to monitor their legislation and periodically revisit the statutes to update them. However, today the sheer number of statutes precludes comprehensive monitoring by legislatures.

When comprehensive monitoring and revision were feasible, it was tenable for the courts to adopt an originalist approach to statutory interpretation. (8) Suppose, for example, that a court followed the legal process theory of interpretation, championed by Hart and Sacks. (9) Under this theory, each piece of legislation is presumed to be rational and purposive; the theory posits that legislators are reasonable persons pursuing legitimate social purposes in good faith. (10) If legislative drafters benignly endeavor to achieve such purposes, they will presumably attempt to produce extrinsic legislative history materials shedding valuable light on the meaning of legislation. By resorting to such materials, there is therefore little risk that the courts will be misled. Contemporaneous legislative history materials such as committee reports may yield helpful insight into the original intent (11) of the enacting legislature. (12) The contemporaneous materials can be so probative of legislative intent that they trump the seemingly plain meaning of the statutory text formally enacted by the legislature. (13)

In recent decades, though, the textualists have sharply criticized the legal process theory. Some textualists accused legal process theorists of political naivete. These critics pointed to the political science research exposing the significant influence of special interest groups in the legislative process. Many statutes are compromises shaped by political expediency. (14) In passing a statute, the legislature may be striking a deal with special interest groups. (15) Rather than reflecting a rational purpose that inspired the majority of legislators, extrinsic materials might represent attempted manipulation by a special interest group or a legislator allied with the group. (16) Even if the group feared that the legislature as a whole would not approve a particular provision, the group might insert language in a committee report to influence a court to construe the statute as if it contained that provision. (17) Other textualists have noted that the only law is the statutory text: "The [legislative] body as a whole ... has only outcomes." (18) Under the textualist theory, instead of relying heavily on extrinsic materials, the courts should accord primacy to text and rarely permit such materials to override the apparently clear meaning of statutory language. (19) The court can turn to contemporaneous linguistic conventions to discern the original meaning of the legislation. (20)

An interpretive focus on original intent may have been tolerable before the advent of the Age of Statutes. When there were relatively few statutes, the courts could indulge in the assumption that if a legislature concluded that conditions had changed so fundamentally that a statute no longer served its intended purpose, the legislature would intervene to amend or repeal the statute. On that assumption, a failure to intervene was a signal that, in the legislature's judgment, the statute still effectuated the original purpose. If so, the courts could be content to limit their inquiry to ascertaining the original purpose of the legislation.

However, that assumption is no longer defensible; and courts can no longer confine their inquiry in that fashion. (21) Like other human beings, legislators cannot foresee all subsequent developments; (22) they have "finite imaginations." (23) Post-enactment developments (24) can easily overtake the statute and render it obsolescent (25) or petrified (26)--at least in the sense that the statutory solution no longer has majoritarian support. (27) Rather than actively monitoring and regularly updating its statutes, the legislature may be guilty of inertia (28)--an inertia caused by both the intimidating number of statutes and the difficulty of the amendment process. (29) The upshot is that the courts are forced to interpret and apply many statutes to circumstances that the original enacting body did not anticipate. (30) Archaeological data (31) reflecting the original intent of the enacting body will not suffice to resolve the court's interpretive task.

In this light, Judge Calabresi has advanced his fascinating proposal for a common law for the Age of Statutes. He argues that the courts are competent to decide whether a statute is anachronistic (32) because it has become inconsistent with the modern legal environment, (33) framework, (34) landscape, (35) or topography. (36) The court must determine whether the statute is out-of-date. (37) In Judge Calabresi's view, when a court reaches that determination, the court should be empowered to "update" (38) the statute in order to make it "consistent with a changing world and a changing legal topography."(39) Judge Calabresi urges the courts to eschew both stretched interpretations (40) claiming to rest on originalist intention (41) and constitutional invalidation when the statute's only real deficiency is its obsolescence. (42) The Judge acknowledges that some will object that his proposal violates separation of powers. (43) However, he believes that the explicit recognition of this judicial power (44) would be more compatible with separation of powers than some courts' current spurious practice of invoking constitutional theories to strike down dated statutes. (45) While a decision purportedly resting on constitutional grounds can foreclose the legislature from revisiting the topic and enacting a reformist statute, an exercise of the court's updating power gives the legislature a chance to take a second look at the problem area. (46) As the Judge writes, his approach enables the legislature to have "a majoritarian last word." (47)

Judge Calabresi makes a convincing case that, in the final analysis, the candid recognition of this judicial updating power can be reconciled with the separation of powers doctrine. Nevertheless, critics have voiced precisely that objection to his proposal. (48) They have asserted that the conferral of this power upon the courts would result in an "abbrogation [sic] of legislative supremacy." (49) The thesis of this short article is that there is an alternative approach which (1) is more consistent with separation of powers doctrine and (2) will enable the courts in many cases to solve the problem of outdated legislation.

The essence of this approach is reliance on the concept of interpretative intention. (50) In contrast to actual subjective intent, interpretative intention is the intention that a person probably would have formed if he or she had foreseen the circumstances that came to pass. (51) It is the type of intention that implicitly underpins Judge Posner's proposed "imaginative reconstruction" approach to statutory construction: exercising self-restraint, the judge attempts to "put himself in the shoes of the enacting legislators and figure out how they would have wanted the statute applied...." (52)

The first part of this article demonstrates that the law already relies on the concept of interpretative intention in other contexts. The second part argues that it is legitimate to employ the concept in this context as well. The third part specifies the circumstances in which it is appropriate for a court to rely on the concept as a tool for statutory interpretation. It also explains why the use of the concept is more practical and more consistent with separation of powers doctrine than Judge Calabresi's proposal for a judicial updating power.

1. THE USE OF THE CONCEPT OF INTERPRETATIVE INTENTION IN OTHER LEGAL CONTEXTS

   The law did not originate the concept of interpretative intention. Like so many other concepts utilized in legal analysis, the concept traces its roots to philosophy. In philosophy, the concept has a long lineage. The starting point is a passage in Aristotle's Nicomachean Ethics. (53) In that passage, Aristotle states that in some cases it is impossible for a legislature to find "universal" statutory language to cover every case that may arise. (54) Subsequent circumstances can render the legislation "defective." (55) If so, "a correction of law" is necessary. (56) According to Aristotle, to frame the correction to restore "justice," (57) the court should inquire "what the legislator himself would have said had be been present, and would have put into his law if he had known" the later events that transpired. (58) In several respects, Aquinas echoes Aristotle. Like Aristotle, Aquinas, in his Treatise on Man, concedes that the human intellect has a limited ability to forecast the future. (59) Later, in the Treatise on Law, he states that subsequent changes can necessitate changes in related human laws. (60) Still later, Jeremy Bentham, the great British champion of codification, employed the concept of interpretative intention. He bemoaned "the short-sightedness" of human beings; (61) but he argued that to compensate for that weakness, we can sometimes attempt to identify the person's intention as to "what they would have done ... if their imagination had anticipated the march of nature." (62)

   The acceptance of the concept of interpretative intention, however, is not limited to philosophy. The...