A process failure theory of statutory interpretation.

• Author: Seidenfeld, Mark
• Position: Introduction through II. A theory of Legislative Process Failure C. The Relevance of Legislative History, p. 467-499

ABSTRACT

Despite all that has been written about the choice between purposivist, intentionalist, and textualist approaches to statutory interpretation, to date the literature has not provided a justification for the common judicial practice of relying on intent-based inquiries in some cases and disavowing those approaches for textualism in others. This Article fills that void and, in doing so, lays out a new "legislative process failure" theory of statutory interpretation that has the potential to move the debate beyond a simple choice between textual and intent-based interpretation. This Article argues that Congress and the courts comprise different linguistic communities when they interpret statutory texts. It proceeds to define legislative process failure as occuring when the interpretive mechanisms of those communities produce different understandings of statutory meaning. The paramount question then becomes: What is the legal system's best response to such failure? Legislative supremacy requires that the courts and Congress come to some accommodation to ensure that courts will interpret statutes in accord with the legislature's understanding. That assumption, however, is satisfied as long as Congress knows how courts will interpret statutes and can adjust its process to ensure that statutes will be interpreted as it intends. Legislative process failure theory therefore leads to the subsequent question: Which branch should accommodate the other's method of attaching meaning to statutes, and under what circumstances? This Article concludes that, generally, legislatures cannot engage in judicial-type inquiries into statutory meaning while drafting statutes because the cost of engaging in such statutory analysis before identification of the potential provisions that might exhibit process failure is prohibitive. But, once the legislature becomes aware of a process failure, the costs of engaging in judicial-type textual inquiry become manageable, and the error costs of interpretation due to strategic manipulation of legislative meaning greatly increase. Thus, in the face of such awareness, a textual approach is better justified. Having developed the legislative process failure of interpretation, this Article considers several types of failures for which courts should accommodate the legislative approach to attaching meaning to statutes.

TABLE OF CONTENTS INTRODUCTION I. PREVAILING PARADIGMS FOR STATUTORY INTERPRETATION A. Intent-Based Interpretation B. Textualism C. Response to the Textualist Critique II. A THEORY OF LEGISLATIVE PROCESS FAILURE A. The Concept of Process Failure B. The Aim of Statutory Interpretation C. The Relevance of Legislative History D. Reconciling Judicial and Legislative Methods of Determining Statutory Meaning III. EVIDENCE OF LEGISLATIVE PROCESS FAILURE A. The Absurdity Doctrine B. Scrivener's Error C. Hidden Statutory Ambiguity D. Hidden "Clear" Meaning CONCLUSION INTRODUCTION

Although academics have identified two opposing schools of statutory interpretation--textualism versus legislative intent (1) --the prevalent judicial approach to statutory interpretation today is a pragmatic combination of the two. (2) Many judges start with statutory text, and if they are comfortable with the meaning they find, they stop there. (3) In a good number of cases, however, they do not find the text dispositive and consider other sources of legislative meaning--most notably legislative history--to discern how they believe the legislature intended to resolve the precise question they face. (4) Moreover, when the legislative history does not include evidence of congressional intent on the precise issue, judges often resort to indications of legislative purpose to determine how Congress would have resolved the issue had legislators explicitly considered it. (5) Judges, however, generally do not satisfactorily explain why they sometimes find text sufficient, yet other times believe they need to resort to non-textual sources of meaning. At best, judges explain consideration of legislative history by claiming the statutory provision at issue is particularly ambiguous, or the legislative history particularly reliable or persuasive, when they bother to explain such consideration at all. (6)

Legal scholarship on statutory interpretation recently has attempted to provide a theoretical footing for various approaches to statutory interpretation, most significantly the intent-based approaches of purposivism and intentionalism and their counterpoint, textualism, from which pragmatic interpreters borrow. (7) The scholarship has not, to my knowledge, provided a sound theoretical justification for using evidence of legislative intent in some instances and textualism in others. This Article fills that gap by providing such a theoretical justification for this pragmatic approach to interpretation, as well as some guidance for how judges might implement that approach. That justification first recognizes differences in the way the courts and legislatures ascribe meaning to statutes. When those different mechanisms lead to inconsistent meanings, it then considers the cost of one branch accommodating the mechanism used by the other branch to fix statutory meaning. From this inquiry, it posits what I call a "legislative process failure" approach to statutory interpretation, which justifies judicial use of legislative history in a subset of cases in which legislative history currently influences judicial construction of statutes.

This Article begins by reviewing the fundamental arguments underlying the intent-based and textualist approaches to interpretation. It concludes, as a preliminary matter, that textualists are correct in asserting that legislation need not be, and in many cases will not be, coherent. Legislation reflects bargains by different factions of legislators who had different preferences about what the statute should mean as applied to concrete situations. This Article then argues that it does not follow from this incoherence that judges should always be textualists, but rather that judges should not deviate from the best reading of the text unless they have evidence of a legislative process failure that makes it likely that the statutory provision at issue does not reflect such a bargain. In the face of such a failure, a judge can assert that a textualist determination of the statute's meaning did not reflect legislators' knowing bargain, justifying some remedy for what amounts to a failure of the "legislative market."

This Article next fleshes out the notion of legislative process failure. Just as those with a different level of trust in markets see the prevalence of market failures differently, (8) those with different beliefs about the appropriate sphere for judicial participation in the law-making process via interpretation will tend to disagree about the prevalence of process failures and about precisely what constitutes such a failure. Nonetheless, this Article will demonstrate that even textualists accept some interpretive doctrines that allow courts to deviate from the best reading of statutory text in the face of evidence of legislative process failure. Therefore, the meaningful question is: Which institution should accommodate the other's mechanism of ascribing meaning when faced with a particular legislative process imperfection?

Finally, this Article fleshes out the operation of legislative process failure theory by discussing possible process imperfections that courts should consider sufficient justification for deviating from textualist principles. Just as the effects of market imperfections might be more acceptable than regulation to remedy those imperfections, (9) different process imperfections might justify different judicial interpretive reactions, from virtually ignoring the text of the statute in a particular case to interpreting the statute in light of the best reading of the text despite the process failure. Hence, this Article discusses how application of intent-based principles might remedy process defects, and evaluates when such applications are warranted.

1. PREVAILING PARADIGMS FOR STATUTORY INTERPRETATION

   1. Intent-Based Interpretation

      There are two theoretically distinct approaches to intent-based interpretation: purposivism and intentionalism. (10) Traditionally, purposivism seeks to predict the outcome that a reasonable Congress at the time of enactment would have reached had it explicitly considered the precise issue raised in a case. (11) "Purposivists give precedence to policy context--evidence that goes to the way a reasonable person conversant with the circumstances underlying enactment [of a statute] would suppress the mischief [at which the statute aims] and advance the remedy." (12) Essentially, judges look for the purpose underlying the statutory provisions at issue in a case, and then choose the interpretation of the provisions that best furthers that goal. (13)

      Purposivism allows significant leeway for judges to interpret statutes. (14) The purpose of a statute's provision is not self-evident. (15) This lack of clarity is further exacerbated by the possibility of finding purposes at different levels of specificity. For example, at the broadest level, a judge can plausibly argue that provisions of the Telecommunications Act of 1996 requiring incumbent local exchange companies (LECs) to lease unbundled network elements to competitor LECs on a cost basis aimed to ensure a viable competitive market for local telephone...