Statutory interpretation from the inside - an empirical study of congressional drafting, delegation, and the canons.

• Author: Cluck, Abbe R.
• Position: Part 1 - II. Congress and the Canons D. Do the Data Matter? Linking the Findings with the Normative Justification for the Canons through IV. The Administrative Law Canons A. Chevron and the Presumption of Delegation 1. Chevron Is a Feedback Canon, p. 949-996

4. Do the Data Matter? Linking the Findings with the Normative Justifications for the Canons

   Our findings give rise to a helpful typology that brings to the fore some of the normative implications of our study. There were some canons that our respondents both knew that courts used and deployed for precisely that reason. We call these feedback canons. Other canons seem to be accurate judicial approximations of the way that our respondents draft, but were not known to our respondents as legal rules that courts employ--their use by our respondents is not the result of any courts-to-Congress feedback loop. We call these approximation canons. Third, there were some canons that we call rejected canons: these are canons that our respondents knew that courts used, but whose deployment in the legislative drafting process nevertheless is often trumped by institutional and political factors. Finally, we saw disconnected canons (or, more playfully, "loose" canons)--canons of which our respondents were unaware and whose underlying presumptions do not seem consistent with the realities of the drafting process.

   The following Table summarizes our findings along these axes of canon awareness and the use of their underlying concepts:

   Disaggregating the canons in this manner tees up some interesting questions. Most obviously, what model of the judicial role in statutory interpretation justifies continuing use of the canons that Congress has rejected or that our study suggests are disconnected from congressional practice? The answer may differ with respect to different canons. For example, canons that enforce constitutional law may more easily find independent justification than incorrect assumptions about how statutory language is put together, even if our drafters do not know or use either type of rule. With respect to other canons--particularly those that appear "neutral," such as textual canons and dictionaries--de-linking the canons from legislative practice may require judges to more explicitly acknowledge those rules as judicial tools--and ones that may shape statutory language in ways never intended by Congress.

   Furthermore, as a matter of theory, the notion that there are some canons that courts and drafters utilize because of a courts-Congress feedback loop has different implications from the notion that some canons merely approximate what Congress does, but are rules of which drafters need not be aware. A version of faithful agency that contends that judges should apply rules that aim to affect how Congress drafts is arguably not the same as one that contends that judges should apply rules that merely reflect how Congress drafts. The former rests not only on a vision of the courts and Congress in dialogue, but also on an understanding that it is the proper role of courts to intervene in the legislative process. (157) The latter, reflective, view is more reactive, relies less on interbranch dialogue, and does not necessarily posit a role for interpretive doctrine in shaping how statutes look.

   Neither view, moreover, is the same as a faithful-agent approach that essentially eschews Congress and instead views courts as faithful agents of the public. Courts seeking to interpret statutes in ways that would be predictable to the public might have reasons for creating judicial doctrines that rely on sources like dictionaries, or for interpreting the same term consistently throughout the U.S. Code, even if congressional insiders never would. Although most theorists have couched the faithful-agent paradigm only in terms of the courts-Congress relationship, a few have advanced versions of this public-as-principal view.

   Here, however, other types of questions arise, most notably, who the "public" is under this view of the faithful-agent paradigm. William Eskridge has implied that ordinary people are the relevant "public." The textualists, as Nourse has noted, have been more ambiguous and inconsistent, (158) even as they agree that they are less interested in what congressional drafters actually think and instead are interested in "objective" intent. John Manning argues that the courts' audience is the "relevant linguistic community"--a community he views as lawyers, whose "established background conventions" textualism aims to capture. (159) Justice Scalia sometimes emphasizes ordinary public meaning, at other times explicitly grounds canon application in how he believes the ordinary legislative drafter uses language, and sometimes does both. (160) Obviously, the kinds of interpretive presumptions that lawyers might be expected to know are different from those that might be expected to approximate public understanding.

   None of these distinctions is typically probed in discussions of faithful agency or the individual canons' legitimacy. Faithful-agent theory also has remained surprisingly vague on the normative justifications for the substantive canons in particular. Only a few scholars have addressed whether judges who apply those external policy norms do so within their role as faithful agents or as part of (perhaps justified) departures from that role. (161)

   Our typology focuses on drafter awareness and use of the canons not because this is the only way that their utility or legitimacy might be assessed. There are arguments for some of these rules that are less connected to congressional practice--most notably rule of law arguments that the canons help judges coordinate systemic behavior or cohere the U.S. Code. Those arguments raise other questions, which we explore at the end of this Part. But judges rarely justify their use of canons as entirely unrelated to congressional practice--no doubt because such justifications are difficult to reconcile with the faithful-agent paradigm that modern judges find so attractive and the related desire not to appear "activist." Nor, in the alternative, do judges really seem to follow through with rule of law approaches: federal courts are notoriously inconsistent in their application of the canons, a fact that undermines the efficacy of any canons ostensibly targeted to provide coherence, notice, or consistency.

   Regardless, the public justifications that judges do use--those that typically turn on canon awareness or use--have an important expressive purpose. Judges use them to legitimize their interpretive choices and, by extension, the judicial power to make those choices. (162) This makes investigation of these justifications essential, even if one disagrees that the canons should be legitimated on those grounds in the first place.

   1. Textual rules as approximation canons and rejected canons

      The textual canons are most commonly justified on three (potentially conflicting) grounds--namely, that (1) the canons are background rules of which drafters are aware; (2) they are presumptions that courts should apply because even if they do not actually reflect how Congress legislates, they teach Congress how to legislate better; and (3) they reflect how ordinary people use language. None of the textual canons that we studied can be sustained under all three justifications.

      We note at the outset that, to the extent that our findings call into question those justifications based on a link to Congress, the "ordinary people" justification for these rules, described above, takes on more salience. But if some textual canons must find their justification independent of connection to even generalized congressional practice, the proper audience must be defined. Is it lawyers, as Manning contends (putting aside the fact that many congressional drafters are lawyers--including our respondents, who still did not know many rules), (163) judges, or the public?

      1. Expressio, noscitur, and ejusdem as approximation canons

         At least for our respondents, judicial deployment of the noscitur and ejusdem rules does not have an effect on the legislative process. These therefore are not feedback canons: our respondents did not know the canons by name and did not seem to know that they were presumptions that courts employed. As such, whatever dialogic or teaching function these canons may be intended to have seems largely absent.

         But neither do these canons seem to be fictions. Our respondents told us that they deployed the concepts underlying them, as well as the concept underlying expressio, even without knowing that they are also judicial rules. Thus, of the typically proffered justifications, these canons seem best understood as accurate judicial approximations of the way that drafters put language together.

         There are some potentially interesting doctrinal implications of conceptualizing these textual rules in this manner. To the extent that approximation rules aim to reflect legislative practice, then further investigation seems warranted to determine if our results are generalizable: that is, whether more drafters write statutes with these assumptions in mind. After all, the legitimacy of an approximation rule depends on how well it actually approximates. (164)

         A related, and more provocative, implication is that Congress thereby may have the power, either directly or indirectly, to affect how approximation canons are deployed. If drafters stopped using the expressio presumption when drafting--whether by happenstance, informal agreement, or even perhaps by legislating a formal ban--that canon could no longer be justified under a theory that it is a reflective one. There is an ongoing debate over which branch (or branches) has the power over interpretive rules, and in the Conclusion we detail how our study advances that discussion. (165) Here, however, the point is to illustrate the theoretical distinctions that have been overlooked due to the tendency to lump the canons and their various justifications together. An interpretive theory that derives its normative justification from how well it reflects congressional practice may say something entirely different about which branch of government has the...