The anti-messiness principle in statutory interpretation.

AuthorKrishnakumar, Anita S.

Many of the Supreme Court's statutory interpretation opinions reflect a jurisprudential aversion to interpreting statutes in a manner that will prove "messy" for implementing courts to administer. Yet the practice of construing statutes to avoid "messiness" has gone largely unnoticed in the statutory interpretation literature. This Article seeks to illuminate the Court's use of "anti-messiness" arguments to interpret statutes and to bring theoretical attention to the principle of "messiness" avoidance. The Article begins by defining the concept of anti-messiness and providing a typology of common anti-messiness arguments used by the Supreme Court. It then considers some dangers inherent in the Court's use of anti-messiness arguments to reject otherwise plausible statutory constructions. Last, the Article explores how the anti-messiness principle fits within existing theories of jurisprudence and statutory interpretation and discusses how attentiveness to anti-messiness might add greater texture to prominent theories of statutory interpretation.

INTRODUCTION

In its 2009 term opinion in Hertz Corp. v. Friend, (1) the Supreme Court unanimously adopted a presumption that the place where a corporation maintains its headquarters is its "principal place of business" (2) under the federal diversity jurisdiction statute. (3) In so ruling, the Court relied heavily upon "the need for judicial administration of a jurisdictional statute to remain as simple as possible." (4) The Court's opinion--and, indeed, the Justices' questions at oral argument (5)--displayed an overt preference for the statutory construction that would prove simplest to apply. A "headquarters" presumption was best, the Court argued, because it "points courts in a single direction" so they "do not have to try to weigh corporate functions, assets, or revenues different in kind, one from the other." (6) Other, more nuanced "principal place of business" tests were rejected as "difficult to apply" and criticized for their "growing complexity." (7) In layman's terms, the Court's primary justification for embracing the "headquarters" test reduced to the argument that: Other tests are too messy! A presumption that a corporation's headquarters constitute its "principal place of business" is the best statutory reading because it is (relatively) simple and will keep implementing courts from having to engage in intricate, factually-difficult analyses.

The Supreme Court's opinion in Hertz is intriguing in its own right, but particularly so because the preference for simplicity that it expresses is quietly familiar: Upon inspection, it turns out that a jurisprudential aversion to messy, complex statutory constructions--or, more accurately, to constructions that require messy factual determinations by implementing courts--can be found lurking in the background of several of the Court's statutory interpretation cases. In other words, when giving content to the words in a statute, the Court regularly eschews definitions, tests, and applications that require intricate factual assessments and favors interpretations that are relatively simple to implement.

This "anti-messiness" norm is not limited to the statutory context. It also shows up, in a slightly different form, in the Court's constitutional jurisprudence and it long has played a role in justifying the Court's overruling of troublesome precedents, despite stare decisis concerns. What is interesting about the Court's use of the principle in the statutory context, however, is that (i) the existence of this background norm has gone surprisingly unnoticed in the literature; and (ii) all of the debate surrounding specific invocations of the principle has focused on whether a particular interpretation in fact will prove messy to implement, not on the validity of the norm itself. Messiness avoidance seems to be widely accepted as a legitimate basis for rejecting a statutory construction. Indeed, those who oppose a construction that invokes anti-messiness arguments typically do not challenge the virtues of messiness avoidance. Instead, they tend to quarrel with the likelihood that the disfavored interpretation will be difficult, cumbersome, or untidy to implement. In most of the cases analyzed below, the opposing opinion, if there was one, responded to antimessiness arguments with claims that the interpretation would not, in fact, result in the predicted messiness. (8) In other words, the jurisprudential battles tend to take place at the factual, rather than the theoretical, level.

At times, an opposing opinion even has argued that the interpretation chosen by the anti-messiness-invoking opinion will itself be messy to implement. (9) That is, the response to a challenge that one interpretation will prove unduly messy to implement is that the proposed alternative will prove at least as messy to implement as well. The fact that opposing opinions devote such energy to undermining anti-messiness-based criticisms of their preferred statutory construction and even take pains to cast the countervailing construction as equally messy is significant, and suggests that the background norm of messiness avoidance is deeply entrenched in statutory jurisprudence.

This Article seeks to illuminate the work that anti-messiness arguments perform in the Court's statutory jurisprudence, as well as to evaluate the dangers and theoretical implications of such arguments. The Article first aims to identify and organize the Court's articulation of anti-messiness arguments. Part I defines "anti-messiness" and describes how the principle is employed in statutory construction. It then discusses the background concerns that motivate the anti-messiness principle and provides a typology of anti-messiness arguments, discussing separately arguments based on: judicial inexpertness, practical difficulty, indeterminacy, and inconsistency. I offer several detailed examples, drawing on cases involving a wide range of statutes. Part I also explores how anti-messiness arguments interact with other interpretive norms, including stare decisis, the avoidance canon, and the presumption against extraterritoriality.

Part II considers some problems with the Court's use of anti-messiness arguments. Prominent among these problems are: (1) the looseness of the principle, which lends itself to inconsistent and subjective invocation; (2)judicial shirking; (3) the Court's use of the principle to reject nuanced constructions that may be necessary to avoid circumvention of a statute's purpose; and (4) the Court's use of antimessiness arguments anticipatorily to reject plausible statutory constructions based on mere predictions. Part III then examines the theoretical implications of the anti-messiness principle. The first two sections of Part III discuss the anti-messiness principle's general jurisprudential underpinnings, identifying points of overlap between antimessiness arguments and the concept of judicial minimalism, as well as parallels between the anti-messiness principle and the rules versus standards paradigm. The last few sections explore how anti-messiness arguments intersect with current theories of statutory interpretation, including: textualism, purposivism, and pragmatism.

  1. WHAT IS "ANTI-MESSINESS"?

    My first goal is to define the principle of anti-messiness. A definition will enable readers to identify when the norm is being invoked as well as to compare use of the principle to the use of other interpretive tools and decisionmaking factors in a particular case. Once I have defined the norm, I will examine specific forms of anti-messiness arguments that the Supreme Court tends to make.

    1. Definition

      Anti-messiness refers to a background principle that favors the avoidance of inelegant, complex, indeterminate, impractical, confusing, or unworkable factual inquiries. More specifically, it is an interpretive principle that rejects statutory interpretations that will require implementing courts to engage in messy factual inquiries in the application. I chose the label "anti-messiness" because its antithesis, "messiness," seems best to capture the universe of interpretive problems that the Court seeks to avoid when it makes the arguments described in this Article. Dictionaries variously define the word "messy" to mean: 1. untidy, disordered, dirty; 2. confused and difficult to deal with; 3. embarrassing, difficult, or unpleasant. (10) Anti-messiness, then, refers to the Supreme Court's rejection of statutory constructions that require disorderly, untidy, unpleasant, or difficult factual inquiries or factual line-drawing by implementing courts. In other words, the anti-messiness principle reflects a judicial preference for simple, easy-to-administer interpretations.

      A couple of points are worth noting before delving into the motivations and typology of anti-messiness arguments. First, judicial arguments based on the anti-messiness principle tend to perform one of two roles in the Court's statutory jurisprudence: (i) they can be used as an interpretive tool to assist the Court in deciphering a statute's meaning; or (ii) they can serve as a justification for the Court's adoption of a particular test or decisionmaking rule that will govern the implementation of the statute in future cases (like the Title VII burden-shifting test). (11) In the first role, anti-messiness arguments tend to be used as a "plus factor," or background norm supporting the selection of one construction over another, messier one. In this formulation, they sometimes are accompanied by legislative intent arguments opining that Congress could not or did not intend such messy interpretive consequences. (12) In the second role, the anti-messiness principle is used not so much to interpret the statute as to assist the Court in selecting a test for implementing it.

      Hertz is an example of the second form of anti-messiness argument. The Court's opinion in that case openly relied on the...

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