The federal common law of statutory interpretation: Erie for the age of statutes.

AuthorGluck, Abbe R.
PositionIntroduction through II. Some Proof That Statutory Interpretation Methodology Is Not Understood as 'Law' C. Some State Courts Do Not Deem Themselves Bound by Federal Interpretive Principles When Interpreting Federal Statutes, p. 753-780

TABLE OF CONTENTS INTRODUCTION I. WHY HAVE THE CANONS OF STATUTORY INTERPRETATION BEEN LEFT OUT OF THE DEBATE OVER POST-ERIE FEDERAL COMMON LAW? A. Federal Common Law and the Charming Betsy Canon B. Other Canons Fare No Better Under the Parameters of the Modern Debate C. Arguments Based on Pedigree and the Constitution D. Canons as Policy Choices II. SOME PROOF THAT STATUTORY INTERPRETATION METHODOLOGY IS NOT UNDERSTOOD AS "LAW" A. Under Current Doctrine, What Else Could It Be? 1. A More Common Type of Common Law B. The Lack of Methodological Stare Decisis as Evidence That Statutory Interpretation Methodology Is Not Understood as Law C. Some State Courts Do Not Deem Themselves Bound by Federal Interpretive Principles When Interpreting Federal Statutes D. Many Federal Courts Do Not View Statutory Interpretation Methodology as a "Rule of Decision" Subject to Erie 1. Diversity Cases 2. Federal Question Cases 3. Outcome Determinacy and the Procedure/Substance Divide III. SOME COMPARISONS AND WHY CHEVRON SHOULD NOT BE SPECIAL A. Analogous Principles in Other Contexts That Federal Courts Treat as Law 1. Contract Interpretation 2. Choice of Law and Constitutional Law Decision-Making Rules 3. Burden Allocation Regimes B. Some Statutory Interpretation Principles That the Federal Courts Do Treat as Law 1. Chevron Is Not Special 2. Rules of Construction in the U.S. Code IV. IMPLICATIONS AND ANTICIPATED OBJECTIONS A. Red Herrings: Uniformity, Inflexibility, and Rules Versus Standards B. The Expressive and Explanatory Power of a More Lawlike Approach C. Spectrums of Precedent and Law D. A Modern Erie? CONCLUSION INTRODUCTION

We do not have an Erie for the "Age of Statutes." (1) The Erie that we have addresses a world in which the common law dominated and in which federal courts could go about their daily work by recourse to state-court-created doctrine,(2) usually without creating "federal common law." Those understandings do not fit an era in which federally made statutory law dominates the legal landscape and the primary role of federal courts is to interpret it. But the creation of federal common law remains discouraged, thanks to Erie's continuing vitality and the durability of the notion that Erie requires federal common law making to be "limited" and "restricted." (3) As a result, federal courts have spent the last century engaged in an under-the-radar enterprise of fashioning and applying what are arguably hundreds of federal common law doctrines to questions of federal statutory interpretation, without acknowledging that they are doing so and without explaining how their actions fit into the Erie paradigm.

From the rule that exemptions in the tax code should be narrowly construed, to the presumption that ambiguous federal statutes should not be interpreted to preempt state law, modern federal statutory interpretation is a field dominated by judicially created legal presumptions. (4) At the same time, the question of the legal status of statutory interpretation methodology remains unanswered and almost completely unexplored. (5) What are the rules of statutory interpretation? Almost all jurists and scholars resist the notion that they are "law." Instead, most contend that these tools, often called "canons" of interpretation, are "rules of thumb"--a legal category that seems to sit in between law and individual judicial philosophy.

This puzzle has implications far beyond academic explorations of Erie. Indeed, it goes directly to the role of courts in the modern legal era. Erie was about federal courts finding their place in a world of state common law. (6) Chevron, which Cass Sunstein has called our "modern Erie," was similarly about the place of federal courts in a world of federal executive administration. (7) Both doctrines shifted power from federal courts to other players--to states in the case of Erie and to federal agencies in the case of Chevron. But, along the way, we never had an analogous Erie for the statutory era: a canonical case that established the balance of power (when agencies are not in the picture) in a world of changing law-making institutions, and made clear what kind of authority federal courts have to create interpretive doctrines for statutory cases.

But why should this sort of federal doctrine making remain taboo when the entire legal landscape has changed? Most federal judges claim to espouse a particular model of the judicial role in statutory interpretation: a version of "faithful agency" in which the interpretive tools that courts employ generally are justified on the ground that they effectuate congressional intent or reflect how Congress actually works,(8) These assumptions are most certainly fictitious with respect to many of the canons. (9) Nevertheless, Erie's ripple effect seems at least partially responsible for the persistence of these justifications: interpretive rules explained as deriving from or as particularly connected to Congress seem less like "making law" than rules whose judicial source is more expressly acknowledged.

Exploring this possibility--that statutory interpretation methodology is some kind of judge-made law--allows for some significant doctrinal and theoretical interventions. A common-law conceptualization of interpretive methodology, for instance, implies that Congress can legislate over it, but courts and scholars continue to resist the notion that legislatures can control these interpretive rules. (10) A common-law conceptualization also would seem to imply that the rules of interpretation should receive stare decisis effect, but that idea has been rejected by all federal courts and most scholars. (11)

There is also the possibility that some of the canons might be federal common law, while others might not. Some, for example, might be understood as a special kind of law that enforces constitutional norms or implements the Constitution--a kind of judge-made law that has been given a variety of labels in the constitutional-law context, including "constitutional common law." (12) Other canons go back many centuries, seem like common sense, or otherwise seem not to be judicial creations at all. The canons are not typically dissected in this manner, but different canons might have different jurisprudential bases and different places on the federal common law (or not) spectrum.

Analyzing the canons as a kind of "law" also draws attention to a different Erie question: whether federal courts should apply state rules of statutory interpretation to the myriad state-law questions that federal courts decide. Federal courts seem generally uninterested in this question and do not typically apply state methodology to state statutory questions--further proof that federal courts do not understand these principles as legal doctrines on par with many analogous decision-making rules. (13) In the context of both contract and constitutional interpretation, for instance, federal courts routinely create precedential, legal doctrines for federal questions and also apply the state versions of those doctrines to state-law questions. (14) But when it comes to statutory interpretation, federal judges seem particularly unwilling to relinquish--either to other federal courts, to state courts, or to legislatures--any power to dictate what rules of interpretation must be applied.

Finally, if the rules are not a form of law that already is familiar to legal doctrine (like common law), then we need an alternative explanation of what they are. This raises an entirely different set of questions. For example, if we agree that at least some interpretive presumptions are judicially created, then we might ask whether they are "law" simply by virtue of that fact. We also might ask if there is even a doctrinal space after Erie for judge-created federal decision-making rules that are something other than federal common law or Constitution-implementing law. Whence would the judicial power derive to create such law? Another question is what force such interpretive law would have. Might, for example, statutory interpretation methodology be "law," but not precedential, or less precedential, than other types of law?

It should be evident that this inquiry into the legal status of methodology opens too many lines of investigation for resolution in a single Article. I have begun this work elsewhere(15) and will not finish it here, or even try. The goal of this Article is to frame a research agenda, and to begin to play out the implications of the different types of arguments that might be made.

Part I begins this exploration by situating these questions within debates over federal common law making in other contexts that have received much more attention. Part II offers support for the proposition that federal courts do not currently understand the canons as law, including the fact that there is no such thing as methodological stare...

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