The states as laboratories of statutory interpretation: methodological consensus and the new modified textualism.

• Author: Gluck, Abbe R.

ARTICLE CONTENTS INTRODUCTION I. A BRIEF OVERVIEW OF THE MAINSTREAM DEBATES A. Textualism Versus Purposivism B. Textualism's Limited Success and the Problem of Interpretive Indeterminacy C. Proposals for Interpretive Determinacy and the Relevance of the State Cases II. THE STATE LEGISPRUDENCE A. State Selection and Case-Study Methodology 1. State Selection 2. Case-Study Method B. Oregon's Controlling Interpretive Framework 1. The PGE Framework 2. The Legislative Response to PGE C. Texas and Connecticut: Courts React to Legislated Interpretive Rules 1. Texas: Express Judicial Disagreement with Legislated Interpretive Rules 2. Connecticut: Legislative Override of the Court-Chosen Approach a. The Connecticut Supreme Court's Preference for an Eclectic Approach b. The Connecticut Supreme Court's Resistance to the Legislated Rule D. Wisconsin and Michigan: Methodological Frameworks Despite Internal Divisions 1. Wisconsin: Federal Sources, Modified Textualism, Methodological Stare Decisis 2. Michigan's Textualism Revolution III. THE DRIVE TO INTERPRETIVE CLARITY A. Court-Led Efforts To Impose Controlling Interpretive Frameworks 1. Explaining the Difference: Frameworks as "Case Management" and the Link to Chevron 2. The "Hard Cases" Paradigm and the Constraining Effect of Legal Frameworks B. Methodological Stare Decisis C. Legislated Interpretive Rules IV. MODIFIED TEXTUALISM A. Labeling B. Modified Textualism Is "Textualism" 1. Text Versus Legislative History: Modified Textualism in Practice 2. Legislative History Versus Canons: Modified Textualism in Theory C. Modified Textualism as "Structured Purposivism"? D. Evidence of a Broader Trend? V. THE VALUE OF INTERPRETIVE CONSENSUS A. Why Consensus? 1. Instrumental Rule-of-Law Benefits from Consistent Regimes a. Instrumental Benefits for Federal Courts b. Observable Effects in the States Studied 2. "Expressive" Rule-of-Law Benefits B. Why Tiered Interpretation? C. Intersystemic Judicial Difference CONCLUSION AND NEXT QUESTIONS INTRODUCTION

Some say that textualism is dead. (1) Others believe that the inherent difficulty of interpreting statutory language means that judges will never be able to reach consensus on a single, overarching methodological framework for all statutory cases. (2) Still others believe that existing methodological differences are not important enough to merit the attention that has been devoted to them. Clearly, none of these naysayers has accounted for state courts.

The vast majority of statutory interpretation theory is based on a strikingly small slice of American jurisprudence, the mere two percent of litigation that takes place in our federal courts--and, really, only the less-than-one percent of that litigation that the U.S. Supreme Court decides. (3) The remaining ninety-eight percent of cases are heard in the netherworld of the American legal system, the state courts. (4) And yet it would likely surprise most academics and many judges to learn that, while academics have spent the past decade speculating about the "posttextualist era," (5) or the utility of congressionally legislated rules of interpretation, (6) or the capacity of judges on multimember courts to agree on a single set of interpretive rules, (7) many state courts have been engaging in real-world applications of precisely these concepts.

Several state courts have implemented formalistic interpretive frameworks that govern all statutory questions. (8) Methodological stare decisis--the practice of giving precedential effect to judicial statements about methodology--is generally absent from the jurisprudence of mainstream federal statutory interpretation, (9) but appears to be a common feature of some states' statutory case law. Every state legislature in the nation has enacted into law certain rules of interpretation, which some state courts are, in an unexpected twist, flouting. And far from being "dead," Justice Scalia's textualist statutory interpretation methodology has taken startlingly strong hold in some states, although in a form of which the Justice himself might not approve. Clearly, these developments are relevant to the mainstream debates about predictability and methodological choice, and yet federal scholars and jurists have hardly noticed them.

This Article is the first to examine this intersection of modern state and federal general statutory interpretation theory. (10) It also is the first close study of modern statutory interpretation in several state courts of last resort. Thinking about statutory interpretation in the world beyond the U.S. Supreme Court is long overdue. (11) So, too, is the recognition that state court methodological developments may be used to inform and change federal statutory theory and practice. Indeed, federal courts are exposed to state statutory interpretation all the time: the reality of concurrent jurisdiction means that state and federal courts are continuously interpreting the other system's statutes, and so their interpretive theories intersect regularly in both state and federal court. The state courts studied as part of this project have taken advantage of their exposure to federally oriented thinking about statutory interpretation; as we shall see, they aggressively deploy (but do not copy) federal interpretive theory as they elaborate their own, unique methodological rules--rules that are intended to improve upon the federal experience. Federal theorists, too, should recognize that methodology is already moving across the systems, and that state court developments may be changing the terms of the statutory interpretation debate in ways that may be far more productive than anything currently happening in the federal arena.

Lest there be any doubt as to the importance of the statutory interpretation events underway in some states, let us consider the following scenarios, which highlight key questions about the utility of some of the proposals most commonly advanced by mainstream academics to bring more predictability to statutory interpretation:

(1) The supreme court unanimously announces a new methodology for statutory interpretation to govern future cases. All subsequent decisions apply it, and even justices who disagree with it consider themselves bound by it under principles of stare decisis.

(2) The legislature enacts an interpretive rule encouraging reference to legislative history when courts construe statutes. The supreme court disagrees with the rule and refuses to apply it.

(3) The supreme court issues an opinion forbidding use of the "plain meaning" rule, which prohibits consideration of nontextual sources in the absence of statutory ambiguity. The legislature immediately overrides the case with a statute that reinstates the rule. The supreme court evades the newly legislated rule at every turn.

(4) The supreme court, which passionately describes itself as "textualist" in the mold of Justice Scalia, prioritizes legislative history over substantive canons of interpretation.

Merely hypothetical scenarios? No, indeed. These are, rather, descriptions of statutory interpretation developments underway in Oregon, Texas, Connecticut, Michigan, and Wisconsin. And some of these developments appear to be occurring across a broader array of states, too. Seventeen years ago, the Oregon Supreme Court announced a controlling interpretive framework to govern all statutory questions. (12) Texas's highest criminal court is in apparent defiance of the state legislature's enacted law that endorses the use of legislative history. (13) Every state legislature in the nation, in fact, has enacted into law some rules of interpretation, which many state courts are refusing to implement. (14) Some of these legislated rules, like Connecticut's text-focused regime, were enacted in direct response to what the legislature perceived as an inappropriate judicial power grab over interpretive methodology. (15) And, in four of the five states studied--including Michigan and Wisconsin, where the state supreme courts are marked by deep internal divisions--methodological stare decisis appears to be a common feature, as does, quite intriguingly, a variation of textualism that appears to have more traction than its federal archetype. (16)

These state cases illustrate that the statutory interpretation ferment is not over; it just may have changed. Not only the venue, but the nature of the conversation itself seems to be in transformation. Throughout the states studied, both courts and legislatures are participants in unanticipated efforts to increase predictability in statutory interpretation. This very fact--that state courts and legislatures are in this together, that they appear to share this impulse to impose clarity--is another occurrence entirely absent from the federal experience. What's more, these developments highlight that, for all the energy that the statutory interpretation wars have consumed, the legal status of methodology itself--whether it is "law" or something "less" or "different"--remains entirely unresolved.

Not incidentally, these state efforts also respond directly to the leading academic proposals advanced to make federal statutory interpretation more determinate. Legislated interpretive rules, suggested in one prominent proposal, (17) do not appear to be the answer, given the number of courts already actively resisting them. The resulting interbranch power struggles, in turn, raise new questions about separation of powers in statutory interpretation, shifting the debate away from what has been the prevailing question--which methodology best respects the respective roles of court and legislature--to the entirely different question of which branch gets to choose it.

Another path to determinacy, however, long thought remote, now seems more possible in light of the state experiences. These state supreme courts have exercised interpretive leadership: they have imposed, both on themselves and on their subordinate courts...