Uncovering the Codifier's Canon: How Codification Informs Interpretation.

• Author: Listwa, Daniel B.

To contend that the category of "tangible objects" should be understood to exclude an actual fish, one must marshal some strong arguments. The ordinary meaning of a textual phrase in a statute is often the most persuasive evidence in favor of a particular interpretation. (1) An interpretation at odds with ordinary meaning requires citing textual or other clues of nearly equal interpretive force. In Yates v. United States, the Supreme Court narrowed the meaning of the word "tangible object" in 18 U.S.C. [section] 1519, in part by citing the language's organizational context in the United States Code, including its caption and the function of the surrounding provisions. (2) In doing so, it implicitly placed arguments based on the organization of the Code on a high pedestal, possibly above legislative history and substantive policy canons, like the rule of lenity. (3)

Setting aside the question of how much relative weight these organizational features should be accorded, it seems reasonable that any interpreter--regardless of where she or he stands in the textualist-purposivist debate--ought at least to consider what information might be communicated by Congress's decision to place a provision in a particular part of the Code and give it a particular title. (4) But while invoicing these contextual features might seem uncontroversial, the text of the Code itself says otherwise. Unbeknownst to most interpreters, Title 18, along with many other titles, includes a rule of construction that appears to forbid invoking either a provision's placement or its caption in the Code. (5) This feature of the Code affects both dominant schools of interpretation: the textualist move of constructing coherence in the Code is short-circuited, (6) and a staple of the purposivist's approach is foreclosed. (7)

In other words, this rule of construction seems to command that, far from being strong enough to overcome ordinary meaning, an argument based on organizational features of the Code is invalid. Such a conclusion, this Comment argues, relies on a mistaken interpretation of what this statutory rule of construction--or "legislated canon"--means. This Comment theorizes that provisions that guide interpreters' reading of codification information embody a "codifier's canon": an interpretive principle that judges should heed caption and placement in the Code where they reflect the choices of Congress, but not where they are introduced by nonlegislative codifiers. This novel understanding of the apparent prohibition on utilizing captions and placement offers important lessons for how interpreters should consider the codification process when extracting meaning from statutory provisions.

As Tobias Dorsey, a former attorney for the House Office of Legislative Counsel, has observed, the provision in Title 18 and elsewhere has gone largely unheeded; citing placement and captions remains the norm in the judiciary. (8) In fact, the Supreme Court has only once cited one of these statutory prohibitions against invoking caption and structure. (9) In Ex parte Collett, the Court rejected the interpretation that a provision addressing venue transfer applied exclusively to the particular types of civil suits discussed in neighboring provisions. (10) While relying primarily on the plain meaning of the text, which referenced "any civil action," the Court also cited the provision that prohibited drawing conclusions based on where in Title 28 the statute was codified. (11)

Scholars have offered three related approaches to the problem of inconsistent invocation of organizational context. Gregory Sisk has called for the repeal of provisions banning invocation of placement and captions, contending that they seal off important interpretive resources from judicial consideration. (12) On the other hand, Dorsey advocates adherence to such rules as legitimate acts of legislation. (13) Most recently, William Eskridge has advocated treating this legislated direction as nonbinding, while suggesting that it provides a "note of caution" for interpreters looking at a provision's context in the code. (14) Although Sisk, Dorsey, and Eskridge take distinct attitudes toward the legislated prohibition, they all interpret the rules of construction as meaning the same thing--that is, as an instruction by Congress not to draw interpretive inferences based on where a provision was placed in the Code or what caption it was given. All of these arguments, this Comment contends, start from the wrong premise.

This Comment offers an alternative interpretation of these statutorily enacted rules of interpretation. These provisions ought not to be read as broad rejections of citing structural placement or caption. Instead, they should be understood as signaling to the courts that placement and caption choices within the Code should be respected and considered when they originate in the decisions of Congress, but not when those choices are the result of intervention by the office that codifies the United States Code. In other words, the apparent prohibition on invoking organizational context should be understood as tailored to the circumstances of the codification process, not a categorical rejection of the salience of placement and caption.

This observation is informed by the codification process. The United States Code is a project of compilation and codification of federal statutes that has been ongoing for generations. Central to that project is the Office of the Law Revision Counsel (OLRC). The OLRC is tasked with preparing and publishing the Code. (15) The Code is itself composed of both positive law titles and nonpositive law titles, and the role of the OLRC differs with respect to each type of title, as is elaborated in this Comment. Nonpositive law titles are not themselves binding authorities. This is because, although they are composed of statutory provisions passed by Congress, the titles have not been independently enacted into law. (16) Positive law titles are like nonpositive law titles in that they compile and restate previously enacted federal statutes, but there is one major difference: a positive law title is itself enacted into law as a statute that also repeals the existing laws that the positive law title restates. (17)

The codifier's canon only appears in positive law titles. That is because of the role of the OLRC in the positive law codification process. The OLRC is the critical player in the enactment of a positive law title, a process that requires decision making about the placement of provisions and, sometimes, captions. The codifier's canon--that is, the prohibition on invoking organizational context--ought to be understood as responding directly to the role of the OLRC, barring reliance on those decisions made during the codification process, but not those that reflect legislative choice. It is the close relationship between these legislated rules and those who codify statutes into the United State Code that motivates referring to this interpretive principle as the "codifier's canon."

But not every captioning and placement decision is made by the OLRC. Often, Congress makes those choices as part of the statute as it was enacted. In particular, every statute enacted by Congress amending a positive law title includes specific directions about how the provisions relevant to the statute ought to be arranged in the U.S. Code. The codifier's canon should not be understood to impede an interpreter from drawing inferences from Congress's statutorily enacted choices about placement and captions.

Instead, the interpreter ought to follow a simple rule: ignore editorial decisions made by the nonlegislative codifiers--i.e., the OLRC--but consider those made by Congress. This broad principle of interpretation--the generic codifier's canon--ought to be considered regardless of whether the provision one is interpreting appears in a title in which the prohibition on citing captions and placement is present in the text of the title itself. The generic codifier's canon should be--and arguably already has been (18)--added to the Supreme Court's litany of canons of statutory interpretation. The canons of statutory interpretation are "formal presumptions or rules about statutory meaning." (19) The generic codifier's canon should be recognized as such a rule because doing so would avoid inaccurate interpretations based on artifacts of the codification process--an error that does, in fact, occur in the federal courts. (20) As this Comment explains, understanding how the OLRC generates both positive and nonpositive law titles enables the interpreter to better determine the meaning of the law as Congress intended it.

On the other hand, where the legislated codifier's canon--which is referred to here as simply the "codifier's canon," as it is the focus of this Comment (21)--appears as a statutorily enacted rule, it has a special and important meaning. The inclusion of the codifier's canon in a positive law title directs the interpreter not to draw inferences from editorial decisions made by the OLRC or one of its predecessor institutions during the positive law codification process. Unlike the generic codifier's canon, this is not just a helpful principle to increase the fidelity of one's interpretation to Congress's will; rather, the statutory inclusion of the codifier's canon prevents inadvertent substantive changes introduced through the positive law codification process from gaining formal legal significance.

This Comment argues in favor of this tailored interpretation of the codifier's canon. Part I provides a general account of legislated canons in statutory interpretation. Part II introduces the codifier's canon, examining it in relation to the Court's standard methodology of finding significance in a provision's placement and caption in the Code. Part III explains the role of the OLRC in the codification process. Part IV builds on the history of the...