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Gluck on State Experimentation in Statutory Interpretation

By Lawrence Solum

Abbe R. Gluck (Columbia University - Columbia Law School) has posted Consensus Textualism: States as Statutory Interpretation Laboratories (Yale Law Journal, Forthcoming) on SSRN. Here is the abstract:

This Article undertakes the first close study of statutory interpretation in several state courts of last resort, and illustrates that many central ideas in mainstream (federal) statutory interpretation, heretofore theorized only in the abstract, are actually in play in a number of states. It would doubtless surprise most academics and many judges to learn that, while academics have spent the past decade speculating about the ?death of textualism,? or the utility of congressionally legislated rules of interpretation, or the capacity of judges on multimember courts to agree on a single set of interpretive rules, many state courts have been engaging in real-world experiments in precisely these areas. Several state courts have articulated single, governing interpretive regimes for all statutory questions. Methodological stare decisis - the practice of giving precedential effect to judicial statements about methodology - which is generally absent from federal statutory interpretation, appears to be a common feature of some states? statutory caselaw. Every state legislature in the nation has enacted certain rules of interpretation, which some state courts are, in an unexpected twist, flouting. And, far from textualism being ?dead,? what emerges from the state cases is a surprisingly strong theory of what I label ?modified textualism? that, while sharing textualism?s core components, has broader potential appeal.

These states developments offer a powerful counter-paradigm to that of the U.S. Supreme Court, where persistent interpretive divides and a refusal to treat methodological statements as precedential have made interpretive consensus seem impossible. Indeed, methodology seems to be an entirely different animal in these state courts. In these states, it is possible for one judge to bind another judge?s methodological choice. And in fact, federal judges, too, readily assent to this conception of methodology in other areas of law, like contract interpretation. Yet these principles have failed to translate to the federal statutory interpretation context, without much explanation of why statutory interpretation should be any different. Contrary to long-held assumptions, these state examples illustrate that ex ante-defined methodological frameworks are possible; that they appear to have beneficial rule-of-law, coordination, and expressive effects; and that the ?modified textualist? theory advanced by the Article - the interpretive theory around which the state courts reach their consensus - may enhance the prospects of achieving methodological consensus in even more courts.

And from the text:

It also must be recognized that even those who criticize the manipulability, in highly- politicized cases, of Chevron or other legal regimes acknowledge that such regimes can have a ?constraining effect? and can promote rule-of-law values in other, perhaps even most, cases.257 These argument are familiar across all areas of law. Legal doctrine constrains some of the time, but sometimes it doesn?t. The fact that ?ideology? is a factor in judicial decisionmaking does not necessarily mean that ideology is the only factor or that legal doctrine is not the salient one. Nevertheless, the more skeptical version of this story seems to be the dominant one in statutory interpretation theory. And it seems likely that at least one reason for this is what has been the almost exclusive focus on the U.S. Supreme Court in development of that theory. The Court?s docket generally has more normatively difficult, high-stakes cases than the lower federal courts, and perhaps more than state supreme courts.258 More importantly, these types of cases are the focus of legal scholarship, law teaching, and public attention.259 In such difficult cases, even consistently applied methodological regimes are likely to result in divided courts.

This Supreme-Court-focused lens has created a ?hard cases? paradigm for statutory interpretation, one that may overemphasize the intractability of interpretive differences and underemphasize the constraining effect of legal rules. This may very well be the wrong paradigm for most cases, or most lower courts. This possibility seems implicit in the arguments made by leading Chevron scholars about lower courts, namely, that a primary goal of clear regimes in the administrative law context is to coordinate and harmonize the work of those lower courts.260 Indeed, recent empirical work examining the tension between ideology and doctrine in other areas points to this same notion, namely, that politics may interfere with the constraining effects of the law less in the lower courts than in the Supreme Court. 261 Numerous federal appellate judges attest to this fact, and some have argued that, in fact, what the lower courts need most is not more interpretive flexibility but, rather, clear decisionmaking rules to help them decide cases more efficiently and consistently.262 Thus, even if a PGE-type test adopted by the U.S. Supreme Court did not do work in every Supreme Court case,263 it still might have utility for some of its cases as well as, perhaps, for much lower court decisionmaking. Part V returns to this question of the value of interpretive consensus.

An important, innovative, and original piece.  Highly recommended!  Download it while its hot!

Full post as published by Legal Theory Blog on February 03, 2010 (boomark / email).