The formalist project in statutory interpretation, as it has defined itself, has been a failure. That project—typified by but not limited to Justice Antonin Scalia’s brand of textualism—has been doomed because even its staunchest supporters have been unwilling to carry it out. The rules that judges employ are too numerous to be predictably chosen. There is no ranking among them. They are not treated as black-letter, precedential law. Even formalist-textualist judges, it turns out, crave interpretive flexibility, do not want to be controlled by other courts or Congress, and feel the need to show their interpretive actions are democratically linked to Congress.

What we actually have instead is an approach whose legitimacy depends, in large part, on understanding how Congress works. Establishing the incomplete execution of formalism is a crucial first step in this argument, because the fiction that textualism has been successful in achieving its goals has prevented us from seeing what judges actually want and, in fact, are actually doing.

With that understanding, it becomes clear that better judicial understanding of the realities of congressional drafting practice will not only make statutory interpretation practice more legitimate, but also advance the enterprise of what most judges—even formalists—already see their job to be. If formalism originally began as a second-best alternative to understanding Congress, understanding Congress has emerged as a second-best alternative to carrying out the formalist project.

After laying this groundwork, this Essay offers ten new rules of statutory interpretation—objective, formalism-compatible rules, but rules grounded in congressional practice. It especially highlights one new rule—the CBO Canon—and then offers nine more, including an anticonsistency presumption and presumptions about different legislative vehicles, multiple agency delegations, dictionaries, and special legislative history. Judges of all interpretive stripes have shown new interest in applying this kind of real-world understanding of the legislative process to statutory interpretation doctrine. The goals here are to explore why that might be the case; to meet some of the objections that have been raised about the use of such evidence; and to offer examples to illustrate the very possibility of what might be, and in some cases already is.

[T]he more we know, the more we understand how hard it is to identify congressional intent.1

[E]ven if [some] canons do not correspond to conscious or subjective staff expectations, those canons may still promote legislative supremacy by giving Congress the tools to draw effective lines of inclusion and exclusion.
       . . . Gluck and Bressman assert that the Court applies its canons too inconsistently to establish an effective semantic baseline or toolkit. . . . Taken to its logical end, the premise that the Court is incapable of consistency casts doubt on the entire interpretive enterprise.
2

Professor John Manning, noted textualist, on the futility of incorporating empirical understandings of congressional practice into statutory interpretation doctrine

  • 1. John F. Manning, Inside Congress’s Mind, 115 Colum L Rev 1911, 1952 (2015).
  • 2. Id at 1942–43 (quotation marks omitted).

Introduction

Formalism holds enormous attraction for statutory interpretation, at least for this author. In previous work, I have advocated the adoption of a single set of fewer, ordered, and predictable statutory interpretation rules.3 I have argued that such rules should be given stare decisis effect. I believe that most statutory interpretation doctrines are black-letter common law for purposes of both the Erie doctrine4 and the congressional power to override them.5 But none of this describes the current state of affairs, and I have become increasingly convinced that it never will.

The formalist project in statutory interpretation, as it has defined itself, has been a failure. That project—typified by but not limited to Justice Antonin Scalia’s brand of textualism—has been doomed because even its staunchest supporters have been unwilling to carry it out. Formalists argue that they do not aim for interpretive rules that accurately reflect congressional drafting practice. Rather, they contend that a second-best interpretive regime that sacrifices accurate approximation of congressional practice in favor of efficient, and objective, system-coordinating rules is a trade-off worth making.6 Indeed. But this trade-off works only if the rules deployed are clear, sufficiently limited in number to be predictable, and adopted by all involved as shared coordinating conventions.

None of this holds for even strict-textualist statutory interpretation today. When it comes to system coordinating, or the lack thereof, empirical work reveals that Congress and the courts are not on the same page with respect to interpretive conventions.7 But even the courts, acting alone, are not faithfully formalist in their interpretive approach. I make this argument at length in other work.8 Here, in brief: The rules that judges employ are too numerous to be predictably chosen; there is no ranking among them; and they are not treated as black-letter, precedential law—that is, the same interpretive rules do not apply to the same questions from case to case—as a formalist approach should logically require. They thus find little justification in their potential to advance a formalist, rule-of-law vision. I am not alone in taking this position. In this same volume, Judge Frank Easterbrook, one of the most intelligent (and textualist) jurists on the bench, calls this an “absence of method”; his essay likewise implies that pure formalism in statutory interpretation does not exist and might be impossible.9

What then does justify the approach that we have—an approach nonetheless very heavily influenced by the textualist-formalists and their canons of construction? Put differently, what is statutory interpretation doctrine for, if not for achieving the rule-of-law goals of formalism? Is the role of the courts instead to try to reflect Congress? To affect Congress? Or is it totally unconnected to Congress and instead focused on public-regarding values like notice or constitutional-level values like federalism? Acknowledging the incomplete execution of formalism is a crucial first step toward considering these questions, because the dominance of textualism as the reigning interpretive methodology, together with the fiction that textualism has been successful in achieving its formalist goals, has prevented us from seeing what we actually have, and what in reality judges and interpretive doctrine are actually doing.

What we actually have is an approach whose legitimacy depends, in large part, on understanding how Congress works. The primary aim of this Essay is to defend that goal and to suggest how it could be better achieved. It is now clear, as Part I elaborates, that even formalism-preferring judges are drawn to interpretive approaches that both accord judges some flexibility and also have some link to how Congress works—that is, that find justification in reflecting congressional practice or assumptions. In other words, a Congress-focused approach comes closer than anything else to what federal judges really want.

There is an irony here: Textualism’s formalism arose in the first place from the baseline premises that Congress is too irrational for courts to efficiently understand and that multimembered bodies (including legislatures) cannot act with legal coherence. Yet even textualists are drawn to rules that are linked to Congress—both because of judicial apprehensions about legitimacy and because of legislative supremacy. Moreover, another attraction of a less formalist approach, as elaborated in Part I below, is that it actually gives judges a lot more control over interpretation. Textualists care about text, but they care more about maintaining judicial power.

It is important to make clear at the outset that, to the extent that a Congress-oriented interpretive approach is what is really animating many judges, we are not doing very well in achieving it. Judges, including and especially textualist-formalists, have devoted decades’ worth of attention to the link between the statutory interpretation presumptions and Congress’s drafting assumptions and practices—for instance, often claiming that the canons are background assumptions against which Congress drafts, and justifying them on that basis over other interpretive tools, such as purpose and legislative history. And yet, federal judges have been generally uninterested in actually verifying the connections that they claim. Perhaps unsurprisingly, recent empirical work illustrates that many of these long-standing interpretive assumptions are deeply mistaken, unknown, or unused by congressional drafters.10

It also merits emphasis that a Congress-focused approach does not mean a subjective, intent- or legislative-history-oriented approach. That is a straw man. There are plenty of structural, objective features of the congressional drafting process that could be formalist tools themselves.

This brief exposition establishes the backdrop for the primary argument of this Essay: namely, that a better judicial understanding of the realities of congressional drafting practice will not only make statutory interpretation practice more legitimate, but also advance the enterprise of what most judges—even formalists—already see their job to be. If formalism originally began as a second-best alternative to understanding Congress, understanding Congress—and, for some judges, tailoring the canons to meet that understanding—has emerged as a second-best alternative to carrying out the formalist project.

One caveat: I do not claim here that a Congress-linked approach is the only possible justification for the system that we have, or that a Congress-linked approach answers all the questions about the legitimacy of some of the more substantive interpretive rules, such as the federalism presumptions or the rule of lenity. Those rules may find justification outside of either formalism or a link to Congress. I delve into those questions in a series of new separate projects about the apparent penchant for methodological pluralism in the federal courts. That is not the formalist way, but federal judges want it, nay, demand it, that way. The argument in this Essay is just one piece of that bigger picture.

Here, my aim is simply to counter arguments by textualists like the brilliant Professor John Manning, who argue that the more we understand how Congress works, the more convinced we should be that courts can never implement a Congress-focused interpretive regime. The real question for Manning and others is this: If we are not going to have formalism, what are we going to have? In a democracy, it is hard to imagine what other than formalism could justify the methodology we currently have, one grounded in a set of interpretive presumptions that often have no link to the legislature or the Constitution.11 In the absence of formalism, democracy demands at least some attention to Congress in statutory interpretation or an entirely different theory of justification yet to fully emerge.

After laying out these arguments, this Essay uses one recent example, what I have called “the CBO Canon”—the concept that ambiguous statutes should be interpreted in accordance with the reading of the statute adopted by the Congressional Budget Office (CBO) in calculating its budgetary impact—to illustrate how better understanding Congress can improve statutory interpretation. The “CBO score” is the publicized, nonpartisan budget estimate that Congress itself has mandated most statutes be given prior to enactment of legislation. This Essay illustrates how the score, heavily relied on inside Congress, may be more helpful to judicial interpretation of some statutes than other interpretive tools in current circulation and beloved by formalists. But the CBO Canon is just a single example, and one I have chosen to draw attention to simply because it is new. There are many other ways—which I have elaborated elsewhere and touch on here—that judges can use understandings of the legislative process to make their interpretive efforts more legitimate and more consistent with what they say they are in fact already doing.

As it turns out, federal judges of all interpretive persuasions are capable of, and have already in fact been, using evidence of how Congress works—not just the CBO Canon—in all kinds of statutory cases. In just the past three years, federal judges as varied as Chief Justice John Roberts and Justice Elena Kagan, the DC Circuit’s Judges Brett Kavanaugh and Karen LeCraft Henderson, and the Second Circuit’s Chief Judge Robert Katzmann have looked to empirical work on congressional lawmaking to alter familiar interpretive maxims.12 We seem to be on the cusp of a new moment of openness to this kind of evidence. The goals here are to explore why that might be the case; to meet some of the objections that have been raised about the use of such evidence; and to offer a few examples to illustrate the very possibility of what might be, and in some cases already is.

  • 3. See, for example, Abbe R. Gluck, The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism, 119 Yale L J 1750, 1848–55 (2010).
  • 4. See generally Erie Railroad Co v Tompkins, 304 US 64 (1938).
  • 5. See Abbe R. Gluck, Intersystemic Statutory Interpretation: Methodology as “Law” and the Erie Doctrine, 120 Yale L J 1898, 1987–90 (2011); Abbe R. Gluck, The Federal Common Law of Statutory Interpretation: Erie for the Age of Statutes, 54 Wm & Mary L Rev 753, 804–11 (2013).
  • 6. See, for example, Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 Harv J L & Pub Pol 61, 63 (1994) (arguing that concentrating on “imputed intent” denies drafters the ability to choose efficient rules); John F. Manning, The New Purposivism, 2011 S Ct Rev 113, 176 (calling canons “shared semantic conventions”).
  • 7. See generally Abbe R. Gluck and Lisa Schultz Bressman, Statutory Interpretation from the Inside—an Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan L Rev 901 (2013) (showing that Congress does not always know about or follow the assumptions judges make about legislative drafting and interpretation); Lisa Schultz Bressman and Abbe R. Gluck, Statutory Interpretation from the Inside—an Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan L Rev 725 (2014) (same).
  • 8. See generally Abbe R. Gluck, Justice Scalia’s Unfinished Business in Statutory Interpretation: Where Textualism’s Formalism Fell Short, 92 Notre Dame L Rev (forthcoming 2017) (on file with author).
  • 9. Frank H. Easterbrook, The Absence of Method in Statutory Interpretation, 84 U Chi L Rev 81, 83, 90 (2017).
  • 10. See generally Gluck and Bressman, 65 Stan L Rev 901 (cited in note 7); Bressman and Gluck, 66 Stan L Rev 725 (cited in note 7).
  • 11. For instance, warring grammatical presumptions like those discussed later in this Essay have no plausible constitutional source, nor do many of the policy canons, such as common presumptions about taxation, bankruptcy, arbitration, and so on. Compare generally John F. Manning, Clear Statement Rules and the Constitution, 110 Colum L Rev 399 (2010) (doubting the constitutional source of many canons, except perhaps lenity), with Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 BU L Rev 109 (2010) (questioning the source of certain substantive canons).
  • 12. See text accompanying notes 51–53. Katzmann has also written that empirical knowledge about the legislative process should affect how judges interpret statutes. See Robert A. Katzmann, Response to Judge Kavanaugh’s Review of Judging Statutes, 129 Harv L Rev F 388, 391 (2016); Robert A. Katzmann, Statutes, 87 NYU L Rev 637, 682–84 (2012).