Thursday, March 09, 2017

Chapter 17 (Chapter Summaries) " The Role of the Courts: The Techniques of Judicial Interpretation” in Elements of Law and the United States Legal System

(Washington Monument Pix © Larry Catá Backer 2016)

I recently announced the forthcoming publication by Carolina Academic Press of my Elements of Law and the United States Legal System (ISBN: 978-1-61163-927-8 • e-ISBN: 978-1-61163-984-1).

The work made sense as a century of legalization (here and here) and judicialization (here and here) forces more and more people worldwide to bump up against aspects of aspects of the U.S: legal system.  The system is a complex amalgamation of distinct approaches to legalization, and the mechanics of its implementation, that  tends to be mystifying to everyone, even individuals trained in law elsewhere. Most people tend to be hard pressed to explain the U.S. legal system either to non-lawyers or to foreigners, even sophisticated foreign lawyers or jurists, or for that matter to each other. Most would find it difficult unravel the distinct strands of law in the United States, each of which deeply embedded within their own internally coherent systems of generation, interpretation and application. The object of the book is to make the elements of law within the U.S. legal system more accessible and easier to invoke.

This set of posts provide interested readers with a more detailed description-summary of each chapter along with teaching objectives. After these descriptions I will circulate a chapter by chapter based draft Teacher's Manual. Comments welcome for all. 

All contents posted on line may be accessed here:

Summary book organization and the second of the three chapters of Part V: The Role of the Courts in the Application of Law: Judicial Review, Methodologies of Interpretation, and Legitimacy, Chapter 17 Summary follows.

The work is divided into three parts and a historical preface.  The Preface traces the origins of the materials and its objectives.  It suggests as well the challenges of teaching normative or framing concepts around a profession based on the training in technique; in effect the book seeks to expose the underlying normative structures and patterns well embedded within the techniques that tend to center the study  of law and legal subjects. Part I: What is Law? An Introduction,  is divided into two chapters.  Chapter 1 sets out a detailed roadmap for the materials built around an introductory problem that highlights the book's major themes. Chapter 2 then introduces the principal vocabulary, institutions and forms, starting with the issue of the connection between law, justice and the state. Part II: U.S. Law: System and Sub-Systems (Chapters 3-7), then focuses on the principal components that together make up the U.S. legal system. Its five chapters each focus on three forms of law sub-systems.  The first includes law articulated by the courts--common law and equity.  The second touches on law articulated by legislatures--statutes and administrative regulations. The third focuses on emerging systems of governance beyond the state--private regulation, hybrid public-private regulation and social norms. Part III: Hierarchies of Law and Governance: The Relationship Between People, Law, and Government moves from the study of the specific characteristics of legal subsystems to their relationship to government. It speaks to the governmentalization of law. Its four chapters first consider the fundamental theories that tie law to the government, the role of rule of law concepts, the development of hierarchies of law within the domestic legal order of the United States and then the relationship of domestic to international law. Part IV: Institutional Architecture of Law and Governance: The Law of Government of the United States then considers the legal rules through which governmental regulatory authority may be exercised. If Part III spoke to the issue of the governmentalization of law, Part IV touches on the legalization of government. Its four chapters considers the fundamental principles of separation of powers and checks and balances, the constraining of administrative discretion, popular law making through initiative and referendum, and the legal structures of federalism. Part V: The Role of the Courts in the Application of Law: Judicial Review, Methodologies of Interpretation, and Legitimacy closes the circle by bringing the focus back to the courts and their engagement with law. The first of its three chapters touches on the doctrine of judicial review and the legalization of the authority to interpret and apply law beyond common law. The second of its chapters then considers the techniques of judicial interpretation and their relationship to judicial legitimacy.  The last of the chapters then considers the binding nature of judicial opinion, especially the legal effect of judicial decisions interpreting statute.

Chapter 17

The Role of the Courts: The Techniques of Judicial Interpretation
A. Introduction

B. Problem 17
--State v. Rasabout
--Notes and Questions
--Yule Kim, Statutory Interpretation; General Principles and Recent Trends
--Notes and Questions
--Theo I. Ogune, Esq., Judges and Statutory Construction: Judicial Zombism or Contextual Activism?

C. The Role of the Courts: The Role of the Courts: The Techniques of Judicial Interpretation
--A note on Richard Posner, Statutory Interpretation—In the Classroom and in the Courtroom
--Philip P. Frickey, From the Big Sleep to the Big Heat: The Revival of Theory in Statutory Interpretation
--Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes

D. Learning Objectives

A. Introduction

This Part V circles the student back to the materials the study of which was undertaken in Parts I and II. The materials began with the question—what is law, a question that was answered first by considering its connection with the fundamental societal objectives of justice, and then by considering the forms that law takes in the United States—common law, equity, statutes, administrative regulation,, and privatized governance sometimes connected with public bodies. That exploration introduced students to the necessity not just to think about how to make or administer law, but also the importance of how to give this law meaning. Part III and IV then connected this system of law to the system of government, in general, and then more specifically to the construction, through law, of the government of the United States.

Part V now considers in more detail the mechanics of giving law meaning through the mechanics of state institutions. In Chapter 16, the student considered the construction of a legal basis for the authority of the judiciary as the principal site for the authoritative interpretation of statutes and the application of law to disputes. This serves as the critical nexus point between the system of law and the system of government. The former provides the normative basis for managing behavior, the latter the mechanics for its realization. Chapter 17 introduces the techniques that courts have developed in order to render their interpretive task for authoritative—that is to ensure that interpretation assumes a detached institutional character (enhancing its legitimacy through application of the rule of law principles the student encountered in Chapter 9) and avoids being understood as the episodic imposition of the personal preferences of the judge. This notion of the judiciary, in the aggregate, as an institutional disciplinary mechanism to de-center the individual in the task of judging was first considered in Chapters 3 and 4, with significant application to the interpretive process first considered in chapters 5 and 6.

The principle object of Chapter 17 is to sketch out the theoretical and conceptual contours of the mechanisms that courts will sometimes use, and the informal structures around which judges manage the process of interpreting statutes and then applying them to the disputes before them. Students have been applying the techniques of interpretation in all of the readings since Chapter 2; in this sense, this chapter helps students to think about the interpretation independent of the substantive issues in which they have already been encountered. These techniques can be usefully divided into two categories that are distinct enough to be useful, though in practice they tend to inter-relate. The first consists of principles that guide the interpretation of words that form part of a legal text that is to be given effect and applied in a dispute between parties. These include the canons of construction about which much has been written, and much of that from a critical perspective. The second consists of more general principles about the sources of meaning for text. These can be grouped around two principal approaches. Textualism grounds meaning within the text itself and gives far less weight to sources outside of the text. Intentionalism or purposivism looks to outside sources for meaning. At its crudest, one can say that the textualist gives greatest weight to the form of the text even when it appears to undermine its purpose. On the other hand, the intentionalist tends to shape the meaning of text on her sense of the intention of its authors in drafting text. But this simple binary of textualism-formalism versus purposivism-functionalism belies the complexity beneath it. For example, within both textualism and intentionalism there are divisions. Intentionalist textualists may seek to interpret statutes according to its purpose, but limit the search for purpose to the text of the statute itself. Strict textualists are originalists—if they refer to sources outside the text it is meant to be used to aid in the understanding of the “original meaning of the text, not what the original draftsmen intended.”[Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 38 (1997)]. Purposivists may seek to understand the objectives of a statute only from a restricted set of outside sources produced at the time of enactment while others may seek to discern purpose in the way in which the statute has evolved in practice. This differences between originalists and living statute schools is especially important in recent Supreme Court jurisprudence that the student considered in Part IV. The contests between opponents of each of these schools of interpretation have been fierce, especially since the 1970s. There is no consensus among scholars or jurists. No approach is binding as law. Each is an extraordinarily powerful form of social norm (recall the discussion in Chapter 7) within the legal field and thus have regulatory effect without legal power.

Chapter 18 will then consider the rules that courts have developed to give binding effect to judicial decisions that interpret statutes—that is to the legal effect of the common law glosses on statute. That will weave together the principles of legal authority vested in the judiciary under the federal constitution with the techniques that have been developed to assure rule of law structures in judging.
Today we consider further one of the most important issues that touch on the judicial power―the methods courts have adopted to legitimate their authority, at least to the extent drawn in cases like Marbury, and to speak authoritatively in all cases, that is to resolve disputes in ways that litigants―winners and losers―are willing to respect and implement. It is to the methodologies of juridical authority, and the quite specific language of judicial engagement by lawyers, that the student will consider in some detail over the next several classes.[1] The development of a palette of legitimating techniques now mark the practice of judges and constitute the language within which the business of the courts is undertaken. These techniques serve as the lubricant of rule of law systems, detached from yet interrelating with the state, by enhancing the ability of judges to avoid the appearance of arbitrary decision making.[2] That enhancement is bound up in the techniques of common law in two respects. The first is that courts are bound to apply the aggregated wisdom of courts expressed in opinion (or the text of the legislation that applies). Thus arbitrariness and personal predilection is at least constrained because judges apply the collective preferences of courts rather than their own in constructing standards. Second, errant judges may be disciplined through appellate review―again the application of collective will to constrain individual approaches to dispute resolution.

While the cases themselves provide the techniques, especially the rhetorical and dialectical techniques, for legitimating discourse, the language of the courts in interpreting statutes presents distinct problems. The late 20th century produced a legal environment in which much that passed for law was grounded in statute and regulation, rather than in common law.[3] The readings for this section lay the context of the problem of statutory interpretation as both theory and method, and point to the techniques and general framework within which courts interpret statutes.

Statutory interpretation techniques in the contemporary United States derive essentially from formalist and functionalist approaches. Formalist approaches focus on the text of the statute or constitutional provisions (or the administrative regulation) at issue in a dispute brought before the courts. Functionalist approaches focus on the objectives of the statute or constitution or administrative regulation at issue. Restated in the language of contemporary American discourse, legitimating techniques of statutory construction are grounded either in text or intent. But both textualism and intent based approaches to statutory interpretation are both shorthand for a number of sometimes inconsistent techniques, and each might be understood as exhibiting weaknesses as well as strengths. Recall, though, that the point of these techniques and the embrace of formalism or functionalism in the form of a focus on text and intent, is meant to provide a structural framework for implementing rule of law in the work of the court by seeking methods of dispute resolution involving statutes that separate the individual judge from the decision (and thus seek to constrain the incentives for arbitrary judgment by courts and increase the deference to the discretion of legislatures and administrative units to fashion law to the extent they are empowered) and to provide the judiciary with a dense network of decision and decision disciplining structures within which cases can be made predictable and consistent.

Textualism starts with text. At its most specific, simple textualism focuses on the specific language of the text at the heart of a dispute―the words of a statutory provision, constitutional section or administrative regulation. To resolve ambiguity or fill gaps requires no more than the application of sound rules for reasoning through words. These have been organized into a system of guidance commonly referenced as the currently much maligned canons of construction.[4] These include simple rules for the construction of word meaning―an essentially semiotic experience grounded in the language of legal grammar. But they also include some substantive canons―rules of construction in criminal cases, rules of construction to avoid incoherence or constitutional constraints and the like. There are a number of problems with this approach of course. Words have meaning only in context; legislative grammar may be subject to errors, and words change meaning over time. We consider these canons in more detail below. A more holistic textualism would seek, sometimes in addition to the application of the rules of simple textualism, to read meaning into text by contextualizing the key text within the provisions in which it is located―either the section or chapter of the materials or the statute as a whole. The idea here is to provide an anchor for the application of accepted rules for extracting meaning within the larger text in which the provision is found. At its most general textualism can be come structural. Structural textualism takes holistic textualism one step farther―it seeks means meaning by deriving from the text as a whole those principles which ground the statute and then apply those principles to seek to resolve the ambiguity in the specific text in dispute. Here textualism is used as a springboard from which legal principles are derived (principles still tied to text) but which now autonomous and superior to the words in the text themselves, can be used to extract meaning from specific provisions in ways that harmonize the text of any portion of the statute with the overarching principles of the text itself. Both structural and holistic textualism suffer similar criticisms―they are viewed as veils behind which courts may impose their own personal approaches to law without constraint. We will consider these approaches in more detail when examining techniques of constitutional interpretation.

Intent based approaches mirror textual approaches but the focus is different. Rather than starting with text, one starts with the intent, or the objectives, of the legislating body. Clearly intent and objectives may not always be the same thing, a cause for some criticism of the approach. Intent can focus solely on the drafters of the statutes, constitutional provision or administrative regulation. Objectives based approaches may focus as much on the nature of the problem against which the statutory effort was directed as it focuses on the personal intention of those involved in the drafting of the provision. In either case, the object, though, is to align the resolution of the statutory ambiguity or gap with the intent or objectives at the heart of the provision, which is the intent of the drafters. At its simplest, original intent or objectives focus on the specific provision in need of construction. Sometimes a more holistic approach is used, in which intent or objective is derived from that extracted from discussion of the provision or statute as a whole. At its broadest, and like structural textualism, intent or objective can serve as the basis for extracting a general principle which can then be applied to construe the specific provision at issue. But unlike textual approaches, the focus here is on the construction of intent or objective, and through them text, rather than starting from text itself. For this purpose, the courts must seek authoritative sources for intent or objectives. Here is where this technique comes under some attack. First, it is not clear which sources are the most authoritative or authoritative enough. Usually recourse is made to legislative history, but these tend to privilege the sometimes bare majorities that succeeded in passing the statute with little attention paid to those who lost. And it tends to privilege only those discourses that have been memorialized, sometimes after the fact, rather than those who have been lost for failures of preservation. Where the focus is on objectives, courts have even more freedom to construct the shape of the problem that the statute was meant to address, although here too, purpose clauses in statutes are sometimes helpful. However focused, though, these intent or objectives based techniques, like those of textual analysis, cannot produce any assurance of absolute fidelity to whatever factor is privileged in judicial analysis.

There is also a distinction between intent based approaches and original understanding. Originalism focuses on the original understanding of either text or objectives at the time of the making of that provision. It can be understood in two forms, original understanding and original intent. The former touches on the common understanding of society at the time of the enactment of the provision in question. In this form it can be understood as a species of textualism, since the object usually is to authoritatively fill words at issue with meaning from a source other than the predilections of a judge. The latter touches on the intent of the framers of that legislation, and in this form constitutes a species of intent based statutory interpretation. As original understanding, it is a technique designed to privilege, in a formalist sort of way, the importance of custom and tradition, by contextualizing a provision within the specific time and culture within which it was made and vesting that time and place with its own legislative power. One of its principal proponents has been Antonin Scalia.[5] In its effect, originalism in the form of original has been criticized as presuming that a statute incorporates within it the place and culture of the time in which it was enacted. It does so for the purest of reason―to strip later generations, and particularly later generations of courts, from reading statutes in the present tense―a hallmark, we have come to understand, of common law judicial sensibilities. Instead, it treats statutes as fundamentally incompatible with common law sensibilities and adopts a somewhat rigid premise that the legislature intended to legislate substance, time place and culture with every regulatory effort. Additionally, originalism suffers from a problem of authority. In a large and complex society, it is not clear always whose original understanding is to be given greater weight. That itself creates the sort of problems of authority, and the possibility of abuse, that originalists sometimes use to attack intent or objectives based functional approaches. Thus for example, for most of the history of the Republic, originalism would favor the opinion of men, white men with property and education, far more than the vast majority of people, women, the poor and for a time slaves, whose own original understanding might have been substantially different than the pantheon of sources that have been given pride of place in this sort of analytical discourse. Despite this, originalists tell us, is the only means of protecting statutes from the depredations of interpretation―because any interpretation that is not mechanical is legislative in character. And the assertion of legislative power is specifically assigned only to Congress
Thus the chapter considers both the techniques applied to text to give them meaning and as well the methodology of textual interpretation as a judicial gloss that itself acquires a legal effect as the common law of statutory meaning.  That overlay creates a complex interplay between the ideologies of judicial supremacy within common law and of legislative supremacy within statutory drafting that remains contentious today. 

Learning Objectives:

(1) The student should understand the context of the problem of statutory interpretation, as both theory and method through a reading of the materials in the chapter.

(2) The student should be able to point to the techniques and general framework within which courts interpret statutes.

(3) The student should be able to recognize the formalist and functionalist approaches of the interpretation techniques in the contemporary United States.

(4) The student should apply the techniques of statutory construction and consider the binding effect of innovation in statutory construction techniques by working through a problem regarding the various opinions in State v. Rasabout, 356 P.2d 1258 (Utah, 2015).


[1] Larry Catá Backer, “Retaining Judicial Authority: A Preliminary Inquiry on the Dominion of Judges,” William & Mary Bill of Rights Journal 12(1) (2003):117-178 (juridical authority and the cultivation of the techniques of neutrality).

[2] See Learned Hand, “How Far is a Judge Free in Rendering a Decision?,” in The Spirit of Liberty ed., I. Dilliard (3rd ed., 1935 repr. 160): 103

[3] Guido Calabresi, A Common Law for the Age of Statutes (Union NJ: LawBook Exchange, 1999).

[4] Calabresi, A Common Law for the Age of Statutes.

[5] Antonin Scalia, “Originalism: The Lesser Evil,” University. of Cincinnati. Law. Review. (1989): 849. . 

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