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August 28, 2018 Articles

Statutory Interpretation: Fall Reading List

Statutory interpretation is a battlefield; the two books reviewed here will prepare you for the fight.

By Mark Pinkert – August 28, 2018

Book Reviews

Reading Law: The Interpretation of Legal Texts
By Antonin Scalia & Bryan A. Garner
(West 2012)

Interpreting Law: A Primer on How to Read Statutes and the Constitution
By William N. Eskridge Jr.
(Foundation Press 2016)

In the United States, statutes and regulations now comprise most of the law that governs businesses, individuals, and government officials, displacing the judge-made common law. There are several reasons for this trend. To name a few, legislatures tend to enact, rather than repeal, statutes; the Supreme Court interprets Congress’s Article I powers liberally; and state and federal lawmakers create agencies with power to promulgate regulations. The takeaway for litigators is that statutes and regulations will increasingly determine the outcome of legal disputes. Particularly at the appellate level, practitioners will be required to craft and brief arguments about statutory language.

Legal education has adapted to this reality of modern legal practice slowly, if at all. Students may pick up some rules of interpretation from courses covering contracts, administrative law, constitutional law, and some upper-level subjects. But not all law schools require, and many law students do not ever take, a course on legislation.

One of the leading scholars in the field, William Eskridge, often tells students that if they do not take such a course, they have already committed malpractice. Malpractice is a stretch, of course, but the message is clear. Working with legal language is arduous and requires attention. Terms can be vague or ambiguous, and different provisions can be incongruous with one another. Sometimes a plain reading will seem unjust or absurd as even the most prescient legislators cannot predict all future circumstances, technological advances, or social changes. Even the process of legislating has become more complicated, evolving into what Barbara Sinclair has called “unorthodox lawmaking” in a book by that title. Tortuous legislative procedures, omnibus bills, committees, conferences, and other political detours all obscure the connection between law and democratic will. And this confounds the interpretive process at the back end.

Two recent books—Reading Law: The Interpretation of Legal Texts by Antonin Scalia and Bryan A. Garner (2012) and Interpreting Law: A Primer on How to Read Statutes and the Constitution by William N. Eskridge Jr. (2016)—are excellent starting points for students learning legislation or for litigators looking to improve their statutory techniques. Though the authors defend their particular viewpoints, the books are also accessible introductions to the larger field, and they have lasting value in practice.

Reading Law: Canons of the Textualist-Originalist Approach
Justice Scalia is most remembered for his textualist-originalist views, which deeply affected the courts and the legal academy. In Reading Law, Scalia and Garner endorse textualism, arguing that judges can and should find the ordinary meaning of a law as a reasonable observer would have understood it at the time of the law’s enactment. This requires examination of the text as written. It does not require investigation into the original intentof the legislature (based on legislative history or other extratextual evidence) or consideration of the consequences of decisions (based on malleable standards such as “justice” or “fairness”). The process is not easy, they admit, though there is usually a “right” answer.

Regardless, textualism is the best process—it is the most stable and democratic. It anchors judges to the law duly enacted by the people’s representatives and to the text that the people themselves must obey. Textualism limits the judge’s ability to elevate her policy preferences over written law and requires her to abide by certain rules and principles. These rules are known as the “canons” of construction.

The legal realist case against textualism is that for every canon, there is a “counter-canon,” or a contrary judicial holding, that allows the judge to pick and choose based on his policy preference. Textualism is therefore shrouded in subjectivity. Scalia and Garner acknowledge that both canons and counter-canons exist in the law reports and that the variety “might be useful to the litigator seeking some authority that will sanction the interpretation being urged.”  But Scalia and Garner’s approach is “unapologetically normative, prescribing what, in [their] view, courts ought to do with operative language.” Id. at 9 (emphasis added). In Reading Law, Scalia and Garner present the “correct” canons as they have been developed in the common law, “grounded in experience developed by reason.”

Reading Law is styled as a treatise, organized by short sections that include examples and explanations. The authors also present problems that may arise in the application of the canons. For example, the generalia specialibus non derogant canon instructs that when there is a conflict between a general and a specific provision, the specific prevails. But as Scalia and Garner explain, it may be difficult to determine which provision is general and which is specific. The authors also analyze the strength or weakness of certain canons. For example, the “grammar canon” requires judges to give words the meaning that proper grammar and usage would assign them; yet, drafters are often opaque and ungrammatical, and some grammatical principles are weaker than others. Scalia and Garner disabuse the reader of the notion that canons apply with mathematical precision. No canon is absolute, and each can be overcome by the strength of differing principles pointing in the other direction. Therefore, “the skill of sound construction lies in assessing the clarity and weight of each clue and deciding where the balance lies.” Id. at 3. Interpretation requires reasoned judgment.

Reading Law is not a typical treatise. One does not usually think to read Wigmore or Corbin for pleasure. Nor does one have the time. By contrast, Reading Law is short, engaging, and organized to hold the reader’s attention. The authors begin with general principles about ordinary and fixed meaning that extend to all legal texts. They address various issues of semantics and syntax and how to deal with common features, such as lists, catchall terms, and subordinating provisions (i.e., “subject to”). The authors then present the canons that apply only to government prescriptions—statutes, regulations, or ordinances—but not to private legal instruments like contracts or wills. The book concludes with a section exposing 13 “falsities” of interpretation, such as the idea that the “spirit” of the law can prevail over its text or that legislative history is a worthwhile aid in statutory construction.

Reading Law is more than a compendium of canons. It can be a methodological guide because it instructs how to begin with the text and where to look if the ordinary meaning is not immediately present. It can also be useful to the practicing attorney who may not have thought, for example, to look to prior enacted versions or other statutes. The book can also serve as a practice reference. A lawyer who confronts a list of statutory terms ending with a catchall term will recall that there is a canon on point (ejusdem generis). The lawyer can relocate the canon in the table of contents or index, reread the short explanation, and use the case citations as a launching pad for further research.

Whether one agrees with textualism as a judicial philosophy, Reading Law should be the first stop for developing persuasive arguments about statutory text.

Interpreting Law: Dynamic Interpretation Approach (Beyond the Text) 
Of course, the zealous advocate must pursue all available arguments, even if Scalia and Garner would disapprove. Interpreting Law fills any gaps on that account.

Like Scalia and Garner, William Eskridge is a titan in the field—and perhaps the chief adversary of Scalia and Garner. His theory of “dynamic interpretation” is that statutes can and should be interpreted with regard to modern social, political, and legal contexts. In our constitutional system, judges are cooperative partners with legislators and must interpret texts to deal with new situations because the act of legislating can be prohibitively slow and ineffective.

The endeavor of dynamic interpretation begins, as does textualism, with the text. But when the text does not provide a definitive answer—usually because of changing circumstances—the interpreter looks to legislative history, administrative practice, and public values. Whether one believes it is democratically legitimate for judges to consider these things, these are at least arguments available to lawyers advocating for their clients.

Interpreting Law is less like a treatise than Reading Law; in fact, it more closely resembles a course in legislation. The book is a protracted exercise based off the familiar law school hypothetical, originally posed by H.L.A. Hart, in which a statute forbids “vehicles in the park.” So, the exercise goes, cars are plainly forbidden, but what about mopeds, bicycles, strollers, and soda bottles? (A bottle, after all, is “a means of carrying or transporting”—i.e., a vehicle for—soda.) Eskridge amends the hypothetical statute for various factual scenarios and lessons about drafting, enforcement, and interpretation. As in a class, Eskridge asks readers to write in the margins how they would resolve certain issues before reading through a chapter. And by the end of Interpreting Law, the reader has taken a comprehensive tour of the interpretive process.

Eskridge moves from text to context to the higher values that imbue interpretation. He covers most, if not all, of the modalities of statutory construction: textual canons, statutory precedent, legislative history, agency practice, constitutional principles, and background norms.

The most valuable part of Interpreting Law is the chapter on legislative history, an area of confusion for many lawyers. Eskridge begins with a hypothetical amendment to the vehicles-in-the-park statute and demonstrates how legislative history can unveil statutory purpose when it is otherwise hidden in language. He then defends legislative history as a tool, in particular by confronting some of the most compelling objections. He acknowledges that there are dangers, for example, that members of Congress or their staff will insert statements in the record to influence judges. Further, the use of legislative history begets legislative history: the more the judge relies on legislative history, the more legislators will produce it and, ultimately, the more time the judge will spend pouring over sprawling and contradictory statements. These costs of a legislative history arms race may not be worth the incremental benefits in clarity. But, on balance, Eskridge argues, legislative history helps the “honest but anchored judge to see things from the perspective of legislators.” This is a necessary inquiry as the text itself often fails to provide answers.

Having put up his defense, Eskridge then offers three guidelines for those who decide to use legislative history: first, focus on the legislative decision creating the final version of the law and work backward; second, assume that Congress follows the rules established by its respective chambers; and, third, be mindful of self-serving statements from legislators who unsuccessfully oppose legislation.

These three rules are helpful in thinking about the legislative process and attendant issues of interpretation, but legislative history is not one unified “thing,” one scroll with a list of statements. Rather, there are various types of materials that may be relevant. Here, Interpreting Law helps the litigator become familiar with various sources by offering a metric to evaluate relevance, reliability, and utility. Eskridge also offers a hierarchy of sources—what he calls a “funnel”—so that a lawyer tempted to cite any and all available legislative materials will know to look first to conference explanations, committee reports, and sponsor statements and then to rejected proposals, executive statements, and so forth. This ordering will lead to more nuanced statutory interpretation and, for the practitioner, more persuasive briefing.

Conclusion: Two Guides That Every Litigator Needs
Since the 1980s, when Justice Scalia first rose to the Supreme Court bench and when William Eskridge first began writing about dynamic interpretation, statutory interpretation has become a battleground for important social issues. The stakes of this debate are evident in both Reading Law and Interpreting Law. But beneath the impassioned debate are important practical lessons for attorneys: how to begin with the text, where to look around the text, and how to navigate legislative history. Moreover, recognizing that judges on appeals courts have diverse philosophies, effective appellate advocates should become fluent in the principal methods. In my view, Reading Law and Interpreting Law are the best places to start.


Mark Pinkert is an associate at Weil, Gotshal & Manges LLP in Miami, Florida.

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