TABLE OF CONTENTS
I. WHY HAVE THE CANONS OF STATUTORY
INTERPRETATION BEEN LEFT OUT OF THE DEBATE OVER
POST-ERIE FEDERAL COMMON LAW?
A. Federal Common Law and the
Charming Betsy Canon
B. Other Canons Fare No Better Under the
Parameters of the Modern Debate
C. Arguments Based on Pedigree and the
D. Canons as Policy Choices
II. SOME PROOF THAT STATUTORY INTERPRETATION
METHODOLOGY IS NOT UNDERSTOOD AS "LAW"
A. Under Current Doctrine, What Else
Could It Be?
1. A More Common Type of Common Law
B. The Lack of Methodological Stare Decisis as
Evidence That Statutory Interpretation Methodology
Is Not Understood as Law
C. Some State Courts Do Not Deem Themselves Bound by
Federal Interpretive Principles When Interpreting
D. Many Federal Courts Do Not View Statutory
Interpretation Methodology as a "Rule of
Decision" Subject to Erie
1. Diversity Cases
2. Federal Question Cases
3. Outcome Determinacy and the
III. SOME COMPARISONS AND WHY CHEVRON SHOULD NOT BE SPECIAL
A. Analogous Principles in Other Contexts That Federal
Courts Treat as Law
1. Contract Interpretation
2. Choice of Law and Constitutional Law
3. Burden Allocation Regimes
B. Some Statutory Interpretation Principles That the
Federal Courts Do Treat as Law
1. Chevron Is Not Special
2. Rules of Construction in the U.S. Code
IV. IMPLICATIONS AND ANTICIPATED OBJECTIONS
A. Red Herrings: Uniformity, Inflexibility, and
Rules Versus Standards
B. The Expressive and Explanatory Power of a
More Lawlike Approach
C. Spectrums of Precedent and Law
D. A Modern Erie?
We do not have an Erie for the "Age of Statutes." (1) The Erie that we have addresses a world in which the common law dominated and in which federal courts could go about their daily work by recourse to state-court-created doctrine,(2) usually without creating "federal common law." Those understandings do not fit an era in which federally made statutory law dominates the legal landscape and the primary role of federal courts is to interpret it. But the creation of federal common law remains discouraged, thanks to Erie's continuing vitality and the durability of the notion that Erie requires federal common law making to be "limited" and "restricted." (3) As a result, federal courts have spent the last century engaged in an under-the-radar enterprise of fashioning and applying what are arguably hundreds of federal common law doctrines to questions of federal statutory interpretation, without acknowledging that they are doing so and without explaining how their actions fit into the Erie paradigm.
From the rule that exemptions in the tax code should be narrowly construed, to the presumption that ambiguous federal statutes should not be interpreted to preempt state law, modern federal statutory interpretation is a field dominated by judicially created legal presumptions. (4) At the same time, the question of the legal status of statutory interpretation methodology remains unanswered and almost completely unexplored. (5) What are the rules of statutory interpretation? Almost all jurists and scholars resist the notion that they are "law." Instead, most contend that these tools, often called "canons" of interpretation, are "rules of thumb"--a legal category that seems to sit in between law and individual judicial philosophy.
This puzzle has implications far beyond academic explorations of Erie. Indeed, it goes directly to the role of courts in the modern legal era. Erie was about federal courts finding their place in a world of state common law. (6) Chevron, which Cass Sunstein has called our "modern Erie," was similarly about the place of federal courts in a world of federal executive administration. …