Academic journal article Stanford Law Review

Statutory Interpretation from the Inside - an Empirical Study of Congressional Drafting, Delegation, and the Canons

Academic journal article Stanford Law Review

Statutory Interpretation from the Inside - an Empirical Study of Congressional Drafting, Delegation, and the Canons

Article excerpt

I.   SUMMARY OF THE STUDY AND KEY FINDINGS IN THE FIRST ARTICLE II.  UNAPPRECIATED STRUCTURAL INFLUENCES AND VARIETY--AND THEIR      IMPLICATIONS FOR THE LEADING INTERPRETIVE PARADIGMS      A. Interstaff Differences and the Disconnect Between Text and         Policy         1. The central role of Legislative Counsel            a. Legislative Counsel as the primary drafters of text;               others as the primary makers of "policy "            b. Implications of the Legislative Counsel story for a               text-focused approach            c. The limitations of Legislative Counsel as a bridge               between Congress and courts               i.  Legislative Counsel lacks its assumed doctrinal                   expertise               ii. Legislative Counsel's inability to be the                   coordinating arm--"the OIRA of Congress"         2. Committee jurisdiction as a fundamental organizing and            interpretive principle            a. Committees as drafting "silos"               i.  Different drafting practices and manuals               ii. Different hiring practices: nonpartisan staff,                   lawyers, nonlawyers            b. Committee turf guarding as a key interpretive presumption         3. Other staff differences: leadership vs. committee vs.            personal staff            a. Personal staff: often young, nonlawyers, and with               different goals            b. Drafting by leadership--dealmaking over policy or clarity      B. Statutes Are a "They" and Not an "It," Too         1. The type of statute matters: omnibus vs. appropriations vs.            ordinary bills         2. The stages of the process matter         3. The Congressional Budget Office as a case study in            additional structural influences III. DELEGATION AND DIALOGUE      A. Agencies as Statutory Interpreters      B. Interpretation as Implementation--Implications for both         Agencies and Courts      C. Implications for Chevron      D. No Partnership with the Courts         1. "Congress never wants courts to decide"         2. "It's a dance as long as we all know the steps"         3. Consistent rules do not have to reflect how Congress drafts IV. THEORETICAL AND DOCTRINAL IMPLICATIONS     A. Directions for the Courts        1. For the current paradigm: a reorientation around structural           and process-related influences           a. Committee jurisdiction, type of statute, process, and the              CBO--some examples              i. Limitations and implications for textualism and                 purposivism              ii. A defense of the current approach as a "best effort"                  without Congress's help        2. Alternatives to a Congress-reflecting approach           a. Rule of law           b. Transferring authority to agencies     B. Congress's Share        1. Coordination and standardization through leadership        2. Change internal drafting norms to reflect judicial practice        3. Look to Congress for more direction when delegating to courts           and agencies?        4. Do courts really want an interpretive dialogue with Congress?     C. It's Happening: The Court Already Quietly Tailors Interpretive        Rules to Particular Circumstances CONCLUSION 

Is the goal of statutory interpretation to reflect how Congress actually drafts legislation? Is such an accomplishment possible? Would courts actually desire it? Where would the responsibility lie--with the Court, Congress, or both--to effectuate it?

The most common iterations of legislation and administrative-law theory view the goal of interpretive doctrine as reflecting congressional practice or expectations. Alternative theories have posited different roles for doctrine, less tethered to the details of how Congress works, including providing predictable coordinating rules for the legal system, or rules that assist judges, as partners of the legislature, in effectuating broad statutory purposes. …

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