Interpretation Step Zero: A Limit on Methodology as "Law"
Tutt, Andrew, The Yale Law Journal
Legislated interpretive rules are everywhere. International law has them, (1) every state has them, (2) and Congress does too. (3) Even the Federal Rules of Civil Procedure open with an oft-overlooked legislated interpretive rule. (4) Most of these rules are modest. The federal Dictionary Act, for instance, cautions that singular words include their plural counterparts, (5) and that "he" can also mean "she." (6) Many state interpretive statutes are similarly timid, decreeing bromides. (7)
Some rules go further, however, and begin to tread on weightier aspects of the interpretive enterprise. As of 2011, twenty-four states have enacted the Model Penal Code's interpretive rules, (8) directing courts to infer that in the absence of a specified mens rea, the mens rea is assumed to be recklessness. (9) Others have repealed the common law rule of lenity, a rule that calls upon courts to construe ambiguous penal statutes in favor of the accused. (10) Congress, for its part, has attempted to create several national security "clear statement" rules, (11) while some states have sought to require that courts ignore legislative history unless the text is ambiguous, (12) or do the opposite and permit recourse to legislative history even if the text is clear. (13)
Yet, often, these legislated interpretive rules fail. (14) This sets a puzzle for scholars and judges alike, one that has led to considerable recent debate over the legal status of such rules. (15) But scholars seem to agree on one particular point: Judicial failures to implement binding interpretive rules are a product of "reluctance," (16) "resistance," (17) and "evasion." (18) These failures are part of a calculated strategy of judicial opposition, the product of a conscious decision to ignore the interpretive rules.
These accounts no doubt contain some truth. But this Comment argues that they mask a deeper, though more difficult to express, anxiety. Judges cannot apply a legally binding interpretive framework without first overcoming an unavoidable and often insurmountable interpretive obstacle--step zero, the initial inquiry into whether the interpretive framework applies at all. Making this step zero determination often forces judges into the middle of an intertemporal clash between a past and present legislature--a difficult lose-lose situation. This step zero problem ultimately means that binding interpretive methodologies are almost sure to unravel unless there is methodological consensus among past and future legislatures.
Parts I and II explain the structural tension implicit in mandating an interpretive methodology without first achieving interpretive consensus. Part III shows how this tension operates in practice, while disputing the resistance hypothesis. While scholars ordinarily attribute failures to follow rules mandating binding interpretive methodologies to judicial willfulness, this criticism is unwarranted. Judges who fail to heed interpretive rules are often among the legislature's most faithful agents. Judges may fail to implement binding methodological frameworks not because they won't, but because they can't.
I. THE IMPOSSIBILITY OF INFINITE REGRESS
Prior to the application of any legal rule, a court must first determine whether the rule applies. This is step zero. (19) Treating interpretive methodology as law is no different. (20) To treat an interpretive methodology as law requires that, before applying the methodology, the judge first decide whether the methodology governs the interpretation of the particular statute in the particular case in which it is invoked. The judge cannot rely on the statute itself to determine whether to apply the statute because whether the statutory interpretation methodology in the statute should be applied is precisely what needs to be determined. The judge must instead, therefore, appeal to some other source of interpretive authority before applying the methodological framework. …