The Statutory Interpretation Muddle

By Fallon, Richard H., Jr. | Northwestern University Law Review, January 1, 2019 | Go to article overview

The Statutory Interpretation Muddle


Fallon, Richard H., Jr., Northwestern University Law Review


Introduction

Justice Scalia said in his Tanner Lectures that it was disheartening to think we have no agreed theory of statutory interpretation.1 Though Justice Kagan has subsequently asserted that "we're all textualists now,"2 Justice Scalia remains fundamentally correct: no agreement on interpretive methodology has yet emerged. The explanation resides in a premise that undergirds nearly all claims about statutes' meanings and similarly underlies nearly all interpretive theories. This is the premise that statutes have linguistic meanings that we can reliably ascertain in roughly the same way we determine the meaning of utterances in ordinary conversation.3 That premise is almost always false in contested cases. My central ambitions in this paper are to establish both the pervasiveness of that premise and its falsity, and to trace the resulting implications.

My analytical starting point lies in the concept of legislative intent. If we ask why anyone might think that legislative intent matters to statutory interpretation, the answer involves a commitment to the techniques we employ to identify the meaning of utterances in ordinary conversation.4

I use the term "utterances" advisedly. Philosophers of language distinguish between "sentence meaning" and "utterance meaning."5 Within the terms of that distinction, the meanings of sentences do not vary from one context to another. Sentence meaning is "semantic meaning," defined largely by the definitions of words and the rules of syntax and grammar. By contrast, the communicative contents of different utterances of a sentence can vary greatly. "Alex was a big help" may refer to different people named Alex and, in context, may implicitly signal where, how, and with what Alex was helpful. To use just a bit more philosophical jargon, the movement from sentence meaning to utterance meaning occurs via a process of "pragmatic enrichment" in which both speakers and listeners rely on contextual factors to supplement semantic meanings.6 There is much dispute about how to draw the line between semantic meaning and pragmatic enrichment.7 But there is little dispute that pragmatic enrichment matters crucially to utterance meaning and that it depends, in one way or another, on the communicative intentions of speakers against the background of intersubjectively shared, but typically unarticulated, assumptions of speakers and listeners.8

In the example of "Alex was a big help," unstated assumptions and a speaker's communicative intentions can mean everything. On some occasions, the utterance of that sentence might be, and might properly be understood as being, ironic. If so, its communicative content-or, as I shall say, its meaning-would be that Alex was no help at all. In referring to "meaning" here, I need to be precise about terminology. Throughout this Article, unless I expressly indicate otherwise, I use the term "meaning" to refer to what philosophers of language more commonly call the "communicative content" of an utterance, or what an utterance asserts or stipulates.9 The term "meaning" can properly be used differently and more capaciously, both in ordinary language and in law, to include, for example, sentence meaning or the proper application of an instruction or a statute in light of nonlinguistic considerations.10 Putting other possible usages to one side, I am concerned, for now, solely with the content that specific utterances convey at the time of their utterance.

One more example may further illuminate the way in which conversational utterances can convey less, as well as more, than the literal meanings of the sentences that are spoken. Imagine two parents discussing appropriate discipline for a child who has misbehaved:11

A: So we agree that we will tell Carol, "You are grounded for two weeks because of what you did."

B: Yes, after school, she has to be in the house unless she is participating in a school activity.

A: Or unless she is going to church or music lessons or is with one of us. …

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