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Copyright 2010 by Northwestern University School of Law Printed in U.S.A. Northwestern University Law Review Vol. 104, No. 4

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EssaySTATUTORY INTERPRETATION AS A

MULTIFARIOUS ENTERPRISE

Todd D. Rakoff

I NTRODUCTION ........................................................................................................... 1559 I. A N EXAMPLE ..................................................................................................... 1560

A. An Interpretation Based on Formal Legal Documents....... ................ ....... 1561 B. An Interpretation Based on an Analysis of the Situation ............... ............ 1565

II. THE TWO METHODS COMPARED ......................................................................... 1567 III. ARE MULTIPLE APPROACHES LEGITIMATE ?........................................................ 1570 IV. CHOOSING THE APPROPRIATE FRAME OF R EFERENCE ......................................... 1575 CONCLUSION .............................................................................................................. 1585

I NTRODUCTION What is the best way to interpret statutes?The hard truth of the matter, wrote Henry Hart and Albert Sacks

better than a half-century ago, is that American courts have no intelligible,generally accepted, and consistently applied theory of statutoryinterpretation. 1 In the intervening years, and especially in the last quarter-century, various writersmostly scholarshave tried to provide theneeded theory. 2 Through their efforts we undoubtedly now have a moresubtle understanding of the problems involved than we once did. At thesame time, it continues to be remarked, and in a statistical way evendemonstrated, that judges in general do not restrict themselves, sometimeseven within a single opinion, to following any single theory of statutoryconstruction. 3

Byrne Professor of Administrative Law, Harvard Law School. I thank the participants in the Har-vard Law School faculty summer workshop, and Peter Strauss of Columbia Law School, for helpfulcomments on earlier drafts.

1 HENRY M. HART , JR . & ALBERT M. SACKS , THE LEGAL PROCESS 1169 (William N. Eskridge &Philip P. Frickey eds., 1994).

2 For a recent, comprehensive review of the state of the literature, see F RANK B. CROSS , THE

THEORY AND PRACTICE OF STATUTORY I NTERPRETATION (2009). For a briefer treatment, see ElizabethGarrett, Legislation and Statutory Interpretation , in THE OXFORD HANDBOOK OF LAW AND POLITICS 360, 360 75 (Keith E. Whittington et al. eds., 2008).

3 See James J. Brudney & Corey Ditslear, Canons of Construction and the Elusive Quest for Neutral


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Perhaps we are looking for the wrong thing. Perhaps there is no theorythat would justify its being the consistently applied theory of statutory

interpretation. As the title of this Essay suggests, that is my thesis. Myclaim is that there are many legitimate and useful modes of statutoryinterpretation, that these methods can look very different from one another,and that choosing the right one in any given instance is not a question oftheory in the ordinary sense of the term but of appropriateness or fit. Iurge this partly to take account of the fact that, in our society, many otheractors besides judges have the need, and often the obligation, to interpretstatutes, often with definitive results. But this approach also presents the

possibility that judges, or at least some of them, could explain to oursatisfaction what they are doing: they are pursuing their craft by choosingthe right tools for the varying tasks at hand, just the way most othercraftspeople do.

I begin with an example of a statute in need of interpretation and proceed from there.

I. A N EXAMPLE To show what I have in mind, I am going to pursue a straightforward

question of statutory interpretation using two very different methods. Thequestion arises from the Federal Family and Medical Leave Act of 1993

(FMLA).4

As far as I can tell, it has never been litigated, at least in areported case.Broadly speaking, the FMLA entitles employees to take up to twelve

weeks of leave from work during any twelve month period for certainmedical and family purposes. 5 The leave is unpaid, but employers arerequired to maintain preexisting health care benefits and to restoreemployees, at the end of their leaves, to their former jobs or the equivalent. 6 The circumstances for which this protected leave is available include thecare of a newborn, adoption of a son or daughter, an incapacitating serioushealth condition of the employee, and this:

In order to care for the spouse, or a son, daughter, or parent, of the employee,if such spouse, son, daughter, or parent has a serious health condition. 7

Reasoning , 58 VAND . L. R EV . 1, 44 51 (2005); Jane S. Schacter, The Confounding Common LawOriginalism in Recent Supreme Court Statutory Interpretation: Implications for the Legislative History

Debate and Beyond , 51 STAN . L. R EV . 1, 14 37 (1998); Nicholas S. Zeppos, The Use of Authority inStatutory Interpretation: An Empirical Analysis , 70 T EX . L. R EV . 1073, 1091 120 (1992).

4 Family and Medical Leave Act of 1993, Pub. L. No. 103-3, 107 Stat. 6 (codified in scattered sec-

tions of 29 and 5 U.S.C.).5 Id. 6 Id. 7 29 U.S.C. 2612(a)(1)(C) (2006).


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this part of the Acts coverage, the cases of two women, each of whomfaces difficulties trying to care for a person described as her aged father. 11

Against all this we have to consider the following provision of the Act,included some eighty lines of statutory text after the main coverage

provision:

Spouses employed by same employer[]In any case in which a husband andwife entitled to leave . . . are employed by the same employer, the aggregatenumber of workweeks of leave to which both may be entitled may be limitedto 12 workweeks during any 12-month period, if such leave is taken

(1) under subparagraph (A) or (B) of subsection (a)(1) [of the coverage provision, that is, to care for a newborn son or daughter or because of anadoption]; or(2) to care for a sick parent under subparagraph (C) of such subsection. 12

The overall effect of this somewhat curious language is, in thesituations named, to give two spouses working for the same employer onlythe amount of leave in total that each of them would individually have beenentitled to if they instead were working for separate employers. This

provision, says the Senate Report, is intended to eliminate any employerincentive to refuse to hire married couples. 13 Why would the Act, withoutthis provision, create such an incentive? There is no reason to think, forexample, that two people married to each other are each more likely to

develop a serious illness justifying leave in the same year than are the twounrelated people who might have been hired instead. But if the couple hasa child, or adopts one, there is such a reason: under the gender-neutral

provisions of the Act, this single birth or adoption would entitle eachmember of the couple to twelve workweeks of leave, taken eithersimultaneously or within the same twelve months. Presumably, that is whychildbirth and adoptionthe circumstances included within subparagraph(A) or (B) of subsection (a)(1)are included here, while the employeesown serious health conditionthe circumstance included undersubparagraph (D) of subsection (a)(1)remains unnamed.

What, then, is the implication of the specific inclusion of caring for asick parent? When would it be that a husband and a wife would both becaring for a parent? We can safely assume that Congress was notaddressing the possibility of an incestuous marriage. To say that thelanguage was addressing the possibility of both spouses having to look aftertheir individual biological parents within the same twelve-month periodwould be to describe a situation in which there is no special reason to thinkmarried couples were more likely to impose a burden on an employer thanwere two otherwise similar but unrelated employees. Rather, it seems that

11 Id. at 1011.12 29 U.S.C. 2612(f).13 S. R EP . NO. 103-3, at 28.


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this provision is written on the assumption that a husband and wife mighteach be caring, at some time during the year, for the same persona person

who is the biological parent of one of them and thus related to the otheronly as an in-law. And it further assumes that, except as provided in this

provision, both of those persons would be entitled to leave. There is,moreover, modest support in the Senate Report for this reading: in itsSummary of the Bill, the Report says that [s]pouses employed by thesame employer are limited to a total of 12 weeks of leave for the birth oradoption of a child or for the care of a sick parent with both child andparent in the singular. 14

What, then, are the choices for interpreting the term parent? One possibility is to understand the definition of parent as restricted to theemployees own biological parents, with the in loco parentis exception. Inthis case, insofar as the provision above applies to spouses both caring for a

parent, it seems to have no purpose. Another possibility is to read both theinitial provision for leave and the limitation for married couples aseffective, making them as consistent with each other as we can make them.In that case, we should say that the basic description of leave to care for a

parent (including the definition of parent) should not be read with thenegative pregnant that excludes parent-in-law, but rather that parentshould be read to include that relationship. 15 If that is so, even whenspouses work for different employers, each is entitled to leave in order tocare for a parent-in-law.

Or should we say that the statute is ambiguous between these possibilities? That alternative is of legal, not just linguistic, consequence because of the Chevron doctrine. 16 The basic mode for enforcement of theFamily and Medical Leave Act is through the courts, initiated by lawsuits

brought either by employees themselves or by the Department of Labor. 17 But the Secretary of Labor is also given the authority and responsibility toprescribe such regulations as are necessary to carry out the basic

14

Id. at 2. I should perhaps point out that this spouses employed by the same employer provisiondifferentiates among other cases because its limitation on leave applies to care for a sick parent undersubparagraph (C) while subparagraph (C) itself speaks of care for the spouse, or a son, daughter, or

parent, of the employee. 29 U.S.C. 2612 (a)(1)(C). This would apparently allow both parents to taketheir full leaves to care for the same sick child, even if they worked for the same employer; accordingly,the provision as a whole seems to underexecute the idea of not giving employers an incentive to refuseto hire both married partners. In the absence of evidence as to why this was done, perhaps the best thatcan be said is that there may have been a deal here to go so far and no further. Even if that were the ex-

planation, it does not destroy the point made in the text. The statute only needs to address the case ofcaring for a sick parentor, if you like, the limitation on caring for a sick parent contained in this provi-sion was only worth bargaining forif, without the language, both spouses would be entitled to take

protected leave.15

The statutory definition would still do work: it would exclude step-parents (unless they qualifiedunder in loco parentis ). See 29 U.S.C. 2611(7).

16 See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).17 29 U.S.C. 2617.


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provisions of the Act. 18 The Department issued extensive regulationsshortly after the Act was passed and has recently comprehensively revised

them; in both cases there were notice-and-comment proceedings that, perUnited States v. Mead Corp. ,19 make Chevron applicable in this context.

Both the original regulations 20 and the current ones 21 explicitly statethat parent does not include parents in law. The statement of basisand purpose for the present regulations offers no explanation for thisdecision and seems to carry over this part of the original regulatorylanguage without further thought. 22 But at the time the first set ofregulations was being adopted, many participants in the process urged thatthe final regulations specify that parents-in-law be included, and thestatement of basis and purpose accompanying the original regulationsrejected that claim explicitly. 23

The agency proffered no particular policy reason for making thischoice. It is always possible that, because the agency wrote the regulations

just after the statute had been enacted, it had some additional, unexplainedinsight into what Congress was trying to accomplish. What it said,however, was that [s]tandard rules of statutory construction required theresult, given the Acts definition of parent. 24 However, the regulationsadopted to implement the provision of the Act regarding two spouses withthe same employer also said, without further explanation, that the couplemay be limited to a combined total of 12 weeks of leave . . . if the leave istaken: . . . (3) to care for the employees parent with a serious healthcondition. 25 The regulations thus replicated the confusion present in thestatute itself with no notice of, or effort to resolve, the disjunction. 26

So where does this leave us? The statute seems somewhat confused,and there is a duly promulgated regulation providing that parent does notinclude parent-in-law. The agency justified this regulation based on itsreading of the text of the statute but did not fully address the complicationsinvolved. If we view Chevron as saying that courts need a strong reason foroverturning an agencys regulations when a statute is doubtful, then theregulation should prevail. If, however, we view Chevron as saying thatcourts should defer to an agencys view when it is based on policy

18 Id. 2654.19 533 U.S. 218, 226 27 (2001).20 29 C.F.R. 825.113 (1995).21 29 C.F.R. 825.122 (2009).22 See Family and Medical Leave Act of 1993, 73 Fed. Reg. 67,934, 67,95051 (Nov. 17, 2008).23 Family and Medical Leave Act of 1993, 60 Fed. Reg. 2180, 2191 (Jan. 6, 1995).24 Id. 25 29 C.F.R. 825.202 (1995). The unhelpful discussion of this language in the statement of basis

and purpose is in Family and Medical Leave Act of 1993, 60 Fed. Reg. at 2201.26 The new regulation is organized differently but seems to end up at the same conclusion. See 29

C.F.R. 825.201 (2009). The statement of basis and purpose offers little enlightenment. See Familyand Medical Leave Act of 1993, 73 Fed. Reg. at 67,973.


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considerations but should not defer when the question is one of traditionalstatutory interpretation, then a court should insist on what is probably the

better (albeit not unambiguous) view of the text: that parent does includeparent-in-law. 27 A legitimate judicial opinion could be written either way.

B. An Interpretation Based on an Analysis of the SituationLet us now see what this question of statutory interpretation looks like

if we approach the problem in an entirely different fashion. We are stilltrying to determine the legally effective meaning of parent used in thestatutory specification of one of the grounds for an entitlement to leave: Inorder to care for the spouse, or a son, daughter, or parent, of the employee,if such spouse, son, daughter, or parent has a serious health condition. 28 But instead of tying our analysis of parent to the intricacies of, andvarying authority of, numerous legal texts, let us instead begin with thesituation the statute was addressing and look for the meaning of parentfrom that point of view.

The Family and Medical Leave Act makes it possible for employees totake leave when their own health requires itwhich is not the situation thatmakes parent relevantand to care for others when they need help which is where the scope of parent matters. Parent describes a familialrelationship, as do the statutes other coverage terms: spouse, son, anddaughter; it seems uncontroversial (whatever the wisdom of the matter) tosay that the FMLA distinguishes care in a familial relationship from other

possible types of caring relationships. Moreover, the statute distinguishesimmediate family relationships from extended family relationships.Providing care for an uncle does not count. Thus, it seems reasonable tounderstand the statute as directed to helping (or at least making it possiblefor) the working members of the family unit to assume a family obligationof care for a close family member.

In this situation, is providing care for a parent-in-law sufficiently likeproviding care for a parent that it should be understood to be included in

the statute? A parent-in-law is of course a family member as the statuteunderstands family, because he or she is already a parent to one of thespouses. The question for the family unit is this: which of the spousesought to provide the needed care requiring absence from work? If weimagine a discussion between the spouses addressing that question, wemight find them considering the following, among other matters: which ofthem is better at rendering care; if both work, who makes more money atwork, or whose job demands more ongoing personal continuity; which ofthem gets along better with the ill person; how they feel (pro or con) about

27 See Carcieri v. Salazar, 129 S. Ct. 1058, 1069 (2009) (Breyer, J., concurring) (rejecting Chevron

deference although there was statutory ambiguity because the decision did not implicate departmentalexpertise).

28 29 U.S.C. 2612(a)(1)(C) (2006).


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Accordingly, we might begin our comparison of these two methods byasking what range of materials, what sorts of factual predicates, each of

them uses. Here is a list for the first method: The specific statutory provision being construed: In order to care

for the spouse, or a son, daughter, or parent, of the employee . . . . Other provisions of the Act: a statutory definition and another use of

the relevant words in a disparate provision A committee report An on-point administrative regulation and other regulations for

comparison The agencys statements of basis and purpose accompanying its

regulations Modest assumptions about social life

And here is a list for the second method:

The specific statutory provision being construed: In order to carefor the spouse, or a son, daughter, or parent, of the employee . . . .

Social understandings of biological and nonbiological familyrelationships

Common intrafamily practices for allocating family burdens Cultural stereotypes Modest assumptions about the rest of the statute

Let us start by considering the first and last bullet points in each list.As to the first, it is of course the same in each list: the specificallyapplicable statutory provision. That is not remarkableit is hard toimagine a method of statutory interpretation that does not consider thewords of the statute to be relevant. But I stress the point because I fearsome may think that the second method I have presented just invents thelaw and has nothing to do with construing the statute. That is plainlywrong. The second approach is an attempt to come to terms with the

statutory inclusion of parent within the statutory quadruplet of spouse,son, daughter, and parent, just as much as the first one is. Absentsome constitutional claim, there would be no argument for covering

parents-in-law under either method if the statute were amended to excludethem explicitly.

As to the last bullet point in each list, together they suggest, broadlyspeaking, that these methods are not hermetically sealed off from eachother; instead, each makes modest reference to the materials thought mostimportant by the other. So, for example, in the first method, in trying to putthe different textual uses of parent together, it was necessary to assumethat incestuous marriages were rare in society and would not, for bothdescriptive and prescriptive reasons, be the groundwork of congressionalaction. And in the second method, it was helpful, in deciding which of the


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situational analyses was most persuasive, to mention the explicit statutorystatement of purpose with its reference to helping family units. Even in

their purest forms, methods of statutory construction are ofteninterconnected, differing in emphasis more than in absolute inclusion andexclusion.

Which brings us to the middle bullet points. To see what is at stake intheir differences, we might view them within a broaderlonger and moregeneral but probably still not all-inclusivelist of sources that at one timeor another have been used to guide the interpretation of statutory terms:

Other parts of the same statute Legislative materials surrounding passage of the statute Uses of the same words in other, closely connected statutes Common law usages Interpretations by a relevant administrative agency Dictionary definitions Usual practices of lawyers expert in the particular field of law Scientific or technical usages Distinctions made in a relevant situation by a relevant trade Lay usages and cultural meanings Common social practices regarding a relevant situation

This list is organized, roughly speaking, to proceed from the mostspecific sorts of materials to the most general. 34 What it reveals, I think, isthat the interpretive materials that are used to flesh out statutes are eachconnected, expressly or impliedly, to an institutional context. This is notaccidental; it is this institutional context that potentially gives them force.This is obvious as regards the materials at the very top of the list, which arethought one way or another to show Congresss meaning. It seems clearalso in the middle of the list, where the organized expertise ofadministrative agencies or of teams of lexicographers are claimed tovalidate their interpretations. But it is also true as we move to the bottom ofthe list. It is not the idiosyncratic voice of the single scientist or tradesmanthat carries weight; it is the voice of the relevant science or trade as anorganized practice. 35 And as sociologists and anthropologists spend theirlives proving, common social and cultural practiceswhich appear at thevery end of the listare, in this sense, institutionally grounded too. They

bear the marks of the structures and social forces within which they were

34 As will become clearer, this list is not meant to represent a hierarchy of authority either top to bottom or bottom to top, but rather an open field of choices that has to be put down on paper somehow.

35 This becomes clear if one considers how trade practice, for example, is proven in court as an in-

stitutional usage. For a particularly clear case arising from the parallel body of law in which partieshave tried to prove trade usage for purposes of interpreting the language of a contract, see FrigalimentImporting Co. v. B.N.S. Intl Sales Corp., 190 F. Supp. 116, 117, 119 (S.D.N.Y. 1960), in which partiestried to prove the trade usage of the word chicken.


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created, and of the efforts of people to deal reasonably with those situations;they are not simply the statistical cumulation of personal eccentricities.

Choosing to use any of these materials for interpretive purposes meanschoosing an institutional lens through which to see the matter at hand andcaring about how the matter looks from that point of view. Modernscholarship has sensitized us to this fact as regards sources near the top ofthe list that come from formal legal institutions. 36 But the point remains thesame as we move down the list.

Of course, one can consider a problem from more than one point ofview. Presumably one wants to choose the point of view that is (or pointsof view that are) most significant for the matter at hand. That, I think, iswhat is at stake in comparing the middle bullet points for the two methodsof construing parent in the FMLA. The first method uses materials thathighlight the interpretations and interactions of the formal governmentalinstitutions involved. 37 The second method uses materials that highlight thecommon practices and meanings generated by ordinary people faced withthe situation the statute addresses. If that is, broadly speaking, what is atstake, two questions arise. First, are both approaches legitimate? Second,if they are, how are we to decide when one is to be preferred over theother? 38

III. ARE MULTIPLE APPROACHES LEGITIMATE ?Undoubtedly, the first method we have looked at, based on formal

legal texts, is more familiar than the second, especially among those whohave read the recent academic literature on statutory interpretation. 39 Thereseems to be no doubt as to its overall legitimacy, notwithstanding whateverdisputes remain as to its best incarnation. But just because method two,

based on a situational analysis, is unfamiliar does not imply that it is

36 See, e.g. , John F. Manning, Textualism as a Nondelegation Doctrine , 97 C OLUM . L. R EV . 673,

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706 (1997).37 I acknowledge that I have suppressed many local disputes (such as whether judges should, orshould not, consult legislative history) in my effort to present a broader terrain that, it seems to me, hasoften been missed.

38 Perhaps this is the place to mention that I do not propose to address the further complicationsraised when there is a large span of time between the passage of a statute and its application to a novelquestion. The issues are thoughtfully canvassed in W ILLIAM N. ESKRIDGE , JR ., DYNAMIC STATUTORYI NTERPRETATION (1994), and Peter L. Strauss, On Resegregating the Worlds of Statute and Common

Law , 1994 S UP . CT. R EV . 429.39 See Jonathan Molot, The Rise and Fall of Textualism , 106 C OLUM . L. R EV . 1, 23 29 (2006)

(moderate textualism has prevailed and only minor squabbles remain). But see John F. Manning, What Divides Textualists from Purposivists? , 106 C OLUM . L. R EV . 70, 110 11 (2006) (something substantial

does remain). To get a clear statement of what I have presented as the second method, it may be neces-sary to go back as far as Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rulesor Canons About How Statutes Are to Be Construed , 3 V AND . L. R EV . 395, 397 (1950), claiming thatwhat matters most is the sense of the situation as seen by the court.


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illegitimate. Is there only one proper method, or can method two also beused?

The claim that some version of the first method is in principle the only permissible method for construing statutes rests, as far as I can tell, on theclaim that every issue of statutory interpretation is framed by twooverwhelmingly important facts: the statute is passed by a legislature that isdemocratically elected, and it is interpreted by a court that is not. 40 Thiscombination is thought not only to require legislative supremacy in theordinary sensefor example, in the sense that a legislature can amend astatute to override a courts statement of the law based on the statutes priorversionbut also to limit drastically the options open to courts whenstatutes are ambiguous, have gaps, or conflict with each other. These twofacts are, of course, highly relevant under method one, with its emphasis onthe relative value of materials generated by various governmentalinstitutions. But they would be treated as not especially relevant undermethod two, which on this theory would therefore be a poor choice. Moregenerally, since these two facts are thought to be constitutionally inflected,this claim comes down to the proposition that some version of method oneis the only legitimate version of statutory interpretation.

Building a theory of statutory interpretation simply on this basis thatwhat is always the fundamental issue is the interpretation of the expressionof the democratic will by an unelected judiciaryfaces great difficulties.

First, most of the judges who give statutes their final interpretations areelected. A great many statutes are passed by state legislatures covering, forexample, almost all of our criminal law and the fundamentals of ourcommercial law. Their authoritative construction belongs to the statesupreme courts, and the state supreme courts in most states are composed ofelected judges. 41 If being unelected is the crucial fact, then we need twocompletely separate theories of statutory interpretation: one for jurisdictionswhere judges are elected, and one for where they are not. 42 But no one, as

40 See, e.g. , A NTONIN SCALIA , A MATTER OF I NTERPRETATION : FEDERAL COURTS AND THE LAW 22

(1997) (It is simply not compatible with democratic theory that laws mean whatever they ought tomean, and that unelected judges decide what that is.).

41 The justices of thirty-eight out of fifty state supreme courts face some sort of election; the twelveoutliers are in New England, along the eastern seaboard, and in Hawaii. See Jed Handelsman Shuger-man, Economic Crisis and the Rise of Judicial Elections and Judicial Review, 123 H ARV . L. R EV . 1061,106364 & n.2 (2010). The failure of the recent literature to take account of this fact may come fromthe present tendencynot universally shared, but a real oneto view the question How should statutes

be interpreted? as synonymous with the question How should the Supreme Court of the United Statesinterpret statutes? The writers on legislation from earlier generations tended to deal with statutes on amuch larger canvas. See, e.g. , James McCauley Landis, Statutes and the Sources of Law , in H ARVARDLEGAL ESSAYS 213, 213 34 (Roscoe Pound ed., 1934); Roscoe Pound, Common Law and Legislation ,

21 H ARV . L. R EV . 383 (1908).42 The same point would apply to theories that emphasize other particularities of the Federal Consti-

tution. See, e.g. , John Manning, Textualism and the Equity of the Statute , 101 C OLUM . L. R EV . 1, 58 70(2001) (arguing that in considering role of federal judges vis--vis legislation, it is important to consider


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far as I know, actually carries the proposition to this logical conclusion. Tothe contrary, the leading treatise on statutory construction intermingles

citations to federal cases, to state cases from unelected courts, and to statecases from elected courts. 43 If the response is: Well, those state-court

judges may be elected, but they are still supposed to behave like judges,then that is the pointthe role of judge as we understand it is notdetermined by whether judges are elected. After all, being unelected is notequivalent to being a usurper: federal judges, and the judges in thenonelecting states, are still selected to be judges through constitutionally

prescribed means. At least in the federal system, those means are firmlycontrolled by elected officials: the President and the Senate. In short,

judges are selected, one way or another, to act like judges, a role whosespecifications does not depend on the presence or absence of popularelection.

Once it is conceded, however, that the only restraint is that the judgeshould act like a judge, there is simply no basis for saying that there is onlyone judge-like way to think about statutes. There are outer limits, ofcourse; judges who decide casescommon law, statutory, constitutional,whateverthrough necromancy are not doing the judges job. But there isa wide variety of what they can do, and have done, while still consideringthemselves to be judges. For example, it may be that what I have calledmethod two is closer to common law thinking than method one iscloser,that is, to using statutory terms as a foundation for analogical reasoning

based on common social patterns (within the possibilities of the statutorytext). If that is so, does it prove that the method is not judicial? I wouldhave thought the opposite. Of course, there may be better and worse waysto do the job of statutory construction, but that is the point; within a broadrange, alternative methods are better or worse, not legitimate orillegitimate.

Second, most statutory interpretation is not done by judges. Judgesnecessarily act after the factafter the interpretive work done by ordinarycitizens trying to comply with the law, by private lawyers advising clients,

by public prosecutors deciding what charges (if any) to bring, byadministrative agencies enforcing statutes or making rules, and so on. Inmost instances, these nonjudicial determinations will have a determinativeeffect, either as a matter of law under a principle of deference ornonreviewability, or as a matter of practice because the determination willnever be tested in court. 44 Unless we believe that statutory interpretation is

specific features of the U.S. Constitution such as life tenure for judges and protection of interests ofsmall states in apportionment of the Senate).

43 See, e.g. , NORMAN J. SINGER & J.D. SHAMBIE SINGER , Criteria of Interpretation, in STATUTES

AND STATUTORY CONSTRUCTION 45 (7th ed., 2007).44 See Kent Greenawalt, A Pluralist Approach to Interpretation: Wills and Contracts , 42 S AN

DIEGO L. R EV . 533, 548 (2005) (Unofficial interpretation is the crucial backdrop for official interpreta-tion.).


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legitimate only when based on a prediction of what judges would do, werethey to construe the statute on their ownand not even Justice Holmes

thought that predicting what the judges would do had normative force 45 there is no reason to limit all of this statutory interpretation by the particularlimitations of the role of the judge. There are many social processes in

play; why should the supposed situation of one of them assume paramountimportance? 46

Moreover, the fact that statutory interpretation takes place in manyinstitutional settings is not a necessary evil; it is an affirmative good. Weall too easily fall into an outmoded view of what modern legislation entails.We imagine the ideal statute as one in which the legislature unambiguouslyand fully specifies all its applications, thereby producing a statute that can

be applied by a judge (or other reader) to any relevant situation without aneed for interpretation once the particular facts have been determined. Butas Edward Rubin has convincingly argued, if we approach the problemfrom the point of view of statutory design for a modern society, the statutethat simply states a rule that can be employed by judges without significantinterpretation is really just a corner solution existing in a much larger arrayof intelligent possibilities. 47 To use Rubins terminology, a great manystatutory directives are intransitivethat is, incapable of being directlyapplied to primary action and in need of further transformation before theycan be so used. 48 A directive to an administrative agency to formulate rulesto flesh out a vague statutory standard is the archetype here, but it is by nomeans the only case. Rubin discusses as common examples statutes thatfocus on stating goals rather than rules and statutes that focus onestablishing implementation processes other than rule application. 49 Thisintransitivity could represent a failure of design, but often it represents arecognition that there are many kinds of directives other than fully fleshed-

45 See Oliver Wendell Holmes, Jr., The Path of the Law , 10 H ARV . L. R EV . 457, 457 62 (1897) (as-

serting that predicting what judges will do is the central inquiry of the bad man as well as the good).46

The proposition that administrative agencies, when interpreting statutes, ought not mimic judicialanalysis was first asserted with regard to the use of legislative history in Peter L. Strauss, When the

Judge Is Not the Primary Official with Responsibility to Read: Agency Interpretation and the Problem of Legislative History , 66 C HI.-K ENT L. R EV . 321, 351 53 (1990). The claim was expanded to a broadrange of interpretive techniques in Jerry L. Mashaw, Norms, Practices, and the Paradox of Deference: A

Preliminary Inquiry into Agency Statutory Interpretation , 57 A DMIN . L. R EV . 501, 504 36 (2005), withwhich A DRIAN VERMEULE , JUDGING U NDER U NCERTAINTY 213 15 (2006), is basically in agreement.For a defense of the proposition that agencies should mimic judges, see Richard J. Pierce, Jr., How

Agencies Should Give Meaning to the Statutes They Administer: A Response to Mashaw and Strauss , 59ADMIN . L. R EV . 197 (2007), to which Mashaw responded with Agency-Centered or Court-Centered

Administrative Law? A Dialogue with Richard Pierce on Agency Statutory Interpretation , 59 A DMIN . L. R EV . 889 (2007).

47 See Edward L. Rubin, Law and Legislation in the Administrative State , 89 C OLUM . L. R EV . 369,

371 72 (1989).48 Id. at 380 85.49 Id. at 411, 418.


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out rules that can be usefully incorporated in legislation. Mechanisms ofthis sort often represent better ways for a legislature to achieve its statutory

purposes than by writing a fully specified statute.Although Rubin limits his analysis to legislative directives that fall in

the first instance on other governmental entities (including judges), there isno reason in practice or in theory to do so. Designers of a statute toauthorize and structure private corporations might well conclude that their

purposes would be better achieved by stipulating processes for thecorporation to follow rather than by delineating substantive rules. And inother situations one might simply decide to piggyback on existing social

processes, such as those that create trade usages, which in some cases areformally enunciated by organized entities and in others grow as customsgrow. In each case, one may have to fill in a stated statutory norm withfurther specifications drawn from private action before the final rule isknown. And this may well be true even when the issue is the rightness ofthe behavior of participants in the very institution that makes the additionalspecification. One must have some scruples, of course, about the degree towhich one puts public authority behind privately enunciated norms, but asthese examples show, those limits function at the margins and do notcontrol the basic design decisions. 50

Because issues of statutory interpretation do not arise unless a statutehas been passed, we are tempted to look at any statute from the point ofview of the enactors of the legislation. Because of our predisposition tofavor fully enacted statutes, we tend to try to see how the enactors mighthave resolved the particular ambiguity or uncertainty that has arisen. Thisapproach has always been subject to the criticism that the point of view ofthose subject to the legislationits readersought to count forsomething. 51 To put the matter in language more commonly applied to

private documents, there has long been a dispute between the subjectiveand the objective readings of statutory language. But we need now torecognize that in addition to enactors and readers, there is another legitimatecategory: the active users of statutes who have both the need and theauthority, delegated or recognized, to interpret statutes within somesignificant leeway. These users are highly variegated, ranging fromadministrative agencies to organized trade groups, to more looselyconstructed foci of expertise, on to ordinary people creating ordinarycustoms.

50 The basic article on the matter is probably still Louis L. Jaffe, Law Making by Private Groups , 51HARV . L. R EV . 201 (1937). For a recent treatment, see Gillian E. Metzger, Private Delegations, Due

Process, and the Duty to Supervise , in GOVERNMENT BY CONTRACT 291, 291 309 (Jody Freeman &Martha Minow eds., 2009).

51 Most famously, this was the stance taken by Justice Jackson. See, e.g. , Schwegmann Bros. v.Calvert Distillers Corp., 341 U.S. 384, 396 (1951) (Jackson, J., concurring.).


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Indeed, one could go further to argue that among the desirable designcriteria for the legal system as a whole we should include keeping statutory

law close to social practices, rather than distantly formal (recognizing that,at times, closeness implies changing common practice, too). Much can besaid for the proposition that legal systems in which customs, social norms,and legislatively specified rules flow together are the most successful.Certainly the judge-made common law has traditionally taken a similar

point of view.But even if one does not embrace that further evaluative proposition, as

a matter of plain fact statutes undoubtedly do vary as to the degree to whichthey stipulate the rules ultimately to be used or instead leave the applicablenorms open-ended. That fact can be understood as representing reasonable,

purposeful behavior on the part of legislators. A wide variety ofinstitutional arrangements can be sensibly enlisted. Some will have aspecific organizational locus; others may be more diffuse. In some cases,the result will be most easily described in public law termsas a delegationto an agency or to some group within societyand in other cases, mosteasily in private law termson the model of adopting trade practice.However described, determining what institutional locus should be lookedto in order to fill in the open areas is part of understanding the statutesdesign and place within the legal system as a whole.

Correspondingly, if, in a matter of statutory interpretation raised incourt, a judge considers or even relies on materials generated by theappropriate institutionwhich may well be something other than formallegal texts enunciated by a formal legal institutionwhat he or she is doingis not properly understood as stepping beyond the judicial role.Understanding a statute on this level logically precedes determining themeaning of statutory terms that are meant to be used as rules of behavior,

because determining the context vis-a-vis which the construction of therules is to proceed comes before the construing process itself. 52 Accordingly, if by statutory interpretation we mean the process ofdeciding what conduct the statute authorizes or requires, there are manylegitimate methods of statutory interpretation, because there are, over the

broad range of statutory provisions, many legitimate institutional frames ofreference.

IV. CHOOSING THE APPROPRIATE FRAME OF R EFERENCE The implication of the foregoing is not merely that both of the methods

we looked at are to be taken seriously but that in fact there is a wholespectrum of legitimate ways in which statutes can be interpreted. The issue

52 Of course, if, on the particular issue, the statute means the same thing in all of the potentiallyrelevant frames of reference, this analysis can be elided.


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statutes vary by the extent to which they are open to evolutionarydevelopment and by the entity entitled to take charge of that development.

(It is worth noting that deference to an administrative agency is notsomething entirely distinct, but part of the same field of analysis.) Finally,we might note a principle demonstrated by silence: ascertaining the kind ofstatute under any of these principles is not necessarily dependent onsomehow identifying an actual intent or purpose of Congress. Therelevant point about the Selective Service Act is not that Congress meantfor it to be read in an everyday fashion but that the Act serve[d] asdirections for ordinary people. 54 It is a matter of the design of the statuteas seen in its overall institutional setting.

Taken at a higher level of abstraction, the process involved is one ofmatching a statutory issue with an appropriate frame of reference. This

process of fitting is, in my view, something very different from what weusually think of when we think of applying a theory of statutoryinterpretation. It cannot be properly understood as fundamentallyconsisting of the characterization of a set of facts under an applicable

principle derived from an overarching theory. Rather, it is based on at leastthree closely connected points. First, there are many principles orconsiderations in play; indeed, the set of potentially relevant factors isalways open. (For example, I would add to Judge Friendlys list, as oftenrelevant, the matter of what body of law the statute should be seen to be

part of: are the terms drawn from, or best interpreted as part of, the commonlaw, admiralty law, a specialized body of regulation, or whatever?) 55 Second, there is no tight algorithm available to connect those multiple

principles into an easily stated single metaprinciple; they need to be puttogether in some more complex fashion. (There is, for instance, noorganized hierarchy of interpretive resources, such that there is a set starting

point, and one moves to a lower valued source only if a higher valued onegenerates results that are useless or ambiguous.) 56 Third, the principles arenot highly theorized, and indeed are often susceptible to multiple theoretical

54 Id. at 203.55 See, e.g. , Williams v. Wilmington Trust Co., 345 F.3d 128, 133 (2d Cir. 2003) (Katzmann, J.)

(stating that owner in a seamans wage statute should be understood as owner is traditionally under-stood in admiralty law).

56 On this point particularly, the multifarious approach I am proposing seems to me to differ fromwhat is often referred to as the pragmatic school of interpretation. For instance, William Eskridge andPhilip Frickey present their method as having a distinct form (their funnel of abstraction) superior to

purposivism, intentionalism, and textualism, and applicable in general to questions of statutory construc-tion. See William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning ,42 S TAN . L. R EV . 321, 324 25, 353 (1990). The fact that the method itself is an all-things-consideredmethod does not deny that the authors seem to assume that there is basically one type of statute and one

proper structure within which the issues should be addressed. That their mention of what they termhighly technical statutes, to be read as understood by the common sense of the special audience towhich the statute is addressed, appears only in a footnote, id. at 355 n.124, seems to me to confirm the

point.


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formulations. (Ordinary words should be read with their common,everyday meaning when they serve as directions for ordinary people, for

example, might be grounded on the authority of the speakers point ofviewon the way we believe Congress talks when it talks about ordinarythings; or on the legitimacy of the audiences point of viewon the wayordinary people are entitled to assume Congress talks, when it talks aboutordinary things.)

In my view, this process of multifactored, midlevel equilibration, thisnonfoundational approach, is the proper one to use for deciding how tointerpret the kinds of statutes we have in the kind of political and socialsystem in which we live. There are too many different kinds of statutesused for too many different kinds of reasons for us to expect there to be aworkable singular theory of statutory interpretation. Whatever may have

been true a hundred years ago, today we recognize both that statutes canconstitutionally embrace any of a number of quite different substantiveobjectives and also that our system is democratic not in the sense of the

pointed enunciation of a fully specified popular will by electedrepresentatives but rather in the sense of a legislatively controlled, butwidespread, diffusion among many institutions of law-applying, and tosome extent law-making, powers. We have come to accept the interpretiveimplication of the variety of permissible purposes: we recognize that thereis an open field of substantive criteria that might be used to resolvestatutory ambiguities in particular instances, but no single general criterionto be used in every case. Similarly, we should also accept the implicationthat there is a plethora of potentially relevant institutional perspectives andtreat the choice among the interpretive resources they generate as an openfield of decision. 57

That said, choosing among the points of view of the enactors of astatute, its readers, and its several types of users, once they are allconsidered potentially relevant, is not easy. It is, of course, possible that thelegislature has explicitly stipulated a choice of interpreter for a particular

provision; absent constitutional constraint, that would seem to lie within its prerogative. 58 But that is not the common case. More commonly what we

57 The truth of this proposition is more often acknowledged than its importance is recognized. Forexample, Cass Sunsteins ambitious effort to organize the interpretation of statutory texts in moderntimes appears to assume that even though we can generate only partial substantive canons to use forinterpretation, there is still a single systemic point of view from which interpretation in general can pro-ceed. Cass R. Sunstein, Interpreting Statutes in the Regulatory State , 103 H ARV . L. R EV . 405 (1989).At the same time, in a footnote Sunstein says: It is important to emphasize that my approach is directedto regulatory statutes. Id. at 411 n.20. But there is little discussion of which statutes in the regulatorystate are to be thought of as regulatory statutes or of what we are to do with the rest of the legisla-tures output. Is the FMLA a regulatory statute?

58 See, e.g. , 29 U.S.C. 158(b)(5) (2006) (explicitly directing the Labor Board to consider the practices and customs of labor organizations in the particular industry in deciding whether union mem- bership fees are excessive or discriminatory); 213(a)(1) (2006) (explicitly delegating power to theSecretary of Labor to define and delimit statutory terms bona fide executive, administrative or profes-


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have is ambiguous language in need of interpretation and more than oneclaimant to interpretive authority. Those who wrote the statute may have

understood its ambiguity as a delegation of authorityto someoneundetermined 59 to clarify it, or they may have missed the problem, or theymay not have been able under the circumstances to do any better. 60 Thevarious potential readers and users of the language come at it from different

points of view arising from different institutional settings. What should wedo?

We can narrow the problem, but only somewhat, by recognizing thatthese various interpreters often know of each others existence, or, if not,

perhaps ought to. Probably the ordinary citizen should understand that thewords of a statute are being used by its drafters in a formal legislativecontextat least to the extent of disallowing the interpretation of its wordsas being used metaphorically or ironically. But should they assume the yetmore formal proposition that what is not specifically stated is excluded?And if Congress passes a statute that incorporates terms that are routinelyused in the industrial situation being addressed, perhaps the legislativehistory shows that that language, by itself, was meant to delegate to trade

practice the task of filling in the specifics. 61 But what if there is no evidencethat Congress meant to adopt the usage or was even aware of it? Do westill adopt the users point of view, and if so, because of its own importance,or on the theory that Congress was negligent not to know? 62 It seems thatthis interactive approach will not fully resolve our problem; it will always

be possible to turn the kaleidoscope of possible recursive readings onenotch further. 63

sional capacity and capacity of outside salesman).59 In the common case of a statute administered by an agency, there is a general delegation to the

agency to make rules or decide cases and a general delegation to the judges to review what the agencyhas done, with the interpretive materials to be used by each of these potential delegatees undefined andthe line between the two delegations itself notoriously in need of definition.

60 This point was famously made by Justice Stevens in Chevron U.S.A., Inc. v. Natural Res. Def.

Council , 467 U.S. 837, 865 (1984). In their empirical study of legislative drafting by the Senate Judici-ary Committee, Victoria Nourse and Jane Schacter found that contending congressional staffers under-stood that leaving language ambiguous was in effect delegating decisionmaking elsewhere, with thehope that someone else would decide the disputed point their respective ways. Victoria F. Nourse &Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study , 77 N.Y.U. L. R EV . 575, 59697 (2002). More broadly, their work shows that, for the Senate at least, the desire to getagreement and achieve results is more important than the desire to write precise language to satisfy in-terpretive virtues.

61 So held in Corning Glass Works v. Brennan , 417 U.S. 188, 201 03 (1974) (stating that workingconditions does not include the time of day worked).

62 Cf. Todd D. Rakoff, Washington v. Davis and the Objective Theory of Contracts , 29 H ARV . C.R.-C.L. L. R EV . 63, 89 (noting that public officials can fairly be held to know common meanings as their

stock in trade).63 The complexities of this point are nicely developed in Kent Greenawalt, Are Mental States Rele-

vant for Statutory and Constitutional Interpretation? , 85 C ORNELL L. R EV . 1609, 1672 (2000)([R]eaders attend to the purposes of writers and writers formulate communications in light of what they


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To reach conclusions that will get us beyond these conundrums, weneed to formulate an understanding of the design of the statute in its overall

institutional setting. There are many aspects to a statute: one can look at itsstructure, the processes it establishes, and other things besides the exactsubstantive language it uses. It is hard to avoid the conclusion that theoverall social context, potentially different for each statute although

probably falling into recognizable patterns, will also influence choice inthese matters. What we are looking for more resembles a center of gravitydefined by multiple force vectors than the Q.E.D. of logical argument. Theinstinct of judges to look at questions of statutory interpretation using manydifferent types of evidence, coming at the problem from different directions,may not be so far off the mark. 64

But is this all too complex? After all, a method of analysis is not muchuse if it is not usable. If statutory interpretation is seen as a multifariousenterprise, as I propose, how will those who have to interpret statutes knowwhat they are to do? Would we not be better off with an only-one-methodtheory?

The first point to be made on this score is that for many users ofstatutes, the multifarious way of proceeding is by far the most functional.One of the real virtues of construing technical language with reference totrade usage, for example, is that members of the trade are able to understandwhat the law requires of them (or what their lawyers tell them the lawrequires of them) without engaging in an extensive effort at translation.Their instinctive reliance is protected. The same is true where the law

penetrates everyday life; if it is interpreted on that understanding, it laysfewer traps. 65

The more difficult issue is how to make this analysis manageable whenused firstly by judges, and secondarily by those, especially lawyers, whohandle the kinds of matters likely to go on to judicial resolution. As

previously stated, litigated cases, even potentially litigated cases, compriseonly a small part of the domain of statutory construction. But what can we

perceive will be the understandings of readers.). The interactions of the drafters and readers are alsoaddressed in Caleb Nelson, What is Textualism? , 91 V A. L. R EV . 347 (2005), and in Peter M. Tiersma, A

Message in a Bottle: Text, Autonomy, and Statutory Interpretation , 76 T UL . L. R EV . 431 (2001).64 In deciding litigated cases, there is also the matter of what the evidence shows; judges are inevi-

tably drawn to frames of reference that provide an answer for the matter at hand.65 See Daniel A. Farber, The Inevitability of Practical Reason: Statutes, Formalism, and the Rule of

Law , 45 V AND . L. R EV . 533, 559 (1992) (For ordinary citizens, the precise language of complex stat-utes may be much less accessible than an understanding of its general purposes, as they relate to sharedsocial norms, so plain meaning interpretation may be more effective in creating traps for the unwarythan in easing their way.). Although perhaps mentioned in passing, the thrust of this point seems to meto be missing from what Cass Sunstein and Adrian Vermeule call their potentially sensible institu-

tional defense of formalism, that is to say, of a plain meaning approach to interpretation. Cass R.Sunstein & Adrian Vermeule, Interpretation and Institutions , 101 M ICH . L. R EV . 885, 921 (2003); seealso Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Meaning , 1990SUP . CT. R EV . 231 (arguing that plain-meaning interpretation serves an important stabilizing function).


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do to help the judges choose well among the potential frames of referenceand to help the lawyers predict what the judges will do?

There are contrasting jurisprudential gambits on the question of whatform of law best serves the judicial process. A well-used opening statesthat tests based on a single, or at most a very few, factorsstronglydoctrinal testsfacilitate judicial diagnosis. The countermove replies thatsimple doctrinal tests necessarily create a considerable amount of ill fit, towhich judges will respond by fiddling with the doctrine, ultimately makingit less predictable than a frankly multifactored test would be. To which thesurresponse is that judges do not have to act that way. So the question isnot only one of logic; it is also a matter of assessing judicial discipline.

To test that matter, we can look at the most developed body of law wehave on a question that resembles the issues we have been discussing. Thisis the case law relating to the problem sometimes referred to as Chevron Step Zerothat is, the cases setting forth the prerequisites to accordingagency action Chevron deference. 66 In effect, this body of law addresses thequestion of when an administrative agency provides the most importantinstitutional setting for interpreting the statute in question.

In these cases, the Supreme Court has pursued both sides of the jurisprudential game sketched above. In the leading case, United States v. Mead Corp .,67 the Court emphasized the doctrinal approach: where thefederal statute gives the agency the power to engage in adjudication ornotice-and-comment rulemaking, and the agencys interpretationclaiming deference was promulgated in the exercise of that authority,Chevron applies. 68 But the Court was not willing to completely bind itselfand also said (in a nondoctrinal fashion) that some other indication might

justify such deference. 69 And in probably the most important case to makesuch an alternative determination of fit, the Court produced this highlymultifactored conclusion:

In this case, the interstitial nature of the legal question, the related expertise ofthe Agency, the importance of the question to administration of the statute, the

complexity of that administration, and the careful consideration the Agencyhas given the question over a long period of time all indicate that Chevron provides the appropriate legal lens through which to view the legality of theAgency interpretation here at issue. 70

The Supreme Courts effort to have it both ways has not received goodreviews in the academic press. On the one hand, some question whether the

66 Cass R. Sunstein, Chevron Step Zero , 92 V A. L. R EV . 187, 191 (2006). The term itself originatedin Thomas W. Merrill & Kristen E. Hickman, Chevron s Domain, 89 GEO . L.J. 833, 836 (2001).

67 533 U.S. 218 (2001).68

Id. at 22627.69 Id. at 227.70 Barnhart v. Walton, 535 U.S. 212, 222 (2002) (Breyer, J., speaking for eight members of the

Court).


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factor in the doctrinal formulation most commonly determinativewhetherthe statute contains a grant to the agency of rulemaking powercan bear so

much weight. Congress may have meant much less in allowing (or telling)an agency to make rules than the application of Chevron implies. 71 On theother hand, the failure of the Court to explain how the alternativemultifactored test relates to the Courts rationalization of the doctrinalformulation has caused real confusion in the lower courts as to what factorsought to be considered. 72

Moreover, it seems that the Supreme Court itself has had trouble livingwith its formal test when it produces overbroad results. There are manycases where the Court seems to ignore or evade Chevron in situations towhich, under the doctrinal tests, it should apply. 73

This experience suggests that, once we conclude that there arelegitimately many factors to consider in deciding on the appropriate frameof reference for an issue of statutory interpretation, we ought not try tocabin the work of judges in a highly doctrinal test. 74 The effort will causeconfusion, and in the end, it will not work. That does not mean that judgesought not try to line cases up with each other and tease out the mostimportant factors; it just means that we should not expect them to get thosefactors down to one or a very few. Insofar as we are looking at judgeswork, we will be best served by frank discussion of the grounds forchoosing among points of view, until the several relevant dimensionsclarify. Over time we can expect various nodes to develop, variousclusters of considerations that often go together to yield a particular result.There are many areas of the law where a similar balance has been struck.Indeed, the cases that the Supreme Court is willing to treat as Chevron

71 See Thomas W. Merrill & Kathryn Tongue Watts, Agency Rules with the Force of Law: TheOriginal Convention , 116 H ARV . L. R EV . 467, 472 74 (2002).

72 Lisa Schultz Bressman, How Mead Has Muddled Judicial Review of Agency Action , 58 V AND . L. R EV . 1443, 1445 48 (2005).

73 William N. Eskridge & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment

of Agency Statutory Interpretations from Chevron to Hamdan, 96 G EO . L.J. 1083, 1090 (2008) (To oursurprise, we found that the Court usually does not apply Chevron to cases that are, according to Mead and other opinions, Chevron -eligible.); see also id. at 1120 23 (describing additional details).

Although I have not done the extensive research that would be necessary to prove the idea, it may bethat the analysis I put forth explains some of these otherwise hard-to-understand Chevron -avoidingcases. Perhaps the questions raised in these cases were not questions of deference versus no deference(the way the matter is usually put) but rather questions of whether the agencys viewpoint or anotherviewpoint furnished the best frame of reference, with the Court (inarticulately) choosing another point ofview.

74 The argument that we would do best to have a simple, broad test for giving deference to agenciesis ably presented in V ERMUELE , supra note 46. But Vermeule does not address the reasons why judges

might want to defect from such a system, especially when it is recognized that the choice is not merely between court and agency but rather implicates a whole range of possible institutional interpreters. Cf.Richard A. Posner, Reply: The Institutional Dimension of Statutory and Constitutional Interpretation ,101 M ICH . L. R EV . 952 (2003) (discussing a broad range of institutional factors).


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cases are perhaps best seen in that light, rather than as hit-or-missapplications of a doctrinal rule. 75

To see what such a multifactored approach to choosing an interpretivestandpoint might look like if extended beyond the question merely ofdeference to an administrative agency, let us again look at the FMLA. Wehave developed two substantially different interpretive methods. 76 Which ofthese approaches best fits the question of determining whether parentincludes parent-in-law in the Family and Medical Leave Act? Should welook to the formal legal texts as interpreted by the authoritative instrumentsof government? Or should we look to the practical situation the terms ofthe Act address as understood by those who live in it?

There is much to be said in favor of relying on the situational analysis.The statute speaks in ordinary language with reference to common socialrelationships; there is no need for technical expertise to explicate therelevant concepts. We have no reason to think that the underlying customsare oppressive or that the statute was meant to reform the common practiceat issue rather than to enable it. The subject matter is personal and deeplyimportant for the individuals involved. They have to decide how to act, andhow they understand their actions probably matters a lot to them. Bycontrast, deciding one way or the other on parents and parents-in-lawimplicates no great shift in the relative power of governmental institutionssuch that we should care greatly what it means to them.

Against this, and in favor of adopting the approach based on formallegal texts, we have first and foremost the Acts delegation to the Secretaryof Labor of the authority and the obligation to prescribe such regulationsas are necessary for carrying the statutory leave provisions into effect. 77 Written in 1993, this language should probably be read to include

prescribing substantive regulations consistent with the terms of the Act.But this delegation does not mean that the FMLA matches Judge Friendlyscategory of statutes empowering an agency to regulate under broadlydefined criteria. 78 To the contrary, the Act is rather specific. It is writtenusing lay, not technical, words, and the substantive standards are framed asrules for primary behavior, not as directions to the Secretary. (Theauthority to promulgate regulations is put much later in the statute, in thetitle covering Miscellaneous Provisions. 79) Indeed, the Act is usablewithout agency action. Alleged violations of the Act are to be tried in the

75 Perhaps not surprisingly, Eskridge and Baer, having found widespread Chevron avoidance by theSupreme Court, concluded that the most significant factor leading the Court in fact to accord Chevron -level deference was the agency applying special expertise to a technical issue, seriously applying itsunderstanding for the facts to carry out congressional purposes. Eskridge & Baer, supra note 73, at1180.

76

See discussion supra Part II.77 29 U.S.C. 2654 (2006).78 FRIENDLY , supra note 53, at 204.79 29 U.S.C. 2651 2654.


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ordinary courts, and while the Department of Labor can bring such a suit,the Act clearly wants to encourage employees to sue employers directly

without any such intermediation: it provides for doubling the damages inmany cases and, more importantly, allows for successful plaintiffs torecover attorneys fees and expert witness fees. 80 This suggests

participation by the ordinary practicing bar. Indeed, the Act recognizes thatemployees, and not just their lawyers, are part of the expected audience ofthe Act: it requires each employer to post a summary of the Act inconspicuous places on the premises of the employer where notices toemployees and applicants for employment are customarily posted. 81 True,the summary is to be prepared by the Secretary. But even so, part of thedesign of the Act is to encourage ordinary workers to know their rights and

presumably make their plans based on them.From what point of view should we decide whether the term parent

includes parent-in-law? In my view, the specificity of the statuteexpressed in everyday terms, the lack of intricate connections with otherareas of the law, the complexity of the personal relationships involved andthe degree to which they require practical trade-offs, the absence of anyreason to think the relevant practices are oppressive, and the decisions byCongress to limit the role of the Department of Labor and to have the termsof the Act publicized directly to a lay audience all indicate that the socialunderstandings of that lay audience provide the appropriate legal lens (touse the Supreme Courts term) 82 through which to interpret the statute. Thatmethod fits better.

In other words, if we were to assume (what is not true) that under ourfirst method, based on legal texts, the result that parent does not includeparent-in-law was clearly established; and if we were to assume (what iscloser to the truth, but not fully established) that under the second method,

based on an analysis of the situation, parents should definitely be read toinclude parents-in-law; then in my view, the statute is best interpreted asallowing employees to claim leave to care for their parents-in-law. I am notsaying that the second method should be used only when the first methodfails to produce a definite result; the second method is, in this situation, adistinct best.

Some readers may be tempted to say that, in making this choice tofavor an interpretation of statutory language according to the lay meaningsand practices relevant to the situation rather than according to the materials

80 Id. 2617(a).81 Id. 2619(a). The form of the notice can be found at 29 C.F.R. pt. 825, App. C (2009). Both the

original form, Family and Medical Leave Act of 1993, 60 Fed. Reg. 2180, 2275 (Jan. 6, 1995), and the

new form, Family and Medical Leave Act of 1993, 73 Fed. Reg. 67,934, 68,123 (Nov. 17, 2008), saythat leave is available to care for the employees spouse, son, daughter, or parent who has a serioushealth condition without explicitly addressing parents-in-law yea or nay.

82 Barnhart v. Walton, 535 U.S. 212, 222 (2002).


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(other than the directly relevant statutory language) generated by officialinstitutions, even if those other materials are unambiguous, I am advocating

for overriding the clear meaning of the statute. I do not think that is right.To assert that a statute has a clear meaning in this context is to claim thatone particular interpretive frameperhaps method oneshould be used tomake the authoritative decision as to whether a statute is, or is not,ambiguous. But ambiguity very often results precisely from the fact thatthere is more than one frame of reference with a decent claim to beingrelevant. The ambiguity lies not within any one frame, but in the differentmeanings ascribed to important terms from within different frames. As aconsequence, ambiguity, in the operational sense of a need to do furtherinterpretive work, can be proven even against a clear standard usage. 83

All that said, I admit that the case would be even stronger for usingmethod two to decide on the meaning of parent if the agency had not beengiven rulemaking powers. And the case for the first method might well

predominate if Congress had implemented its purposes by producing astatute of highly interrelated technical provisions with violations of thestatute to be tried in the first instance before the agency. And if you agreewith these conclusions, even if you do not agree with my reading of theFMLA, then you see my basic point: there is more than one kind of statute;there is more than one way to read a statute; and determining the right wayto read any particular statute is a matter of fit.

CONCLUSION

Often, statutes mean the same thing when seen from any relevant pointof view. But when statutory language needs interpretation, the additional

premises needed to construct a result have to come from somewhere.

83 The law of trade usage, for example, would mostly disappear if common terms could not be proven to have uncommon meanings. The contrary is the truth. For a recent example, see Mason Capi-tal, Ltd. v. Kaman Corp., No. 3:05CV1470, 2005 WL 2850083, at *10 (D. Conn. Oct. 31, 2005) (involv-

ing expert testimony as to trade practice used to override a grammatical rule even where applicable statestatute requires plain meaning to prevail). While not phrased in these terms, it seems to me that Jus-tice Breyers opinion in Zuni Public School District No. 89 v. Department of Education , 550 U.S. 81(2007), proceeds on much the same theory.

Some readers may also be tempted to say that my argument is clouded by an unjustified preferencefor using the more diffuse items found at the bottom of my list of possible interpretive resources. It istrue that I think that, in the ordinary discussion of statutory interpretation, there is less consideration oftrade usages and social practices than is justified, but that is because I think, as I have argued here, thatthere should be an open field of evaluation. It is obvious that there are many cases that should be de-cided by reference only to the sorts of official texts found at the top of the list. To take an extreme ex-ample, in FDA v. Brown & Williamson Tobacco Corp. , 529 U.S. 120 (2000), the issue was the authorityof the Food and Drug Administration (FDA) to regulate cigarettes on the ground that nicotine was a

drug. As the Court rightly saw, this presented a high-stakes separation of powers question; the Courthad to decide whether Congress had, or had not, transferred a very large block of power to the FDA.The center of gravity lay in the statements and actions of official institutions; whether cigarettes or nico-tine were or were not drugs in ordinary usage and practice would have no bearing on that matter.


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Where is that somewhere? There are many somewheres. Within each ofthem there are reasons, not just whims or preferences, for understanding a

statute one way rather than another. We can also reason about whichsomewhere is the most important one for interpreting any particular statute.Statutes come in myriad forms and address in one way or another nearlyeverything we do. We should accept the fact that we are working on a

broad terrain, one open to a full range of social practices. Statutoryinterpretation is more open-ended, more dependent on wisdomand, Imight add, more interestingthan the search for a comprehensive butmonistic theory allows.