Über die Autorinnen und Autoren

Lawrence M. Solan is Don Forchelli Professor of Law and director of the Center for the Study of Law, Language, and Cognition at Brooklyn Law School. He is the author of two other books, also published by the University of Chicago Press.

Lawrence M. Solan is Don Forchelli Professor of Law and director of the Center for the Study of Law, Language, and Cognition at Brooklyn Law School. He is the author of The Language of Judges and coauthor of Speaking of Crime: The Language of Criminal Justice, both of which are also published by the University of Chicago Press.

Auszug. © Genehmigter Nachdruck. Alle Rechte vorbehalten.

The Language of Statutes

Laws and Their InterpretationBy LAWRENCE M. SOLAN

THE UNIVERSITY OF CHICAGO PRESS

Copyright © 2010 The University of Chicago
All right reserved.
ISBN: 978-0-226-76796-3

Contents

Acknowledgments...............................................................................ixCHAPTER 1. Laws and Judges....................................................................1CHAPTER 2. Why We Need to Interpret Statutes..................................................16CHAPTER 3. Definitions, Ordinary Meaning, and Respect for the Legislature.....................50CHAPTER 4. The Intent of the Legislature......................................................82CHAPTER 5. Stability, Dynamism, and Other Values..............................................120CHAPTER 6. Who Should Interpret Statutes?.....................................................160CHAPTER 7. Jurors as Statutory Interpreters...................................................196CHAPTER 8. Legislatures, Judges, and Statutory Interpretation.................................223APPENDIX. Two Mail Fraud Jury Instructions....................................................231Notes.........................................................................................237List of Cases.................................................................................283Index.........................................................................................285

Chapter One

Laws and Judges

This book is about the relationship between lawmakers and judges. More specifically, it is about how judges judge disputes about laws. In cases involving the common law, judges determine how well the facts of a dispute fit into the earlier body of decisions and attempt to reach the best outcome in the new case, which then becomes part of the tradition for the next judge to consider. Depending on which court in the judicial hierarchy makes the decision, the decision not only is advisory but also has official legal status as binding precedent under the doctrine of stare decisis.

But now, much of the law is made not by judges but by legislatures. Laws governing crime and punishment, trademarks, patents, copyright, securities, corporations, taxation, environmental regulation, antitrust, the sale of goods, and insurance are all enacted through legislation. When a legislature passes a law in a particular domain, common-law judges must give the statute priority over their own values and defer to the legislative judgment. At times, the legislature delegates to agencies the authority to write rules to implement the statute. These too have the force of law. For the most part, courts are also obliged to subordinate their own judgment to those of the rule makers.

Common-law judges are also charged with interpreting statutes, which they have done for centuries. Some believe that judges, so accustomed to having the last word in common-law cases, have not been willing to adjust to the role of taking a back seat to the legislature. Instead, judges attempt to legislate beyond their authority by imposing their own glosses and values on statutes that should simply be applied as the legislature wrote them. The most prominent such critic is Supreme Court Justice Antonin Scalia. In his book A Matter of Interpretation, he remarks: "But though I have no quarrel with the common law and its process, I do question whether the attitude of the common-law judge—the mind-set that asks, 'What is the most desirable resolution of this case, and how can any impediments to the achievement of that result be evaded?'—is appropriate for most of the work that I do, and much of the work that state judges do. We live in an age of legislation, and most new law is statutory law."

Justice Scalia is by no means alone in his concern. For example, Adrian Vermeule suggests that judges should eschew virtually all interpretive principles. They should instead, he claims, apply laws by their plain language when possible and defer to administrative agencies (including prosecutors) when there is some uncertainty about a statute's meaning. Because judges bent on finding the intent of the legislature have no reliable methodologies that will ensure that they have accomplished their goal successfully, the argument goes, the system would be better off if judges applied rules mechanically and let the experts take over when decisions must be made.

Others, in sharp contrast, believe that the common-law tradition provides a special opportunity for judges to continue to do justice, even though so much of the law is statutory. Guido Calabresi takes this position in his book A Common Law for the Age of Statutes, whose title states his thesis. Calabresi asks: "What, then, is the common law function to be exercised by courts today? It is no more and no less than the critical task of deciding when a retentionist or revisionist bias is appropriately applied to an existing common law or statutory rule. It is the judgmental function ... of deciding when a rule has become sufficiently out of phase with the whole legal framework so that, whatever its age, it can only stand if a current majoritarian or legislative body reaffirms it." This position argues that because legislatures move slowly—or not at all—it is only by some reasonable sharing of power between the two branches of government that any reasonable legal system can sustain itself without irreparably compromising the goal of doing justice. William Eskridge, in his important book Dynamic Statutory Interpretation, also focuses on the need for courts to recognize doctrinal development notwithstanding laws enacted pursuant to a constitutionally mandated process, which, at least in principle, is intended to give the laws primacy over the value systems of individual judges.

Whether one believes that judges should wield more power or less power in the age of statutes, there can be no doubt that judges actually do continue to sound like common-law judges even when they are interpreting laws. Although they purport to defer to legislative judgment, they indeed make their own judgments about which pieces of the legislative history and other social facts surrounding the enactment of a law tell us what the legislature really had in mind; they adhere to the common-law principles of precedent, so that an earlier interpretation of a statute—even a demonstrably bad interpretation—continues to have binding effect on future cases; they create all kinds of "canons of construction," ranging from assumptions about the resolution of grammatical ambiguity to the rule of lenity, which calls for ambiguities in criminal statutes to be resolved in favor of the defendant; and they impose on legislators "plain statement rules," through which they warn lawmakers to draft disfavored provisions in an especially "clear" manner if they expect courts to enforce them. Even when the legislature reacts to a court decision by changing the law to override the judges, courts often continue to refer to their own precedents, construing the new law narrowly, as if the legislature were an inconvenience whose effect on the decision making of judges should be minimized to the extent possible.

When the language of the law leaves uncertainty, and it predictably does leave uncertainty, then discretion is unavoidable, whether we like it or not. For those concerned with there being a crisp rule of law conveyed in language that we can understand and comply with, this is unfortunate, since these...