Against Coherence in Statutory Interpretation

A long tradition in legal theory views the judicial role as centrally including the duty to make the entire body of law “speak with one voice.” This coherence ideal permeates much of the law of statutory interpretation, but one body of doctrine that it has particularly influenced is the set of standards that federal courts use to determine when a newly enacted statute overrides preexisting legal rules. Determining whether Congress implicitly intends to preempt state law, repeal previous legislation, or displace federal common law is an increasingly important part of the “ordinary diet of the law.” And although, this Article maintains, modern preemption doctrine is largely consistent with the presumptive judicial role in statutory interpretation—that of Congress’s faithful agent—the desire for coherence has motivated the Court to develop standards governing repeal and displacement that deviate from the preemption framework. This Article argues that courts should abandon the quest for coherence in statutory interpretation. In a reasonably pluralistic society like ours, widespread agreement on a coherent ranking of basic values is unlikely. Against this backdrop of deep disagreement, collective social action is purchased only by hammering out specific compromises, and the overall pattern of compromises is unlikely to be coherent. Imposing coherence on the body of law accordingly unravels the very compromises that allowed the legislature to act and, in doing so, both disrespects the process of mutual compromise that made collective action possible and impedes future legislative action. Recognizing the importance of compromise to modern legislation should lead to the rejection of normative coherence as an ideal in statutory interpretation. And, absent some other justification for their current divergence, the doctrinal standards for repeal and displacement should be unified with the current preemption framework

Against Coherence in Statutory Interpretation

A long tradition in legal theory views the judicial role as centrally including the duty to make the entire body of law “speak with one voice.” This coherence ideal permeates much of the law of statutory interpretation, but one body of doctrine that it has particularly influenced is the set of standards that federal courts use to determine when a newly enacted statute overrides preexisting legal rules. Determining whether Congress implicitly intends to preempt state law, repeal previous legislation, or displace federal common law is an increasingly important part of the “ordinary diet of the law.” And although, this Article maintains, modern preemption doctrine is largely consistent with the presumptive judicial role in statutory interpretation—that of Congress’s faithful agent—the desire for coherence has motivated the Court to develop standards governing repeal and displacement that deviate from the preemption framework. This Article argues that courts should abandon the quest for coherence in statutory interpretation. In a reasonably pluralistic society like ours, widespread agreement on a coherent ranking of basic values is unlikely. Against this backdrop of deep disagreement, collective social action is purchased only by hammering out specific compromises, and the overall pattern of compromises is unlikely to be coherent. Imposing coherence on the body of law accordingly unravels the very compromises that allowed the legislature to act and, in doing so, both disrespects the process of mutual compromise that made collective action possible and impedes future legislative action. Recognizing the importance of compromise to modern legislation should lead to the rejection of normative coherence as an ideal in statutory interpretation. And, absent some other justification for their current divergence, the doctrinal standards for repeal and displacement should be unified with the current preemption framework

Texas Review of Law & Politics

Triannual journal containing articles, notes, book reviews, and other analyses of law and legal cases

Textualism and the Problem of Scrivener\u27s Error

Scrivener’s errors make easy prey for the gentle comedy of the bench and bar, much in the way that typographical errors in billboards, newspaper headlines, and church bulletins form an endless source of humor for late night talk show hosts. But theorists of legal interpretation have long seen that scrivener’s errors pose a more serious problem. The doctrine surrounding scrivener’s error stands considered as something of a cousin to the absurdity doctrine, which has roots extending to the earliest days of the American Republic. More recently, the post-legal-process revival of formalist approaches to statutory interpretation on the bench, and their systematic defense in the academy, has made the problem of scrivener’s error increasingly relevant. Aside from a handful of attempts, textualist theorists have been either unconcerned or uninterested in the problem; even critics of textualism seem to have placed little emphasis on the threat posed by scrivener’s error to textualist theory. Textualist judges, who come face to face with actual examples of scrivener’s error, have gone a bit farther in articulating an approach to the problem, but it is hardly within their province to treat its conceptual moorings, theoretical implications, and evidentiary difficulties in any systematic way. The result has been a textualist approach to the problem that is unsatisfactory in significant respects. This neglect is unfortunate. Scrivener’s error poses a significant challenge to textualist theories of interpretation, and if textualism cannot come up with an adequate answer to the problem of scrivener’s error, it is prima facie an unsatisfactory theory of statutory interpretation. Moreover, how textualists answer the challenge posed by scrivener’s error has the deepest implications for the theoretical foundations of textualism. Finding conceptual room for a doctrine of scrivener’s error within a textualist theory that rejects reliance on legislative history and the absurdity doctrine goes to the very root of what divides textualists from intentionalists. The burden of this article is to provide conceptual moorings for a textualist doctrine of scrivener’s error, to relate the problem of drafting errors to broader textualist theory, and to suggest how the theory of scrivener’s error advocated here might make a difference in practice

Textualism and Obstacle Preemption

Commentators, both on the bench and in the academy,have perceived an inconsistency between the SupremeCourt\u27s trend, in recent decades, towards an increasinglyformalist approach to statutory interpretation and theCourt\u27s continued willingness to find state laws preemptedas obstacles to the accomplishment and execution of thefull purposes and objectives of Congress\u27 --so-called obstacle preemption. This Article argues that by givingthe meaning contextually implied in a statutory textordinary, operative legal force, we can justify most of thecurrent scope of obstacle preemption based solely ontheoretical moves textualism already is committed tomaking.The Article first sketches the history of both textualismand obstacle preemption, showing why the two doctrinesseem so obviously to be in tension with one another. It then introduces the field of linguistic pragmatics-thestudy of context\u27s role in determining meaning-payingspecial attention to the theory of scalar implicature, aframework that attempts to systematize our intuitions thatwe often say one thing but imply another. The Article thenproceeds to apply this theory to the obstacle-preemptioncase law, contending that scalar implicature, propertyadjusted to the legal context, can justify the result in mostobstacle preemption cases. Next, the Article argues thattextualists are committed to accepting this justification ofobstacle preemption because of two deep theoreticalpresuppositions of their theory. Finally, the Article closesby suggesting that this justification of obstacle preemptionnot only challenges widely shared assumptions about theinconsistency of textualism and one of the most commontypes of preemption; it also has the potential to reshapeour understanding of both textualism and obstaclepreemption