As Will Baude and Ryan Doerfler note
Comments
Unfortunately, I don’t have time (or free hands) to give these generous responses the time they deserve right now, but I am very happy that our article has sparked fascinating responses like these. Provoking real reflection about the plain meaning rule was our goal, more than anything else.
That said, two thoughts:
1, I think Rick’s process-based theory relies on an additional assumption, which is that legislators can at least tell when they are getting closer or further from qualifying for what he sees as the plain-meaning “prize.” That might be right, but I’m not positive — for instance, sometimes courts find ambiguities precisely because of Congress’s attempts to say things an extra time and make doubly sure. If members of Congress don’t know whether a given amendment will move things closer or further from clarity, then the “prize” could be discounted all the way to zero.
Now maybe Rick’s assumption is right in at least some predictable set of cases, I’m not sure, and suspect we would need more systematic research to find out. And for the reasons Rick comes to, it may not matter in the end.
2, As for Asher’s suggestion, if the result of our piece is to prove that we are all still intentionalists (or perhaps “new purposivists”) I think that would be interesting enough. But I rather doubt that the kind of intentionalism he describes would lead to the kind of thresholds and epistemic cut-offs that *purport* to mark the plain meaning rule.
It’s important to remember that “ambiguous” texts include not just those that are genuinely in equipoise, but those where one side has the better of it, but only by a modest margin. The question for plain-meaning-rule defenders is why there are some margins where extra-textual evidence is worth looking at, and others where it is not.
But if they have an answer to that question, perhaps they can help tell us where that margin is — a point on which current judges of the D.C. Circuit apparently are widely divided.
Posted by: William Baude | Aug 6, 2017 12:36:01 PM
I think I disagree with most of this post. In the first place, I find Baude and Doerfler’s criticisms of the plain-statement rule thoroughly unconvincing and see no common-sense problem with lexical priority of textual meaning whatsoever. The argument assumes that the reason extra-textual evidence of meaning is given no weight when text is clear is that there’s something, as you say, “pernicious” about it, but that needn’t be the case for lexical priority to be right; actually, unless every judge who considers that evidence when a statute is ambiguous but not when it’s plain (which is pretty much every judge in America, less a handful of ultra-textualist judges) has been hopelessly confused for the past few decades or maybe the last century (the plain-statement rule predates the advent of modern textualism by quite a ways), what we should be looking for is a theory on which extra-textual evidence isn’t pernicious at all, but is merely less reliable than textual evidence of meaning, which is conclusive when sufficiently clear.
Now, there’s nothing logically incoherent in theory about that kind of priority between two different types of evidence; eyewitness testimony, for example, isn’t so unreliable that it should be categorically discarded, but if you have physical or video evidence of a certain quality, it would be irrational to side with the eyewitness testimony if physical or video evidence contradicts it. District-court opinions are perfectly probative though inconclusive evidence of the law, so to speak, until they’re contradicted by a Supreme Court opinion, in which case they’re not. The question we should be asking is whether there’s at least a plausible theory of legal meaning, or linguistic meaning, which contributes to legal meaning but isn’t necessarily the same thing, on which textual evidence and extra-textual evidence of statutory meaning have this kind of relationship. I’ll briefly suggest why I think there is a perfectly plausible theory of linguistic meaning, and perhaps legal meaning, of this kind.
It strikes me that by and large most judges continue to be intentionalists; otherwise the vast majority of judges wouldn’t continue to consult legislative history, or at least they’d do it for very different and more limited purposes (as weak evidence of what words mean, on a par with other indicia of usage). It also strikes me that outside of the law and literature we’re all intentionalists about meaning; to the extent your post or my comment is ambiguous, people who want to know what they mean will puzzle over what we meant by them, or perhaps ask us. They won’t try to work out ambiguities by figuring out what’s the most conventional meaning of ambiguous language in these writings. That being said, people who are intentionalists about meaning have had to concede that purely intentionalist accounts of meaning must bow to conventions to the extent we write some words that are intended to convey one thing but don’t convey it on any conventional understanding of those words.** If you privately intended this post to mean that the plain-statement rule is great and should be retained, no one would say that that’s what the post meant. If the post is ambiguous between two possible meanings that the words you used can conventionally bear, however, many people would say your post means whichever one you intended. I’m extremely reluctant to reject this theory of meaning as incoherent because it’s how most people think about meaning, and I believe it’s what explains the plain-statement rule, which I don’t think is primarily a creature of textualist theory but rather is a very old rule that’s coexisted for centuries with a frankly intentionalist approach to statutory interpretation.
Now, as to the objection that the rule can’t stop courts from thinking about extra-textual stuff, that’s true, and it’s also true that courts may adjust their clarity thresholds if the statute’s apparently clear meaning is a policy disaster. I do think, though, that the rule meaningfully deters courts from relying on, though not looking at, legislative-history materials when a statute is clear, meaningfully deters courts from relying on policy misgivings they have or litigants raise when a statute’s clear and the policy concerns raised don’t rise to the level of King v. Burwell-like disaster, and do make outcomes somewhat more predictable. The fact that clarity/ambiguity determinations can be tough doesn’t mean that a great many aren’t easy, and even if they were very frequently tough, it seems to me that freeing courts to balance clear text against other things would be a whole lot less predictable than handicapping the threshold question of whether a statute’s clear or not. Take, for example, Easterbrook’s famous opinion in In re Sinclair, where Congress enacted a new chapter under which family farmers could file, said the law “shall not apply . . . to [bankruptcy] cases commenced . . . before the effective date of this Act,” and a pre-effective-date chapter 11 filer tried to convert his case into the new, more generous chapter because the conference report equally clearly said that cases pending at the time of enactment could be converted. Now, I don’t find the clarity/ambiguity determination in that case hard at all and I can’t imagine anyone who would, but I couldn’t begin to predict the outcome of the case were it permissible to consider the conference report in spite of the statute’s clarity.
** See pages 163-66 of this textbook:
Posted by: Asher Steinberg | Aug 1, 2017 8:53:03 PM