Article by Robin Kundis Craig
This Article is not the first to question the wisdom of a unitary assumption of audience in statutory interpretation. Professor Edward Rubin, for example, has argued that, in an administrative state,
far from being in the position of two people who share nothing but language, a legislature and the administrative agencies within the same jurisdiction are linked by an incredibly dense network of relationships and shared activities. A much better analogy than two English-speaking strangers would be two members of a single family. The legislature and the agencies spend their entire lives supporting, attacking, cajoling, commanding, resisting, annoying, deceiving, upsetting, consoling, protecting, correcting, and wounding each other. Like family members, they develop a shared and specialized set of linguistic understandings based on this continuous, intense relationship. To restrict them to the discourse of strangers would distort and constrain modern governmental processes. In this administrative arena, Congress is far more likely to draft statutes that either speak directly to an administrative agency or that it expects an administrative agency to implement, mediating the public's interaction with that statute; in Professor Rubin's terminology, Congress is most likely to draft intransitive statutes. Moreover, representatives of the executive branch and the relevant agencies themselves are likely to have been in direct communication with the congressional committees that drafted these statutes about problems and issues of continuing concern. Similarly, coalitions of the regulated entities, particularly when such regulated entities are significant industrial, commercial, or agricultural enterprises, and coalitions of public interest organizations are likely to have formed political action committees and lobbying groups to present their views to Congress, and individual regulated entities may even have been invited to testify before the relevant drafting committees. It is not unusual for either the administrative agency or the regulated entities to draft proposed statutory language for Congress, nor for the administrative agencies, the regulated entities, and the public interest organizations to have communicated regarding prominent issues.
In other words, for a statute implemented by an administrative agency, it is entirely likely that Congress, the implementing agency, the regulated entities, and relevant public interest groups already share a more specialized culture before the statute is ever drafted and that meanings particular to that culture will become part of the statute itself. Such considerations have led Professor Stephen Ross, following Professor Rubin's observations, to conclude that specialized, administratively implemented statutes “are not directed at ordinary citizen speakers of English, but at a small community of lawyers, regulators, and people subject to their specific regulations,” and thus
[a]lthough linguistic techniques might still aid in understanding their meaning, . . . extrinsic evidence that is known and accessible to this small sub-community—such as legislative history, established norms of construction, and other evidence about the context in which the legislation arose—is more likely than linguistic analysis to help an outside judge shed light on what Congress meant and how the statute is to be understood.
Professor Ross did not take his thesis much farther than this statement, but he implicitly recognized that, in some areas of law involving many administratively implemented statutes, specialized subcultures have developed. Far less discernible in Professor Ross's or Professor Rubin's discussions, however, is any emphasis on the equally important fact that these specialized legal subcultures have evolved for decades. Nevertheless, the progress of that evolution is part of the extrinsic evidence that courts should consider.
The argument of this Article, therefore, is that Professors Rubin and Ross did not take their insights far enough. First, this Article not only adopts the pragmatic argument that Congress “now speak[s] to different kinds of government actors in a variety of different voices,” but more broadly that Congress speaks within entirely different legal subcultures, consisting not just of Congress (especially the congressional committees that draft specialized statutes) and the highly specialized administrative agencies that implement those statutes, but also of the highly sophisticated regulated entities and their related industry and trade political action groups and the equally sophisticated and often opposing public interest organizations. Federal courts should acknowledge these subcultures when interpreting federal statutes.
Second, this Article argues that the interpretive significance of such legal subcultures is two-fold: participants in the subculture not only use a more specialized language than the general public, as both Professors Rubin and Ross have argued, but the evolving nature of the statutes within that subculture often requires outside interpreters (and this Article, like Professor Ross, figures the Supreme Court as an outsider) to engage in a dialogic mode of interpretation. In effect, the relevant subcultural participants have been conversing over decades through statutory provisions, amendments, and regulations at least as often as Congress has unilaterally commanded new regulatory programs. As a result, not only the relevant audience but also the prior statements in the ongoing conversation should contextualize Congress's current statutory pronouncements.
Ordinary experience teaches us that it is dangerous to walk in late on a conversation, because of the real risk that we will misapprehend the common understanding of the other participants. Indeed, popular culture exploits this experiential truism to generate humor. For example, in one episode of the popular TV show “Friends,” Rachel (Jennifer Aniston) returns to a conversation between Ross (David Schwimmer) and the father of his current girlfriend (Bruce Willis), misinterprets to which of Ross's three failed marriages the two of them are referring, and commits the faux pas of revealing the fact that she and Ross had been married—a fact that the father did not yet know.
While occasionally participants in statutory conversations, the federal courts are also almost always latecomers to them. Rather than risk, like Rachel, misinterpreting the references in ongoing statutory conversations (with far less amusing results), the latecomer Court should be cautious about issuing interpretations without a full understanding of the dialogic and subcultural context in which the statute—and the relevant community's understanding of its meaning—has evolved. Instead, however, the Court's increasing allegiance to the strict plain meaning approach discounts the very tools of statutory interpretation that would allow the Court to appreciate the subcultural context of long-enduring, much-amended, and much-interpreted federal statutes. These tools include legislative history, which includes the commentaries that various congressional committees provide as a bill wends its way through Congress, as well as committee and floor debates about the bill; administrative history, the progressive administrative interpretations and applications of a given statute, including administrative agency interactions with Congress; and statutory history, the series of prior versions of the statute and its predecessors that Congress deliberately changed (or refused to change), including the events that prompted those changes and the resulting amendments.
Finally, this Article argues that the Court's choice to acknowledge—or not—the full subcultural dialogic content of statutory pronouncements can make—and has made—a significant difference to the outcome of its statutory interpretation decisions. In the traditional plain meaning approach, use of the context-revealing tools of statutory construction implicitly reflects an understanding that federal statutes can be evolving products of reflection and interaction—i.e., in this Article's terminology, ongoing conversations between sessions of Congress, between Congress and the implementing agency, among Congress and the regulated communities and public interest communities, and/or between Congress and the courts. In contrast, the undermining, if not elimination, of these tools in the strict plain meaning approach privileges the uninformed understanding of an outsider, a state of statutory interpretation roughly parallel to early European anthropologists' unthinking willingness to judge other cultures by European values rather than appreciating such cultures on their own terms.
Anthropologists finally acknowledged that they did not occupy the position of neutral observer and that their Eurocentric upbringing colored their interpretations of the cultures they participated in and observed, especially when their biases went unacknowledged. The Court, likewise, should acknowledge that its imposition of an acontextual textualist reading of a statute is in fact itself a choice of context that privileges the Justices' own understandings. The Court should also acknowledge that because the strict plain meaning approach discourages federal judges from acknowledging the complete dialogic subcultural context of many statutes, it effects a shift in lawmaking and interpretive power from Congress to the federal courts. This shift is particularly pronounced when statutes are evolving—specifically, when (a) Congress relies on a dialogic context to supply meaning to textually imprecise language and (b) when Congress tries to change the meaning of established legal language to suit new statutory purposes.
To make these arguments, this Article will examine some of the Supreme Court's interpretations of federal environmental law, a field of law based upon complex, highly technical statutes administered by specialized expert federal agencies, which have existed for decades. Because of these statutes' longevity, the participants in the federal environmental law subculture have been conversing for decades in language not immediately accessible to the textualists' “ordinary reader,” as most any law student taking an environmental law course for the first time will readily confirm. Environmental law thus provides an excellent proving ground for the theory that the Supreme Court's unwillingness to acknowledge subcultural statutory conversations affects its statutory interpretation.
About the Author
Robin Kundis Craig. Associate Professor of Law & Dean's Fellow, Indiana University School of Law, Indianapolis. J.D. 1996, Lewis & Clark School of Law; Ph.D. 1993 (English literature), University of California; M.A. 1986, The Johns Hopkins University.
Citation
79 Tul. L. Rev. 955 (2005)