California Law Review
As a legislation scholar, Philip Frickey was present at the creation.I Along with his coauthor William Eskridge, Frickey reconceptualized the field of legislation and statutory interpretation. In doing so, he opened the door to an unparalleled period of inquiry and debate about the meaning of statutes, among both judges and academics. The Eskridge and Frickey casebook, published in 1988, was justly hailed by Judge Richard Posner as having "done for legislation what Hart and Sacks did for legal process, or Hart and Wechsler for federal courts: it has demonstrated the existence of a subject." Over the ensuing two decades, Frickey has been at once a major contributor to and an essential chronicler of developments in this field. A hallmark of his scholarship has been an appreciation for complexity-for the tensions and convergences between theory and practice in statutory interpretation, and for the historical, institutional, and normative perspectives that judges, lawyers, social scientists, and legal academics bring to the interpretive enterprise. This Essay examines Frickey's treatment of the canons of construction, an aspect of his attentiveness to complexity. Two general themes emerge from the discussion and analysis in a number of Frickey's articles. One is his effort to unmask: he critically assesses descriptive claims that the canons promote more predictable construction of statutes, as well as normative claims that they foster more neutral policy outcomes. The second theme is Frickey's effort to understand and justify: he views the canons as performing a useful role for the judiciary as an institution in certain settings. Ultimately, Frickey defends the canons as an institutional resource, but in more reserved terms than those offered by canon enthusiasts The Essay then expands upon Frickey's concerns by presenting two sets of observations that focus on how the canons differ from legislative history and agency guidance. Based on these observations, the Essay suggests that the canons should be subordinated to interpretive resources produced by the institutions of Congress and the executive. My first set of observations involves legitimacy and stems from our separation-of-powers understanding that in the statutory domain, federal courts are expected to act as agents of the politically accountable branches. Article I of the Constitution authorizes Congress to organize itself in fulfillment of its legislative mission8 and requires Congress to publish a record of its legislative proceedings.Although the Founders did not anticipate judicial review of statutes as that process has developed, their Article I contribution helped create two notable innovations in legislative design that are relevant to how courts should approach statutory interpretation. These design innovations, dating from the earliest Congresses, were the determination to favor detailed public reporting of floor debates and the decision to create permanent standing committees that produced oral and then written committee reports.10 Taken together, these innovations led to the development of legislative history as a means of informing and persuading members of Congress regarding the bills on which they were to vote. Canons lack any comparable constitutional foundation. As creations of the judicial branch, their contribution was not anticipated within the constitutionally prescribed structure of federal lawmaking. Nor-unlike legislative history-was their functional role in the lawmaking process recognized by the early Congresses. In addition, current evidence suggests that-again unlike legislative history-the canons are largely unknown to or ignored by the legislators and staff who draft, negotiate, and vote on statutory text." Because the canons' interpretive validity is fundamentally disconnected from the Article I lawmaking structure and the realities of the legislative process, there is reason to question whether courts should value canons to the same extent as interpretive resources produced by Congress. My second set of observations involves reliability. The Court's interpretive rubric has given rise to a relatively objective internal hierarchy for contextual resources produced by Congress and also by the executive branch. Certain types of legislative history and agency directives are presumptively valued more than others. Judicial deviations from this hierarchy tend to be accompanied by some explanation for the departure. Importantly, the priorities established for legislative history and agency directives flow from how Congress and the executive function, both in terms of relying on authoritative sources of expertise and valuing deliberative processes. By contrast, there is no recognized ordering of authority within the canonical universe. The Court has never developed rules for harmonizing or prioritizing among the scores of existing canons, many of which the Court has created in recent decades. One language canon may trump another, one substantive canon may displace another, and a language canon may be deemed subservient to a substantive canon in one instance and dominant in the next. This lack of an intelligible framework for ordering the canons renders them distinctly more susceptible to judicial manipulation than other interpretive resources. Part I of this Essay discusses Frickey's treatment of the canons. Part II builds on Frickey's insights to raise and develop my comparative institutional observations. These observations suggest subordinating the canons to other interpretive resources that are at once more legitimately grounded in the lawmaking process and more genuinely objective.
James J. Brudney,
Canon Shortfalls and the Virtues of Political Branch Interpretive Assets Tribute Issue in Honor of Philip P. Frickey: Festschrift, 98 Cal. L. Rev. 1199
Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/128