prior probability

We have just finished reading Brett Kavanaugh’s highly original essay “Fixing Statutory Interpretation” in the Harvard Law Review, vol. 129 (2016), pp. 2118-2163. (Kavanaugh, who we shall now refer to as “K-1”, is a federal appellate judge on the D.C. Circuit of Appeals.) In his thoughtful essay, K-1 reviews the book “Judging Statutes” (Oxford University Press, 2016) written by Robert Katzmann, “K-2”, who is also a federal appellate judge. After critiquing K-2’s willingness to delve into the muddy waters (or is it a swamp?) of legislative history when interpreting a statute, K-1 then proceeds to offer an alternative method of statutory interpretation.

Currently, most judges apply some version of the plain meaning or clear meaning rule when there is a dispute about the actual meaning or application of a statute. That is, if the literal meaning of a statute is clear, courts will generally enforce the statute “as is,” come what may. (We say “generally” because human judges, being the devious creatures that they are (source: Al Roth), can always find clever ways of ignoring the plain meaning rule, especially in cases involving absurd results or legislative mistakes.) If, however, a statute is ambiguous, courts are more willing to use extra-legal sources–i.e., sources external to the statute, such as committee reports, dictionaries, public policy, etc.–in order to figure out the true meaning of the statute. But as K-1 correctly notes, the problem with this time-tested approach to statutory interpretation is that it is not always clear or obvious when a statute is ambiguous, for the concept of ambiguity is itself ambiguous! (This point, by itself, is a novel and useful contribution to the scholarly literature. Moving forward, any halfway decent theory of statutory interpretation will have to find a way of solving–or avoiding–this problem.)

But wait, there’s more! Our friend K-1 also proposes an alternative method of statutory interpretation. In summary, instead of trying to guess whether a statute is clear or ambiguous, K-1 implores judges to figure out the “best reading of the text of the statute” (p. 2144). Say what …? Unfortunately for K-1, his honor is asking judges to substitute one magical wand for another. Why? Because his “best reading” test is totally empty and rudderless and just as utterly indeterminate and unhelpful as the subjective tests judges now use to distinguish between clear and ambiguous statutes, for how would one go about deciding whether the “best reading” of a statute is a narrow or literal reading or a broad/expansive one. His honor does not say. Simply put, K-1 provides no specific guidance as to how one would go about finding the best meaning of a statute. In fact, if K-1’s best reading formulation is the test, judges will just end up falling back on their untestable intuitions or policy preferences when deciding what the best reading is. So, what is to be done? First, we need to realize that most statutes are “lemons,” i.e. bad or defective products. We will say more about “statutes as lemons” in a future post … (Thanks to Paul Caron, via TaxProfBlog, for pointing out K-1’s essay to us.)

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