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Abstract:
The Supreme Court's statutory interpretation cases present an ongoing clash between mechanical, textualist, rule-based interpretive methods that seek to limit the role of judicial choice and more flexible methods that call upon courts to exercise intelligent judgment. In the recent case of Clark v. Martinez, 125 S. Ct. 716 (2005), the mechanical view of judging prevailed. The Court applied a purported canon of statutory construction that requires that a single phrase in a single statutory provision must always have a single meaning. The Court said that any other interpretive approach would be novel and dangerous. The Court is wrong on both counts. This Article first demonstrates that numerous cases have applied what the Article calls the polymorphic principle that a single phrase in a single statutory provision may have multiple meanings. The Article then uses this question as a window into larger issues of statutory construction and the proper judicial role in our system of government. The article suggests that Martinez cannot be understood independently of its author, Justice Scalia. The case represents a stage in his long-term campaign to limit judicial choice. The article attempts to show that a mechanical view of the judicial role is inappropriate. The Constitution permits the degree of judicial choice necessary to implement the polymorphic principle. Moreover, Justice Scalia's rule does not eliminate judicial choice but only gives the illusion of doing so. Indeed, it has the ironic effect of magnifying the judicial role in statutory interpretation. For these reasons, the Article advocates that courts continue to exercise their appropriate role of making judicious choices in statutory interpretation, a role that will involve continued use of the polymorphic principle in appropriate cases.

statutory interpretation, textualism, intentionalism, clark v. martinez, legislation, polymorphic

Abstract:
Defenders of the political question doctrine sometimes observe that the lack of a judicial remedy for a constitutional violation does not deprive injured parties of all remedy, because injured parties can pursue a political or an electoral remedy - they can seek relief at the ballot box or in the political process. This essay criticizes that argument. Political and electoral remedies for constitutional violations are ineffective for important practical and theoretical reasons that grow out of the different structures of the judicial, political, and electoral processes. The judicial process focuses each case on a particular issue; candidates in elections always represent a package of positions on many issues, so that voters do not actually have an opportunity to vote for or against a particular, allegedly unconstitutional action. The judicial process produces reasons for its decisions; the electoral process produces only an inscrutable result, so that even if voters managed to defeat a candidate because of unconstitutional action, no one could really know it. The judicial process operates within a system of precedent; political battles may have to be fought afresh each election cycle. The judicial process is mandatory; legislatures may choose to ignore political agitation. Finally, the judicial process operates according to law; the political and electoral processes are majoritarian and are not likely to be good vehicles for enforcing constraints on majoritarianism. These differences between the judicial, political, and electoral processes demonstrate the error of arguing that the political and electoral processes provide an adequate substitute for a judicial remedy. They also show that the political insulation of judges, although very important, is only one factor supporting the institution of judicial review. Judicial review also rests on the distinctive features of the judicial process: that it is focused, that it is mandatory, that it articulates norms explicitly, and that it operates within a system of precedent. Defenders of the political question doctrine must explain not only why we should entrust constitutional questions to officials not insulated from politics, but why we should entrust them to a process lacking these other, vital features of judicial review.

constitutional law, political question

Abstract:
This article responds to Professor Adrian Vermeule's new book, Judging Under Uncertainty. Professor Vermeule argues that (1) no one can empirically determine whether judicial use of legislative history or other interpretive methods that go beyond simple enforcement of plain text has any positive net benefits, but (2) we do know that such interpretive methods impose costs, and therefore (3) courts should discard such interpretive methods. This article suggests that (1) it is far from clear how costly these interpretive methods are, (2) it is also not clear that discarding them would result in any cost savings, both because of costs that would remain if only some judges adopted Professor Vermeule's theory and because, even if all judges adopted it, cost savings from the use of simpler interpretive methods might be offset by other, new costs, such as the costs imposed by judicial enforcement of clear but erroneously drafted statutory text that leads to absurd results, and (3) there are institutional reasons to believe that courts do get net benefits from methods that permit them to look beyond plain statutory text in some cases; most notably, the fact that courts interpret statutes at the moment of implementation puts them in a good position to detect statutory drafting errors. For these reasons, the article recommends against adoption of Professor Vermeule's interpretive theory.

Interpretation, Statutory interpretation, Constitutional interpretation, Legislative history, Vermeule, Cost-benefit analysis, Empirical legal research

Abstract:
States normally enjoy immunity from suit by private parties, but they may waive this immunity. The Supreme Court's steady contraction of other exceptions to the rule of state sovereign immunity has renewed interest in the previously little-discussed possibilities of waiver. This article explores the boundary of waiver doctrine. This article shows that prior to 1945, the Court applied a sensible doctrine of waiver that balanced the interests of states with those of private parties and the federal judicial system. However, beginning in 1945, the traditional rules concerning waiver of state sovereign immunity got swept away by the overall ideological tide of state sovereign immunity doctrine. The immunity became so important that it overrode all other considerations, including the need to run the federal judicial system in a sensible way. The Supreme Court's most recent decisions suggest that the Court has returned to its traditional rules concerning waiver. Such rules respect the states' prerogative of refusing to be sued in a federal forum, while at the same time requiring states to assert their prerogative in an orderly way that respects the needs of the federal judicial system.

sovereign immunity

Abstract:
This article claims that statutory drafting errors undermine the basic tenet of the textualist theory of statutory interpretation, which is that statutory text is the law that courts must follow. Courts should, the article suggests, be permitted to depart from statutory text in appropriate cases. The article claims that background principles of law can and do play a critical role in helping courts identify cases in which such departures are appropriate.

The article begins by examining a curious error in a very well-known statute, the basic federal venue statute. The statute permits plaintiffs in federal civil cases to lay venue in "a judicial district where any defendant resides, if all defendants reside in the same state." 28 U.S.C. Section 1391(a)(1), (b)(1). It would seem obvious that, to lay venue based on this provision, a plaintiff must bring suit in some judicial district in the state in which all defendants reside. In fact, however, the article shows that, in some cases in which all defendants reside in the same state, this provision permits a plaintiff to lay venue in some other state. This perverse result was surely never intended by the statute's drafters; it is a drafting error.

The article uses this error as the jumping-off point for a discussion of the implications that such errors have for theories of statutory interpretation. Such errors, the article claims, undermine the textualist theory of interpretation by forcing textualists to choose between two unappealing alternatives: either the textualists must endorse unacceptably foolish results, or they must abandon their fundamental belief that statutory text is the law. This flaw in the textualist theory does not, however, mean that courts must employ the full license permitted by the intentionalist theory of interpretation, which the textualists rightly criticize. Courts need a method that helps them to determine when departure from statutory text is appropriate.

The article proposes that courts make this determination by looking to background principles of law. In the case of the venue statute, the relevant background principle is that venue doctrines exist to ensure that cases are tried in convenient forums. The startling incongruity between this principle and the venue statute (if interpreted literally) demonstrates the need for a departure from the literal statutory text. The article suggests that this technique of "contextualism," defined as "interpreting statutes in the context provided by the judicially discoverable background principles of the relevant area of law," can serve as a generally useful guide to the interpretation of statutes.