What role should the realities of the legislative drafting process play in the theories and doctrines of statutory interpretation and administrative law? The ongoing debates frequently turn on empirical assumptions about how Congress drafts and what interpretive rules Congress knows, but, until now, there has been almost no testing of those assumptions. This is the first of two Articles reporting the results of the most extensive empirical study to date—a survey of 137 congressional staffers drawn from both parties, both chambers of Congress, and spanning multiple committees—on topics ranging from their knowledge and use of the canons of interpretation, to legislative history, the administrative law deference doctrines, the legislative process, and the courts-Congress relationship.

Our findings have implications for virtually every swath of the interpretive debates. We can report, for instance, that there are some canons that our drafters know and use—Chevron and the presumption against preemption, for example; but that there are other canons that many drafters know but consciously reject in favor of political or other considerations, including the presumption in favor of consistent usage, the rule against superfluities, and dictionary use; and that there are still other canons, like Mead and noscitur a sociis, that our drafters do not know as legal rules but that seem to be accurate judicial reflections of how Congress drafts. Our interviews also elicited a treasure trove of information about key influences on the drafting process that legal doctrine rarely acknowledges.

These findings also allow us to press for a more precise answer to a foundational question: what should be the purpose of these rules? Judges, often using the unhelpful generalization that they are Congress’s “faithful agents,” have legitimized them using conflicting justifications, some of which turn on empirical reality, some of which do not, and most of which treat together many different types of rules that do very different types of work. Do the canons reflect how Congress drafts, and so effectuate legislative supremacy? Or do judges use the canons for more dialogical reasons, such as to encourage Congress to draft more precisely—and does Congress listen? Might the canons instead best be understood to effectuate judicial responsibilities that are external to the legislative process, such as advancing constitutional values or legal coherence? Our study disaggregates the canons, revealing the variety of justifications for the current regime and how each rests on different visions of the judicial power and the courts-Congress relationship.

A Methods Appendix detailing the Article's methodology is available at:

http://www.stanfordlawreview.org/sites/default/files/Gluck_Bressman_65_Stan._L._Rev._Methods_Appendix.pdf

 

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