Dynamic Statutory Interpretation
Dynamic Statutory Interpretation
1-1-1987
Recommended Citation
Eskridge, William N. Jr., "Dynamic Statutory Interpretation" (1987). Faculty Scholarship Series. Paper 1505.
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DYNAMIC STATUTORY INTERPRETATION
(1479)
' For general explanation of the intentionalist approach, see Lehigh Valley Coal
Co. v. Yensavage, 218 F. 547, 553 (2d Cir. 1914) (L. Hand, J.); R. POSNER, THE
FEDERAL COURTS: CRISIS AND REFORM 286-93 (1985); Posner, Statutory Interpreta-
tion-in the Classroom and in the Courtroom, 50 U. CHI. L. REV. 800, 817-22
(1983) ("The judge should try to think his way as best he can into the minds of the
enacting legislators and imagine how they would have wanted the statute applied to the
case at bar."). A narrower approach emphasizes the statutory text to the exclusion of
other contextual factors (such as legislative history). "Textualism" can be defended as
the best evidence of what the legislature actually meant when it enacted the statute. See
Easterbrook, Statutes' Domains, 50 U. CHI. L. REV. 533 (1983).
' See, e.g., H. HART & A. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN
THE MAKING AND APPLICATION OF LAW 1201 (tent. ed. 1958) (unpublished manu-
script); Macey, Promoting Public-RegardingLegislation through Statutory Interpreta-
tion: An Interest Group Model, 86 COLUM. L. REV. 223 (1986). See generally R.
DICKERSON, THE INTERPRETATION AND APPLICATION OF STATUTES (1975) (setting
forth a coherent modified-intentionalist account of statutory interpretation).
6 Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Ca-
nons about How Statutes Are to Be Construed, 3 VAND. L. REV. 395, 400 (1950)
(emphasis deleted).
' Phelps, Factors Influencing Judges in InterpretingStatutes, 3 VAND. L. REV.
the dissenting opinions found decisive support for their views in the
generally worded text or in the legislative history of the statute.
Nonetheless, the basic clash between the majority opinion and the
primary dissenting opinion in Smith v. Wade was argued in terms of
the intent of Congress in 1871. Both opinions relied on the common
law rules of punitive damages existing in 1871, assuming that most of
the members of Congress were attorneys who would have expected that
the common law would fill any gaps in the statute. 1 The majority
opinion cited dozens of nineteenth century state cases in which punitive
damages were awarded and in which the state court suggested that
"wanton" or "reckless" behavior could justify such damages. 2 The pri-
mary dissenting opinion responded with dozens of nineteenth century
state cases seeming to require "actual malice" or "spite" to justify pu-
nitive damages.2 3
While the Justices' excursions into these historical materials is in-
teresting, they are of little relevance to the best interpretation of the
statute. To begin with, the battle of the string citations is indeterminate
because there are plenty of cases to support either point of view. In-
deed, if the members of the forty-second Congress had been aware of
the several hundred opinions cited by the Court and the primary dis-
sent in Smith v. Wade, my guess is that they would have been confused
and without any "intent" pertaining to this issue.
Furthermore, the analysis in both opinions appears basically ahis-
torical and result-oriented. The opinions misperceived the common law
in 1871 by focusing on the defendant's state of mind. This is a focus
that had crystallized by the end of the nineteenth century in tort law
and criminal law. But in the third quarter of the century, tort theory
was struggling with subtly different issues. For example, the debate in
the 1850s and 1860s was whether punitive damages were allowable in
some degree of bad faith or improper motive on the part of the defendant." Id. at 56
(Rehnquist, J., dissenting). Justice O'Connor's dissent, while agreeing with Justice
Rehnquist's conclusion, rejected his analysis. She argued that no clear congressional
intent was discernible. Her disagreement with the majority opinion was based on her
concern with the "special problems" of permitting awards of punitive damages for the
recklessness of public officials. See id. at 94 (O'Connor, J., dissenting).
"I See Briscoe v. LaHue, 460 U.S. 325, 330 (1983); City of Newport v. Fact
Concerts, Inc., 453 U.S. 247, 258 (1981). While this maxim of interpretation is not a
consistently reliable guide for divining "legislative intent," it may be particularly ap-
propriate for construing 1983, because the statutory language explicitly refers the
injured party to "an action at law" for damages or "a suit in equity" for injunctive
relief and, hence, suggests a formal legislative reliance on existing common law or equi-
table remedies.
" See 461 U.S. at 35 nn.3-4 (punitive damages awarded generally), 39 n.8 (puni-
tive damages awarded for wanton or reckless behavior), 45 n.12 (same).
2" See id. at 60 n.3, 78 n.12 (Rehnquist, J., dissenting).
tort cases at all. The majority rule by 1871 was that such damages 2 4
were permissible if a defendant's conduct were especially outrageous.
Thus, those jurisdictions allowing punitive damages justified the "ex-
tra" recovery mostly on the "oppressive" conduct of the defendant,
25
rather than on the defendant's state of mind.
Finally, the historical analysis-to the extent it supports any inter-
pretation of the statute-supports what is in my view the wrong inter-
pretation. Under an "outrageous conduct" test the jailer's conduct in
Smith v. Wade probably does not justify punitive damages. Indeed, a
court in 1871 might not have considered the jailer's conduct to have
been sufficiently outrageous to have justified even compensatory, let
alone punitive, damages.26 Consequently, had the Supreme Court
wanted to freeze the meaning of section 1983 at its time of origin, the
result in Smith v. Wade would have been different.
A dynamic approach to section 1983 would not stop with'the his-
torical perspective, especially when the historical evidence is indirect
and confusing and the statute is old. The interpreter would ask herself
what interpretation is most consistent with section 1983 as it has
evolved over time. Indeed, in Smith v. Wade Justice O'Connor refused
to join either the primary dissenting opinion or the majority opinion,
finding their discussions of history "unilluminating."' 7 Instead, she
considered the current policy context of section 1983. All too briefly,
she explained that two current policies conflicted: the policy to deter
official wrongdoing versus the concern that overdeterrence would both
chill officials from vigorous exercise of their discretionary responsibili-
ties and overburden the courts.28 I applaud Justice O'Connor's skepti-
cism about the usefulness of the historical perspective here and endorse
her focus on the current mix of purposes in the statute. On the other
" See 2 C. ADDISON, A TREATISE ON THE LAW OF ToRTs 1392 (4th ed.
1876).
25 See T. SEDGVICK, A TREATISE ON THE MEASURE OF DAMAGES 523 (5th ed.
1869); see also 2 C. ADDISON, supra note 24, at 1392 (vindictive damages allowed
when "the wrong or injury is of a grievous nature, done with a high hand,. . . or with
words of contumely and abuse, and by circumstances of aggravation"); 2 J. GREEN-
LEAF, LAW OF EVIDENCE 253 (1876) (lengthy argument opposing punitive dam-
ages); F. HILLIARD, LAW OF REMEDIES FOR TORTS 441 (2d ed. 1867) (malice is gen-
erally required for exemplary damages in the states that recognize such damages).
26 See, e.g., Moxley v. Roberts, 43 S.W. 482 (Ky. 1897) (jailer not liable for
beating of one prisoner by another unless he actually knew of the beating and failed to
stop it); Williams v. Adams, 85 Mass. (3 Allen) 171 (1861) (prisoner cannot sue jailer
for failure to provide him with food, clothing, and warmth, absent a showing of actual
malice or such gross negligence as would authorize a jury to infer malice).
27 461 U.S. at 92 (O'Connor, J., dissenting).
26 Id. at 93-94 (O'Connor, J., dissenting). The majority opinion favored the for-
mer policy while Justice O'Connor found the latter more weighty.
hand, her dissenting opinion slights the rich interpretive history of sec-
tion 1983 and ignores policy values that would support punitive dam-
ages when official conduct has recklessly imperiled constitutional rights.
I should go one step beyond Justice O'Connor's dissenting opinion
and ask whether modern common law provides interpretive guidance.
In fact, the opinion for the Court in Smith v. Wade fleetingly men-
tioned the current common law rule that reckless misconduct can justify
punitive damages.29 This is the only persuasive authority invoked by
the majority opinion, for the common law rule represents a well-consid-
ered modern consensus about when the imposition of punitive damages
is appropriate.30 Reliance on evolving modern common law to fill in
statutory gaps, moreover, is consistent with the methodology the Court
has used in other cases interpreting section 1983. In fact, Professor Seth
Kreimer has demonstrated that in determining remedies, immunities,
and other issues under section 1983, the Court typically does not un-
dertake "a search for century-old legislative intent or common law con-
text"; instead it creates "a federal common law that the Court regards
as appropriate to modern social and political realities. '3 This funda-
mental point, that a federal common law approach is sensible, is sup-
ported not only by the general, non-confining language of section 1983,
but also by the substantial changes in the societal and legal context of
section 1983.
Section 1983 was a congressional response to state-sanctioned
abuse of civil rights in the South during the Reconstruction. 2 Its enact-
ment aroused a flurry of activity, but it soon fell into disuse because it
was narrowly interpreted to provide a remedy only when official action
was sanctioned by state law. In Monroe v. Pape,33 however, the Su-
preme Court interpreted section 1983 to provide a remedy for official
actions not sanctioned by state law. This interpretation exemplified the
Warren Court's commitment to civil rights cases in the 1950's and
1960's. This commitment, of course, was not just to the civil rights of
blacks in the South, but also to the rights of criminals, inmates of pris-
ons and mental hospitals, and others.
The explosion of constitutional tort litigation that followed
Monroe forced the Court to fill in the many gaps in section 1983: who
can be sued, what remedies are available, which statute of limitations is
applicable, and so forth. The modern common law of tort remedies and
immunities is a convenient way to fill in these gaps. Moreover, it is a
sensible way because it reflects the accumulated wisdom of incremental
judicial doctrine-building in a related field. Yet, as Justice O'Connor's
dissent in Smith v. Wade reminds us, the common law gap-filling rules
should be modified when appropriate to fit the Court's ongoing policy-
balancing within the context of section 1983 litigation. Given the com-
mitment in the last thirty years of the Court and our society to deter
civil rights violations by officials, the common law punitive damages
rule should not be relaxed in the context of section 1983.
Smith v. Wade is a particularly dramatic case calling for dynamic
interpretation. The evolutive perspective is critical for two reasons.
First, the language of the statute gives the Court a great deal of free-
dom in interpreting it; this makes the textual perspective of little im-
portance. Second, the statute's interpretation and the needs and values
of society have changed substantially since the enactment of the statute.
These developments render the historical perspective less persuasive.
Had the statute been recently enacted and filled with detailed policy
prescriptions or expectations reflected in its legislative history, a dy-
namic interpretation would not differ much from originalist statutory
interpretation. The language of the statute would answer most of the
interpretive issues, and national policy values would have changed lit-
tle, if at all. Nevertheless, some recent statutes have evolved so quickly
that dynamic interpretation offers a richly different perspective from
that of traditional theory. Consider the following case.
In United Steelworkers v. Weber,"' the Supreme Court addressed
the question of whether Title VII of the Civil Rights Act of 196411
permits employers and unions to adopt voluntary affirmative action
plans. Brian Weber, a white employee, sued his union and employer
for entering into a collective bargaining agreement that included an af-
firmative action plan to redress the underrepresentation of blacks in the
employer's skilled workforce. The plan that Weber challenged reserved
fifty percent of the spots in the company's craft-training program for
blacks. Weber argued that this penalized whites and effectively "dis-
criminated" against them on the basis of race, in violation of Title VII.
A divided Court rejected Weber's interpretation. While the Court's de-
cision is the proper one, the Court had great difficulty justifying its
result under traditional theories of statutory interpretation.
The statutory text does not decisively answer the interpretive is-
sue, contrary to labored readings by both the majority and dissenting
opinions.3 8 Section 703(d) makes it an unlawful practice for an em-
ployer or labor organization "to discriminate against any individual be-
cause of his race, color, religion, sex, or national origin in admission to,
or employment in, any program established to provide apprenticeship
or other training."'3 7 The operative word is "discriminate," which is not
defined in the Act. Weber interpreted the antidiscrimination rule of
section 703(d) to prevent any and every differential treatment of em-
ployees on racial grounds. This interpretation is plausible. It is also
plausible to interpret the antidiscrimination rule to penalize only dis-
crimination which is invidious, for the term "discrimination" in com-
mon usage means something more than just different treatment.3
Other provisions of Title VII might shed some light on the mean-
ing of "discrimination," of course. Thus, section 703(h) provides that
an employer can apply "different terms, conditions, or privileges of em-
ployment pursuant to a bona fide seniority or merit system . . . pro-
vided that such differences are not the result of an intention to dis-
criminate because of race.""9 This supports Weber's interpretation; if
section 703(d) only prevented invidious discrimination, there would be
no need for a seniority defense, and the italicized proviso would be un-
38 See 443 U.S. at 204-06 (majority opinion), 220-222 (Rehnquist, J., dissenting).
37 78 Stat. 255-56 (1964) (current version at 42 U.S.C. 2000e-2(d) (1982)). Sec-
tion 703(a)(1) makes it an unlawful practice for an employer or labor organization "to
discriminate against any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual's race, color, religion, sex, or
national origin." Id. (current version at 42 U.S.C. 2000e-2(a)(1) (1982)).
" Thus I reject the dissenting opinion's strong objection that Congress would have
been "hard pressed" to have chosen language more clearly protecting Weber than that
of 703(d). See 443 U.S. at 226 (Rehnquist, J., dissenting). For instance, if Congress
really wanted a sweeping protection against any and all differential treatment, it might
have made any failure by the employer to include any individual in any program estab-
lished to provide apprenticeship or other training as a result of prohibited criteria,
namely race, an unlawful employment practice.
39 78 Stat. 257 (1964) (current version at 42 U.S.C. 2000e-2(h) (1982)) (em-
phasis added); see also 703(e)(1), 78 Stat. 256 (1964) (current version at 42 U.S.C.
2000e-2(e)(1) (1982)) (an employer may hire individuals, an employment agency or
labor organization may classify or refer individuals, and an employment agency or la-
bor organization or labor-management committee may admit individuals to training
programs, on the basis of religion, sex, or national origin-but not race-if the basis is
a "bona fide occupational qualification").
necessary. On the other hand, Title VII also addresses the affirmative
action issue in specific terms. Section 7030) provides that the Act does
not "require any employer . . . to grant preferential treatment to any
individual or to any group because of the race" of that individual or
group. 40 That the provision does not say "permit or require. . . pref-
erential treatment" lends some support to the union's interpretation of
1
Title VII.4
On the whole, I consider the textual arguments inconclusive; good
arguments can be made for either position. Title VII was obviously not
drafted with a coherent vision of discrimination in mind, 42 and the fact
remains that the statutory text never defines "discriminate." The his-
torical perspective provides some, but not decisive, guidance for solving
the interpretive puzzle. There was a great deal of discussion of "quo-
tas" in the legislative debates; supporters of the civil rights bill repeat-
edly assured opponents and undecided legislators that the statute would
not mandate racial quotas. The dissenting opinion in Weber meticu-
lously recounted these debates and argued that the statutory "deal" was
that there would be no mandatory or voluntary quotas.4 3 This is far
phasis added).
"I The Court's opinion treats this argument as a decisive textual response to the
dissenting opinion's textual analysis. See 443 U.S. at 204-08. I do not consider the
argument at all decisive, for it rests upon the highly unreliable maxim of statutory
construction "inclusio unius est exclusio alterius" (inclusion of one means exclusion of
the other). See, e.g., Herman & MacLean v. Huddleston, 459 U.S. 375, 387 n.23
(1983) (rejecting application of the expressio unius maxim because such a presumption
would undermine the purpose of the 1933 Securities Act); National Petroleum Refiners
Ass'n v. FTC, 482 F.2d 672, 676 (D.C. Cir. 1973) (stating that the "[expressio unius]
maxim is increasingly considered unreliable"); cf. Hishon v. King & Spalding, 467
U.S. 69, 78 & n. 11 (1984) (applying the expressio unius theory only where the Court
found a detailed, carefully considered list of exemptions, from which one item was
notably absent). It is also an implausible view of 703(j), which was added to attract
conservative support for the civil rights bill in the Senate. See 110 CONG. REC. 12688-
12691 (1964) (Sen. Saltonstall). The conservatives, such as Senator Dirksen, did not
want to broaden the civil rights bill at all; 7030) was a narrowing provision, if
anything.
4' Indeed, Title VII went through many different stages. President Kennedy's ini-
tial job discrimination provision was weak. The House subcommittee strengthened it
with a broad mandate against discrimination based on race, religion, and national ori-
gin. See C. WHALEN & B. WHALEN, THE LONGEST DEBATE 37-38 (1985). It pro-
vided for enforcement by the Equal Employment Opportunity Commission (EEOC).
The full House Judiciary Committee weakened the job discrimination title by cur-
tailing the powers of the EEOC, but retained the forceful prohibition against "discrimi-
nation" on the basis of race, religion, and national origin. See id. at 57-58. The full
House amended 703(a)(1), (d) to prohibit sex discrimination-obviously a very dif-
ferent type of problem from race discrimination. The Senate added 703(h), (j). To
expect textual coherence from such piecemeal drafting is probably too much to demand
of the legislative process.
43 443 U.S. at 231-53 (Rehnquist, J., dissenting). Ronald Dworkin has cogently
from clear, however, because nowhere in the legislative history does any
member of Congress explicitly state opposition to both voluntary and
mandatory affirmative action programs. This is not surprising, as the
debates focused on government-compelled quotas. The Weber situation
was not discussed on the public record and most likely was not
anticipated.
The majority opinion largely ignored the intentionalist evidence
assembled by the dissenting opinion and countered with a modified in-
tentionalist argument: the purpose of Title VII, set forth in the House
Judiciary Committee report, was to obtain more jobs for blacks." That
purpose was thwarted in the 1970's by the continued effects of past
discrimination. To fulfill this statutory purpose, the Court reasoned it
should broadly validate voluntary affirmative action programs such as
the plan in Weber. This argument, however, subordinates one purpose
of Title VII-obtaining more jobs for blacks-to another-creation of a
color-blind society.4 5 Two central purposes of the statute conflict in the
Weber case, and the Court offered no persuasive justification to prefer
its purpose over the competing one.
While there is much more evidence relating to the historical per-
spective in Weber than there is in Smith v. Wade, the evidence points
in many different directions. In my opinion, the historical perspective
tilts toward Weber's interpretation, because the legislative history
reveals hostility to quotas generally and because the purpose most
broadly accepted in Congress was that of creating a color-blind soci-
ety.46 Hence, if I limited my consideration to the textual and historical
Power Co. 5 ' held that a job qualification test that was not demonstrably
discriminatory in purpose nonetheless would violate Title VII if it had
the effect of excluding a group on the basis of race. This decision un-
derscored the idea that results matter,5 2 but also generated a practical
dilemma for companies seeking to comply with Title VII. Even if they
were not treating blacks and other minorities differently from white
males, companies and unions-like those in Weber-faced potential Ti-
tle VII liability if the numbers of blacks and other minorities in their
workforce remained too low. Given the Supreme Court's endorsement
of voluntary programs, the natural response was voluntary affirmative
action programs such as the one in Weber.
This dynamic approach to the Weber problem is particularly per-
suasive because it recognizes not only that the very nature of the prob-
lem had changed since 1964, but also that the legal and societal context
of Title VII had changed. In 1964, the legal culture-legislators,
judges, administrators, and commentators-focused on how to root out
discrimination inspired by racial animus. People thought that rooting
out actual prejudice would create a color-blind society. The intellectual
focus changed over the next fifteen years, as the legal community came
to realize that discrimination could be just as invidious even when it
could not be established that prejudice was at its root. The concept of
the continuing effects of historical patterns of discrimination suggested
that current institutions might perpetuate discrimination even though
no one in those institutions remained personally prejudiced. This in-
sight was not a historical concern of the 1964 Act, but it evolved into a
current concern and was recognized in subsequent statutes, judicial de-
cisions, and commentary. 3
Indeed, the legal culture's rethinking of the concept of discrimina-
tion has entailed a more positive vision, in which voluntary affirmative
Patterson, 456 U.S. 63, 71-75 (1982); International Bhd. of Teamsters v. United
States, 431 U.S. 324, 350-52 (1977).
61 42 U.S.C. 2000e-5(g) (1982).
62 Stotts, 467 U.S. at 580-83.
63 See id. at 612 (Blackmun, J., dissenting).
tion 706(g) is undermined by the same precept that supported its reli-
ance on section 703(h): respect for legislative compromises. Even if the
historical record were less clear, the position of the Stotts dissenters that
section 706(g) allows flexible judicial relief is compellingly supported
by the evolution of Title VII and the changed circumstances outlined
above.65
The three perspectives implicated in dynamic interpretation illus-
trated by these cases suggest a continuum. In many cases, the text of
the statute will provide determinate answers, though we should trust
our reading of the text primarily when the statute is recent and the
context of enactment represents considered legislative deliberation and
decision on the interpretive issue. This is one end of the continuum: the
text controls. At the opposite end of the continuum are those cases
where neither the text nor the historical context of the statute clearly
resolves the interpretive question, and the societal and legal context of
the statute has changed materially. In those cases, the evolutive context
controls. In general, the more detailed the text is, the greater weight the
interpreter will give to textual considerations; the more recent the stat-
ute and the clearer the legislative expectations, the greater weight the
interpreter will give to historical considerations; the more striking the
changes in circumstances (changes in public values count more than
factual changes in society), the greater weight the interpreter will give
to evolutive considerations. The following model very roughly reflects
this continuum.
No. 92-261, 706, 86 Stat. 103, the Senate rejected an amendment by Senator Ervin
to prohibit government requirements of hiring goals or quotas. Senator Javits defended
the existing judicial and executive policy of flexible relief, including hiring goals. See
Stotts, 467 U.S. at 619-20 (Blackmun, J., dissenting).
e5 467 U.S. at 610-20 (Blackmun, J., dissenting); see id. at 612 & n.10 (as of
1984, all of the courts of appeals had construed 7 06(g) broadly); Rutherglen, Proce-
dures and Preferences:Remedies for Employment Discrimination,5 REv. LITIGATION
73, 79-82, 120-21 (1986) (courts have appropriately construed Stotts narrowly and con-
tinue to interpret 7 06(g) broadly). Recent Supreme Court interpretations of Title
VII suggest the viability of Weber and the narrow scope of Stotts. See Local 28 of the
Sheet Metal Workers Int'l Ass'n v. EEOC, 106 S. Ct. 3019, 3034 (1986) (plurality
opinion of Brennan, J., joined by Marshall, Blackmun & Stevens, JJ.) (rejecting nar-
row view of 706(g)); id. at 3054 (Powell, J., concurring) (intermediate view of
706(g)).
eral judges being no more than agents to enforce those contracts strictly.
The traditional legal process argument is that such judicial lawmaking
is "countermajoritarian" and so ought to be avoided in a democracy,
where important policy decisions ought to be made by the majoritarian
branches of government.
I shall articulate and respond to each of these arguments in turn,
but there are certain themes which run through all my responses. One
theme is a Madisonian view of the Constitution. Historical scholarship
suggests that our constitutional system of government was not meant to
be one of rigid separation of powers or pure majoritarianism.6 6 Instead,
the polity created by the Constitution requires a government that is
deliberative and promotes the common good, at least on important mat-
ters. Judicial lawmaking from statutes has a constructive role to play in
such a polity, especially in light of the tendency of the legislature to
produce too little up-to-date public-seeking policy and not to produce
well-integrated policies. The vision of a tripartite government and the
legitimacy of the system are not served by a straitjacketed theory of
statutory interpretation but are better served by a flexible approach
that is sensitive to current policy concerns. The final theme is jurispru-
dential. Interpretation is no longer automatically seen as an objective
and mechanical process of "discovering" historical meaning; instead,
the emerging view among historians, literary theorists, and legal schol-
ars is that interpretation itself inevitably involves the "creation" of
meaning from the interaction of the text, historical context, and evolu-
7
tive context.1
A. The FormalistArgument
When the Supreme Court interprets statutes, it often invokes a
strict formalist-sounding separation of responsibilities among the three
branches of government, with the role of courts merely being to discern
and apply -the "intent" of the legislature. Professor Thomas Merrill has
recently synthesized the Supreme Court's ad hoc approach and has
presented a more systematic formal defense of intentionalist statutory
interpretation." In brief, his argument is that the Constitution's sepa-
(1985).
69 Id. at 3, 19, 32-33.
70 U.S. CONST. arts. I, 1, III, 2 (emphasis added).
71 BLACK'S LAW DICTIONARY 809-10 (5th ed. 1979); see 1 W. BLACKSTONE,
COMMENTARIES ON THE LAWS OF ENGLAND 63-70, 85-88, 91-92 (1765).
72 U.S. CONST. art. III, 2, cl. 1 (emphasis added). Of course, even under this
first head of federal jurisdiction, there is federal common law, at least for "Cases...
arising under this Constitution." See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178
(1803). And the Supreme Court in this century has occasionally created federal com-
mon law from bare jurisdictional grants. See Textile Workers Union v. Lincoln Mills,
353 U.S. 448, 456-58 (1957) (jurisdiction granted to the Court by NLRA justifies
creation of federal common law of labor relations); In re Debs, 158 U.S. 564, 599
(1894) (federal common law power under the commerce clause to abate interstate
transportation nuisances).
73 U.S. CONST. art. III, 2, cl. 2.
74 See, e.g., United States v. Maine, 106 S. Ct. 951 (1986) (interpreting the doc-
trine of "ancient title"). In one celebrated line of cases, Illinois v. City of Milwaukee,
406 U.S. 91, 99-100, 104 (1972); Missouri v. Illinois, 200 U.S. 496 (1906), the Court
created a federal common law of interstate water use. Congress enacted a comprehen-
sive statutory regulation of this subject in 1972, and since then the Court has pulled
back its common law. See International Paper Co. v. Ouellette, 107 S.Ct. 805, 810
(1987); City of Milwaukee v. Illinois, 451 U.S. 304, 317-19 (1981).
75 U.S. CONST. art. III, 2, cl.2.
7 While there have been federal statutes governing some admiralty issues, this
remains a lively common law arena for the Court. See, e.g., American Export Lines,
Inc. v. Alvez, 446 U.S. 274, 275-76 (1980); Moragne v. States Marine Lines, Inc., 398
U.S. 375, 393-402 (1970).
7 U.S. CONsT. art. III, 2, ci. 1.
78 See, e.g., Clearfield Trust Co. v. United States, 318 U.S. 363, 367 (1943) (us-
ing federal common law to govern contract disputes involving the United States).
79 U.S. CONsT. art. III, 2, cl. 1.
80 Swift v. Tyson, 41 U.S. (16 Pet.) 1, 18-19 (1842) (creating federal common law
of commercial transactions in diversity suits), overruled, Erie R.R. v. Tompkins, 304
U.S. 64, 178-79 (1938). Although Swift's demise has reduced federal common lawmak-
ing in diversity cases, it has not eliminated it. See, e.g., Banco Nacional de Cuba v.
Sabbatino, 376 U.S. 398, 424-25 (1964) (applying the act of state doctrine to override
state law in a diversity case and to preclude inquiry into the public acts that a foreign
country committed within its territory).
81 See Merrill, supra note 68, at 38, 40-41.
82 For a sampling of the majority view that judges inherently have lawmaking
powers, see, e.g., Traynor, Quo Vadis, Prospective Overruling:A Question ofJudicial
Responsibility, 28 HASTINGS L.J. 533, 535-36 & n.7 (1977) (citing Lord Reid, The
Judge as Lawmaker, 12 J. Soc'Y PUB. TEACHERS L. (n.s.) 22 (1972)); White, The
Working Life of the Marshall Court, 1815-1835, 70 VA. L. REV. 1, 49-50 (1984).
reason for the relative powerlessness of the judiciary, explained Hamilton, is that, un-
like the legislature, the judiciary has no taxing or spending power and, unlike the exec-
utive, the judiciary has no independent enforcement power. Id.
" Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 866 (1824); see
THE FEDERALIST No. 78, at 469 (A. Hamilton) (C. Rossiter ed. 1961) ("The courts
must declare the sense of the law; and if they should be disposed to exercise WILL
instead of JUDGMENT, the consequence would equally be the substitution of their
pleasure to that of the legislative body.").
89 As I did above in the discussion of the formalist model, I assume here that a
formalist who believes we should interpret statutes to find original intent would inter-
pret the Constitution to find its original meaning.
90 1 W. BLACKSTONE, supra note 71, at 68-70.
91 Id. at 61; see Heydon's Case, 76 Eng. Rep. 637, 638 (Ex. Ch. 1584).
92 1 W. BLACKSTONE, supra note 71, at 91; see College of Physician's Case, 123
Eng. Rep. 928 (C.P. 1609).
9 THE FEDERALIST No. 78, at 470 (A. Hamilton) (C. Rossiter ed. 1961); see D.
EPSTEIN, supra note 66, at 189 (arguing that Hamilton suggested that "courts may be
lenient against the lawmakers' intention").
" THE FEDERALIST No. 78, at 470 (A. Hamilton) (C. Rossiter ed. 1961); see D.
EPSTEIN, supra note 66, at 188-90 (stating that the Framers generally endorsed a
liberal, equity-based approach to statutory interpretation).
95 See Blatt, The History of Statutory Interpretation:A Study in Form and Sub-
stance, 6 CARDOZO L. REV. 799, 802-05 (1985) (discussing Blackstone's view of statu-
tory interpretation).
The general discussion in this section is indebted to N. HORN, H. KoTz, & H.
tory law is considered the only formal source of authority and judges
have no historical common law powers, civil law countries have a tradi-
tion of legislative supremacy that is stronger than it is in the United
States. Indeed, in the eighteenth and nineteenth centuries, European
civil law systems were even reluctant to vest courts with the power to
interpret statutes.97 By the late nineteenth century, the rhetoric of stat-
utory interpretation in civil law countries was strongly intentionalist.98
Over time, however, the civil law has recognized three instances in
which interpretation is not a search for legislative intent. The first in-
stance is the "unclear statute," where neither the statutory text nor its
legislative history provides a determinate answer. The second instance
is "lacunae," or gaps in the statute's coverage. 9 The civil law codes
typically instruct judges to interpret unclear statutes and fill in statu-
tory lacunae by looking to analogous statutory rules, general principles
of the state's legal order, and the justice or equity of the case."' 0 The
third instance is the "anachronistic statute," whose meaning changes in
response to significant changed circumstances."0 "A law, especially if it
is old, need not be interpreted in the spirit with which it was con-
ceived," but instead may "be rejuvenated by an interpretation con-
forming to the spirit of the times in which it is to be applied," accord-
10' Pound, Mechanical Jurisprudence,8 COLUM. L. REv. 605 (1908); see Cox,
For the effect of the new jurisprudence on European theories of statutory interpreta-
tion, see, e.g., F. G-NY, MkrHODE D'INTERPRETATION ET SOURCES (1899); P. HECK,
BEGRIFFSBILDUNG UND INTERESSENJURISPRUDENZ (1932).
"I B. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 166 (1921) (pub-
lished form of the 1920 Storrs Lectures at Yale); see J. FRANK, LAW AND THE MOD-
ERN MIND 138-41, 207-09 (1st ed. 1930); H.L.A. HART, THE CONCEPT OF LAW 119-
37 (1961); White, supra note 82, at 49-50.
112 "[fln truth, all the Law is judge-made law. The shape in which a statute is
imposed on the community as a guide for conduct is that statute as interpreted by the
courts. The courts put life into the dead words of the statute." J. GRAY, THE NATURE
AND SOURCES OF THE LAW 125 (1921); see R. POUND, supra note 109, at 170-75
(arguing that judicial interpretation is always required to fill in gaps left by statutes).
113 See Radin, Statutory Interpretation, 43 HARV. L. REV. 863, 871-72 (1930).
But see Landis, A Note on "Statutory Interpretation," 43 HARV. L. REV. 886, 892
(1930) (disagreeing with Radin's reductionistic view of statutes).
11 See Radin, supra note 113, at 871.
115 See Landis, Statutes and the Sources of Law, in HARVARD LEGAL ESSAYS
213 (1934); see also Pound, Common Law & Legislation, 21 HARV. L. REV. 383, 383-
86 (1908) (arguing that courts should receive statutes fully into the body of law and
hold them of superior authority to judge-made rules on the same general subject);
Stone, The Common Law in the United States, 50 HARV. L. REV. 4, 13 (1936) ("[N]o
adequate reason [exists] for our failure to treat a Statute much more as we treat a
judicial precedent, as both a declaration and a source of law, and as a premise for legal
reasoning.").
"I Recent analyses of the incoherence of legislative intent include R. DWORKIN,
supra note 1, at 317-27; Moore, supra note 14, at 348-58. But see R. DICKERSON,
supra note 4, at 73-74 (arguing that group intent, although different from the constitu-
ent individual intents, can be identified). Recent analyses of the decisionmaking discre-
tion of judges interpreting statutes include S. BURTON, AN INTRODUCTION TO LAW
AND LEGAL REASONING 93-98 (1985) (arguing that judicial discretion maintains legiti-
macy so long as it is adequately supported by authoritative rules and principles);
H.L.A. HART, supra note 111, at ch. 7 (stating that the "open texture" of the lan-
guage of statutes affords discretion in interpretation); Posner, supra note 7, at 186-90
(arguing that legal formalism and realism have no application to statutory law).
with the text, which will often provide determinate answers. Where the
text does not provide a clear answer, the court should determine what
"mischief" the legislature had targeted in passing the statute and then
should interpret the statute to attack that mischief as it is manifested
117
under current circumstances.
The approaches to statutory interpretation suggested by the legal
realists and their intellectual relatives, the legal process thinkers, 1 8
demonstrate that respect for the Constitution's separation of powers,
with Congress as the supreme lawmaking institution, does not philo-
sophically or logically compel courts to adhere strictly to intentionalist
statutory interpretation. Indeed, developments in the new "jurispru-
dence of interpretation" of the last two decades decisively undermine
the coherence of the formalist argument for intentionalist interpretation
and support my dynamic model. For the hard cases, interpretation will
inevitably be affected by the current context of the judicial interpreter,
and the greater the distance between the current and the historical con-
text of the statute the more unlikely it is that intentionalist interpreta-
tion is even possible.1 9
Earlier in the century, the legal realists attacked intentionalist or
literalist interpretation of legal texts by invoking the indeterminacy of
language, especially the concept-oriented terms, such as "malice" or
"discrimination," favored by statutory drafters. 2 If the drafter's con-
. 217 Radin, A Short Way with Statutes, 56 HARV. L. REV. 388, 388-89, 421-22
(1942) (citing to Heydon's Case, 76 Eng. Rep. 637 (Ex. Ch. 1584)) (arguing that
statutory law is primarily a corrective for flaws in the common law); see Blatt, supra
note 95, at 829-30 (discussion of mischief rule). Other legal realists set forth similar,
but even less precise, theories of dynamic statutory interpretation. See, e.g., Llewellyn,
supra note 5, at 401-06 (listing and debunking canons of statutory construction);
Frank, Words & Music: Some Remarks on Statutory Interpretation, 47 COLUM. L.
REV. 1259, 1269-72 (1947) (comparing statutory interpretation to the interpretation of
musical works by performers).
118 H. HART & A. SACKS, supra note 4, at 1410-17, "domesticated" the realists'
approach to statutory interpretation by tying it to an idealized vision of legislative
'"purposes."
119 The following discussion has greatly profited from two recent multidisciplinary
symposia on interpretation, though almost exclusively constitutional interpretation, in
InterpretationSymposium, 58 S. CAL. L. REV. 1 (1985); Law and Literature:Sympo-
sium, 60 TEX. L. REV. 373 (1982), and the recent skeptical caveats in Posner, Law &
Literature:A Relation Reargued, 72 VA. L. REV. 1351, 1360-61 (1986) (arguing that
literary and legal interpretation are fundamentally different).
120 See Holmes, The Theory of Legal Interpretation, 12 HARV. L. REV. 417, 419
(1899) ("We do not inquire what the legislature meant; we ask only what the statute
means."); see also Chafee, The Disorderly Conduct of Words, 41 CoLUM. L. REV. 381
(1941) (noting four lessons from the study of language that espouse its indeterminacy:
the varied functions of language; the uncertain link between the word and the object;
the changing meanings over time; and the hierarchical nature of words). For a recent
version of this attack, see Moore, The Semantics ofJudging, 54 S. CAL. L. REV. 151,
180-81 (1981) (arguing that the linguistic context of legal texts makes semantic
tion and Literary Theory: Some Common Concerns of an Unlikely Pair,32 RUTGERS
L. REV. 676, 683-88 (1980); Dworkin, Law as Interpretation, 60 TEx. L. REv. 527,
527 (1982) (legal practice is fundamentally an exercise in interpretation, and "so con-
ceived is deeply and thoroughly political"); Hoy, supra note 11, at 137-38; Levinson,
Law as Literature, 60 TEx. L. REv. 373, 377 (1982) ("If we consider law as litera-
ture, then we might better understand the malaise that afflicts all contemporary legal
analysis."); White, The Text, Interpretation & Critical Standards, 60 TEx. L. REv.
569, 584 (1982) (meaning of texts emerges from a complex interrelation between text
and context, including that of the interpreter).
122 Hutchinson & Morgan, The Semiology of Statutes (Book Review), 21 HARV.
J. LEGis. 583, 593 (1984).
121 H. GADAMER, supra note 67, at 337. While Gadamer's work has provoked
debate, it has drawn a solid group of influential defenders. See D. Hoy, supra note 11,
at 41-100; F. KERMODE, supra note 11, at 26-28; J. WEINSHEIMER, supra note 11.
Taking Gadamer's theory several steps further, Stanley Fish, in Is THERE A TEXT IN
THIs CLASS? 94 (1980), argues that readers are not "passive and disinterested com-
prehenders of a knowledge external to them" and are "at every moment creating the
experiential spaces into which a personal knowledge flows."
12 D. Hoy, supra note 11, at 167. See generally F. KERMODE, THE GENS.mS OF
SECRECY: ON THE INTERPRETATION OF NARRATIVE (1979). Biblical scholarship
(which inspired some of these modern literary theorists) distinguishes between "exege-
sis," the discovery of a text's historical meaning, and "hermeneutics," the application of
the text to current problems and circumstances.
128 See White, supra note 121, at 569.
12 Nelson, History and Neutrality in Constitutional Adjudication, 72 VA. L.
REV. 1237, 1240-45 (1986).
12 The literary theories of H. Gadamer and F. Kermode, see supra notes 11, 67,
123-24, fall between the views of authorial intent of E.D. Hirsh in THE AIMS -OF
INTERPRETATION (1976) and VALIDITY OF INTERPRETATION (1967) and the un-
bounded contextualism of the deconstructionist theory articulated by J. Derrida in OF
GRAMMATOLOGY (G. Spivak trans. 1976). See also J. CULLER, supra note 11.
128 Cf A MATTER OF PRINCIPLE, supra note 10, at 119.
B. Economic Arguments
In addition to the new jurisprudence of interpretation described
above, another school of legal philosophy has contributed to theories of
statutory interpretation: law and economics. In a seminal article,
Professors William Landes and (now Judge) Richard Posner argued
that if one assumes the Constitution embodies a simple economic/inter-
est group vision of government, the independent "judicial Power" in
article III can be justified as the efficient enforcement mechanism for
legislative deals. 130 Their argument is as follows. An economic theory
of legislation posits that statutes are essentially "contracts" between in-
terest groups and Congress. Congress passes laws in return for pay-
ments in the form of campaign contributions, votes, bribes, and
promises. "In short, legislation is 'sold' by the legislature and 'bought'
by the beneficiaries of the legislation." ' If statutes are contracts, en-
forcement becomes a problem. In a private market, contracts are en-
forced by legal sanctions or the threat of invoking them. In the market
for public contracts-statutes-the role of the independent judiciary is
to assure interest groups that their statutory bargains will be fulfilled.
This guarantees the "stability . . . necessary to enable interest group
politics to operate in the legislative arena." The bottom line, therefore,
is that "an independent judiciary" which enforces statutes according to
129 See Schauer, Easy Cases, 58 S. CAL. L. REV. 399, 414-20 (1985).
110 Landes & Posner, The Independent Judiciary in an Interest-Group Perspec-
tive, 18 J.L. & ECON. 875, 877-79 (1975).
"' Id. at 877. The application of economic theory to explain public conduct is
called "public choice theory" and is explained in J. BUCHANAN & G. TULLOCK, THE
CALCULUS OF CONSENT (1962); D. MUELLER, PUBLIC CHOICE (1979); see Becker, A
Theory of Competition Among PressureGroupsfor PoliticalInfluence, 98 Q.J. ECON.
371 (1983) (arguing that political equilibrium depends on the efficiency of each group
in producing pressure, the effect of additional pressure on their influence, the number
of persons in different groups, and the deadweight cost of taxes and subsidies); Stigler,
The Theory of Economic Regulation, 2 BELL J. ECON. & MGMT. SCI. 3 (1971) (argu-
ing that industrial regulation operates primarily for the benefit of the affected
industry).
I" Landes & Posner, supra note 130, at 894 & n.36; cf.Macey, supra note 4, at
233-34 (describing the Landes and Posner model as one that accepts the Constitution as
"designed to promote interest group domination of the legislative process [whereby] the
judiciary, by enforcing the deals struck by such groups, [becomes] part of this design").
18 See Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE
L.J. 1013, 1038-40 (1984) (arguing that our dualistic lawmaking system allows for
individual liberalism while protecting against political advantage-taking by well-organ-
ized special interest groups); Sunstein, Interest Groups in American Public Law, 38
STAN. L. REV. 29, 45-48 (1985) (Framers' view included both deliberative republican
as well as interest-group liberal components.).
139 C. BEARD, AN ECONOMIC INTERPRETATION OF THE CONSTITUTION OF THE
UNITED STATES 188 (1913) ("[The Constitution] was an economic document drawn
with superb skill by men whose property interests were immediately at stake; and as
such it appealed directly and unerringly to identical interests in the country at large.").
Beard's critics include R. BROWN, CHARLES BEARD AND THE CONSTITUTION 73-92
(1956) (arguing that a delegate-by-delegate analysis of the economic interests of the
members of the Convention discredits Beard's conclusions); F. McDONALD, WE THE
PEOPLE: THE ECONOMIC ORIGINS OF THE CONSTITUTION 38-92 (1958) (questioning
Beard's assumption that there was a fundamental antagonism between personalty and
realty interests at the Philadelphia Convention); E.MORGAN, BIRTH OF THE REPUB-
LIC, 1763-89, at 130-33 (1956) (stating that public spirit, rather than private selfish-
ness, motivated the Founding Fathers). See generally ESSAYS ON THE MAKING OF THE
CONSTITUTION (L. Levy ed. 1969); THE REINTERPRETATION OF THE AMERICAN
REVOLUTION 1763-1789 (J. Greene ed. 1968).
140 See Elkins & McKitrick, The Founding Fathers: Young Men of the Revolu-
tion, 76 POL. SCI. Q. 181, 203-06 (1961) (generational differences were critical; Feder-
alists tended to be young turks seeking to instill their energetic vision in the polity,
while Anti-Federalists were older and more inert); Kenyon, Men of Little Faith: The
CAL THOUGHT AND THE ATLANTIC REPUBLICAN TRADITION 506-52 (1975); Hutson,
Country, Court and Constitution: Antifederalism and the Historians, 38 WM. &
MARY Q. (3d Ser.) 337, 356-68 (1981) (portraying Anti-Federalists as sharing with
the Federalists misgivings about direct democracy); Shalhope, Toward a Republican
Synthesis: The Emergence of an Understandingof Republicanism in American Histo-
riography, 29 WM. & MARY Q. (3d Ser.) 49, 72-73 (1972) (stating that both the
Federalists and the Anti-Federalists firmly believed themselves to be the true servants
of republicanism). For a recent analysis, see Michelman, supra note 8, at 17-20.
142 THE FEDERALIST No. 10 (J. Madison) (C. Rossiter ed. 1961); cf. A.
and balances among various officials and the extended process of law-
making and law application would, Madison hoped, ensure public-re-
garding deliberation before laws were enacted." Bruce Ackerman has
argued that the lesson of The FederalistNo. 10 is that the Constitution
contemplates more than just interest group pluralism."' 5 Ackerman's
essay is realistic in appreciating that groups sharing similar economic
interests or political views will try to effectuate those interests or views
through the government, sometimes causing injustice to individuals or
undermining the public good. Often legislation will represent nothing
more than the triumph of faction. But the aspiration of the Constitution
is that government do more than merely acquiesce to the demands of
powerful factions. The Constitution expects that government will be
deliberative, thereby compelling factions to consider the interests of
others and the public welfare, and will at least occasionally rise above
factions to implement and expand the common good.
Ackerman's vision of a Constitution that contemplates both liberal
and republican traditions not only is historiographically superior to a
simple interest group view of the Constitution, but also has current
descriptive value. It reconciles two distinct scholarly traditions that ana-
lyze legislation. While many statutes are little more than private inter-
est compromises, or even deals, 146 most cannot be so narrowly defined.
Descriptive political studies of Congress strongly dispute any simple-
interest group model of legislation. John Kingdon and other scholars
have argued that normally the central participants in the legislative
process are not private-seeking interest groups, but are instead public-
seeking participants-the President and the Cabinet, agencies and bu-
reaucrats, legislators and their staffs, academics and experts, the media
and public opinion, and political parties.1 47 A recent empirical study
indicates that the influence of interest group pressure on federal legisla-
'14
tion ranges from "insignificant to determinative.
(1984); see also A. MAASS, CONGRESS AND THE COMMON GOOD 5 (1983) (stating
that "[i]nstead of conducting a political process that simply aggregates and reconciles
narrow group or individual interests, government conducts a process of deliberation and
discussion that results in decisions that are based on broader community interests");
Elliott, Ackerman & Millian, Toward a Theory of Statutory Evolution: The Federali-
zation of Environmental Law, 1 J.L. ECON. & ORG. 313, 319-21 (1985).
148 K. SCHLOZMAN & J. TIERNEY, ORGANIZED INTERESTS AND AMERICAN DE-
MOCRACY 317 (1986). Two excellent and recent critiques of the capacity of public
In recent works, Judge Posner endorses the idea that statutory in-
terpretation in our constitutional system often cannot be limited to in-
tentionalism. Thus, generally worded statutes such as the Sherman Act
and section 1983 are not governed by his principle of imaginative re-
construction of the legislature's intent and should be interpreted to
achieve the most reasonable results in light of current policy. 15 0 Judge
Posner has suggested three reasons for reading such generally worded
statutes dynamically. First, there is often not enough information to
choice theory to explain the legislative process are Farber & Frickey, The Jurispru-
dence of Public Choice, 65 TEX. L. REV. 873 (1987), and Mashaw, Positive Theory
and Public Law (Feb. 1986) (Rosenthal Lectures, Northwestern University Law
School).
149 See generally W. ESKRIDGE & P. FRICKEY, STATUTES AND THE CREATION
OF PUBLIC POLICY ch. 1, at 1 (1987) (the story of the Civil Rights Act of 1964 and
the procedures of statute creation).
1I See R. Posner, supra note 3, at 288; see also Forrester v. White, 792 F.2d 647,
658-59 (7th Cir. 1986) (Posner, J., dissenting) (dynamic interpretation of 1983),
cert. granted, 107 S. Ct. 1285 (1987); United States v. Wolf, 787 F.2d 1094, 1100-01
(7th Cir. 1986) (Posner, J.) (suggesting that the term "immoral purpose" as used in
the Mann Act, 18 U.S.C. 2421 (1982) should be dynamically interpreted in light of
this country's current sexual mores). See also Easterbrook, supra note 133, at 14-17
(arguing that "public interest" statutes, which are usually generally worded, ought to
be interpreted expansively).
determine how the original legislature would have wanted the statute to
be interpreted. Reconstructing the historical intent of a relatively recent
statute, as in Weber, is difficult enough; where the statute is very old
and circumstances have changed dramatically, as in Smith v. Wade, it
is well-nigh impossible. Second, the broad phrasing represents an im-
plicit delegation of lawmaking authority to the courts; just as Congress
explicitly delegates lawmaking responsibilities to administrative agen-
cies, so it implicitly delegates similar lawmaking ireedom to courts
when it enacts generally worded common law statutes. 51 Most re-
cently, Judge Posner has suggested a third reason for reading statutes
such as the Sherman Act dynamically: it makes sense as a matter of
policy. 152 Courts would not only fail in the effort to reconstruct the
original intent and purposes of the Sherman Act, but the national econ-
omy would surely suffer as a result of any serious attempt to imple-
ment the original legislative expectations. When Congress has basically
dropped a problem into the collective judicial lap, with imprecise and
only general directions, then it makes sense for courts to develop that
statute in accordance with contemporary, rather than purely historical,
policy. I suggest, first, that these reasons for more flexible interpreta-
tion cannot be limited to generally worded statutes and, second, that
this final reason is a powerful economic argument for dynamic inter-
pretation in general.
These reasons apply not only to common law statutes such as sec-
tion 1983 and the Sherman Act, but also to more detailed statutes such
as Title VII. Congress's failure to define "discriminate" in Title VII
permits-indeed, calls for-just as much judicial creativity as its prohi-
bition of "restraints of trade" in the Sherman Act. In both instances,
Congress has set forth general policy and has left courts substantial
freedom to adapt the general language to changed circumstances. Title
VII is, in that sense, a common law statute. The difference between
Title VII and the Sherman Act is mainly the degree to which the statu-
tory text limits judicial creativity: the very old, generally phrased text of
the Sherman Act places few limits on courts, while the more recent text
151 See R. POSNER, supra note 3, at 288. I find this reason less than completely
satisfying. One searches in vain through the legislative history of 1983, for example,
for any suggestion that Congress thought it was delegating enormous law-creating pow-
ers to courts. Contemporary treatises on statutory interpretation as of 1871 mention no
such implied delegation. See 1 W. BLACKSTONE, supra note 71, at 63-70, 85-88; T.
SEDGWICK, A TREATISE ON THE RULES WHICH GOVERN THE INTERPRETATION AND
APPLICATION OF STATUTORY AND CONSTITUTIONAL LAw 225-446 (1857) (describ-
ing general rules of statutory construction and manner of interpreting specific types of
statutes).
152 Posner, supra note 7, at 199.
ues, 92 YALE L.J. 1537, 1552-53 (1983) [hereinafter Regulation] (discussing historical
changes in the conditions that prompted the creation of the Federal Communications
Commission); Stewart, The Reformation of American Administrative Law, 88 HARv.
L. REV. 1667, 1723-56 (1975) (discussing evolution of judicial treatment of agencies'
duties generally).
160 Compare Meltzer, supra note 46 (arguing that Weber is wrong because it
violates the original legislative deal) with Kitch, The Return of Color Consciousness to
the Constitution: Weber, Dayton, and Columbus, 1979 Sup. CT. REV. 1, 12-13 (argu-
ing that Weber is wrong because it hurts blacks and contributes to race-consciousness).
HARv. L. REV. 592 (1985); cf. National R.R. Passenger Corp. v. Atchison, T. & S.F.
Ry., 470 U.S. 451, 467-69 (1985) (statute creating corporation with authority to con-
tract did not bind federal government contractually to railroads).
162 See Regulation, supra note 159, at 1551. I note here the internal incoherence
of any argument that favors intentionalist statutory interpretation based on the premise
that statutes are like contracts. Whereas the intent of the legislature is critical to statu-
tory interpretation, the governing intent in a contract is the mutual intent of the con-
tracting parties.
1 See U.C.C. 2-208 (1977); RESTATEMENT (SECOND) OF CONTRACTS
222-23 (1981).
164 See U.O.C. 1-203 (duty of good faith), 2-302 (avoidance of enforcing un-
conscionable terms) (1977); cf Dawson, Effects of Inflation on Private Contracts in
Germany, 1914-1924, 33 MICH. L. REV. 171 (1934) (German courts devised rules of
revaluation of contract prices during hyperinflation period).
16I See Aluminum Co. of Am. v. Essex Group, Inc., 499 F. Supp. 53 (W.D. Pa.
1980); Krull v. Henry, [1903] 2 K.B. 748; U.C.C. 2-615 (excuse by failure of pre-
supposed conditions), 2-616 (procedure on notice claiming excuse) (1977); RESTATE-
MENT (SECOND) OF CONTRACTS 261 (1981).
168 See E. FARNSWORTH, CONTRACTS 523-25 (1982).
167 See MacNeil, The Many Futures of Contracts, 47 S. CAL. L. REV. 691, 720-
26 (1974); Scott & Goetz, The Mitigation Principle: Toward a General Theory of
Contractual Obligation, 69 VA. L. REV. 969, 1001-23 (1983).
1I" The discussion in this paragraph is inspired and informed by the seminal
treatment in 0. Fiss, INJUNCTIONS ch. 2 (1972).
169 See Evans v. Jeff D., 106 S. Ct. 1531, 1537 n.12 (1986); Firefighters Local
Union No. 1784 v. Stotts, 467 U.S. 561, 576 n.9 (1984); United States v. Swift & Co.,
286 U.S. 106, 114 (1932). There is a distinction in the case law between "interpreting"
and "modifying" a consent decree. The Court has favored an originalist approach for
interpreting the "four comers" of a consent decree, see United States v. Armour & Co.,
402 U.S. 673, 681-82 (1971), but the cases cited above give courts the power to modify
the decree to reflect changed circumstances.
preme Court Decisions: 1945-1957, 71 HARV. L. REV. 1324, 1332-36 (1958). The
standard source on the procedural obstacles is W. OLESZEK, CONGRESSIONAL PROCE-
DURES AND THE POLICY PROCESS (2d ed. 1984). See also B. Oppenheimer, Congress
& the New Obstructionism:Developing an Energy Program, in CONGRESS RECONSID-
ERED 275 (L. Dodd & B. Oppenheimer eds. 2d ed. 1981) (asserting that procedural
obstacles have become more troublesome after the procedural "reforms" in Congress
agree with affirmative action,178 yet there has been no serious effort to
overrule the Weber decision legislatively. Any proposal to do so would
be highly conflictual, with intensely interested groups on either side of
the issue, giving members of Congress substantial incentives to avoid
taking stands on minority rights issues.1 Even if a bill to overrule
Weber had majority support in Congress, it would probably face insur-
mountable procedural obstacles."8 Whatever the preferences of a ma-
jority of the country, or even of the Congress, a statute overruling
Weber is highly unlikely.
In short, legislative inertia means that only occasionally and ad-
ventitiously will Congress respond to judicial statutory interpretations
at odds with original intent or purpose.1 8 1 As Calabresi suggests, this
reality leaves the countermajoritarian difficulty unsolved, but amelio-
rated: judicial lawmaking power only shifts the "burden of inertia"
187 For example, most Americans still seem to identify with the plight of Brian
Weber, the white male who did not get into the training program because of affirma-
tive action, and they have no sympathy for the prisoner in Smith v. Wade who wanted
punitive damages for harm caused him while in prison.
188 See Brest, Interpretationand Interest, 34 STAN. L. REv. 765, 770-73 (1982).
changed circumstances very probably have not changed popular attitudes-the Weber
case is a good example. See supra note 178. Another is that typically the result will be
one of double indeterminacy: the intentionalist interpreter will not be able to prove that
the original majority persists, while the dynamic interpreter will not be able to prove
that subsequent developments represent a new majority will.
1I The issues in the leading case, Davis v. Bandemer, 106 S. Ct. 2797, 2810-11
(1986) (stating that disproportionate representation is not in itself discrimination and is
therefore not prima facia unconstitutional), are analyzed in Symposia: Gerrymandering
and the Courts, 33 UCLA L. REV. 1 (1986). See also Note, The ConstitutionalIm-
perative of Proportional Representation, 94 YALE L.J. 163, 165, 172-75 (1984)
(grounding objection to a lesser degree of protection against gerrymandering in a belief
that "[p]roportional representation is the only system that fully achieves the underlying
fives are in office, public choice theory predicts that their incentives will
lead them away from majoritarian preferences and that, in any event,
the rules created by a legislature will often fail to reflect majority pref-
erences because of procedural manipulations."9 2 In fact, there is a lively
but controversial line of neo-Beardian scholarship which argues that
the Constitution is either antimajoritarian or, at least, represents a lim-
ited democracy in which majoritarian preferences are not automatically
reflected in legislative results.19 s
Had the Framers favored, and the Constitution embodied, a strict
majoritarianism, the system of "direct democracy," in which people
vote on statutory proposals, might have been appropriate. Yet direct
democracy was considered and rejected in favor of representative de-
mocracy. A Madisonian vision of the Constitution explains this result
and suggests that the deliberative process of lawmaking seeks to trans-
form private preferences, not just reflect them.'" Madison's Federalist
No. 10 is the best exposition of this reasoning: the main danger of a
direct democracy is that temporary majorities might enact laws which
are unjust to the minority and not in the public interest.1 95 Structurally,
a representative government better protects against this danger because
it is able "to refine and enlarge the public views by passing them
through the medium of a chosen body of citizens, whose wisdom may
best discern the true interest of their country, and whose patriotism and
love of justice will be least likely to sacrifice it to temporary or partial
considerations."' 96 Madison claimed that "it may well happen that the
public voice, pronounced by representatives of the people, will be more
consonant to the public good than if pronounced by the people
' x9 7
themselves.'
(similar argument in defense of our bicameral legislature, emphasizing that the Senate,
which was not to be popularly elected, could provide seasoned deliberation to temper
the majoritarian impulses of the House).
198 See Sunstein, supra note 189, at 1130 & n.5.
" A. BICKEL, supra note 171, at 51; see also id. at 27-28 (leaving open the
question whether we may want a system of government that, on occasion, imposes a
principle upon a "consistent and determined majority"); M. PERRY, THE CONsTrru-
TION, THE COURTS AND HUMAN RIGHTS: AN INQUIRY INTO THE LEGITIMACY OF
CONSTITUTIONAL POLICYMAKING 146-62 (1982) (applauding judicial activism that
leads to protection of those whose political voice is muted, even if the political process
were to "persist in transgressing the human rights declared by the court").
200 Until 1913, when the seventeenth amendment was ratified, each state legisla-
ture selected the state's U.S. senators. U.S. CONST. amend. XVII, 1.
201 THE FEDERALIST No. 78, at 467 (A. Hamilton) (C. Rossiter ed. 1961).
206 See, e.g., A MATTER OF PRINCIPLE, supra note 10, at 321-23 (depicting the
legislative process as one characterized by an inherent lack of consensus and direction);
see also infra notes 214-16 and accompanying text.
207 Dodd, Congress, the Constitution, and the Crisis of Legitimation, in CON-
GRESS RECONSIDERED 401-405 (L.,Dodd & B. Oppenheimer eds. 1977) (discussing the
gradual shift of power to subcommittees during the 1960's and 1970's and suggesting
that this shift will ultimately inhibit congressional response to changing conditions).
208 J.KINGDON, supra note 147, at 48-74 relying on Cohen, March & Olsen, A
Garbage Can Model of OrganizationalChoice, 17 ADMIN. SCI. Q. 1 (1972)).
209 Monroe v. Pape, 365 U.S. 167, 174-80 (1961) (holding that the language of
section 1983 does not exclude actions by a policeman who can show no authority under
state law, custom, or usage to do what he did), overruled on other grounds, Monell v.
New York City Dep't of Social Servs., 436 U.S. 658, 701 (1978).
rights. Little of this would have been achieved through the legislative
process alone.
The other two biases of legislative policymaking are its tendency to
avoid or defer hard political choices, resulting in fragmented policy, and
its tendency covertly and subtly to distribute advantages to a favored
group, resulting in unfair policy. 10 Public choice theory posits that
Congress will avoid conflictual demand patterns by means of three
strategies."' First, Congress may delegate hard political choices to
agencies, which are often "captured" by the regulated interests. Second,
the legislature may ratify a compromise acceptable to the relevant inter-
est groups. Third, and most subtly, Congress may adopt evasive strate-
gies, such as leaving key terms ambiguous or conveniently obscuring the
nature of an interest group's distribution behind the veil of some stated
public purpose. The cumulative effect of these three strategies is that
favored interest groups may profit at the expense of the public and that
policy becomes a congeries of ad hoc compromises.
A similar view is espoused by institutional process theorists. 1 2
Congress tends to be decentralized much, if not most, of the time,
thereby encouraging routine policymaking by "subgovernments" con-
sisting of subcommittee members, bureaucrats, and lobbyists interested
in the particular issue.21 3 "Routine" legislation is legislation in which
the President, Congress, and the political parties do not become actively
involved and is generally controlled by these subgovernments pushing
government policy toward distributions for favored interests. More
publicized legislation will often reflect compromises with these sub-
groups and delegation of future lawmaking responsibilities to them.
This process, in which Congress defers policy choices or secretly
distributes benefits to organized groups, does little to contribute to the
legitimacy of our government. Courts cannot, under conventional con-
stitutional theory, invalidate such interest group arrangements, but they
can at least inject a dynamic deliberative process into statutes that avoid
or hide tough policy choices. For example, Congress avoided many con-
29 (2d ed. 1985) (arguing that structural policies are made in subcommittees and that
Congress is as concerned with how it looks to its constituents as it is with the substance
of created law); R. RIPLEY & G. FRANKLIN, CONGRESS, THE BUREAUCRACY AND
PUBLIC POLICY 6-10, 13-28 (4th ed. 1987) (stating that the complexity of federal poli-
cymaking leads to delegation of power where Congress "allows the executive branch
freedom to specify policy content of legislation"); R. RIPLEY, CONGRESS: PROCESS AND
POLICY 4-22 (1977) (discussing the congressional committee system and delegation of
power to administrators).
213 See R. RIPLEY & G. FRANKLIN, supra note 212, at 8-11.
214 443 U.S. 193, 204-09 (1979) (holding that a race-conscious statute is not nec-
essarily discriminatory where it is narrowly tailored to redress past discrimination).
215 467 U.S. 561, 576-81 (1984).
216 See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Ins. Co., 463 U.S. 29, 51-
57 (1983) (objecting to the National Highway Traffic Safety Administration's rescis-
sion of its newly adopted passive restraint requirement for the manufacture of new
cars); Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 748-49 (1983) (limit-
ing NLRB power to seek cease and desist order against a state court lawsuit); Greater
Boston Television Corp. v. FCC, 444 F.2d 841, 850-53 (D.C. Cir. 1970) (leading case
for the "hard-look" doctrine); Sunstein, Deregulation and the Hard-Look Doctrine,
1983 Sup. CT. REV. 177, 181-84, 206-13 (examining the hard-look doctrine under
which courts review the reasonableness of an agency's exercise of its rulemaking
discretion).
specific fact situations, thereby enabling them to focus their policy and
to change it incrementally.
The first two responses to concerns about judicial imposition of
personal values have an analogical appeal: if we allow lawmaking by
agencies in statutory matters and by courts in nonstatutory matters, we
should allow lawmaking by courts in statutory matters. The third re-
sponse is that the adjudicative process will minimize the imposition of
values idiosyncratic to individual jurists, because it is incremental and
conventional.23 0 Consider the process by which the Supreme Court
came to interpret section 1983 when it found municipalities liable for
civil rights violations.23 1 The Court's original view that municipalities
could not be sued under section 1983 was subjected to unfriendly criti-
cal scrutiny2 2 and even lower court evasion 23 -thereby justifying the
Court's reconsideration of the issue in 1978.234 Indeed, the interpretive
process continues, inevitably influenced by the courts' continuing expe-
rience with section 1983.23' If the specific language in section 1983 had
excluded municipal liability, the issue would not have been the object of
litigation, and proponents of municipal liability would have taken their
case to the legislature. If the issue had not been a relatively important
societal concern, it probably would not have been litigated extensively
230 See generally S. BURTON, supra note 116, at 191-92, 199-215 (discussing le-
"5 Tarantino v. North Carolina, 639 F. Supp. 661, 670-71 (W.D.N.C. 1986)
(detective's decision to search is not policy for the purposes of section 1983); Hornung
v. Village of Park Forest, 634 F. Supp. 540, 545-46 (N.D. Ill. 1986) (elaborating on
pleading requirements necessary to state a 1983 claim against a municipality); Kime
v. Wise, 634 F. Supp. 514, 515-17 (N.D. Ohio 1985) (distinguishing official municipal
policy or custom from an isolated act).
enough to reach the Supreme Court or, if it reached the Court, it might
not have been decided on the merits. Just as the common law is built
by slow case-by-case adjudication, the evolution of statutory common
law proceeds over an extended period of time, as courts build carefully
on their prior experience with the statute. The slowness and deliberate-
ness of judicial lawmaking ensures that it will never be a threat to
legislated lawmaking as the main source of policy preference and pri-
orities in the United States.
The judge's interpretation will not be idiosyncratic, moreover, be-
cause it must be justified by a written opinion which relies on sources
other than the judge's personal values. Although judges can find rea-
sons and facts to support a variety of interpretations, their professional
reputations depend in part on the persuasiveness of their justifications
to readers with different values.2 3 Adjudication has been likened to an
extended legal conversation, in which the interpreter is both constrained
and legitimated by her need to explain and justify her interpretations to
the interpretive community of other jurists, legislators, scholars, and
37
lawyers.
While the traditional legitimacy concerns about judicial lawmak-
ing seem to be misplaced when applied against the cautious dynamic
statutory interpretation model posed in this article, a nontraditional le-
gitimacy concern is more troublesome. Professor (now Dean) Paul
Brest argues that lawyers are social and economic- elites who are less
representative of society as a whole than the mix of lawyers and
nonlawyers found in Congress.238 The implication of Brest's argument
is that any defense of judicial lawmaking which appeals to the regula-
tory effects of the legal interpretive community may be socially
questionable.
The legal process response to Brest's observation has been to in-
voke the commitment of the legal community to such things as "order
and justice" and "legal reasoning in bringing these values and princi-
ples to bear in particular cases.""29' This response is not completely sat-
isfying, because so many lawyers, and too many judges, seem only per-
functorily committed to these values, and because there appear to be
structural biases in adjudication that favor established interests.24
the Limits of Legal Change, 9 L. & Soc'y REv. 95 (1974) (noting the advantages
"repeat players"-i.e., insurance companies, prosecutors, and finance companies-have
247 For another example of these approaches, see Briscoe v. LaHue, 460 U.S. 325
(1983). In Briscoe, the majority opinion relied mainly on current policy and common
law doctrine to grant police officers witness immunity in a 1983 lawsuit, while the
dissenting opinion engaged in an excellent but irrelevant historical analysis of legisla-
tive expectations concerning witness immunity in 1871. There are many other exam-
ples. See, e.g., Memphis Community School Dist. v. Stachura, 106 S.Ct. 2537 (1986)
(relying on doctrines of common law torts to overturn 1983 damage award based on
the abstract value or importance of constitutional rights); Pembaur v. City of Cincin-
nati, 106 S.Ct. 1292, 1302 & n.1 (1986) (Stevens, J., concurring) (noting that the
decision rests on policy grounds); Wilson v. Garcia, 471 U.S. 261 (1985) (using current
practical policy considerations in interpreting 1983 with regard to aplicable statute of
limitations); Tower v. Glover, 467 U.S. 914 (1984) (relying on lack of common law
evidence supporting 1983 immunity for public defenders, but rejecting current policy
argument); Pulliam v. Allen, 466 U.S. 522 (1984) (rejecting 1983 immunity for state
magistrate because not supported by common law doctrine); Forrester v. White, 792
F.2d 647 (7th Cir. 1986) (examining state law to determine the scope of judicial au-
thority and allowing 1983 immunity for a judge charged with sex discrimination in
the discharge of a probation officer), cert. granted, 107 S.Ct. 1285 (1987). Much the
same demonstration could be made for the Court's interpretation of the Sherman Act,
the habeas corpus statute, 10(b) of the Securities Act, 504 of the Rehabilitation Act,
and several other common law statutes.
248 461 U.S. 624 (1983).
-9 33 U.S.C. 901-950 (1982 & Supp. III 1985).
250 33 U.S.C. 902(13) (1982). Following this lawsuit the statute was amended
and now specifically excludes such fringe benefits as employer payments to pension
funds. See Longshore and Harbor Workers' Compensation Act Amendments of 1984,
Pub. L. No. 98-426, 2, 98 Stat. 1639, 1640 (codified at 33 U.S.C. 902(13) (Supp.
III 1985)).
231 Hilyer v. Morrison-Knudsen Constr. Co., 670 F.2d 208 (1981), rev'd sub
benefits, there had been no reported problems with administering the new rule and
determining the value of contingent benefits. Id. at 645-46 (Marshall, J., dissenting).
'57 Id. at 644-45 (Marshall, J., dissenting). Professor Daniel Farber suggests that
a statute such as this one, where there is some likelihood that Congress will sooner or
later address the issue, might be treated differently from a general statute such as
1983, which will probably not be amended. I agree that greater caution should be
shown by courts in the former situation, but a pure wait-and-see attitude typically
involves more waiting than seeing.
258 See, e.g., Offshore Logistics, Inc. v. Tallentire, 106 S. Ct. 2485 (1986) (typical
of the Court's willingness to bend statutory language in an area otherwise dominated
by federal common law); Lowe v. SEC, 472 U.S. 181 (1985) (typical of the Court's
dynamic interpretation of regulatory statutes to reflect changed constitutional limita-
tions); Garcia v. United States, 469 U.S. 70 (1984) (typical of the Court's dynamic
interpretation of old criminal laws to update them to current concerns); SEC v. Jerry
T. O'Brien, Inc., 467 U.S. 735 (1984) (typical of the Court's dynamic interpretation of
old statutes, in this case the Securities Act of 1933 and the Securities Exchange Act of
1934, to reflect new statutory developments).
259 106 S. Ct. 681 (1986).
pany Act.2 6 The statute gives the Board jurisdiction over "banks,"
which it defines as any institution that "(1) accepts deposits that the
depositor has a legal right to withdraw on demand, and (2) engages in
the business of making commercial loans. 21 The Board asserted juris-
diction over nonbank banks, or institutions that accept deposits that are
"as a matter of practice" payable on demand (notwithstanding technical
provisions requiring prior notice) and that use those deposits to
purchase commercial paper, certificates of deposit, and similar money
market instruments. The Board justified this action on the basis of sig-
nificant change in the societal circumstances of bank regulation: after
Congress opened up competition for deposits in 1980 nonbank banks
exploded into the market, thereby threatening the general system of
banking regulation administered by the Board.2 2 A unanimous Su-
preme Court overturned the Board's assertion of jurisdiction because it
went beyond the "plain meaning" of the statute.
The model of dynamic statutory interpretation explicated in this
Article would support the Court's approach in Dimension Financial.
While both the societal and legal context of the statute changed in ways
probably not anticipated by Congress, the statutory language is rela-
tively determinate. The statute's technical requirement that the institu-
tion must "accept[] deposits that the depositor has a legal right to with-
draw on demand," 2 0 does exclude nonbank banks. The historical
perspective lends further (and decisive) support to the Court's decision,
for it suggests that Congress expected the technical language to be
stringently enforced. In fact, Congress has carefully amended this pro-
vision twice in the last thirty years to liberalize this language.2 The
apparent legislative compromise is not one that the Court should alter,
particularly in light of recent legislative efforts to curtail, rather than
expand, the Board's jurisdiction.
Because the Supreme Court often informally follows something
approaching this cautious model of dynamic statutory interpretaton,
this model would not change the results in many cases. The model
would, however, introduce greater candor and more consistent analysis
into the Supreme Court's jurisprudence of statutory interpretation. It
would also contribute to a long-needed doctrinal change, liberalization
of the rule that prior interpretations of statutes should almost never be
These were appealing assumptions in the 1950's, but today they are
highly controversial." 9 Public choice scholarship and institutional polit-
ical theory, such as Kingdon's "garbage can model," have demonstrated
that many legislative acts are not "rational" or "purposive" in the way
Hart and Sacks used the terms.2 7 Indeed, the "typical" statute is one
with a congeries of purposes and policies-not all of them entirely ra-
tional and not all of them consistent with one another!
Recall the analysis of the Title VII cases in the first Part of this
Article. The simple Hart and Sacks approach to those cases strikes me
as misleading and inadequate. To proclaim that the single purpose of
Title VII was to provide jobs for minorities, as the Court did in Weber,
is to misstate history. There were many purposes embodied in Title
VII-some of them, such as the sex discrimination provision, added
quite adventitiously-and if there were a single overriding purpose, it
would be to create a color-blind society, a purpose invoked most per-
suasively by the dissenting opinion. 7 Moreover, no matter which pur-
pose one accepts in Weber, it would seen to be at odds with the statu-
tory provision protecting seniority rights at issue in Stotts. Title VII
embodies a curiously shaped vision of fair employment, one that is sus-
ceptible to a Hart and Sacks analysis only through the most tortured
reading of the statute. The model of dynamic statutory interpretation
developed in this Article is based upon a more realistic view of the
legislative process and is more defensible under our axiomatic assump-
tion of legislative supremacy in a representative democracy.
268 H. HART & A. SACKS, supra note 4, at 1411; see id. at 1185, 1414-15, 1200.
289 For an extensive analysis of the rise and fall of the Hart & Sacks approach to
legisprudence, see Eskridge & Frickey, Legislation Scholarship and Pedagogy in the
Post-Legal Process Era, 48 U. Prr. L. REv. 691, 694-725 (1987).
270 An excellent and critical analysis of this scholarship and its bearing on legal
matters is Farber & Frickey, supra note 13. See also W. ESKRIDGE & P. FRICKEY,
supra note 149.
271 United Steelworkers v. Weber, 443 U.S. 193, 219 (1979) (Rehnquist, J.,
dissenting).
272 Judge Posner writes eloquently on the subject of candor in his article on real-
statute if reliance on that language would defeat the plain purpose of the statute
276 I.R.C. 170 (1982 & Supp. III 1985 & West Supp. 1987).
policies currently of importance to the statute, and even the facts of the
case. What I urge-and what the Court often displays-is candor
about the marginal importance of the historical perspective. Then, rig-
orous deliberation can be given to the pertinent policy choices that the
Court must make.288
288 For examples of the Court's most candid admission that it is drawing upon
current, rather than historical, policy purposes, see Bateman Eichler, Hill Richards,
Inc. v. Berner, 472 U.S. 299 (1985) (applying "public policy principles" in interpreting
insider trading provisions of federal securities laws); Landreth Timber Co. v. Landreth,
471 U.S. 681 (1985) (looking at current expectations in determining the definition of
stock under the Securities Exchange Act of 1933); Alexander v. Choate, 469 U.S. 287
(1985) (using current public interest in broadly interpreting the Rehabilitation Act of
1973); SEC v. Jerry T. O'Brien, Inc., 467 U.S. 735 (1984) (using current policy con-
cerns to give meaning to provisions of the securities laws); TWA v. Franklin Mint
Corp., 466 U.S. 243 (1984) (looking at the Par Value Modifications Act through the
lens of modernity).
289 R. DWORKIN, supra note 1, at 45-86, 176-275, 313-54, sets forth Dworkin's
theory. Dworkin had developed the main contours of his theory of statutory interpreta-
tion in A MATTER OF PRINCIPAL, supra note 10 (analyzing Weber), and R. Dworkin,
supra note 121 (statutory interpretation as a "chain novel").
290 R. DWORKIN, supra note 1, at 176.
291 Id. at 190-92.
body politic, the moral community that bonds us together." 2 Given the
existence and desirability of integrity in legislation, Dworkin defines
"integrity in adjudication" as the requirement that judges "treat our
system of public standards as expressing and respecting a coherent set
of principles, and, to that end, to interpret these standards to find im-
plicit standards between and beneath the explicit ones." 2 ' Integrity in
adjudication means that judges must "identify legal rights and duties
. . on the assumption that they were all created by a single au-
thor-the community personified-expressing a coherent conception of
justice and fairness."' '
Under law as integrity, "propositions of law are true if they figure
in or follow from the principles of justice, fairness, and procedural due
process that provide the best constructive interpretation of the commu-
nity's legal practice. '"25 Dworkin views interpretation as akin to a
"chain novel," in which a common law precedent or a legislated statute
is the first, and foremost, chapter in the novel and subsequent authors,
usually judges, are called upon to add new chapters. The goal of the
seriatim contributors to the chain novel is to make the novel the best,
most internally coherent, work it can be.2 98 Thus, the interpreter of
statutes "interprets not just the statute's text but its life, the process
that begins before it becomes law and extends far beyond that moment.
He aims to make the best he can of this continuing story, and his inter-
19 7
pretation changes as the story develops.
Dworkin's vision of legislation is romantic, perhaps the noblest ap-
proach to the subject in print. But is the legislative principle of integ-
rity a fair statement of our political morality? I have some initial
doubts, although perhaps they are provisional.
To begin with, I doubt that Dworkin's view of legislation is or can
be accurate. To establish his argument that the legislative principle of
integrity is instinctive in our political system, Dworkin points to our
collective disdain for "checkerboard statutes," those that treat different
groups of people in different ways, without a clear principled reason.2 98
Such statutes may be an inherent part of our system, however. Title
VII is certainly as principled a statute as any we have, and its principle
of equal employment opportunity is a great principle. But it is riddled
with special exceptions concerning religious institutions, members of
(1982), sets forth the basic nondiscrimination provisions, but other sections create vari-
ous exceptions. See id. 2000e(b) (definition of "employer" excludes small firms,
governmental entities, etc.), 2000e-1 (exemption for religious educational institutions),
2000e-2(f) (special rule for members of the Communist Party), 2000e-2(h) (special
exception for bona fide seniority systems).
300 See, e.g., I.R.G. 501 (1982 & West Supp. 1987) (excepting certain "ex-
empt" organizations from the general rule of federal income taxation); 15 U.S.C.
77(d) (1982) (excepting various "exempt transactions" from the general requirement
of registration prior to the sale of securities).
"0I The economists' versions of the public interest theory of regulation provide
convincing explanations of the varied pattern of political choices. See Becker, A Theory
of Competition Among Pressure Groupsfor Political Influence, 98 Q.J. ECON. 371
(1983) (positing a theory of political redistribution of income and other public policies
due to competition among "pressure groups" for political influence); Posner, Theories
of Economic Regulation, 5 BELL J. ECON. & MGMT. Sci. 335 (1974) (noting the
promise of the economic version of the interest group theory, which posits that regula-
tion is a service supplied to effective political interest groups); Stigler, The Theory of
Economic Regulation, 2 BELL J. ECON. & MGMT. Sci. 3 (1971) (theorizing that polit-
ically influential economic groups demand and acquire regulation by the government
that is designed to benefit that particular group). For an excellent judicial opinion can-
vassing the checkerboard nature of railway labor laws, see Burlington Northern v.
Brotherhood of Maintenance of Way Employees, 793 F.2d 795, 800-02 (7th Cir.
1986), affd, 55 U.S.L.W. 4576 (U.S. April 28, 1987).
"I The provision reads, in pertinent part, "it shall not be an unlawful employ-
ment practice for an employer to apply different standards of compensation, or different
terms, conditions, or privileges of employment pursuant to a bona fide seniority or
merit system." Civil Rights Act of 1964, Pub. L. No. 88-352, 703(h), 78 Stat. 241,
257 (1964) (codified at 42 U.S.C. 2000e-2(h) (1982)). The House Minority Report
on the proposed Act, which did not include 703(h), warned that the act would "de-
stroy" seniority systems. H.R. REP. No. 914, 88th Cong., 1st Sess. 71-72 (1964). Ulti-
mately, the "Mansfield-Dirksen" compromise was struck with several amendments,
which added 703(h) to the bill. See 110 CONG. REC. S11926 (daily ed. May 26,
1964) (statement of Sen. Dirksen).
SOS Dworkin does not explicitly analyze the public choice literature, but his appar-
ent response is that some political compromises are of course inevitable and that a
compromise statute generally subserving principle (such as Title VII) is better than no
statute at all. See R. DWORKIN, supra note 1, at 217-18. This response severely under-
estimates the pervasiveness of checkerboard statutes.
'" The reliance value also explains why judicial doctrine is often incoherent;
stare decisis prevents courts from overruling their precedents, but it does not require
courts to expand the reasoning of obsolete precedents to new fact situations. Thus, the
obsolete past and the novel present coexist over time.
I" But see R. DWORKIN, supra note 1, at 178-84 (suggesting that on occasion the
most intense prefernce leads individuals to a ready compromise, which of itself com-
promises the integrity of the preference).
o See C. MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN (1979).
o Estrich, Rape, 95 YALE L.J. 1087 (1986); see Olsen, Statutory Rape: A Femi-
nist Critique of Rights Analysis, 63 TEx. L. REV. 387 (1984); Peller, supra note 185,
at 1187-91.
the incoherence of various fields of law,3 08 implying that law does not
possess the integrity envisioned by Dworkin, but also would question
any approach which sought complete coherence from the oppressive
precedents of the past.
On the one hand, then, Dworkin's principles of integrity do not
adequately describe what American legislatures do or the statutes they
produce. On the other hand, even the aspirational appeal of Dworkin's
argument-that any inconsistencies created by the legislature do not re-
present our society at its best, and courts ought to weave statutory
checkerboards into a coherent pattern-not only runs against the grain
of the common assumption of legislative supremacy, but is also poten-
tially very conservative because it might propagate morally outmoded
values. Notwithstanding these problems, I concur with Dworkin's quest
for coherence in the law in two important respects. First, there are
certain public values-such as nondiscrimination and freedom of
speech, press, and religion-which courts will protect from statutory
encroachment, often through strained statutory interpretation. Second,
courts will bend old statutes in response to more modern policies. In
these ways, courts do lend greater coherence to statutory law; and I
agree with Dworkin that this contributes to our government's overall
legitimacy and worthiness. But I am doubtful that the courts can per-
form the truly utopian task of creating a general coherence in a corpus
of legislated law which is inherently checkerboard in nature.
Dworkin distinguishes sharply between a rulebook community, in
which citizens have a general commitment to obey rules created by gov-
ernment, and a community of principle, in which citizens see them-
selves governed, not just by political compromises, but by basic princi-
ples." 9 The latter seems to me a worthier sense of community. But the
distinction oversimplifies our polity, which has elements of both com-
munities: we are committed to a rulebook mentality as to myriad
things, but we also have common values that bond us together. My
essential disagreement with Dworkin is that I do not think law can
transform our community from a hybrid into a community of principle.
There is a telling contrast between various conceptualizations of
judges. The judge in many of Dworkin's works is called Hercules, sug-
gesting an all-powerful, omniscient figure who roams the fields of law
CONCLUSION
and apply battlefield orders. See Posner, supra note 7, at 189-92. I find this, too, an
illuminating and imaginative metaphor which is similar to the one explicated in text.
12 Brown v. Board of Educ., 347 U.S. 483 (1954).
3I am thinking here of Edward Weinfeld, a judge in the Southern District of
New York for the last 36 years, and still actively doing justice from 5:00 a.m. until 5:00
p.m. six or seven days a week. Judge Weinfeld is not Hercules, but his day-in and day-
out quest for justice within the confines of statutes and judicial precedents is the noblest
thing a judge, or any other public servant, can do.