Article

Patent Trolls and Preemption

In September 2012, eighty-one companies with nonsensical names such as CleOrv, DucPla, and EntNil began sending letters to over 16,000 businesses throughout the United States. The letters stated that the sender was the “licensing agent” for several U.S. patents that cover the use of an office scanner to send documents via e-mail. The letters noted that the recipient “almost certainly uses” that technology and that, accordingly, the recipient “should enter into a license agreement with us at this time” at a “fair price” of approximately $1,200 per employee. Many recipients of that letter received two subsequent letters from a Texas-based law firm, Farney Daniels. The first letter noted that the matter had been referred to the firm and that its representation “can involve litigation.” The second letter stated bluntly that “if we do not hear from you within two weeks from the date of this letter, our client will be forced to file a Complaint against you for patent infringement in Federal District Court.” This second letter also included a draft complaint against the recipient.

It turns out that CleOrv, DucPla, EntNil, and the other companies asserting patent infringement are all subsidiaries of another company, MPHJ Technology Investments, which is controlled by a Texas lawyer named Jay Mac Rust. Patent holders such as MPHJ have been called “bottom feeder” patent trolls: They assert patents against numerous potential infringers, relying on the high cost of threatened litigation to extract quick settlements. Notably, bottom feeder trolls such as MPHJ have begun to target not the manufacturers of allegedly infringing technology, but the businesses, organizations, and individuals who are the end users of that technology. For instance, patent trolls have sent letters to thousands of hotels and restaurants, claiming that those businesses committed patent infringement by using wireless technology to make Internet service available to their customers. Another patent troll sent letters to numerous construction companies claiming infringement of a patent on the use of a “moisture removal system”—that is, a fan—to dry lumber during construction.

These enforcement campaigns are troubling because, if the patents are as broad as their owners claim, they may be invalid due to the Patent Act’s requirements of novelty and nonobviousness. Yet the nature of the enforcement behavior is also disturbing. Many demand letters are sent to entities, such as nonprofits, municipal governments, and small businesses that are unfamiliar with patent litigation and that may find it too costly to investigate the merit of the patent claims or to fight the infringement allegations. Indeed, the letters sent by bottom feeders are designed to intimidate the recipient into quickly purchasing a license. MPHJ’s lawyers, for example, threatened to file suit unless the recipient responded within two weeks. But those threats often are deceptive or false. MPHJ, for instance, did not file a single infringement suit for several months after the final letters were sent, suggesting that it never intended to litigate at all. When MPHJ finally did file suit, it did so only after numerous state attorneys general had begun investigating the company’s enforcement tactics.

In response to these campaigns, legislatures in over half the states have passed statutes outlawing certain acts of patent enforcement. In a majority of those states, the new laws are modeled after a statute first adopted in Vermont, which prohibits “bad faith” assertions of patent infringement. Other states have outlawed assertions that “contain false, misleading, or deceptive information” or have defined specific acts as illegal, such as making infringement assertions that “lack a reasonable basis in fact or law” or failing to provide, in a letter alleging patent infringement, “factual allegations” about how, exactly, the recipient infringes the patent. Most of the new statutes create a private right of action for the targets of unlawful infringement assertions and all of the statutes allow for enforcement by state officials, such as the state attorney general. In addition, state attorneys general have begun to use long-existing state laws, such as consumer protection statutes and deceptive trade practices laws, to challenge schemes of patent enforcement.

Although patents are usually thought to be the domain of the federal government alone, Congress has only recently begun to consider bills that would outlaw unfair or deceptive patent demand letters. The states’ growing role in the patent system is reflected on the website of the U.S. Patent and Trademark Office, which counsels persons who receive demand letters that are “deceptive, predatory, or in bad faith” to, among other things, “fil[e] a complaint with your state attorney general’s office.” The states, by taking aggressive steps to regulate patent enforcement, are thus poised to erode the federal government’s monopoly over the patent system.

Doctrines of federal constitutional law, however, may invalidate the new state statutes and limit the law enforcement authority of state officials. For decades, businesses and individuals accused of patent infringement have tried to assert state law tort claims against overzealous patent holders, but the U.S. Court of Appeals for the Federal Circuit, which has exclusive appellate jurisdiction over patent cases, has held that those claims are mostly preempted by the federal Patent Act. According to the Federal Circuit, to avoid preemption, the accused infringer must prove not only the elements of its state law claim, it must also prove, by clear and convincing evidence, (1) that the patent holder’s infringement allegations were “objectively baseless,” meaning that no reasonable litigant could have expected to succeed, and (2) that the patent holder made its infringement allegations with knowledge of their inaccuracy or with reckless disregard for their accuracy. Cases challenging the constitutionality of the new state statutes and state law enforcement actions are just getting underway. But the Federal Circuit’s two-part test will almost certainly prohibit the states from condemning any but the most frivolous assertions of patent infringement. This Article argues, however, that the Federal Circuit’s preemption rule is wrong as a matter of doctrine, is misguided as a matter of policy, and ignores important lessons from the history of patent enforcement.

As a matter of doctrine, courts usually identify the Constitution’s Supremacy Clause as the source of preemption law, and the Federal Circuit has sometimes invoked the Supremacy Clause as grounds for immunizing acts of patent enforcement from state law liability. A closer examination of Federal Circuit case law, however, reveals that the most significant constitutional barrier to state regulation of patent enforcement is not preemption pursuant to the Supremacy Clause; it is the Federal Circuit’s erroneous interpretation of the First Amendment’s Petition Clause.

Under an orthodox, Supremacy Clause-based preemption analysis, state laws regulating patent enforcement likely avoid preemption. Although the state laws create some disuniformity in the patent system, they arguably do not conflict with the core objectives of federal patent law, such as incentivizing invention and inducing the disclosure of inventions. And it is difficult to say that federal law fully occupies the field of patent-enforcement regulation: The Patent Act is entirely silent on the issue of unfair or deceptive enforcement—it neither condemns nor immunizes it. Moreover, courts have consistently refused to find field preemption of state law tort claims that impose liability on patent holders. Rather than analyzing preemption under the Supremacy Clause, however, the Federal Circuit has imported as its preemption test the nearly insurmountable requirements imposed by the Supreme Court on plaintiffs who seek to inflict antitrust liability on defendants based on those defendants’ pursuit of litigation. This doctrine, often called the Noerr-Pennington doctrine (or Noerr doctrine, for short), stems from the Supreme Court’s interpretation of the federal antitrust statute, the Sherman Act, in the light of the First Amendment’s Petition Clause.

To strip an antitrust defendant of the immunity conferred by the Noerr doctrine, the plaintiff must show that the defendant’s underlying lawsuit was a “sham” by proving both that the lawsuit was objectively baseless and that it was filed with the subjective intent to impair competition. The Federal Circuit, in adopting as its preemption rule the same requirements of objective baselessness and subjective bad intent, has thus expanded Noerr immunity by allowing patent holders to invoke the doctrine to avoid any type of civil liability, not just liability under the antitrust laws, based on any conduct related to patent enforcement, not just the pursuit of litigation. This expansion of Noerr immunity is a mistake. Letters sent from one private party to another, such as letters threatening patent infringement litigation, are not “petition[s]” to “the government” within the meaning of the First Amendment. Moreover, the Federal Circuit’s use of Noerr as a preemption rule gets the federalism analysis exactly backwards. The Supreme Court has often articulated a presumption against preemption, but the Federal Circuit insists that a patent holder seeking to avoid preemption “has a heavy burden to carry.”

The Federal Circuit’s erroneous expansion of Noerr immunity is not only wrong as a matter of doctrine, it also has several destructive policy implications. For instance, it grants patent holders a license to lie in their demand letters, so long as those letters also contain objectively plausible allegations of infringement. Thus, patent holders can lawfully send letters stating that many recipients have already purchased licenses to the asserted patents even if, in fact, few if any recipients have done so. And patent holders can lawfully claim that the validity of the asserted patents have been upheld in court or in reexamination at the Patent and Trademark Office, even if that is not true. In addition, because the Federal Circuit purports to derive its Noerr-based immunity standard from the First Amendment, that standard makes it unconstitutional for not just states but also the federal government to condemn any but the most fantastical allegations of patent infringement. Thus, although the President, members of Congress, and the Federal Trade Commission have all recently voiced concerns about “patent trolls,” Federal Circuit law significantly limits the regulatory options.

Fortunately, history provides a useful lesson on how courts can strike an appropriate balance between protecting patent holders from liability when they make legitimate allegations of infringement and punishing patent holders when they engage in unfair or deceptive enforcement tactics. Specifically, a long line of federal judicial decisions—which the Federal Circuit has mostly ignored—addresses the precise question of when a patent holder may be held liable for its enforcement conduct. As early as the nineteenth century, courts sitting in equity enjoined patent holders from making infringement assertions in bad faith, which could be established through evidence of the patent holder’s “malicious intent.” Although a patent holder’s intent is a subjective question, courts often inferred subjective intent from objective evidence, such as the patent holder’s threatening a large number of accused infringers and the patent holder’s failure to follow its threats with actual lawsuits. This flexible, equity-based immunity standard—as opposed to the rigid two-part test mandated by the Federal Circuit—would empower all three branches of government at both the state and federal levels to impose reasonable restrictions on patent enforcement. At the same time, cases in which enforcement conduct was enjoined under the traditional standard were usually egregious and often involved claims that were objectively weak on the merits, so a revitalized good faith immunity doctrine would protect patent holders’ ability to provide legitimate notice of their patent rights.

This Article is the first to consider whether the new state statutes are constitutional. By showing how current Federal Circuit doctrine could quash those innovative reforms, and by offering an alternative to the Federal Circuit’s onerous Noerr-based immunity rule, this Article contributes to an important and on-going policy conversation as additional states, as well as the federal government, contemplate steps to fight abusive patent enforcement.

This Article will begin in Part I by outlining the state laws relevant to patent enforcement, including the new state statutes. Part II will then explore the bodies of federal law that potentially nullify those state laws, namely, preemption doctrine under the Supremacy Clause and doctrines of petitioning immunity derived from the First Amendment. Part III will reexamine the relevant Federal Circuit case law, showing that the key limit on the states’ ability to regulate patent enforcement is not preemption but the Federal Circuit’s flawed interpretation of the First Amendment. Part IV will explore the practical consequences of conferring broad immunity on patent holders’ assertions of infringement, highlighting the limited power that both state governments and the federal government have under Federal Circuit law. Finally, Part V will outline ways in which Federal Circuit law should be reformed to provide governments the ability to outlaw unfair and deceptive schemes of patent enforcement.

Aligning Campaign Finance Law

“You have some ideological extremist who has a big bankroll and they can entirely skew our politics.” –Barack Obama, Press Conference, October 8, 2013

Here are some facts about money and politics in today’s America. At the federal level, campaign spending totaled $7.3 billion in 2012. Almost all of this funding came from individual donors, not corporations or unions.Individuals gave about half of their contributions to specific candidates, a quarter to political parties, and a quarter to Political Action Committees (“PACs”) and Super PACs.  These donors were in no way representative of the country as a whole. They were heavily old, white, male, and, of course, wealthy. They also were far more polarized in their political views than the general population. Most Americans were moderates in 2012, but most donors were staunch liberals or conservatives.

However, there is no evidence that much of this money is traded explicitly for political favors. Proof of quid pro quo transactions is vanishingly rare, and studies that try to document a link between PACs’ contributions and politicians’ votes typically come up empty. But there is evidence that politicians’ positions reflect the preferences of their donors to an uncanny extent. The ideal points of members of Congress—that is, the “unique set[s] of policies that they ‘prefer’ to all others”—have almost exactly the same bimodal distribution as the ideal points of individual contributors. They look nothing like the far more centrist distribution of the public at large.

Suppose a jurisdiction is troubled by this situation and decides to enact some kind of campaign finance reform. What reason might it give? One option is preventing the corruption of elected officials. But the Supreme Court has recently narrowed the definition of corruption to quid pro quo exchanges, and, as just noted, such exchanges do not occur with any regularity in contemporary America. Another possibility is avoiding the distortion of electoral outcomes due to the heavy spending of affluent individuals (and groups). But the Court has emphatically rejected any governmental interest in ameliorating “the corrosive and distorting effects of immense aggregations of wealth.” Yet another idea is equalizing the resources of candidates or the electoral influence of voters. But this equality interest has been deemed invalid in even more strident terms. “[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”

So is our reformist jurisdiction out of luck? Not quite. This Article’s thesis is that there is an additional interest, of the gravest importance, that both is threatened by money in politics and is furthered by (certain) campaign finance regulation. This interest is the promotion of alignment between voters’ policy preferences and their government’s policy outputs. Alignment operates at the levels of both the individual constituency and the jurisdiction as a whole. Within the constituency, the views of the district’s median voter and the district’s representative should align. One step up, the preferences of the jurisdiction’s median voter and the legislature’s median member should correspond. Moreover, at the jurisdictional level, the median voter’s views should be congruent not only with the median legislator’s positions, but also with actual policy outcomes. Preference alignment refers to the former sort of congruence; outcome alignment to the latter.

Alignment is a significant—indeed, compelling—interest because of its tight connection to core democratic values. At the district level, it follows closely from the delegate theory of representation. A delegate “must do what his principal would do, must act as if the principal himself were acting . . . must vote as a majority of his constituents would,” as Hanna Pitkin wrote in her landmark work. In other words, a delegate must align his own positions with those of his constituents. Likewise, at the jurisdictional level, alignment is essentially another term for majoritarianism. To say that policy should be congruent with the preferences of the median voter is to say that it should be congruent with the preferences of the voting majority. Of course, majoritarianism is not our only democratic principle. But, as Jeremy Waldron has argued, it is “required as a matter of fairness to all those who participate in the social choice.”

Unsurprisingly, given its democratic roots, the concept of alignment has surfaced repeatedly in the Court’s campaign finance decisions. In a 2000 case, the Court recognized “the broader threat from politicians too compliant with the wishes of large contributors”—and not compliant enough with the wishes of voters. In a 2003 case, the Court warned of “the danger that officeholders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions.” And in its most recent campaign finance decision, McCutcheon v. FEC, a decision otherwise unremittingly hostile to regulation, the Court strikingly concluded its opinion with a paean to alignment. “Representatives are not to follow constituent orders, but can be expected to be cognizant of and responsive to those concerns. Such responsiveness is key to the very concept of self-governance through elected officials.”

Despite these doctrinal hints, some scholars claim that alignment is a forbidden interest in the campaign finance context. Kathleen Sullivan reasons that alignment reflects a particular theory of democracy, and that speech cannot be restricted based on “one vision of good government.” Similarly, Robert Post contends that in the First Amendment domain of public discourse, public opinion is forever changing shape. Thus “[t]here is . . . no ‘baseline’ from which [misalignment] can be assessed.” These critiques are misplaced. As to Sullivan, it might be controversial for the Court to embrace a specific model of democracy, but surely a popularly elected legislature may do so. In fact, legislatures adopt theories of self-governance all the time, both when they regulate money in politics and when they enact other electoral policies. As to Post, public opinion actually is not as fluid as he suggests, and alignment furthers what he deems the crucial aim of public discourse: making “persons believe that government is potentially responsive to their views.” It is unclear as well why electoral speech should be considered part of public discourse rather than the managerial domain of elections, in which speech may be regulated to serve the domain’s ends.

Even if alignment is not a forbidden interest, it may be a duplicative one. As Richard Hasen has argued, it may be nothing more than a slick repackaging of the anti-distortion or equality interests that the Court already has rejected. This charge also misses its mark. The distortion that cannot justify campaign finance regulation, in the Court’s view, is the skewing of electoral outcomes due to large expenditures. The Court has never suggested that the warping of policy outcomes due to large contributions (or their equivalent) is an illegitimate basis for regulation. The distortion of voters is different from that of representatives.

Alignment also is distinct from equality (in all its guises). One form of equality is the leveling of candidate resources. But candidates need not be equally funded to produce alignment, nor does alignment follow from evenly sized war chests. Another kind of equality is equal representation for all voters. But it is only the median voter, not every voter, who is entitled to congruence under the alignment approach. Alignment at the median can arise only if there is misalignment at all other points in the distribution. A final type of equality is equal voter influence over the political process. But equal influence is, at most, a means to achieving alignment. It is not the end itself. Alignment also is possible under conditions of unequal influence, and equal influence does not necessarily result in alignment.

Assume, then, that alignment is a compelling interest that neither is barred by First Amendment theory nor is identical to goals the Court already has rebuffed. We are not done yet. The next step is to determine whether money in politics can generate misalignment, and whether campaign finance reform can promote alignment. According to a burgeoning political science literature, the answer to both questions is yes, at least sometimes. The relevant empirical evidence fits into three categories.

First, according to numerous studies, wealthy Americans have more influence on politicians’ voting records and actual policy outcomes than do poor or middle-class Americans. This extra sway is evident whether House or Senate voting records, or state or federal policy outcomes, are considered. It also appears even after non-monetary forms of political participation (voting, volunteering, contacting officials, etc.) are controlled for. Second, as noted at the outset, politicians and donors have nearly identical ideal point distributions: highly bimodal curves in which they cluster at the ideological extremes and almost no one occupies the moderate center. Voters’ views, in contrast, exhibit a normal distribution whose single peak is in the middle of the political spectrum. It is fair to say that donors receive exquisitely attentive representation—and that voters receive virtually no representation at all.

Third, campaign finance regulation can be aligning or misaligning based on its implications for how candidates raise their money. Tight individual contribution limits reduce the funds available from polarized individual donors. They therefore encourage candidates to shift toward the ideological center, the home of the median voter. Conversely, stringent party or PAC contribution limits have the opposite effect. Both parties and PACs are relatively moderate in their giving patterns—parties because their chief goal is winning as many seats as possible, PACs because they want access to incumbents of all political stripes. Reducing the funds available from these more centrist sources thus incentivizes candidates to move toward the ideological fringes. As for public financing, its impact hinges on its treatment of individual donors. “Clean money” schemes that provide block grants to candidates after they receive enough individual contributions are misaligning because of the extremism of the donors who initially must be wooed. But multiple-match systems that offer high matching ratios for small contributions may be aligning because of the more representative pool of donors they attract.

What do these findings mean for the constitutionality of different policies? Individual contribution limits would sit on sturdy legal ground under the alignment approach. Whatever their link may be to the prevention of corruption, they demonstrably further the governmental interest in alignment. Unlike under current law, individual expenditure limits also might survive judicial scrutiny. Since politicians mirror the views of not only individuals who donate directly to them, but also individuals who spend on their behalf, no great significance would attach to the contribution/expenditure distinction. Public financing that relies on individual donors who resemble the general population (or that does not rely on individual donors at all) would be valid as well. On the other hand, contribution and expenditure limits for parties and PACs could not be sustained by reference to alignment. Since these entities are relatively moderate, their funds exert little misaligning pressure. Public financing that requires appeals to polarized individual donors also could be justified only on the basis of other interests.

The Article proceeds as follows. Part I introduces the alignment interest. It describes the different forms of alignment, explains the role the concept has played in earlier campaign finance cases, and responds to the claim that general First Amendment principles proscribe the interest. Part II argues for the distinctiveness of alignment. It compares alignment to the interests the Court already has considered—anti-corruption, anti-distortion, and equality—and shows that it is different from each of them. Part III conveys the current state of knowledge about alignment. It summarizes the many studies on the misaligning influence of money in politics, as well as the fewer studies on the aligning impact of (some) regulation. Lastly, Part IV assesses the implications of this literature for the validity of different policies. Individual contribution and expenditure limits, and certain kinds of public financing, should be upheld because they promote alignment. But contribution and expenditure limits for parties and PACs, and other kinds of public financing, cannot be justified on this basis.

One final question should be answered before proceeding further. Given the array of interests already asserted in the campaign finance context, is there really a need for another one? In fact, the need is dire, for two reasons. First, the only interest the Court currently considers to be legitimate—the narrowly construed anti-corruption interest—neither captures the full extent of the harm caused by money in politics, nor is sufficient to sustain most campaign finance regulation. In recent years, policies have toppled like dominos, rejected by the Court due to a lack of fit with this interest. If the reform project is to avoid collapsing entirely, we must, in Michael Kang’s words, “look[] beyond the prevention of corruption as defined by the Court.”

Second, the misalignment produced by electoral fundraising and spending is not holding steady. Instead, it is getting worse. Over the last generation, the share of campaign funds provided by the wealthiest 0.01% of Americans has surged from about 10% to more than 40%. During the same period, individual donors steadily have become more extreme in their political views, and candidates steadily have become more dependent on their contributions. As a result, the representational gap in favor of the affluent is now five times larger than it was in the 1970s and 1980s. Misalignment thus is not a problem that can safely be ignored. Rather, it is a problem that—increasingly—threatens to swallow American democracy.

Reading Statutes in the Common Law Tradition

There is wide agreement in American law and scholarship about the role the common law tradition plays in statutory interpretation. Jurists and scholars of various stripes concur that the common law points away from formalist interpretive approaches like textualism and toward a more creative, independent role for courts. They simply differ over whether the common law tradition is worth preserving. Dynamic and strongly purposive interpreters often claim the Anglo-American common law heritage supports their approach to statutory interpretation, and that formalism is an unjustified break from that tradition. Many formalists reply that the common law mindset and methods are obsolete and inimical to a modern legal system of separated powers. They argue that because the legal center of gravity has shifted from courts to complex statutory regimes, judicial interpreters, especially at the federal level, should no longer understand themselves as bearers of the common law tradition.

Thus, Judge Guido Calabresi’s case for judicial updating of outmoded legislation presents itself as A Common Law for the Age of Statutes, while Justice Scalia celebrates how interpretive formalism imposes discipline on Common-Law Courts in a Civil Law System. This dichotomy is not unique to the federal context. Judith Kaye, writing as Chief Judge of the New York Court of Appeals, rejected a Scalia-style formalism based on her court’s role as a “keeper[] of the common law.” By contrast, Michigan Supreme Court Chief Justice Robert Young Jr., a textualist, rejects Chief Judge Kaye’s approach because statutory interpretation is “not a branch of common-law exegesis.” If anything, rhetoric on common law and statute is more dramatic at the state level, with Chief Judge Kaye offering paeans to “the common law, that ‘golden and sacred rule of reason,’” while Chief Justice Young likens the common law to a “drunken, toothless ancient relative” who has overstayed his welcome.

Contemporary debate in statutory interpretation offers a choice between either continuity with the common law tradition (and thus, creative statutory interpretation) or formalist interpretation that breaks with that heritage. As with much conventional wisdom, this framework captures a good deal of truth. Nevertheless, those who accept this neat frame, including myself in past work, miss an important part of the picture. As this Article will argue, formal theories of interpretation like textualism, which today generally distance themselves from the common law tradition, can claim support in that heritage. Furthermore, nonformal approaches to statutory interpretation rely on a partial, controversial vision of the common law tradition. A more nuanced understanding of traditional common law thought undercuts an important justification for nonformal theories of statutory interpretation—namely their continuity with our common law legal tradition. More broadly, we need not understand the debate between formalists and their critics as a disagreement about the common law tradition’s continued validity; rather, it concerns which interpretation of that tradition best suits a modern, complex polity.

To establish these points, this Article takes up central ideas that classical common lawyers held about legislation, interpretation, and the legal system to show how these notions recommend formal, faithful agency in statutory interpretation. The central relevant feature of classical common law thought is its participants’ understanding of their practice as the disciplined refinement and embodiment of a polity’s customs and beliefs. Law, in a common law system, rose up from the practices and beliefs of the people, rather than descending in systematic form from the will of a ruling cadre. This understanding unified the common law justification for law developed in adjudication and legislation alike. In fact, the common law method of adjudication—with its reactive and incremental development of law through structured argument—anticipates the formal, rule-laden, and nonsystematic manner in which American legislatures today translate popular norms and preferences into statutes. Common law adjudication and common law legislation pursue similar ends in analogous fashion.

Advocates of nonformal statutory interpretation take this congruence as a cue for courts to depart from faithful agency in the development of statutory regimes. This standard, antiformalist move is a misapplication, or at least a controversial reading, of the common law tradition itself. Common law legislation by its nature is often a product of untidy compromises necessary to secure supermajority support, and is rooted in reasoning that is difficult for outsiders to reconstruct after the fact. If legislation is a modern iteration of common law lawmaking, dynamic interpreters who seek to update or smooth the rough corners of statutes resemble classical common lawyers’ archrivals: philosophers and royalists who sought to rationalize the untidy warrens of common law doctrine. Like those academic lawyers who sought to privilege their isolated reasoning over the shared wisdom of the common law, a dynamic interpreter puts herself in the position not only of a legislator, but a legislature, whose translation of public views and practices into concrete norms she as an individual cannot replicate. By contrast, classical common law lawyers contended their lay competitors’ natural reason was inferior to the disciplined, shared “artificial reason” of the common law in identifying and integrating the common customs of the people. Interpretive formalists respect the artificial reason of common law legislation when refusing to upset awkward legislative compromises or update statutes to comply with contemporary values.

In this light, the central disagreement between formalists and their opponents is an argument within the common law tradition about the deference courts owe to the legislature, an institution that also identifies and translates social norms into common—shared—law. An interpretive formalist can see the legislature as the culmination of the common law tradition, not its nemesis. Accordingly, while such formalists need not reject judicial development of common law in the absence of legislative direction, they defer to reasonably clear statutory norms out of respect for the legislature’s superior and inimitable process of forging shared norms. To be clear, the formalist argument is a development of the classical common law tradition, not a secret history. Nevertheless, the mindset of the interpretive formalist coheres with central ideas in classical common law theory and can be seen as the natural development of a tradition that has increasingly linked law with popular custom and consent. In fact, given the challenges a complex, pluralistic society poses to developing common law through adjudication, the formalist’s emphasis on legislative primacy may be necessary for the tradition to survive.

One final note on scope: This work leaves for another day the role of administrative agencies in statutory interpretation and the common law tradition. To some, agencies are today’s true practitioners of the common law. To others, they represent an anathematic return to the Star Chamber. Unpacking this analysis’s implications for the fourth branch of government is neither obvious nor trivial and deserves a separate work.

The Article will proceed as follows. Part I will catalog the received wisdom that our common law heritage presses against formal approaches and in favor of more dynamic methods. Part II will offer a fresh look at the relationship between the common law and legislation, arguing that important figures in the common law tradition championed parliamentary legislation and understood it as an important source of common law. The common law, in fact, plays a central role in a broader conception of law that views law as ascending from the people, rather than descending from a select few. Legislation by assembly, like common law adjudication, aspires to identify and channel popular custom into formal law.

Part III will explicate a theory of legislation as a form of common law. It picks out key features of classical common law theory—the “artificial reason of the law” and its development—and explains how they are manifest not only in adjudication, but also in the style of legislation by American assemblies. Part IV will unpack the interpretive implications of legislation in common law style. In particular, it identifies important breaks between today’s dynamic statutory interpreters and the common law tradition, while also highlighting unappreciated affinities between that heritage and more formal approaches to legislation. Part V will step back to underline mutually reinforcing features of the common law tradition and statutory formalism. From this broader perspective, the statutory formalism’s deference appears a faithful development of the common law tradition and an advance on the more juriscentric versions championed by dynamic interpreters.

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