Article

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.

Taking Care of Federal Law

Article II of the Constitution vests the “executive power” in the President and directs the President to “take Care that the Laws be faithfully executed.” But do these provisions mean that only the President may execute federal law? Two lines of Supreme Court precedent suggest conflicting answers to that question. In several prominent separation-of-powers cases, the Court has suggested that only the President may execute federal law: “The Constitution requires that a President chosen by the entire Nation oversee the execution of the laws.” Therefore, the Court has reasoned, Congress may not create private rights of action that allow nonexecutive actors to sue and attempt to vindicate the “public interest in . . . compliance with the law.”

Yet in another set of cases, the Court has suggested that the enforcement of federal law should be a shared enterprise not exclusive to the President. Specifically, the Court has gone out of its way to preserve the states’ ability to enforce federal law, repeatedly invoking the presumption “that Congress does not cavalierly pre-empt state-law causes of action.” Indeed, the Court occasionally reasons that state law is not preempted because “state law . . . simply seeks to enforce” federal law. What is striking about these cases is that they do not engage with the potentially troubling separation-of-powers implications that the Court raises in other contexts where Congress permits nonexecutive actors to enforce federal law. More than that, the preemption cases rest on a fundamentally different understanding of what the execution of federal law should look like. The preemption cases are driven by the intuition that the enforcement of federal law should occasionally be a shared enterprise, and that it is sometimes desirable to limit the President’s enforcement discretion. Indeed, the Court has championed the states’ ability to challenge the President’s assessment of what constitutes the “effective enforcement” of federal law.

In light of the disconnect between these two lines of precedent, this Article questions whether Article II should be understood to require the President alone to execute federal law. Specifically, it argues that Article II does not require the President alone to vindicate the public’s shared interest in the enforcement of federal statutes. Many of the cases addressing this issue are concerned with questions of standing, specifically with whether there are limits on Congress’s power to authorize private citizens to sue to enforce federal law. Standing doctrine requires a litigant to show she has suffered an “injury in fact” before a federal court will hear her claim, and while many scholars have analyzed when a statutory violation constitutes an injury in fact for purposes of standing, the relevant literature has failed to appreciate how standing doctrine is derived in part from the Take Care Clause and Article II. This omission has led the existing critiques to overlook cases and statutes where nonexecutive actors routinely execute federal law.

By highlighting the Article II origins of standing doctrine, this Article calls attention to a different set of sources not considered in the literature on standing. And these sources illustrate that one major premise of standing doctrine—that only the President vindicates the public’s shared interest in the enforcement of federal law—is false. In particular, recent preemption cases and several different federal statutes show that nonexecutive actors routinely execute federal law. These sources therefore provide a new and powerful reason to question both the Court’s premise that the President alone must oversee the public’s shared interest in the enforcement of federal statutes, and its subsequent conclusion that a litigant may not have standing to raise a claim for violation of a federal statute based on a congressionally created private right of action. It is not generally a virtue for a constitutional interpretation to stray so far from actual practice. Now is also an ideal time to reexamine whether Article II limits Congress’s power to create private rights of action because the Court has recently shown a renewed interest in the question, and some of the best insights into how that question should be resolved come from recently decided cases.

Unpacking the basis of standing doctrine also reveals curious and thus-far unexplored similarities with the common law doctrine of desuetude, which allowed courts to abrogate outdated statutes. Understanding the similarities between these two doctrines provides both new justifications and new critiques of some aspects of standing doctrine and, more generally, of executive enforcement discretion.

Finally, viewing preemption cases through the lens of when federal law enforcement may be a shared enterprise offers a new perspective on the meaning of these cases. Most writing about the Court’s recent preemption decisions, such as Arizona v. United States, has addressed what the decisions mean for federalism. Scholars have emphasized that Arizona is the exception from the perspective of federalism—the President’s enforcement decisions do not typically preclude states from enforcing overlapping or related state laws in ways that differ from how the President enforces federal law. Yet little attention has been paid to what this understanding of federalism means for separation of powers—to the extent scholars have analyzed Arizona’s separation-of-powers implications, their analyses have only concerned whether the President has the power to decline to enforce federal statutes. The fact that scholars view decisions like Arizona as aberrational suggests the general rule is that nonexecutive actors may enforce federal law and that the execution of federal law is more of a shared enterprise than the Court’s separation-of-powers cases suggest. The preemption cases show that the President does not, and sometimes should not, have unfettered discretion to decide when the public has a shared interest in the enforcement of federal law.

The Article proceeds in four parts. Part I will introduce the principle animating several of the Court’s separation-of-powers cases—namely, that Article II requires the President alone to execute federal law. It will focus on the Court’s claim that because executing federal law includes overseeing the public’s shared interest in federal law enforcement, the President must be the one to initiate suits designed to vindicate that interest. Part II will then highlight how several preemption cases suggest that nonexecutive actors may likewise vindicate the public interest in seeing federal law enforced. In particular, the Court has championed the states’ ability to vindicate this interest, and several statutory schemes expressly permit states to enforce federal law. These cases underscore the benefits that sound in federalism in having the states enforce federal laws in ways that differ from those of the President. Yet the preemption cases make no mention of any troubling separation-of-powers implications, even though the cases simultaneously celebrate the states’ ability to limit the President’s enforcement discretion.

Part III will consider whether states might be permitted to execute federal law even when private litigants are not. The text of Article II does not suggest Congress can authorize this distinction, since both state and private execution of federal law might limit the President’s discretion. Part III will also reject the notion that principles of federalism would justify a bright-line distinction between states and private litigants. Federalism describes the virtues of limiting the ability of the federal government to decide an issue—here, how federal law should be executed—for the entire polity. The very idea that federalism has value in the context of vindicating the public’s shared interest in the enforcement of federal law is at odds with the separation-of-powers cases, which assert that something important is lost when someone other than the President executes federal law. Moreover, once a constitutional principle such as federalism provides a justification for Congress to authorize nonexecutive actors to enforce federal law, other constitutional principles, such as the rule of law, should similarly suffice as a justification for Congress to authorize other nonexecutive actors to enforce federal law.

Finally, Part IV will argue that the Constitution permits Congress to authorize private rights of action allowing private individuals to enforce federal civil statutes. The Court’s rigid interpretation of Article II in separation-of-powers cases has thin constitutional foundations and would undermine myriad arrangements where nonexecutive actors execute federal law. It is also motivated by questionable assumptions about the legislative process and whether the President is actually accountable for enforcement decisions, and it runs counter to commonly held views about how and when presidents may decline to enforce federal statutes. For these reasons, Article II should not be understood to limit Congress’s ability to authorize private individuals to enforce federal civil statutes; independent constitutional provisions, however, may limit whether nonexecutive actors may enforce criminal laws.

Inside-Out: Beyond the Internal/External Distinction in Legal Scholarship

A distinction commonly drawn in legal scholarship deserves scrutiny. To begin to see why, consider this question: What do the following claims by legal scholars have in common?

(1) That economic explanations of tort law which interpret it as an instrument for achieving social goals, such as compensating victims or deterring unreasonably risky conduct (or both), are defective in part because such explanations do not “work through” the concepts that judges invoke in their opinions when deciding cases.

(2) That historical accounts of judicial decisionmaking that explain case outcomes by reference to judges’ ideologies or economic self-interest do not threaten normative interpretations of legal practice because such explanations do not offer courts any concrete guidance as to how to decide future cases.

(3) That political scientists’ criticisms to the effect that legal scholars commonly make fallacious inferences miss their mark because they fail to understand that legal scholars have rhetorical goals not shared by political scientists.

(4) That the arguments of philosophers and neuroscientists about the existence or nonexistence of free will are irrelevant to “all the participants in the legal system” because the criminal law assumes that people are morally responsible for their actions irrespective of whether those actions were causally determined.

(5) That when lawyers write history they ignore evidence and distort the facts in order to rationalize and legitimize legal practice.

There are really two answers to this question. The first is that legal scholars have framed all of these claims around a distinction between “internal” and “external” forms of explanation, criticism, or argument. In each case, the suggestion made is that a particular kind of analysis is flawed or misguided because it is not of the right sort. It is “external” when what is required is an “internal” analysis, or vice versa. That all of the above claims have been conceptualized in this way may at first seem odd since they otherwise seem to be about quite unrelated issues.

From a broader perspective, however, each of these arguments can be seen as making judgments about what counts as a “legal” argument or critique and what does not. That is the second thing these claims have in common. They are all efforts to draw the boundaries of law. Each seeks to distinguish, for one reason or another, the aims and methods of law from those of other academic disciplines. In particular, they seek to distinguish law from those disciplines whose methods are aimed at better understanding the natural or social world, whether in the humanities, sciences, or social sciences. Here I do not mean “law” in the sense of those rules or principles that are (or properly ought to be) enforced by the state, but rather “law” in the sense of those materials, methods, and values that influence the form and content of those rules and principles. In other words, each makes a claim about the nature and boundaries of what John Chipman Gray called the “sources” of law.

Such an effort does not alone warrant criticism. To the contrary, questions about which materials and values judges and other legal decision makers ought to rely on are foundational ones. So, too, are questions about which materials, methods, and values they actually do rely on, whether they should do so or not. Moreover, the internal/external distinction captures well a powerful intuition. Some forms of scholarship—say, traditional doctrinal analyses—do seem to be in some sense launched from within the legal enterprise, whereas others—such as empirical studies of judicial behavior—appear to offer descriptions or critiques from outside it.

In part for these reasons, the internal/external distinction has now become so entrenched in the consciousness of legal scholars that recently a pair of prominent scholars has felt compelled to call out various judges and legal theorists for having committed what they call the “inside/outside fallacy.” According to Professors Eric Posner and Adrian Vermeule, these theorists suffer from “methodological schizophrenia” because they adopt “internal” and “external” perspectives simultaneously. The point of their article, they explain, is not that one type of scholarship is better than the other, but rather simply that the two perspectives are fundamentally incompatible and so must be kept separate. Although they recognize that the inconsistency they identify could be framed in other terms, they dub it the “inside/outside fallacy” on the ground that the internal/external distinction has been “traditionally a central issue for legal theory.”

And that is true. Or at least it is true if by “traditionally” one means “for the past few decades.” For most of the twentieth century, legal theorists did not conceptualize philosophical, historical, or sociological investigations as “outside” of, or “external” to, law. Although a version of the distinction has a long history in the philosophy of the human sciences (or what are today called the “social sciences”), its introduction into legal theory is relatively recent. H.L.A. Hart famously invoked the distinction between two “points of view”—one “internal,” the other “external”—in his 1961 jurisprudential classic, The Concept of Law. But the distinction did not really take hold as a way of interpreting theoretical claims about law until after Ronald Dworkin made use of a similar distinction in his 1986 opus, Law’s Empire.

The distinction’s recent popularity thus invites at least three sorts of questions. The first is historical or explanatory: Why has the distinction come to play such a leading role in legal theory? Why does it today seem so natural? The second is conceptual or analytic: Is there really just one internal/external distinction or are there several going under the same name? And if there are multiple distinctions, what are they and how do they relate to each other? The third set of questions is evaluative or normative: What functions does the distinction serve? And are those functions useful ones for legal theory, practice, or education?

The aim of this Article is to offer some answers to these questions. It argues, in brief, that the distinction has taken hold as a result of both intellectual and institutional changes in the legal academy in the last few decades of the twentieth century. These changes created a need for, and a method of, reconciling increasingly popular forms of interdisciplinary scholarship with more traditional legal scholarship. The internal/external distinction has largely met that need, which contributes to its popularity. But it has done so in part by trading on a crucial ambiguity—between a substantive distinction, on the one hand, and various methodological distinctions, on the other. That ambiguity first appeared in Hart’s work and has clung to the distinction ever since. Thus, distinguishing among, and clarifying the meaning of, the different versions of the distinction is a worthwhile endeavor in itself.

Moreover, even when its meaning is clear, today the various methodological versions of the distinction do more harm than good. When used as a methodological criterion, the distinction rarely serves as a useful conceptual tool to clarify issues or open up avenues of inquiry. Instead, it operates mainly as a rhetorical weapon whose function is to insulate particular substantive views from arguments deemed to be threatening to it. Its tendency has thus been to cabin scholarly debate about the nature and purposes of law, rather than to widen it, and to dampen original thinking about such questions, rather than to stimulate or provoke it.

The burden of this Article is to support these broad claims. It will do so in four Parts. Part I will seek to identify and distinguish among the three main versions of the distinction as they first appeared in the jurisprudential writings of H.L.A. Hart and Ronald Dworkin. It will also describe the historical context in which Hart and Dworkin wrote in an effort to explain why the distinction may have appeared when it did. The primary aim of Part I, however, is to show the role that the “internal point of view” played in each theorist’s philosophy of law and, more specifically, to show how the methodological versions of it enabled both thinkers to obscure or evade difficult questions. In other words, the point is to show that the trouble with the internal/external distinction began at its inception.

Parts II through V will then analyze and evaluate each of these three versions of the distinction in more detail. In each case, the particular version of the distinction that Hart and Dworkin drew has been applied in other contexts by scholars who have then modified it in subtle ways. For this reason, it is possible to see Hart’s and Dworkin’s particular distinctions as instances of more general dichotomies. I will give each of these more general versions a new name in order to distinguish them more clearly from each other. Part II will take up the Genuine versus Instrumental Rule Follower distinction, which is a substantive one about how legal actors use (or fail to use) rules in guiding their conduct. This is the least objectionable use of the distinction, though even here I will suggest that framing the distinction as one of “point of view” or “perspective” is misleading and results in confusion. Part III will then consider the first methodological version of the distinction. I call this the Participant Perspective versus Non-Participant Perspectives distinction, which distinguishes between a variety of different ways of understanding or explaining social (and hence legal) phenomena. I will argue that only a commitment to very controversial epistemological or metaphysical views could justify adopting either the Participant Perspective or any of the Non-Participant Perspectives to the exclusion of other methods and that, instead, the defense of any method of social inquiry should lie in the adequacy of the explanations it offers.

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