THE VEXATION OF LEGISLATION

ELEVENTH ANNUAL JUDICIAL SYMPOSIUM

THE VEXATION OF LEGISLATION: Judicial Analysis of Unclear, Incomplete, or Obsolete Statutes

Course Materials

July 2015

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Course Materials Table of Contents

The Interplay of Text and Purpose ....................................................................................................1Hon. Goodwin Liu, Jeffrey A. Pojanowski, Hon. Phil Talmadge and Suzanne K. Richards

Turning Unambiguous Statutory Materials into Ambiguous Statutes: ...................................233Ordering Principles, Avoidance, and Transparent Justification in Cases of Interpretive Choice

Carlos E. González

Demystifying Vagueness: ...............................................................................................................305Uncovering the Objective Test

John M. Thomas

The Other Delegate: .........................................................................................................................415Judicially Administered Statutes and the Nondelegation Doctrine

Margaret H. Lemos

The Interplay of Text and Purpose

Hon. Goodwin Liu

Supreme Court of California

350 McAllister Street San Francisco, CA 94102

Jeffrey A. Pojanowski

Notre Dame Law School

3113 Eck Hall of Law South Bend, IN 46556

Hon. Phil Talmadge

Talmadge Fitzpatrick Tribe

2775 Harbor Avenue SW, Suite C, 3rd Floor Seattle, WA 98126

Suzanne K. Richards

Vorys Sater Seymour and Pease LLP

52 E. Gay Street Columbus, OH 43215

Hon. Goodwin Liu is an associate justice serving on the Supreme Court of California. Before joining the state’s highest court in 2011, Justice Liu was a professor of law at the UC Berkeley School of Law (Boalt Hall). His primary areas of expertise as a law professor included constitutional law, education law and policy, and the U.S. Supreme Court. He has published widely on these subjects in books, law reviews, and the general media. His 2006 article, “Education, Equality and National Citizenship,” won the Steven S. Goldberg Award for Distinguished Scholarship in Education Law, conferred by the Education Law Association. Before his teaching career, Justice Liu clerked for U.S. Supreme Court Justice Ruth Bader Ginsburg and worked in the appellate practice group of O’Melveny & Myers.

Jeffrey A. Pojanowski joined the faculty of the Notre Dame Law School in 2010, where he was named Distinguished Professor of the Year in 2013. He has published work in the Northwestern University Law Review, Texas Law Review, UCLA Law Review, Fordham Law Review, and Jurisprudence. At present, his scholarship focuses on statutory interpretation, the common law, and legal theory. Professor Pojanowski graduated magna cum laude from Harvard Law School. He served as a law clerk to then-Judge John Roberts on the D.C. Circuit and then to Justice Anthony Kennedy on the Supreme Court of the United States.

Hon. Phil Talmadge received a J.D. from the University of Washington, where he was on the Law Review. He served in the Washington State Senate from 1979 to 1995, chairing the Judiciary and Health Care Committees. He was a justice of the Washington Supreme Court from 1995 to 2001. Mr. Talmadge is a fellow of the American Academy of Appellate Lawyers and a founding member of the Washington Appellate Lawyers Association. He has authored numerous articles on legal issues, including statutory interpretation.

Suzanne K. Richards is a retired partner of Vorys Sater Seymour and Pease LLP, Columbus, Ohio, and a former head of the firm’s litigation group. Her practice centered on business and employment law with an expertise in class actions and alternative dispute resolution. She is also a member of the Board of Commissioners on Character and Fitness of the Supreme Court of Ohio and the Board of Trustees of the National Conference of Bar Examiner. Ms. Richards speaks widely on bar admission issues.

The Interplay of Text and Purpose ■ Liu et al. ■ 3


I. Introduction ...................................................................................................................................................5Attachment I ................................................................................................................................................................6Attachment II .............................................................................................................................................................68Attachment III .........................................................................................................................................................123Attachment IV .........................................................................................................................................................170Attachment V ...........................................................................................................................................................202

Table of Contents



I. IntroductionThis panel of renowned state supreme court justices and scholars will use two recent cases to dis-

cuss the issues and problems that arise when statutory text is subject to varying interpretations. The panel will engage in a robust debate regarding the relative strengths and weaknesses of interpretive methodologies from the perspectives of the bench, bar, and legal academy.

In addition to two recent cases, the panel has provided the following, to inform the symposium dis-cussion: Reading Statutes in the Common Law Tradition by Jeffrey A. Pojanowski, which will be published in an upcoming issue of the Virginia Law Review, and A New Approach to Statutory Interpretation in Washing-ton by Phil Talmadge.

6 ■ NFJE Eleventh Annual Judicial Symposium ■ July 2015

Attachment I

READING STATUTES IN THE COMMON LAW TRADITION

Jeffrey A. Pojanowski

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 claim the Anglo-American common law heritage in support of their approach to statutory interpretation, while arguing that formalism is an unjustified break from that tradition. 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 should no longer understand themselves as bearers of the common law tradition.

Contemporary debate in statutory interpretation thus offers a choice between continuity with the common law tradition (and thus, creative statutory interpretation) or formalist interpretation that breaks with that heritage. This neat frame, however, misses important parts of the picture. This Article argues that classical common law jurisprudence in fact offers substantial support for formal theories of interpretation like textualism. In fact, the formalist’s respect for legislative compromise and deference to text or original intent may represent the natural development of a common law tradition that has increasingly linked law with popular custom and consent. By contrast, nonformal approaches to statutory interpretation rely on a partial, controversial vision of the common law tradition. A more complete 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 dynamic interpreters as a disagreement about the common law tradition’s continued validity; rather it is an argument over which interpretation of that tradition best suits a modern, complex polity. There are good reasons—reasons grounded in common law thought—for believing that statutory formalists have a stronger argument than their dynamic critics. 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 common law tradition and its virtues to persist in our legal system.

.

Associate Professor of Law and Robert and Marion Short Scholar, Notre Dame Law

School. I am grateful to Amy Barrett, Will Baude, A.J. Bellia, Neville Cox, Marc DeGirolami, Oran Doyle, Chad Flanders, John Goldberg, Scott Hershovitz, Bert Huang, John Inazu, Randy Kozel, Mark Leeming, Erin Morrow Hawley, Caleb Nelson, David Prendergast, Des Ryan, Larry Solan, Kevin Walsh, Rachael Walsh, and the Notre Dame Law School students in my Common Law Theory seminar for helpful comments and questions. This paper benefitted greatly from thoughtful scrutiny at the Harvard Private Law Workshop and at the Trinity College Dublin faculty workshop. The remaining flaws are my responsibility.


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Introduction 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”,1 while Justice Scalia celebrates how interpretive formalism imposes discipline on “Common-Law Courts in a Civil Law System.”2 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.”3 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.”4 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,’”5 while Chief Justice Young likens

1 Guido Calabresi, A Common Law for the Age of Statutes (1982). 2 See Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United

States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann ed., 1997).

3 Judith S. Kaye, Chief Judge of the N.Y. Court of Appeals, State Courts at the Dawn of a New Century: Common Law Courts Reading Statutes and Constitutions, The Justice William J. Brennan, Jr. Lecture on State Courts & Social Justice (Mar. 31, 1995), in 70 N.Y.U. L. Rev. 1, 6 (1995).

4 Robert P. Young, Jr., A Judicial Traditionalist Confronts Justice Brennan’s School of Judicial Philosophy, Okla. City. U. School of Law William J. Brennan, Jr. Lecture on State Constitutional Law & Government (Oct. 18, 2007), in 33 Okla. City U. L. Rev. 263, 280 (2008) [hereinafter Young, Judicial Philosophy].

5 Kaye, supra note 3, at 5 (quoting Charles F. Mullett, Fundamental Law and the American Revolution, 1760–1776, at 48 (1966)).


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the common law to a “drunken, toothless ancient relative” who has overstayed his welcome.6

Contemporary debate in statutory interpretation offers a choice between 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,7 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.8 The central relevant feature classical common law thought is

6 Robert P. Young, Jr., A Judicial Traditionalist Confronts the Common Law, 8 Tex.

Rev. L. & Pol. 299, 302 (2004) [hereinafter Young, Common Law]. 7 See Jeffrey A. Pojanowski, Statutes in Common Law Courts, 91 Tex. L. Rev. 479,

522–36 (2013) (exploring the effect state courts’ undisputed common law powers have on interpretive method compared to federal courts of limited jurisdiction) [hereinafter Pojanowski, Common Law Courts]; Kaye, supra note 3, at 6 (linking non-formalist interpretation to a state court’s role as “keepers of the common law”); Peter L. Strauss, The Common Law and Statutes, 70 U. Colo. L. Rev. 225, 225 (1999) (arguing that “our fundamental commitment to the common law . . . is inconsistent with” textualist statutory interpretation) [hereinafter Strauss, Common Law].

8 The aim here is not to establish that sixteenth and seventeenth-century common lawyers were unwavering textualists or original intentionalists in statutory interpretation. That was unlikely the case. See Gerald J. Postema, Classical Common Law Jurisprudence (Part II), 3 Oxford U. Commonwealth L.J. 1, 17–21 (2003) [hereinafter Postema II] (describing Hale’s approach to statutory interpretation in relatively nonformal terms); but see generally Jim Evans, A Brief History of Equitable Interpretation in the Common Law System, in Legal Interpretation in Democratic States (Jeffrey Goldsworthy & Tom Campbell eds., 2002) (challenging broad claims about common lawyers’ departures from faithful agency in statutory interpretation). Nor does this analysis rest on the already established point that many eighteenth- and nineteenth-century common law jurists took formal approaches to statutory interpretation. See Hans W. Baade, The Casus Omissus: A Pre-History of Statutory


3 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.9 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.10 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.11 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.12

In this light, the central disagreement between formalists and their

Analogy, 20 Syracuse J. Int’l & Com. 45, 93 (1994) (explaining how “the ‘equity of the statute’ fell victim to the sovereignty of Parliament”); John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 53–54 (2001) (“The shift away from equitable interpretation had become perceptible during the eighteenth century. By the nineteenth century, the trend was unmistakable.”) [hereinafter Manning, Textualism and the Equity].

9 See infra Section II. 10 See infra Section III. 11 See William N. Eskridge, Jr., All About Words: Early Understandings of the “Judicial

Power” in Statutory Interpretation, 1776–1806, 101 Colum. L. Rev. 990, 998–1009 (2001). 12 See infra Section IV.


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opponents is an argument within the common law tradition about 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.13

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.14 To others, they represent an anathematic return to the Star Chamber.15 Unpacking this analysis’s implications for the fourth branch of government is neither obvious nor trivial and deserves a separate work.

The Article proceeds as follows. Part I catalogs the received wisdom that our common law heritage presses against formal approaches and in favor of more dynamic methods. Part II offers 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 explicates a theory of legislation as a form of common law. It picks out key features of classical common law theory—the “artificial reason

13 See infra Section V. 14 See Cass R. Sunstein, Is Tobacco a Drug? Administrative Agencies as Common Law

Courts, 47 Duke L.J. 1013, 1019–20 (1998) (noting that “agencies have become modern America’s common law courts, and properly so”).

15 See Philip Hamburger, Is Administrative Law Unlawful? 28–29 (2014) (explaining that “American administrative law revives the extralegal government familiar from the royal prerogative. . . . it restores a version of the absolute prerogative . . . that purported to bind and that flourished before the development of constitutional law”).


5 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 unpacks 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 steps 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.

I. Statutory Interpretation Theory and the Common Law Today

Statutory interpretation theory does not lack labels for methodological

schools. For simplicity’s sake, this Article groups these various approaches under two headings: formalist and nonformalist approaches. As used here, formalist approaches to interpretation are those more committed to treat the “objective” meaning enacted statutory language (roughly, the reasonable reader’s meaning) or original legislative intent (roughly, speakers’ meaning) as precluding further independent judgment by the interpreter.16

Nonformalism or antiformalism, for lack of better organizing headings,17 while giving weight to original meaning or intention, affords the interpreter greater authority to broaden, narrow, or, in some cases, reject the most plausible available understanding of that original meaning or intention. An interpreter like Judge Richard Posner may do this to fulfill what he hypothesizes as the original purpose or what the enacting legislature would have wanted in a given case.18 Alternatively, dynamic theorists like Professor William Eskridge or Judge Guido Calabresi would give courts discretion to update or deem obsolescent statutes that conflict with contemporary public

16 See Frederick Schauer, Formalism, 97 Yale L.J. 509, 511–20 (1988) (distinguishing

this understanding of formalism from the version associated with late nineteenth-century common lawyers like Christopher Columbus Langdell). This does not mean formalists never apply standards or creatively develop the law. When legislation is unclear, prescribes a standard, or otherwise confers decisionmaking authority to the interpreter, a formalist will exercise that judgment within the confines of other clear rules.

17 See David A. Strauss, The Anti-Formalist, 74 U. Chi. L. Rev. 1885, 1886, 1890–94 (2007) (characterizing the approach of Judge Richard Posner). Formalism is often contrasted with “functionalism,” but the label’s affiliation with social science and instrumentalism does not chime with some nonformalist approaches. For example, Ronald Dworkin is no formalist, but his celebration of high principle and broad moral vision is hardly functionalist.

18 See United States v. Marshall, 908 F.2d 1312, 1333–37 (7th Cir. 1990) (en banc) (Posner, J., dissenting).


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values.19

Many statutory formalists see legislative primacy at odds with the common law tradition. Nonformalists, by contrast, seek to adapt that tradition to our age of statutes. This Part elaborates these standard takes on the relationship between common law and statutory interpretation.

A. Nonformalism and the Common Law Tradition

Continuity with the common law tradition is a touchstone for nonformalist statutory interpretation. Drawing on law’s conservative, preservationist character, and the appeal of systemic coherence, many nonformalists invoke the common law tradition to defend their approach while casting formalist rivals as suspicious, radical interlopers. 1. The Courts

Federal and state courts often draw connections between the common law tradition and nonformal statutory interpretation. A foundational nonformalist opinion in federal law, Holy Trinity Church v. United States, justifies the Court’s preference for legislation’s spirit over its letter by relying upon William Coke and common law cases reported by the sixteenth-century English lawyer Edmund Plowden.20 Holy Trinity Church is also the centerpiece of the majority opinion in United Steelworkers of America v. Weber, a touchstone for modern dynamic theorists.21 The Supreme Court’s admiralty decision in Moragne v. States Marine Lines, which arguably extended the reach of a statute by analogy,22 echoes Chief Justice Stone’s invocation of “the duty of the common-law court to . . . interweave the new legislative policies with the inherited body of common-law principles.”23

19 William N. Eskridge, Jr., Dynamic Statutory Interpretation, 135 U. Pa. L. Rev. 1479,

1554–55 (1987) (arguing that “federal courts should interpret statutes in light of their current as well as historical context” and that “[d]ynamic interpretation is most appropriate when the statute is old yet still the source of litigation, is generally phrased, and faces significantly changed societal problems or legal contexts”); Calabresi, supra note 1, 82–83, 146–49.

20 143 U.S. 457, 459–61 (1892). 21 See 443 U.S. 193, 201 (1979); Ronald Dworkin, A Matter of Principle 316–31 (1985);

Eskridge, supra note 19, at 1488–94 (discussing Weber); see also id. at 1492 (identifying Justice Blackmun’s concurring opinion in Weber as more persuasive an example of dynamic interpretation than the majority opinion); Philip P. Frickey, From the Big Sleep to the Big Heat: The Revival of Theory in Statutory Interpretation, 77 Minn. L. Rev. 241, 247 (1992) (arguing that “[t]o defend Weber, then, one needed a theory of statutory interpretation” more elaborate than mere invocation of spirit).

22 See Jeffrey A. Pojanowski, Private Law in the Gaps, 82 Fordham L. Rev. 1689, 1719–20 (2014) [hereinafter Pojanowski, Private Law].

23 398 U.S. 375, 392 (1970); see also William N. Eskridge, Jr. & Philip P. Frickey, Foreword: Law as Equilibrium, 108 Harv. L. Rev. 26, 29 n.6 (1994) (“Stable equilibrium is


7 Supreme Court dissents from formalist opinions also invoke the common law.24

The relationship is even more pronounced for state courts unburdened by the post-Erie notion that federal courts lack general common law “powers.” New York Court of Appeals Chief Judge Judith Kaye argued that state law is a complex tapestry of common law and statute, making the court an interlocutor with the legislature, not just a passive interpreter of statutory commands.25 This “common-law method compels courts” to depart from a statute’s plain meaning at times.26 State court decisions rejecting the United States Supreme Court’s formalist, restrictive approach to implied private rights of action highlight their common law powers to supplement statutory remedies.27

2. Ronald Dworkin’s Common Law Romanticism

Legal theorists have elaborated the courts’ intuitive link between the common law tradition and nonformal statutory interpretation. Perhaps most prominent is the work of legal philosopher Professor Ronald Dworkin, whose ideal judge “will use much the same techniques of interpretation to read statutes that he uses to decide common-law cases.”28 And, given Dworkin’s reputation as “a common law romantic”29 there is little doubt that his common law theory is in the driver’s seat. In statutory interpretation, as with common law adjudication, the ideal judge seeks “to find the best justification he can” that fits with the legal materials at hand.30 Legislative text, like common law

the common law ideal, best exemplified at the Supreme Court level in admiralty cases” like Moragne).

24See, e.g., Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 563 (1994) (Ginsburg, J., dissenting) (approving of a method that would “evolve[] not through a ‘rules first’ approach, but in the traditional, fact-bound, case-by-case common-law way”); Griffin v. Oceanic Contractors, 458 U.S. 564, 578 (1982) (Stevens, J., dissenting) (quoting Holy Trinity Church, 143 U.S. at 459).

25 See Kaye, supra note 1, at 5–11. 26 Id. at 26. Similarly, the Supreme Court of Connecticut’s rejection of the plain meaning

rule traced its purposive approach’s roots to the common law classic Heydon’s Case. State v. Courchesne, 816 A.2d 562, 581, 585 (Conn. 2003).

27 See, e.g., San Lorenzo Educ. Ass’n. v. Wilson, 654 P.2d 202, 204 n.5 (Cal. 1982); Nat’l Trust for Historic Pres. v. City of Albuquerque, 874 P.2d 798, 801 (N.M. App. 1994); see also Gandy v. Wal-Mart Stores, 872 P.2d 859, 862–63 (N.M. 1994) (using “public policy” manifested in a discrimination statute to give rise to an additional common law tort action for retaliatory discharge).

28 Ronald Dworkin, Law’s Empire 313 (1986) [hereinafter Dworkin, Law’s Empire]. 29 David Dyzenhaus & Michael Taggart, Reasoned Decisions and Legal Theory, in

Common Law Theory 134, (Douglas E. Edlin ed., 2007). 30 Dworkin, Law’s Empire, supra note 28, at 338; see also id. at 313 (“He will ask

himself which reading of the act . . . shows the political history including and surrounding that statute in the better light.”).


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precedents, presents the judge the task of constructing “some justification that fits and flows through the statute and is, if possible, consistent with other legislation in force.”31 His method is hostile to “checkerboard laws” that do not embody principled consistency.32 Rather than viewing legislation as “negotiated compromises that carry no more or deeper meaning than the text,” we are to treat “legislation as flowing from the community’s present commitment to a background scheme of political morality.”33 Like the common law judge, an interpreter of legislation “must justify the story as a whole, not just its ending.”34

This framework leads Dworkin to a nonformalist stance. He rejects the concept of “original intent” as a lodestar for interpretation35 as well as the textualist’s distinction between semantically clear statutes that demand adherence and ambiguous provisions that require creative judgment.36 Dworkin’s ideal judge sometimes also “must take” legislative history into account when “deciding which story of the legislative event is overall the best story.”37 Dworkin centers his jurisprudential argument on a defense of Riggs v. Palmer, a case invoking background common law principles to contravene what a formalist dissent saw as reasonably clear statutory rules on voiding wills.38 Similarly, his discussion of statutory interpretation is an extended critique of Tennessee Valley Authority v. Hill, which held that the plain meaning of the Endangered Species Act required the protection of the snail

31 Id. at 338. 32 Id. at 178–84. 33 Id. at 345–46. 34 Id. at 338; see George C. Christie, Dworkin’s “Empire,” 36 Duke L.J. 157, 177 (1987)

(reviewing Ronald Dworkin, Law’s Empire (1986)) (“In short, Hercules aims to make the legislative story, as a whole, as good as it can be.”). Dworkin does distinguish between legislation and common law adjudication. For him, adjudication is primarily concerned with questions of principle and individual rights, whereas the legislature can make “policy” decisions that roughly promote general or particular interests. See Dworkin, Law’s Empire, supra note 28, at 221–24, 410. An ideal judge will proceed differently “when a statute rather than a set of law reports has been placed before him,” but only because a judge interpreting legislation can factor in not just legal principles, but also policy. Id. at 337.

35 See Dworkin, Law’s Empire, supra note 28 at 317–27. Cf. Richard Ekins, Legislative Intent in Law’s Empire, 24 Ratio Juris 435, 444–50 (2011) (defending a concept of original intent immune from Dworkin’s criticism).

36 See Dworkin, Law’s Empire, supra note 28, at 350–54; cf. John F. Manning, What Divides Textualists from Purposivists?, 106 Colum. L. Rev. 70, 91–109 (2006) (identifying adherence to clear semantic meaning over background policy context as textualism’s central differentiating tenet).

37 Dworkin, Law’s Empire, supra note 28, at 346. 38 22 N.E. 188, 189–90 (1889); see Dworkin, Law’s Empire, supra note 28, at 15–20

(discussing Riggs).


9 darter “in spite of,” in Dworkin’s words, “great waste of public funds.”39

3. Dynamic Legal Realists

Dworkin rejects the legal realist thesis that judges legislate in the context of adjudication, even in so-called hard cases.40 Other nonformalists understand the common law as a form of judge-made law. Working within this legal realist understanding, they argue that the common law tradition recommends a dynamic approach to interpretation that gives courts authority make law that may contravene original intent or meaning.

In A Common Law for the Age of Statutes, Judge Calabresi proposes that courts, under limited circumstances, be granted “authority to determine whether a statute is obsolete,” and treated as if it “were no more and no less than part of the common law.”41 Courts could “alter a written law or some part of it in the same way (and with the same reluctance) in which they can modify or abandon a common law doctrine or even a whole complex set of interrelated doctrines.”42 This common law task is one courts can accomplish “using traditional judicial methods and modes of reasoning.”43 Such courts will be engaging in the traditional function of managing the law’s “continuity and change by applying the great vague principle of treating like cases alike.”44 If, like with common law doctrines, a statute “comes not to fit, or to fit awkwardly” in the broader fabric of the law, “courts are able to say so and are as justified in inducing a reconsideration of the statute as they are in reworking the common law.”45 Because updating courts use the “judicial skills” of “looking for consistencies and analogies, the task for which [a court] is trained,” the legitimacy of such revision “remains the same as at common law.”46

Professor Peter Strauss draws on the common law to defend dynamic interpretation and to indict more formalist methods. In our common law tradition, unlike civil law systems, “[c]ourts ‘make law’ as a consequence of

39 437 U.S. 153, 172–88 (1978); Dworkin, Law’s Empire, supra note 28, at 21; see id.

at 337–54 (explicating his method of statutory interpretation through the lens of Tennessee Valley Authority v. Hill).

40 See, e.g., Ronald Dworkin, Hard Cases, 88 Harv. L. Rev. 1057, 1058 (1975) (“[J]udges neither should be nor are deputy legislators, and the familiar assumption, that when they go beyond political decisions already made by someone else they are legislating, is misleading.”)

41 Calabresi, supra note 1, at 2. Judge Calabresi does not seek to revive a lost Golden Age of juriscentric common lawyering at the expense of legislation. Id. at 163 (rejecting “a nostalgic restoration of courts as the primary makers of law, in our system”).

42 Id. at 82. 43 Id. at 164. 44 Id. at 165. 45 Id. at 108. 46 Id.


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the operation of a system of precedent,” including when they interpret statutes.47 Similarly, our legislatures make law in a common law style, “creating statutes to achieve marginal changes” in reaction to particular problems, rather than enacting comprehensive codes in continental fashion.48 Thus, “a common law system [of] any realistic description” identifies legislatures and courts as “partners in the work of government” even if the courts are the junior partner.49 In common law fashion, the “legislature and court operate in parallel, working marginal change in response to social pressure.”50 It is fair for the legislature to assume that courts will take up its handiwork and pursue “the ideal of a unified system of judge-made and statute law woven into a seamless whole by the processes of adjudication.”51

On these grounds, “once we have admitted the common law into that field,”52 the textualist bête noirs of legislative history and unenacted purpose are essential. To privilege enacted text over background purpose is to invite “interbranch war.”53 Professor Strauss thus laments the Supreme Court’s formalist “resegregation” of the worlds of common law and statute.54 “Accretive change and integration of law, so characteristic of common law courts, seem no longer to be federal judges’ responsibilities in dealing with statutes.”55 A true common law system, however, permits extension of statutes by analogy and dynamic interpretation in light of broader change in social circumstances and the legal system.56

Professor William Eskridge also uses the common law as a shield to defend his approach and as a sword against formalist theories. Per Eskridge, courts interpret common law “‘dynamically,’ that is, in light of their present societal, political, and legal context,” rather merely through text and historical context.57 This approach to common law challenges the notion that statutes are “static texts,” whose meaning and purpose are fixed at the moment of enactment.58 In defense of his dynamic approach, he appeals to

47 Strauss, Common Law, supra note 7, at 253. 48 Id. at 225. 49 Id. at 252; see also id. at 254 (“The legislature is the primary law-maker, and the

judiciary a secondary law-maker.”). 50 Id. at 243. 51 Id. at 238 (quoting Harlan Fiske Stone, The Common Law in the United States, 50

Harv. L. Rev. 4, 12 (1936)). 52 Id. at 253. 53 Id. at 246. 54 Peter L. Strauss, On Resegregating the Worlds of Statute and Common Law, 1994

Sup. Ct. Rev. 429, 527–28 [hereinafter Strauss, Resegregating]. 55 Id. at 434 56 See id. at 436–37. 57 Eskridge, supra note 19, at 1479. 58 Id. at 1479–80; see also id. at 1481 (describing his thesis “that statutes, like the


11 the “common law-making powers” that Article III, Section 2’s grant of “judicial Power” vests in federal courts.59 He invokes William Blackstone and the common law classic Heydon’s Case60 to establish that the original understanding of the judicial power contemplates courts’ authority to depart from textual meaning in favor of “the statute’s overall purposes and the current demands of equity.”61

Eskridge argues that “modern formalism” is a break from the Anglo-American legal tradition, a suspect interpolation of “late nineteenth century assumptions” and dogma that effaces the cooperative role of the judiciary central to our common law heritage as understood by “[e]ducated lawyers” at the founding.62 Statutory formalism, a Victorian-era artifact that understands law as a matter of “will and choice,” rather than developing reason, was alien to the Framers and “has little persuasive power for our society today.”63 Disposing of this anomalous jurisprudential intermeddler will bring coherence across the fields of common law, statutory, and constitutional interpretation while connecting American contemporary legal practice with its historical roots.64

4. Strong Purposivism

Finally, the common law exerts a pull on the purposivism of the legal process school.65 Legal process theorists Hart and Sacks thought courts should adopt an interpretation that best promotes the purpose of the statute and the legal system as a whole, so long as the text would “bear” that reading.66 The purpose the court should impute to the legislature is not an

Constitution and the common law, should be interpreted dynamically”).

59 Id. at 1499–1500; see also William N. Eskridge, Jr., All About Words: Early Understandings of the “Judicial Power” in Statutory Interpretation, 1776–1806, 101 Colum. L. Rev. 990, 992 (2001) (“One of my challenges has been for the new textualists to justify their methodology by reference to the original understanding of Article III’s ‘judicial Power,’ which strikes me as friendlier to a pragmatic rather than strictly textualist methodology.”).

60 Eskridge, supra note 19, at 1502 & n.91 (citing Heydon’s Case, 76 Eng. Rep. 637, 638 (Ex. Ch. 1584)).

61 Id. at 1502. 62 Id. 63 Id. at 1503. 64 Eskridge seems to straddle the line between common law romanticism and realism.

By relying on Blackstone and Heydon’s Case, and by casting formalism as a positivist interruption of the common-law tradition, he channels the pre-legal realist tradition. By characterizing Article III as a grant of lawmaking power, however, he buys into the post-legal realist conception of common law adjudication as form of judicial legislation

65 See Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1374–80 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994).

66 Id. at 1374.


12

actual, historical intent or purpose, but should flow from the assumption that legislation is an act of “reasonable persons pursuing reasonable purposes reasonably.”67 Their central example of this technique for inferring purpose is, again, Heydon’s Case, which attends not to the text or historical intention, but rather the “mischief” in the old law and the “true reason for the remedy.”68

Judge Calabresi sees Hart and Sacks’s method as a predecessor to his own. Like him, they subordinate actual, historical legislative will in favor of “maintaining the fabric of the law” and recognize that interpreters, like common law courts, “make law,” thus breaking down “simplistic views of automatic, hard and fast barriers between written law and judicial roles.”69 In Hart and Sacks’s pursuit of broader, reasonable coherence in the law we also see the early glimmers of Ronald Dworkin’s common law romanticism. Their writing on legislation “seeks to show that statutes should reflect, as much as possible, the sort of principles found in common law.”70 For that reason, the legal process approach is “not primarily a theory of statutory interpretation, since it is as much (if not more) a theory of common law interpretation.”71 And for Hart and Sacks, the common law can offer “a comprehensive, underlying body of law adequate for the resolution of all the disputes that may arise within the social order.”72

B. Statutory Formalism against the Common Law Tradition

At their most ambitious, nonformalists urge a court “openly to commit itself to a common law model of statutory interpretation,” in which statutes are “statements of consensually agreed-upon principles—modern analogues to common law rules of decision.”73 Otherwise, courts abandon the common

67 Id. at 1378. 68 Id. at 1378. 69 Calabresi, supra note 1 at 87–88. 70 Anthony J. Sebok, Reading The Legal Process, 94 Mich. L. Rev. 1571, 1592 (1996);

see also Neil Duxbury, Patterns of American Jurisprudence 258 (1995) (“Hart and Sacks purport to favour neither common law nor legislation, . . . yet they seem to display a peculiar preference for the judicial decision.”).

71 Sebok, supra note 70, at 1594. 72 Hart & Sacks, supra note 65, at 647. Their distinction between comprehensive codes

and isolated enactments is also telling. Isolated enactments may allow courts to resolve a dispute “without any reference to the statute whatever” or “encourage[] or direct[] judicial change in accordance with the underlying policy or principle of the statute.” Id. at 1377–78. A comprehensive code may imply that the legislature is “the sole agency of growth of the law” after enactment. Id. at 1378. This contrast points to a division between a restrained civil law regime and a common law system permitting reasoned elaboration.

73 Note, Intent, Clear Statements, and the Common Law: Statutory Interpretation in the Supreme Court, 95 Harv. L. Rev. 892, 913 (1982). The author of this unsigned note is the now-prominent law professor Richard Pildes. See Richard H. Pildes CV, 6,


13 law tradition and become “mere servitors of a positivistic sovereign.”74 They view formalism as resting on Victorian, “late nineteenth century assumptions”75 that “resegregate[]”76 the world of common law and statute (with common law having a separate and unequal status). Unmoved by such laments, modern formalists celebrate their break with the common law’s outdated, unjustified preference for the judicial prerogative.77 They would rather have judges work as mere servitors of justified legislative authority than reign as prideful princes in law’s empire.78

1. Textualists

A prime example of statutory formalism in American law is textualism, which prioritizes a reasonably clear, public semantic meaning of enacted text over unenacted purpose and background policy context.79 The textualist Justice Antonin Scalia names his most famous methodological essay “Common-Law Courts in a Civil Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws.”80 There, he contrasts the role of a federal judge with that of “playing common-law judge,” namely “playing king—devising, out of the brilliance of one’s own mind, those laws that ought to govern mankind.”81 The primary task of a federal judge—operating what in Justice Scalia sees as a civil law system of limited discretion—is to resolve legal questions by “interpretation of text,” not exposition of common law rules and principles.82 And “interpretation” here refers to identifying and adhering to an objective understanding of the

http://its.law.nyu.edu/faculty/profiles/CVFiles/vitawithoutlectures.pdf.

74 Note, supra note 73, at 898. 75 Eskridge, supra note 19, at 1502. 76 Strauss, Resegregating supra note 54, at 528. 77 A notable exception is Professor Caleb Nelson, whose inclination toward formalism

does not lead to hostility toward common law. See generally Caleb Nelson, The Legitimacy of (Some) Federal Common Law, 101 Va. L. Rev. 1 (2015); Caleb Nelson, State and Federal Models of the Interaction Between Statutes and Unwritten Law, 80 U. Chi. L. Rev. 657 (2013); Caleb Nelson, The Persistence of General Law, 106 Colum. L. Rev. 503 (2006) [hereinafter Nelson, Persistence] (explaining the continued relevance of unwritten law in the federal system).

78 Compare Dworkin, Law’s Empire, supra note 28 at 407 (“The courts are the capitals of law’s empire, and judges are its princes . . . .”) with John Milton, Paradise Lost Book I (Scott Ellege ed., Norton Critical Ed. 1993) (“Better to reign in hell, than serve in heav’n”).

79 See John F. Manning, Second-Generation Textualism, 98 Calif. L. Rev. 1287, 1288 (2010) [hereinafter Manning, Second-Generation]; see also Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Meaning, 1990 Sup. Ct. Rev. 231, 232 (noting the rise of such formalism in Supreme Court and offering “a plausible normative argument supporting” this development).

80 Scalia, supra note 2. 81 Id. at 7. 82 Id. at 13.


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text’s meaning at the time of enactment.83 Similarly, in the context of private rights of action, Justice Scalia explains that “‘[r]aising up causes of action where a statute has not created them may be a proper function for common-law courts, but not for federal tribunals.’”84

The textualist Judge Frank Easterbrook works on similar assumptions.85 He argues that courts interpreting statutes should adhere to “cases anticipated by its framers and expressly resolved in the legislative process.”86 Judicial creation of rules in common law fashion in the teeth of text is grounded on the “simply fallacious” premise “that courts can establish a principled jurisprudence” on their own.87 Furthermore, such freestanding judicial power contradicts Judge Easterbrook’s view that “there is no free-floating common law” in the federal system.88 Federal courts may depart from the civil law model and craft new rules through precedent only when a statute like the Sherman Act “plainly hands courts the power to create and revise a form of common law.”89 Otherwise they must apply the objectively reasonable textual meaning or, if the legislation does not clearly speak to the dispute, “put the statute down.”90

State court textualists sound a similar theme. Michigan Supreme Court Justice Robert Young, Jr., for example, argues that statutory interpretation is “not a branch of common-law exegesis” because the separation of powers requires the court to respect the legislature’s codified text.91 In construing this

83 See, e.g., Zuni Pub. Sch. Dist. No. 89 v. Dep’t. of Educ., 550 U.S. 81, 122 (2007)

(Scalia, J., dissenting) (stating that courts should interpret “the law as Congress has written it, not as we would wish it to be”); see also Id. (“The only sure indication of what Congress intended is what Congress enacted; and even if there is a difference between the two, the rule of law demands that the latter prevail.”).

84 Alexander v. Sandoval, 532 U.S. 275, 287 (2001) (quoting Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 365 (1991) (Scalia, J., concurring in part and concurring in judgment).

85 See, e.g., Frank H. Easterbrook, The Role of Original Intent in Statutory Construction, 11 Harv. J.L. & Pub. Pol’y, 59, 65 (1988) (“We should look at the statutory structure and hear the words as they would sound in the mind of a skilled, objectively reasonable user of words.”)

86 Frank H. Easterbrook, Statutes’ Domains, 50 U. Chi. L. Rev. 533, 544 (1983). 87 Id. at 534 n.2 (citing Frank H. Easterbrook, Ways of Criticizing the Court, 95 Harv.

L. Rev. 802, 811–32 (1982)). 88 Jansen v. Packaging Corp. of Am., 123 F.3d 490, 553 (7th Cir. 1997) (Easterbrook, J.,

concurring in part and dissenting in part). 89 Easterbrook, supra note 86, at 544. 90 Easterbrook, supra note 85, at 65. 91 Young, Judicial Philosophy, supra note 4, at 280. See also O’Neal v. St. John Hosp.

& Med. Ctr., 791 N.W.2d 853, 879–80 (Mich. 2010) (Young, J., dissenting) (criticizing majority for “perform[ing] a spectacularly hubristic feat in treating a statutory medical malpractice claim as though it were a mere matter of common law and thus subject to its


15 text, unlike when expounding common law, courts have no authority to correct what they see as poor, but otherwise constitutional, legislative policy choices.92 This is a happy result for Justice Young, who likens the common law to a drunken, elderly relative overstaying his welcome at a party—better ignored than welcomed into the discussion.93 Other commentary on state jurisprudence, while less disdainful of the common law, justifies formalist approaches to legislation by distinguishing between the common law process and statutory interpretation.94

Academic textualists follow suit. Textualist John Manning, for example, argues that classical English cases adopting nonformal methods of interpretation should not inform federal practice because those common law courts blended lawmaking and adjudicative powers in a manner alien to our constitutional norms and structure.95 Similarly, while not staking a firm position on state law, his defense of federal textualism contrasts state courts’ general common law powers with post-Erie federal courts of limited jurisdiction.96 These distinctions are central to Manning’s rebuttal of William Eskridge’s argument that Article III’s “judicial Power” authorizes nonformal, equitable statutory interpretation.

2. Formal Intentionalists and Faithful Agency Theorists

Statutory formalism is not limited to textualists who preclude any strong role for legislative intent in interpretation.97 For example, although intentionalism is usually associated with immersion in legislative history, a number of intentionalists advocate formalist interpretive methods—prioritizing text as evidence of intent, rejecting the use of legislative history, and resisting calls to interpret statutes in light of “purpose” understood at a high level of generality.98 A prime example is Professor Richard Ekins,

revisionary powers”).

92 See Young, Judicial Philosophy, supra note 4, at 281. 93 Young, Common Law, supra note 6, at 302. 94 See Ron Beal, The Art of Statutory Construction: Texas Style, 64 Baylor L. Rev. 339,

342–48 (2012). 95 See Manning, Textualism and the Equity, supra note 8, at 29–36. 96 See John F. Manning, Response, Deriving Rules of Statutory Interpretation from the

Constitution, 101 Colum. L. Rev. 1648, 1662–63 (2001) [hereinafter Manning, Deriving Rules].

97 The greatest role that orthodox textualists will give to legislative intent is the minimal intention that a speaker wishes to be understood pursuant to the community’s objective, conventional norms of speech in the given context. See John F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2457–58 & n.258 (2003) [hereinafter Manning, Absurdity Doctrine] (citing Joseph Raz, Intention in Interpretation, in The Autonomy of Law: Essays on Legal Positivism 249, 257–60 (Robert P. George ed., 1996)).

98 See, e.g., Richard Ekins, The Nature of Legislative Intent 254, 272 (2012); cf. Caleb Nelson, What is Textualism?, 91 Va. L. Rev. 347, 349 (2005) (arguing that textualism is best


16

whose rule-like rejection of legislative history and strong emphasis on publicly enacted text often resembles textualism in practice.99

Such intentionalists contrast legislation and its interpretation with the common law method. Ekins argues that enacted legislation—“a detailed set of legal rules—a code” tends to “posit[] law in the best form possible.”100 This is because its “public, canonical text, which is the focus of legal reasoning,” can settle public questions more clearly and decisively than alternative candidates like custom or “the best understanding of a line of cases.”101 Similarly, he argues that a legislature is particularly well-suited for deliberating about the common good.102 If courts treat legislative language like case holdings—collapsing canonical decisions into higher-level purposes or inchoate principles—they undermine the common good and the rule of law.103

Professor Thomas Merrill puts faithful agency to legislation and respect for statutory meaning atop his hierarchy of tasks in statutory interpretation.104 Only when those tools run out should courts use “integrative” tools like precedent, canons, and coherence with other enactments.105 Merrill explains that the originalist, faithful agent mode of interpretation flows from the 19th

understood as a rule-like method for identifying legislative intent); Larry Alexander & Saikrishna Prakash, “Is That English You’re Speaking?” Why Intention Free Interpretation is an Impossibility, 41 San Diego L. Rev. 967, 992 (2004) (same).

99 See Ekins, supra note 98, at 268–72; see also Hillel Y. Levin, Book Review: Intentionalism Justice Scalia Could Love, 30 Const. Comment. 89, 96–99 (2015) (noting the practical similarities between Ekins’ intentionalism and Justice Scalia’s textualism); Donald L. Drakeman, Charting a New Course in Statutory Interpretation: A Commentary on Richard Ekins’ The Nature of Legislative Intent, 24 Cornell J.L. & Pub. Pol’y 107, 117 n.90, 120 (2014) (noting some practical similarities despite sharp theoretical differences between Ekins and textualists like John Manning).

100 Ekins, supra note 98, at 125. 101 Id. See also Paul Yowell, Legislation, Common Law, and the Virtue of Clarity, in

Modern Challenges to the Rule of Law (Richard Ekins ed. 2011) (identifying ways in which the clarity of legislative direction promotes rule-of-law values better than common law).

102 See Ekins, supra note 98, at 125 (“The legislature responds directly to the complexity of the common good in that its deliberation is open to whatever is relevant . . . including moral argument, empirical findings, and the interests of various members of the community . . . .”).

103 See, e.g., id. at 253 (arguing that courts should respect the means a legislature has chosen to pursue a particular end, “even if it may be unwise”). Cf. John F. Manning, Federalism and the Generality Problem in Constitutional Interpretation, 122 Harv. L. Rev. 2003, 2007 (2009) [hereinafter Manning, Federalism] (“[B]ecause legislators choose means as well as ends, an interpreter must respect not only the goals of legislation, but also the specific choices Congress has made about how those goals are to be achieved.”)

104 Thomas W. Merrill, Faithful Agent, Integrative, and Welfarist Interpretation, 14 Lewis & Clark L. Rev. 1565, 1575, 1590–91 (2010).

105 Id. at 1582–83.


17 Century positivist notion that subjects, including judges, must obey the commands of the sovereign.106 By contrast, Merrill argues that the less formal, “integrative” mode, which seeks to “knit [multiple] sources together in order to produce the meaning that has the best ‘fit,’” has historical roots in common law judging.107 The “positivist,” legislature-directed mode of interpretation must have primacy to respect “the bedrock principle of our constitutional government—popular sovereignty.”108 Accordingly, he criticizes “nonoriginalist” interpretations for departing too far from faithful agency, and he finds “pragmatic,” openly consequentialist approaches “corrosive” to the legal system.109

II. The Place of Legislation in the Common Law Tradition

This Article challenges the received wisdom on the relationship between the common law and statutory interpretation. Doing so requires demonstrating that the common law tradition does not subordinate reasonably clear statutory norms to judicial creativity. The first step is to show how common law theory is less hostile to legislation than many contemporary formalists believe. As this Part will show, sophisticated classical common lawyers saw legislation as a central component in a common law system that sought to internalize the general customs and ways of the realm. Rules arising in adjudication and legislative statutes were two forms of law pursuing the same goal of embodying the custom of the realm. As Part III will show, the process for enacting statutes in common law systems resembles the formulation of rules in adjudication in significant respects. Common law, in short, is not just about the heroic judge. In fact, it is no exaggeration to say that the populism of classical common law theory laid the groundwork for parliamentary supremacy.

Accordingly, a sharp separation between common law rules and legislation is not sustainable, nor is the belief that the common law tradition champions judicial decisions to the detriment of legislation. So far, antiformalists who claim the common law tradition would agree. But it is also far from clear that understanding statutory legislation as a kind of “common law” entails a rejection of formalism in statutory interpretation. While Parts II and III undermine the standard formalist view of the common law tradition, Part IV will challenge the inferences antiformalists draw from these

106 See id. at 1567, 1569. 107 Id. at 1569. 108 Id. at 1575. 109 Id. at 1598–99. Merrill raises similar points while arguing that federal courts should

have only limited inherent common law powers. See, e.g., Thomas W. Merrill, The Judicial Prerogative, 12 Pace. L. Rev. 327, 344–46 (1992); Thomas W. Merrill, The Common Law Powers of Federal Courts, 52 U. Chi. L. Rev. 1, 12–32 (1985).


18

conclusions. It will argue that, even though modern statutes are central components of a common law system, a more careful look at common law theory reveals strong arguments for formalist interpretation of our common law statutes. But before we get too far ahead of ourselves, let’s first challenge the notion that the common law had little time or respect for statutes.

A. Classical Common Lawyers’ Views on Legislation

The standard story scripts the common lawyer as lavishing attention on judicial decisions and ignoring statutes when he is not deriding them. More than a few grains of truth are there. Lawyers like Edward Coke (1552–1634) and John Davies (1569–1626) spoke of the common law as capturing the custom and immemorial wisdom of the people—the “perfection of reason” that no individual or legislature could replicate or capture in the form of words.110 These common lawyers viewed statutes with hostility. While common law was shared, perfected reason and “the custom of the realm,”111 Parliament produced “arbitrary and heedless legislation” that constituted “the exercise of will of one party over another.”112 In terms reminiscent of a Hobbesian notion of legal authority, such common lawyers saw “the model of a command” as fitting statute law to a tee.113 To minimize and domesticate this alien and dangerous form of law, such common lawyers strained to read legislation as declaratory of the common law or “relegated [it] to an insignificant corner of the space they claimed for common law.”114 The only salutary role Parliament played was correcting ill-advised judicial departures from perfect, immemorial custom.115

But that is only part of the story. Even before the Austinian positivism that allegedly gave rise to faithful agent theories of statutory interpretation—and even before Blackstone—an alternative interpretation of the common law tradition afforded a much greater role for legislation. Matthew Hale (1609–1676) and his mentor John Selden (1584–1654), who were “more

110Gerald J. Postema, Classical Common Law Jurisprudence (Part I), 2 Oxford U.

Commw. L.J. 155, 169–72 (2002) (describing the “Coke-Davies Position” on common law as custom of the realm) [hereinafter Postema I].

111 Thomas Hedley, Speech in Parliament on Royal Impositions in 2 Proceedings in Parliament, 1610 182 (Elizabeth Read Foster ed., 1966).

112 Postema II, supra note 8, at 18. 113 Id. 114 Postema I, supra note 110, at 169–72. 115 See Charles M. Gray, Editor’s Introduction to Sir Matthew Hale, The History of the

Common Law of England, at xxv (Charles M. Gray ed., 1971) (1713). Common lawyers’ skepticism toward legislation did not die in the 17th Century. See, e.g., James Coolidge Carter, Law: Its Origin, Growth, and Function 221 (1907) (“The popular estimate of the possibilities for good which may be realised [sic] through the enactment of law is, in my opinion, greatly exaggerated.”).


19 sophisticated, more sceptical and more moderate” than Coke,116 regarded statutes, like judicial decisions, as integral to a common law that is custom of the realm.117 For Hale, the common law had three “‘formal constituents’”: usage and custom, Acts of Parliament, and judicial decisions.118 While Hale, like us, recognized that the term “Common Law” was often used to distinguish judicial decisions from “Statute law,” he held that the term derived its meaning “most truly” from the fact that it is the shared “Law or Rule of Justice” in the kingdom—the law that is “common to the generality of all Persons, Things and Causes.”119 Tellingly, the very first chapter of Hale’s landmark 17th century work, The History of the Common Law of England, concerns “Statute Laws, or Acts of Parliament.”120

This focus on legislation was no mere brush-clearing. In Hale’s work, legislation “far from being an ambiguous character, is the hero of the piece,” serving as an engine for improving English law from medieval times on.121 Hale was a law reformer whose treatise on “‘The Amendment of the Laws’” embraced careful “legislative alteration of the common law,” and his bias was as “prolegislative, as Coke’s was antilegislative.”122 An understanding of a system in which legal change was “effected by judicial decisions alone” would have “offended” Hale “even if it had been accessible intellectually.”123 In Hale’s eyes, the common law tradition embraced legislation as an integral part of the system. Classical common law theory therefore did not unequivocally “contrast[] the reasoned and considered judgments of the courts with the arbitrary and heedless legislation of Parliament.”124

For Hale, the difference between written statutory law and “unwritten” law was the mode in which law became valid. Written, statutory law was valid “by virtue of having been explicitly made by an authorized law-maker.”125 Unwritten law—either in the form of precedent, custom, or even rules embodied in parliamentary legislation that disappeared from the historical record—gained its authority by “incorporation into the use and

116 Postema I, supra note 110, at 172. 117 See Id. at 172–76 (outlining the “Hale-Selden Position” on common law as custom

of the realm). 118 Postema II, supra note 8, at 11; see also id. (describing Hale’s position on the three

constituents of the common law as “orthodoxy” at the time of its writing). 119 Sir Matthew Hale, The History of the Common Law of England 36–37 (Charles M.

Gray ed., 1971) [hereinafter Hale, History]. 120 Id. at 3. Hale lived from 1609 to 1676. His History was published posthumously.

Gray, supra note 115, at xiii–xv. 121 Gray, supra note 115, at xxvii–xxix. 122 Id. at xxix. 123 Id. at xxxv. 124 Postema II, supra note 8, at 18. 125 Id. at 19.


20

practice” of the common law system.126 On these grounds, Hale also treated Roman and canon law, which were undoubtedly committed to writing, as “Unwritten” law because the common law chose to incorporate them in limited areas.127 The authority of precedential norms—and statutes from other polities––depended on the courts taking them up into the system, while extant parliamentary legislation had inherent force of its own right by the sheer fact of enactment “according to established constitutional rules.”128

Hale was no marginal or idiosyncratic figure, but rather represented a significant—and arguably more sophisticated and accepted—line of thought in the classical common law tradition.129 In this line, statutes, along with judicial decisions and custom, were a crucial, respected component of “the common law” system. More needs to be said about the nature of and relationship between these constituent parts of the common law. Hale’s view that legislation is valid by virtue of Parliamentary enactment alone could suggest a radical difference between statutes and precedent within the common law system—perhaps even laying the groundwork for “late nineteenth century assumptions” that written statutes are like orders of a “positivistic sovereign.”130 Yet intellectual historians also interpret Hale as seeing legislation and precedent as manifestations of the same common law in different “modes of existence,” not as radically different legal creatures.131 To begin to solve this puzzle, and to dispel the notion that classical common lawyers’ respect for statutes flowed from Hobbesian premises, it is useful to explore the common lawyers’ understanding of legislation itself, not just its place in the legal system.

B. Two Models of Legislation

Legal philosopher Jeremy Waldron’s book, Law and Disagreement, is a helpful starting point for theorizing about legislation and legislatures.132

126 Id. at 19; see Hale, History, supra note 119, at 16–17. 127 See Hale, History, supra note 119, at 19. 128 Postema II, supra note 8, at 19. 129 Professor Gerald Postema, a leading contemporary historian of common law thought,

places Hale’s writings on the nature of the common law system and adjudication at the center of his reconstruction of classical common law theory. See generally Postema I, supra note 110, at 172–76; Postema II, supra note 8; Gerald J. Postema, Bentham and the Common Law Tradition 6–35 [hereinafter Postema, Bentham] (1986).

130 Eskridge, supra note 19, at 1502; Pildes, supra note 73, at 898. 131 Postema II, supra note 8, at 19. 132 Jeremy Waldron, Law and Disagreement (1999) [hereinafter Waldron, Law and

Disagrement]; see also Jeremy Waldron, The Dignity of Legislation 1 (1999) (positing that contemporary jurisprudence lacks a “model that is capable of making normative sense of legislation as a genuine form of law, of the authority that it claims, and of the demands that it makes on the other actors in a legal system”).


21 There, he identifies two different conceptions of legislation: one which descends from a sovereign legislator versus one which ascends from the custom of the people.133 The first, which he argues is dominant among legal theorists today, draws a “Hobbesian picture.”134 There, following Hobbes, Jeremy Bentham, and John Austin, “legislative proposals [are] put forth by individuals, one of which is adopted authoritatively by the sovereign-legislator and then promulgated with the marks of valid law.”135 The roots of this conception, Waldron argues, trace back to the Roman law notion that the will of the prince makes a rule law. The prince is “autonomous, independent and, to use a modern term which seems quite legitimate to employ in this context…sovereign.”136

Drawing on the work of historian Walter Ullmann, Waldron describes this theory of legislation by a unitary sovereign as the “descending” model of legislative authority.137 This is not the only conception of legislation available, though it is one that common lawyers often used in their polemics against legislation.138 An alternative conception, whose origins also predate the common law, is the “ascending” model. It views law as an embodiment of shared custom—“the law of the people or the law of the land, rather than the king or the will of the prince.”139 Law “wells up from those who are subject to it, rather than being handed down from on high.”140 While the descending, unitary theory of authority fits neatly with a monarchical legislator, Waldron argues that the modern analogue to the ascending, customary model is legislation by a pluralistic assembly.141 There, legislation emerges

…from a process that is deliberative, a process distinguished not just by its Hobbesian decisiveness, but also by the engagement with one another in parliamentary debate of all the views that might reasonably be thought competitive with

133 See Waldron, Law and Disagreement, supra note 132, at 55. 134 Id. at 40. 135 Id. at 40; see id. at 43–45 (tracing this vision’s connection with Hobbes, Bentham,

and Austin). 136 Id. at 56 (quoting Walter Ullmann, Principles of Government and Politics in the

Middle Ages 19 (1961)). 137 Id. 138 See, e.g., James Coolidge Carter, The Proposed Codification of Our Common Law 6

(1884) (contrasting a common law that by process of “natural growth…springs up from, and is made by, the people” with “Codes, enacted by the arbitrary power of the sovereign, or by the authority of a legislative assembly”).

139 Id. 140 Id. 141 See id. at 55.


22

whatever legislative proposal is under consideration. Modern legislatures are structured to secure this, with rules about representation…rules about hearings, rules about debates, rules about amendments, and above all rules about voting.142

Waldron discusses the late medieval and feudal roots of the ascending,

customary model of legislation and analyzes how the contemporary legislative process replicates it in modern form. The ascending model arose in England with a feudal king making decisions in consultation with the nobility, with both parties bound by reciprocal rights and obligations.143 Growing from this base, the rise of democratic assemblies “was not a matter of the people seizing sovereign legislative authority hitherto held by the monarch,” but rather “elected representatives coming to be regarded as indispensable members” of a consultative community.144

Accordingly, while “custom and assembly-legislation look quite different as sources of law,” Waldron finds “surprising affinities” between the two in how a group larger than a prince or a king—“the people”—plays a central role in shaping the law.145 Waldron finds many of these affinities in medieval jurisprudence,146 but essential to the present argument is identifying the links in the chain between medieval customary law and the modern legislation that Waldron sees as its contemporary instantiation. Classical common law thought, I argue, helps bridge that temporal and conceptual gap.

C. The Common Law, Including Legislation, as Custom of the Realm

In England, the ascending model of legal authority took root in the form of the lex terrae—feudal law governing estates.147 In time, this law became the font for what we now know as the common law, “the third great European system of law” after Roman and canon law.148 In important respects, the development of common law thought is a story of increasing identification

142 Id. at 40. 143 See Ullmann, supra note 136, at 151–53. 144 Waldron, Law and Disagreement, supra note 132, at 59. 145 Id. at 55. 146 See id.; see also Joseph Canning, The Political Thought of Baldus de Ubaldis 100–

101 (2003) (“Custom and statute do not differ in their efficient cause and its efficacy, but [rather] in their mode and form.”).

147 See Ullmann, supra note 136, at 166–67; see also Postema, Bentham, supra note 129, at 3 (“Classical Common Law theory was born at a time when, emerging from feudalism, modern English society and the modern state were taking shape.”)

148 Ullmann, supra note 136, at 167; see Hale, History, supra note 119, at 36 (stating that the common law “‘[t]is called sometimes by Way of Eminence, Lex Terrae”); Ullmann, supra note 136, at 166 (“If we may borrow a term from later generations we may justifiably call the lex terrae the early thirteenth-century expression for the English common law.”).


23 between law and popular custom. However, the 12th and 13th century common lawyers who wrote the treatises Bracton and Glanvill were more likely to link the common law with the will of monarch than the customs and ways of the people.149 By 1528, however, Christopher St. Germain was tracing linkages between the technical doctrine of the common law and the “general customs of old time used through all the realm.”150 His conception of custom was “unambiguously populist.”151

The great lawyer John Selden, in turn, saw the superiority of the common law not in its antiquity, but in how it fit the needs and ways of the people subject to it.152 Similarly, he traced the common law’s authority to its customary links. Living in accordance with custom was, to Selden, a form of consent. Identifying custom at the root of common law made it possible to claim that this positive law grew up from the community.153 By the late 17th century it was unremarkable for Hale to identify the “custom of the realm” as “the great substratum” of the common law.154 Common lawyers by then read the king’s promise in the Magna Carta to honor the lex terrae as a pledge to adhere to this common law. This equation of lex terrae and common law allowed common lawyers to put mutual obligation and consensual governance between king and subjects at the center of English law, supporting the claim that “the common law” is a basic component of the English legal system.155

It comes as no surprise that Hale described Hobbes’s conception of the sovereign—an individual dictating authoritative rules unconstrained by anything but conscience and God’s judgment—as “utterly falce, [sic]” “agst all Naturall Justice, [sic]” “Pernicious to the Govern.,” “Destructive to the Comon [sic] good,” and “Without any Shaddow [sic] of Law or reason to Support them.”156 The common law emerged in opposition to political

149 See Alan Cromartie, The Idea of Common Law as Custom, 204–06 in The Nature of

Customary Law: Legal Historical and Philosophical Perspectives (Amanda Perreau-Saussine & James B. Murphy, eds. 2007).

150 Id. at 211 (quoting Christopher St. Germain, Doctor and Student 35 (T.F.T. Plunkett & J.L. Barton ed. 1974).

151 Id. at 211. 152 See Harold J. Berman, The Origins of Historical Jurisprudence: Coke, Seldon, Hale

103 Yale L.J. 1651, 1698 (1994). 153 See id. at 1699–1700. 154 Hale, History, supra note 119, at 84; see Cromartie, supra note 149, at 221–22

(discussing Hale). 155 Hale, History, supra note 119, at 36 (stating that when the Magna Carta uses the term

“Lex Terrae, . . . certainly the Common Law is at least principally intended by those Words”); Ullmann, supra note 136, at 167 (“The ingenuity of the makers of Magna Carta in applying the term lex terrae is indeed in no need of comment.”)

156 Reflections by the Lrd. Cheife Justice Hale on Mr. Hobbes His Dialogue of the Lawe [sic], reprinted in 5 W.S. Holdsworth, A History of English Law 509 (1927)[hereinafter Hale,


24

theories of absolutism that sought to centralize authority in sovereign monarchs who made law “guided by nothing but their own assessments of the demands of justice, expediency, and the common good.”157 Common lawyers “reasserted the medieval idea” that law is discovered and expressed by “king, Parliament, or judges,” not made and imposed by them from above.158

Classical common lawyers did not view the law discovered and expressed as pertaining to universal, rational truths (or at least not directly), but rather as “historically evidenced national custom.”159 This repeated refrain that common law represents the custom of the realm dovetails with Waldron’s ascending model of legislation: the law is “something held in common, something essentially ours, something indeed which only exists to the extent that it is embedded in and part of a shared way of life”; furthermore, “metaphors of organic growth rather than artificial innovation” will more commonly describe substantive change in the system.160 Hale and Selden understood common law as custom to be “constantly changing” through interpretation and “sometimes outright legislation.”161 Over time and changed circumstances, the law would change, but what mattered was the continuity of the legal system’s framework and the law’s congruence with the “‘frame’ and ‘disposition’ of the people” subject to it.162 The appeal to custom, in this sense, is not a claim about “historical origins” or the particular form or instantiation of law, but a claim about law’s “essential nature and its foundations or authority.”163 For this reason, the three “constituents” of the common law—statute, judicial decisions, and custom—are three different “modes of existence of law, or forms of legal validity” for law grounded in a

Reflections].

157 Postema, Bentham, supra note 129, at 3–4. 158 Id. 159 Id. at 4; see also Brian Simpson, The Common Law and Legal Theory, in A.W.B.

Simpson, Legal Theory and Legal History: Essays on the Common Law 373 (1987) (identifying and embracing “the traditional notion of the common law as custom, which was standard form in the older writers” like Hale and Blackstone); Philip Hamburger, Law and Judicial Duty 51–52 (2008) (explaining the classical understanding of common law as a form of custom “recorded in popular memory” and instantiated in the “use and practice” of the courts).

160 Waldron, Law and Disagreement, supra note 132, at 56–57. 161 Postema I, supra note 110, at 173. 162 Gray, supra note 115, at xxvii (stating that for Hale, “only one feature of the [legal]

system was clearly immemorial . . . : the constitutional frame” of the English polity); Postema I, supra note 110, at 175.

163 Gerald J. Postema, Some Roots of our Notion of Precedent, in Precedent in Law 8, 16 (Laurence Goldstein ed. 1987).


25 shared sense of reasonableness.164

Few today surpass Waldron’s championing of legislation in the Anglo-American legal system. But if he is correct that our system of legislation is a bottom-up affair, and if this model arose in protean form in twelfth-century England as customary feudal law,165 the common law tradition appears to form links in the chain from medieval customary law to legislation as we know it. This implication is less counterintuitive when we recall how Hale saw legislation as integral to the common law system. In fact, “the increasing salience of customary law” in common law thought “owed something to the role played by statute” as an increasingly important means of legal change.166 Legislation and judicial precedent are different “modes of existence” of the same common law in that they seek to channel popular custom. And while they operate through different methods, neither are limited to an understanding of legal development as top-down imposition of the will of a sovereign (or sovereign few).167 III. Legislating in the Common Law Tradition

In the common law tradition, both legislation and judicial decisionmaking seek to develop law that reflects the customs and beliefs of those subject to it. This shows a basic connection between decisional and statutory law. For many statutory antiformalists, this shared root is methodologically crucial: if “common law and statutes” are not speciously segregated as a conceptual matter, the style of reasoning in common law adjudication, not formalist restraint, should prevail in statutory interpretation.168 This Part drills down on the premise underlying this interpretive conclusion, exploring how the development of precedent and statutes are congruent in the common law tradition. It does so first by distilling what classical common lawyers thought

164 Postema II, supra note 8, at 11, 19 (internal quotation marks omitted). 165 See Ullmann, supra note 136, at 155–56 (describing how the notion of descending,

theocratic kingship gave way to ascending, feudal notions of kingship during the reigns of Kings Henry II, Richard I, and John).

166 Cromartie, supra note 149, at 213–14 (referring to the role statutes played in “putting through the English Reformation” and stating that “[i]f statute had power to alter the country’s religion, the obvious corollary was that the highest law was a law made by popular consent”){AU: this didn’t fit one of our permissible parenthetical forms. I edited to make it fit the participle phrase form, but you might also make it into two complete sentences instead if you want to bring in some more text from the first sentence or add bracketed information to complete the first sentence}

167 Cf. Geoffrey Goldsworthy, The Sovereignty of Parliament 109 (1999) (stating for many common lawyers “the authority of the common law and that of Parliament were one and the same: the common law embodied the wisdom of the community, as expressed in immemorial customs,” while that wisdom “lives still in that which the law calls the ‘reason of the kingdom,’ the votes and ordinances of Parliament”).

168 See Strauss, Common Law, supra note 7; Strauss, Resegregating, supra note 54.


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to be distinctive about the “artificial reason” of the common law jurist—a topic that is the most frequent focus of common law theory then and today. This Part then identifies parallels between this artificial reason of common law adjudication and current methods of legislating in the United States. These similarities show continuity between judicial decisionmaking and legislation in the common law tradition that persists today. As will become clearer in Part IV, however, many of these structural similarities point toward formalism in the interpretation of such “common law” statutes.

A. Artificial Reason of the Common Law

The first step is appreciating what common lawyers thought to be distinctive about their practice. Classical common lawyers frequently and unfavorably compared the natural reason of an ordinary person, a monarch, or “Casuists, Schoolmen, [and] Morall [sic] Philosophers” with the “artificial reason and judgment” of the common law.169 The “unstable reason” of those untutored in the law will fall into “jangling and Contradiction”170 and reflect not disciplined, shared reason, but “the arbitrary incursion of political will.”171 This notion of artificial reason is as controversial as it is central to common law theory. For critics like Bentham, artificial reason was a façade that “Judge & Co.” used to protect their power and prestige.172 For common lawyers, it was essential to the enterprise, though rarely defined with precision.

As Professor Gerald Postema explains, common law’s artificial reason was pragmatic and contextual, not abstract and systematic.173 Unlike Bentham’s legislator “surveying the problems” and formulating systematic rules from on high, common lawyers worked close to the ground, “with their eyes down,” to find practical solutions to discrete problems.174 As a corollary to this pragmatic, contextual orientation, aspirations for systemic theoretical

169 Hale, Reflections, supra note 156, at 503; Prohibitions del Roy, in E. Coke, The

Reports of Sir Edward Coke, in Thirteen Parts (1727) 12th Report 63; see generally Postema II, supra note 8, at 1–11 (giving an overview of the classical common lawyers’ conceptions of “artificial reason”).

170 Hale, Reflections, supra note 156, at 503. 171 Postema II, supra note 8, at 2. 172 Postema, Bentham, supra note 129, at 273–75. 173 Postema’s reconstruction of this “artificial reason” is the most sophisticated and

prominent rendition in contemporary jurisprudence. In addition writing what is considered an authoritative book on the common law tradition and Jeremy Bentham, see Postema, Bentham, supra note 129. Prof. Postema was selected to author the chapter on the philosophy of the common law in the magisterial Oxford Handbook of Jurisprudence and the Philosophy of Law.

174 Postema II, supra note 8, at 3 (quoting S.F.C. Milsom, Historical Foundations of the Common Law 7 (1981)) (internal quotation marks omitted).


27 coherence played a limited role in the common law. To its critics and champions alike, the common law was a corpus “wholly without conformity, and altogether dismembered” and “a chaos with a full index.”175 Tennyson described that “codeless myriad of precedent” as a “wilderness of single instances.”176 According to legal historian Brian Simpson, the “common law is more like a muddle than a system,” and the common law mind is “repelled by brevity, lucidity, and system.”177

The classical common lawyer, rather than seeking a small set of principles uniting whole fields of law,178 was content to have small pockets of the law work and make sense, even if the broader doctrinal structure did not hang together in one elegant constellation. Although common law thought does not categorically forswear the search for principles across legal domains, “it recognises [sic] that often practical life can be better managed intelligently when portions or domains are treated as relatively discrete.”179 To seek only “local coherence” along those lines is usually “a more manageable task and enables more supple responses to changing circumstances.”180 Very often these pragmatic preferences will maintain rules and “categories that may appear, from a more global perspective, to be unsupported by good reason” or a legal regime that “from a more theoretical perspective, might have appeared to be a lack of systemic coherence.”181 This feature of common law practice frustrated academic lawyers steeped in the civil law tradition, who wanted judges to undertake “learned explication” that would make “English law more complete and rational.”182Common law reasoning, moreover, was

175 Postema II, supra note 8, at 5–6 (quoting John Dodderidge, The English Lawyer 190

(1631); T.E. Holland, Essays on the Form of the Law 171 (1870)) (internal quotation marks omitted).

176 Lord Alfred Tennyson, Aylmer’s Field (1793). 177 Simpson, supra note 159, at 24. See also Eben Moglen, Legal Fictions and Common

Law Legal Theory: Some Historical Reflections, 10 Tel-Aviv U. Studies in Law 33, 33 (1990) (“[T]he distinguishing marks of the common law . . . are its resistance to systematization, its refusal to consider more than the case at hand, and [its resistance to] attempts at ‘academic’ or comprehensively analytical statements of substantive rules and their presuppositions.”).

178 See Gerald J. Postema, Law’s System: The Necessity of System in Common Law, 2014 New Zealand L. Rev. 69, 69–70 (2014) [hereinafter Postema, Law’s System] (criticizing modern attempts at this systemization).

179 Id. at 97. 180 Id.; cf. Barbara Baum Levenbook, The Role of Coherence in Legal Reasoning, 3

Law and Philosophy 355, 368 (1984) (arguing that in legal reasoning “room has to be made for what can be called ‘area specific coherence’”).

181 Postema, Law’s System, at 97; Postema II, supra note 8, at 5; see Hamburger, supra note 159, at 38 (stating that “common lawyers did not forgo their attention to reason, but they were . . . confident that common law was binding even if it was unreasonable or contrary to natural law”).

182 Hamburger, supra note 159, at 116.


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“discursive, that is, as a matter of deliberative reasoning and argument in an interlocutory, indeed forensic, context.”183 Even the wisest individual could not reach sound conclusions about the common law by reasoning alone. Rather, practitioners had to present and evaluate arguments in the structured, indeed solemn, forum of a court of justice.184 The ritualized argument of the courtroom “disciplined” individuals’ reasoning by subjecting arguments “to cross-examination in a public forum according to public standards of success and failure” and forcing disputants “to strive for common judgment in the face of dispute and disagreement.”185 Relatedly, artificial reason was “common or shared” reason, a competence learned through this practice of argument and immersion in the life and experience of the community.186 Artificial reason is different than the speculative reason of the philosophers, and common law theory’s corresponding model of adjudication rejects the notion that courts in challenging cases simply appeal to natural reason or conscience.187

Artificial reason is a product of discipline, argument, and experience that seeks to identify, or approximate by construction (“artifice”), the community’s shared reason on social problems. Artificial reason aspires to find the “convergence of the views and judgments of the larger community, and forging and maintaining a common sense of reasonableness.”188 In contrast to the speculation of the philosopher or the isolated judgment of sovereigns, artificial reason is “social [as] opposed to individual.”189 Accordingly, “[s]alience, not vision, and pragmatic convergence,” not broad “theoretical coherence” with a “single moral vision or systematic rationality” are the common law’s aim.190 Requiring broad coherence under such demanding criteria will often frustrate the search for common reason.

Finally, even though the validity of a piece of artificial reasoning turns on its compliance with a shared sense of reasonableness, the resulting law must

183 Postema II, supra note 8, at 7 (spelling of “discoursive” de-Anglicized for

expositional purposes). 184 See id. (quoting E. Coke, The Reports of Sir Edward Coke, in Thirteen Parts 9th

Report, at xiv (George Wilson ed., 1793)) (“[N]o one man alone with all his true and uttermost labours, nor all the actors in them themselves by themselves out of a court of justice nor in court without solemn argument . . . could ever have [come to the right reason of the rule].” (alteration and emphasis in original)).

185 Id. at 8. 186 Id. at 8–9 (emphasis removed). 187 See id. at 9. The classical common lawyer rejects “the Hobbesian idea that once the

sources of law run out the judge must appeal to his natural reason, or the civilian view . . . that the judge must appeal to conscience.” Id.

188 Id. at 10. 189 Id. at 11. 190 Id. at 10.


29 offer public guidance. While not prioritizing clear rules as much as some later theorists, common law thought comprehended that its rules must be “intelligible to those who are subject to it.”191 Those rules must “make practical sense” and broadcast “what kind of behavior the law calls for and . . . give them some reason for complying.”192 This guidance has the substantive component of practical sensibility, but also suggests a formal aspect. The common law offer guidance because of its publicity. Not only is the process of reasoning public, the resulting guidance “is addressed in public to a public of rational agents that it seeks to guide.”193 Thus, the common law offers a “theoretically untidy, but practically accessible and widely and publicly intelligible, framework for legal reasoning.”194 What it lacks in elegance, it makes up for in “public accessibility and with it effective public accountability.”195

B. Legislating as Artificial Reasoning

In case law, the artificial reason of classical common law looks for workable solutions to particular problems through a disciplined practice of public argument and deliberation. It aims to forge a shared understanding of what is reasonable that, in part because its reasonableness, offers public and normative guidance. If sophisticated, orthodox common law theory also includes legislation as a critical element, it would not be surprising to see statutes develop in a fashion similar to the judicial reasoning that is the more frequent focus of common law theory.

In fact, central features of statute-making in United States federal law show parallels with, or at least fruitful analogies to, the artificial reason that develops doctrine in common law adjudication. It is harder to generalize, but similar arguments may also apply to much state legislation.196 This analysis will focus on federal law for simplicity’s sake and because federal law offers the strongest challenge to the argument that the common law tradition remains relevant. It is a frequent refrain that federal courts, unlike state courts, are not general common law courts.197 The argument here is that even in

191 Postema, Law’s System, supra note 178, at 88–89. 192 Id. 193 Id. at 89 (emphasis in original). 194 Id. at 103. 195 Id. (emphasis removed). 196 The success of codification movements in some jurisdictions and the prevalence of

uniform laws in many others may weaken the analogies between legislation and common law development discussed infra.

197 See City of Milwaukee v. Illinois, 451 U.S. 304, 312 (1981) (“Federal courts, unlike state courts, are not general common-law courts and do not possess a general power to develop and apply their own rules of decision.”) (citations omitted); see generally Caleb Nelson, State and Federal Models of the Interaction between Written and Unwritten Law, 80


30

federal law the common law tradition persists, at least in the style of legislation. Others, notably Professor Peter Strauss, have flagged this resemblance.198 This section develops that insight in light of classical common law theory.

Take first how common law reasoning and development was pragmatic, contextual, and non-systematic. Federal legislation is famously (or notoriously) piecemeal and reactive, responding in incremental fashion to discrete and particularly salient problems.199 Even systemic reform statutes like the Affordable Care Act and the Sarbanes-Oxley Act build off existing structures and leave wide swaths of problems unanswered, usually for administrative agencies to resolve in discrete rulemakings. Less common are statutes on the model of continental codes, which “emerge [as] a single legislative act, after exquisite intellectual consideration” and are amended only after similar comprehensive study.200 Federal legislation may not be a “chaos with an index,” but it bears recalling that the United States Code is an after-the-fact reorganization and indexing of strands of session laws of varying size, enacted at different times, targeting discrete problems.201

This particularism and inelegance is in part, as Waldron has argued, a feature of “bottom up” legislation produced when a large group of people with diverse views come to agreement through deliberation and argument, not “Hobbesian decisiveness” from above.202 In fact, a common criticism of the ascending style of legislation is that nothing “coherent” can arise from the “babel” of multiple legislators’ “cross-cutting proposals and counter-proposals.”203 The descending, unitary model of law has greater potential for

U. Chi. L. Rev. 657 (2013) (discussing state court use of common law to resolve silences in statutes, unlike federal courts which find answers in the statute itself); Pojanowski, Common Law Courts, supra note 7 (examining federal courts’ lack of common law power, as opposed to state court powers, and their treatment of statutes).

198 Strauss, Common Law, supra note 7. 199 See id. at 225 (describing the American tendency toward “common law legislating,”

namely “the practice of creating statutes to achieve marginal changes in existing law in response to perceived deficiencies, rather than legislating comprehensively as continental codes seek to do”).

200 Id. at 235. 201 See Tobias A. Dorsey, Some Reflections on Not Reading Statutes, 10 Green Bag 2d

283, 284 (2007) (noting that rather than looking to authoritative session laws published in serial form in the United States Statutes at Large, lawyers overwhelmingly use the U.S. Code, which “is––no disrespect intended––a Frankenstein’s monster of session laws”).

202 Waldron, Law and Disagreement, supra note 132, at 40 (“For us, it matters that legislation should emerge from a process that is deliberative, a process distinguished not just by its Hobbesian decisiveness, but also by the engagement with one another in parliamentary debate . . . .” (emphasis removed))

203 Id. at 53.


31 systemic legislation because centralization of authority (whether through a ruler/ruling group or deference to expert-authors) reduces the risk that differing opinions will shatter consensus around a global proposal.

Any coherence in bottom-up legislation will, like common law precedent, tend to be “local” in character, for it can be challenging enough to secure agreement on one proposal, let alone the corpus of legislation as a whole. Even with respect to a proposed solution to a particular problem, broad coherence in bottom-up legislation is unlikely. Among large groups, there may be substantial disagreement; even if legislators share the same particular goal and general values, they may disagree about the means of pursuing a goal or the tradeoffs against other aims. Ascending legislation will often be the product of compromise, leaving coherence an admirable aim, but not always a feasible one.204 Federal scholars, particularly formalists, appreciate how such compromise often leads to awkwardness rather than elegance in legislation.205

The legislative process in ascending regimes will not have the character of ordinary conversation, but will rather be a formal, rule-laden, and procedure-driven enterprise that aims at including a wide range of views from diverse representatives while also structuring that discussion to focus on a limited set of proposals.206 For large assemblies there is rarely a seamless translation from policy ideal to statute; a proposal must travel the gauntlet of legislative procedure and often will not look the same coming out as it entered.207 Further, where some classical common lawyers skeptical of parliamentary legislation feared the jangling contradictions of the mob, a more charitable and nuanced view could discern intricate procedures that structure the chaos and reach outcomes that, however inelegant, are not

204 See Jeremy Waldron, Legislating with Integrity, 72 Fordham L. Rev. 373, 386

(2003); see also Manning, Second-Generation, supra note 79, at 1304 (“[L]egislation often represents unknowable compromise, [and] that compromise often requires legislators to embrace means that do not fully effectuate the ends that inspired the law’s enactment.”)

205 See Manning, Second-Generation, supra note 79, at 1310 (“[S]tatutes typically represent the product of compromise, and compromises are not always tidy.”).

206 See Waldron, Law and Disagreement, supra note 132, at 70 (stating that “what happens in the legislature [is] more like proceedings than conversation” (emphasis removed)); id. at 40 (“Modern legislatures are structured to secure [reasoned deliberation], with rules about representation . . . rules about hearings, rules about debates, rules about amendments, and above all rules about voting.”).

207 See John F. Manning, Textualism and Legislative Intent, 91 Va. L. Rev. 419, 424 (2005) [hereinafter Manning, Legislative Intent] (“[the legislative process] conditions [Congress’s] ability to translate raw policy impulses or intentions into finished legislation. For them, intended meaning never emerges unfiltered; it must survive a process that includes committee approval, logrolling, the need for floor time, threatened filibusters, conference committees, veto threats, and the like”).


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entirely arbitrary.208

This formalized, nearly ritualized process of deliberation is the parliamentary analogue to the classical common lawyer’s “disciplined,” indeed “solemn,” practice of artificial reason.209 The structure and order that mark each stage of legislative deliberation prevent cacophony and allow legislators to benefit from diverse “perspectives to come up with better decisions than any one of them could make on his own.”210 Like common lawyers, legislators draw on this collected wisdom and experience while reasoning and arguing “in a public forum according to public standards of success and failure.”211 To put a twist on a classical common law theme, structured deliberation in large assemblies, rather than the “the moral vision of any individual,” best secures “effective practical outcomes through convergence of judgment on common solutions.”212 In this light, Coke’s claim that “no one man alone . . . out of a court of justice nor in court without solemn argument” can discover the common law213 recapitulates itself in Waldron’s hypothesis that when many gather to deliberate under parliamentary discipline, each person contributes “to a practical intelligence that outstrips the intelligence of which any one of them is capable.”214

The practice and procedures of large assembly legislation, like classical common law, aim at “common judgment in the face of dispute and disagreement.”215 In federal legislation, some of these procedures are

208 See Daniel A. Farber and Philip P. Frickey, Law and Public Choice: A Critical

Introduction, 49–50 (1991) (“Legislatures apparently use a variety of structures, rules, and norms to ameliorate the problem of cycling majorities. As a result, legislatures possess ‘structure-induced equilibrium.’”); id. at 50 (“[These] various institutional features of legislatures may promote stability and coherence.”). For a discussion of shifting views in public and social choice theory about legislative rationality, see Manning, Second-Generation, supra note 79, at 1293–1303.

209 Cf. Postema II, supra note 8, at 8. 210 Waldron, Law and Disagreement, supra note 132, at 72; see id. at 71 (stating that a

legislature “must deliberate at every stage and in every aspect of its proceedings . . . so that a procedure involving drafting, consultation, committee hearings, bicameralism, conference committees, first, second and third readings, and so on, can add up to a structured but unified legislative process”). For a discussion of how the intricacy of legislative procedures assist reasoned decisionmaking, see Ekins, supra note 98, at 164–69, 224–30.

211 Postema II, supra note 8, at 8; see Hale, Reflections, supra note 156, at 503 (discussing the superiority of common lawyers’ experience in “[c]onversation between man and man”).

212 Postema II, supra note 8, at 10. 213 Coke, 9th Report, supra note 184, at xiv; see Postema II, 184 note 8, at 7 (“right

reason”). 214 Waldron, Law and Disagreement, supra note 132, at 72 (citing Aristotle, Politics, bk.

III, ch. 11, at 66–68). 215 Postema II, supra note 8, at 8.


33 entrenched in the written constitution. One of the most important of such structures—the requirement of bicameralism and presentment—has the effect of forging common judgment by encouraging compromise. The requirement that both chambers of Congress and the President agree on the same proposal creates an effective supermajority requirement for legislation, forcing political majorities to negotiate with minorities if they want a proposal to succeed.216 Thus not only does federal legislative procedure allow Members of Congress to pool and direct their knowledge, it can force dominant coalitions to incorporate concerns of the opposition in reaching practical solutions to problems.

As defenders and critics of bicameralism and presentment have noted, these veto-gates can further limit legislative coherence.217 Legislation that survives the federal crucible commends the support of a supermajority of plural voices, including those who may have initially began the process as uncommitted or in the opposition. Custom, the root of the ascending model of law, connotes an informal, near-unanimity that no complex legal system can depend upon exclusively. But the many-gated federal legislative process, by regularly producing law that more than a threadbare majority is willing to accept, constructs—artifices—through procedural form a kind of legislative custom of the second-best. Such legislation does not grow from the natural, organic consensus of a homogenous community, and many policies that slimmer majorities prefer will not become law.218 Yet resulting statutes will reflect what a large portion of the community’s representatives agrees to accept as their own law.219

Finally, legislative debate and resulting statutes comport with the common law’s aspirations for “public accessibility and with it effective

216 See John F. Manning, Competing Presumptions about Statutory Competence, 74

Fordham L. Rev. 2009, 2039 (2006) [hereinafter Manning, Competing Presumptions] (“[P]olitical scientists have shown that by dividing the legislative process among three institutions answering to distinct constituencies, the bicameralism and presentment requirements . . . in effect create a supermajority requirement. . . . [that] assign[s] political minorities extraordinary power to stop (or at least slow) the passage of legislation and, more important, to insist upon compromise as the price of their assent.”).

217 See id. at 2010 (“The design of the legislative process emphasizes the need for compromise, and compromises are often complex, awkward, and even incoherent . . . .”); Ekins, supra note 98, at 176 (stating that American legislatures “may enact legislation that is not fit to be chosen by a reasoning person, because it is rendered incoherent by the various riders insisted on by veto-players”).

218 But see Farber & Frickey, supra note 208, at 61–62 (“[B]ecause pure majority rule is incoherent. . . . a viable democracy requires that preferences be shaped by public discourse and processed by political institutions so that meaningful decisions can emerge.”).

219 Cf. id. at 62 (“When our institutions work properly, they have a valid claim to represent the public interest.”).


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public accountability.”220 To be sure, much deliberation occurs behind closed doors; committee reports may be crafted more to anticipate litigation than to capture history; and meticulously recorded legislative debate may resemble Kabuki Theater more than Mr. Smith Goes to Washington. But one component of the process unites deliberating legislators, the observing public, and later readers: the formal legislative proposal under consideration.221 This text, like the common law as conceived by classical theorists, “is addressed in public to a public of rational agents that it seeks to guide.”222

This emphasis on canonical text is in tension with the common law tradition’s denial that its law can be captured in a definitive form of words.223 But as Waldron and others have argued persuasively, canonical text is critical for rational deliberation by large, diverse groups.224 While a small, leading cadre may be able to function with tacit, conversational understandings, the absence of a formal proposal gives debates in large bodies an “air of babel-like futility.”225 A canonical proposal ensures “participants’ contributions are relevant to one another and that they are not talking at cross purposes.”226 For this reason, the structured, deliberative process of bottom-up legislative reasoning and canonical legislative proposals are mutually reinforcing.227 Common law legislation—the development of ascending, customary law by the hands of a deliberating multitude—requires a formality in exposition that

220 Postema, Law’s System, supra note 178, at 103 (emphasis omitted). 221 See Waldron, Law and Disagreement, supra note 132, at 82 (“[T]he positing of a

formulated text as the resolution under discussion provides a focus for the ordering of deliberation at every stage.”).

222 Postema, Law’s System, supra note 178, at 89. 223 See Simpson, supra note 159, at 16 (“[T]he general position in the common law is

that it lacks an authoritative authentic text . . . .”); cf. Ronald Dworkin, How to Read the Civil Rights Act, in A Matter of Principle 316, 319 (1985) [hereinafter Dworkin, Civil Rights] (distinguishing between a “statute, which is a canonical set of sentences enacted by Congress, and the legislation created by that statute, that is, the set of legal rights, duties, powers, permissions, or prohibitions the statue brings into existence or confirms”).

224 See Waldron, Law and Disagreement, supra note 132, at 81 (arguing that “the determinacy of that proposition, as formulated and as amended, is important for establishing a sense that we are all orienting our actions in voting to the same object”); see also Ekins, supra note 98, at 234 (“The open proposal that legislators vote to adopt defines the legislative act. The content of that proposal must be capable of being known . . . .”).

225 Waldron, Law and Disagreement, supra note 132, at 81; see id. at 82 (surmising that perhaps “a one-person deliberative body” or a “small group or junta” could do without formal proposals).

226 Id. at 82. 227 See id. at 80 (“My hunch is that this textual canonicity and . . . procedural

formality . . . are connected. . . . [D]ebating rules are oriented towards and ordered by the idea that at any time there is a specific proposal under discussion.”).


35 common law adjudication does not (or perhaps, given the increasing formality of judicial decisionmaking, used to not require228).

C. Summary and Caveats

In classical form, the artificial reason of the common law pertained to the “convergence of the views and judgments of the larger community, and forging and maintaining a common sense of reasonableness.”229 Its lodestars were “salience,” not broad moral vision, and “pragmatic convergence, not theoretical coherence.”230 Common lawyers constructed this artifice of custom through a “disciplined practice of argument and disputation in a public forum,” which they saw as giving the bench and bar wisdom, insight, and an ability to speak for the community that eluded individual rulers and philosophers.231 This law was, ultimately, common law because it was shared, fit to the complexion and the constitution of the people and, however indirectly, because it arose from their customs and drew on their norms.232

The incremental, pragmatic, compromise-driven fashion of common law legislation similarly and, in contemporary contexts, crucially, allows law to remain “custom transformed, and not merely the will or reason of the lawmaker” descending from the top.233 A form of artificial reason is visible in the operations of legislatures of common law legal systems like our own: Its focus on salience emphasizes the importance of a particular legislative text. Its pragmatic, reactive, incremental style of law development migrates to a legislative process that downplays systemic coherence. The common law’s desire for normative convergence recapitulates in legislative compromise that sacrifices elegance for widespread acceptance. Legislation in common law fashion too emphasizes the centrality of procedure that disciplines argument to draw on the wisdom of the many in a fashion that surpasses the acuity of any one visionary. All told, it is a bottom-up, pluralist, and sometimes chaotic style of law that more often than civilian systems eschews deference to rationalist experts bearing white papers and finely reticulated, comprehensive legislative schemes.

228 See Peter M. Tiersma, The Textualization of Precedent, 82 Notre Dame L. Rev. 1187,

1187–88 (2006) (describing how judicial opinions have become more formal in explaining their holdings and how that has affected practicing lawyers); Simpson, supra note 159, at 24 (hypothesizing that the “breakdown in the cohesion of the common law” and the accompanying press for authoritative doctrinal rules stems in part from the fact that it is no longer overseen by “12 men in scarlet,” but rather “well over a hundred”).

229 Postema II, supra note 8, at 10. 230 Id. 231 Id. 232 See Hale, History, supra note 119, at 36–38. 233 Harold J. Berman, Law and Revolution: The Formation of the Western Legal

Tradition 556 (1983).


36

In these respects, the development of common law legislation is

congruent with the reasoning in common law adjudication. One might object that this rendition of the legislative process is an overly romantic one. After all, per its critics, Congress is gridlocked, polarized, and pointlessly bombastic.234 This objection is not persuasive. If champions of common law adjudication (and interpretive antiformalism) can theorize based on an idealized judge, sketching an ideal type for the cognate form of legislating simply compares aspirational apples to apples. Furthermore, the model of common law legislation assumes that ordinary politics is a messy, often frustrating enterprise. To the extent that impatience with Congress centers on the body’s unwillingness to speedily enact systematic legislation supported by a narrow majority, that objection goes to the advisability of common law legislation and its compromise-inducing veto-gates. That distaste may be well-founded as a matter of political theory, but it does not disturb the parallel between common law adjudication and legislation.

Nevertheless, the resemblance between the two modes of legal development is not complete. The range of available positions and considerations for compromise will usually be wider for legislatures than courts. Legislatures have less of an obligation to be consistent with earlier decisions, and judicial negotiation, even if considered within the pale, has fewer logs to roll.235 Indeed, the consensus classical common lawyers sought in judicial reasoning harkened more to discovery of unknown agreement than brokered deals. Furthermore, Congress, unlike the courts considering a particular case, can delegate decisions to other institutions like administrative agencies.236 A legislature also has more freedom than a court to not decide

234 See, e.g. Robert G. Kaiser, Even When It Succeeds, Congress Fails, The Washington

Post, May 26, 2013, at B1; David Nakamura and Zachary A. Goldfarb, Obama Assails House Inaction on Immigration, The Washington Post, July 1, 2104, at A3 (“If Congress will not do their job, at least we can do ours.”).

235 This may be more a difference of degree than kind. Even if Congress is unconstrained by the work of previous legislation, and even if courts no strongly inclined to seek global coherence, it is hard for a legislature to escape the practical and interpretive effects of other legislation, especially in instances of ambiguity or vagueness. See Martin Krygier, The Traditionality of Statutes, 1 Ratio Juris 20, 30 (1988) (“Statutes arrive into legal orders in which much of the available space is filled….[W]hat they do not change will remain. Where it is deemed relevant they will be read in light of what remains. And that is usually a lot.”).

236 Again, this may be a difference of degree given the role the jury plays (or used to play) in common law systems or even judicial deference to administrative interpretations of unclear statutory provisions. Regarding the latter, Congress is the formal delegator, but given that the legislature’s delegation is usually implicit (or a “fiction” in the words of Justice Scalia), it is sensible to attribute this delegation to the courts. See John Duffy, Administrative Common Law in Judicial Review, 77 Tex. L. Rev. 113, 189–211 (1998).


37 when no clear solution to a problem emerges.237 These differences may have implications for statutory interpretation and the common law but they do not obviously point toward the antiformalism advocated under the banner of the common law.238

One final qualification: 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.239 If so, a common-law inspired administrative law would aim at cultivating the virtues and practice of artificial reason in the administrative process. To others, modern agency power and practice is an anathema to the common law system and an unwelcome return of the centralized, descending law of the royal prerogative and Star Chamber.240 If that is so, a more radical revision of administrative law would be necessary to restore the judicial and legislative aspects of our common law to the courts and the legislatures.

With these caveats in place, it is time to consider the interpretive implications of this congruence between common law development in the courts and legislatures.

IV. Interpreting Legislation in the Common Law Tradition

The previous sections demonstrated parallels between the work of courts

and legislatures in a common law system. Nonformalist interpreters draw on this congruence to argue that, because the line between precedent and statute in a common law system is artificial, the formalist’s constraint in the statutory domain is misguided. While not without basis, this inference is problematic, but not because the common law tradition is irrelevant in our federal system of separated powers. Rather, this justification for dynamic interpretation faces challenges on its own common law terms. Not only are there unappreciated resemblances between formalist statutory interpretation and common law judicial reasoning, there is also a strong argument for formalism on the grounds that the legislature is the superior artificial reasoner in a common law system. “Superior” here does not mean that the content of statutes are necessarily better as matters of moral truth or ideal policy, but rather that legislating assemblies have a greater capacity to channel general

237 Yet again, this could be a difference of degree, especially for appellate courts with

discretionary review. See also Alexander M. Bickel, Foreword: The Passive Virtues, 75 Harv. L. Rev. 40, 40–42 (1961) (praising use of doctrines like justiciability to avoid judicial resolution of controversial questions on the merits).

238 See infra Section V.A. 239 See Cass R. Sunstein, Is Tobacco A Drug? Administrative Agencies as Common Law

Courts, 47 Duke L.J. 1013, 1019 (1998). 240 See Hamburger, supra note 15, at 26–29.


38

customs and bridge disagreements in a sound, reliable, and normatively appealing fashion.241

A. Classical Common Lawyers and Statutory Interpretation

Common law theory doubtless provides support for judicial flexibility with enacted legislation. Many classical common lawyers claimed that the artificial reason of the common law perfected inferior legislation. Legislation—in that era the work of King-in-Parliament—was posed as the domineering command of a sovereign lawmaker or, at best “a temporary aggregate of wills” unconstrained by “any rational discipline.”242 Accordingly, these common lawyers worked to “interpret and stretch statutory language” to make it congruent with the common law even while begrudging the supreme authority of Parliament.243

As noted, others like Hale offered a more sophisticated and less skeptical treatment of legislation.244 Yet even Hale might have thought courts should not handle statutes much more rigidly than precedents. On one reading, he thought that statutes “initially ha[ve] [a] greater claim than precedent to treatment as valid law,” but that over time incorporating legislation into the common law mattered more than the fact that the statute passed through the “formal rules of authorized law-making.”245 Like precedents, courts would smooth the rough edges of statutes, reading them narrowly if they conflicted with the body of law as a whole and invoking them more frequently if they were consonant with that broader corpus juris.246 If the common law courts “refus[ed] to ‘receive’ the legislation as law of the land,” a statute could remain formally valid but legally inert.247

This antiformalist rendition of Hale is not unassailable. His discussions of legislation, and thus historical reconstructions of this treatment, often focus on statutes whose original texts were lost to history and survive only in the

241 That legislatures may enact morally erroneous statutes in a valid fashion is not alone

persuasive. Courts may err as well. Furthermore, even unapologetic natural lawyers believe that on many questions of law and policy there is a wide range of reasonably available options. In those (many) circumstances, legal authority is necessary to choose intelligibly among those valid options. See John Finnis, The Truth in Legal Positivism, in The Autonomy of Law: Essays on Legal Positivism 195, 201–02 (Robert P. George ed., 1996).

242 Postema II, supra note 8, at 18; see also id. at 18–19 (citing work of William Blackstone, Thomas Hedley, and Edward Coke as exemplifying this attitude).

243 Id. at 19. 244 See Postema, Bentham, supra note 129, at 19 (“In Hale we find a more consistent,

and indeed richer and more suggestive, treatment of the relationship between enacted and Common Law.”).

245 Postema II, supra note 8, at 20 (emphasis added). 246 See id. (citing Hale, History, supra note 119, at 46). 247 Postema, Bentham, supra note 129, at 24.


39 practice of the courts.248 Hale regards such lost legislation as “unwritten law” that is incorporated in common law fashion. Hale’s discussion of statutes as a “Constituent” element of the common law focuses on legislation believed to be “made before Time of Memory.”249 It is not clear that similar treatment should follow for extant authoritative texts.250 Indeed, one can find early examples of common law judges identifying legislative intent with original public meaning and even seeking the aid of grammarians in statutory interpretation.251

Nevertheless, the classical common lawyers’ approach to legislation often resembled modern arguments that judges can update or reinterpret outmoded statutes in light of contemporary public values. For this reason, today’s nonformalists understandably trace their lineage back to that tradition. Less appreciated are breaks between contemporary antiformalism and its ancestors when we consider the artificial reason of classical common law theory. Similarly neglected are continuities between classical common law theory and formalist approaches to interpretation. This other side of the story suggests formalist implications of the fact that legislatures are increasingly the locus of artificial reason in a common law system.

B. Aspirations for Coherence

One point of continuity between modern statutory formalism and the common law tradition is a limited aspiration for systemic legal coherence. Classical common lawyers’ pragmatic, incremental approach to case law led them to often accept “categories that may appear, from a more global perspective, to be unsupported by good reason”252 or a legal regime that “from a more theoretical perspective, might have appeared to be a lack of systemic coherence.”253 They accepted such rough corners because more ambitious aspirations encouraged disagreement more than normative convergence. Our constitutional system of legislation also proceeds in a

248 See Hale, History, supra note 119, at 4–6 (discussing acts of Parliament “before Time

of Memory; whereof . . . we have no Authentical Records”); id. at 39–45 (discussing the lack of historical record of early statutes that have subsequently been incorporated as common law); Postema, Bentham, supra note 129, at 24 (citing Hale supra note 119, at 4).

249 Hale, History, supra note 119, at 44–45. Were it not for Hale’s other statement that the “Common Law” refers “most truly” to the shared law of the land, id. at 37, one could infer that he understands legislation to be an entirely different category of law.

250 See Postema, Bentham, supra note 129, at 25 n.52 (raising the possibility that “Hale’s view here may be that statutory rules remain valid only as long as the constitutional rules empowering the parliamentary body to create them remain in force”).

251 See Hamburger, supra note 159, at 53 n.53 (citing Y. B. Michaelmas 35 Henry VI, pl. 25, fol. 16b (1456); Hill v. Good, [1673] 89 Eng. Rep. 54, 120 (C.P.) or Hill v. Good, [1673] Vaughan’s Reports. 302, 305 (C.P.) (Common Pleas 1673)).

252 Postema, Law’s System, supra note 178, at 97. 253 Postema II, supra note 8, at 5.


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similar fashion, producing reactive, nonsystemic statutes that reflect supermajoritarian compromise, not the work of a single visionary or cadre of like-thinking leaders. The “artificial reason” of legislation parallels the classical common lawyer’s treatment of case law.

In this respect, Ronald Dworkin’s approach to statutes departs from the common law tradition. His method is but a slightly modified version of his theory of common law adjudication.254 His theory seeks to make the law the best it can be, weaving as tightly as possible an individual piece of legislation into a broader, coherent web of principle.255 The aspirations toward coherence in his approach are strong and far-reaching.256 Statutes are not to be read “as negotiated compromises” limited to “the text of the statute,” but rather are to be understood as “flowing from the community’s present commitment to a background scheme of political morality” that animates the law as a whole.257 As statutes age, the best interpretation integrates legislation with subsequent developments in case law, further statutes, and changes in public values.258 Dworkin thus praises the Supreme Court’s antiformalist approach to the Civil Rights Act in United Steelworkers v. Weber, while criticizing its formalist interpretation of the Endangered Species Act in Tennessee Valley Authority v. Hill.259

Even if there were no significant difference between precedent and enacted legislation, classical common lawyers would view the interpretive method of Dworkin’s Hercules to be Icarian in its pursuit of systematic coherence.260 Guido Calabresi’s vision of the judicial role is more modest, but coherence also plays a strong role in his argument for courts to modify or

254 See supra Subsection II.A.2. 255 Ronald Dworkin, Taking Rights Seriously 283 (1978) (emphasizing how courts

should decide which argument is most coherent with the normatively best theory of the law); Dworkin, Law’s Empire, supra note 28, at 338 (noting that the court should aspire to find “some justification that fits and flows through [the] statute and is, if possible, consistent with other legislation in force”).

256 See Barbara Baum Levenbook, The Role of Coherence in Legal Reasoning, 3 Law & Phil. 355, 356 (1984) (stating that in Dworkin’s view, “coherence is a property of an entire system of law, and that the legally justified judicial decision, at least in a hard case, is one that strengthens this systemic coherence or itself coheres best with the coherent system”).

257 Dworkin, Law’s Empire, supra note 28, at 345–46; see Dworkin, Civil Rights, supra note 223, at 327–29 (positing the “coherence theory” of statutory interpretation that “supposes that a statute should be interpreted to advance the policies or principals that furnish the best political justification for the statute”).

258 See Dworkin, Law’s Empire, supra note 28, at 348–50. 259 See Dworkin, Civil Rights, supra note 223, at 327–30 (Weber); Dworkin, Law’s

Empire, supra note 28, at 337–54 (Hill). 260 See 2 Ovid’s Metamorphoses, Bk. VIII, at 347 (Brookes More trans., 1941) (“Proud

of his success,/ The foolish Icarus forsook his guide,/ And, in bold vanity, began to soar,/ Rising upon his wings to touch the skies.”).


41 decline to apply obsolete statutes. The targets for updating are statutes “sufficiently out of phase with the whole legal framework.”261 The courts can fairly demand “consistency” among “policies” and “principles” in the legislative regime by depriving such “inconsistent” statutes of their presumptive validity.262 Similarly, Peter Strauss endorses Justice Stone’s claim that a common law judge ought to pursue “the ideal of a unified system of judge-made and statute law woven into a seamless whole.”263

Strong versions of legal process purposivism also promote broader coherence over formal adherence to text or original intent. Hart and Sacks explain that the most important task in interpretation is identifying what “purpose ought to be attributed to the statute.”264 The interpreter ought to “harmonize” legislation with “more general principles and policies.”265 It is “invariable in the law and of immense importance” to treat a statute’s purpose “as including not only an immediate purpose or group of related purposes but a larger and subtler purpose as to how the particular statute is to be fitted into the legal system as a whole.”266 Overall, the interpreter should “strive to develop a coherent and reasoned pattern of applications related to the general purpose”267 of the statute and even demand clear legislative statements before identifying a departure “from a generally prevailing principle or policy of the law.”268 In so doing, the purposive approach “will be well calculated to serve the ultimate purposes of law.”269

Consequently, when formal elements of a statute, like its semantic meaning in context or the underlying intent of the enacting legislature, do not cohere with the more general background purpose of the statute or clash with the pattern of the broader legal regime, a purposive interpreter will prefer the coherent interpretation even if, as a formal matter, the reading is one of

261 Calabresi, supra note 1, at 164; see also id. at 107–08 (stating that a court may modify

both common law or statutory rules when “they do not fit the landscape” or when other legal rules “move in the opposite direction”).

262 Calabresi, supra note 1, at 165. 263 Strauss, Common Law, supra note 7, at 238 (quoting Harlan Fiske Stone, The

Common Law in the United States, 50 Harv. L. Rev. 4, 12 (1936)). Eskridge is more skeptical of broad coherence, at least as adopted by Dworkin and the Legal Process. See, e.g., William N. Eskridge, Jr., Dynamic Statutory Interpretation 148 (1994).

264 Hart and Sacks, supra note 65, at 1169. 265 Id. at 148; see also David L. Shapiro, Continuity and Change in Statutory

Interpretation, 67 N.Y.U. L. Rev. 921, 937 (1992) (situating the interpretive task “in a world where common law and statutory law are woven together in a complex fabric defining a wide range of rights and duties”).

266 Hart and Sacks, supra note 65, at 1377. 267 Id. at 1380. 268 Id. at 1377. 269 Id. at 1169 (emphasis added); see Duxbury, supra note 70, at 261 (identifying Hart

and Sacks’s focus on broad coherence).


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substantial “verbal difficulty.”270 Hart and Sacks thus wrote approvingly of the decision Riggs v. Palmer, which, over a dissent relying on “plain meaning,”271 invoked background general law principles to smooth the awkward textual corners of legislation.272

The role that coherence plays in statutory interpretation is a key difference between formalists and nonformalists today. As textualist Professor John Manning has argued, purposivists presume that legislation is a product of “relatively coherent policy objectives” even if Congress does not always express them clearly.273 Coherence also plays a central role for dynamic interpreters like Dworkin and Calabresi, though they are also interested in having the statute cohere with moral philosophy and contemporary public values.274 These nonformalist approaches share a greater willingness to ascend from the particulars of legal formality and to promote more general coherence.

The formalist, by contrast, does not presume that the policy aspirations underpinning any one statute are transparently coherent.275 This is because, as discussed above, a law that can gain the assent of two large assemblies plus the President is likely to be the product of compromise, which is often “complex, awkward, and even incoherent.”276 Textualists are more inclined to take reasonably clear but inelegant statutes as they find them, rather than redirect them toward a reconstructed background purpose; more formal intentionalists, in turn, will seek to understand original intent at low levels of abstraction.277 What a formalist would say about individual statutes applies a fortiori to the demand for coherence across the legal system as a whole, which consists of numerous statutes passed over many years, an elaborate corpus of

270 Hart and Sacks, supra note 65, at 1244. 271 22 N.E. 188, 191–92 (N.Y. 1889) (Gray, J., dissenting). 272 See 22 N.E. at 189–91 (rejecting “plain meaning”); Hart & Sacks, supra note 65 at

89–91, 1376 (invoking favorably the Riggs majority). 273 Manning, Competing Presumptions, supra note 216, at 2012. 274 See Levenbook, note 255 supra, at 366 (emphasizing the role coherence and morality

play in Dworkin’s approach to interpretation); Calabresi, supra note 1, at 164 (courts should reconstruct statutes that are “out of phase with the whole legal framework” or “do not conform with the fabric of the law” and lack “current and clear majoritarian support”).

275 Manning, Competing Presumptions, supra note 216, at 2010. (“Justice Scalia’s vision of Congress thus presumes that it is quite deliberate in statutory expression, but (understandably) quite messy in the substantive policies it adopts.”).

276 Id. at 2010. 277 See Manning, Second-Generation, supra note 79, at 1288 (textualism); Ekins, supra

note 98, at 250–51 (intentionalism); see generally John David Ohlendorff, Against Coherence in Statutory Interpretation, 90 Notre Dame L. Rev. 735, 738 (2014) (“[T]he coherence ideal fails to justify the courts’ departure from their presumptive duty to faithfully carry out Congress’s will.”).


43 constitutional law, and manifold maxims and principles of general law.

This is not to say that formalists reject coherence out of hand. Many will seek broader coherence when statutes are vague or ambiguous.278 Of prominent academic formalists, only Adrian Vermeule rejects even a modest search for interpretive coherence—and he does not purport to describe the work of formalist jurists.279 The difference between most formalists and their opponents, then, concerns how far and wide courts should search for coherence, and whether coherence should override a meaning or intention that is reasonably clear in local context. Statutory formalists, more than their rivals, resemble classical common lawyers who regarded broad legal coherence as salutary when feasible or helpful, but too costly to pursue as an overriding aim with regularity. Formalists may or may not be wise to allow legislation to remain more “a muddle than a system,” but in doing so they are not obviously unfaithful to the common law tradition.280 Rather, they appear to be extending it to legislation.

C. The Character and Place of Artificial Reason This discussion of coherence focuses on one aspect of a larger issue: the

relationship between the artificial reason of the courts and the artificial reason of legislatures. A classical common law critique of the dynamic interpreter’s quest for broad statutory coherence is twofold. First, nonformalism departs from the style of reasoning that common law courts used when adjudicating disputes. Second, it does not respect the distinct reasoning of the legislatures that develop statutes in common law fashion. Both arguments complicate the neat story linking nonformal statutory interpretation with the common law against statutory formalism. This subpart elaborates these common law critiques of nonformal interpretation.

1. The Character of Artificial Reason

Classical common lawyers frequently distinguished between the “artificial reason” of the law and the untutored natural reason of kings and philosophers. Many antiformalists, while claiming the mantle of the common law, depart from this distinction when describing the judicial creativity involved in statutory interpretation. Dworkin viewed judges as the princes of

278 See W. Va. Univ. Hosps. v. Casey, 499 U.S. 83, 101 (1991) (Scalia, J.) (“[I]t is our

role to make sense rather than nonsense out of the corpus juris.”); Ekins, supra note 98, at 259–60.

279 See Adrian Vermeule, Judging Under Uncertainty: An Institutional Theory of Legal Interpretation 4 (2006) (“[J]udges should sharply limit their interpretive ambitions, in part by limiting themselves to a small set of interpretive sources and a restricted range of relatively wooden decision-rules.”)

280 Simpson, supra note 159, at 24 (describing judicial common law in these terms).


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law’s empire, “but not its seers and prophets.”281 That task fell to moral “philosophers, if they are willing, to work out law’s ambitions for itself, the purer form of law within and beyond the law we have.”282 Classical common lawyers, however, saw “Casuists, Schoolmen, [and] Morall [sic] Philosophers” as the worst candidates for expositors of the common law.283 One of the greatest challenges to classical common law thought was “conceptual,” coming from those who “took an academic perspective on law” and thus had a “low view of national custom and high expectations for reframing it within academic generalizations.”284

For traditional common lawyers, the natural law—or “political morality” in Dworkin’s argot—may justify the institution of law on a systemic level, but was too indeterminate on particulars to offer reliable guidance in individual cases and doctrines.285 Accordingly, classical common lawyers facing a hard case were more likely to go back and dig down to the cases to find the “common reason” of the dispute rather than appeal upward to the moral law.286 To the common law mind, reworking the law today in image of Rawlsian equality is no more useful or prudent than invoking Aquinas in 1600 to resolve the details of property law.287

The more realist dynamic theories would also be alien to classical common lawyers. Judge Calabresi, for example, stipulates that judges “make law in a democracy,” citing the work of California Supreme Court Judge Roger Traynor, whose work in common law and statutory interpretation understands utilitarian policy balancing as central to judicial decisionmaking.288 Chief Judge Kaye, who invokes her state court’s common

281 Dworkin, Law’s Empire, supra note 28, at 407. 282 Id. at 407. 283 Hale, Reflections, supra note 156, at 503. 284 Hamburger, supra note 159, at 116. 285 See Postema I, supra note 110, at 177 (stating that natural law played a “deeply

subterranean” role in classical common law theory). 286 See id. at 178–79 (noting that, in hard cases, “the tendency of the common lawyer

was not to consult universal moral sources . . . but rather to look longer, harder, and deeper into the accumulated fund of experience and example provided by the common law”).

287 On this point, Aquinas would agree with the common lawyer, for he saw that on many questions the natural law permitted a range of judgment and local variation. See Finnis supra note 241, at 202–03.

288 Calabresi, supra note 1, at 92 n.1 (citing Roger Traynor, Statutes Revolving in Common Law Orbits, 17 Cath. U. L. Rev. 401 (1968)). Professor Strauss also states that common law courts, like Congress, “make law,” though he puts scare quotes around the phrase and hedges skepticism about the classical account. See Strauss, Common Law, supra note 7, at 253. See also Roger Traynor, Reasoning in a Circle of Law, 56 Va. L. Rev. 739, 751 (1970) (characterizing judging as “the recurring choice of one policy over another”).


45 law heritage to reject statutory formalism, takes a similarly realist tack.289 Earlier, seminal essays by Justice Stone and James Landis that draw on the common law to support dynamic interpretation are also skeptical of the classical account of artificial reason.290

For classical common lawyers, appealing to the judge’s understanding of natural law or justice to fill gaps in the common law or redirect its course does not capture the practice of artificial reason. Ironically, the natural law of a Dworkin and the realism of a Traynor both draw pictures of legal reasoning similar to the common law’s early archrivals. For critics like Hobbes and Bentham, once you dig beneath the encrustation of doctrine and precedents, the common law’s core is simply the judge’s natural reasoning about justice and right, including moral reasons to sometimes follow morally imperfect doctrine and precedent. There is nothing more to see besides philosophy or policy once you “pluck[] off the mask of mystery.”291

Whether or not antiformalists are correct to doubt the classical common lawyer’s belief in the relative autonomy of legal reason, their skepticism complicates any straightforward argument that the common law justifies dynamic statutory interpretation. Recall the antiformalist’s claim that the common law empowers judicial interpreters to depart from the prescriptions embodied in historical legislative text or intent. A reinterpretation of common law adjudication as a form of coherentist natural law, in the style of Ronald Dworkin, requires a trust in judicial wisdom to discover moral consensus as romantic as the classical common lawyer’s belief in the autonomy and reliability of artificial reason. A more realist understanding of common law as policy balancing, when invoked to modify legislative norms, creates separation-of-powers worries more pressing than if artificial reason were a medium that could channel general customary consensus. This is not to say

289 Kaye, supra note 3, at 11 (“[S]tate courts effectively ‘make law,’ and do so by

reference to social policy, not only when deciding traditionally common-law cases but also when faced with cases that involve difficult questions of constitutional and statutory interpretation.”).

290 See Stone, supra note 263, at 10 (noting that a common law judge is “often engaged not so much in extracting a rule of law from the precedents, as we were once accustomed to believe, as in making an appraisal and comparison of social values” and “weigh[ing] competing demands of social advantage, not unmindful that continuity and symmetry of the law are themselves such advantages”); James McCauley Landis, Statutes and the Sources of Law in Harvard Legal Essays. 213, 217 (Roscoe Pound ed., 1934) (dismissing as “abstract rationalism” the notion that common law courts “merely ‘find’ law”).

291 Postema, Bentham, supra note 129, at 263. Antiformalists are not alone in this skepticism. See James B. Beam Distillery Corp. v. Georgia, 501 U.S. 529, 549 (1991) (Scalia, J., concurring) (“I am not so naive (nor do I think our forebears were) as to be unaware that judges in a real sense ‘make’ law. But they make it as judges make it, which is to say as though they were ‘finding’ it—discerning what the law is . . . .”); Nelson, Legitimacy, supra note 77, at *57.


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that deploying a newly theorized common law in the old ways is impossible, though I have doubts about whether one can do so without anachronism. It is to emphasize, however, that notwithstanding any rhetoric of continuity, statutory antiformalism’s relationship with the inherited common law tradition is marked by as much change as constancy.

2. The Place of Artificial Reason

Nevertheless, modern antiformalist understandings of the common law’s artificial reason are not always sharp departures from the tradition. Judge Calabresi also appeals to craft traits like developing the common law in incremental fashion, reasoning by analogy and from principles implicit in precedent, and treating like cases alike.292 His placement of statutes in the center of a common law system also reflects Matthew Hale’s approach. He, too, rejects the notion that “only judges could discern” the legal fabric “and that changes in it could happen only through accretion of judicial reaction to changed conditions.”293 Most importantly, Calabresi sees the common law as channeling and reflecting “underlying popular attitudes.”294 To him, the common law seeks to reflect the ways and norms of people subject to it, and he also understands legislation by assembly as operating in a similar fashion. He explains that, with legislation, “as with common lawmaking, the assumption that the result reflects an underlying majoritarianism and hence is legitimate in a democracy seems a sensible one . . . .”295 Legislation and judicial decisions are both integral to a common law system of ascending customary law; they are two different “modes of existence” of the same legal substance.296

For Calabresi, the judge has the dynamic and necessary role of integrating these sources of law, which may include extending the reach of a statute to modify background common law or refusing to apply a statute perceived to be out of phase with the broader fabric of the law and popular values (of which the broader fabric of law is important evidence). In this respect, his theory meshes with the broader understanding of a common law system discussed above; it is formalism’s refusal to dynamically integrate legislation with the broader fabric of the law and popular values that seems out of phase with the tradition.

The objection to this argument is that it fails to grasp the implications of the legislative process as a form of artificial reason. The structured,

292 Calabresi, supra note 1, at 96–97, 101, 108–09. 293 Id. at 98. 294 Id. 295 Id. at 109 (emphasis added). 296 Postema II, supra note 8, at 19.


47 compromise-forcing nature of the legislative process draws on the wisdom and views of a wide array of the polity and forces their representatives to forge the closest approximation to consensus that a complex society can muster. Such reasoning is beyond the capacity of any individual alone, including the common law judge. From this perspective, the common law jurists’ attempts to capture and synthesize the custom of the realm through disciplined legal argument is an inferior version of the artificial, common reason of the legislative process. Just as the classical common lawyer understood the untutored reason of the king and the philosopher to lack the capacity of the artificial reason of the law, now it is common law judges who must understand that their capacities to identify shared, fitting legal solutions to practical problems are outstripped by the superior artificial reason of the legislative process.

The implications of this insight can point toward formalism. The dynamic theorist updating an obsolete or awkwardly drafted statute, or extending the formal scope of a statute to capture the spirit of the age puts herself in the position of not only a legislator, but a legislature, whose translation of public views and practices into concrete norms she cannot replicate. The same holds for a strong purposivist who overrides legislative formality in favor of an imaginative reconstruction of legislature’s treatment of a dispute. Finally, the antiformalist’s impatience with the slow pace, multiple veto-gates, and scarce agenda time of the legislative process appears not so much as interbranch cooperation, but rather a rejection of the common law tradition’s demand for broad consensus behind legal rules.

The formalist, who adheres to reasonably clear text even if it is substantively awkward, or who respects historical legislative intent understood at a low level of generality, is more faithful to the artificial reason of the legislative process in its actions and inaction. The formalist’s assumption that "the precise contours of legislative policy may reflect the procedural sequence of legislative events rather than a frictionless implementation of coherent policy impulses,” is neither alien to the common law tradition nor a commitment to the irrationality of apparently awkward legislation.297 Just as Henry Sumner Maine observed how the “substantive law” of early common law appeared to be “gradually secreted in the interstices of procedure,” the substantive law of common law statutes is shaped by legislative procedures that channel collective wisdom and

297 Manning, Competing Presumptions, supra note 216, at 2031; see also Manning,

Legislative Intent, supra note 207, at 424 (noting that the legislative process “conditions [Congress’s] ability to translate raw policy impulses or intentions into finished legislation. For them, intended meaning never emerges unfiltered; it must survive a process that includes committee approval, logrolling, the need for floor time, threatened filibusters, conference committees, veto threats, and the like.”)


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disagreement into a rough, pragmatic consensus from the ground up.298 To defer to the output, when readily discernible, is to respect the irreplicable process that legitimates statutes in ascending governance.299 By the same token, deference to the legislature’s conclusions echoes the early common law practice of leaving the determination of “substantive norms of behaviour [sic] and liability” to the jury as the voice of the community, while leaving judges questions of “formal law” which were primarily procedural.300 The common law was a “joint creation of the ‘reasonable men’ of the sworn neighborhood assembly and the professional judges”301 and then, as now, it is reasonable to assign the broader community primary input on substantive norms.

As with coherence, statutory formalists do not reject any repair to legislative purpose or principle, but rather treat it as a tool to resolve ambiguity and vagueness, not to override what they see as reasonably clear, formal manifestations of Congress’s expressed meaning or intent.302 A similar story follows for the use legislative history, though some formalists continue to resist its use even in unclear interpretive questions cases.303

D. Publicity and Formality

A final aspect for comparison is the publicity of the common law. As Postema explains, the common law sought to offer a “theoretically untidy, but practically accessible and widely and publicly intelligible, framework for

298 Henry Summer Maine, Dissertations on the Early Law and Custom 389 (1883) (Early

English “substantive law has at first the look of being gradually secreted in the insterstices of procedure.”); cf. S.F.C. Milsom, Historical Foundations of the Common Law 59 (2d ed. 1981) (“There was no substantive law to which pleading was adjective. These were the terms in which the law existed and in which lawyers thought.”)

299 See Manning, Second-Generation, supra note 79, at 1310 (“[S]tatutes reflect choices about means as well as ends, and the chosen means reflect the price that the legislature was willing to pay in order to achieve the desired ends.”); Easterbrook, Original Intent, supra note 85, at 63 (“To use an algebraic metaphor, law is like a vector. It has length as well as direction . . . . To find length we must take account of objectives, of means chosen, and of stopping points identified.”)

300 Postema I, supra note 110, at 163. 301 Donald Kelley, The Human Measure: Social Thought in the Western Legal Tradition,

166 (1990). 302 See Pojanowski, Common Law Courts, supra note 7, at 484–85. 303 See Elliott M. Davis, Note, The Newer Textualism: Justice Alito’s Statutory

Interpretation, 30 Harv. J.L. & Pub. Pol’y 983, 985–987 (2007) (comparing Justice Alito’s openness to legislative history with Justice Scalia’s opposition); Manning, Second-Generation, supra note 79, at 1308–09 (noting the diminishing importance of the legislative history debate and a settled “equilibrium” where the center of the Court is willing to consider legislative history in cases of ambiguity or vagueness).


49 legal reasoning . . . .”304 The twin demands that rules must not only “make practical sense,” but also be matters of “public accessibility and with it effective public accountability”305 raise the familiar tradeoff between rules and standards. The more an interpreter adjusts a rule to ensure individual applications make sense, the less publicly accessible the rule is as a practical matter. This dilemma between clear guidance and substantive rationality is a central problem of law generally, so it is unsurprising to find the common law grappling with it in particular.306

Much common law theory favors a standard-like approach to law. Brian Simpson noted the emergence of a “school-rules concept” of common law that reconceives the corpus juris as a binding code laid down by judges, but he saw that development as a sign of the tradition’s deterioration.307 In the received tradition, he maintains, no form of words can capture the common law in rule-like fashion, and there is no bright line between saying something is the law and saying that it is just and rational.308 Statutory nonformalists emphasize this aspiration for substantive rationality in the common law. Dynamically updating obsolete statutes pursues this goal, as does broadening or narrowing the scope of a statute to promote its purpose. Public accessibility, from this perspective, is intertwined with law’s substantive rationality, for legislation and interpretations that jar common sensibilities do not offer reliable guidance; people will either not understand the law or not take it seriously.

But, again, this is only one side of the story. While Hale found it crucial that the common law be congruent with the practices and views of the polity, his defense of the common law against Hobbes also explained that it is better “to preferre a Law by which a Kingdome hath [long] been happily governed” than to risk that peace by preferring “Some new Theory” grounded in his own sense of reasonableness.309 Therefore, though “a certaine and determinate Law may have some mischiefes,” especially in individual cases, they are

304 Postema, Law’s System, supra note 178, at 28. 305 Id. at 27–28. 306 Cf. Larry Alexander, The Gap, 14 Harv. J. L. & Pub. Pol’y 695, 695 (1991)

(describing this “problem of rules” as “the heart of the problem of law”); Lon Fuller, Reason and Fiat in Case Law, 59 Harv. L. Rev. 376, 377 (1946); see also Postema, Bentham, supra note 129, at 7 (“Coke seems to be saying, it is in the nature of the law be reasonable, but at the same time the law . . . constitutes the standards by which the community judges the reasonableness or unreasonableness of actions.”).

307 Simpson, supra note 159, at 12, 23. 308 Id. at 16 (“[T]he general position in the common law is that it lacks an authoritative

authentic text.”); id. at 10. (“[N]o very clear distinction exists between saying that a particular solution to a problem is in accordance with the law, and saying that it is the rational, or fair, or just solution.”).

309 Hale, Reflections, supra note 156, at 504; see also Coke, I Institutes, § 138 (“No man out of his private reason ought to be wiser than the law, which is the perfection of reason.”).


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“preferable before that Arbitrary and uncertaine rule which Men miscall the Law of reason.”310 Unaided natural reason risks “instability, uncertainty, and arbitrariness”311 and it lacks the legitimacy of common law rules and principles, which “are Institutions introduced by the will and Consent of others implicitely by Custome and usage, or Explicitely by written Laws or Acts of Parliament.”312 This preference for existing rules is more than the recognition that it is sometimes more important for the law to be settled than settled right.313 It also stems from belief that the incremental development of the law by many experienced minds engaged in the discipline of artificial reason will be a more reliable guide than an individual who perceives a rule to be irrational and sets to fix it on her own.

The statutory formalist, who chooses the objective meaning or particular historical intention over statutory purpose or contemporary public values, follows the lead of Hale who, responding to Hobbes’s critique of the obscurantism of common law doctrine, argued that “there is good reason to accept the requirements of law as fully binding, even when the rules cannot commend themselves to our reason.”314 The statutory formalist would also applaud the common law theory of David Hume who, building off Hale’s work, thought the “most important thing for society is that lines of authority be absolutely clear, settled, and matters of common knowledge.”315

Classical common lawyers, not just 19th Century positivists, valued public accessibility and accountability in legal development. This dovetails with their preferences for “salience” over broad “moral vision” in selecting the common law’s norms.316 Shifting to statutes, this orientation chimes with Waldron’s argument that, absent focus on a canonical text, reasoned deliberation by large groups is not possible.317 Formality is essential for bottom-up, customary legislation. Adherence to a statute’s reasonably clear semantic meaning or publicly discernible original intention takes common law legislation on its own terms, even when doing so is in tension with

310 Hale, Reflections, supra note 156, at 503. 311 Berman, Origins, supra note 152, at 1716. 312 Hale, Reflections, supra note 156, at 505. 313 See Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J.,

dissenting); Randy J. Kozel, Settled Versus Right: Constitutional Method and the Path of Precedent, 91 Tex. L. Rev. 1843, 1855–63 (2013) (discussing the costs and benefits of legal continuity).

314 Postema, Bentham, supra note 129, at 77 (characterizing Hale’s response to Hobbes). 315 Id. at 90 (characterizing Hume’s theory and linking it to Hale’s); see id. at 110–43

(describing Hume’s formalist, ascending, and conventionalist theory of common law while distinguishing it from Hobbes’s legal theory emphasizing rules dictated by a sovereign).

316 See Postema II, supra note 8, at 10. 317 See Waldron, Law and Disagreement, supra note 132, at 80–82.


51 background purpose, policy, or contemporary values.318 Not only does formalism respect the work of publicly accountable lawmakers,319 it focuses on indicia that are publicly salient and accessible in a way that abstract purposes, imaginative reconstructions, strands of legislative history, or judicial interpretation of contemporary public values are often not.

Accordingly, the common law tradition not only embraces Riggs v. Palmer, which Dworkin celebrated in 1986 for its use of legal principles to trump the plain text of a wills statute, but also Lord Camden’s 1765 opinion in Doe v. Kersey. There, Lord Camden counseled adherence to the Statute of Frauds’ explicit requirement of three witnesses for a valid will, even when the rule creates an injustice in an individual case.320 Lord Camden recognized that the rules of “positive law” can be blunt, but that is nevertheless preferable “to leave the Rule inflexible than permit it to be bent by the Discretion of the Judge.”321 Such modification of statutory formality, Camden asserted, is for “the Judgment of the Legislature.”322 The opinion in Doe, fittingly, is a rebuke of Lord Mansfield, the dynamic jurist Dworkin echoes in his vision of the common law working itself (and inferior statutes) pure.323 Although Lord Camden’s opinion was a dissent, his opinion does not occupy a fringe of the common law tradition.324

This is not to say that the common law tradition only points toward formality. There was a “deep ambiguity in Common Law theory” about whether the common law set public standards of reason and justice or was instead the “working out of reason” itself into the law.325 This ambiguity indicates that those who invoke the common law to justify nonformal

318 Cf. Manning, Second-Generation, supra note 277, at 1290. 319 The final draft of the statutory text was accessible to all legislative actors, the focus

of their debate, and the object they chose to enact together. Even if (when) members of legislature fail to read the final text, the legislature and the legislators are answerable for its content. See Ekins, supra note 98, at 234, 271–72.

320 See Hamburger, supra note 159, at 145 (discussing Doe). 321 Id. 322 Id. 323 Compare Dworkin, Law’s Empire, supra note 28, at 400 (invoking “the impure,

present law gradually transforming itself into its own purer ambition”) with Omychund v. Barker, [1744] 26 Eng. Rep. 15 (Ch.) 23 (Mansfield, L.J.) (“[A] statute very seldom can take in all cases, therefore the common law, that works itself pure by rules drawn from the fountain of justice, is for this reason superior to an act of parliament.”); see James Oldham, English Common Law in the Age of Mansfield 359 (2004) (describing Camden’s Doe opinion as an “attack on Mansfield’s” expansive views of judicial discretion).

324 Professor Schauer has scoured the law reports for cases in which, like Riggs v. Palmer, the letter of the law allows wrongdoers to profit from a will. He found that, “pace Dworkin,” Riggs appears to be an exception to a general rule of undesirable actors inheriting pursuant to the letter of wills statutes. See Frederick Schauer, The Limited Domain of Law, 90 Va. L. Rev. 1909, 1937–38 (2004) (citing cases).

325 Postema, Bentham, supra note 129, at 37.


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interpretation draw on a selective view of the tradition. The formalist’s solicitude toward publicly accessible, procedurally settled norms would not be mysterious to classical common lawyers. The Supreme Court’s current tendency to prefer formality, to rarely invoke the absurdity doctrine, but to not categorically foreswear such substantive overrides in extremis, represents a rough and, predictably, messy accommodation of those competing values.326

In this respect, disagreement between formalists and antiformalists in statutory interpretation concerns this unresolved tension at the heart of the common law itself. A claim that this longstanding dilemma is simply a choice between an antiformalist “common law model of statutory interpretation”327 and a formalist approach where judges are “mere servitors of a positivistic sovereign”328 does not grasp the complexity of the common law tradition or all the interpretive implications of bottom-up, customary legislation.

V. Realignment within a Common Law System

A common law system consists not only of precedent, but also legislation developed in a manner analogous to the artificial reason of judicial decisionmaking. Precedential and statutory common law both aim to capture, or forge, bottom-up consensus on particular public problems. In the common law tradition, equating the process for developing these legal norms with any one decision-maker’s view on natural law, policy, or popular opinion is not only misleading, but corrosive of the practice and its benefits.

So far, a dynamic interpreter could agree with much in the paragraph above (though not each one would329). What divides formalism and dynamic rivals is the common law court’s role when a statute’s reasonably clear formal indicia point against background purpose, the broader fabric of the law, sound justice or policy, or contemporary values. The dynamic interpreter, relying on the common law character of adjudication and legislation, treats interpretation as a dialogue in which the court may imprint its artificial reason on the legal materials at hand. Just as courts refine precedent over time, they can also develop statutes, with the caveat that the legislature may override such judicial refinement in response.

The standard formalist response grounds faithful agency on a sharp 326 See Pojanowski, Common Law Courts, supra note 7, at 485–86 (describing the

Court’s formalist turn in recent decades); cf. Bond v. United States, 134 S.Ct. 2077, 2090–91 (2014) (giving, “in this curious case,” legislation a narrower interpretation when an otherwise-ordinary reading would conflict with background principles of federalism).

327 Pildes, supra note 73, at 913 328 Id. at 898. 329 See supra Part IV.C.1. (describing nonformalists’ breaks with the classical common

law tradition’s understanding of artificial reason).


53 distinction between common law adjudication and statutory interpretation. The common law tradition is relevant, if at all, in the absence of legislation or as a tool for interpreting unclear statutes. One payoff of the discussion so far is recognizing how an interpreter can be a formalist without, in the words of dynamic critics, “resegregat[ing] the worlds of statute and common law”330 at the level of theory. Interpretive formalism can be understood as an extension of the common law tradition in its respect for compromise, modest aspirations for coherence, and its preference for normative salience over abstract moral vision. At the root of these features is willingness to defer without further elaboration to the legislature’s artificial reason when formal indicia are reasonably clear. Such effacement of the judicial role in these cases is not necessarily grounded in a rejection of the common law tradition, but an interpretation of that tradition in which primacy—though not exclusivity—in developing common law shifts from courts to legislatures. This final section explores some implications of a common law theory of faithful agency.

A. What Interpretive Formalism Offers the Common Law Tradition

The common law, like any living tradition, must develop as it seeks to resolve problems that confront it.331 The understanding of the legislative process articulated above, however stylized, suggests that the common law tradition continues even as the center of gravity of legal development shifts initiative to legislatures. It is possible to understand the shift of primacy from courts to legislatures—and the concomitant judicial deference to reasonably clear statutory formality—as a natural development in the common law tradition, not a rupture.

This emphasis on the work of the people’s representatives for the development of the law continues the arc of increasing populism in the common law tradition’s conception of law as bottom-up custom suited to the complexion and ways of a polity.332 Rather than channeling that populism through direct referenda or pure majoritarian politics, the tradition disciplines that deliberation through formal structures encouraging compromise, if not widespread consensus.

Relatedly, this development mitigates the persistent dilemma about how to connect the arcana of common law doctrine with the lived ways of the people. Put another way, it responds to the question of how the custom of the

330 Strauss, Resegregating, supra note 54, at 528. 331 Cf. Alasdair MacIntyre, Whose Justice? Which Rationality? 349–69 (1988)

(describing the rationality and development of traditions of thought). 332 See Cromartie, supra note 149, at 206–14 (describing the increasing populism of

common law theory).


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bar corresponds with the custom of the people.333 Classical common lawyers bridged this gap by arguing that the technical doctrine had “substantial congruence . . . with the ways of the people” or was incorporated and accommodated “to the ‘frame’ and ‘disposition’ of the people.”334 The classical position primarily assigned the task of such incorporation and accommodation to an experienced and prudent judiciary.335 In line with the increasing populism of common law as ascending custom, however, the “artificial reason” of the legislative process can better narrow the gap between positive law and the people on whose behalf speaks. In fact, it was Hale’s recognition that the common law had to be “accommodated to the Conditions, Exigencies and Conveniencies of the People” that led him to underline the importance of statutes in the legal system.336

The shift of emphasis toward statutes also mitigates the problems of complexity that bedevil a common law system limited to adjudication. It is one thing for courts to resolve disputes over contracts or slip-and-falls, and quite another for them to tackle larger, polycentric tasks like access to health care, utility regulation, or interstate pollution.337 Appreciating legislatures’ potential for systemic reform is no modern revelation. Hale saw legislation as crucial to legal development, chaired a law reform commission, and called for incremental legislative alteration of the common law (while cautioning against departing from basic constitutional norms).338 As with increasingly

333 See David J. Bederman, Custom as a Source of Law 30 (2010) (contrasting common

law understood as “custom of the courts” with the vision of the common law as “populist and deeply rooted in practices of the English people-at-large”); Cromartie, supra note 149, at 211 (observing the problem of connecting custom of the courts to popular practice and beliefs); Postema I, supra note 110, at 168–69 (same).

334 Postema I, supra note 110, at 175 (quoting Hale, History, supra note 119, at 51); see also id. (discussing St. Germain’s approach);

335 Postema I, supra note 110, at 175. 336 Hale, History, supra note 119, at 39; see Berman, Origins, supra note 152, at 1712

(drawing this connection); cf. Bederman, supra note 333, at 30 (describing Hale as a common-law populist who also accepted “parliamentary supremacy” over “judge-made common law and customary regimes”).

337 See Lon Fuller, The Forms and Limits of Adjudication, in The Principles of Social Order, Selected Essays of Lon L. Fuller, at 111–21 (Kenneth I. Winston ed., 1981) (discussing the limits of adjudication to resolve such polycentric problems); see generally Frederick Schauer, Do Cases Make Bad Law?, 73 U. Chi. L. Rev. 883, 883–85 (2006) (exploring the limits of case-by-case litigation for law development).

338 Gray, supra note 115, at xxix (“But for Hale the basic changes of the crucial medieval centuries pointed to conscious general legislation.”); id. at xxix–xxx (discussing Hale’s work as a reformer and Hale’s essay “The Amendment of the Laws’); Berman, Origins, supra note 152, at 1712 (stating that Hale appreciated “the importance of legislation under Edward I . . . who was in many ways the hero of Hale’s History and, more generally, to stress the great role played by legislation throughout English legal history”).


55 popular responsibility for artificial reason in the common law style, a greater emphasis on statutory initiative to resolve complex problems (in admittedly incremental fashion) extends and develops the common law tradition, rather than abandoning it. In this light, the major differences between legislating and adjudication noted at the end of Part III point toward judicial deference.339 The wider range of considerations for compromise available to a legislature, as well as the broader array of solutions—including deferring decision or even delegation—are commensurate to the complexity of modern governance. Courts’ more limited tools to respond to that complexity further show the superiority of legislatures as “artificial reasoners.”

Finally, a common law system’s increased turn toward legislation may be a result of, or response to, the erosion of the social consensus and cohesion that characterized the more juriscentric common law of the classical period. Even forty years ago, legal historian Brian Simpson saw such fragmentation afoot as the scope of the legal system broadened beyond “twelve men in scarlet” cultivating the common law.340 Other explanations, such as increased pluralism in society and the bar, also come to mind. One manifestation of this breakdown in consensus, which Simpson saw occurring in America well before England, was a tendency to identify common law doctrine with canonical rules that satisfy external tests of validity, rather than internal shared agreement among practitioners.341 Simpson, who focused on the judiciary and attempts to render its practice more rule-like, saw in these developments a “breakdown of a system of customary or traditional law.”342

A focus on legislation sheds new, and perhaps more optimistic light, on the challenge social fragmentation poses to the common law system. Unlike common law adjudication, which appears to require a judiciary reliably in touch with widespread social consensus, the structured, deliberative reasoning of large assemblies has greater potential to identify preexisting agreement and to forge agreement through compromise where there was none before. An increasing reliance on legislation in common law fashion represents (optimistically) a successful adaptation of the tradition to new social contexts or (resignedly) a second-best approximation of the tradition in an age of diminished expectations about social agreement.

B. What the Common Law Tradition Offers Interpretive Formalism

It is fair to ask why interpretive formalists should claim the common law

339 See supra Part III.C. 340 Simpson, supra note 159, at 24; see id. (surmising that the “breakdown in the

cohesion of the common law” system is connected to “the institutional changes of the nineteenth century, and the progressive increase in [its] scale of operations”).

341 See id. at 23–24. 342 Id. at 23.


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tradition, especially if doing so will not change much about their approach to statutory interpretation. This subsection identifies some of the benefits of retheorizing formalism within the common law tradition.

First, classical common law theory grounds interpretive formalism in arguments that are continuous with the broader legal tradition from which our legal system originated. This point is rhetorical, but rhetoric in law is more than puffery. Law is an inherently conservative practice that favors continuity over rupture and the familiar over the novel. Formalists begin arguments on the back foot when they concede or celebrate their break from those traditions. Such a disadvantage is unnecessary, as formalists can situate their practice within the inherited tradition and can use that tradition to criticize rival approaches.

Second, interpretive formalism is a more complete theory of interpretation when integrated with the common law tradition. The primary division between formalists and their opponents is whether to follow reasonably clear text (or original intent) when it conflicts with background purpose, the broader fabric of the law, or contemporary values. Yet formalists interpret unclear statutory provisions in light of uncodified purpose, other legislation, and background, unwritten legal principles and policies in common law fashion. This has led critics to claim that formalist approaches like textualism are incomplete as theories of statutory interpretation.343 Textualism tells courts what to do with clear text, but says little about the many cases in which legislation is not clear. A common law theory that includes formalism, however, can gather front-line faithful agency and the second-line integrative, contextual approaches under the same tent. It is not “Austin first, open Blackstone in case of emergency,” but the common law tradition all the way down.

Relatedly, common law formalism more readily reconciles faithful agency in statutory interpretation with the persistence of background, unwritten law.344 Federal court decisions, including those written by formalist judges, will find implied common law defenses to statutory crimes, read terms in light of common law meanings, and resolve conflicts of law questions without appeal to statutory text. Federal courts in a textualist era have begun to act as if the statute somehow “contained” or incorporated these rules of unwritten law.345 As Professor Caleb Nelson has argued, these

343 See Merrill, Faithful Agent, supra note 104, at 1596. 344 Cf. Nelson, Persistence, supra note 77, at 503 (defending “the continuing relevance

of rules of general law––rules whose content is not dictated entirely by any single decisionmaker (state or federal), but instead emerges from patterns followed in many different jurisdictions”).

345 See Nelson, State and Federal Models, supra note 197, at 661–63.


57 practices could just as well be explained by interstitial general law that persists notwithstanding dicta doubting the “brooding omnipresence” in Erie Railroad Co. v. Tompkins.346 Formalist resistance to this solution, moreover, flows from a Hobbesian and Benthamite belief that common law is merely a judicial form of law as command.347

Once we reject this top-down understanding of precedent and statute within a common law system, background unwritten law can more comfortably have a place alongside legislation in formalist statutory interpretation. Authoritative legislation is a superior form of customary law, for sure, and trumps conflicting, uncodified doctrine. But if courts understand common law adjudication as less judicial fiat than a principled and disciplined attempt to forge and channel customary norms, the separation-of-powers worries of judicial recognition of background law in the “gaps” of statutes are less fraught.348 Adjudication and legislation aspire to the same end of ascending law; that statutes are superior evidence of our common law does not necessarily extinguish background doctrine consistent with the legislation. Nor does the courts’ justified use of this background law require a belief—or a fiction—that Congress silently commands that this doctrine to be somehow “within” the statute.

In a similar vein, situating formalism in the common law tradition also sheds light on the order of sources formalists prefer when interpreting unclear statutes. Many will look to inferences from statutory structure, other legislation, and interpretive canons before using legislative history, abstract purpose, or sound policy to resolve statutory uncertainty.349 The formalist’s preference for coherence with the enacted corpus of legislation and well-established background legal norms, which critics decry as willful resistance to the legislature, is more understandable if statutory formalism is an extension of the common law tradition.

Reading a statutory provision in light of other enacted materials looks to

346 Id. at 661–63; 724–28; Southern Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917)

(Holmes, J.) (“The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified.”); see Erie R. Co. v. Tompkins, 304 U.S. 64, 79 (1938) (adopting Holmes’s rejection of general federal law because there is no “transcendental body of law outside any particular State but obligatory within it”)

347 See Nelson, Legitimacy, supra note 77, at 17 (“Bentham’s views certainly have modern adherents. Textualists, in particular, have embraced various aspects of his critique of unwritten law.”).

348 See Pojanowski, Private Law, supra note 22, at 1748–50. 349 See Abbe R. Gluck, The States as Laboratories for Statutory Interpretation:

Methodological Consensus and the New Modified Textualism, 119 Yale L.J. 1750, 1763, 1829–33 (2010) (identifying this feature of federal textualism and comparing it to state court “modified textualists” who prefer legislative history over non-linguistic canons).


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other authentic examples of the legislature’s “artificial reason.” Looking to established, uncodified background law draws on the legislatively defeasible artificial reason of the courts. Given common lawyers’ distrust of “natural reason,” both resources are superior to filling a statutory gap based on a judge’s views on justice or policy. Given the inaccessibility of the legislature’s reasoning to the judicial outsider, other existing, authentic results of the legislature’s reasoning process may be more reliable sources than inference of legislative purpose, history, or contemporary values. Similarly, to the common lawyer the disciplined, artificial reason of the courts evident in interpretive canons or uncodified general law may be more effective in channeling custom than reading the raw material of legislative debates. Thus, the formalist’s preference for canons, presumptions, and uncodified background law over inferences of purpose, legislative history, or general sense of the spirit of the age may be best explained by their continuing, if unacknowledged, adherence to the common law tradition.

Finally, the common law tradition bolsters, or at least contextualizes, constitutional arguments many formalists use to justify their approach to statutory interpretation. A leading strain of textualism, for example, aims to derive formalist rules of interpretation from the constitution.350 Importantly, and unsurprisingly, these constitutional arguments have more traction with judicial formalists than non-doctrinal rationales for formalist interpretation.351 But such arguments are, by formalist standards, more suggestive than conclusive.352 Extracting principles that demand textualism from the constitution’s vesting clauses and the requirements of bicameralism and presentment seems hardly more determinate than deriving general “separation of powers” or “federalism” principles. Textualists like Manning have been hesitant to endorse the latter exercises, which raises questions about such arguments in service of statutory formalism.353

350 Compare Manning, Deriving Rules, supra note 96, (grounding formalism in

constitutional structure) with Vermeule, supra note 279, (grounding formalism in consequentialism) and Larry Alexander, All or Nothing At All? The Intentions of Authorities and the Authority of Intentions, in Law and Interpretation (Andrei Marmor ed., 1995) (grounding formalism in the nature of interpreting legal texts).

351 See, e.g., Barnhart v. Sigmon Coal Co., 534 U.S. 438, 461 (2002) (Thomas, J.) (reasoning that allowing legislative purpose to trump enacted text would undermine the Constitution’s legislative process of bicameralism and presentment); Bank One Chi., N.A. v. Midwest Bank & Trust Co., 516 U.S. 264, 280 (1996) (Scalia, J., concurring in part and concurring in the judgment) (objecting to judicial use of legislative history on constitutional grounds).

352 See Vermeule, supra note 279, at 30–33 (attacking the determinacy of Manning’s arguments); id. at 33 (“But the best reading of the Constitution is that interpretive formalism and interpretive antiformalism are constitutionally optional for judges.”).

353 See John F. Manning, Separation of Powers as Ordinary Interpretation, 124 Harv. L.


59

This is not to say constitutional derivations of textualism are inconsistent with formalism; as in statutory interpretation, formalists use arguments from structure and purpose in absence of more determinate indicia.354 Nor is it to say that these arguments are unpersuasive. It is, however, to identify these arguments as a kind of constitutional common law in the lacunae of authoritative text. When we understand interpretive formalism as an extension of the common law tradition, this should not be at all surprising. Classical English common lawyers understood constitutional law, including parliamentary supremacy, as common law rooted in judicial decision, statutes, and custom. When we see how formalist arguments from constitutional structure resemble classical common lawyers’ understanding of unwritten but very real constitutional norms, we have a better understanding of the character of these arguments and their continuity with past practice.

C. The Common Law Tradition’s Challenge to Nonformalist Interpretation

An immediate takeaway from the arguments above is that the connection between the common law tradition and nonformalist approaches to statutory interpretation is not as straightforward as many putatively “common law” interpreters believe. If the connection between nonformal interpretation is to be more than rhetoric, it must be grounded in careful argument about the character and direction of a contested tradition. A natural response—challenging this Article’s interpretation of the tradition—will shift the terms and rhetoric of their debate with formalism. Nonformalists will have to reconcile or justify their departures from traditional understandings of artificial reason and study more closely the heritage they claim. Dynamic interpreters, who are more likely to be found in law schools than on the bench, will have to confront their resemblance to the academic critics of the common law who, drawing on civil law learning, urged judges to exercise discretion in order to systemize the muddle of the common law and align it with

Rev. 1939, 1944 (2011) (“Viewed in isolation from the constitutionmakers’ many discrete choices, the concept of separation of powers as such can tell us little, if anything, about where, how, or to what degree the various powers were, in fact, separated (and blended) in the Philadelphia Convention's countless compromises.”); and John F. Manning, Federalism, supra note 103, at 2008 (“But to say, as the Court does in its new federalism cases, that the document adopts an unspecified federalism norm ignores the fact that lawmakers—including constitutionmakers—must make hard choices about how to carry out their purposes, judgments about what the attainment of some purposes is worth in particular settings, and tradeoffs against other values.”).

354 See Manning, Absurdity Doctrine, supra note 97, at 2434 n. 179 (citing Charles L. Black, Jr., Structure and Relationship in Constitutional Law 3–32 (1969)) (“The structural approach I advance here parallels the longstanding constitutional tradition of interpreting open-ended grants of power in light of the constitutional structure as a whole.”).


60

universal tests of reason.355

More concretely, the analysis indicates that some nonformal methods are more vulnerable than others. First-order moves that depart from formal indicia based on the statute’s content appear more suspect than second-order methods that try to improve the legislative process. For example, an approach that relies on legislative history and selective use of canons to encourage public-regarding legislation and limit rent-seeking statutes356 arguably respects the centrality of common law legislation more than after-the-fact updating based on the court’s impression of public values.357

Nonformal interpreters alternatively may be resigned to possibility that the common law tradition at most underwrites a weak purposivism that attends closely to statutory text and looks to the purpose of a particular statute or provision, rather than the legal fabric as a whole. With the rise of formalism in the Rehnquist and Roberts Courts, this modest purposivism practiced by Justice Breyer is the least formalist approach to statutory interpretation one will usually see garnering a Supreme Court majority.358 Discriminating use of legislative history, purpose, and appeals to local coherence may lead such an interpreter to override clear formal indicia in legislation. Nevertheless, this approach, while falling short of orthodox formalism, lacks the aspirations to systemic doctrinal elegance of other dynamic approaches and is more likely to take the sometimes-rugged legal topography as it finds it.

Finally, although this Article’s analysis focuses on federal law, it should cautions jurists (and scholars) who assume that state courts’ undisputed “common law powers” justify greater interpretive dynamism than in federal courts of limited jurisdiction.359 To the extent that states legislatures, too, make statutes in common law fashion, the arguments for faithful agency grounded in the common law tradition would apply. There may be variance among jurisdictions—Nebraska’s unicameral legislature comes to mind—but

355 See Hamburger, supra note 15, at 116–18, 126–41 (contrasting traditional common

lawyers’ more constrained views of the judicial role, legal change, and discretion, with the ambitions of learned law).

356 See generally, e.g., Cass Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405 (1989); Jonathan R. Macey, Promoting Public-Regarding Legislation Through Statutory Interpretation: An Interest Group Model, 86 Colum. L. Rev. 223 (1986).

357 Whether second-order structural dynamism is significantly more likely to avoid first-order value judgments is unclear. Cf. Shapiro, supra note 265, at 925 (expressing skepticism about use of canons for “‘correction’ of legislative imperfections”).

358 See Manning, The New Purposivism, 2011 Sup. Ct. Rev. 113, 113–14; Zuni Pub. Sch. Dist. No. 89 v. Dep’t of Educ., 550 U.S. 81, 84, 93, 97–98 (2007) (Breyer, J.).

359 See Kaye, supra note 3, at 1; Pojanowski, Common Law Courts, supra note 7, at 479–80.


61 it is possible that the persistence of the common law tradition in state and federal courts in this respect is not markedly different.360 In fact, one of the most notable distinctions between state and federal legislative practice—the likelihood that states adopt uniform or comprehensive codes—is a state law departure from the common law tradition. Perhaps it is federal formalists who are today’s “keepers of the common law.”361

Conclusion

The common law, like all living traditions, is a contested one and arguments about its shape and direction obviously do not end with Coke, Selden, and Hale. Directly to that point, this Article offers a reading of that tradition’s patterns of thought to argue that formal approaches to statutory text are both an outgrowth and an adaptation of the common law tradition in a legal system with far more legislation than Coke, Selden, or Hale ever confronted. If so, advocates of dynamic and strongly purposive statutory interpretation do not have sole claim on that part of the American legal heritage. When they invoke the common law tradition, they draw on a complex body of ideas that offers as much challenge to their methods as support. Conversely, interpretive formalists need not jettison the common law tradition or adopt the reductive, Hobbesian framework of the tradition’s critics to press their case.

The argument between formalists and their critics, in this light, is a dispute about which way to develop a tradition, not whether to abandon it. It takes fewer steps to resolve an argument within a tradition than an argument in which disputants are talking past each other, or at least mistakenly think they are. Law, after all, handles evolutionary arguments far easier than revolutionary claims. As this Article hopefully shows, the common law tradition can provide goals, resources, and standards of success for resolving the long-running dispute about formality in statutory interpretation.

360 See Nelson, Legitimacy, supra note 77, at 23–24 (noting that “skeptics of federal

common law suggest that state courts have more such authority in areas of state law than federal courts have in area s of federal preemption” and stating that this conclusion is “not obviously correct”).

361 Cf. Kaye, supra note 3, at 6 (describing her state court as a “keeper[] of the common law”).


Attachment II

1

A NEW APPROACH TO STATUTORY INTERPRETATION IN WASHINGTON Phil Talmadge

When the Legislature enacts a statute, it intends to accomplish a particular

purpose. Such a purpose may be shrouded in imprecise drafting, legislative

jargon, or political compromise.1 Nevertheless, it is the constitutional role of the

1 Used in this context, I mean political compromise over the purpose or

sections of the enactment. Some commentators, none of whom have been legislators, imply that legislative bodies intentionally make statutory language vague to achieve a political compromise. See, e.g., Kenneth Shepsle, Congress Is a “They, Not an “It”: Legislative Intent as Oxymoron, 12 Int’l Rev. L. & Econ. 239, 240-41 (1992). See also Reed Dickerson, Statutory Interpretation: Dipping into Legislative History, 11 Hofstra L. Rev. 1125, 1142 (1983). The view was cited with approval by the Washington Supreme Court with regard to the Growth Management Act in Ass’n of Rural Residents v. Kitsap County, 141 Wn.2d 185, 188-89, 4 P.3d 115 (2000):

The GMA was a legislative compromise, and how it is carried out and enforced is a reflection of this compromise. As one commentator has stated: “unlike [the State Environmental Policy Act of 1971 (SEPA), RCW 43.21C] and [the Shoreline Management Act of 1971, RCW 90.58], GMA was spawned by controversy, not consensus. The relative spheres of state mandate and local autonomy were the product of extremely difficult legislative compromise.” Richard L. Settle, Washington’s Growth Management Revolution Goes to Court, 23 Seattle U. L. Rev. 5, 34 (1999). Moreover, [b]ecause the recommendations of the Growth Strategies commission were variously embraced, rejected, and ignored by the wrangling legislature, the GMA was not the finely-honed product of a law revision commission. Both installments of the Act were riddled with politically necessary omissions, internal inconsistencies, and vague language, sometimes consciously designed to defer the final reckoning to another day and, perhaps, another forum.

In my 16 years in the Washington Legislature, I can recall no instance where the language of a statute was intentionally made ambiguous. This would be politically counterintuitive as both sides to such an agreement would legitimately fear the likely court decision interpreting the statute.


2

courts in a particular case to implement the legislative purpose expressed in

statute. It is in this practical application that the problems with the enactment

arise.

In a case or controversy, the courts use a variety of principles of statutory

interpretation to assess precisely what the Legislature meant in enacting a statute.

Unfortunately, the canons of statutory construction developed by courts across

the United States, including those in Washington, are often result-driven. There

are literally so many canons of statutory construction, often diametrically

opposed to one another, that the courts may pick and choose those canons most

favorable to the ultimate disposition the court wishes to achieve. This leaves

considerable power in the hands of the judiciary to make policy as the judges

deem fit without regard to the Legislature’s actual intent in enacting a statute.

In this article, I will first explore Washington’s existing law, both statutory

and judicial, on statutory interpretation. I will then evaluate the mechanisms for

construing statutes derived from common law and legislative sources. Finally, I

will recommend a new paradigm for statutory construction so that legislative

intent may be more accurately conveyed to the courts, abandoning much of the

time-encrusted canons in favor of principles of interpretation adhering more

specifically to the Legislature’s actual statutory language.

I. WASHINGTON LAW ON STATUTORY CONSTRUCTION

Washington law on statutory construction is found in statute, court rule,

and case law. However, the common law rules of construction have been the


3

predominant analytical force for interpreting statutes. Each aspect of

interpretation is treated here in turn.

A. STATUTES

A little known aspect of Washington law on statutory construction is that

the Legislature itself has established certain rules of construction in statute. The

Legislature determined as early as 1891 that the Revised Code of Washington

(RCW) was to be “liberally construed” and “not limited by any rule of strict

construction.”2 The courts have not specifically employed this statutory

provision, instead choosing generally to utilize common law rules of statutory

construction, applying statutes liberally or strictly.

Where statutes are amended, the Legislature has adopted a general policy

against implied repealers; statutory provisions substantially the same as those of a

statute existing when the provisions were enacted are deemed a continuation of

that statute.3

If the Legislature has amended the same code section more than once in

the same legislative session without internal reference, the various amendments

may be given effect if they do not conflict; if they conflict, the last enacted

2 RCW 1.12.010. 3 RCW 1.12.020; State ex rel. Duvall v. City Council, 71 Wn.2d 462, 429

P.2d 235 (1967) (amendatory statute deemed to continue former statutory proceedings where changes in amendatory act were procedural in nature); State v. Carroll, 81 Wn.2d 95, 500 P.2d 115 (1972).


4

amendment controls.4 The Legislature delegated authority to the code reviser to

publish the RCW section with all of the amendments incorporated into that

section, as well as to decodify repealed code sections which were repealed

without reference to an amendment to the section.5

References to time,6 certified mail use,7 and numbers and gender8 are also

addressed by legislative rule.

In recognition of separation of powers concerns,8a the Legislature adopted

a statute indicating court rules in conflict with statutory provisions render the

statutory enactments of “no further force or effect.”9 This statute has been found

constitutional,10 but the courts have limited its application to procedural

4 RCW 1.12.025(1); In re Henderson, 97 Wn.2d 356, 644 P.2d 1178

(1982).

5 RCW 1.12.025(2). 6 RCW 1.12.040. 7 RCW 1.12.060 (registered mail and certified mail interchangeable). 8 RCW 1.12.050. 8a Marine Power & Equip. Co., Inc. v. Industrial Indemnity Co., 102 Wn.2d

457, 687 P.2d 202 (1984); (under separation of powers, court has authority to set court rules even if inconsistent with rules set by the Legislature); State v. Fields, 85 Wn.2d 126, 530 P.2d 284 (1975); State v. Smith, 84 Wn.2d 498, 527 P.2d 674 (1974) (courts have inherent power to adopt rules of procedure).

9 RCW 2.04.200. 10 State ex rel. Foster-Wyman Lumber Co. v. Superior Court, 148 Wash. 1,

267 Pac. 770 (1928); (Legislature could delegate power to Supreme Court to


5

statutes.11 Wherever possible, however, the courts endeavor to harmonize

conflicts between rules and statutes to give effect to both within their appropriate

spheres.12

The legislative enactments on statutory construction, though not extensive

in scope, are significant because they confirm a critical principle: the Legislature

may take an active role in directing how the courts are to interpret legislative

enactments. By statute, the Legislature may direct particularized expansive or

restrictive interpretations of its work, or generally mandate that certain

information regarding the enactment is authoritative. This is vital to the later

discussion in this article of a new approach to statutory interpretation.

B. COURT RULES

promulgate rules and could invalidate inconsistent statutes); In re Messmer, 52 Wn.2d 510, 326 P.2d 1004 (1958).

11 The Washington Supreme Court differentiated procedural from

substantive concerns as follows: Although a clear line of demarcation cannot always be delineated between what is substantive and what is procedural, the following general guidelines provide a useful framework for analysis. Substantive law prescribes norms for societal conduct and punishments for violations thereof. It thus creates, defines, and regulates primary rights. In contrast, practice and procedure pertain to the essentially mechanical operations of the courts by which substantive law, rights, and remedies are effectuated.

Smith, 84 Wn.2d at 501. See also State v. Ryan, 103 Wn.2d 165, 691 P.2d 197 (1984); Petrarca v. Halligan, 83 Wn.2d 773, 522 P.2d 827 (1974).

12 Emright v. King County, 96 Wn.2d 538, 637 P.2d 656 (1981).


6

A second significant source of rules on statutory construction is found in

court rules. In adopting procedural rules for Washington’s courts, the Supreme

Court has established policies for construction of statutes in a narrow band of

circumstances.

By court rule, procedural statutes are superseded by the civil and criminal

rules for superior court.13 In certain specific instances, the judiciary has

preserved a statutory enactment on what is ostensibly a procedural matter.14

Whether the courts have the power to invalidate legislative enactments by

judicial fiat is an open question in Washington constitutional law.15

C. CASE LAW

The final and most significant source of rules in Washington on statutory

construction is case law. The Washington judiciary claims the exclusive power

to authoritatively interpret the acts of the Legislature.16 This claim rings a bit

13 CR 81; CrR 1.1. 14 See, e.g., CR 13(c)(1) (statutes on capacity of infants to sue and be sued);

CR 60(e)(4) (RCW 4.72.010-.090 preserved). 15 See generally Hugh Spitzer, Court Rulemaking in Washington, 6 U.

Puget Sd. L. Rev. 31 (1982) (advocating shared judicial-legislative role in making court procedural rules in light of history of both branches in court rules).

16 See, e.g., State v. Wilson, 125 Wn.2d 212, 216, 883 P.2d 320 (1994)

(court is “ultimate authority” on meaning and purpose of statute), Bellevue Fire Fighters Local 1604 v. City of Bellevue, 100 Wn.2d 748, 675 P.2d 592 (1984) cert. denied, 471 U.S. 1015 (1985) (courts are final authority on statutory construction); Multicare Med. Ctr. v. Dep’t of Soc. & Health Servs., 114 Wn.2d 572, 582 n.15, 790 P.2d 124 (1990). See also Short v. Clallam County, 22 Wn.


7

hollow in light of the Legislature’s power to amend a statute after the judicial

interpretation of the Legislature’s act.17 Regardless of the exclusivity of the

authority, the consequences of the judicial interpretation are very significant: the

judiciary’s interpretation of the statute becomes a part of the enactment as if it

had been there since the Legislature enacted the legislation.18

The Washington courts have developed a paradigm for analyzing a statute;

the centerpiece of this paradigm is that the courts analyze a statute to carry out

the intent of the Legislature.19 If the statute is plain and unambiguous, the courts

App. 825, 832, 593 P.2d 821 (1979) (court is “final arbiter” of legislative intent).

17 This power of the Legislature to amend a statute to alter the judicial

interpretation is discussed at 49-50 infra. A fascinating example of the interplay between the branches in this regard is found in cases involving the standard of care for medical malpractice. In Helling v. Carey, 83 Wn.2d 514, 519 P.2d 981 (1974), the Washington Supreme Court held ophthalmologists could be held to a standard of care with respect to glaucoma higher than that practiced in the relevant medical community. The Legislature amended the law relating to malpractice to define the standard of care more restrictively. The Court reaffirmed Helling, in Gates v. Jensen, 92 Wn.2d 246, 595 P.2d 919 (1979), despite the Legislature’s action and its specific reference in a bill report to its intent to overrule Helling.

18 See, e.g., Ino Ino v. City of Bellevue, 132 Wn.2d 103, 137, 937 P.2d 154

(1997); State v. Regan, 97 Wn.2d 47, 51-52, 640 P.2d 725 (1982). 19 A fairly typical recitation of this paradigm is found inWhatcom County

v. City of Bellingham, 128 Wn.2d 537, 546, 909 P.2d 1303 (1996): In interpreting a statute, we do not construe a statute that is unambiguous. Food Servs. of Am. v. Royal Heights, Inc., 123 Wn.2d 779, 784-85, 871 P.2d 590 (1994). If the statute is ambiguous, the courts must construe the statute so as to effectuate the legislative intent. In so doing, we avoid a literal reading if it would result in


8

enforce the statute as written.20 If the statute is ambiguous, susceptible to two or

more reasonable interpretations,21 the courts resort to an interpretive process to

ascertain the Legislature’s meaning. Each aspect of the paradigm is reviewed

here in turn.

(a) Legislative Intent

unlikely, absurd or strained consequences. State v. Elgin, 118 Wn.2d 551, 555, 825 P.2d 314 (1992). The purpose of an enactment should prevail over express but inept wording. Id.; State ex rel. Royal v. Board of Yakima County Comm’rs, 123 Wn.2d 451, 462, 869 P.2d 56 (1994). The court must give effect to legislative intent determined “within the context of the entire statute.” Elgin, 118 Wn.2d at 556; State ex rel. Royal, 123 Wn.2d at 459. Statutes must be interpreted and construed so that all the language used is given effect, with no portion rendered meaningless or superfluous. Stone v. Chelan County Sheriff’s Dep’t, 110 Wn.2d 806, 810, 756 P.2d 735 (1988); Tommy P. v. Board of County Comm’rs, 97 Wn.2d 385, 391, 645 P.2d 697 (1982). The meaning of a particular word in a statute “is not gleaned from that word alone, because our purpose is to ascertain legislative intent of the statute as a whole.” State v. Krall, 125 Wn.2d 146, 148, 881 P.2d 1040 (1994).

See also Detention of A.S., 138 Wn.2d 898, 911, 982 P.2d 1156 (1999) (“the primary goal in statutory interpretation is to ascertain and give effect to the intent of the Legislature,”), quoting In re Detention of LaBelle, 107 Wn.2d 196, 728 P.2d 138 (1986).

20 Food Servs. of America v. Royal Heights, Inc., 123 Wn.2d 779, 871 P.2d

590 (1994). 21 Vashon Island Community for Self-Government v. State Boundary

Review Board, 127 Wn.2d 759, 903 P.2d 953 (1995).


9

In numerous cases, Washington courts have indicated their purpose in

analyzing a statute is the implementation of legislative intent.22 This purpose has

been described variously as the court’s “primary goal”23 or “paramount duty.”24

But in practical application, Washington courts have taken two distinct

approaches to the intent of the Legislature. On the one hand, the courts have

adopted a literalist approach: take the words as the Legislature stated them.25

22 Knipe v. Austin, 13 Wash. 189, 193, 44 P. 531 (1895) (“The legislative

mind may or may not have reasoned correctly on this proposition, but when we concede to it the right to enter upon an investigation of this kind, the results of the investigation expressed in an enactment cannot be called in question by the court.”) See also C. L. Featherstone v. Dessert, 173 Wash. 264, 268, 22 P.2d 1050 (1933). (“In the interpretation of a statute, the intent of the legislature is the vital thing, and the primary object is to ascertain and give effect to that intent.”)

23 Nat’l Elec. Contractors Ass’n v. Riveland, 138 Wn.2d 9, 19, 978 P.2d

481 (1999). 24 State v. Johnson, 119 Wn.2d 167, 172, 828 P.2d 1082 (1992). 25 Shelton Hotel Co. v. Bates, 4 Wn.2d 498, 508, 104 P.2d 478 (1940):

Even if the court is fully persuaded that the legislature really meant and intended something entirely different from what is actually enacted, and that the failure to convey the real meaning was due to inadvertence or mistake in the use of language, yet, if the words chosen by the legislature are not obscure or ambiguous, but convey a precise and sensible meaning (excluding the case of obvious clerical errors or elliptical forms of expression), then the court must taken the law as it finds it, and give it its literal interpretation, without being influenced by the probably legislative meaning lying back of the words.

A “court cannot read into a statute that which it may believe the legislature has omitted, be it an intentional or inadvertent omission.” Automobile Drivers & Demonstrators Union Local 882 v. Dep’t of Retirement Sys., 92 Wn.2d 415, 421,


10

The second approach evaluates the “spirit” or “purpose” of the enactment and

interprets the statute so as to avoid an absurd result compelled by the actual

legislative language.26 Neither approach is exclusive, as Washington courts have

used both. If, on the one hand, the courts say they lack the power to insert words

598 P.2d 379 (1979) (citations omitted). See also Vita Food Products, Inc. v. State, 91 Wn.2d 132, 587 P.2d 535 (1978); (court may not add words to statute even if it believes the Legislature intended something else but failed to express it); Duke v. Boyd, 133 Wn.2d 80, 942 P.2d 351 (1997).

26 State v. Elgin, 118 Wn.2d 551, 555, 825 P.2d 314 (1992); State ex rel.

Royal v. Bd. of Yakima County Comm’rs, 123 Wn.2d 451, 462, 869 P.2d 56 (1994); Janovich v. Herron, 91 Wn.2d 767, 592 P.2d 1096 (1979); State v. Daniel J. Evans Campaign Comm’n, 86 Wn.2d 503, 546 P.2d 75 (1976) (spirit, purpose of statute overcomes inept effort by Legislature to state such a purpose in the statute).

A similar analysis has been advanced in federal cases: “There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes.” Nevertheless, in rare cases, the literal application of a statute will produce a result demonstratively at odds with the intentions of its drafters, and those intentions must be controlling. We have reserved some “scope for adopting a restricted rather than a literal or usual meaning of its words where acceptance of that meaning . . . would thwart the obvious purpose of the statute.”

Griffin v. Oceanic Contractors, Inc., 485 U.S. 564, 571, 102 S. Ct. 3245, 73 L. Ed. 2d 973 (1982). (Emphasis added.) Quoting first, United States v. American Trucking Ass’ns, Inc., 310 U.S. 534, 543, 60 S. Ct. 1059, 84 L.Ed. 1345 (1940), quoting second, Comm’r v. Brown, 380 U.S. 563, 571, 85 S. Ct. 1162, 14 L. Ed. 2d 75 (1965). See also United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242, 109 S. Ct. 1026, 103 L. Ed. 2d 290 (1989) (“The plain meaning of legislation should be conclusive, except in the ‘rare cases (in which) the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.’ In such cases, the intention of the drafters, rather than the strict language, controls.”)


11

into a statute the Legislature did not enact, it is difficult to then reconcile case law

indicating the courts will supply language to avoid absurd results and to carry

out the Legislature’s spirit instead of the strict letter of the law. If Washington

courts have been troubled by these divergent models of statutory interpretation,

they have not articulated such concern in a written opinion.

The difficulty inherent in the seemingly simple exercise of ascertaining the

legislative body’s “intent” is striking. It is, of course, very difficult to discern

precisely what all 147 legislators and the Governor or 535 members of Congress

and the president had in mind, if anything, with regard to a piece of legislation.

Not all legislators are actively involved in the enactment of a bill; not all

legislators necessarily know the contents of a bill they voted on.28

By its nature, the legislative process expects legislators will develop

expertise in certain types of legislation. Legislators serve on committees

organized by subject matter and bills are directed to those committees for the

critical initial work, including public hearings.29 Particular legislators, by virtue

of their key leadership positions as committee chairs, will have a greater say in

28 In the 2000 legislative meeting a “short” session, for example, 866 bills

were introduced in the House of Representatives and 763 in the Senate, and in the regular and special sessions, 262 became law.

29 See Edward D. Seeberger, Sine Die: A Guide to the Washington State

Legislative Process (Seattle: Univ. of Wash. Press: 1989) (hereinafter “Seeberger”) at 45-54.


12

the creation of legislation, as well as its content.30 While the language of a

statute expresses the collective judgment of the Legislature, it is also true that this

collective judgment may be the actual product of a single legislator or small

group of legislators.

Many commentators contend it is possible to discern legislative intent from

a statute. They argue groups are capable of forming intent; in fact, collective

intent is common. Examples of where collective intent commonly occurs within

the military, an orchestra, a sports team, and a large corporation. Philosopher

Gilbert Ryle addressed this question decades ago. Ryle used the example of a

person who, on visiting Oxford University and being shown the various

“colleges, libraries, playing fields, museums, scientific departments and

administrative offices, . . . then asks ‘But where is the University.’”31 After

discussing two other examples, Ryle writes:

These illustrations of category-mistakes have a common feature, which must be noticed. The mistakes were made by people who do not know how to wield the concepts University, division, and team-spirit. Their puzzles arose from inability to use certain items in the English vocabulary. The theoretically interesting category-mistakes are those made by people who are perfectly competent to apply concepts, at least in the situations with which they are familiar, but are still liable in their

30 Seeberger at 41, 47-54. 31 Gilbert Ryle, The Concept of Mind, 16-17 (1949). See also, Michael

Sinclair, Guild to Statutory Interpretation, 91-93 (2000).


13

abstract thinking to allocate those concepts to logical types to which they do not belong.32

This same concept has been applied to legislative intent:

To refuse to ascribe a “purpose” to Congress in enacting statutory language simply because one cannot find three or four hundred legislators who have claimed it as a personal propose, is rather like (to use Professor Ryle’s old example) refusing to believe in the existence of Oxford University because one can only find colleges.33 Legislatures can and do form an intent, which may be objectively

discovered. To understand an individual’s true intent, it would be necessary to

inspect the inner workings of the person’s decision-making process, because

individual intent is both objective and subjective. Individual intent is formed by

internal values and impulses as well as external dynamics. By contrast, a

legislature’s intent is objective and external. “A legislature is an intrinsically

public body and wears its inner thoughts on its sleeve, so to speak.34 Analyzing

credible documentation of the legislature’s process regarding a statute may

enable a court to find legislative intent.

The fact that legislators have divergent degrees of input on legislation has

lead commentators to conclude it is impossible to discern a single intent from a

32 Ryle, supra at 16-17. 33 Stephen Breyer, On the Uses of Legislative History in Interpreting

Statutes, 65 S. Cal. L. Rev. 845, 866 (1992). 34 Michael Sinclair, Guide to Statutory Interpretation, 92 (2000).


14

collective body.35 In federal parlance, this analysis has been described as the

“Busy Congress” model.35a Legislators are busy people who lack personal

knowledge about most of the bills on which they vote. Just as a corporate board

member must rely on colleagues for information and advice about the issues that

he or she votes on, so a legislator must rely on trusted colleagues when casting a

vote. It is a common and acceptable practice to vote based on the advice of

others, rather than personal knowledge about the contents of bills. No large

institution could function if its decisionmakers could not rely on the advice of

others. Voting based on advice rather than personal knowledge is a common and

perfectly appropriate way of managing massive decision-making responsibilities.

That some legislators lack personal knowledge related to the contents of bills in

no way diminishes the potency of the statute’s legislative intent.

35 Kenneth Shepsle, Congress Is a “They,” Not an “It”: Legislative Intent as

Oxymoron, 12 Int’l Rev. L. & Econ., 239 (1992). 35a See, e.g., Bank One Chicago v. Midwest Bank & Trust Co., 516 U.S. 264,

276-77 (Stevens, J., concurring). (“Legislators, like other busy people, often depend on the judgment of trusted colleagues when discharging their official responsibilities. . . . [S]ince most Members are content to endorse the views of the responsible committees, the intent of those involved in the drafting process is properly regarded as the intent of the entire Congress.”)

From my own legislative experience, it is common practice for legislators

to rely on the expertise of their colleagues serving on committees that prepared legislation. This is a significant, but not conclusive, factor. Legislators will often amend or vote against bills emerging from committees on which they did not serve.


15

In response to the views that intent may be discerned from a collective

body or legislative intent is appropriately gleaned from the working of a busy

legislative institution, some commentators agree it is impossible to discover a

single intent from a group as diverse as a legislative body,35b but they also argue

that to rely on the institutional processes associated with a legislative body may

be demeaning to the democratic process. For example, Justice Antonin Scalia of

the United States Supreme Court criticizes the “Busy Congress Model” as

degrading the legislative process because it acknowledges staff and lobbyists

create laws with their accompanying legislative history; this diminishes the role

of the people elected to make those judgments. According to Scalia, “[t]he

legislative power . . . is nondelegable. Congress can no more authorize one

committee to ‘fill in the details’ of a particular law in a binding fashion than it

35b Justice Scalia articulates this view in this fashion: [T]o tell the truth, the quest for “genuine” legislative intent is probably a wild-goose chase anyway. In the vast majority of cases I expect that Congress neither (1) intended a single result, nor (2) meant to confer discretion upon the agency, but rather (3) didn’t think about the matter at all. If I am correct in that, then any rule adopted [by an administrative agency] represents merely a fictional, presumed intent. . . . Antonin Scalia, Judicial Deference to Administrative Interpretations of Law,

1989 Duke L. J. 511, 517 (1989). See also Frank Easterbrook, Statutes’ Domains, 50 U. Chi. L. Rev. 533, 547 (1983). “Each member may or may not have a design. The body as a whole, however, has only outcomes.”


16

can authorize a committee to enact minor laws.”36 Scalia and others would go

farther and dispense with the concept of legislative intent entirely, contending

the statutory text is the only real manifestation of the legislative intent. This

approach has been termed textualism and it has powerful historical

antecedents.37

36 Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law:

An Essay, at 35 (1997). See Blanchard v. Bergerson, 489 U.S. 87, 97-99, 109 S. Ct. 939, 103 L. Ed. 2d 67n (1989) (Scalia, J., concurring). (Scalia responds to the majority’s reliance on district court cases, which were inserted into the Congressional Report): [The majority’s use of the cited cases] “displays the level of unreality that our unrestrained use of legislative history has attained. . . . As anyone familiar with modern-day drafting of congressional committee reports is well aware, the references to the cases were inserted, at best by a committee staff member on his own initiative, and at worst by a committee staff member at the suggestion of a lawyer-lobbyist; and the purpose of those references was not primarily to inform the Members of Congress what the bill meant . . . but rather to influence judicial construction. What a heady feeling it must be for a young staffer, to know that his or her citation of obscure district court cases can transform them into the law of the land, thereafter dutifully to be observed by the Supreme Court itself.”

37 This concept of greater reliance on the legislative text has been off-

repeated. “[I]t seems axiomatic that the words of a statute – and not the legislators’ intent as such – must be the crucial elements both in the statute’s legal force and in its proper interpretation.” Laurence H. Tribe, Constitutional Choices 30 (1985). Justice Oliver Wendell Holmes was particularly sceptical about excessive reliance on the process of the legislative institution. “We do not inquire what the legislature meant; we ask only what the statute means.” Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 Harv. L. Rev. 417, 419 (1899). Putting the same thought in more colloquial terms: “if my fellow citizens want to go to Hell I will help them. It’s my job.” I-Holmes-Laski Letters 249 (M. Howe ed. 1953).

Philip Frickey, John Minor Wisdom Lecture: Wisdom on Weber, 74 Tul. L.

Rev. 1169, 1185 (2000). “[N]ew textualism maintains that ‘legislative intent’ is a dysfunctional fiction that should be jettisoned. A corollary is that the use of legislative history in statutory interpretation is a waste of time at best and, at


17

The importance of textualism rests in its simplicity. Such an approach

rests on the language of the legislation rather than arcane judicial rules of

construction or unreliable legislative history materials. The meaning is more

accessible and comprehensible to officials and citizens affected by the legislation.

The textual approach also tends to constrain judicial tendencies to engage in

policymaking by construction.38

The debate on legislative intent has raged in federal circles, but

Washington cases reveal little attention to the issue. While numerous

Washington cases speak of “legislative intent,” they are devoid of serious

discussion of the definition of the concept, the cases largely say intent what the

courts say it is. This is hardly a satisfying articulation of a key concept in

statutory interpretation. Washington courts have apparently not been troubled

in the least about a definition of legislative intent while the debate about the

concept rages elsewhere.

However, an operating definition of legislative intent is possible. For the

judiciary to speak in terms of legislative intent as a monolithic concept may be

erroneous, but not fatal to the effort to discern the “intent” of the legislature. The

intent of the Legislature is the aim or purpose of the enactment as objectively

worst, an activity so manipulable that it is much more like looking over a crowd and picking our your friends than it is an objective historical recreation of what legislators collectively were contemplating.”

38 See Eric S. Lasky, Perplexing Problems with Plain Meaning, 27 Hofstra L.

Rev. 891, 895 (1999).


18

indicated in the language of the statute; the intent may be revealed in the process

of a bill’s enactment by the Legislature. The subjective statements of individual

legislators may certainly contribute to the understanding of the Legislature’s

objective intent as expressed in the statute’s language. But the touchstone for the

judiciary’s interpretive role must still be, first and foremost, the language of the

statute.39

39 In effect, the courts must presume the language of the statute controls.

This concept has its analog in a judicial doctrine that eschews an examination by the courts into the procedures of the Legislature in passing a bill. Under the enrolled bill doctrine, for example, the Washington Supreme Court has expressed great reluctance on constitutional separation of powers grounds to go behind the face of a statute’s enactment to examine the process by which the Legislature enacted the measure: Citizens Council Against Crime v. Bjork, 84 Wn.2d 891, 897-98, n.1, 529 P.2d 1072 (1975). See also State ex rel. Reed v. Jones, 6 Wash. 452, 34 Pac. 201 (1893) (enrolled bill presented to Secretary of State is conclusive as to regularity of all proceedings constitutional enactment if bill is fair on its face); State ex rel. Dunbar v. State Bd. of Equalization, 140 Wash. 433, 249 Pac. 996 (1926) (proper repassage of bill after veto); Morrow v. Henneford, 182 Wash. 625, 47 P.2d 1016 (1935) (legislation passed after 60 days of regular legislative session); State ex rel. Bugge v. Martin, 38 Wn.2d 834, 232 P.2d 833 (1951) (scope and object of amendment); Roehl v. PUD No. 1, 43 Wn.2d 214, 261 P.2d 92 (1953) (same); State ex rel. Washington Toll Bridge Authority v. Yelle, 61 Wn.2d 28, 377 P.2d 466 (1962) (inquiry of senators as to whether they were deceived by bill).

Similarly, Washington courts intrude only with reluctance upon the legislative decision to declare a statute’s enactment constitutes an emergency and must take effect immediately without the possibility of a referendum. See CLEAN v. State, 130 Wn.2d 782, 807-813, 928 P.2d 1054 (1996); State ex rel. Humiston v. Meyers, 61 Wn.2d 772, 776, 380 P.2d 735 (1963).

The enrolled bill doctrine is a recognition that the Legislature may control

its own procedures for the enactment of legislation. It should be no different for statutory interpretation.


19

This concept of legislative intent, derived from the language of the statute,

may be flexible. If the Legislature is seeking to remedy a very specific problem,

its intention may be easy to discover. By contrast, if the problem is of greater

magnitude, the Legislature may envision a variety of potential ways of achieving

the larger legislative goal and may afford the judiciary or the administrative

agencies larger discretion to achieve the necessary goal.40

In any event, it is still appropriate to speak of the judiciary’s obligation,

based on separation of powers analysis, to effectuate the Legislature’s intent in

interpreting an enactment as the touchstone of statutory construction.41

(b) Ambiguous/Unambiguous Enactments

(i) Plain Meaning Rule

40 See William Eskridge, Jr., The Circumstances of Politics and the

Application of Statutes, 100 Colum. L. Rev. 558, 564-65 (2000). See also Michael Sinclair, Guild to Statutory Interpretation, chapter 8 (2000) (Sinclair describes these varying levels of judiciary discretion as “tight” or “loose coupling.” If the language and history of a statute indicates a “tight coupling,” it is a signal to the judiciary to exercise virtually no discretion in its application of the statute. For example, a law setting the speed limit in school zones at twenty miles per hour would leave virtually no discretion in the statute’s application. By contrast a statute which calls for a speed limit which is “reasonable and prudent for the conditions” would signal to the judiciary that it more freely use its own discretion in the statute’s application.)

41 This is important if the courts are truly to give meaning to the oft-

expressed principle that courts do not consider the wisdom of an enactment in their interpretation of it. See, e.g., Young v. Estate of Snell, 134 Wn.2d 267, 279-80, 948 P.2d 1291 (1997) (courts may not question the wisdom and necessity of a statute).


20

Washington courts have long indicated they will not construe a plain and

unambiguous statute, that is, they will not resort to canons of construction or

legislative history to analyze the meaning of a statute. This is often described as

the plain meaning rule.42

The concept of judicial reluctance to construe unambiguous legislative

enactments runs deep in the Anglo-American legal tradition. Some

commentators contend the plain meaning rule may be traced to nineteenth

century England.43

Early English cases indicated the courts would attempt to understand the

“mischief” Parliament was seeking to suppress and then would construe the

statute in the fashion most advantageous to the suppression of the mischief.44

42 A “court will interpret words in the statute according to their usual or

plain meaning as understood by the general public.” Black’s Law Dictionary 796 (abr. 6th ed. 1991). The rule may trace back to biblical times: “the concept calling for strict construction of statutes has roots in the Old Testament: “You shall not add to the word which I command you, nor take from it.” In re Kolinsky, 100 B.R. 695, 704 (Bankr. SDNY 1989). Even the framers of American government longed for a version of a plain meaning rule: “Laws are made for men of ordinary understanding and should, therefore, be construed by the ordinary rules of common sense. Their meaning is not to be sought for in metaphysical subtleties which may make anything mean everything or nothing at pleasure.” Thomas Jefferson to William Johnson, 1823. ME 15:450.

43 See generally Lasky, 27 Hofstra L. Rev. at 894-896; Note, Plain Meaning:

Justice Scalia’s Jurisprudence of Strict Statutory Construction, 17 Harvard J. L. & Pub. Policy 401, 433 n.124 (1994).

44 Heydon’s Case, 76 Eng. Rep. 637, 638 (Ex. Ch. 1584). See, Thorne,

Equity of a Statute and Heydon’s Case, 31 Ill. L. Rev. 202 (1936).


21

Later English cases employed both a literal rule45 and a so-called golden rule46 in

interpreting statutes.

In the United States, the plain meaning rule was effectively adopted by the

United States Supreme Court as early as 1889,47 but was not adopted by name

until 1929.48

The plain meaning rule has been applied by Washington courts since

territorial days, but the courts did not articulate the origin of the rule.49 In Board

of Trade v. Hayden, Justice Dunbar, who was present at the constitutional

45 “[I]f the words of an Act are clear, you must follow them, even though

they lead to a manifest absurdity.” Queen v. Judge of the City of London Court, 1 Q.B. 273, 290 (1892).

46 “we must . . . give to the words used by the legislature their plain and

natural meaning, unless it is manifest from the general scope and intention of the statute that injustice and absurdity would result.” Mattison v. Hart, 139 Eng. Rep. 147, 159 (1854).

47 Lake County v. Rollins, 130 U.S. 662, 670 (1889) (If the words of the

statute convey a definite meaning which involves no absurdity, nor any contradiction of other parts of the statute, then the statute’s facial meaning must be accepted).

48 United States v. Missouri Pacific Railroad Co., 278 U.S. 269, 278 (1929)

(“Where the language of an enactment is clear and construction according to its terms does not lead to absurd or impracticable consequences, the words employed are to be taken as the final expression of the meaning intended.”) See also Caminetti v. United States, 242 U.S. 470, 485 (1917) (where the statutory language is plain, and only one meaning is discernible, no interpretation is required and construction canons need not be employed).

49 See, e.g., Wheeler v. Port Blakely Mill Co., 2 Wash. Terr. 71, 74, 3 P. 635

(1881); Board of Trade v. Hayden, 4 Wash. 263, 280, 30 P. 87 (1892); Howlett v. Cheatum, 17 Wash. 626, 50 P. 522 (1897); State v. Rathbun, 22 Wash. 651, 653, 62 P. 85 (1900).


22

convention, implied the plain meaning rule was an essential public policy.50 He

contended the courts must give statutes their full effect, even if the result is

unjust, arbitrary, or inconvenient.51

In recent years, Washington courts routinely apply the plain meaning rule

to avoid interpretation of clear and unambiguous statutes.52

(ii) Elements of Ambiguity

The flaw in the plain meaning rule is that the Washington decisional law

offers little guidance as to what a “plain” meaning is. A careful reading of

Washington Supreme Court authority indicating a statute is plain or

unambiguous reveals precious little guidance as to how the Court arrived at such

a belief. Even in the face of dissenting views as to the plain and unambiguous

meaning of the statute, the Court has held to its paradigm.53 In truth, in the

absence of any clear articulation of what distinguishes a plain and unambiguous

enactment from a murky, ambiguous statute,54 it is clear the Court has imposed a

50 Hayden, 4 Wash. at 281. 51 Id. 52 See, e.g., Davis v. Dep’t of Licensing, 137 Wn.2d 957, 964, 977 P.2d

554 (1999); State v. Enstone, 137 Wn.2d 675, 680, 974 P.2d 828 (1999); State v. Chapman, 140 Wn.2d 436, 998 P.2d 282 (2000); Hendrickson v. State, 140 Wn.2d 686, 2 P.3d 473 (2000).

53 See, e.g., Davis, 137 Wn.2d at 977-79 (Alexander, J., dissenting). 54 The United States Supreme Court in United States v. Turkette, 452 U.S.

576, 580 (1981) conceded the absence of any guiding standard on this issue:


23

value judgment in choosing a particular interpretation of a statute. Indeed,

perhaps the legislative history or interpretative canons would reveal the statute is

neither plain nor ambiguous.55 Perhaps it is best to acknowledge this rule for

what it is: a device by which the judiciary can impose its normative choice on

the Legislature’s act. Favored statutes contain plain and unambiguous language

and contrary legislative history materials can be ignored; unfavored ambiguous

statutes require in-depth judicial construction of the Legislature’s true intent.56

II. TOOLS FOR STATUTORY CONSTRUCTION

“there is no errorless test for identifying or recognizing plain or unambiguous language.”

55 Lasky supra at 910. 56 An example of how the judiciary imposes its normative values on

legislative decisionmaking is found in the Washington Supreme Court interpretation of the 1981 Product Liability and Tort Reform Act. Although the Legislature expressly stated the standard for failure to warn and defective design products cases was “negligence,” RCW 7.72.030(1), the Washington Supreme Court ignored the statutory language, determining the standard was strict liability. See Falk v. Keene Corp., 113 Wn.2d 645, 782 P.2d 974 (1989); Soproni v. Polygon Apartment Partners, 137 Wn.2d 319, 333-34, 971 P.2d 500 (1999) (Talmadge, J., dissenting). How the Court could reinterpret “negligence” in RCW 7.70.010(1) to be “strict liability” was a trick of interpretive legerdemain.

Similarly, the Legislature’s mandate in the Growth Management Act, RCW

chapter 36.70A that interim urban growth boundaries be established by counties to prevent urban-level growth outside the core urban areas of Washington was not respected by the Washington Supreme Court in Ass’n of Rural Residents v. Kitsap County, 141 Wn.2d 185, 4 P.3d 115 (2000) and Wenatchee Sportsmen’s Ass’n v. Chelan County, 141 Wn.2d 169, ___ P.2d ____ (2000). A boundary was not a boundary, in the Court’s view.

Plainly, the Washington Supreme Court imposed its policy judgment in

these cases on the “plain” legislative language.


24

Once a Washington court determines a statute is ambiguous, it may resort

to canons of statutory construction, principles developed in the common law, to

give meaning to the legislative action. In fact the courts assume the Legislature is

aware of its rules of construction.57 The court may also resort to legislative

history materials, materials generated inside and outside of the legislative process

with respect to legislation, to attempt to discern what the Legislature meant in

enacting a law. Both the canons and legislative history materials have been used

in Washington cases. Each is examined in turn.

(a) Canons of Statutory Construction

The Washington judiciary, like other courts, makes reference to canons of

judicial construction as if there were a tidy little volume in a judicial bookshelf

some place that neatly sets forth all the applicable canons with their precise

meaning. Unfortunately, no such exhaustive authoritative compilation of

57 See, e.g., State v. Blilie, 132 Wn.2d 484, 492, 939 P.2d 691 (1997)

(citing State ex rel. Gebhardt v. Superior Court, 15 Wn.2d 673, 690, 131 P.2d 943 (1942)). But Judge Richard Posner expressed his difficulty with assuming a legislative body enacts law in light of judicial methodologies of interpretation: “There is no evidence that members of Congress, or their assistants who do the actual drafting, know the code [of statutory interpretation] or that if they know, they pay attention to it. Nor, in truth, is there any evidence that they do not; it is remarkable how little research has been done on the question that one might have thought lawyers would regard as fundamental to their enterprise. Probably, though, legislators do not pay attention to it, if only because, as Llewellyn showed, the code is internally inconsistent. We should demand evidence that statutory draftsmen follow the code before we erect a method of interpreting statute on the improbable assumption that they do.” Richard Posner, Statutory Interpretation—In the Classroom and In the Courtroom, 50 U. Chi. L. Rev. 800, 806 (1983).


25

interpretive rules exists. Washington courts are free to invent or subtract canons

at their whim. The best that can be said about Washington law in this area is

that certain canons have been used repeatedly by Washington courts. I attempt

to highlight only a few of these many rules here.

Courts generally seem to have a love-hate relationship with the statutory

interpretive canons.58 Canons are intended to function as a basis for decision-

making, theoretically elevating decisions above mere result-oriented analysis

because the rulings appear grounded in an historically-tested maxim. Most

members of the legal community appreciate the notorious and fundamental

defects intrinsic to the canons.59 Despite these deeply rooted defects, courts seem

unable to resist relying on them. Washington courts are no exception, and the

canons are frequently evoked in Washington cases. But while frequently

invoked, the precise place of the canons in statutory interpretation is unclear.

For example, the cases are not consistent on whether the canons may be invoked

58 Canons—or “maxims”—of construction were originally conceived of as

wise saws, rules of interpretation that capture some of the wisdom of ages. See Michael Sinclair, Guild to Statutory Interpretation, 140 (2000).

59 The most well-know articulation of the canons’ defects came from Karl

Llewellyn. See Karl Llewellyn, Remarks On the Theory of Appellate Decision and the Rules or Canons About How Statutes Are To Be Constructed, 3 Vanderbilt L. Rev. 395 (1950).


26

at any point in the statutory analysis or only if the statue is ambiguous and

requires construction.60

Washington’s canons of statutory construction may be divided into two

broad categories: textual and extrinsic source canons.

(i) Textual Canons

Textual canons are used to divine the meaning of a statute within the

statute itself, looking to the words of the statutory text as well as linguistics,

grammar, syntax, and the structure of the text for their strength.

Washington courts have used a variety of linguistic canons including

Espressio unius, which says that the expression of one thing suggests the

exclusion of others;61 Noscitur a sociis, which says “the meaning of words may be

indicated or controlled by those with which they are associated;”62 Ejusdem

60 Even in his adherence to textualism, Justice Scalia makes room for the

canons of construction: I thought we adopted a regular method for interpreting the meaning of language in a statute: first, find the ordinary meaning of the language in its textual context; and second, using establishes canons of construction, ask whether there is any clear indication that some permissible meaning other than the ordinary one applies.

Chisom v. Roemer, 501 U.S. 380, 404 (1991) (Scalia, J., dissenting). 61 See Wash. State Republican Party v. Wash. State Pub. Disclosure

Comm’n, 141 Wn.2d 245, 280, 4 P.3d 808 (2000); Nat’l Elec. Contractors Ass’n, 138 Wn.2d at 17-18, citing Weyerhauser Co. v. Tri, 117 Wn.2d 128, 133-134, 814 P.2d 629 (1991).


27

generis, which provides a specific statute will generally supercede a more general

one or a general term must be interpreted to reflect the class of objects reflected

in more specific terms accompanying it;63 the ordinary usage rule which

indicates “an undefined term should be given its plain and ordinary meaning

unless a contrary legislative intent is indicated;”64 the dictionary definition rule,

which says a court should follow a recognized dictionary’s definition of terms

unless the Legislature has provided a specific definition;65 and the “shall” rule,

62 State v. Jackson, 137 Wn.2d 712, 729, 976 P.2d 1229 (1999); City of

Mercer Island v. Kaltenbach, 60 Wn.2d 105, 109, 371 P.2d 1009 (1962); Ball v. Stokely Foods, Inc., 37 Wn.2d 79, 87-88, 221 P.2d 832 (1950).

63 Simpson Inv. Co. v. State, 141 Wn.2d 139, 156-7, 3 P.2d 741 (2000)

(“In other words, the precise terms modify, influence or restrict the interpretation or application of the general terms where both are used in sequence or collocation in legislative enactments.”). See also Nat’l Elec. Contractors Ass’n, 138 Wn.2d at 24, citing Waste Management of Seattle, Inc. v. Utilities & Transp. Comm’n, 123 Wn.2d 621, 630, 869 P.2d 1034 (1994); Davis, 137 Wn.2d at 970. This canon, however, is only supposed to be employed when “the statute contains an enumeration by specific words which [sic] suggests a class is not exhausted by the enumeration.” City of Seattle v. State, 136 Wn.2d 693, 699, 965 P.2d 619 (1998); Dean v. McFarland, 81 Wn.2d 215, 221, 500 P.2d 1244 (1972).

64 Ravenscroft v. Washington Water Power Co., 136 Wn.2d 911, 920,

969 P.2d 75 (1998). 65 Western Telepage, Inc. v. City of Tacoma, 140 Wn.2d 599, 609-10, 998

P.2d 884 (2000); citing C.J.C. v. Corporation of Catholic Bishop, 138 Wn.2d 699, 709, 985 P.2d 262 (1999); Ravenscroft v. Washington Water Power Co., 136 Wn.2d 911, 920, 969 P.2d 75 (1998). In Ravenscroft, where a statute made private landowners liable for “artificial latent conditions,” the Court looked to the dictionary to define “artificial” and the common law to define “latent,” without acknowledging the statute had any ambiguity. The Court employed these methods while denying an ambiguity and determining the statute had a “plain meaning.” Ravenscroft, 136 Wn.2d 911, 922 and 924-5. It is also


28

which indicates a statute’s use of the term “may” is permissive, and does not

create a duty,66 but the use of the term “shall” usually creates an imperative

obligation,67 unless “shall” is unconstitutional68 or contrary to legislative intent.69

The Washington Supreme Court has also applied the grammar and syntax

canons on several occasions, even to the point of examining the Legislature’s use

of commas and hyphens.70

interesting to note that in one case seven different dictionaries were used to arrive at the plain meaning of words. See Kitsap Co. v. Allstate Ins. Co., 136 Wn.2d 567, 964 P.2d 1173 (1998).

66 Nat’l Elec. Contractors Ass’n, 138 Wn.2d at 28, citing Yakima County

(W. Valley) Fire Protection Dist. No. 12 v. City of Yakima, 122 Wn.2d 371, 381, 858 P.2d 245 (1993).

67 See, e.g., State v. Martin, 137 Wn.2d 149, 154-55, 975 P.2d 1050

(1999); State v. Mollichi, 132 Wn.2d 80, 86, 936 P.2d 408 (1997); State v. Krall, 125 Wn.2d 146, 148, 881 P.2d 1040 (1994); Erector Co. v. Dep’t of Labor & Indus., 121 Wn.2d 513, 518, 852 P.2d 288 (1993).

68 In re Elliott, 74 Wn.2d 600, 607-610, 446 P.2d 347 (1968). 69 Northwest Natural Gas Co. v. Clark County, 98 Wn.2d 739, 743, 658

P.2d 669 (1983); Niichel v. Lancaster, 97 Wn.2d 620, 625, 647 P.2d 1021 (1982).

70 See In re Personal Restraint of Smith, 139 Wn.2d 199, 204, 986 P.2d 131 (1999) (discusses the “last antecedent” rule of statutory construction). See also In re Sehome Park Care Ctr., Inc., 127 Wn.2d 774, 781, 903 P.2d 443 (1995) (“the presence of a comma before the qualifying phrase is evidence the qualifier is intended to apply to all antecedents instead of only the immediately preceding one”). Compare with Simplot v. Knight, 139 Wn.2d 534 Wn.2d 534, 543-545, 988 P.2d 955 (1999) (the use of a hyphen between the payees’ names rendered draft patently ambiguous as to the payor’s intent).


29

Finally, the Washington Supreme Court routinely relies upon certain

canons pertaining to the structure of the statutory text when it is doing its textual

analysis. These structural maxims provide that each statutory provision should

be read by reference to the whole act;71 a court must avoid interpreting a

provision in a way that would render other provisions of the act superfluous or

unnecessary;72 the court should interpret the same or similar terms in a statute

the same way;73 courts should read provisos and statutory exceptions narrowly;74

court must not create exceptions in addition to those specified by the

Legislature;75 the courts may treat silence, as acquiescence by the Legislature in

judicial interpretations of a statute.

71 Wash. State Republican Party v. Wash. State Pub. Disclosure Comm’n,

141 Wn.2d 245, 280-1, 4 P.2d 808 (2000); Davis, 137 Wn.2d at 970-71; City of Seattle v. State, 136 Wn.2d 693, 698, 965 P.2d 619 (1998); State v. Talley, 122 Wn.2d 192, 213, 858 P.2d 217 (1993).

72 City of Bellevue v. East Bellevue Community Council, 138 Wn.2d 937,

946-7, 983 P.2d 602 (1999); Davis, 137 Wn.2d at 969; City of Seattle v. Dep’t of Labor & Indus., 136 Wn.2d 693, 701, 465 P.2d 619 (1998).

73 Wash. State Legislature v. Lowry, 131 Wn.2d 309, 327, 931 P.2d 135

(1997); Pfeifer v. City of Bellingham, 112 Wn.2d 562, 569-570, 772 P.2d 1018 (1989); Garvey v. St. Elizabeth Hosp., 103 Wn.2d 756, 759, 697 P.2d 248 (1985); State v. Turpin, 94 Wn.2d 820, 825, 620 P.2d 990 (1980); State v. Wright; 84 Wn.2d 645, 652, 529 P.2d 453 (1974).

74 See, e.g., Welch v. Southland Corp., 134 Wn.2d 629, 636, 952 P.2d 162

(1998). 75 Wash. State Republican Party, 141 at 280-81.


30

The textual canons are assumptions about legislative meaning derived from

the use of language, grammar, and sentence structure of the statute itself. They

are generally useful maxims that hue most closely to the statutory text. It is only

when these textual canons rely upon extrinsic sources such as dictionary

definitions that their reliability starts to be questionable.

(ii) Extrinsic Source Canons

In contrast to the textual canons, the extrinsic source canons look to

evidence outside the words of the statute to determine the meaning of a statute,

rendering these canons somewhat less reliable than the textually-based canons

previously discussed. These canons look to information derived from the

executive branch agencies, the Attorney General, other statutes, the common law,

and the constitution to interpret a statute.

Washington courts have frequently relied on administrative agency rules

implementing statutory policy and opinions of the Attorney General in

construing statutes. Administrative agency rulemaking pursuant to the

Administrative Procedure Act,76 and quasi-judicial administrative decisions77 are

common sources of interpretation of statutes. Separate quasi-judicial

76 RCW 34.05.310, et seq. 77 RCW 34.05.410, et seq. A separate Office of Administrative Hearings

addresses such administrative appeals. RCW chap. 34.12.


31

administrative bodies also exist.78 Courts often defer to the agency interpretation

of a statute unless that interpretation is contrary to the plain meaning of a statute

or is unreasonable in the eyes of the court.79

The Washington Attorney General has the authority to give formal

opinions upon the law, on the request of elected officials.80 Just as the courts

have deferred to agency interpretation of a statute, Washington courts have given

some deference to formal Attorney General opinions on the interpretation of a

statute.81

78 See Board of Industrial Insurance Appeals, RCW chap. 51.52; Pollution

Control Hearings Board, RCW 43.218.010, et seq.; Growth Management Hearings Boards, RCW 36.70A.260 et seq.; and Public Employment Relations Commission, RCW chap. 41.56; just to name a few.

79 See e.g. Waggoner v. Ace Hardware Co., 134 Wn.2d 784, 754-55, 953

P.2d 88 (1998); Dep’t of Fisheries v. Chelan Co. PUD No. 1., 91 Wn.2d 378, 383, 588 P.2d 1146 (1976);State v. Roth, 78 Wn.2d 711, 715, 479 P.2d 55 (1971). Washington courts have rarely give administrative rulings a presumption of correctness, unlike federal courts, unless its issued from a an specialized agency or such a presumption is legislated. See U.S. West Communications Inc. v. Washington Utils. and Transp. Comm’n, 134 Wn.2d 74, 118, 949 P.2d 1337 (1997); ARCO Products Co. v. Washington Utils. and Transp. Comm’n, 125 Wn.2d 805, 811-12, 888 P.2d 728 (1995). See also Sullivan, Brown & Williamson v. FDA: Finding Congressional Intent Through Creative Statutory Interpretation—A Departure from Chevron, 94 N.W. U. L. Rev. 273, 285-291 (___).

80 RCW 43.10.030(7); RCW 43.10.110. 81 See, e.g., Seattle Building & Construction Trades Council v.

Apprenticeship & Training Council, 129 Wn.2d 787, 803, 920 P.2d 581 (1996) (Attorney General opinions are entitled to great weight). See also Wash. Educ. Ass’n v. Smith, 96 Wn.2d 601, 606, 627 P.2d 77 (1981). But see Wash. Fed’n of State Employees v. Office of Fin. Mgmt., 121 Wn.2d 152, 164, 849 P.2d 1201 (1993) (an AGO is entitled to less weight when it is interpreting a statute).


32

A second group of extrinsic canons focuses on the relationship of an

enactment to the larger body of Washington statutory law and interps the

enactment in a fashion designed to render that statutory law a consistent whole.

These canons include: the borrowed statute rule that indicates where the

Legislature borrows a statute, it adopts by implication the interpretations placed

on the statute by the courts;83 and the reenactment rule which says that when the

Legislature reenacts a statute it incorporates settled interpretations of the

reenacted statute;84 in pari materia, which says similar statutes should be

Notably, the Washington Supreme Court has “held that an AGO ‘constitutes notice to the Legislature fo the Department’s interpretation of the law,’ finding acquiescence where the Legislature had not subsequently acted to ‘overturn the Department’s interpretation.”’ City of Seattle v. State, 136 Wn.2d 693, 703-04, 965 P.2d 619 (1998), citing Bowles v. Dep’t of Ret. Sys., 121 Wn.2d 52, 63-64, 847 P.2d 440 (1993).

83 See Town of Republic v. Brown, 97 Wn.2d 915, 917-18, 625 P.2d 955

(1982); Jenkins v. Bellingham Mun. Court, 95 Wn.2d 574, 627 P.2d 1316 (1981); Pacific First Fed. Sav. & Loan Ass’n v. Pierce County, 27 Wn.2d 347, 355, 178 P.2d 351 (1967). Compare with In re Taylor, 105 Wn.2d 67, 69-70, 711 P.2d 345 (1985) (“Absent a clearer indication of legislative intent, we cannot accept the petitioner’s theory of incorporation.”).

84 See Longview Fibre Co. v. Cowlitz Co., 114 Wn.2d 691, 698, 790 P.2d

149 (1990) (a mere Attorney General Opinion prior to reenactment was “settled” enough for the Court); Washington Educ. Ass’n v. Smith, 96 Wn.2d 601, 606, 638 P.2d 77 (1981); Ellis v. Dep’t of Labor & Indus., 88 Wn.2d 844, 567 P.2d 224 (1977); McKinney v. Estate of MacDonald, 71 Wn.2d 262, 427 P.2d 974 (1967); Yakima Valley Bank & Trust Co. v. Yakima City, 149 Wash. 552, 271 Pac. 820 (1928).


33

interpreted similarly;85 the presumption against repeals by implication;86. the

rule requiring interpretation of provisions consistently with subsequent statutory

amendments;87 the rule of continuity assumes that the Legislature did not create

discontinuities in legal rights and obligations without some clear statement;88 and

courts presume when the Legislature acts, it intends to change existing law.89

85 State v. Tili, 139 Wn.2d 107, 985 P.2d 365 (1999). See also Enter.

Leasing v. City of Tacoma, 139 Wn. 2d 546, 554-6, P.2d (1999); Harmon v. DSHS, 134 Wn.2d 523, 542, 951 P.2d 770 (1998).

86 Gilbert v. Sacred Heart Hospital, 127 Wn.2d 370, 375, 900 P.2d 552

(1995); Jenkins v. State, 85 Wn.2d 883, 540 P.2d 1363 (1975) (implied repeals are disfavored); Herrett Trucking Co. v. State Pub. Serv. Comm’n, 58 Wn.2d 542, 364 P.2d 505 (1961). But see Watson v. Absher, Const. Co., Inc., 101 Wn.2d 234, 672 P.2d 1002 (1984) (“However, an implied repeal will be found where: (1) the later act covers the entire subject matter of the earlier legislation, is complete in itself, and is evidently intended to supersede prior legislation on the subject; or (2) the two acts are so clearly inconsistent with, and repugnant to, each other that they cannot be reconciled and both given effect by a fair and reasonable construction.”).

87 See State v. Blilie, 132 Wn.2d 484, 939 P.2d 691 (1997); Town of Republic v. Brown, 97 Wn.2d 915, 917-18, 625 P.2d 955 (1982); State v. Horton, 59 Wn. App. 412, 416, 798 P.2d 813 (1990).

88 See, e.g., State Dep’t of Ecology v. Theodoratus, 135 Wn.2d 582, 589,

957 P.2d 1241 (1998). See also City of Pasco v. Pub. Employment Relations Comm’n, 119 Wn.2d 504 Wn.2d 504, 507, 833 P.2d 381 (1992). See also Pasco Police Officers’ Ass’n v. City of Pasco, 132 Wn.2d 450, 458, 938 P.2d 827 (1997). See also Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 828 P.2d 549 (1992).

89 Spokane County Health District, 120 Wn.2d at 154; Johnson v. Morris,

87 Wn.2d 922, 926, 557 P.2d 1299 (1976); Fisher Flouring Mills Co. v. State, 35 Wn.2d 482, 490, 213 P.2d 938 (1950). “It will not be presumed that the legislature would enact a statute for no other purpose than to declare what is already indisputably and confessedly the law.” United States v. Douglas-Willan Sartoris Co., 3 Wyo. 287, 22 P. 92, 94 (____). But a legislative body may clarify


34

A third group of extrinsic source canons addresses the relationship of a statute to

the common law, and include a presumption in favor of following common law

usage where the Legislature has employed words or concepts with well-settled

common law traditions;90 and a presumption in favor of prospective application

of a statute and its corollary canon, which rejects retroactive application of

statutes.91

A final group of extrinsic canons address the relationship of statutory

enactments to overarching constitutional principles. Courts generally interpret a

statute so as to avoid constitutional problems.93 Courts also interpret statutes to

an earlier enactment where an ambiguity arose about the statute. State v. Riles, 135 Wn.2d 326, 343, 957 P.2d 655 (1998).

90 "Presumption in favor of following common law usage where Legislature has employed words or concepts with well-settled. . ." as they looked to common law settled definition of "latent." Ravenscroft v. Water Power Co., 136 Wn.2d 911, 924, 969 P.2d 75 (1998). See also In re Recall of Pearsall-Stipek, 141 Wn.2d 756, 10 P.2d 1034 (2000); In re Tyler’s Estate, 140 Wash. 679, 689, 250 P. 456 (1926).

91 State v. T.K., 139 Wn.2d 320, 329, 520 P.2d 162 (1974). In re

Shepard, 127 Wn.2d 185, 898 P.2d 828 (1995); Yellam v. Woerner, 77 Wn.2d 604, 464 P.2d 947 (1970). See also State v. Belgrade, 119 Wn.2d 711, 722, 837 P.2d 599 (1992) (“A statute operates prospectively when the precipitating event for [its] application…occurs after the effective date of the statute, even though the precipitating even had its origin in a situation existing prior to the enactment of the statute.”) (quoting, Aetna Life Ins. Co. v. Washington Life & Disability Ins. Guar. Ass’n, 83 Wn.2d 523, 535, 520 P.2d 162 (1974)).

93 Washington State Republic Party, 141 Wn.2d at 280; Duskin v. Carlson, 136 Wn.2d 550, 557, 965 P.2d 611 (1998); City of Seattle v. Montana, 129 Wn.2d 583, 590, 919 P.2d 1218 (1996).


35

favor judicial review, especially for constitutional questions.94. In the criminal

context, principles of lenity95 may have their roots in constitutional concerns.96

(iii) A Detailed Example of a Canon in Operation

To place as well these canons of statutory interpretation in appropriate

perspective, it is useful to view a canon in application in an actual case. The

doctrine of in pari materia is a useful example of such a canon in operation.

In pari materia is an old canon, which has been used in Washington for at

least eighty-seven years.97 In fact, it is held in such high regard, the Washington

Supreme Court has called it “a cardinal rule,”98 and describing it as follows:98a

94 This presumption in favor of judicial review is furthered by the rule that

constitutional questions are reviewed de novo. See Washam v. Sonntag, 74 Wn. App. 504, 507, 874 P.2d 188 (1994).

95 Washington Courts accept the rule of lenity. See, e.g., State v. Tili, 139

Wn.2d 107, 985 P.2d 365 (1999); In re Personal Restraint of Hopkins, 137 Wn.2d 897, 901, 976 P.2d 616 (1999). It comes into play only when there are two reasonable interpretations of a criminal statute. In re Post-Sentencing Review of Charles, 135 Wn.2d 239, 250, 955 P.2d 798 (1998).

96 For example, statutes involving a deprivation of liberty are strictly

construed, In re Cross, 99 Wn.2d 373, 379, 662 P.2d 828 (1983); In re Carson, 84 Wn.2d 969, 973, 530 P.2d 331 (1975).

97 See State v. Savidge, 75 Wash. 116, 120, 134 P. 680 (1913) (“Where

statutes are part of a general system relating to the same class of subjects, and rest upon the same reasons, they should be so construed, if possible, as to be uniform in their application and in the results which they accomplish.”). See also White v. City of North Yakima, 87 Wash. 191, 195, 151 P. 645 (1915) (“Laws that are in pari materia will be read together for the purpose of ascertaining the legislative intent.”).


36

In ascertaining legislative purpose, statutes, which stand in pari materia, are to be read together as constituting a unified whole, to the end that a harmonious total statutory scheme evolves which maintains the integrity of the respective states. Also, the entire statutes relating to a given subject matter should be considered, since legislative policy changes as economic and sociological conditions change.

The Court has relied on the canon in numerous instances including an nascence

statute where it said “[s]tatutes in pari materia should be harmonized as to give

force and effect to each and this rule applies with peculiar force to statutes

passed at the same session of the Legislature. . . .Although the two provision had

been acted on under separate bills, this court found that its obligation to

harmonize statutes in pari materia was even greater when the two statutes had

been enacted in the same legislative session.”98b

As with so many of the canons, in pari materia may be manipulated to

achieve a particular result.98c This case involved a sting operation where the two

defendants were arrested for manufacturing 40,000 “M-80s” and 200 tennis

balls filled with “flash powder” or tennis ball bombs. The sting operation was

undertaken after an 8-year-old blew his hand off and had sheetrock and ceiling

98 State v. Fairbanks, 25 Wn.2d 686, 690, 171 P.2d 845 (1946) (“It is a

cardinal rule that two statutes dealing with the same subject will, if possible, be so construed as to preserve the integrity of both.”).

98a State v. Wright, 84 Wn.2d 645, 650, 529 P.2d 453 (1974). 98b Id. at 591-92. 98c In re Personal Restraint of Yim, 139 Wn.2d 581, 989 P.2d 512 (1999).


37

pieces imbedded into his fingers and bones after he found a tennis ball bomb in

his brother’s closet and lit it in the family’s fireplace.98d

An issue on review was whether the device was regulated under the

explosives act or the fireworks act. The explosives act specifically does not

regulate fireworks,99 but the defendants were manufacturing might have been

exempt from the fireworks law.100 Thus, the defendants sought to avoid

punishment under either act.

The defendants initially pled guilty to violations of the explosives act, RCW

70.74, but later sought to withdraw their plea, arguing that what they had

actually manufactured were legal fireworks under RCW 70.77.100a The majority

found the explosives act and the fireworks act should be read in pari materia

because they both “govern the manufacture, purchase, sale possession,

transportation, et cetera, of potentially dangerous explosive devices, [and so]

stand in pari materia due to the fact that they relate to the same person or thing,

98d State v. Yokley, 91 Wn. App. 773, 774-75, 959 P.2d 694 (1998). 99 RCW 70.74.101(3) provides in pertinent part: “For the purposes of this

chapters small arms ammunition, small arms ammunition primers, smokeless powder not exceeding five pounds shall not be defined as explosives.” Further, RCW 70.74.101(27) states “the term ‘pyrotechnic’ shall be held to mean and include any combustible explosive composition or manufactured articles designed and prepared for the purpose of producing audible or visible effects which are commonly referred to as fireworks.”

100 Yim, 139 Wn.2d at 592-94. See generally RCW 70.77.126 and .236. 100a Yim, 139 Wn.2d 581.


38

or the same class of persons or things.”100b In holding so, the majority, in effect,

agreed with the lower court’s decision to ignore the plain meaning rule

reasoning it would be “absurd” for the explosives the defendants manufactured

to be unregulated by both the explosions act and the fireworks laws.100c

The dissent disagreed with the treating of the explosives act and the

fireworks law in pari materia, arguing statutes could not be read in pari materia

because one statute (the Explosives Act) predated the other (the Fireworks

Law).100d The dissent asserted the fireworks and explosives statutes could not be

within same statutory scheme because of the time difference in their enactment.

Since the men were charged under the explosives statute, the dissent found the

explosive act was unambiguous, and the search for legislative intent by

employing the canon of in pari materia was improper warning, “[t]o broaden the

use of in pari materia beyond these narrow boundaries-i.e., using it as a vessel to

navigate beyond distinct statutory enactments-is to usurp the sought-after

legislative intent by judicial construction out of whole cloth.”100e

There is no direct link between the explosives act and the fireworks law.

Consequently, different philosophies of statutory interpretation were used by the

100b Id. at 591-92. 100c See State v. Yokely, 91 Wn. App. 773, 779-80, 959 P.2d 694 (1998). 100d Yim, 139 Wn.2d 581, 559-60 (Sanders, J., dissenting). 100e Id. at 601.


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majority and dissent. To holding the two statutes must be read in pari materia is

based on the idea that not to hold so would be “absurd.” However, the result

may be dictated by the tragedy that befell this child.

By plucking out useful canons, such as in pari materia, plain meaning,

dictionary definition, and the rule of lenity, and utilizing their rhetorical skill,

different judges steered the same facts in different directions. This ability to

achieve different results by using different canons is both the genius and curse of

the canons.

To the uninitiated, or perhaps the cynical, Karl Llewellyn’s acute

observation that for each canon of statutory interpretation, there is an equal, and

opposite, canon of judicial interpretation bears repetition.101 Llewellyn was thus

prompted to observe that the canons held little meaning:102

When it comes to presenting a proposed construction in court, there is an accepted conventional vocabulary. As in argument over points of case-law, the accepted convention still, unhappily requires discussion as if only one single correct meaning could exist. Hence there are two opposing canons on almost every point. An arranged selection is appended. Every lawyer must be familiar with them all : they are still needed tools of argument. At least as early as Fortescue the general picture was clear, on this, to any eye which would see.

Plainly, to make any canon take hold in a particular instance, the construction contended for must be sold, essentially, by means other than the use of the canon : The good sense of the situation and

101 Karl Llewelyn, Remarks on the Theory of Appellate Decision and the

Rules or Canons about How Statutes are to be Construed, 3 Vanderbilt L. Rev. 395 (1950).

102 Id. at 401.


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a simple construction of the available language to achieve that sense, by tenable means, out of the statutory language.

Llewellyn’s observation is echoed by Justice Finley in Schneider v. Forcier.103

103 67 Wn.2d 161, 167-68, 406 P.2d 935 (1965) (Finley, J., dissenting):

The essence of the matter is the fact that the rules or maxims of statutory interpretation should be recognized and treated as nothing more than aids or tools which may or may not be pertinent or useful in determining the meaning of statutory language. There is nothing mandatory about the applicability of a rule of statutory interpretation, i.e., nothing compelling in an ultimate sense in determining the meaning of statutory language. See for instance In re Horse Heaven Irrigation Dist., supra, wherein this realistic approach to the rules of construction was adopted as the law of this state. Actually, today it should be clear without citation of authority and without prolonged explanation, that every statutory maxim or rule of interpretation has its countervailing or opposite maxim or rule. As Mr. Justice Frankfurter said: “Nor can canons of construction save us from the anguish of judgment. Such canons give an air of abstract intellectual compulsion to what is in fact a delicate judgment concluding a complicated process of balancing subtle and elusive elements. Insofar as canons of construction are generalizations of experience, they all have worth. In the abstract, they rarely arouse controversy. Difficulties emerge when canons compete in soliciting judgment, because they conflict rather than converge. For the demands of judgment underlying the art of interpretation, there is no vademecum.” Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 544 (1947). (Italics mine.)

Llewelyn’s comments on the interpretive canons have not always been accepted. Another commentator, William Eskridge, Jr., observed that Llewelyn’s comment on opposite canons meant, “The canons have no independent value in statutory interpretation and are just window dressing for results reached for other reasons. William Eskridge, Jr., “Norms, Empiricism, and Canons in Statutory Interpretation”, 66 U. Chi. L. Rev. 671, 679 (1999). But Eskridge believes it would be difficult to test if the canons constrain judges or make interpretation more predictable: “The democratic value potentially served by the canons needs to be tempered by the observation that our polity might not want statutory interpretation always to mimic the results reached or would have been reached


41

Llewelyn’s criticism may be apt.

If there are interpretive canons, often conflicting, for virtually every

eventuality, the canons offer little practical guidance to the courts in their

interpretive role. No one interpretive canon appears to have greater moment

than another. This leaves the judiciary extremely wide latitude to substitute its

normative values for those of the Legislature, the ostensible authors of the

legislation. As noted earlier, the canons are not analytically precise in number,

scope, or usage. The Washington Supreme Court should decide with greater

precision when the canons should be used in statutory construction, which

canons should be employed, the relative authoritative value of the canons in the

judiciary’s function of statutory analysis.

(b) Legislative History

The ultimate extrinsic canon of statutory interpretation is found in the

materials of the legislative process itself. Washington case law has recognized a

variety of possible sources to discover the intent of the Legislature in enacting a

statute when the language of the statute is ambiguous or the standard rules of

interpretation are not helpful.104 The courts have not been entirely consistent in

their treatment of these sources.

by the legislature. Id. at 681. Eskridge candidly espouses a role for the courts permitting them to disregard legislative intent.

104 See generally Arthur Wang, Legislative History in Washington, 7 U. Puget Sd. L. Rev. 571 (1984) (hereinafter “Wang”).


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Of greatest utility are legislative findings in a preamble section of a bill as

the findings represent an affirmative statement of legislative intent enacted by the

Legislature.105 Similarly, official section-by-section comments adopted by the

Legislature as part of the journal of one or both houses also retain a sense of

official imprimatur to a particular interpretation of an enactment.106 Plainly,

these contemporaneous, collective expressions of legislative purpose are more

significant than the individual, non-contemporaneous thoughts of legislators and

others. After all, when divining legislative intent, the courts are looking to the

collective decision of 147 legislators in a particular legislative session. The

thoughts of a legislator or lobbyist expressed long after that session may have

been affected by bias or the sheer passage of time.

Courts have also looked to official documents of the Legislature such as bill

reports, which are the product of the legislative staff, as authoritative sources of

legislative intent.107 Similarly, an official document used by the Legislature in its

105 Spokane County Health Dist. v. Brockett, 120, Wn.2d 140, 839 P.2d

324 (1992); Oliver v. Harborview Med. Ctr., 94 Wn.2d 559, 618 P.2d 76 (1980); Hartman v. Washington State Game Comm’n, 85 Wn.2d 176, 179, 532 P.2d 614 (1975); Whatcom County v. Langlie, 40 Wn.2d 855, 246 P.2d 836 (1952); State ex rel. Berry v. Superior Court, 92 Wash. 16, 159 Pac. 92 (1916).

106 Equipto Div. Aurora Equip. Co. v. Yarmouth, 134 Wn.2d 356, 950 P.2d

451 (1998). 107 Young v. Estate of Snell, 134 Wn.2d 267, 948 P.2d 1291 (1997); Noble

Manor v. Pierce County, 133 Wn.2d 269, 277-78, 943 P.2d 1378 (1997); State v. Reding, 119 Wn.2d 685, 690, 835 P.2d 1019 (1992); Biggs v. Vail, 119 Wn.2d 129, 134-36, 830 P.2d 350 (1992); Johnson v. Continental West, Inc., 99 Wn.2d 555, 663 P.2d 482 (1983).


43

deliberations such as a fiscal note, detailing the financial implications of a bill

may be used to determine legislative intent,108 but some caution here may be in

order as fiscal notes are ordinarily prepared by the executive or judicial branch

agency charged with administration of the proposed law109 and the note may

reflect agency bias with regard to the bill.110

Transactional materials, those materials generated in the course of the

enactment of the legislation, may also serve as a basis for understanding the

Legislature’s work. Various drafts of a proposed bill can be very revealing as to

the Legislature’s intent with regard to the final statutory language.111 Committee

work, including statements of legislators during committee sessions, testimony,

both oral and written, of witnesses before the relevant legislative committees,

108 Davis v. Dep’t of Licensing, 137 Wn.2d 957, 977 P.2d 554 (1999). 109 See RCW 43.88A.010; see also RCW 43.88A.020 (office of financial

management to coordinate development of fiscal notes with appropriate state agencies).

110 See Seeberger at 54, 56. 111 Sequential drafts of a bill may be indicative of legislative intent.

Spokane County Health Dist. v. Brockett, 120 Wn.2d 140, 153, 839 P.2d 324 (1992); Bellevue Firefighters Local 1604, 100 Wn.2d at 750-51; State v. Frampton, 95 Wn.2d 469, 475-78, 627 P.2d 922 (1981). But the rejection of a particular amendment by the Legislature may not be used by the judiciary to ascertain legislative intent. Spokane County Health Dist., 120 Wn.2d at 153; Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46. 63-64, 821 P.2d 18 (1991). But see State v. Clark, 129 Wn.2d 805, 812-13, 920 P.2d 187 (1996) (rejected amendment indicative of Legislature’s intent); Buchanan v. Simplot Feeders Ltd. P’ship, 134 Wn.2d 673, 688, 952 P.2d 610 (1998) (legislative history of unenacted bill relevant).


44

contemporaneous letters of legislators and staff memoranda on the legislation

can be of assistance in learning legislative intent.112 Materials pertaining to

activities on the floor of each house of the Legislature are also significant

interpretive tools. Washington courts have used legislative debates in construing

statutes,113 but have been more reluctant to use the colloquy of legislators

reported in legislative journals;114 as these colloquys are often staged for the

benefit of the courts.115

112 See, e.g., In re Marriage of Kovacs, 121 Wn.2d 795, 854 P.2d 629

(1993) (letter, remarks of committee chair, and prime sponsor of bill to other house); Biggs, 119 Wn.2d at 135 (Bar Assoc. statement); State v. Turner, 98 Wn.2d 731, 658 P.2d 658 (1983) (committee action, staff analyses, hearing testimony); State v. Anderson, 94 Wn.2d 176, 616 P.2d 612 (1980) (committee memoranda, transcript); State v. Herrmann, 89 Wn.2d 349, 572 P.2d 713 (1977) (letter).

In Nelson v. McClatchy Newspapers, Inc., 131 Wn.2d 523, 936 P.2d 1123

(1997), the court cited a staff memorandum as authority for an interpretation of a statute. Id. at 531. But subsequently in the opinion, the court indicated a staff memorandum on a bill introduced after the initiation of the litigation was not authoritative in describing legislative intent. Id. at 532, n.5.

113 Sofie v. Fibreboard Corp., 112 Wn.2d 636, 771 P.2d 711, 780 P.2d 260

(1989) (legislative floor remarks). Contra, In re F. D. Processing, Inc., 119 Wn.2d 452, 832 P.2d 1303 (1992) (one legislator’s floor remarks not enough to establish legislative intent).

114 Snow’s Mobile Homes, Inc. v. Morgan, 80 Wn.2d 283, 494 P.2d 216

(1972) (colloquy recognized); Johnson v. Cont’l West, Inc., 99 Wn.2d 555, 663 P.2d 482 (1983) (colloquy recognized). But see North Coast Air Servs. Ltd. v. Grumman Corp., 111 Wn.2d 315, 759 P.2d 405 (1988) (colloquy not recognized).

115 Seeberger at 72; Wang at 591.


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It is difficult to reconcile the disparate judicial treatment of floor colloquys

in the case law. In Johnson, the Washington Supreme Court found value in the

exchange between the former chair of the senate select committee on product

liability and tort reform and the vice chair of the senate judiciary committee on

an issue involving the 1981 Product Liability and Tort Reform Act.116 However,

in North Coast Air Services, the Court declined to give significance to the

exchange of two key members of that same select committee on the interpretation

of that same 1981 legislation even though the exchange related to the precise

issue before the Court and indicated a clear legislative intent to overrule the

Court’s decision in Ohler:117

116 99 Wn.2d at 561. 117 The Court stated:

We are not persuaded that this floor exchange supports

defendant’s position. First, the answer of a single legislator should not create an intent different from that in the official committee report if the answer is inconsistent with the report. Second, the question and answer are ambiguous. Senator Bottiger said the bill would overrule Ohler, but to overrule Ohler would eliminate the discovery rule in product cases. That is not the effect of this statute; indeed it statutorily recognizes a different form of what had been a judicially created discovery rule. The statute, despite the floor colloquy, did not overrule Ohler, it modified the conditions necessary to trigger running of the statute of limitations.

111 Wn.2d at 326.


46

An additional source of legislative intent is found in the action of the

Governor. A gubernatorial veto is deemed part of the legislative process.118

Thus, veto messages of the governor are significant sources of legislative

intent.119

The least significant legislative construction tools are those materials

created after the enactment of the legislation. Generally, the courts have not

valued declarations of legislative intent offered by legislators120 or lobbyists.121

But law review articles prepared by legislators commenting on legislation have

been used to construe statutes.122

118 Allied Daily Newspapers v. Eikenberry, 121 Wn.2d 205, 213, 848 P.2d

1258 (1993); State ex rel. Stiner v. Yelle, 174 Wash. 402, 408, 25 P.2d 91 (1933).

119 Theodoratus, 135 Wn.2d at 594; Spokane County Health District, 120

Wn.2d at 153-54. 120 Woodson v. State, 95 Wn.2d 257, 623 P.2d 683 (1980); City of Yakima

v. Int’l Ass’n of Firefighters, AFL-CIO, Local 469, 117 Wn.2d 655, 818 P.2d 1076 (1991).

121 Western Telepage, Inc. v. City of Tacoma, 140 Wn.2d at 611

(noncontemporaneous understanding of lobbyist as to legislative intent not reflective of Legislature’s rationale for enacting law). “While lobbyists refer to themselves as the ‘Third House,’ this appellation has no grounding in our Constitution.” Id. at 611, n.6.

122 Johnson v. Cont’l West, Inc., 99 Wn.2d at 560; Scott v. Cascade

Structures, 100 Wn.2d 537, 673 P.2d 179 (1983). But see State v. Anderson, 94 Wn.2d at 188 (nonlegislative authors of manual for Criminal Justice Training Commission).


47

In this discussion of interpretive sources for legislative intent, I have

intentionally grouped the materials in descending order of persuasive force.

Legislative materials expressing an official contemporaneous, and collective

intention, such as the preamble to a bill, have greater persuasive force than a

lobbyist’s declaration submitted years after the bill’s enactment, for example. But

it is important to note that no statute or case law give official sanction to such an

ordering of the persuasive power of legislative source materials.

In his excellent article on legislative history in Washington, former

Representative Art Wang argued in 1984 for greater legislative attention to its

materials designed to describe the Legislature’s intention in enacting a bill.

Wang specifically suggested the creation of joint select legislative committee to

study the issue of legislative history, examining such diverse suggestions as

publication of bill reports and fiscal notes in the legislative journal, creating

conference committee reports, and providing for a legislatively-controlled

repository for legislative history materials.123 The joint select committee was

never appointed, but Wang’s suggestions remain as valuable recommendations of

a thoughtful legislator. Wang did not describe how the courts should approach

the interpretation of legislation.

While Washington courts have resorted to legislative history materials

when in doubt about a statute’s meaning, this approach has generally not been

123 Wang, at 604-05.


48

criticized. In contrast, interpretation of federal statutes by the United States

Supreme Court has spawned a firestorm of controversy on the Court itself and by

legal scholars.

Justice Antonin Scalia has been the foremost Court proponent of a new

statutory interpretation style that eschews any reliance whatsoever on legislative

history. Justice Scalia’s most succinct articulation of this view is found in Green

v. Bock Laundry Machine Co.:124

The meaning of terms on the statute books ought to be determined, not on the basis of which meaning can be shown to have been understood by a larger handful of the Members of Congress; but rather on the basis of which meaning is (1) most in accord with context and ordinary usage, and thus most likely to have been understood by the whole Congress which voted on the words of the statute (not to mention the citizens subject to it), and (2) most compatible with the surrounding body of law into which the provision must be integrated – a compatibility which, by a benign fiction, we assume Congress always has in mind. I would not permit any of the historical and legislative material discussed by the Court, or all of it combined, to lead me to a result different from the one that these factors suggest.

Scalia’s approach, often termed “formalism” or “new textualism,”125 is allegedly

more democratic, relying on the proper role of legislative bodies in a democratic

system.

124 490 U.S. 504, 528 (1989) (Scalia, J., concurring). 125 See Philip P. Frickey, Revisiting the Revival of Theory in Statutory

Interpretation: A Lecture in Honor of Irving Younger, 84 Minn. L. Rev. 199, 204-05 (1999).


49

In contrast, many commentators argue in response to Scalia for a more

normative-based statutory interpretive model with the judiciary enjoying the

power to ignore legislative history materials in favor of selecting certain key

interpretive canons to make the best policy decision.126

The apparent flaw in all of the interpretive approaches, however, is the

omission of the legislative branch, the very body whose intent the judiciary is in

theory executing. The legislative branch certainly has a stake in how its views

are interpreted. This stake is nowhere discussed in most statutory interpretation

theories.

The Legislature has not taken steps to better ensure that the courts truly

execute its purpose in adopting legislation. Recognizing statutory interpretation

as a key feature of separation of powers, it is crucial that the Legislature address

both the legislative history materials it generates and the interpretation of its

enactments by the courts. Similarly, it is important for the court to treat the

interpretation of statutes in a more coherent and realistic fashion. Toward these

goals, a new paradigm for statutory interpretation in Washington is appropriate

and possible.

II. A NEW PARADIGM FOR STATUTORY INTERPRETATION IN WASHINGTON

The responsibility for developing a better system for interpreting statutes is

jointly that of the Legislature and the courts, each within their respective

126 See Eskridge, supra n.94.


50

constitutional spheres. Although the courts may be the final authority on the

interpretation of a statute,127 the Legislature can prescribe what its objectives

were in passing a law, indicate how a particular statute is to be treated by the

courts and express what materials regarding the legislative history of an

enactment are authoritative; the courts, in turn, can adopt more coherent, and

less result-driven principles of statutory interpretation adhering more directly to

the textual language employed by the Legislature.

A. LEGISLATURE

The Legislature should address statutory interpretation in several

significant ways: by modifying how it drafts legislation, by amending RCW 1.12

to establish specific principles to guide courts in their interpretation of the

Legislature’s intent, and by carefully analyzing court decisions interpreting

statutes to ensure the judicial interpretation comports with the Legislature’s aims.

With respect to the first issue, the Legislature, including members,

legislative staff, and Code Reviser staff, can do more to advise the courts as to the

reasons for a bill’s enactment and its intent with regard to the bill. While not

necessary for routine legislation, for significant legislative acts, the Legislature

should employ a preamble with findings as to the problems the Legislature hopes

to address and the solutions intended. The Legislature should consider

incorporation of an official section-by-section analysis of the bill in the final bill

127 See n.16, supra.


51

report on a bill.128 Finally, the bill should contain a section with specific

directions - such as liberal or strict construction - for specific sections of the

legislation.

Apart from legislative direction as to specific legislation, the Legislature

should amend RCW 1.12 to provide general guidance to the courts in

interpreting a statute. At a minimum, the Legislature should indicate to the

courts the hierarchy of interpretive tools beginning with the official bill reports.

The Legislature may choose to direct the courts to disregard certain interpretive

tools; for example, the non-contemporaneous testimony of legislators, lobbyists,

and others may be rendered inadmissible on legislative intent. The decision

about which of its own materials - bill reports, fiscal notes, committee materials

and testimony, floor debates, or post-enactment declarations - reveals the actual

collective intention of the Legislature in enacting a bill is peculiarly within the

purview of the Legislature itself.

Finally, the most significant power of the Legislature to ensure that judicial

interpretations of its enactments are consistent with the Legislature’s intent is its

amendatory power. If the Legislature disagrees with a judicial decision

interpreting a statute it should immediately amend the statute to make the

128 See, e.g., 1981 Senate Journal at 629-637 (section-by-section analysis

of 1981 Product Liability and Tort Reform Act).


52

interpretation consistent with its views.129 Indeed, the failure of the Legislature

to amend a statute in the face of a judicial interpretation has been viewed by the

courts as acquiescence in the judicial construction of the statute.130

B. THE JUDICIARY

The decisional law of Washington’s judiciary on statutory interpretation

suffers from the lack of coherent and consistent principles. The standard

treatment of statutes - evaluate the statute to determine if it is ambiguous and

construe it using a variety of interpretive canons if ambiguous – is highly

artificial. No real rigorous principles, for example, guide the differentiation of

plain from ambiguous statutes.

The better approach to judicial interpretation of statutes is to adhere to a

standard previously expressed in Washington case law and elsewhere. The

courts should simply deduce the Legislature’s collective intent from what the

Legislature said in the text of the statute, using any other official expressions of

129 As a former legislator, I would argue the pertinent standing legislative

committees and their staffs have an affirmative obligation to monitor new judicial decisions on issues within their committee jurisdiction and to take steps to enact legislation at the next legislative session to correct judicial errors of interpretation.

130 See, e.g., Soproni v. Polygon Apartment Partners, 137 Wn.2d 319, 327

n.3, 971 P.2d 500 (1999); McKinney v. State, 134 Wn.2d 388, 403, 951 P.2d 461 (1998); Manor v. Nestle Food Co., 131 Wn.2d 439, 445 n.2, 932 P.2d 628 (1997); State v. Coe, 109 Wn.2d 832, 846, 750 P.2d 208 (1988); Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 789, 719 P.2d 531 (1986).


53

intent the Legislature sets forth in the bill itself or in RCW 1.12 generally for all

statutes.

To a degree, this approach to statutory interpretation means the courts

should undertake to construe a statute, regardless of whether the courts believe

the statute “plain” or “ambiguous.” Instead, the courts should endeavor to

ascertain the Legislature’s intent from the statutory language or any other official

interpretive guides sanctioned by the Legislature itself. The courts may employ

the traditional judicial canons of statutory interpretation in such an analysis, but

the courts should articulate which canons have primacy in the interpretation of

statutes.

Finally, the judiciary may wish to consider a new doctrine of abstention in

statutory construction; if a court’s interpretation of a statute requires it to adopt

one of two or more legitimate and competing policy viewpoints, the better course

for the court may be to abstain from deciding the case to allow the Legislature to

resolve the controversy. In Nat’l Elec. Contractors Ass’n v. Riveland,131 for

example, various contractors and unions challenged the use of inmate labor on

prison facilities when such inmate laborers were not licensed electricians and the

Department of Corrections did not specifically comply with workplace safety

laws. The Legislature enacted RCW 19.28 pertaining to licensure of electricians

and RCW 42.17 relating to workplace safety, but also enacted RCW 72.10.110

131 138 Wn.2d 9, 978 P.2d 481 (1999).


54

encouraging use of inmate labor on correctional facilities and RCW 72.09.100

which directed the Department to operate a “comprehensive” inmate work

program and to “remove statutory and other restrictions which have limited

work programs in the past.” The majority of the Washington Supreme Court

held the licensure and workplace safety laws applied. The dissent disagreed,

asserting the case was not justifiable in light of the diametrically competing

policies; the dissent contended the Legislature should properly resolve such

issues.132

III. CONCLUSION

132 . . . we have legitimate and diametrically conflicting legislative policies before us. The majority’s determination to apply chapter 19.28 RCW and WISHA to inmates working on Department facilities potentially hobbles use of prisoner inmate labor on correctional facilities projects, despite the strong legislative policy in favor of inmate labor’s being used in the construction and repair of prison facilities. At the same time, to apply the provisions of RCW 72.09.100, which speaks only in broad terms of removing unspecified statutory and other restrictions on inmate labor, to negate the licensure requirements for employees, seems far too broad an invitation to the courts selectively to apply the statutory mandates otherwise designed to protect the public and workers. In the absence of a clear policy choice from the Legislature and the Governor, the parties have asked us to resolve this public policy conflict.

Resolution of the matter is within the easy purview of the Governor and the Legislature. Those are the branches of government constitutionally empowered and best able to broker the various interests at play in this case. For the Court to allow itself to be drawn into what is in essence a sociopolitical dispute is to misperceive our role in our tripartite form of government.

138 Wn.2d at 41-2 (Talmadge, J., dissenting).


55

Washington courts have uncritically employed an artificial paradigm for

statutory construction. Despite ferment in the federal courts and scholarly

journals on the proper role of the judiciary in interpreting statutes, Washington

courts have not assessed whether its existing paradigm adequately implements

legislative intent, the theoretical touchstone for the courts. Moreover, the courts’

application of the pardigm is inconsistent and episodic. It is difficult to

determine what rules actually apply at what time.

Moreover, the Legislature, despite grumbling about courts’

misconstruction of its enactments, has done little to give courts guidance with

respect to the interpretation of particular enactments or statutes generally.

Both branches of government need to critically assess issues relating to

statutory construction, each within their respective sphere. Both branches can

do far more to improve their treatment of laws enacted by the first branch of our

government.


Attachment III

1

Filed 2/4/13

IN THE SUPREME COURT OF CALIFORNIA

APPLE INC., ) ) Petitioner, ) ) S199384 v. ) ) Ct.App. 2/8 B238097 THE SUPERIOR COURT OF LOS ) ANGELES COUNTY, ) Los Angeles County ) Super. Ct. No. BC463305 Respondent; ) ) DAVID KRESCENT, ) ) Real Party in Interest. ) ___________________________________ )

The Song-Beverly Credit Card Act of 1971 (Credit Card Act) governs the issuance

and use of credit cards. (Civ. Code, § 1747 et seq.; all further statutory references are to

the Civil Code unless otherwise indicated.) One of its provisions, section 1747.08,

prohibits retailers from “[r]equest[ing], or requir[ing] as a condition to accepting the

credit card as payment . . . , the cardholder to write any personal identification

information upon the credit card transaction form or otherwise.” (§ 1747.08, subd. (a)

(hereafter section 1747.08(a)).) It also prohibits retailers from requesting or requiring the

cardholder “to provide personal identification information, which the [retailer] . . . writes,

causes to be written, or otherwise records upon the credit card transaction form or

otherwise,” and from “[u]tiliz[ing] . . . a credit card form which contains preprinted

spaces specifically designed for filling in any personal identification information of the


2

cardholder.” (Ibid.) In Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 524

(Pineda), we considered whether section 1747.08 is violated when a retailer requests and

records a customer’s ZIP code during a credit card transaction. Relying on the statute’s

language, legislative history, and purpose, we concluded that a ZIP code constitutes

“personal identification information” within the meaning of the statute and that the Credit

Card Act forbids a retailer from requesting or recording such information. (Pineda, at

pp. 527–528.)

Like Pineda, this case involves an asserted violation of section 1747.08. David

Krescent, the plaintiff in this case, alleged in his complaint that defendant Apple Inc.

requested or required him to provide his address and telephone number as a condition of

accepting his credit card as payment. However, unlike Pineda, which concerned the

purchase of a physical product at a traditional “brick-and-mortar” business, this case

concerns the purchase of an electronic download via the Internet. We must resolve

whether section 1747.08 prohibits an online retailer from requesting or requiring personal

identification information from a customer as a condition to accepting a credit card as

payment for an electronically downloadable product. Upon careful consideration of the

statute’s text, structure, and purpose, we hold that section 1747.08 does not apply to

online purchases in which the product is downloaded electronically.

Our dissenting colleagues warn that today’s decision “relegate[s] to the dust heap”

the “ ‘robust’ consumer protection . . . at the heart of section 1747.08” (dis. opn. by

Kennard, J., post, at p. 6) and represents a “major loss for consumers” (id. at p. 1) that

“leaves online retailers free to collect and use the personal identification information of

credit card users as they wish” (dis. opn. by Baxter, J., post, at p. 1). These ominous

assertions, though eye-catching, do not withstand scrutiny. As we explain, existing state

and federal laws provide consumers with a degree of protection against unwanted use or

disclosure of personal identification information. The Legislature may believe these

measures are inadequate and, if so, may enact additional protections. Or the Legislature


3

may believe that existing laws, together with market forces reflecting consumer

preferences, are sufficient. It is not our role to opine on this important policy issue. We

merely hold that section 1747.08 does not govern online purchases of electronically

downloadable products because this type of transaction does not fit within the statutory

scheme.

I.

Because this case comes to us following summary denial of a writ of mandate after

the denial of a demurrer, we assume as true all facts alleged in the operative complaint.

(Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 996.) Petitioner Apple Inc.

(Apple), defendant below, operates an Internet Web site and an online iTunes store

through which it sells digital media such as downloadable audio and video files. In June

2011, plaintiff below, David Krescent, sued Apple on behalf of himself and a putative

class of similarly situated individuals for alleged violations of section 1747.08.

Specifically, Krescent alleged that he purchased media downloads from Apple on various

occasions and that, as a condition of receiving these downloads, he was required to

provide his telephone number and address in order to complete his credit card purchase.

He further alleged that Apple records each customer’s personal information, is not

contractually or legally obligated to collect a customer’s telephone number or address in

order to complete the credit card transaction, and does not require a customer’s telephone

number or address for any special purpose incidental but related to the individual credit

card transaction, such as shipping or delivery. Although he alleged that “the credit card

transaction would be permitted to proceed” without any personal identification

information, Krescent also contended that “even if the credit card processing company or

companies required a valid billing address and [credit card identification number], under

no circumstance would [plaintiff’s] telephone number be required to complete his

transaction, that is, under no circumstance does [Apple] need [plaintiff’s] phone number

in order to complete a [media] download transaction.”


4

In September 2011, Apple filed a demurrer, arguing that the Credit Card Act does

not apply to online transactions and that deciding otherwise would undermine the

prevention of identity theft and fraud. After a hearing, the trial court overruled the

demurrer. The court noted that “the Act itself is silent on exempting online credit card

transactions from its purview (and otherwise does not address online credit card

transactions specifically).” While acknowledging that Apple’s “assertions with respect to

preventing fraud have definite appeal (a problem which the Court acknowledges is

widespread in credit transactions generally, and in online credit card transactions

specifically),” the trial court said it “is not prepared, at the pleading stage, to read the

[Credit Card] Act as completely exempting online credit transactions from its reach.”

The court also found, pursuant to Code of Civil Procedure section 166.1, that appellate

resolution of the issue might materially assist the resolution of the litigation.

Apple filed a petition for writ of mandate seeking review of the trial court’s order,

which the Court of Appeal summarily denied. We granted Apple’s petition for review

and ordered the trial court to show cause why the relief sought in the petition for writ of

mandate should not be granted.

II.

We review de novo questions of statutory construction. In doing so, “ ‘our

fundamental task is to “ascertain the intent of the lawmakers so as to effectuate the

purpose of the statute.” ’ ” (Mays v. City of Los Angeles (2008) 43 Cal.4th 313, 321.) As

always, we start with the language of the statute, “giv[ing] the words their usual and

ordinary meaning [citation], while construing them in light of the statute as a whole and

the statute’s purpose [citation].” (Pineda, supra, 51 Cal.4th at pp. 529–530.)

A.

We begin with the text of the statute. Section 1747.08(a) provides: “Except as

provided in subdivision (c), no person, firm, partnership, association, or corporation that

accepts credit cards for the transaction of business shall do any of the following: [¶] (1)


5

Request, or require as a condition to accepting the credit card as payment in full or in part

for goods or services, the cardholder to write any personal identification information

upon the credit card transaction form or otherwise. [¶] (2) Request, or require as a

condition to accepting the credit card as payment in full or in part for goods or services,

the cardholder to provide personal identification information, which the person, firm,

partnership, association, or corporation accepting the credit card writes, causes to be

written, or otherwise records upon the credit card transaction form or otherwise. [¶] (3)

Utilize, in any credit card transaction, a credit card form which contains preprinted spaces

specifically designated for filling in any personal identification information of the

cardholder.” Section 1747.08, subdivision (b) (hereafter section 1747.08(b)) defines

“ ‘personal identification information’ ” as “information concerning the cardholder, other

than information set forth on the credit card, and including, but not limited to, the

cardholder’s address and telephone number.”

The prohibitions codified in section 1747.08(a) are subject to various exceptions

set forth in section 1747.08, subdivision (c) (hereafter section 1747.08(c)). Subdivision

(c) provides that the requirements of subdivision (a) do not apply to “[c]ash advance

transactions” or “[i]f the credit card is being used as a deposit to secure payment in the

event of default . . . or other similar occurrence.” (§ 1747.08(c)(1), (2).) Nor do the

requirements of subdivision (a) apply if the person, firm, partnership, association, or

corporation accepting the credit card “is contractually obligated to provide personal

identification information in order to complete the credit card transaction”; “uses the Zip

Code information solely for prevention of fraud, theft, or identity theft” in a “sales

transaction at a retail motor fuel dispenser or retail motor fuel payment island automated

cashier”; or “is obligated to collect and record the personal identification information by

federal or state law or regulation.” (§ 1747.08(c)(3)(A)–(C).) Personal identification

information may also be collected if it “is required for a special purpose incidental but

related to the individual credit card transaction, including, but not limited to, information


6

relating to shipping, delivery, servicing, or installation of the purchased merchandise, or

for special orders.” (§ 1747.08(c)(4).)

Finally, section 1747.08, subdivision (d) (hereafter section 1747.08(d)) provides

the following general qualification to the statute’s requirements: “This section does not

prohibit any person, firm, partnership, association, or corporation from requiring the

cardholder, as a condition to accepting the credit card as payment in full or in part for

goods or services, to provide reasonable forms of positive identification, which may

include a driver’s license or a California state identification card, or where one of these is

not available, another form of photo identification, provided that none of the information

contained thereon is written or recorded on the credit card transaction form or otherwise.

If the cardholder pays for the transaction with a credit card number and does not make the

credit card available upon request to verify the number, the cardholder’s driver’s license

number or identification card number may be recorded on the credit card transaction form

or otherwise.”

At the outset, we observe that the text of section 1747.08 makes no reference to

online transactions or the Internet. This is not surprising because former section 1747.8,

section 1747.08’s predecessor, was enacted in 1990 (Stats. 1990, ch. 999, § 1, p. 4191),

before the privatization of the Internet (see Frischmann, Privatization and

Commercialization of the Internet Infrastructure: Rethinking Market Intervention into

Government and Government Intervention into the Market (2001) 2 Colum. Sci. & Tech.

L.Rev. 1, 20) and almost a decade before online commercial transactions became

widespread (see, e.g., McDonough v. Toys “R” Us, Inc. (E.D.Pa. 2009) 638 F.Supp.2d

461, 468).

Although section 1747.08 does not explicitly reference online transactions, both

parties maintain that the Legislature’s intent is apparent from the plain meaning of the

statute’s terms. Krescent contends that the language of section 1747.08(a) “must be read

as an all-inclusive prohibition on every businesses [sic] regardless of the form of the


7

transaction.” According to Krescent, in directing the statutory prohibition at any “person,

firm, partnership, association, or corporation that accepts credit cards for the transaction

of business” (§ 1747.08(a)), the Legislature intended to include all retailers without

exception. If the Legislature intended to exempt online retailers, he contends, it could

have done so.

Apple, on the other hand, argues that the first sentence of section 1747.08(a) must

be construed in light of other language in the statute indicating that the Legislature had in

mind only in-person business transactions. For example, section 1747.08(a)(1) prohibits

a retailer from requesting or requiring a “cardholder to write any personal identification

information upon the credit card transaction form or otherwise.” (Italics added.) Section

1747.08(a)(2) prohibits a retailer from requesting or requiring the cardholder to provide

such information, which the retailer “writes, causes to be written, or otherwise records

upon the credit card transaction form or otherwise.” (Italics added.) And section

1747.08(a)(3) prohibits the retailer from utilizing “a credit card form which contains

preprinted spaces.” (Italics added.) Apple says the terms “write” and “forms” imply, by

their physicality, that section 1747.08 applies only to in-person transactions. Apple

further argues that the definition of “credit card” in section 1747.02 — “any card, plate,

coupon book, or other single credit device existing for the purpose of being used from

time to time upon presentation to obtain money, property, labor, or services on credit” —

indicates that the Legislature contemplated only those transactions in which the card is

physically presented or displayed to the retailer. (§ 1747.02, subd. (a), italics added.)

We think the text of section 1747.08(a) alone is not decisive on the question

before us. The statutory language suggests that the Legislature, at the time it enacted

former section 1747.8, did not contemplate commercial transactions conducted on the

Internet. But it does not seem awkward or improper to describe the act of typing

characters into a digital display as “writing” on a computerized “form.” In construing

statutes that predate their possible applicability to new technology, courts have not relied


8

on wooden construction of their terms. Fidelity to legislative intent does not “make it

impossible to apply a legal text to technologies that did not exist when the text was

created. . . . Drafters of every era know that technological advances will proceed apace

and that the rules they create will one day apply to all sorts of circumstances they could

not possibly envision.” (Scalia & Garner, Reading Law: The Interpretation of Legal

Texts (2012) pp. 85–86.)

For example, in O’Grady v. Superior Court (2006) 139 Cal.App.4th 1423, the

Court of Appeal considered whether an online news magazine constitutes a “periodical

publication” for purposes of California’s journalism shield law, which was enacted well

before the advent of “digital magazines.” (Id. at p. 1461.) The court considered the

argument that “the shield law only applies to ‘periodical publications’ in print, because

that was a common feature of newspapers and magazines at the time the law was

enacted.” (Id. at p. 1462.) But the court did not regard that meaning as dispositive,

instead finding the statutory term ambiguous enough to encompass the Web site at issue.

(Id. at pp. 1463–1466.) The court ultimately found the shield law applicable to the Web

site through a careful examination of the Legislature’s purpose in enacting the statute, not

on the basis of the plain meaning of “ ‘periodical publication.’ ” (Id. at pp. 1462–1463;

see id. at p. 1465 [“Given the numerous ambiguities presented by ‘periodical publication’

in this context, its applicability must ultimately depend on the purpose of the statute”].)

In Ni v. Slocum (2011) 196 Cal.App.4th 1636, 1649 (Slocum), the Court of Appeal

considered “whether the use of electronic signature qualifies as ‘personally affix[ing]’ the

signature” on an initiative petition as that phrase is used in the Elections Code. (See Elec.

Code, § 100 [“Each signer shall at the time of signing the petition or paper personally

affix his or her signature, printed name, and place of residence . . . .”].) The county

argued that a signer must “physically ‘attach[]’ the signature to the petition by inscribing

it with a writing utensil,” whereas the petitioner claimed that the statutory requirement

can be satisfied by “tracing one’s signature and address on the face of a smartphone in


9

response to online instructions accompanying a copy of the petition.” (Slocum, supra,

196 Cal.App.4th at pp. 1649–1650.) Although the statute was enacted in 1933, long

before electronic signatures existed, the Court of Appeal found “no reason to reject either

of these definitions solely on the basis of the plain language of the statute.” (Id. at

p. 1650; see id. at p. 1652 [“Statutory interpretation must be prepared to accommodate

technological innovation, if the technology is otherwise consistent with the statutory

scheme”].)

Rather, the court in Slocum ultimately concluded that an electronic signature

system was “not entirely consistent with the present statutory scheme for the endorsement

of initiative petitions because . . . electronic signature software deletes the circulator from

the signature collection process” by allowing “voters to gain access to petitions from the

Internet and execute them without the assistance or intervention of a circulator.”

(Slocum, supra, 196 Cal.App.4th at pp. 1652–1653.) The court explained that the

“Elections Code requires each petition submitted to county election officials to be

accompanied by the declaration of the circulator, attesting to the genuineness of the

signatures on the petition,” and that “the Legislature viewed the participation of the

circulator as a protection against fraud in the collection of signatures.” (Id. at p. 1652.)

Thus, the court concluded that “the electronic signature system is partially incompatible

with the current statutory scheme” because it “eliminates from the signature collection

system one of its primary protections against fraud.” (Id. at p. 1653.)

In this case, as in O’Grady and Slocum, the plain meaning of the statute’s text is

not decisive. An examination of the statutory scheme as a whole is necessary to

determine whether it is applicable to a transaction made possible by technology that the

Legislature did not envision.

B.

We recently considered the history and purpose of the Credit Card Act in Pineda,

supra, 51 Cal.4th 524. There we said “[t]he statute’s overriding purpose was to ‘protect


10

the personal privacy of consumers who pay for transactions with credit cards.’ ” (Id. at p.

534, quoting Assem. Com. on Finance and Ins., Analysis of Assem. Bill No. 2920 (1989–

1990 Reg. Sess.) as amended Mar. 19, 1990, p. 2.) Specifically, the Legislature “sought

to address the misuse of personal identification information for, inter alia, marketing

purposes, and found that there would be no legitimate need to obtain such information

from credit card customers if it was not necessary to the completion of the credit card

transaction.” (Absher v. AutoZone, Inc. (2008) 164 Cal.App.4th 332, 345, quoted in

Pineda, at p. 535.) “To protect consumers, the Legislature sought to prohibit businesses

from ‘requiring information that merchants, banks or credit card companies do not

require or need.’ ” (Pineda, at p. 534, quoting Assem. Com. on Finance and Ins.,

Analysis of Assem. Bill No. 2920 (1989–1990 Reg. Sess.) as amended Mar. 19, 1990,

p. 2.)

While it is clear that the Legislature enacted the Credit Card Act to protect

consumer privacy, it is also clear that the Legislature did not intend to achieve privacy

protection without regard to exposing consumers and retailers to undue risk of fraud. The

legislative history shows that the Legislature enacted the statute’s prohibitions only after

carefully considering and rejecting the possibility that the collection of personal

identification information by brick-and-mortar retailers could serve a legitimate purpose

such as fraud prevention. In particular, the Senate Judiciary Committee considered the

standard procedure followed by brick-and-mortar retailers in the 1990s to verify the

identity of credit card users — which included “verify[ing] the identification of the

cardholder by comparing the signature on the credit card transaction form with the

signature on the back of the card” and “contact[ing] the credit card issuer’s authorization

center [to] obtain approval” for sales above a specified “floor limit” — and concluded

that the collection of personal identification information was not a necessary step in that

procedure. (Sen. Judiciary Com., Analysis of Assem. Bill No. 2920 (1989–1990 Reg.

Sess.) as amended June 27, 1990, p. 3.) This finding supported the Legislature’s


11

judgment that brick-and-mortar retailers in the 1990s had no genuine need to collect

personal identification information and would instead use such information primarily for

unsolicited marketing. (See id. at pp. 3–4 [noting that the “problem” the bill was

designed to address was retailers’ practice of leading consumers “to mistakenly believe

that [personal identification information] is a necessary condition to complete the credit

card transaction, when, in fact, it is not” and “acquir[ing] this additional personal

information for their own business purposes — for example, to build mailing or

telephone lists which they can subsequently use for their own in-house marketing efforts,

or sell to direct-mail or tele-marketing specialists, or to others”]; id. at pp. 5–7

[explaining that retailers had no genuine need for personal identification information to

address problems such as billing errors, lost credit cards, and product problems].) We

cannot assume that the Legislature, had it confronted a type of transaction in which the

standard mechanisms for verifying a cardholder’s identity were not available, would have

made the same policy choice as it did with respect to transactions in which it found no

tension between privacy protection and fraud prevention.

Further, the Legislature in 1991 “added a provision (former § 1747.8, subd. (d))

. . . substantially similar to the subdivision (d) now in section 1747.08, permitting

businesses to require cardholders to provide identification so long as none of the

information contained thereon was recorded.” (Pineda, supra, 51 Cal.4th at p. 535, citing

Stats. 1991, ch. 1089, § 2, p. 5042.) The adoption of this provision was described as “a

clarifying, nonsubstantive change.” (State and Consumer Services Agency, Enrolled Bill

Rep. on Assem. Bill No. 1477 (1991–1992 Reg. Sess.) Sept. 9, 1991, p. 3.) As

previously noted, section 1747.08(d) makes clear that nothing in the statute prevents

retailers from requiring customers to provide positive identification — “which may

include a driver’s license or a California state identification card, or where one of these is

not available, another form of photo identification” — as a condition of accepting a credit

card as payment. In addition, although section 1747.08(d) generally prohibits a retailer


12

from recording information contained on a customer’s photo identification card, a retailer

may record the customer’s driver’s license number or similar information when the

customer does not make the credit card available for verification, presumably so that the

customer may be identified and located in the event of a problem with the use of the

credit card. Section 1747.08(d) shows that while the Legislature indeed sought to protect

consumer privacy, it did not intend to do so at the cost of creating an undue risk of credit

card fraud. Rather, section 1747.08(d) demonstrates the Legislature’s intent to permit

retailers to use and even record personal identification information when necessary to

combat fraud and identity theft — objectives that not only protect retailers but also

promote consumer privacy.

The safeguards against fraud that are provided in section 1747.08(d) are not

available to the online retailer selling an electronically downloadable product. Unlike a

brick-and-mortar retailer, an online retailer cannot visually inspect the credit card, the

signature on the back of the card, or the customer’s photo identification. Thus, section

1747.08(d) — the key antifraud mechanism in the statutory scheme — has no practical

application to online transactions involving electronically downloadable products. We

cannot conclude that if the Legislature in 1990 had been prescient enough to anticipate

online transactions involving electronically downloadable products, it would have

intended section 1747.08(a)’s prohibitions to apply to such transactions despite the

unavailability of section 1747.08(d)’s safeguards.

Krescent’s complaint reinforces our conclusion insofar as it failed to allege that

Apple does not require any personal identification information to verify the identity of

the credit card user. His complaint merely alleged that “the credit card transaction would

be permitted to proceed without any further information” and that Apple “is not

contractually obligated to provide a consumer’s telephone number and/or address in order

to complete the credit card transaction,” thereby rendering inapplicable the exception set

forth in section 1747.08(c)(3)(A). Even if credit card transactions may proceed without


13

any personal identification information under the contractual terms that bind retailers and

credit card companies, the fact remains that the Legislature saw fit to include section

1747.08(d)’s safeguards against fraud in the statutory scheme. The inclusion of section

1747.08(d), separate and apart from the exception in section 1747.08(c)(3)(A), reflects

the Legislature’s judgment that consumers and retailers have an interest in combating

fraud that is independent of whatever security measures are (or are not) required by

contracts between retailers and credit card issuers. Consistent with this legislative

judgment, both parties acknowledged at oral argument that retailers often bear the risk of

loss from fraudulent credit card charges.

In addition, Krescent suggested in his complaint and expressly conceded at oral

argument that Apple may need at least a valid billing address, if not a telephone number,

to verify the credit card. However, according to Krescent’s own allegations, there would

be no way for Apple to collect this information under the statute. As noted, Krescent

alleged that Apple is neither contractually nor legally obligated to collect such

information; hence, the exceptions in section 1747.08(c)(3)(A) and (C) do not apply.

Krescent also alleged that Apple does not require a customer’s address for a special

purpose incidental but related to the credit card transaction, such as shipping, because the

product is electronically downloadable; hence, the exception in section 1747.08(c)(4)

does not apply. Likewise, the exceptions concerning motor fuel retailers, cash advance

transactions, and transactions in which a credit card is used as a form of security have no

applicability to this case. (§ 1747.08(c)(1), (2), (3)(B).)

At oral argument, Krescent suggested that Apple might be able to collect a

customer’s billing address as a “reasonable form[] of positive identification” under

section 1747.08(d). But section 1747.08(b) includes “the cardholder’s address” as a type

of personal identification information retailers are forbidden to collect. Moreover,

Krescent’s view cannot be squared with the full text of section 1747.08(d), which says

retailers may require the cardholder “to provide reasonable forms of positive


14

identification, which may include a driver’s license or California state identification card,

or where one of these is not available, another form of photo identification, provided that

none of the information provided thereon is written or recorded on the credit card

transaction form or otherwise.” A billing address is not a “form of photo identification.”

(See Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 743 [“Under the

principle of statutory construction known as ‘ejusdem generis,’ the general term

ordinarily is understood as being ‘ “restricted to those things that are similar to those

which are enumerated specifically” ’ ”].) And Krescent’s own complaint alleged that

Apple “records each consumer’s personal information, including, but not limited to a

telephone number and address, in line with each credit card transaction, and keeps

records of such personal information.” In short, section 1747.08(d) does not permit

Apple to collect a billing address in the course of an online transaction.

In his brief (but not in his complaint), Krescent argued that requiring a customer to

provide his or her name, credit card number, card expiration date, and credit card

identification number suffices to prevent fraud. But it is clear that the Legislature has

disagreed. A customer’s name, credit card number, expiration date, and security code are

all apparent to a “brick-and-mortar” retailer on the credit card itself when the card is

presented during an in-person transaction. Yet the Legislature expressly authorized

retailers to request additional information — namely, a driver’s license, state

identification card, or another form of photo identification — in order to combat fraud.

(§ 1747.08(d).) The Legislature has thus decided that the information on the credit card

is not necessarily sufficient by itself to protect consumers and retailers against fraud.

Our dissenting colleagues offer various arguments against the conclusion that the

statute, if applied to the online transaction in this case, would prohibit Apple from

collecting information necessary to combat fraud. Justice Kennard cites section

1747.08(c)(3)(A), which allows retailers to collect personal identification information

that they are “contractually obligated to provide . . . in order to complete the credit card


15

transaction,” as one “layer of protection against fraud.” (Dis. opn. by Kennard, J., post,

at p. 7.) But Krescent’s complaint stated that Apple is not contractually obligated to

collect any such information, and we must accept this allegation as true on demurrer.

(See ante, at p. 13.) Justice Kennard also notes that the second sentence of section

1747.08(d) allows retailers “to record the number appearing on the buyer’s driver’s

license or similar identification.” (Dis. opn. by Kennard, J., post, at p. 7.) But the second

sentence of section 1747.08(d) allows a retailer to record such information when a buyer

“pays for the transaction with a credit card number and does not make the credit card

available upon request,” presumably so that the buyer may be tracked down if the use of

the credit card number turns out to be improper. This provision contemplates that the

retailer can verify that the driver’s license or identification card belongs to the buyer;

indeed, section 1747.08(d) makes clear that a driver’s license or identification card has

significance in this context as a “form of photo identification.” In an online transaction,

even if the retailer were to collect a driver’s license number, the retailer has no way to

verify that the number corresponds to the person using the credit card number.

In his dissent, Justice Baxter asserts that we indulge an unwarranted “factual

assumption — that the personal identification information defendant allegedly demanded

and collected here, i.e., cardholder addresses and telephone numbers, are ‘necessary to

combat fraud and identity theft’ in online credit card transactions.” (Dis. opn. by Baxter,

J., post, at pp. 7–8.) In fact, we do nothing of the sort. We express no view as to what

type of information — whether an address, telephone number, or something else — is

essential to verify a cardholder’s identity. We hold only that the statutory scheme and

legislative history make clear the Legislature’s concern that there be some mechanism by

which retailers can verify that a person using a credit card is authorized to do so. No

such mechanism would exist in the context of online purchases of electronically

downloadable products if the statute were read to apply to such transactions. Because the

statutory scheme provides no means for online retailers selling electronically


16

downloadable products to protect against credit card fraud, we conclude that the

Legislature could not have intended section 1747.08 to apply to this type of transaction.

We have no occasion here to decide whether section 1747.08 applies to online

transactions that do not involve electronically downloadable products or to any other

transactions that do not involve in-person, face-to-face interaction between the customer

and retailer. Our dissenting colleagues contend that section 1747.08 must apply to online

transactions because the Legislature intended it to apply to “other card-not-present

transactions” such as mail order and telephone order (MOTO) transactions. (Dis. opn. by

Baxter, J., post, at pp. 9–10; see dis. opn. by Kennard, J., post, at pp. 4–6.) We express

no view on whether the statute governs mail order or telephone order transactions, as that

issue is not presented and has not been briefed in this case. In any event, even if the

statute does apply to MOTO transactions, we do not think such transactions, which often

involve “shipping [or] delivery . . . of the purchased merchandise” (§ 1747.08(c)(4)), are

readily likened to online purchases of electronically downloadable products with respect

to possible means of preventing or detecting fraud.

III.

Krescent contends that the text and legislative history of a 2011 amendment to the

Credit Card Act show that section 1747.08 applies to online transactions. As explained

below, we disagree.

In 2011, the Legislature amended the Credit Card Act to add section

1747.08(c)(3)(B), which provides that the prohibitions of section 1747.08(a) do not apply

if “[t]he person, firm, partnership, association, or corporation accepting the credit card in

a sales transaction at a retail motor fuel dispenser or retail motor fuel payment island

automated cashier uses the Zip Code information solely for prevention of fraud, theft, or

identity theft.” This amendment applies to “pay-at-the-pump” transactions in which no

employee or other seller of the agent is present. (See § 1747.02, subd. (n) [defining

“ ‘retail motor fuel dispenser’ ” as “a device that dispenses fuel . . . , that processes the


17

sale of fuel through a remote electronic payment system, and that is in a location where

an employee or other agent of the seller is not present”]; § 1747.02, subd. (o) [defining

“ ‘retail motor fuel payment island automated cashier’ ” in similar terms].) Krescent

argues that because the 2011 amendment creates a narrow exception for a certain type of

remote transaction, it would have been unnecessary surplusage if the statute was never

intended to apply to remote transactions in the first place. In his view, the 2011

amendment confirms that all retailers, including retailers conducting business remotely,

are governed by the statute.

The logic of Krescent’s argument holds only if one assumes that a remote

transaction conducted at a gas station stands on equal footing with an online transaction,

and that by addressing the former in 2011, the Legislature necessarily signaled the

statute’s applicability to the latter. But there are good reasons to doubt this assumption.

As Apple points out in its brief, “the customer engaging in a pay-at-the-pump transaction

has physical possession of the card, which must be swiped,” and “is capable of being

seen, either because an employee is at the gas station, or because there is video

surveillance of the pump.” Thus, pay-at-the-pump transactions arguably present less risk

of fraud than online transactions because a customer engaged in an online transaction

need not possess a physical card and can complete the transaction in the privacy of his or

her own home. It seems counterintuitive to posit that the Legislature created a fraud

prevention exemption only for pay-at-the-pump retailers while leaving online retailers

unprotected, when online retailers — a multibillion-dollar industry by the year 2011 —

have at least as much if not more need for an exemption to protect themselves and

consumers from fraud.


18

The more logical inference is that the Legislature did not address pay-at-the-pump

transactions in 2011 against the backdrop of the statute’s applicability to all remote

transactions, including online transactions, but rather that the Legislature addressed pay-

at-the-pump transactions against the backdrop of the statute’s applicability to in-person

transactions at ordinary brick-and-mortar retailers, the paradigmatic type of transaction

addressed by the statute’s text. Compared to ordinary brick-and-mortar retailers, gas

stations with payment island automated cashiers may indeed have heightened fraud

concerns, and it would make sense for the Legislature to grant them more leeway to

record personal identifying information. Indeed, the 2011 amendment supports the view

that the Legislature’s policy behind the statute has been, and continues to be, to protect

consumer privacy without putting retailers in the position of having to accept credit card

payments when they are unable to confirm that the person using the card is authorized to

do so.

We acknowledge that the legislative history of the 2011 amendment contains some

indications that appear to support Krescent’s position. The gas station exemption became

law with the passage of Assembly Bill No. 1219 (2011–2012 Reg. Sess.). One version of

the bill proposed to “amend the Song-Beverly Credit Card Act in a manner that would

restrict its application to instances in which a card is ‘physically presented’ to a retailer,

apparently with the intent of allowing retailers to collect personal information for fraud

prevention purposes where the card is not physically presented, as in an on-line or other

electronic transaction.” (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 1219

(2011–2012 Reg. Sess.) as amended May 4, 2011, p. 1, italics omitted.) In reviewing this

version, the Assembly Committee on Judiciary concluded it “sweeps too broadly in

effectively removing on-line and telephonic transactions from the scope of the existing

law’s protection.” (Ibid., italics omitted.) Because “this was not the bill’s intent”

according to its sponsor, the committee said it “strongly recommends that this language

come out of the bill.” (Id. at p. 5, underlining omitted.) Consistent with that


19

recommendation, Assembly Bill No. 1219 (2011–2012 Reg. Sess.) was enacted without

the restrictive language. (§ 1747.08, as amended by Stats. 2011, ch. 690; see also Sen.

Judiciary Com., Analysis of Assem. Bill No. 1219 (2010-2011 Reg. Sess.) as amended

June 22, 2011, p. 2.) As passed, the bill provided a specific exemption for automated

cashiers at gas stations.

For several reasons, however, we do not find this legislative history persuasive on

the meaning of section 1747.08 as enacted in 1990. First, “[t]he declaration of a later

Legislature is of little weight in determining the relevant intent of the Legislature that

enacted the law.” (Peralta Community College Dist. v. Fair Employment & Housing

Com. (1990) 52 Cal.3d 50, 52). This is especially true where, as here, “a gulf of decades

separates the two [legislative] bodies.” (Western Security Bank v. Superior Court (1997)

15 Cal.4th 232, 244.) We thus give little weight to the views of the Legislature of 2011

as to what the Legislature of 1990 intended.

Second, “[u]npassed bills, as evidences of legislative intent, have little value.”

(Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1396).

Although plaintiff contends that the never-enacted provisions were premised on the

Legislature’s understanding that section 1747.08 applies to online transactions, the

Legislature’s decision not to enact those provisions plausibly supports the opposite

inference: the Legislature may have concluded that it was unnecessary to remove online

transactions from the statute’s coverage because such transactions were never covered by

the statute in the first place.

Third, the legislative history on whether the statute applies to online transactions is

conflicting. For example, when the 2011 amendment was first proposed, a federal district

court had already ruled in Saulic v. Symantec Corp. (C.D.Cal. 2009) 596 F.Supp.2d 1323

that section 1747.08 does not apply to online transactions, and “the Legislature is deemed

to be aware of existing laws and judicial decisions in effect at the time legislation is

enacted and to have enacted and amended statutes ‘ “in the light of such decisions as have


20

a direct bearing upon them.” ’ ” (People v. Overstreet (1986) 42 Cal.3d 891, 897.) In

addition, an Assembly analysis of proposed Senate amendments noted that “this bill

simply creates an express exemption in current law from the prohibition on collecting zip

code information in a retail credit card transaction at a motor fuel dispenser so long as the

zip code information is used to prevent fraud, theft or identity theft,” an exemption that

“the courts may determine in current litigation . . . always existed.” (Assem. Floor

analysis, Assem. Bill No. 1219 (2011–2012 Reg. Sess.) Sept. 8, 2011, p. 3, italics added.)

Similarly, the sponsor of the unenacted proposal to remove online and telephonic

transactions from the statute’s coverage indicated that the proposal was “intended to

clarify existing law.” (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 1219

(2011–2012 Reg. Sess.) as amended May 4, 2011, p. 2.)

Fourth, in contrast to the conflicting evidence and legally dubious inferences from

the 2011 legislative history as to whether the 1990 statute applies to online transactions,

what is clear from the legislative history is that the 2011 amendment was enacted to

address a very specific problem. Our 2011 holding in Pineda, supra, 51 Cal.4th 524, that

a ZIP code constitutes “personal identification information” within the meaning of

section 1747.08(b) applied retroactively to uses of the ZIP code prior to our ruling. The

California Retailers Association, the sponsor of Assembly Bill No. 1219, “claim[ed] that

about 150 lawsuits [had] been filed against retailers in the wake of the Supreme Court

decision, including against gas stations that collect zip codes for fraud prevention

purposes.” (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 1219 (2011–2012

Reg. Sess.) as amended May 4, 2011, p. 1, italics omitted.) The Western States

Petroleum Association argued to the Legislature that “[w]ithout specific language

expressly exempting fraud prevention, . . . its member companies ‘may face years of

costly litigation.’ ” (Id. at p. 8; see also Assem. Com. on Banking and Finance, Analysis


21

of Assem. Bill No. 1219 (2010–2011 Reg. Sess.) as amended Apr. 25, 2011, p. 2 [“The

need for this bill arises from . . . Pineda v. Williams-Sonoma Stores, Inc. . . .”].) In

response, the Legislature created an “express exemption from the prohibition against the

collection and retention of zip code information when the zip code is used solely for

prevention of fraud, theft, or identity theft in a sales transaction at a retail motor fuel

dispenser or retail motor fuel payment island automated cashier.” (Assem. Floor

analysis, Assem. Bill No. 1219 (2011–2012 Reg. Sess.) Sept. 8, 2011, p. 1.)

Thus, the problem the Legislature sought to address in 2011 was a narrow one:

how to deal with lawsuits filed against traditional brick-and-mortar retailers, particularly

gas stations, that had been collecting ZIP codes for years under the mistaken belief that

they were not prohibited from doing so under section 1747.08. Given the Legislature’s

specific focus, it is not surprising that the Assembly Committee on Judiciary

recommended that the bill be written narrowly, without the use of broad language

unnecessary to address the particular problem faced by gas stations that use automated

cashiers. In sum, we cannot draw any firm conclusion concerning the applicability of

section 1747.08 to online transactions from the legislative history of the 2011 gas station

exemption for the simple reason that the Legislature in 2011 was not presented with that

issue.

IV.

Finally, the California Online Privacy Protection Act of 2003 (COPPA) shows that

the Legislature knows how to make clear that it is regulating online privacy and that it

does so by carefully balancing concerns unique to online commerce. COPPA provides

that “[a]n operator of a commercial Web site or online service that collects personally

identifiable information through the Internet about individual consumers residing in

California who use or visit its commercial Web site or online service shall conspicuously

post its privacy policy on its Web site . . . .” (Bus. & Prof. Code, § 22575, subd. (a).)

The privacy policy must: “(1) Identify the categories of personally identifiable


22

information that the operator collects through the Web site or online service about

individual consumers who use or visit its commercial Web site or online service and the

categories of third-party persons or entities with whom the operator may share that

personally identifiable information. [¶] (2) If the operator maintains a process for an

individual consumer who uses or visits its commercial Web site or online service to

review and request changes to any of his or her personally identifiable information that is

collected through the Web site or online service, provide a description of that process.

[¶] (3) Describe the process by which the operator notifies consumers who use or visit its

commercial Web site or online service of material changes to the operator’s privacy

policy for that Web site or online service. [¶] (4) Identify its effective date.” (Bus. &

Prof. Code, § 22575, subd. (b).)

Although it is theoretically possible to construe COPPA as imposing requirements

on online transactions that go above and beyond the requirements of section 1747.08, we

find no evidence of such a legislative intent. Instead, there is evidence to the contrary.

The Senate Rules Committee’s third reading analysis of COPPA indicated that this

legislation was necessary because “[e]xisting law does not directly regulate the privacy

practices of online business entities.” (Sen. Rules Com., 3d reading analysis of Assem.

Bill No. 68 (2003-2004 Reg. Sess.) as amended Sept. 3, 2003, p. 2.) The bill’s author

explained that because “many consumers refuse to do business online because they have

little protection against abuse,” online retailers should be required at least to disclose in

their online privacy policies what personal information may be collected and how it is

used. (Assem. Com. on Business and Professions, Analysis of Assem. Bill No. 68

(2003–2004 Reg. Sess.) as amended Apr. 28, 2003, p. 2; see also Assem. Com. on

Judiciary, Analysis of Assem. Bill No. 68 (2003–2004 Reg. Sess.) as amended Apr. 2,

2003, p. 3 [“Any policy will do. The bill simply requires that an operator have a policy

and then follow it”].) According to the bill’s author, this disclosure regime would

“provide[] meaningful privacy protection[] that will help foster the continued growth of


23

the Internet economy.” (Assem. Com. on Business and Professions, Analysis of Assem.

Bill No. 68 (2003–2004 Reg. Sess.) as amended Apr. 28, 2003, p. 2.)

The enactment of COPPA suggests that when the Legislature intends to address

online transactions, it does so unambiguously. In addition, the fact that COPPA enacts

merely a disclosure regime suggests that the Legislature in 2003 sought to proceed

cautiously in regulating online commerce or, at least for the time being, to strike a

different policy balance than the Credit Card Act did in 1990 for the collection of

personally identifiable information.

COPPA also refutes our dissenting colleagues’ assertion that today’s decision will

leave online retailers “free to require personal identification information as a condition of

credit card acceptance and to use such information for whatever purposes they wish.”

(Dis. opn. by Baxter, J., post, at p. 12; see dis. opn. by Kennard, J., post, at pp. 1, 6.) As

noted, COPPA requires online retailers to “conspicuously post” their privacy policies, to

disclose “the categories of personally identifiable information” they collect, and to

identify “the categories of third-party persons or entities with whom [they] may share that

personally identifiable information.” (Bus. & Prof. Code, § 22575, subds. (a), (b).) If a

consumer is not satisfied with the policy of a particular retailer, he or she may decline to

purchase a product from that retailer. The Legislature could have reasonably believed

that its disclosure regime creates significant incentives, in light of consumer preferences,

for online retailers to limit their collection and use of personally identifiable information.

Federal law also provides some degree of protection against the use of personal

identification information for unwanted commercial solicitation. The Telephone

Consumer Protection Act of 1991 (TCPA; Pub.L. No. 102–243 (Dec. 20, 1991) 105 Stat.

2394) was enacted “to protect the privacy interests of residential telephone subscribers by

placing restrictions on unsolicited, automated telephone calls to the home and to facilitate

interstate commerce by restricting certain uses of facsimile . . . machines and automatic

dialers.” (Sen.Rep. No. 102-178, 1st Sess., p. 1, reprinted in 1991 U.S. Code Cong. &


24

Admin. News, p. 1968; see 47 U.S.C. § 227.) “[T]he TCPA instructs the [Federal

Communications Commission] to issue regulations ‘concerning the need to protect

residential telephone subscribers’ privacy rights to avoid receiving telephone solicitations

to which they object.” (Charvat v. NMP, LLC (6th Cir. 2011) 656 F.3d 440, quoting 47

U.S.C. § 227(c)(1).) “In 2003, two federal agencies — the Federal Trade Commission

(FTC) and the Federal Communications Commission (FCC) — promulgated rules that

together created the national do-not-call registry. [Citations.] The national do-not-call

registry is a list containing the personal telephone numbers of telephone subscribers who

have voluntarily indicated that they do not wish to receive unsolicited calls from

commercial telemarketers. Commercial telemarketers are generally prohibited from

calling phone numbers that have been placed on the do-not-call registry, and they must

pay an annual fee to access the numbers on the registry so that they can delete those

numbers from their telephone solicitation lists.” (Mainstream Mktg. Servs. v. FTC (10th

Cir. 2004) 358 F.3d 1228, 1233–1234, fns. omitted.) Thus, federal legislation limits the

commercial use of customer telephone numbers.

There can be no doubt that retail commerce has changed dramatically since section

1747.08 was enacted and even since COPPA and the federal TCPA were enacted. In

1990, the idea of computerized transactions involving the sale and purchase of virtual

products was beyond any legislator’s imagination. Such technology was not even a

twinkle in Steve Jobs’s eye; at the time, Jobs had just begun to experiment with the

concept of “interpersonal computing.” (New Models of NeXT Computer Lauded; Users,

Analysts Praise Changes in Hardware, Software, Rocky Mountain News (Sept. 23, 1990)

p. B8; see Isaacson, Steve Jobs (2011) pp. 211–237, 293–294 [discussing Jobs’s

attempted innovations in personal computing during the late 1980s and early 1990s].)

Today, retail “e-commerce” sales in the United States approach $200 billion a year (see

U.S. Census Bur., E-Stats (May 12, 2012) pp. 3–4 <http://www.census.gov/econ/estats/

2010/2010reportfinal.pdf> [as of Feb. 4, 2013]), and it has been estimated that iTunes


25

alone will generate as much as $13 billion in revenue for Apple in 2013 through the sale

of apps, music, movies, and e-books (see Gobry, Apple Will Generate $13 Billion in

iTunes Revenue in 2013, Says Analyst, Business Insider, July 5, 2011

<http://www.businessinsider.com/apple-itunes-revenue-2013-2011-7> [as of Feb. 4,

2013]). Although “[s]tatutory interpretation must be prepared to accommodate

technological innovation,” this is only possible “if the technology is otherwise consistent

with the statutory scheme.” (Slocum, supra, 196 Cal.App.4th at p. 1652.) Having

thoroughly examined section 1747.08’s text, purpose, and history, we are unable to find

the clarity of legislative intent or consistency with the statutory scheme necessary to

conclude that the Legislature in 1990 intended to bring the enormous yet unforeseen

advent of online commerce involving electronically downloadable products — and the

novel challenges for privacy protection and fraud prevention that such commerce

presents — within the coverage of the Credit Card Act.

In light of our holding today, the Legislature may wish to revisit the issue of

consumer privacy and fraud prevention in online credit card transactions, just as it

revisited the use of ZIP codes in the wake of our 2011 decision in Pineda. We cast no

doubt on Krescent’s claim that protecting consumer privacy in online transactions is an

important policy goal, nor do we suggest that combating fraud is as important or

more important than protecting privacy. We express no view on this significant issue

of public policy. Our role is to determine what the Legislature intended by the statute

it enacted. Here the statutory scheme, considered as a whole, reveals that the

Legislature intended to safeguard consumer privacy while also protecting retailers and

consumers against fraud. This accommodation of interests struck by the Legislature

would not be achieved if section 1747.08 were read to apply to online transactions

involving electronically downloadable products. Because we cannot make a square peg


26

fit a round hole, we must conclude that online transactions involving electronically

downloadable products fall outside the coverage of the statute.

CONCLUSION

For the foregoing reasons, the Court of Appeal’s judgment summarily denying the

petition for writ of mandate or prohibition is reversed, and the matter is remanded to that

court with directions to issue a writ consistent with this opinion.

LIU, J.

WE CONCUR: CANTIL-SAKAUYE, C. J. WERDEGAR, J. CORRIGAN, J.


1

DISSENTING OPINION BY KENNARD, J.

To protect consumer privacy, California statutory law prohibits retail sellers from

recording the personal identification information, such as home addresses and telephone

numbers, of their credit-card-using customers. (Civ. Code,1 § 1747.08, subd. (a).) The

statute does not exempt online sales of downloadable products from this prohibition, and

on its face the statute applies to sales conducted over the Internet just as it does to sales

conducted face-to-face or by mail or telephone. Yet the majority holds that online sales

of downloadable products are not covered by the statute, thus leaving Internet retailers

free to demand personal identification information from their credit-card-using customers

and to resell that information to others. The majority’s decision is a major win for these

sellers, but a major loss for consumers, who in their online activities already face an ever-

increasing encroachment upon their privacy.

Unlike the majority, I conclude that the statute means just what it says and

contains no exemption, express or implied, for online sales of downloadable products.

The majority’s expressed concern that this plain-meaning construction of the statute

leaves online sellers with no way to detect and prevent fraudulent purchases is

unjustified, as I explain.

1 All undesignated statutory references are to the Civil Code.


2

I

David Krescent filed a complaint alleging that on four occasions in 2010, he

bought downloadable products from Apple, Inc. (Apple); that he used a credit card to pay

for those products; and that Apple, as a condition of completing those purchases and in

violation of section 1747.08, required him to provide his home address and telephone

number, which he did. Krescent seeks statutory penalties for those alleged violations.

He also seeks certification of a class comprising all individuals who within the year

preceding the filing of the complaint purchased downloadable products from Apple, paid

by credit card, and were required by Apple to give home addresses and telephone

numbers.

Section 1747.08’s predecessor was enacted in 1990 as former section 1747.8.

(Stats. 1990, ch. 999, § 1, p. 4191.) The Legislature has since then amended the statute

several times and renumbered it in 2004. (Stats. 2004, ch. 183, § 29, p. 981.) The statute

prohibits sellers from recording their credit-card-using customers’ “personal

identification information” (§ 1747.08, subd. (a)), such as the cardholder’s address and

telephone number (§ 1747.08, subd. (b)). It applies to any “person, firm, partnership,

association, or corporation that accepts credit cards for the transaction of business.”

(§ 1747.08, subd. (a).)

Apple filed a demurrer. A demurrer is, in essence, a request that the case be

dismissed because the facts alleged in the complaint are insufficient as a matter of law to

justify any relief. In this situation, “we review the allegations of the operative complaint

for facts sufficient to state a claim for relief.” (C.A. v. William S. Hart Union High

School Dist. (2012) 53 Cal.4th 861, 866.) In support of its demurrer, Apple argued that

section 1747.08 does not apply to Internet transactions, because the Internet as we know

it today did not exist in 1990 when the Legislature enacted the statutory provisions at

issue. Apple contended that the statute contemplates a transaction involving the physical

presentation of a credit card (or something similar) and the recording of data from that


3

card onto a paper credit card transaction form, neither of which is possible in a

transaction done electronically over the Internet.

In overruling Apple’s demurrer, the trial court said it was “not prepared, at the

pleading stage, to read [section 1747.08] as completely exempting online credit

transactions from its reach,” thus indicating that any ruling in Apple’s favor would

require a more developed factual record than what had been presented at that early stage

of the proceedings. Apple petitioned the Court of Appeal for a writ of mandate, which

the court summarily denied. This court then granted Apple’s petition for review.

II

Section 1747.08’s broad language (see p. 2, ante) applies to any “person, firm,

partnership, association, or corporation that accepts credit cards for the transaction of

business.” (§ 1747.08, subd. (a).) Apple comes within that definition. The Legislature

made some express exceptions in the statute (id., subd. (c)), but none pertains to a

categorical exemption for online transactions. Nevertheless, the majority here exempts

online sellers of downloadable products from complying with the statutory prohibition

against a seller’s recording of the personal identification information of its credit-card-

using customers. The majority reasons that the Legislature could not have intended

section 1747.08 to apply to such online sellers, and it repeatedly emphasizes the novelty

of Internet-based commerce. (See, e.g., maj. opn., ante, p. 11 [“We cannot assume that

the Legislature, had it confronted a type of transaction in which the standard mechanisms

for verifying a cardholder’s identity were not available, would have made the same policy

choice as it did with respect to transactions in which it found no tension between privacy

protection and fraud prevention.”]; id., p. 12 [“We cannot conclude that if the Legislature

in 1990 had been prescient enough to anticipate online transactions involving

electronically downloadable products, it would have intended section 1747.08(a)’s

prohibitions to apply to such transactions despite the unavailability of section

1747.08(d)’s safeguards.”]; id., p. 25 [“[W]e are unable . . . to conclude that the


4

Legislature in 1990 intended to bring the enormous yet unforeseen advent of online

commerce involving electronically downloadable products — and the novel challenges

for privacy protection and fraud prevention that such commerce presents — within the

coverage of the Credit Card Act.”].)

No significant difference exists between a purchase conducted over the Internet

and one conducted through the mail or by telephone. In both cases, the credit card is not

physically presented to the seller, who nevertheless has limited ways of confirming the

buyer’s identity. Also, in some mail and telephone sales (as with online sales of

downloadable products) the seller does not need the purchaser’s mailing address for

shipping purposes. Some examples: when the buyer has a gift sent to a third party’s

address, or pays for news, entertainment, or other information to be conveyed by

telephone. (See maj. opn., ante, p. 16.) Although modern-day Internet commerce did not

exist in 1990, when the statutory provisions at issue were enacted, by that time mail order

and telephone order transactions (hereafter also referred to as MOTO transactions) were

well established. (See, e.g., Winn, Clash of the Titans: Regulating the Competition

between Established and Emerging Electronic Payment Systems (1999) 14 Berkeley

Tech. L.J. 675, 688 (hereafter Winn) [“decades of MOTO transactions” preceded the

advent of Internet commerce].)

Jane K. Winn (the Charles I. Stone Professor at the University of Washington

School of Law) has written numerous academic publications on electronic commerce and

is considered a leading international authority in that field. In the article cited above,

Professor Winn observes that merchants who accepted credit cards as payment in mail

order and telephone order transactions developed “sophisticated security systems . . . to

keep fraud and error losses to a minimum” (Winn, supra, at p. 688), thus accommodating

the desire of these merchants to conduct business remotely. After the Internet’s

emergence, the same antifraud practices that had applied to mail order and telephone


5

order transactions were “transferred [to the Internet] to manage risks with Internet-based

commerce.” (Ibid.)

The Law Revision Commission’s comment on Evidence Code section 450 allows

reliance on academic publications like Professor Winn’s article: “Under the Evidence

Code, as under existing law, courts may consider whatever materials are appropriate in

construing statutes . . . . That a court may consider legislative history, discussions by

learned writers in treatises and law reviews, materials that contain controversial

economic and social facts or findings or that indicate contemporary opinion, and similar

materials is inherent in the requirement that it take judicial notice of the law. In many

cases, the meaning and validity of statutes . . . can be determined only with the help of

such extrinsic aids. . . .” (Italics added.)2

Although Professor Winn’s factual assertions are not part of the meager record

before us, further development of the factual record could establish those assertions

beyond question. By holding in Apple’s favor and ending the litigation, the majority

precludes such further development of the record.

Succinctly put, the similarity between online transactions and mail order or

telephone order transactions belies the majority’s insistence that its holding exempting

online sellers such as Apple from compliance with section 1747.08 is necessary to protect

these sellers from consumer fraud. 2 I note the majority’s reliance on assertions of fact in various publications. (See maj. opn., ante, p. 6, citing Frischmann, Privatization and Commercialization of the Internet Infrastructure: Rethinking Market Intervention into Government and Government Intervention into the Market (2001) 2 Colum. Sci. & Tech. L.Rev. 1, 20; maj. opn., ante, pp. 24-25, citing New Models of NeXT Computer Lauded; Users, Analysts Praise Changes in Hardware, Software, Rocky Mountain News (Sept. 23, 1990) p. B8, Isaacson, Steve Jobs (2011) pp. 211–237, 293–294, and Gobry, Apple Will Generate $13 Billion in iTunes Revenue in 2013, Says Analyst, Business Insider, July 5, 2011 <http://www.businessinsider.com/apple-itunes-revenue-2013-2011-7> [as of February 4, 2013].)


6

The majority’s focus on fraud protection for sellers is at odds with this court’s

recent statement in Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 524 that

section 1747.08’s “overriding purpose was to ‘protect the personal privacy of consumers

who pay for transactions with credit cards.’ [Citation.]” (Pineda, supra, at p. 534, italics

added.) That “robust” consumer protection (id. at p. 536), at the heart of section 1747.08,

is now largely relegated to the dust heap. As a result of the majority’s decision, online

sellers of downloadable products can collect unlimited personal information concerning

their credit-card-using customers and sell that information to, or share it with, other

companies, which, for marketing purposes, can then construct detailed consumer profiles.

The majority concedes that “[t]he Legislature may believe [existing privacy protections]

are inadequate and, if so, may enact additional protections” (maj. opn., ante, p. 2), but the

majority overlooks the fact that the Legislature already did enact additional protections.

It enacted section 1747.08. The majority eviscerates those protections by rejecting the

plain meaning of the statute. The majority’s policy-driven construction of the statute

contradicts its claim that “[i]t is not our role to opine on this important policy issue” (maj.

opn., ante, p. 3) and “we express no view on this significant issue of public policy” (id.,

p. 25).

Moreover, application of section 1747.08 to sellers of downloadable products

would not prevent these sellers from taking protective measures against fraud. Because

of the remote nature of the Internet transaction, the buyer cannot physically present a

credit card to the seller. This is why in that situation the seller is expressly permitted

under the second sentence of section 1747.08’s subdivision (d), added in 1995, to record

the number appearing on the buyer’s driver’s license or similar identification.3 And a

different provision of the same statute allows online sellers of downloadable products to 3 This statutory provision indicates that, contrary to the majority’s assertion, section 1747.08 was intended to apply to remote transactions, not just face-to-face transactions.


7

collect personal identification information about a cardholder if “contractually obligated”

to do so (§ 1747.08, subd. (c)(3)(A)), thus providing another layer of protection against

fraud — depending on the terms of the contracts between the seller, the payment

processor, the merchant bank, and the bank that issued the credit card.4

A final point: The majority states that when the Legislature wants to regulate

online businesses, it must do so expressly, as it did in the California Online Privacy

Protection Act of 2003. (Maj. opn., ante, p. 23.) Under that reasoning, the civil rights

protections of the Unruh Civil Rights Act (§ 51) would not apply to online businesses

because that act does not refer to those businesses expressly; similarly, under the

majority’s reasoning the Commercial Code would not apply to online businesses because

the code does not mention those businesses expressly.

III

As noted (see p. 6, ante), this court recently held unanimously that the

Legislature’s “overriding” purpose in enacting section 1747.08’s prohibition against a

seller’s recording of a credit-card-using customer’s personal identification information

was to protect a consumer’s right to privacy. (Pineda v. Williams-Sonoma Stores, Inc.,

supra, 51 Cal.4th at p. 534.) Whether to limit or to broaden that right is a power that

belongs exclusively to the Legislature. The majority here trespasses upon the

Legislature’s domain by going far beyond the statute’s plain language in order to

4 The majority notes that real party in interest Krescent’s complaint alleges that Apple is not contractually obligated to collect personal identification information. (Maj. opn., ante, p. 15.) True. But the question here is not whether Apple availed itself of the fraud-prevention provisions that the statute offers; rather, the question is whether the statute offers some fraud-prevention possibilities. Therefore, that specific allegation of the complaint is not relevant here. That Apple has voluntarily chosen to do business in a way that precludes it from using the antifraud provisions that the Legislature has provided cannot support the majority’s justification for a general exemption from the statute.


8

judicially graft upon the statute an exemption for online sellers such as Apple so they

need not comply with section 1747.08. Unlike the majority, I would affirm the Court of

Appeal’s judgment summarily denying the petition for writ of mandate, thus upholding

the trial court’s overruling of Apple’s demurrer.

KENNARD, J.

WE CONCUR:

BAXTER, J. JONES, J.*

* Presiding Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.


1

DISSENTING OPINION BY BAXTER, J.

I respectfully dissent.

Section 1747.08 of the Civil Code1 was enacted to prevent any retailer such as

defendant Apple Inc. from collecting and exploiting the personal identification

information of consumers who use credit cards to make their purchases. Plaintiff’s

complaint sufficiently states a cause of action under this statute: it alleges that defendant

required and recorded plaintiff’s address and telephone number as a condition to his

online purchases of electronically downloadable products, and that defendant’s actions

were not otherwise permitted by the statute. In holding to the contrary, the majority

relies on speculation and debatable factual assumptions to carve out an expansive

exception to section 1747.08 that leaves online retailers free to collect and use the

personal identification information of credit card users as they wish.

I.

Because this case comes to us on a demurrer, “we review the allegations of the

operative complaint for facts sufficient to state a claim for relief. In doing so, we treat

the demurrer as admitting all material facts properly pleaded. ‘ “Further, we give the

complaint a reasonable interpretation, reading it as a whole and its parts in their

context.” ’ [Citations.]” (C.A. v. William S. Hart Union High School Dist. (2012) 53

Cal.4th 861, 866.)

1 All further statutory references are to this code unless otherwise indicated.


2

Plaintiff seeks statutory penalties for defendant’s alleged violations of section

1747.08, a statute enacted to “ ‘protect the personal privacy of consumers who pay for

transactions with credit cards.’ ” (Pineda v. Williams-Sonoma Stores, Inc. (2011) 51

Cal.4th 524, 534 (Pineda); see Archer v. United Rentals, Inc. (2011) 195 Cal.App.4th

807, 827.) Subdivision (a) of section 1747.08 (section 1747.08(a)) provides: “Except as

provided in subdivision (c), no person, firm, partnership, association, or corporation that

accepts credit cards for the transaction of business shall do any of the following: [¶] . . .

[¶] (2) Request, or require as a condition to accepting the credit card as payment in full or

in part for goods or services, the cardholder to provide personal identification

information, which the . . . corporation accepting the credit card . . . records upon the

credit card transaction form or otherwise.” For purposes of the statute, subdivision (b) of

section 1747.08 (section 1747.08(b)) defines “personal identification information” as

“information concerning the cardholder, other than information set forth on the credit

card, and including, but not limited to, the cardholder’s address and telephone number.”

Subdivision (c) of section 1747.08 (section 1747.08(c)) states in pertinent part that

section 1747.08(a) does not apply if, among other things, the person or entity accepting

the credit card is contractually obligated to provide personal identification information in

order to complete the credit card transaction (§ 1747.08(c)(3)(A)), or is obligated by

federal or state law or regulation to collect and record such information

(§ 1747.08(c)(3)(C)), or requires the information “for a special purpose incidental but

related to the individual credit card transaction, including, but not limited to, information

relating to shipping, delivery, servicing, or installation of the purchased merchandise, or

for special orders” (§ 1747.08(c)(4)).

Plaintiff’s complaint contains the following allegations, some of which are based

on information and belief. Plaintiff purchased media downloads from defendant on

various occasions in 2010. Defendant’s Web site would not permit plaintiff to obtain his

purchases by credit card unless he first provided his telephone number and address. Such


3

personal information was not required by the credit card processing company to complete

the transaction. But even if the credit card processing company required a valid billing

address and credit card identification number, under no circumstance would plaintiff’s

telephone number be required to complete the purchase transaction. Defendant “records

each consumer’s personal information, including, but not limited to a telephone number

and address, in line with each credit card transaction, and keeps records of such personal

information.” Defendant “is not contractually obligated to provide a consumer’s

telephone number and/or address in order to complete the credit card transaction,” nor is

defendant required to record such personal information under federal or state law or

regulation or for any incidental purpose such as shipping.

Assuming the truth of these allegations, they establish that defendant required and

recorded plaintiff’s personal identification information when plaintiff used his credit card

to make purchases, and that none of the exceptions listed in section 1747.08(c) applied, at

least as to some of the information taken. Accordingly, plaintiff’s complaint adequately

states a cause of action for violation of section 1747.08.

II.

The majority implicitly agrees that defendant’s conduct falls within the plain terms

of section 1747.08(a). (See maj. opn., ante, at p. 7.) The majority holds, however, that

plaintiff was not entitled to protection of his personal identification information because

online credit card purchases of electronically downloadable products are categorically

exempt from the statute’s application. (Maj. opn., ante, at pp. 2, 12, 26.) Although

recognizing this is a question of statutory construction, the majority reaches a result that

is contrary to the terms, purpose, and legislative history of section 1747.08.

The rules governing statutory construction are uncomplicated and settled. When

construing a statute, our goal “is to ascertain the intent of the lawmakers so as to

effectuate the purpose of the statute.” (Estate of Griswold (2001) 25 Cal.4th 904, 910.)

We look first to the language of the statute, mindful that the words “ ‘ “should be given


4

the meaning they bear in ordinary use. [Citations.]” ’ ” (Dicampli-Mintz v. County of

Santa Clara (2012) 55 Cal.4th 983, 992.) Judicial construction, and judicially crafted

exceptions, are appropriate only when literal interpretation of a statute would yield

absurd results or implicate due process. (Cassel v. Superior Court (2011) 51 Cal.4th 113,

124; In re C.H. (2011) 53 Cal.4th 94, 107.) Otherwise, a statute “must be applied in strict

accordance with [its] plain terms.” (Cassel, at p. 124.) “ ‘ “Only when the statute’s

language is ambiguous or susceptible of more than one reasonable interpretation, may the

court turn to extrinsic aids to assist in interpretation.” [Citation.]’ ” (In re Ethan C.

(2012) 54 Cal.4th 610, 627.) Under no circumstance, however, may the court “ ‘under

the guise of construction, rewrite the law or give the words an effect different from the

plain and direct import of the terms used.’ [Citation.]” (Dicampli-Mintz, at p. 992.) In

this regard, the court “ ‘ “must assume that the Legislature knew how to create an

exception if it wished to do so . . . . [Citation.]” ’ ” (Ibid.)

Section 1747.08(a) contains language broadly stating that “no person, firm,

partnership, association, or corporation that accepts credit cards” shall request or require

the cardholder to provide personal identification information and cause it to be recorded.

Section 1747.08(a) flatly states its proscriptions shall apply “[e]xcept as provided in

subdivision (c).” Section 1747.08(c) lists various business-related reasons for which the

requesting, requiring, or recording of personal identification information does not violate

section 1747.08(a). Virtually all of these exceptions could apply either in online credit

card purchase transactions, or in face-to-face purchase transactions occurring at brick-

and-mortar establishments.2 There is nothing in subdivision (a), (b), or (c) suggesting a

2 E.g., section 1747.08(c)(1) (credit card used as deposit to secure payment); section 1747.08(c)(2) (cash advance transactions); section 1747.08(c)(3)(A) (personal identification information contractually required to complete the credit card transaction); section 1747.08(c)(3)(C) (information required by federal or state law or regulation);

(footnote continued on next page)


5

literal construction of section 1747.08 would implicate due process or result in absurd

consequences.

Subdivision (d) of section 1747.08 (section 1747.08(d)) lists one additional

proviso to the statute’s application. It clarifies that no person or entity subject to the

statutory proscriptions is prohibited “from requiring the cardholder, as a condition to

accepting the credit card as payment in full or in part for goods or services, to provide

reasonable forms of positive identification,” such as a driver’s license or other form of

photo identification, “provided that none of the information contained thereon is written

or recorded.” (Ibid.) Section 1747.08(d) further provides that if the cardholder uses a

credit card number to pay for the transaction without making the “card available upon

request to verify the number, the cardholder’s driver’s license number or identification

card number may be recorded.” Unlike section 1747.08(c), section 1747.08(d) makes no

allowance for the recording of a cardholder’s address or telephone number. Instead, it

permits retailers to require presentment of reasonable forms of positive identification, and

when the credit card itself is not made available, to write down a license number or other

photo identification card number.

Had section 1747.08(d) been written to require retailers to demand and visually

inspect a cardholder’s driver’s license or other photo identification card as a condition of

accepting a credit card, then one might reasonably infer the proscriptions of section

1747.08(a) could have no application to online credit card transactions given the asserted

impossibility of complying with the statutory commands. As it stands, however, section

1747.08(d) is merely permissive and thus poses no barrier or difficulty to an online

(footnote continued from previous page)

section 1747.08(c)(4) (information necessary for special purpose incidental but related to the individual credit card transaction, such as shipping, servicing, or installation).


6

retailer’s compliance with the entirety of the statute. Moreover, section 1747.08(d) does

not, in any event, permit the recording of addresses or telephone numbers for card-not-

present purchases at brick-and-mortar establishments.3 Finally, there is nothing in this or

any other subdivision in section 1747.08 that requires retailers, of any sort, to accept

credit cards for purchases when they deem the risk of fraud or identity theft unacceptable.

Hence, the statutory terms reflect a legislative determination that heightened privacy

interests in personal information such as addresses and telephone numbers outweigh the

necessity or usefulness of such information for any supposed fraud prevention purpose in

card-not-present transactions.

In sum, applying section 1747.08(a) to online retailers flows logically from the

plain meaning of the statute, is not absurd, and fully promotes the legislative objective to

protect the personal identification information of credit card users against exploitation by

retailers. Under these circumstances, we are bound to construe section 1747.08 “in strict

accordance with [its] plain terms.” (Cassel v. Superior Court, supra, 51 Cal.4th at p.

124.)

Undeterred by the plain language of section 1747.08, the majority emphasizes the

substantive provisions of section 1747.08 were first enacted “almost a decade before

online commercial transactions became widespread.” (Maj. opn., ante, at p. 6.) From

this the majority posits “[w]e cannot assume that the Legislature, had it confronted a type

of transaction in which the standard mechanisms for verifying a cardholder’s identity

were not available, would have made the same policy choice as it did with respect to

transactions in which it found no tension between privacy protection and fraud

prevention.” (Id. at p. 11.) The majority views section 1747.08(d) as demonstrating “the

3 Consistent with this conclusion, the majority concedes “section 1747.08(d) does not permit Apple to collect a billing address in the course of an online transaction.” (Maj. opn., ante, at p. 14.)


7

Legislature’s intent to permit retailers to use and even record personal identification

information when necessary to combat fraud and identity theft” (maj. opn., ante, at p. 12),

but finds such provision has no application to online transactions because “an online

retailer cannot visually inspect the credit card, the signature on the back of the card, or

the customer’s photo identification” (ibid.). According to the majority, the Legislature

did not intend for section 1747.08 to apply to online credit card transactions, “[b]ecause

the statutory scheme provides no means for online retailers . . . to protect against credit

card fraud . . . .” (Maj. opn., ante, at pp. 15-16.)

Even assuming resort to extrinsic aids is appropriate, the majority bases its

construction of section 1747.08 on two critical, but flawed, assumptions. The first

assumption is that the legislative intent underlying the statute is not limited to protecting

consumer privacy, but also extends to protecting consumers and retailers from “undue

risk of fraud.” (Maj. opn., ante, at p. 10.) The second is a factual assumption — that the

personal identification information defendant allegedly demanded and recorded here, i.e.,

cardholder addresses and telephone numbers, are “necessary to combat fraud and identity

theft” in online credit card transactions. (Maj. opn., ante, at p. 12.) As demonstrated

below, there is no legislative source to support the former assumption, and no factual

basis in the complaint or judicially noticeable materials to support the latter.

The language of section 1747.08 reflects its underlying purpose is to safeguard

consumer privacy by prohibiting any person or entity from requiring, requesting, or

recording personal identification information when such information is unnecessary to

complete a credit card transaction. That section 1747.08 has no primary antifraud

purpose is demonstrated by its terms: the statute does not purport to require retailers to

take antifraud measures; nor does it condition its protections on a retailer’s ability to

protect against credit card fraud.

The legislative history is in accord. As we recently explained in our unanimous

opinion in Pineda, supra, 51 Cal.4th 524, the Legislature enacted the predecessor to


8

section 1747.08 in order “to provide robust consumer protections by prohibiting retailers

from soliciting and recording information about the cardholder that is unnecessary to the

credit card transaction.” (Pineda, at p. 536.) The precise concern prompting the

Legislature’s action was that retailers were acquiring this additional but unnecessary

personal information “ ‘for their own business purposes — for example, to build mailing

and telephone lists which they can subsequently use for their own in-house marketing

efforts, or sell to direct-mail or tele-marketing specialists, or to others.’ ” (Id. at pp. 534-

535.)4

Significantly, neither Pineda nor the legislative history itself mentions a legislative

intent to protect retailers from undue risk of fraud. That is not surprising, because the

Legislature enacted the consumer privacy protections with the understanding that a

retailer was not put at risk of loss from fraud, so long as the retailer complied with the

card issuer’s operating procedures for credit card transactions. (See Dept. of Consumer

Affairs, Enrolled Bill Rep. on Assem. Bill No. 2920 (1989-1990 Reg. Sess.) July 21,

1990, p. 2 (Enrolled Bill Report) [“the credit card issuer guarantees payment to the

retailer if proper procedures are followed (even if the consumer does not pay the credit

card company)”].) Thus, notwithstanding counsel’s factual assertions at oral argument

(see maj. opn., ante, at p. 13), the relevant legislative history undercuts the majority’s

theory that retailer protection was a principal objective of section 1747.08.

Although the legislative history discloses a concern about credit card fraud, such

concern pertained specifically to the circumstance that recordation of unnecessary

personal information posed a fraud risk to the cardholder, not the retailer, because the

information could be used “in conjunction with the credit card number to order goods by

4 At this stage in the proceedings, defendant has not filed an answer or given an explanation as to why it collects the addresses and telephone numbers of cardholders and what it does with such information.


9

phone or mail and charge it to the cardholder” or “to apply for other sources of credit in

the cardholder’s name.” (Enrolled Bill Rep., supra, at p. 2 [“By the time the subterfuge

is discovered, the consumer’s credit and credit history could be severely damaged.”].)

Yet, despite this awareness in 1990 that credit cards were being used to “order goods by

phone or mail” (ibid.), the Legislature provided no exception to section 1747.08’s

applicability for mail order and telephone order (MOTO) purchases.

Like retailers that accept credit cards for online purchases, those that accept credit

cards for MOTO transactions have no opportunity to visually inspect a driver’s license or

other forms of photo identification as allowed by section 1747.08(d). That online and

MOTO retailers appear similarly situated in this regard renders implausible the majority’s

theory that the Legislature would not have intended “section 1747.08(a)’s prohibitions to

apply to [online] transactions despite the unavailability of section 1747.08(d)’s

safeguards.” (Maj. opn., ante, at p. 12.) The majority offers no reason, cogent or

otherwise, why the Legislature, having enacted section 1747.08’s privacy protections

without an exception for MOTO transactions, would not also contemplate applicability of

the statutory protections to other card-not-present transactions such as those occurring

online.

The majority additionally views section 1747.08(d) as demonstrating “the

Legislature’s intent to permit retailers to use and even record personal identification

information when necessary to combat fraud and identity theft.” (Maj. opn., ante, at p.

12, italics added.) But again, neither the language nor the history of section 1747.08

indicates this to be the case, and we may assume the Legislature knew how to create such

an exception had it intended to do so. (Dicampli-Mintz v. County of Santa Clara, supra,

55 Cal.4th at p. 992.) In any event, this matter comes to us on a demurrer, and there is

nothing in the record from which we may discern that both cardholder addresses and

telephone numbers are necessary to combat online fraud and identity theft. Because the

necessity issue is a factual one that appears open to reasonable debate, it seems a


10

particularly inappropriate basis for sustaining a demurrer and judicially limiting the plain

reach of section 1747.08.

Finally, the majority views the enactment of the California Online Privacy

Protection Act of 2003 (Bus. & Prof. Code, § 22575 et seq.; COPPA) as signifying that

“when the Legislature intends to address online transactions, it does so unambiguously.”

(Maj. opn., ante, at p. 23.) This conclusion appears incongruous with the majority’s

express acknowledgement that courts do not rely on “wooden construction of [statutory]

terms” when “construing statutes that predate their possible applicability to new

technology.” (Id. at pp. 7-8; see also id. at p. 8 [“ ‘Drafters of every era know that

technological advances will proceed apace and that the rules they create will one day

apply to all sorts of circumstances they could not possibly envision.’ ”]; e.g., O’Grady v.

Superior Court (2006) 139 Cal.App.4th 1423 [holding that petitioners’ Web sites qualify

as periodical publications under the California reporter’s shield law].)

COPPA’s disclosure requirements do nothing to restrict an online retailer’s use of

a consumer’s personal identification information; nor do they prevent the sharing or sale

of such information. True, consumers who are not satisfied with a retailer’s posted

privacy policy may always decline to purchase the retailer’s products. But today’s

decision deprives consumers of section 1747.08’s additional safeguards, which in

contrast to COPPA make retailers bear the burden of privacy protection. The majority’s

interpretation of section 1747.08 foists this burden onto consumers, leaving consumers

unable to freely use their credit cards for online purchases without surrendering their

personal identification information.

III.

Pure and simple, a literal interpretation of section 1747.08 that includes online

credit card transactions within its scope promotes the Legislature’s intent to scrupulously

protect the privacy of credit card users and is not absurd. This interpretation is also

consistent with our unanimous opinion in Pineda, supra, 51 Cal.4th 524, which


11

recognized that section 1747.08’s “overriding purpose was to ‘protect the personal

privacy of consumers who pay for transactions with credit cards’ ” (Pineda, at p. 534)

and “to provide robust consumer protections by prohibiting retailers from soliciting and

recording information about the cardholder that is unnecessary to the credit card

transaction” (id. at p. 536). I see no reason to depart from Pineda’s conclusion that

protecting consumer privacy is the “evident purpose of the statute.” (Ibid.)

If defendant and other retailers wish to demonstrate that section 1747.08 is ill-

suited to the online industry because the collection of personal identification information

presently serves a valid antifraud function, they may make their case to the Legislature.

Unlike this court, the Legislature would have the opportunity to take evidence on the

issue, to weigh the antifraud utility of such information against the potential of its misuse

and exploitation, and, if appropriate, to craft a balanced statutory exception that preserves

the privacy interests of consumers while responding to legitimate antifraud and identity

theft concerns of online retailers. Unfortunately, today’s decision relies on speculation

and debatable factual assumptions to wholly strip online credit card users of the statutory

consumer privacy protections, leaving online retailers free to require personal

identification information as a condition of credit card acceptance and to use such

information for whatever purposes they wish. Rather than fashioning such an expansive

exception to section 1747.08, this court should have given effect to its plain terms and

left it to the Legislature to address defendant’s claims of competing policy interests.

BAXTER, J.

WE CONCUR:

KENNARD, J. JONES, J.* ________________ * Presiding Justice, Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Apple, Inc. v. Superior Court__________________________________________________________________________________

Unpublished OpinionOriginal AppealOriginal Proceeding XXX Review GrantedRehearing Granted

__________________________________________________________________________________

Opinion No. S199384 Date Filed: February 4, 2013 __________________________________________________________________________________

Court: Superior County: Los Angeles Judge: Carl J. West

__________________________________________________________________________________

Counsel:

Gibson, Dunn & Crutcher, Daniel M. Kolkey, S. Ashlie Beringer, Austin V. Schwing, Timothy W. Loose and Molly Cutler for Petitioner.

Willenken Wilson Loh & Delgado, William A. Delgado and Eileen M. Ahern for Ticketmaster LLC as Amicus Curiae on behalf of Petitioner.

Drinker Biddle & Reath, Sheldon Eisenberg and Kristopher Davis for eHarmony, Inc., as Amicus Curiae on behalf of Petitioner.

Sidley Austin, Mark E. Haddad, David R. Carpetner; Paul Hastings, Thomas P. Brown and Kristin M. Hall for eBay, Inc., Walmart.com USA, LLC, California Retailers Association and NetChoice as Amici Curiae on behalf of Petitioner.

No appearance for Respondent.

Schreiber & Schreiber, Edwin C. Schreiber and Eric A. Schreiber for Real Party in Interest.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Daniel M. Kolkey Gibson, Dunn & Crutcher 555 Mission Street, Suite 3000 San Francisco, CA 94105 (415) 393-8200

Eric A. Schreiber Schreiber & Schreiber 16501 Ventura Boulevard, Suite 401 Encino, CA 91436-2068 (818) 789-2577


Attachment IV

1

STATE OF MINNESOTA

IN SUPREME COURT

A09-1335

Court of Appeals Dietzen, J. Dissenting, Meyer, Page, and Anderson, Paul H., JJ.

Alice Ann Staab, Appellant, vs. Filed: April 18, 2012 Office of Appellate Courts Diocese of St. Cloud,

Respondent.

________________________

Kevin S. Carpenter, Carpenter Injury Law Office, St. Cloud, Minnesota; and H. Morrison Kershner, Pemberton, Sorlie, Rufer & Kershner, PLLP, Fergus Falls, Minnesota, for appellant. Dyan J. Ebert, Laura A. Moehrle, Quinlivan & Hughes, P.A., St. Cloud, Minnesota, for respondent. Richard J. Thomas, Bryon G. Ascheman, Corinne Ivanca, Burke & Thomas, PLLP, St. Paul, Minnesota, for amicus curiae Minnesota Defense Lawyers Association.

________________________

S Y L L A B U S

When a jury attributes 50% of the negligence that caused a compensable injury to

the sole defendant in a civil action and 50% to a nonparty to the lawsuit, Minn. Stat.


2

§ 604.02, subd. 1 (2010), requires that the defendant contribute to the award only in

proportion to the fault attributed to the defendant by the jury.

Affirmed and remanded.

O P I N I O N

DIETZEN, Justice.

This appeal requires us to interpret the meaning of Minn. Stat. § 604.02, subd. 1

(2010), to determine whether a defendant must pay an entire damages award when a

special jury verdict attributes 50% of the negligence to the sole defendant and 50% of the

negligence to a nonparty to the lawsuit. Appellant Staab brought suit against respondent

Diocese of St. Cloud for injuries she sustained on premises it owned and operated. The

district court ruled that Minn. Stat. § 604.02, subd. 1, does not apply in an action against

only one defendant and ordered the defendant to pay the entire damages award. The

court of appeals reversed, holding that under the plain language of section 604.02,

subdivision 1, the defendant must pay only in proportion to the percentage of fault

attributed to the defendant by the jury. We affirm the court of appeals under a different

analysis and remand to the district court to enter judgment in favor of appellant consistent

with this opinion.

According to the complaint, on April 9, 2005, appellant Alice Ann Staab and her

husband, Richard Staab, attended a social event at the Holy Cross Parish School in

Kimball, Minnesota. The school is owned and operated by respondent Diocese of

St. Cloud’s Holy Cross Parish. Appellant relies on a nonmotorized wheelchair for

mobility. As appellant was leaving the school, Richard Staab pushed her wheelchair


3

through an open doorway, and the wheelchair went over what has been described as an

unmarked 5-inch drop-off. Appellant fell forward out of her wheelchair onto a cement

sidewalk and was injured as a result of her fall.

After her fall, appellant brought an action against the Diocese, alleging that the

Diocese failed to use reasonable care to protect her from an unreasonable risk of harm

caused by the conditions at the school. Richard Staab was not named as a party to the

lawsuit by the appellant or the respondent. The matter proceeded to a jury trial.

Respondent requested and the district court approved a special verdict form that asked the

jury to separately determine whether the Diocese was negligent when appellant was

injured and, if so, whether the negligence of the Diocese directly caused appellant’s

injuries. Similarly, the jury was asked to determine whether Richard Staab was negligent

when appellant was injured and, if so, whether the negligence of Richard Staab directly

caused appellant’s injuries. Finally, the special verdict form asked the jury to attribute to

the Diocese and to Richard Staab a percentage of the negligence that directly caused

appellant’s injuries.

The jury found that the Diocese and Richard Staab each were negligent and that

the negligence of each directly caused appellant’s injuries. The jury attributed 50% of

the negligence that directly caused appellant’s injuries to the Diocese and 50% to Richard

Staab. The jury awarded compensatory damages of $224,200.70: $50,000 for past pain,

disability, disfigurement, embarrassment, and emotional distress; and $174,200.70 for

past health care expenses. The district court adopted the special verdict as its findings of

fact, concluded that appellant was entitled to judgment against the Diocese in the amount


4

of $224,200.70, and ordered entry of judgment for $224,200.70 plus costs and

disbursements.

The Diocese moved for amended findings of fact, conclusions of law, and

judgment, asking the district court to reduce the judgment against the Diocese to 50% of

the damages award. The Diocese argued that Minn. Stat. § 604.02, subd. 1, limits the

liability of the Diocese to the percentage of fault attributed to it by the jury. The district

court denied the motion. The court concluded that because subdivision 1 addresses

contributions to awards “[w]hen two or more persons are severally liable,” it did not

apply in this case because “[l]iability arises only where there is a judgment. In this case,

Richard Staab was not a party in the lawsuit and therefore cannot be held liable.” As a

result, the district court held the Diocese responsible to pay all of the $224,200.70 award.

The Diocese appealed, and the court of appeals reversed. Staab v. Diocese of

St. Cloud, 780 N.W.2d 392, 396 (Minn. App. 2010). The court observed that “the statute

is not a model of clarity,” but concluded that requiring the Diocese to pay 100% of the

damages award “does not comport with the plain language” of subdivision 1. Id.

According to the court, the Diocese and Richard Staab are each “persons” within the

meaning of the statute, and “[u]nder the plain language of the statute, they are ‘each’ to

‘contribute’ to the damages ‘award’ ‘in proportion to the percentage of fault attributable

to each.’ ” Id. at 394. Therefore, the court concluded that the Diocese is severally liable

for 50% of the damages award. Id. We granted appellant’s petition for further review.


5

I.

This appeal presents the court with its first opportunity to interpret Minn. Stat.

§ 604.02, subd. 1, as amended by the Legislature in 2003. At issue in this appeal is

whether the sole defendant, the Diocese of St. Cloud, although found by the jury to be

only 50% at fault, must pay 100% of the $224,200.70 jury award because Staab elected

not to join her husband as a defendant.1 The outcome turns on whether Minn. Stat.

§ 604.02, subd. 1, is interpreted to require that a sole defendant in a lawsuit is liable for a

nonparty’s liability.

The goal of all statutory interpretation is to “ascertain and effectuate the intention

of the legislature.” Minn. Stat. § 645.16 (2010); Brayton v. Pawlenty, 781 N.W.2d 357,

363 (Minn. 2010). We give words and phrases in a statute their plain and ordinary

meanings, and “technical words and phrases . . . are construed according to [their] special

meaning or their definition.” Minn. Stat. § 645.08(1) (2010); accord Amaral v. Saint

Cloud Hosp., 598 N.W.2d 379, 384 (Minn. 1999). Further, we construe the statute to

give effect to all its provisions. Minn. Stat. § 645.16.

Our first step in interpreting a statute is to examine the statutory language to

determine whether the words of the law are clear and free from all ambiguity. Id. The

words are not free from ambiguity if, as applied to the facts of the particular case, they

1 In Minnesota, the doctrine of interspousal immunity no longer presents a bar to an action in negligence between a husband and wife. Beaudette v. Frana, 285 Minn. 366, 173 N.W.2d 416 (1969) (abrogating interspousal immunity for actions in tort); see also Barile v. Anderson, 295 Minn. 152, 203 N.W.2d 366 (1972) (rejecting interspousal immunity as a defense to a negligence action brought by husband against wife).


6

are susceptible to more than one reasonable interpretation. See Amaral, 598 N.W.2d at

384. If the words are free of all ambiguity, we apply the statutory language. See Minn.

Stat. § 645.16. If the words are not free of ambiguity, the court may look beyond the

statutory language to ascertain the Legislature’s intent. Id.

Generally, statutes in derogation of the common law are strictly construed.

Rosenberg v. Heritage Renovations, LLC, 685 N.W.2d 320, 327 (Minn. 2004).

Therefore, we presume that statutes are consistent with the common law, In re Shetsky,

239 Minn. 463, 469, 60 N.W.2d 40, 45 (1953), and do not presume that the Legislature

intends to abrogate or modify a common law rule except to the extent expressly declared

or clearly indicated in the statute, Do v. Am. Family Mut. Ins. Co., 779 N.W.2d 853, 858

(Minn. 2010). It is undisputed that Minn. Stat. § 604.02 was intended to modify the

common law rule of joint and several liability in Minnesota. Thus, we must carefully

examine the express wording of the statute to determine the nature and extent to which

the statute modifies the common law. See id.

II.

Minnesota Statutes § 604.02, subd. 1, states:

When two or more persons are severally liable, contributions to awards shall be in proportion to the percentage of fault attributable to each, except that the following persons are jointly and severally liable for the whole award:

(1) a person whose fault is greater than 50 percent; (2) two or more persons who act in a common scheme or plan that results in injury; (3) a person who commits an intentional tort; or


7

(4) a person whose liability arises under [certain environmental laws].

The language of subdivision 1 presents two fundamental challenges that must be

resolved in order to ascertain its meaning. First, subdivision 1 does not explain the

meaning of “[w]hen,” that is, the point in time the statute is applicable to determine

whether “persons are severally liable.” Specifically, subdivision 1 does not explain

whether liability for purposes of the statute is determined at the time the tort is

committed, at the time of judgment in a civil action, or at some other point in time. The

answer to the question of when liability is determined for purposes of the statute directly

impacts whether a sole defendant in a lawsuit must pay more than its equitable share of a

judgment as measured by the percentage of fault apportioned to it by the jury. Thus, in

order to interpret the statutory phrases “persons are severally liable” and “persons are

jointly and severally liable,” we must examine when “persons are . . . liable” at common

law and determine whether the statute modifies the common law rule.

At common law, “liability is created at the instant [a] tort is committed.” White v.

Johnson, 272 Minn. 363, 371, 137 N.W.2d 674, 679 (1965), overruled on other grounds

by Tolbert v. Gerber Indus., Inc., 255 N.W.2d 362, 368 n.11 (Minn. 1977) (adopting

comparative fault contribution). Under Minnesota common law, “persons are . . . liable”

at the instant those persons’ acts cause injury to a victim. Applying the common law, a

tortfeasor’s liability exists prior to and independent of any claim or civil action that arises

from that liability; hence, a judgment on a plaintiff’s cause of action in tort in a civil

action enforces that liability only against the defendant or defendants who are parties to


8

the civil action.2 Moreover, the language of section 604.02 provides no clear indication

that it modifies the common law rule regarding the time of creation of tort liability.

Subdivision 1 therefore cannot be read to indicate that “persons are . . . liable” as a result

of the jury’s apportionment of fault because those “persons” are already liable at the time

the tort was committed.

Second, the statute does not define the phrases “severally liable” and “jointly and

severally liable.” Each phrase does, however, have a special meaning at common law.

Pursuant to the canons of construction, words and phrases that have acquired a special

meaning or definition are construed according to their special meaning or definition.

Minn. Stat. § 645.08(1). Consequently, we must examine the meanings of “several

liability” and “joint and several liability” in the common law and determine whether

those phrases have acquired a special meaning or definition, and if so, interpret those

phrases according to such special meaning or definition.

Pursuant to Minnesota common law, “several liability” means “[l]iability that is

separate and distinct from another’s liability, so that the plaintiff may bring a separate

action against one defendant without joining the other liable parties.” Black’s Law

Dictionary 998 (9th ed. 2009). Moreover, whether a person is “[an]other liable part[y]”

for the purposes of several liability is a separate question from whether that person is

2 Thus, the district court was incorrect to conclude that “[l]iability arises only where there is a judgment.” Moreover, the court of appeals was incorrect to conclude that “both [tortfeasors] are ‘severally liable’ because they were found to share a portion of the fault.” Staab, 780 N.W.2d at 394 (emphasis added). Rather, the common law liability of the Diocese and appellant’s husband existed at the moment the tort was committed.


9

joined as a defendant in a plaintiff’s lawsuit. In contrast, “joint liability” is “[l]iability

shared by two or more parties.” Black’s Law Dictionary 997 (9th ed. 2009).

Additionally, at common law, tortfeasors whose concurrent negligence produces a single,

indivisible injury are jointly and severally liable to the person harmed. Flaherty v.

Minneapolis & St. Louis Ry. Co., 39 Minn. 328, 329, 40 N.W. 160, 160-61 (1888)

(adopting joint and several liability principles). Under the rule of joint and several

liability, a plaintiff may bring an action to hold any or all of the jointly and severally

liable tortfeasors liable for the entire harm. See Thorstad v. Doyle, 199 Minn. 543, 553,

273 N.W. 255, 260 (1937). A tortfeasor is “severally liable,” however, when that

person’s liability is separate from another person’s liability so that an injured person may

bring an action against one defendant without joining the other liable person. Pursuant to

the common law rules of joint and several liability and several liability, a plaintiff may

sue fewer than all of the tortfeasors who caused the harm. But the difference between the

two rules is that a “jointly and severally liable” defendant is responsible for the entire

award, whereas a “severally liable” defendant is responsible for only his or her equitable

share of the award.

More importantly, the common law provides that “two or more persons are

severally liable” at the instant multiple tortfeasors commit an act that causes a single,

indivisible injury to a plaintiff.3 See Flaherty, 39 Minn. at 329, 40 N.W. at 160-61

3 This is so because several liability is a component of joint and several liability. It is not logically possible for a tortfeasor to be jointly and severally liable without being

(Footnote continued on next page.)


10

(adopting joint and several liability principles); see also Spitzack v. Schumacher, 308

Minn. 143, 145, 241 N.W.2d 641, 643 (1976) (stating that joint liability “ ‘is created at

the instant the tort is committed’ ” (quoting White, 272 Minn. at 371, 137 N.W.2d at

679)); Emp’rs Mut. Cas. Co. v. Chicago, St. Paul, Minneapolis & Omaha Ry. Co., 235

Minn. 304, 309-10, 50 N.W.2d 689, 693 (1951) (stating that tortfeasors’ common liability

exists immediately after the acts which give rise to a cause of action against them).

Section 604.02 does not express an intent to modify the common law meaning of

“several liability” or “joint and several liability.” Additionally, the statute does not

express an intent to modify the common law rule that liability is created at the time a tort

is committed.4 Consequently, we conclude that the Legislature intended to adopt the

special meaning those phrases acquired at common law. The plain meaning of

subdivision 1 must be examined in light of the common law rules that a “severally liable”

defendant is responsible for his or her equitable share of an award, and that “several

liability” is determined at the time the tort is committed.

_____________________________________________________________________ (Footnote continued from previous page.) severally liable, so several liability for an indivisible harm necessarily arises at the same instant as joint and several liability for that harm. 4 The dissent correctly observes that cases stating and applying the rule regarding the time of creation of common (i.e., joint and several) liability involved disputes over contribution between jointly and severally liable tortfeasors. This observation has no bearing, however, on the validity of the rule that such liability arises at the time of commission of the tort, or on our conclusion that section 604.02, subdivision 1, incorporates and relies upon that rule to determine “[w]hen two or more persons are severally liable.”


11

A.

Subdivision 1 contains three additional words or phrases that are important to

understand its meaning. First, we examine the meaning of the word “persons.” The plain

and ordinary meaning of the word “persons” is very broad. See Black’s Law Dictionary

1257 (9th ed. 2009) (defining “person” as “[a] human being” or “[a]n entity . . . that is

recognized by law as having most of the rights and duties of a human being”); see also

American Heritage Dictionary 1310 (4th ed. 2006) (recognizing the legal definition of

“person” as “[a] human or organization with legal rights and duties”). We discern no

legislative intent to limit the word “persons” to the parties to the lawsuit. Had the

Legislature intended to do so, it could have done so expressly. Further, a broad

interpretation is consistent with the common law principle that several liability is

examined at the time the tort is committed. Therefore, we interpret the word “persons” to

mean not only “parties to the lawsuit,” as urged by appellant and the dissent, but also to

extend to the “parties to the transaction,” as urged by respondent.

Second, the next clause of subdivision 1 provides that “contributions to awards

shall be in proportion to the percentage of fault attributable to each.” Minn. Stat.

§ 604.02, subd. 1. We construe this clause to provide that the principle of several liability

limits the magnitude of a severally liable person’s contribution to an amount that is in

proportion to his or her percentage of fault, as determined by the jury. See Restatement

(Third) of Torts: Apportionment of Liability § 11 (2000) (“[An] injured person may

recover only the severally liable person’s comparative-responsibility share of the injured

person’s damages.”). We do not read this clause to mandate contribution from a


12

severally liable person who is not a party to the lawsuit.5 Notably, the statute does not

say, “When two or more persons are severally liable, each shall contribute to the award

in proportion to the percentage of fault attributable to each.” Contrary to the dissent’s

assertion, the clause is not made ineffective if a severally liable person who is not a party

to the lawsuit and not subject to an adverse judgment makes no contribution. The clause

would be ineffective, however, if a severally liable person were compelled to contribute

out of proportion to his or her percentage of fault.

Third, a tortfeasor’s liability—whether joint, several, or both—arises and exists

independently of the tortfeasor’s participation in a lawsuit and, therefore, is independent

of the tortfeasor’s obligation to contribute to any judgment entered in such a lawsuit.

Accordingly, the third clause providing “except that the following persons are jointly and

severally liable for the whole award” need not be read to imply that an award is

enforceable against the persons identified in the enumerated exceptions. Instead, it stands

for the unremarkable proposition that the limitation on the extent of contribution

established by the second clause of subdivision 1 does not apply to anyone who falls

within the enumerated exceptions (1)-(4). In other words, a person who falls within one

of the exceptions is subject to the traditional joint and several liability rule. As a result,

5 It is settled that a judgment may not be enforced against persons who are not parties to an action. See Hurr v. Davis, 155 Minn. 456, 459, 193 N.W. 943, 944 (1923). Because Minn. Stat. § 604.02, subd. 1, addresses the magnitude of contributions rather than the existence of a particular person’s obligation to contribute, neither our interpretation of subdivision 1 nor the dissent’s conflicts with this rule.


13

the definition of “persons” in subdivision 1 does not exclude parties to the transaction

who are not parties to the lawsuit.6

Notably, subdivision 2, which provides for the reallocation of uncollectible

judgments, states:

Upon motion made not later than one year after judgment is entered, the court shall determine whether all or part of a party’s equitable share of the obligation is uncollectible from that party and shall reallocate any uncollectible amount among the other parties, including a claimant at fault, according to their respective percentages of fault. A party whose liability is reallocated is nonetheless subject to contribution and to any continuing liability to the claimant on the judgment.

Minn. Stat. § 604.02, subd. 2 (2010) (emphasis added). A “party” is “[o]ne who takes

part in a transaction” or “[o]ne by or against whom a lawsuit is brought.” Black’s Law

Dictionary 1231-32 (9th ed. 2009). Previously we have determined that the word “party”

in subdivision 2 includes all parties to the transaction giving rise to the cause of action.

Hosley v. Armstrong Cork Co., 383 N.W.2d 289, 293 (Minn. 1986). Because “party” in

subdivision 2 means all persons who are parties to the tort, regardless of whether they are

named in the lawsuit, it logically follows that “persons” in subdivision 1 must also mean

all parties to the tort.

6 As the dissent correctly notes, a plaintiff cannot recover an entire award from a person whose fault is greater than 50% unless that person is a party to the lawsuit. But the dissent is not correct to conclude that this fact renders the second clause of subdivision 1 ineffective unless “persons” is read to exclude “parties to the transaction” who are not also “parties to the lawsuit.” Minnesota Statutes § 604.02, subd. 1, does not address whether a particular severally liable person is obligated to contribute to a judgment.


14

The dissent’s interpretation that “person” in subdivision 1 is limited to “parties to

the lawsuit” creates a conflict with our decision in Hosley. It is illogical to conclude that

“persons” in subdivision 1 has a narrower meaning than “parties” in subdivision 2. It is

more reasonable to conclude that persons and parties in subdivisions 1 and 2 would

extend to all persons who are parties to the tort, regardless of whether they are parties to

the lawsuit. See Minn. Stat. § 645.17(1) (2010). Moreover, our decision in Hosley

clearly contemplates assignment of equitable shares of an obligation to nonparty

tortfeasors, but we did not read the phrase “shall reallocate” to imply the creation of an

obligation enforceable against nonparties where none would otherwise exist. Rather, we

interpreted the statute to govern the extent of the equitable shares apportioned to each

party to the transaction. Hosley, 383 N.W.2d at 293. We therefore conclude that section

604.02 applies whenever multiple tortfeasors act to cause an indivisible harm to a victim,

regardless of how many of those tortfeasors are named as parties in a lawsuit arising from

that tort.

We conclude that whether “two or more persons are severally liable” for purposes

of section 604.02, subdivision 1, is determined at the time the tort was committed and not

at the time of judgment in a civil action arising from the tort. The predicate to this

interpretation is that the Legislature did not modify the common law rule that liability is

created at the moment a tort is committed, and therefore the statute incorporates the

common law rule. Moreover, “persons” and “parties” in the statute extends to all persons

who are parties to the tort, regardless of whether they are parties to the lawsuit. Because


15

the statute does not explicitly state that it applies at the time of judgment, this

interpretation is reasonable, and the most logical.

B.

Alternatively, it is possible to interpret the phrase “[w]hen two or more persons are

severally liable” to mean that liability is determined at the time of the judgment.

Essentially, this is the interpretation proposed by the dissent. The predicate to this

proposed interpretation is that the Legislature modified the common law rule that several

liability is created at the moment the tort is committed.

Because the statute is susceptible to more than one reasonable interpretation, it is

ambiguous, and we must examine prior versions of the statute to ascertain legislative

intent. See Minn. Stat. § 645.16. The legislative history that predates the 2003

amendments to section 604.02, subdivision 1, spans more than twenty years and provides

an unbroken chain of legislative intent to limit joint and several liability in Minnesota.

Specifically, after the 1978 amendments to chapter 604, parties against whom judgment

had been entered no longer were jointly and severally liable for the entire judgment if

another party’s share of the judgment proved to be uncollectible. Act of Apr. 5, 1978,

ch. 738, § 8, 1978 Minn. Laws 836, 840. Rather, under section 604.02, subdivision 2, the

uncollectible share would be reallocated according to the “respective percentages of

fault” attributed to each party. Id. After the 1986 and 1988 amendments, a person’s fault

generally had to exceed 15% and the fault of the state or of a municipality had to be at

least 35%, in order for joint and several liability to apply. Act of Apr. 12, 1988, ch. 503,

§ 3, 1988 Minn. Laws 375, 378. We conclude the intent of the Legislature, ascertained


16

through the history of section 604.02, was to limit joint and several liability in Minnesota.

Not once has the Legislature sought to expand joint and several liability.

Notably, until the Legislature adopted the 2003 amendments, the statute provided

that tortfeasors’ “contributions to awards shall be in proportion to [their] percentage of

fault” but “each is jointly and severally liable for the whole award.” See Act of May 19,

2003, ch. 71, § 1, 2003 Minn. Laws 386. The 2003 amendments eliminated the blanket

exception that “each is jointly and severally liable for the whole award” and substituted

four specific exceptions. Id.; Minn. Stat. § 604.02, subd. 1(1)-(4). In so doing, the

Legislature explicitly limited the common law principle of joint and several liability to

the four enumerated circumstances, thus enabling an injured person to recover more than

a tortfeasor’s comparative-responsibility share in only those four circumstances.

Therefore, we conclude that the 2003 amendments to the statute clearly indicate the

Legislature’s intent to limit joint and several liability to the four circumstances

enumerated in the exception clause, and to apply the rule of several liability in all other

circumstances. In order to give effect to this intent, the statute must be interpreted to

apply in all circumstances in which a person would otherwise be jointly and severally

liable at common law, and a person is liable at common law at the moment the tort is

committed, not as a result of a judgment. This interpretation is consistent with the

common law and limits the application of joint and several liability to those

circumstances that are explicitly specified in the statute.

The dissent correctly points out that joint and several liability survived within

Minnesota’s statutory comparative fault scheme at least through 1988. See Johnson v.


17

Am. Family Mut. Ins. Co., 426 N.W.2d 419, 423 (Minn. 1988) (“Minnesota law has

retained the concept of joint and several liability, even while embracing a comparative

negligence or comparative fault doctrine.”) But this observation is incomplete.

Specifically, Minnesota retained the doctrine of joint and several liability, but it also

limited the application of the doctrine under the statutory comparative negligence

scheme. Thus, the mere retention of joint and several liability in limited form prior to the

2003 amendments does not inform the analysis of the extent to which the 2003

amendments further limited the doctrine.

Moreover, the dissent suggests that it is fair to apply common law joint and

several liability and deny application of Minn. Stat. § 604.02 because the Diocese could

have brought appellant’s husband into the action as a third-party defendant. It relies on

Imlay v. City of Lake Crystal, 453 N.W.2d 326 (Minn. 1990), and Schneider v. Buckman,

433 N.W.2d 98 (Minn. 1988), to support this argument. Both cases are readily

distinguishable. In Imlay, two plaintiffs sued a single defendant, and the defendant

brought in a third-party defendant; the jury found the original defendant 20% at fault and

the third-party defendant 80% at fault. 453 N.W.2d at 328. In a footnote, we

“question[ed] the applicability of joint and several liability under these pleadings because

the [plaintiffs] did not sue [the joint tortfeasor]; rather his estate was brought in by [the

defendant] as a third-party defendant.” Id. at 330 n.3. The footnote, however, does not

support the conclusion that the doctrine of joint and several liability is inapplicable to

cases involving a single defendant, as claimed by the dissent. Instead, the doctrine of

joint and several liability applies under the circumstances in Imlay because joint and


18

several liability arises at the time the tortfeasors commit the tort. Whether particular

liable persons are joined to a lawsuit—and by which party—is irrelevant to the question

of whether the doctrine of joint and several liability applies.

Schneider also does not support the dissent’s argument. At issue was a version of

Minn. Stat. § 604.02 that predated the 2003 amendments. Subdivision 1 provided that

“[w]hen two or more persons are jointly liable, contributions to awards shall be in

proportion to the percentage of fault attributable to each, except that each is jointly and

severally liable for the whole award.” Minn. Stat. § 604.02, subd. 1 (2002) (emphasis

added). Thus, when only one liable person was joined to the suit, that person was liable

“for the whole award” under the pre-2003 version of the “except” clause of subdivision 1

and therefore could not use the reallocation provision of subdivision 2 to escape payment

of other liable persons’ equitable shares of the award. Put differently, in the version of

the statute in effect at the time Schneider was decided, the “except” clause encompassed

all liable persons, and therefore encompassed the defendant. Therefore, subdivision 1 did

not limit the defendant’s contribution to an amount “in proportion to [his] percentage of

fault,” but rather left him liable “for the whole award.” Turning to the facts in Schneider,

fault was apportioned among four persons: two of those were not parties to the lawsuit,

and a third was dismissed under the doctrine of respondeat superior. 433 N.W.2d at 99.

As a result, the sole remaining defendant was, under the plain language of subdivision 1

as it existed at the time, “jointly and severally liable for the whole award,” and the jury’s


19

allocation of fault to persons not parties to the lawsuit was of no practical consequence.7

Id. at 103. Thus, Schneider recovered 100% of his damages from the sole defendant as a

result of the defendant’s joint and several liability for the whole award under the pre-

2003 version of subdivision 1.8

Finally, the dissent’s proposed interpretation that “persons” means named parties

to the lawsuit is flawed and will lead to unreasonable results in the application of the

exceptions in the statute. See Minn. Stat. § 645.17(1) (2010). For example, the

interpretation of “persons” as “parties to the lawsuit” will destroy the subdivision 1(2)

7 The dissent relies on Schneider to support its argument that section 604.02, subdivision 1, does not apply in a case with a single defendant. Specifically, the dissent contends that Schneider “held that the defendant was liable for the entire award because ‘there are no other defendants against whom judgment can be entered.’ ” (Emphasis added.) But Schneider did not address the interpretation or application of subdivision 1. Rather, we held that reallocation under subdivision 2 is not possible when the sole defendant is 100% liable and there are no other persons subject to the judgment between whom uncollectible amounts can be reallocated. See also Hurr v. Davis, 155 Minn. 456, 458-59, 193 N.W. 943, 944 (1923) (holding that judgment entered against persons who are not parties to an action is “extrajudicial and void”). The application of subdivision 2 to this case is not before us, however, and therefore we do not reach it. 8 Put differently, the defendant was required to pay 100% of Schneider’s damages because he was jointly and severally liable for the entire award under the common law rule as applied through subdivision 1; here, the Diocese is not required to pay 100% of Staab’s damages because it is not jointly and severally liable for the entire award under subdivision 1. Neither the holding in Schneider nor our holding in this case relies upon the reallocation procedures of subdivision 2, and our holding in this case in no way alters our previous decisions regarding subdivision 2.


20

exception that retains joint and several liability for “two or more persons who act in a

common scheme or plan that results in injury.”9

9 Consider, for instance, a scenario in which a plaintiff, P, is injured on the negligently-maintained premises of a bar owner, A, as a result of the negligent conduct of customers B and C. P sues A, and A brings a third-party claim against B. During the trial, A discovers and presents evidence that B had acted in a common scheme with nonparty tortfeasor C. The judge properly submits the fault of P, A, B, and nonparty C to the jury, which returns a special verdict determining that B and C “act[ed] in a common scheme or plan that result[ed] in injury” to P, and apportioning no fault to P, 15% of the fault to A, 45% of the fault to B, and 40% of the fault to C.

Under our interpretation of subdivision 1: A is severally but not jointly liable and required to contribute 15% of the award, in proportion to its percentage of fault; B and C—as persons who had “act[ed] in a common scheme or plan that result[ed] in injury”—are “jointly and severally liable for the whole award.” Because C is a nonparty not subject to the judgment, C cannot be required to contribute anything and B is required to contribute at least the remaining 85%.

The dissent’s interpretation, however, will create confusion and inconsistent

results. Initially, it is unclear how the dissent would deal with nonparty C’s fault in this scenario. Specifically, under the dissent’s interpretation, subdivision 1 would apply, but it is not clear whether it would require A and B to pay, respectively, 15% and 45% of the award, thus leaving C’s 40% unpaid, or if it would instead divide nonparty C’s share between them based upon their relative fault, such that A would pay 25% and B would pay 75%. But it is the dissent’s failure to deal with the application of subdivision 1(2) that is the most troubling. Specifically, the dissent’s interpretation that “persons” means named parties to the lawsuit results in the conclusion that because C is not a party to the lawsuit, the case lacks “two or more [parties to the lawsuit] who act in a common scheme” and therefore subdivision 1(2), which provides for joint and several liability for participants in a common scheme, does not apply. Clearly, this outcome is inconsistent with the plain meaning of the statute. It is unreasonable to conclude that the Legislature intended participants in a common scheme to be jointly and severally liable if more than one of the participants is a party to a lawsuit, but merely severally liable if only one participant is a party to the lawsuit and the jury apportions some fault to a defendant tortfeasor who did not participate in the scheme.


21

III.

We hold that “persons” includes all “parties to the transaction,” and therefore

section 604.02, subdivision 1, applies when a jury apportions fault between a sole

defendant and a nonparty tortfeasor, and limits the amount collectible from the defendant

to its percentage share of the fault assigned to it by the jury. Consequently, the Diocese

must pay to Staab 50% of the jury award, which corresponds to the Diocese’s share of the

fault as determined by the jury. Accordingly, we affirm the court of appeals as modified

and remand to the district court for entry of judgment consistent with this opinion.

Affirmed and remanded.


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D I S S E N T MEYER, Justice (dissenting).

I respectfully dissent. Following the 2003 amendments, Minn. Stat. § 604.02,

subd. 1 (2010), provides that “[w]hen two or more persons are severally liable,

contributions to awards shall be in proportion to the percentage of fault attributable to

each.” The majority concludes that because the jury found the sole defendant 50% at

fault for the plaintiff’s injury, the defendant is liable for only 50% of the jury award,

which leaves the innocent plaintiff uncompensated for half of her damages. To reach this

result, the majority abandons the common law and adopts an illogical construction in

which the term “persons” has different meanings in different provisions of the same

statute. Reading the statute as a whole, which we must, I conclude that the several

liability provision in Minn. Stat. § 604.02, subd. 1, is not triggered when there is only one

party liable for the award.

A.

The issue in this appeal concerns how much of the $224,200.70 jury award Alice

Ann Staab can recover from the Diocese of St. Cloud, the only defendant in this case.

Resolving this issue involves the interpretation of Minn. Stat. § 604.02, subd. 1. Our goal

in statutory interpretation is to ascertain and effectuate the intent of the Legislature.

Educ. Minn.-Chisholm v. Indep. Sch. Dist. No. 695, 662 N.W.2d 139, 143 (Minn. 2003).

Section 604.02 modifies the common law rule of joint and several liability in

Minnesota. The dispute here centers on whether the 2003 amendments altered the

common law in this situation—a case involving a single defendant. Under established


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principles of statutory construction, we must presume that statutes are consistent with the

common law. In re Shetsky, 239 Minn. 463, 469, 60 N.W.2d 40, 45 (1953). We will not

construe a statute as abrogating or modifying the common law “unless the statute does so

explicitly.” Nelson v. Productive Alts., Inc., 715 N.W.2d 452, 455 (Minn. 2006).

The majority acknowledges that we “do not presume that the Legislature intends

to abrogate or modify a common law rule except to the extent expressly declared or

clearly indicated in the statute.” Therefore, before proceeding to the language of the

statute, I first examine the common law that applies in this situation. Under Minnesota

common law, joint and several liability is the general rule in cases involving multiple

tortfeasors that have caused a single, indivisible injury to a plaintiff. See Flaherty v.

Minneapolis & St. Louis Ry. Co., 39 Minn. 328, 329, 40 N.W. 160, 160-61 (1888). When

persons are jointly and severally liable, the plaintiff can hold any or all of those persons

liable for the entire resulting injury. Thorstad v. Doyle, 199 Minn. 543, 553, 273 N.W.

255, 260 (1937). In other words, if a plaintiff sues a single tortfeasor for her injury, that

tortfeasor is liable for the entire injury, notwithstanding the existence of other tortfeasors

the plaintiff could have sued. See Schneider v. Buckman, 433 N.W.2d 98, 101 (Minn.

1988) (explaining that “a plaintiff may sue one, all, or any number of joint tortfeasors”).

Therefore, under the circumstances here, a sole defendant like the Diocese, which is 50%

at fault for a plaintiff’s injury, is liable for the entire award.

The focus here is on the 2003 amendments to Minn. Stat § 604.02, subd. 1. Act of

May 19, 2003, ch. 71, § 1, 2003 Minn. Laws 386. Among other changes, the Legislature

changed the language of the triggering clause from “[w]hen two or more persons are


D-3

jointly liable” to “[w]hen two or more persons are severally liable.” Id. (emphasis

added). As amended, Minn. Stat. § 604.02, subd. 1, provides:


(1) a person whose fault is greater than 50 percent;

(2) two or more persons who act in a common scheme or plan that results in injury; (3) a person who commits an intentional tort; or

(4) a person whose liability arises under [certain environmental laws].

The majority concludes that the Legislature modified the common law here based

primarily on the Legislature’s perceived intent “to limit joint and several liability in

Minnesota.” The 2003 amendments to section 604.02 do have a significant effect on

joint and several liability in cases in which two or more defendants have caused

indivisible harm to a plaintiff. But the perceived intent of the Legislature to limit joint

and several liability falls far short of the express statutory language needed to modify the

common law in situations not controlled by the statutory language—cases involving a

single defendant. We presume that the Legislature says what it means in a statute,

Goodman v. Best Buy, Inc., 777 N.W.2d 755, 758 (Minn. 2010), and cannot base our

interpretation on what the Legislature might have intended, see Haghighi v. Russian-Am.

Broad. Co., 577 N.W.2d 927, 930 (Minn. 1998) (“If the literal language of this statute

yields an unintended result, it is up to the legislature to correct it.”).


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When amending the statute in 2003, the Legislature framed the several liability

provision as a conditional statement—“[w]hen two or more persons are severally liable.”

Minn. Stat. § 604.02, subd. 1 (emphasis added). And the Legislature chose to retain the

triggering language that requires “two or more persons” for the several liability provision

to apply. Id. (emphasis added). In cases involving a single defendant, there is only one

person who can be liable for an award. See Hurr v. Davis, 155 Minn. 456, 458-59, 193

N.W. 943, 944 (1923). Thus, in cases with only one defendant, there cannot be two or

more persons liable for the award, and the statute, by its plain language, does not apply.

In a previous interpretation of the comparative fault statute, we recognized that

although a jury may determine the fault of nonparties, the jury’s allocation of fault to

nonparties is “of no practical consequence” when “there is but one defendant against

whom judgment can be or has been entered.” Schneider, 433 N.W.2d at 103. For

example, in Schneider, even though the jury had apportioned fault among a single

defendant and other nonparties, we held that the defendant was liable for the entire award

because “there are no other defendants against whom judgment can be entered.” Id.; see

also Imlay v. City of Lake Crystal, 453 N.W.2d 326, 330 n.3 (Minn. 1990) (questioning

the applicability of the joint and several liability provision of the comparative fault statute

in cases in which the plaintiff sues a single defendant). Therefore, our case law supports

the conclusion that Minn. Stat. § 604.02, subd. 1, does not apply in a single defendant

case. See Engquist v. Loyas, 803 N.W.2d 400, 404-05 (Minn. 2011) (“Our previous


D-5

interpretation of a statute guides us in determining its meaning.”).1 Because the several

liability provision is not implicated under the circumstances of this case, the common law

rule controls, and the Diocese is liable for the entire award.

The majority purports to be relying on legislative intent to support an expansive

interpretation of Minn. Stat. § 604.02, subd. 1, but there is no legislative history

indicating that the Legislature intended the statute to apply in a single defendant case or

that the Legislature even considered how the statute might apply in a single defendant

case. See Michael K. Steenson, Joint and Several Liability in Minnesota: The 2003

Model, 30 Wm. Mitchell L. Rev. 845, 860 (2004) (stating that “[n]o clear guidance

concerning the interpretation of the [2003 amendments] appears in the history”). If the

Legislature had intended that the statute cover nonparties in this situation, the Legislature

1 The majority’s efforts to distinguish these cases fail. The majority indicates that Schneider does not support my argument because prior to the 2003 amendments, Minn. Stat. § 604.02, subd. 1 (2002), provided that “[w]hen two or more persons are jointly liable, contributions to awards shall be in proportion to the percentage of fault attributable to each, except that each is jointly and severally liable for the whole award.” According to the majority, “when only one liable person was joined to the suit, that person was liable ‘for the whole award.’ ” That person was liable for the whole award, but because of the common law rule, not the statute. Under the majority’s interpretation of the statutory language—“contributions to awards shall be in proportion to the percentage of fault attributable to each”—the defendant in Schneider would have been required to contribute to the award only in proportion to his percentage of fault, with the plaintiff recovering the uncollectible amounts under the reallocation procedures of the statute. But the court in Schneider specifically rejected this analysis, concluding that the reallocation procedures “are not implicated” when there is only one defendant against whom judgment can be entered. 433 N.W.2d at 103. The majority in essence is concluding that the contribution provision has a different meaning after the 2003 amendments, even though the Legislature did not touch that language. Further, in Imlay, we were questioning the applicability of the statute to cases involving a single defendant. 453 N.W.2d at 330 n.3


D-6

could have included an express directive to this effect. See Joshua D. Shaw, Limited

Joint and Several Liability Under Section 15-38-15: Application of the Rule and the

Special Problem Posed by Nonparty Fault, 58 S.C. L. Rev. 627, 634-35 & n.49 (2007)

(observing that “jurisdictions that allow juries to allocate fault to nonparties have statutes

with express language to that effect” and noting “a multitude of models” for state

legislatures to follow).

Moreover, contrary to our rule requiring strict construction of statutes in

derogation of the common law, the majority interprets Minn. Stat. § 604.02, subd. 1, as

broadly as possible, concluding that “the statute must be interpreted to apply in all

circumstances in which a person would otherwise be jointly and severally liable at

common law.” See Rosenberg v. Heritage Renovations, LLC, 685 N.W.2d 320, 327

(Minn. 2004) (“Generally, statutes in derogation of the common law are to be strictly

construed.”). We should not be so quick to abandon our century-old common law,

particularly when our action is based on unexpressed legislative intent. See Francis v.

W. Union Tel. Co., 58 Minn. 252, 265, 59 N.W. 1078, 1081 (1894) (stating that it would

be “presumptuous” for the court “to lightly discard a [common law] doctrine which has

been so long approved”).

B.

The majority essentially rewrites Minn. Stat. § 604.02, subd. 1, in an attempt to make

the statute work in a single defendant case. The majority reads “persons” expansively in the

several liability provision to include all parties to the transaction, which leads to the

conclusion that the several liability provision is triggered by the presence of one defendant


D-7

and one nonparty tortfeasor. But the majority’s construction of the statute is not reasonable

when considering the context of the statute as a whole. See Am. Family Ins. Grp. v.

Schroedl, 616 N.W.2d 273, 277 (Minn. 2000).

The majority’s construction of the triggering clause—“[w]hen two or more

persons are severally liable”— to include nonparties as “persons” results in an ineffective

remedial clause—“contributions to awards shall be in proportion to the percentage of

fault attributable to each.” Minn. Stat. § 604.02, subd. 1. Because “each” necessarily

refers to each “person[]” in the triggering clause, and “shall” is mandatory, Minn. Stat.

§ 645.44, subd. 16 (2010), under the majority’s interpretation, each “person[]” would

have an obligation to contribute to the award, even nonparties. Further, section 604.02,

subdivision 1, provides that certain “persons” are “jointly and severally liable for the

whole award,” for example, “a person whose fault is greater than 50 percent.” Minn.

Stat. § 604.02, subd. 1(1). Consequently, if the jury had found Richard Staab to be 51%

at fault for his wife’s injury, and “persons” includes all parties to the transaction, Richard

Staab would be a “person[]” who is jointly and severally liable for the whole award.

Nonparties, however, cannot be required to contribute to the award, let alone be jointly

and severally liable for the whole award. See Hurr v. Davis, 155 Minn. 456, 459, 193

N.W. 943, 944 (1923) (holding that a judgment against persons not parties to the action

was “clearly void for want of jurisdiction”).

To avoid holding nonparties liable for an award, the majority effectively rewrites

the statute to provide that contributions to awards shall be in proportion to the percentage

of fault attributable to each person subject to an adverse judgment. But “[w]e may not


D-8

add words to a statute.” Johnson v. Cook Cnty., 786 N.W.2d 291, 295 (Minn. 2010); see

also Beardsley v. Garcia, 753 N.W.2d 735, 740 (Minn. 2008) (declining to interpret

statute so as to “effectively rewrite” it because that prerogative belongs to the

Legislature). The majority’s construction of the statute also does not comport with the

language the Legislature actually used. According to the majority, determining which

“persons” are severally liable for purposes of the triggering clause does not depend on the

judgment because “a person is liable at common law at the moment the tort is

committed”;2 however, determining which “persons” must contribute to an award under

the remedial clause does depend on the judgment because only parties can be liable for

the judgment. This interpretation of section 604.02 violates our rules of construction that

require courts to give a consistent meaning to the same terms appearing in the same

statute. See Langston v. Wilson McShane Corp., 776 N.W.2d 684, 690 (Minn. 2009).

Under the majority’s interpretation, the word “persons” has different meanings in the

2 The majority misapprehends the common law rule that “[c]ommon liability ‘is created at the instant the tort is committed.’ ” Spitzack v. Schumacher, 308 Minn. 143, 145, 241 N.W.2d 641, 643 (1976) (quoting White v. Johnson, 272 Minn. 363, 371, 137 N.W.2d 674, 679 (1965), overruled on other grounds by Tolbert v. Gerber Indus., Inc., 255 N.W.2d 362, 368 n.11 (Minn. 1972)). The cases relied upon by the majority are all contribution cases for which “common liability” is a prerequisite. See also Am. Auto. Ins. Co. v. Molling, 239 Minn. 74, 76, 57 N.W.2d 847, 849 (1953). In this context, we have explained that “[a] determination of whether common liability exists is to be made at the instant the tort is committed,” Ascheman v. Vill. of Hancock, 254 N.W.2d 382, 384 (Minn. 1977), regardless of whether a joint tortfeasor “ ‘subsequently acquire[s] a particular defense against an injured party,’ ” Hammerschmidt v. Moore, 274 N.W.2d 79, 81 (Minn. 1978) (quoting Spitzack, 308 Minn. at 145, 241 N.W.2d at 643). Therefore, the common law rule cited by the majority is taken out of context and does not affect the interpretation of Minn. Stat. § 604.02 (2010).


D-9

same sentence of the same subdivision of the same statute—“persons” in the triggering

clause encompasses all parties to the transaction, whereas the reference to “each person”

in the remedial clause includes only parties to the case.3

The majority’s construction of the statute appears to be motivated by a concern

that requiring the defendant to pay the entire award is not fair, but this has been the

common law rule in Minnesota for over a century. See Flaherty v. Minneapolis &

St. Louis Ry. Co., 39 Minn. 328, 329, 40 N.W. 160, 160-61 (1888). The common law

places the interests of an innocent plaintiff above the interests of the at-fault tortfeasor.

See, e.g., Mathews v. Mills, 288 Minn. 16, 22, 178 N.W.2d 841, 845 (1970). The result

reached by the majority in this case leaves the innocent plaintiff uncompensated for over

$100,000 in damages. At the same time, the Diocese acknowledges that a defendant 3 To avoid a result that requires nonparties to contribute to the award, the majority also ascribes meaning to the Legislature’s choice of the passive voice in the contribution provision. The majority implies that the result here would be different if the Legislature had said, “each shall contribute to the award,” as opposed to “contributions to awards shall be in proportion to the percentage of fault attributable to each,” Minn. Stat. § 604.02, subd. 1. The majority concludes that the statute does not mean what it says—that Minn. Stat. § 604.02, subd. 1, does not address the existence of a particular person’s obligation to contribute to the judgment. The Legislature’s decision to use the passive voice rather than the active voice makes no difference in the meaning of the statute; the difference is mainly one of style. See, e.g., McMullan v. Wohlgemuth, 308 A.2d 888, 902 n.6 (Pa. 1973) (Pomeroy, J., dissenting) (“The difference between the active and passive voices is stylistic only, and it is not such as to change the result.”).

In addition, the majority uses strained logic to avoid a result that finds nonparty “persons” jointly and severally liable for the whole award. The majority indicates that the statutory language providing that certain “persons are jointly and severally liable for the whole award,” Minn. Stat. § 604.02, subd 1, does not necessarily mean liability for an award that is “enforceable.” It is not reasonable to assume that the Legislature intended to assign responsibility for unenforceable awards.


D-10

typically would have some recourse in this situation: the “right to bring a third-party

claim against any other persons who may have contributed to a plaintiff’s injuries.”

Finally, the majority’s construction of Minn. Stat. § 604.02 exposes the statute to

constitutional challenges, particularly in the absence of adequate procedural safeguards to

protect the rights of plaintiffs whose recovery can be reduced by fault shifted to

nonparties.4

C.

Notwithstanding the majority’s attempt to limit the payment of the Diocese to the

innocent plaintiff, the majority’s interpretation of the reallocation provision in

section 604.02 will effectively obligate the Diocese to pay the entire award anyway. The

reallocation provision provides:


4 See generally Nancy A. Costello, Note, Allocating Fault to the Empty Chair: Tort Reform or Deform?, 76 U. Det. Mercy L. Rev. 571, 581-82 (1999) (noting multitude of constitutional challenges to statutory “empty chair” provisions, a couple of them successful). See, e.g., Plumb v. Fourth Judicial Dist. Court, 927 P.2d 1011, 1019-21 (Mont. 1996) (holding that apportionment of liability to nonparties violated substantive due process, in part, because juries are likely to assign a disproportionate share of liability to unrepresented parties). Following Plumb, the Montana Legislature enacted legislative changes that included major restrictions on comparisons of fault with nonparties and significant procedural safeguards to protect the interests of plaintiffs. See Mont. Code Ann. § 27-1-703 (2011).


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Minn. Stat. § 604.02, subd. 2. The majority interprets the term “party” in subdivision 2 to

mean “all persons who are parties to the tort, regardless of whether they are named in the

lawsuit.” Applying that meaning of “party” here, Richard Staab is a party to the tort

whose “equitable share of the obligation is uncollectible,” Minn. Stat. § 604.02, subd. 2,

because he cannot be required to contribute to the judgment. Upon motion, the district

court would be required to reallocate that uncollectible amount to the Diocese. See id.

Accordingly, the majority’s interpretation of subdivision 2 undoes the effect of its

interpretation of subdivision 1.

D.

Construing the plain language of the statute, I conclude that the several liability

provision in Minn. Stat. § 604.02, subd. 1, applies only when there is more than one party

with an obligation to contribute to the award. Consistent with the common law, the

Diocese, as the sole defendant, is jointly and severally liable for the entire award.

Therefore, I would reverse the court of appeals’ decision and reinstate the judgment

against the Diocese.

PAGE, Justice (dissenting).

I join in the dissent of Justice Meyer.

ANDERSON, PAUL H., Justice (dissenting).

I join in the dissent of Justice Meyer.


Attachment V

1

STATE OF MINNESOTA

IN SUPREME COURT

A12-1575 A12-1972

Court of Appeals Wright, J.

Dissenting, Lillehaug, Page, JJ. Alice Ann Staab, Respondent, vs. Filed: September 10, 2014 Office of Appellate Courts Diocese of St. Cloud,

Appellant.

________________________ Kevin S. Carpenter, Kevin S. Carpenter, P.A., Saint Cloud, Minnesota; and H. Morrison Kershner, Pemberton, Sorlie, Rufer & Kershner, P.A., Fergus Falls, Minnesota, for respondent. Dyan J. Ebert, Laura A. Moehrle, Quinlivan & Hughes, P.A., Saint Cloud, Minnesota, for appellant. Richard J. Thomas, Bryon G. Ascheman, Corinne Ivanca, Burke & Thomas, PLLP, Saint Paul, Minnesota; and Robert L. McCollum, Cheryl Hood Langel, McCollum, Crowley, Moschet, Miller & Laak, Ltd., Minneapolis, Minnesota, for amicus curiae Minnesota Defense Lawyers Association. Wilbur W. Fluegel, Fluegel Law Office, Minneapolis, Minnesota, for amicus curiae Minnesota Association for Justice.

________________________


2

S Y L L A B U S

A party that is severally liable under Minn. Stat. § 604.02, subd. 1 (2012), cannot

be ordered to contribute more than that party’s equitable share of the total damages award

under the reallocation-of-damages provision in Minn. Stat. § 604.02, subd. 2 (2012).

Reversed and remanded.

O P I N I O N

WRIGHT, Justice.

This negligence dispute presents two questions of statutory interpretation. We

first consider whether the reallocation-of-damages provision in Minn. Stat. § 604.02,

subd. 2 (2012), applies to parties who are severally liable pursuant to Minn. Stat.

§ 604.02, subd. 1 (2012). If the reallocation provision applies to severally liable parties,

the second question is whether damages must be reduced to a judgment to be subject to

reallocation under Minn. Stat. § 604.02, subd. 2. For the reasons addressed below, we

hold that a party who is severally liable under Minn. Stat. § 604.02, subd. 1, cannot be

required to contribute more than that party’s equitable share of the total damages award

through the reallocation-of-damages provision in Minn. Stat. § 604.02, subd. 2. We,

therefore, reverse and remand to the district court for entry of judgment consistent with

this opinion.

I.

Respondent Alice Staab was injured at Holy Cross Parish School when her

husband Richard Staab pushed her wheelchair through an open doorway and over an

unmarked five-inch drop-off. Staab v. Diocese of St. Cloud (Staab I), 813 N.W.2d 68,


3

71 (Minn. 2012). Staab sued appellant Diocese of St. Cloud, which owns and operates

Holy Cross Parish School, alleging that the Diocese failed to protect her from an

unreasonable risk of harm created by the five-inch drop-off. Id. Richard Staab was not

named as a party in the lawsuit. Id. At the close of the trial, the jury awarded

compensatory damages of $224,200.70, attributing 50 percent of the negligence that

caused Staab’s injuries to the Diocese and 50 percent to Richard Staab. Id. Concluding

that Minn. Stat. § 604.02, subd. 1, which limits liability for a severally liable person, does

not apply when only one defendant is named in a lawsuit, the district court entered

judgment for $224,200.70 against the Diocese. Id. at 72. In Staab I, we held that Minn.

Stat. § 604.02, subd. 1, “applies when a jury apportions fault between a sole defendant

and a nonparty tortfeasor, and limits the amount collectible from the defendant to its

percentage share of the fault assigned to it by the jury.” 813 N.W.2d at 80.

On remand, citing Minn. Stat. § 604.02, subd. 2, Staab sought reallocation of

Richard Staab’s equitable share of the damages award to the Diocese. The district court

concluded that an uncollectible share of damages attributable to a nonparty tortfeasor can

be reallocated under Minn. Stat. § 604.02, subd. 2. After determining that Richard

Staab’s equitable share is uncollectible, the district court entered judgment against the

Diocese for the entire damages award.1

The court of appeals affirmed the reallocation. Staab v. Diocese of St. Cloud

(Staab II), 830 N.W.2d 40, 47 (Minn. App. 2013). The court of appeals concluded that 1 The district court subsequently amended the judgment to reflect the damages that the Diocese had already paid to Staab.


4

Minn. Stat. § 604.02, subd. 2, applies to the Diocese because the Legislature did not

expressly limit the application of subdivision 2 to jointly and severally liable parties.

Staab II, 830 N.W.2d at 43-44. In support of its conclusion, the court of appeals

reasoned that, for purposes of Minn. Stat. § 604.02, a “party” includes all parties to the

tort, and liability arises at the time of the injury. Staab II, 830 N.W.2d at 44. As a result,

the damages attributable to Richard Staab are a party’s “equitable share of the obligation

[that] is uncollectible.” Id. at 46.

We granted the Diocese’s petition for review.

II.

We first address whether Minn. Stat. § 604.02, subd. 2, can be applied to require a

severally liable party to pay an uncollectible portion of another tortfeasor’s damages.

Both subdivision 1 and subdivision 2 of section 604.02 are relevant to our resolution of

this issue. Subdivision 1 provides:


(1) a person whose fault is greater than 50 percent; (2) two or more persons who act in a common scheme or plan that results in injury; (3) a person who commits an intentional tort; or (4) a person whose liability arises under [one of several


5

environmental or public health laws].2 Minn. Stat. § 604.02, subd. 1. Subdivision 2, in turn, provides:


Minn. Stat. § 604.02, subd. 2.

The Diocese argues that the district court erred by reallocating Richard Staab’s

equitable share of damages to the Diocese under subdivision 2 because applying

subdivision 2 to parties who are severally liable under subdivision 1 is contrary to the

definition of several liability and eviscerates our holding in Staab I. Staab counters that

reallocation was proper because nothing in subdivision 2 limits its application to parties

who are jointly and severally liable under subdivision 1.

2 The concepts of several liability and joint and several liability are relevant when the concurrent conduct of multiple tortfeasors produces a single, indivisible injury. See Staab I, 813 N.W.2d at 74. As used in Minn. Stat. § 604.02, subd. 1, a person who is “severally liable” has “liability that is separate and distinct from another’s liability, so that the plaintiff may bring a separate action against one defendant without joining the other liable parties.” Staab I, 813 N.W.2d at 74-75 (citation omitted). “[A] ‘severally liable’ defendant is responsible for only his or her equitable share of the [damages] award.” Id. at 74. As used in Minn. Stat. § 604.02, subd. 1, a person who is “jointly and severally liable” also has liability that is separate and distinct from another’s liability, so that the plaintiff may bring an action against one defendant without joining the other liable parties. Staab I, 813 N.W.2d at 74-75. But unlike a severally liable defendant, “a ‘jointly and severally liable’ defendant is responsible for the entire [damages] award.” Id. at 74.


6

Whether the district court properly reallocated Richard Staab’s equitable share of

damages to the Diocese under Minn. Stat. § 604.02, subd. 2, is a question of statutory

interpretation. Statutory interpretation presents a question of law, which we review de

novo. White v. City of Elk River, 840 N.W.2d 43, 52 (Minn. 2013). The goal of statutory

interpretation is to effectuate the intent of the Legislature. Brayton v. Pawlenty,

781 N.W.2d 357, 363 (Minn. 2010); accord Minn. Stat. § 645.16 (2012). If the

Legislature’s intent is clear from the unambiguous language of the statute, we apply the

statute according to its plain meaning. State v. Rick, 835 N.W.2d 478, 482 (Minn. 2013).

Judicial construction of a statute becomes part of the statute as though it were written

therein. Caldas v. Affordable Granite & Stone, Inc., 820 N.W.2d 826, 836 (Minn. 2012).

But if a statute is susceptible to more than one reasonable interpretation, the statute is

ambiguous, and we will consider other factors to ascertain the Legislature’s intent.

Lietz v. N. States Power Co., 718 N.W.2d 865, 870 (Minn. 2006).

A.

We first consider whether Minn. Stat. § 604.02, subd. 2, is ambiguous as to its

application to severally liable parties. Subdivision 2 requires the district court to

“determine whether all or part of a party’s equitable share of the obligation is

uncollectible from that party” and to “reallocate any uncollectible amount among the

other parties, including a claimant at fault, according to their respective percentages of

fault.” The term “party” in subdivision 2 “means all persons who are parties to the tort,

regardless of whether they are named in the lawsuit.” Staab I, 813 N.W.2d at 76;

accord Hosley v. Armstrong Cork Co., 383 N.W.2d 289, 293 (Minn. 1986). A


7

tortfeasor’s liability “arises and exists independently of the tortfeasor’s participation in a

lawsuit and, therefore, is independent of the tortfeasor’s obligation to contribute to any

judgment entered in such a lawsuit.” Staab I, 813 N.W.2d at 76.

One reasonable interpretation of subdivision 2, which is advanced by Staab, is that

severally liable parties are subject to reallocation. The text of subdivision 2 indicates that

any party is subject to reallocation. Because the term “party” includes all parties to the

tort, it is reasonable to interpret the phrase “a party’s equitable share of the obligation” as

referring to the amount of damages attributable to another person’s negligence, even if

that person is not a party to the lawsuit. The language of subdivision 2 also is

mandatory—once the district court has determined that some portion of the damages

attributable to a party to the tort is uncollectible, the district court “shall reallocate any

uncollectible amount among the other parties, including a claimant at fault, according to

their respective percentages of fault.” Minn. Stat. § 604.02, subd. 2 (emphasis added).

The Legislature could have provided an express exception to subdivision 2 for parties

who are severally liable under subdivision 1, but it did not to do so.3

3 The dissent contends that our analysis should end here because this straightforward reading of subdivision 2 is reasonable. But “[t]he first step in statutory interpretation is to ‘determine whether the statute’s language, on its face, is ambiguous.’ ” 500, LLC v. City of Minneapolis, 837 N.W.2d 287, 290 (Minn. 2013) (quoting Larson v. State, 790 N.W.2d 700, 703 (Minn. 2010)). Therefore, we do not stop merely because we can identify one reasonable interpretation. Rather, we must consider whether there are other reasonable interpretations to which the statute is susceptible. See id. (stating that a statute is ambiguous if it “is susceptible to more than one reasonable interpretation”). The dissent’s view that the reallocation provision in subdivision 2 should apply to a severally liable defendant also ignores our principle that, when we construe a statute, we read the statute as a whole and give effect to all statutory provisions. City of Saint

(Footnote continued on next page.)


8

Another reasonable interpretation of subdivision 2, which is advanced by the

Diocese, is that damages cannot be reallocated to parties who are only severally liable

under subdivision 1. Subdivision 2 must be read in conjunction with subdivision 1. See

A.A.A. v. Minn. Dep’t of Human Servs., 832 N.W.2d 816, 819 (Minn. 2013) (explaining

that this court examines the language of the statute as a whole when interpreting a

statute); accord Minn. Stat. § 645.16. As we observed previously, subdivision 1 provides

that “[w]hen two or more persons are severally liable, contributions to awards shall be in

proportion to the percentage of fault attributable to each, except that” parties in four

specific categories “are jointly and severally liable for the whole award.” Minn. Stat.

§ 604.02, subd. 1. Subdivision 1, like subdivision 2, uses mandatory language, stating

that the contributions of a severally liable party “shall be in proportion to the percentage

of fault attributable to each.” Id. (emphasis added).

In Staab I, we concluded that the effect of subdivision 1 is to limit the “magnitude

of a severally liable person’s contribution to an amount that is in proportion to his or her

percentage of fault, as determined by the jury.” 813 N.W.2d at 75. A severally liable

party “is responsible for only his or her equitable share” of a damages award, even if the

plaintiff chooses to sue fewer than all tortfeasors who caused the harm. Id. Reallocation

of another party’s share of damages to a severally liable party would necessarily require

the severally liable party to contribute to the award in excess of the severally liable (Footnote continued from previous page.) Paul v. Eldredge, 800 N.W.2d 643, 648 (Minn. 2011). As addressed below, reading subdivision 2 in the manner proposed by Staab and the dissent would render the Legislature’s most recent amendments to subdivision 1 ineffective.


9

party’s equitable share of the damages—a circumstance that is contrary to the plain

meaning of subdivision 1 and several liability. Because subdivision 2 is subject to more

than one reasonable interpretation, we conclude it is ambiguous regarding whether it

applies to severally liable parties.

B.

Having concluded that Minn. Stat. § 604.02, subd. 2, is ambiguous, we next

consider sources in addition to the plain text to ascertain the Legislature’s intent. See

Rick, 835 N.W.2d at 485. “When a statutory provision is ambiguous, it is appropriate to

turn to the canons of statutory construction to ascertain a statute’s meaning.” State v.

Leathers, 799 N.W.2d 606, 611 (Minn. 2011). To determine legislative intent, we also

may “consider the legislative history of the act under consideration, the subject matter as

a whole, the purpose of the legislation, and objects intended to be secured thereby.”

Sevcik v. Comm’r of Taxation, 257 Minn. 92, 103, 100 N.W.2d 678, 686-87 (1959); see

also Minn. Stat. § 645.16(1)-(8) (2012).

Our canons of statutory construction support the conclusion that section 604.02,

subdivision 2, does not authorize reallocation of another party’s equitable share of

damages to a party who is only severally liable under section 604.02, subdivision 1.

Interpreting subdivision 2 to permit reallocation of an uncollectible share to a severally

liable defendant would violate the principle that a statute must be construed in a manner

that gives effect to each of its provisions. See Am. Family Ins. Grp. v. Schroedl, 616

N.W.2d 273, 277 (Minn. 2000); accord Minn. Stat. § 645.17(2) (2012). The clause in

subdivision 1 that reads “contributions to awards shall be in proportion to the percentage


10

of fault attributable to each” would be rendered “ineffective . . . if a severally liable

person were compelled to contribute out of proportion to his or her percentage of fault.”

Staab I, 813 N.W.2d at 76.

Permitting reallocation to a severally liable party under subdivision 2 also would

be inconsistent with the canon of statutory construction “expressio unius est exclusio

alterius”—the expression of one thing is the exclusion of another. See In re Welfare of

J.B., 782 N.W.2d 535, 543 (Minn. 2010); accord Minn. Stat. § 645.19 (2012). The

current text of subdivision 1 was enacted in 2003. Act of May 19, 2003, ch. 71, § 1, 2003

Minn. Laws 386, 386 (codified at Minn. Stat. § 604.02, subd. 1 (2012)). By adopting this

amendment, the Legislature “inten[ded] to limit joint and several liability to the four

circumstances enumerated in the exception clause, and to apply the rule of several

liability in all other circumstances.” Staab I, 813 N.W.2d at 78. The fact that one liable

party is insolvent or cannot be collected from for other reasons is not one of the four

exceptions in subdivision 1 to which joint and several liability still applies. Yet that

would be the practical effect of permitting reallocation to severally liable parties under

subdivision 2. The Legislature’s expression of a general rule of several liability subject

to four exceptions in subdivision 1 precludes an interpretation of subdivision 2 that would

effectively create a fifth exception to the several liability rule.

Our conclusion that a defendant who is severally liable under subdivision 1 is not

required to pay more than the defendant’s equitable share of the damages under the

reallocation provision of subdivision 2 finds additional support in the legislative history

of section 604.02. Under Minnesota common law, parties whose concurrent negligence


11

caused injury were jointly and severally liable for the resulting damages. See Maday v.

Yellow Taxi Co. of Minneapolis, 311 N.W.2d 849, 850 (Minn. 1981). This legal standard

prevailed until the Legislature began to place limitations on the rule. Id.; see also

Michael K. Steenson, Joint and Several Liability Minnesota Style, 15 Wm. Mitchell L.

Rev. 969, 970-72 (1989). The Legislature’s history of enacting and amending Minn. Stat.

§ 604.02 indicates its intent to limit the application of joint and several liability.

In 1969, the Legislature codified a comparative negligence scheme that did not

abolish joint and several liability. Act of May 23, 1969, ch. 624, § 1, 1969 Minn. Laws

1069, 1069 (codified as amended at Minn. Stat. § 604.01, subd. 1 (2012)). In 1978, the

Legislature enacted Minn. Stat. § 604.02. Act of Apr. 5, 1978, ch. 738, § 8, 1978 Minn.

Laws 836, 840 (codified as amended at Minn. Stat. § 604.02 (2012)). When it did so, it

moved the statutory language regarding joint and several liability into subdivision 1 of

section 604.02, which at the time read, “When two or more persons are jointly liable,

contributions to awards shall be in proportion to the percentage of fault attributable to

each, except that each is jointly and severally liable for the whole award.” Minn. Stat.

§ 604.02, subd. 1 (1978). At the same time, the Legislature enacted the reallocation-of-

damages provision in subdivision 2, which remains unchanged today. Act of Apr. 5,

1978, ch. 738, § 8, 1978 Minn. Laws 836, 840 (codified at Minn. Stat. § 604.02, subd. 2

(2012)).

Thus, when subdivision 2 was enacted, it was a mechanism to limit the amount of

damages that a jointly liable defendant could be required to pay. “Specifically, after the

1978 amendments to chapter 604, parties against whom judgment had been entered no


12

longer were jointly and severally liable for the entire judgment if another party’s share of

the judgment proved to be uncollectible.” Staab I, 813 N.W.2d at 77. Instead, a jointly

liable defendant could petition the district court to reallocate an uncollectible portion of

damages among all potentially liable parties, including the plaintiff.4 Steenson, Joint and

Several Liability Minnesota Style, supra, at 976.

While subdivision 2 remains unchanged since its original enactment, subdivision 1

has been amended several times to place further limitations on joint and several liability.

The 1986 amendment capped liability for jointly and severally liable states and

municipalities that were less than 35 percent at fault. See Act of Mar. 25, 1986, ch. 455,

§ 85, 1986 Minn. Laws 840, 882 (codified as amended at Minn. Stat. § 604.02, subd. 1

(2012)). The 1988 amendment, in part, capped damages for jointly and severally persons

whose fault was 15 percent or less, except for those who were found liable under certain

environmental statutes. See Act of Apr. 12, 1988, ch. 503, § 3, 1988 Minn. Laws 375,

378 (codified as amended at Minn. Stat. § 604.02, subd. 1 (2012)). Minnesota Statutes

4 An example illustrates how the 1978 enactment of subdivision 2 limited the amount of damages a jointly liable defendant could be required to pay. Suppose that in a lawsuit against two defendants, a jury found that the plaintiff had $10,000 in damages and apportioned 10 percent of the fault to Plaintiff, 10 percent to Defendant A, and 80 percent to Defendant B. If Defendant B could not pay its share of the judgment, unmodified joint and several liability rules would have required Defendant A to pay 90 percent of the plaintiff’s damages, or $9,000. Steenson, Joint and Several Liability Minnesota Style, supra, at 976-77. Under subdivision 2, however, a district court must reallocate the uncollectible amount ($8,000) between Defendant A and Plaintiff according to their respective percentages of fault. Because Defendant A and Plaintiff were equally at fault, the uncollectible amount would be reallocated in equal shares, resulting in Defendant A paying only $5,000 (10 percent of the plaintiff’s damages for Defendant A’s fault plus 50 percent of the uncollectible amount). Id.


13

§ 604.02 remained substantially unchanged for fifteen years until the Legislature

amended subdivision 1 again in 2003. See Act of May 19, 2003, ch. 71, § 1, 2003 Minn.

Laws 386, 386 (codified at Minn. Stat. § 604.02, subd. 1 (2012)). The 2003 amendments

are significant here because they made several liability, as opposed to joint and several

liability, the general rule, subject to four exceptions.5 Id. With each amendment of the

statute over the course of 25 years, the Legislature further curtailed joint and several

liability in Minnesota.

Finally, the Legislature’s formal discussions of the 2003 amendment demonstrate

an intent consistent with our construction of the statute. For example, during both the

House and Senate floor debates of the proposed changes to joint and several liability,

legislators urged their colleagues to vote in favor of the bill by emphasizing the

importance of making Minnesota’s tort system fair by requiring people and companies to

pay for the harm they cause but not for harm caused by others. See, e.g., Sen. Debate on

S.F. 872, 83d Minn. Leg., May 13, 2003 (video tape) (statement of Sen. Linda Scheid,

author of S.F. 872); House Debate on S.F. 872, 83d Minn. Leg., May 13, 2003 (video

tape) (statement of Rep. Jeff Johnson). These arguments were countered by a dissenting

5 By enacting the 2003 amendment to subdivision 1, the Legislature clearly intended to abrogate the common law rule of joint and several liability for tortfeasors whose concurrent negligence causes an indivisible injury to a plaintiff. See Staab I, 813 N.W.2d at 78. (“[W]e conclude that the 2003 amendments to the statute clearly indicate the Legislature’s intent to limit joint and several liability to the four circumstances enumerated in the exception clause, and to apply the rule of several liability in all other circumstances.”). Contrary to the dissent’s claims, our conclusion in this case is neither contrary to our case law regarding the interpretation of statutes in derogation of the common law, nor is it inconsistent with our holding in Staab I.


14

representative who urged his colleagues to vote against the proposed changes to joint and

several liability because the proposed changes would create instances in which victims

would not receive full compensation for their injuries. House Debate on S.F. 872, 83d

Minn. Leg., May 13, 2003 (video tape) (statement of Rep. Len Francis Biernat). Despite

these warnings on the House floor about the consequences for injured victims, the bill

passed. See, e.g., id. Allowing uncollectible damages attributable to the fault of one

party to be reallocated to a severally liable party would be contrary to the clear purpose of

the 2003 amendment—requiring severally liable parties in the Minnesota tort system to

pay only for the harm caused by their own conduct and not for the harm caused by others.

Our canons of statutory construction, the legislative history, and the purpose of

Minn. Stat. § 604.02 support our analysis and preclude the application of the reallocation-

of-damages provision to severally liable parties. We, therefore, conclude that under

Minn. Stat. § 604.02, subd. 2, an uncollectible portion of a party’s equitable share of

damages cannot be reallocated to a party that is only severally liable under Minn. Stat.

§ 604.02, subd. 1.

III.

The dissent’s criticism of our analysis is flawed for two reasons, which we address

in turn. First, the dissent contends that our decision conflicts with long-standing case law

on how we interpret amendments to a subdivision of a statute. The dissent is misguided.

The standards for statutory construction that we employ are well grounded in our case

law. We respectfully decline the dissent’s invitation to discard or ignore them.


15

The dissent claims that because the Legislature amended only subdivision 1 in

2003, this significant statutory change that made several liability the general rule in

Minnesota has no impact on the reallocation provisions in subdivision 2 without “words

showing an intent to amend” subdivision 2. But the dissent errs by reading the cases it

cites too broadly. For example, the dissent cites Sorseleil v. Red Lake Falls Milling Co.,

111 Minn. 275, 276, 126 N.W. 903, 904 (1910), which involved the interpretation of a

statute defining when a juror could be challenged for implied bias. In Sorseleil, we

explained that two subdivisions of the statute, each defining a ground for finding implied

bias, were “complete in [them]sel[ves],” “sustain[ed] no relation” to the other, and were

“in no manner interdependent.” Id. at 278, 126 N.W. at 904. Under those

circumstances—which are not present here—we held that “the amendment of the one

does not amend the other, in the absence of any words in the amendment to that effect.”

Id. at 278, 126 N.W. at 904. Here, unlike the statute at issue in Sorseleil, the subdivisions

of section 604.02 are not complete in themselves. They have a relationship with each

other.

Second, the dissent contends that because the Legislature did not expressly limit

the application of subdivision 2 to jointly and severally liable parties, our interpretation of

section 604.02 violates our rule against adding to a statute words that were intentionally

or inadvertently omitted by the Legislature. But the application of that rule is inapposite

where, as here, the language of the statute is ambiguous. Rather, our prohibition against

adding words to a statute applies when an unambiguous statute is silent on the issue in

question. See State v. Moseng, 254 Minn. 263, 269, 95 N.W.2d 6, 11-12 (1959) (“Where


16

failure of expression rather than ambiguity of expression concerning the elements of the

statutory standard is the vice of the enactment, courts are not free to substitute

amendment for construction and thereby supply the omissions of the legislature.”). Here,

the conflict between subdivision 1 and subdivision 2 does not arise because subdivision 2

is silent regarding its application to severally liable parties. Rather, the conflict between

subdivision 1 and subdivision 2 arises because the application of subdivision 2 to

severally liable parties would completely eviscerate the Legislature’s amendment to

subdivision 1.

Our task here is to effectuate the intent of the Legislature. The dissent apparently

disagrees with the Legislature’s decision to curtail joint and several liability in

Minnesota. But the Legislature—not the courts—remains the appropriate venue to revisit

this genuine policy debate.

IV.

For the foregoing reasons, we hold that a party who is severally liable under Minn.

Stat. § 604.02, subd. 1, cannot be ordered to contribute more than that party’s equitable

share of the total damages award under the reallocation-of-damages provision in Minn.

Stat. § 604.02, subd. 2.6 The district court erred by reallocating to the Diocese the share

6 Because we conclude that damages cannot be reallocated to a severally liable party under Minn. Stat. § 604.02, subd. 2, we need not consider the second issue raised by the Diocese—whether damages must be reduced to a judgment before being reallocated under Minn. Stat. § 604.02, subd. 2. See State v. Castillo-Alvarez, 836 N.W.2d 527, 534 n.3 (Minn. 2013).


17

of damages attributed to Staab’s husband. We, therefore, reverse the court of appeals and

remand to the district court for entry of judgment consistent with this opinion.

Reversed and remanded.


D-1

D I S S E N T

LILLEHAUG, Justice (dissenting).

Today a blameless plaintiff, who was thrown out of her wheelchair onto a cement

sidewalk, is denied a remedy for half of the damages she suffered. Today the solvent

tortfeasor, whose negligence caused the plaintiff to be thrown onto the cement sidewalk,

benefits. This result violates the plain words of the law, judicially amends what the

Legislature did not, and ignores our long-standing rule that statutes in derogation of the

common law must be strictly construed. So I respectfully dissent.

I.

Minnesota has followed the common law rule of joint and several liability since at

least 1888. See Flaherty v. Minneapolis & St. Louis Ry. Co., 39 Minn. 328, 329, 40 N.W.

160, 160-61 (1888); Virtue v. Creamery Package Mfg. Co., 123 Minn. 17, 39, 142 N.W.

930, 939 (1913). In 1969, the Legislature modified the common law by adopting Minn.

Stat. § 604.01, the comparative fault law.

In 1978, the Legislature again modified the common law by passing Minn. Stat.

§ 604.02. Staab v. Diocese of St. Cloud (Staab II), 813 N.W.2d 68, 73 (Minn. 2012).1

Section 604.02 as passed consisted of three subdivisions.

Subdivision 1 initially provided that jointly and severally liable persons must

contribute “in proportion to” their percentage of fault, while remaining “liable for the 1 Staab I was the first court of appeals decision in this case, 780 N.W.2d 392 (Minn. App. 2010). Staab II was this court’s decision affirming and modifying Staab I. Staab III was the court of appeals decision after subsequent proceedings, 830 N.W.2d 40 (Minn. App. 2013), which the court reverses today in what will be known as Staab IV.


D-2

whole award.” Minn. Stat. § 604.02, subd. 1 (1978). Since 1978, subdivision 1 has been

amended repeatedly. The most recent amendment was in 2003, when the Legislature

limited the ability of plaintiffs to collect their full awards immediately from tortfeasors

whose percentage of fault is less than 51 percent. See Act of May 19, 2003, ch. 71 § 1,

2003 Minn. Laws 386, 386 (codified at Minn. Stat. § 604.02, subd. 1 (2012)).

Subdivision 1 now provides that, with four exceptions not applicable here, “[w]hen two

or more persons are severally liable, contributions to awards shall be in proportion to the

percentage of fault attributable to each.” Minn. Stat. § 604.02, subd. 1 (2012).

The 2003 Legislature passed the amendment of subdivision 1 against the backdrop

of subdivisions 2 and 3, also passed in 1978. The 2003 Legislature kept subdivisions 2

and 3 intact.

Subdivision 2, captioned “Reallocation of uncollectible amounts generally,”

applies to cases in which “respective percentages of fault” have been determined and

judgment has been entered. Minn. Stat. § 604.02, subd. 2. In such cases, upon motion

within a year of judgment, “the court shall determine whether all or part of a party’s

equitable share of the obligation is uncollectible from that party and shall reallocate any

uncollectible amount among the other parties, including a claimant at fault, according to

their respective percentages of fault. A party whose liability is reallocated is nonetheless

subject to contribution . . . .” Id.

Subdivision 3, too, deals with reallocation, carving out an exception to the general

reallocation provisions of subdivision 2. Captioned “Product liability; reallocation of

uncollectible amounts,” subdivision 3 contains specific rules for reallocation of


D-3

uncollectible amounts among persons in the chain of manufacture and distribution of a

product. Minn. Stat. § 604.02, subd. 3.

II.

The question in this case, in which “respective percentages of fault” have been

determined and judgment has been entered, is whether, as Alice Staab contends and the

district court and the court of appeals held, subdivision 2 must be applied as written,

requiring reallocation to the solvent tortfeasor of the insolvent tortfeasor’s uncollectible

equitable share based on their respective percentages of fault. The Diocese of St. Cloud

(the Diocese) contends that the 2003 amendment to subdivision 1 also silently amended

subdivision 2, thereby prohibiting reallocation except in the four exceptional categories

of cases referenced in subdivision 1.

In answering this question, we do not write on a blank slate. In Staab II, this court

interpreted subdivision 1 to limit the contribution of a tortfeasor to an award in favor of

the injured, non-negligent claimant. 813 N.W.2d at 80. Staab II held that the Diocese,

the only named defendant in the case, need contribute only 50 percent of the award in

light of the jury’s attribution of the other 50 percent of the fault to a non-party “empty

chair”: Alice Staab’s husband, Richard. Id.

In interpreting subdivision 1, Staab II relied heavily on our long-standing rule that

statutes in derogation of the common law are strictly construed and on the common law

doctrine that liability and equitable shares are created at the moment a tort is committed.

Id. at 73-74. Applying these principles, Staab II held that the contribution limitation in


D-4

subdivision 1 applies when more than one tortfeasor acts to cause an indivisible harm to a

claimant, regardless of how many tortfeasors are named in a lawsuit. Id. at 77.

Three justices dissented. They noted that the majority had defined the word

“persons” in subdivision 1 and the word “parties” in subdivision 2 to mean the same

thing: all persons who are parties to the tort, regardless of whether they are named in the

lawsuit. Id. at 84-85 (Meyer, J., dissenting). Based on that definition, the dissenters

predicted that the majority opinion in Staab II would “effectively obligate the Diocese to

pay the entire award anyway” after reallocation under subdivision 2.2 813 N.W.2d at 85.

The Staab II dissenters’ prediction that the Staab II majority would follow its own

logic was, unfortunately, incorrect. The majority today both misreads subdivision 2 and

declines to apply the principles underlying Staab II, including the rule that statutes in

derogation of the common law must be strictly construed.

III.

I first consider whether the words of the law are clear, unambiguous, and explicit.

Minn. Stat. § 645.16 (2012). If so, I must “apply the statute’s plain meaning.” Brayton v.

Pawlenty, 781 N.W.2d 357, 363 (Minn. 2010) (citation omitted) (internal quotation

marks omitted).

In this case, the words of the law “in their application to an existing situation are

clear and free from all ambiguity.” Minn. Stat. § 645.16. Under subdivision 2, we must

2 In response, the Staab II majority said only: “The application of subdivision 2 to this case is not before us, however, and therefore we do not reach it.” Staab II, 813 N.W.2d at 79 n.7.


D-5

first identify the tortfeasor “parties.” Then we must identify each party’s “equitable share

of the obligation” by each party’s “respective percentages of fault.” Then we must

determine whether a motion for reallocation has been made not later than one year after

judgment. Finally, we must determine if a party’s equitable share is uncollectible. If so,

the plain words of subdivision 2 require that the district court “shall reallocate” the

uncollectible amount.

Applying the plain words of the statute, as confirmed by Staab II, both the Diocese

and Richard Staab were tortfeasor “parties.” Alice Staab sustained indivisible harm from

the parties’ actions. The jury determined each party’s “equitable share of the obligation”

by allocating “respective percentages of fault.” A motion for reallocation was made no

later than one year after judgment. Richard Staab’s equitable share was uncollectible.

Therefore, the text of subdivision 2 clearly and unambiguously required that the district

court reallocate Richard Staab’s uncollectible amount to the Diocese.

The majority acknowledges that this straightforward reading of subdivision 2 is

reasonable. As the majority concedes, “[t]he text of subdivision 2 indicates that any

party is subject to reallocation.” (Emphasis added.) That concession regarding the plain

meaning of the text should end the discussion.

But, says the majority, it is also reasonable to read the 2003 amendment to

subdivision 1 as silently amending subdivision 2, thereby making subdivision 2

ambiguous. Oddly, the majority points to no ambiguous words or phrases in either

subdivision 1 or subdivision 2. It cites no alternative dictionary definitions. Rather, the

majority’s theory seems to be that subdivision 2 as a whole must be ambiguous because,


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if it were read and applied literally, subdivision 2 would “completely eviscerate[]”what

the majority surmises the 2003 Legislature intended in subdivision 1. The majority’s

analysis turns statutory interpretation on its head by using the purported legislative spirit

behind one subdivision to create a cloud of ambiguity over another subdivision. See

Minn. Stat. § 645.16 (“When the words of a law in their application to an existing

situation are clear and free from all ambiguity, the letter of the law shall not be

disregarded under the pretext of pursuing the spirit.”). The proper method of analysis is

to determine first whether there is ambiguity in the statute’s text and, if so, then and only

then apply the canons of construction, including contemporaneous legislative history. Id.

Thus, the majority eschews the plain words and uses a questionable method of

statutory analysis. But the majority’s reading of subdivision 2 is unreasonable for four

other reasons.

First, the majority opinion conflicts with our black-letter case law on how we read

subdivision amendments. By the majority’s reasoning, Minnesota courts must now read

subdivision 2 differently than they did from 1978 until today’s decision. But our rule is

that, when one subdivision of a statute is amended and another is not, unless there are

words showing an intent to amend, “the second subdivision means just what it meant

before the first subdivision was amended . . . .” Sorseleil v. Red Lake Falls Milling Co.,

111 Minn. 275, 278, 126 N.W. 903, 904 (1910). Such intent to amend must be clear, as

we do not favor amendment by implication. We assume that, if the Legislature

deliberately intends to amend a subdivision, it will do so directly and not leave it to

inference. Brown v. Vill. of Heron Lake, 67 Minn. 146, 147, 69 N.W. 710, 710 (1897);


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see also Minn. Stat. § 645.39 (2012) (providing that “a later law shall not be construed to

repeal an earlier law unless the two laws are irreconcilable” or the later law “purports to

be a revision of all laws upon a particular subject”). Typically, “continuity of text equals

continuity of meaning.” In re Towers, 162 F.3d 952, 954 (7th Cir. 1998).

Second, and in a related vein, the majority opinion conflicts with our rule that we

do not, and cannot, add to a statute words or meaning intentionally or inadvertently

omitted by the Legislature. Rohmiller v. Hart, 811 N.W.2d 585, 590 (Minn. 2012);

Genin v. 1996 Mercury Marquis, 622 N.W.2d 114, 117 (Minn. 2001). It would have

been easy for the Legislature to say what the majority now divines it must have meant to

say. As the majority opinion correctly notes, “[t]he Legislature could have provided an

express exception to subdivision 2 for parties who are severally liable under subdivision

1, but it did not do so.” When it amended subdivision 1, the Legislature could have said,

for example: “contributions to awards shall be in proportion to the percentage of fault

attributable to each regardless of collectibility.” But it did not. Or the Legislature could

have amended subdivision 2 to read: “Upon motion made not later than one year after

judgment is entered in a joint liability case under subdivision 1.” But it did not. Or:

“the court shall determine whether all or part of a party’s equitable share of the obligation

under subdivision 1 is uncollectible.” But it did not.

By contrast, subdivision 3 of the same statute, passed at the same time as

subdivision 2, demonstrates beyond doubt that, when the Legislature wants to limit

reallocation of uncollectible amounts, it very well knows how to do so. Subdivision 3

states: “Provided, however, that a person whose fault is less than that of a claimant is


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liable to the claimant only for that portion of the judgment which represents the

percentage of fault attributable to the person whose fault is less.” There is nothing like

that in subdivision 2.

To justify what is essentially the judicial addition of words to subdivision 2, the

majority falls back on “expressio unius,” the canon that “[e]xceptions expressed in a law

shall be construed to exclude all others,” Minn. Stat. § 645.19 (2012). The majority

theorizes that the four joint liability exceptions in subdivision 1 thereby exclude

reallocation under subdivision 2. But expressio unius must be used with great caution,3

and “is only justified when the language of the statute supports such an inference,” State

v. Caldwell, 803 N.W.2d 373, 383 (Minn. 2011).

There is no such justification in this case. Subdivision 1 speaks in terms of

“contributions to awards,” while subdivision 2 speaks in terms of “a party’s equitable

share of the obligation.” Subdivisions 1 and 2 may be read together, straightforwardly

and logically, and harmonized. Under subdivision 1, a tortfeasor need not contribute

more to the award than its percentage of fault if there is another solvent tortfeasor; and,

3 See Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 703-04 (1991) (“[T]he principle expressio unius est exclusio alterius is a questionable one in light of the dubious reliability of inferring specific intent from silence.”) (citation omitted) (internal quotation marks omitted); Ford v. United States, 273 U.S. 593, 612 (1927) (describing the maxim as “a dangerous master to follow”) (citation omitted) (internal quotation marks omitted); Christianson v. Henke, 831 N.W.2d 532, 535 n.3 (Minn. 2013) (“Virtually all the authorities who discuss the negative-implication canon emphasize that it must be applied with great caution, since its application depends so much on context.” (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 107 (2012))).


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under subdivision 2, only upon motion and a determination of insolvency may a

tortfeasor be required to pay more, while maintaining its claim for contribution.

Third, while purporting to read subdivisions 1 and 2 together, the majority opinion

conflicts with the rule that a statute must be read in a manner that gives effect to each and

all of its provisions. See Minn. Stat. § 645.16. This means that we must read together

and harmonize not only subdivisions 1 and 2, but also subdivision 3, which was part of

the original section 604.02 and remains intact. See Minn. Stat. § 645.31, subd. 1 (2012)

(“When a section or part of a law is amended . . . the remainder of the original enactment

and the amendment shall be read together . . . .”) (emphasis added). Had the 2003

amendment to subdivision 1 silently amended subdivision 2 (by expressio unius or

otherwise) to limit reallocation to the four joint liability exceptions in subdivision 1, then,

logically, we would have to read subdivision 3, passed at the same time as subdivision 2,

as similarly amended and so limited. Put another way, by the majority’s analysis,

subdivision 1 would require that, in a product liability case, reallocation of an insolvent

party’s percentage of an award would be triggered only if the products liability case first

fit within one of the four joint liability exceptions in subdivision 1.

But to read subdivisions 1, 2, and 3 together in that way would make no sense.

Like subdivision 2, subdivision 3 continues to stand on its own. Just as subdivision 2

clearly applies “generally” to all multi-party tort cases in which percentages of fault are

found, so, too, does subdivision 3 apply to all product liability cases in which multiple

parties in the chain of manufacture and distribution are at fault. Indeed, subdivision 3


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expressly provides for reallocation to parties whose negligence is less than 50 percent.

This is another signal that we should read subdivision 2 as written.

Fourth, the majority’s holding that subdivision 1 tacitly amended subdivision 2

conflicts with yet another basic presumption of statutory interpretation: that statutes in

derogation of common law must be strictly construed.4 This presumption occupied

center stage in Staab II.5 As Staab II held, when interpreting section 604.02, we should

not presume that the Legislature intended to abrogate or modify a common law rule

except to the extent “expressly declared or clearly indicated in the statute.” 813 N.W.2d

at 73; see also Ly v. Nystrom, 615 N.W.2d 302, 314 (Minn. 2000) (“We have . . . long

presumed that statutes are consistent with the common law, and if a statute abrogates the

common law, the abrogation must be by express wording or necessary implication.”).

There is no such express wording or necessary implication here. By reading

subdivision 1 to amend unamended subdivision 2, the majority sidesteps this important

presumption applied previously in this case and in many others. The concept that a

plaintiff who has suffered an indivisible injury cannot ever recover the insolvent

4 The presumption that we strictly construe statutes in derogation of the common law typically is applied before we determine whether a statute is ambiguous. See, e.g., Dahlin v. Kroening, 796 N.W.2d 503, 505 (Minn. 2011); Wirig v. Kinney Shoe Corp., 461 N.W.2d 374, 377 (Minn. 1990). 5 Staab II invoked the common law to define the word “party” in subdivision 2 to mean any party to the tort, regardless of whether that person is a party to the lawsuit. 813 N.W.2d at 77. Staab II further invoked the common law to define the phrase “equitable share of the obligation” in subdivision 2 to mean the equitable shares apportioned to each tortfeasor at the time of the tort. Id.


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tortfeasor’s share, in preference to a solvent tortfeasor, is an abrogation of the common

law. If the Legislature intended such abrogation, it had to say so clearly. It did not.6

Accordingly, the words of subdivision 2 in their application are clear and free

from all ambiguity. Subdivision 2 meant what it said when it was enacted in 1978 and

should mean the same now.

So, on what does the majority rely to show that the 2003 Legislature intended to

amend subdivision 2 without changing a single word? Precious little. The majority relies

primarily on several statements during the 2003 floor debates. But the legislators’

statements (on both sides of the question) were general and did not directly address how

the specific words of the amendment to subdivision 1 would or would not amend the

unchanged words of subdivision 2, governing reallocation of uncollectible amounts

generally, or subdivision 3, governing reallocation of uncollectible amounts in product

liability cases. As counsel for the Diocese confirmed at oral argument: “But to directly

answer your question, I don’t believe there is anything, I’ll say, of significance in the

legislative history in 2003 relative to subdivision 2.”

IV.

By its order dated August 8, 2012, the district court faithfully applied the plain

words of subdivision 2 to this case. Under subdivision 1, Alice Staab initially could

collect only 50 percent of her award from the Diocese. She timely made her motion for

6 By requiring that a judgment creditor make a motion and obtain a determination that an equitable share is uncollectible, subdivision 2 itself is a departure from the common law of collection in multi-party tort cases.


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reallocation, thereby triggering subdivision 2. Subdivision 2 required that, upon such

motion, the district court determine whether Richard Staab’s equitable share of the

obligation was uncollectible. The district court determined that it was.

Properly and logically, applying subdivision 2, the district court reallocated

Richard Staab’s uncollectible share to the only other party at fault, the Diocese. Pursuant

to subdivision 2, that reallocation did not extinguish Richard Staab’s equitable share of

the obligation and the Diocese retained its right to contribution from him. The district

court followed subdivision 2 exactly.

The court of appeals,7 in Staab III, also faithfully applied what it called the “plain

language” of subdivision 2. 830 N.W.2d at 46-47. This was not the first court of appeals

panel to read the clear, unambiguous words of subdivision 2 as requiring reallocation

from an insolvent tortfeasor to a solvent, severally liable tortfeasor. In O’Brien v.

Dombeck, also decided after Staab II, a unanimous panel, affirming the district court,

held that the “plain text” of subdivision 2 required such reallocation. 823 N.W.2d 895,

899 (Minn. App. 2012).8

Unlike the panels and judges below who read the plain words of subdivision 2

with clear eyes, as illuminated by Staab II, today’s majority holds that the injured person

must absorb half of her damages from the tort. Like the panels and judges below, my

7 The decision was 2-1. The dissent was on a ground not reached by the majority in this case. 8 The solvent tortfeasor in O’Brien did not petition this court for review.


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dissent to this holding is not based on a policy preference, but on the plain text of the

statute read against the backdrop of 125 years of Minnesota common law.

V.

Given that reallocation under subdivision 2 was proper, I would reach and reject

the Diocese’s alternative argument that, under subdivision 2, Richard Staab’s equitable

share was not uncollectible, and reallocation could not be ordered, because there was no

“judgment” against Richard Staab. Again, the Diocese seeks to benefit from its own

strategic litigation decision not to bring in Richard Staab as a third-party defendant but to

pass off as much fault as possible to an empty chair. Again, the Diocese’s argument is

foreclosed by the plain words of the statute and the reasoning of Staab II.

Subdivision 2 does not use the word “judgment”; it uses the phrase “equitable

share of the obligation.” As Staab II confirmed, the term “obligation” is different (and

broader) than “judgment.” 813 N.W.2d at 76.

In this case, there was no judgment against Richard Staab because the Diocese

preferred to have an empty chair’s “respective percentage of fault” and “equitable share

of the obligation” determined by the jury. As required by subdivision 2, the district court

properly held a hearing on whether Richard Staab could pay and concluded that he could

not. The record does not show, and the Diocese does not demonstrate, that the district

court’s finding that Richard Staab’s equitable share was uncollectible is incorrect, much

less clearly erroneous. See State v. R.H.B., 821 N.W.2d 817, 822 n.3 (Minn. 2012) (“A

district court’s findings of fact will not be disturbed unless they are clearly erroneous.”).


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VI.

For all of these reasons, the blameless plaintiff should not bear 50 percent of her

loss while a solvent tortfeasor escapes reallocation. The court of appeals decision,

affirming the decision of the district court, should be affirmed.

One of the pillars in our state constitution’s bill of rights is the guarantee that

every person is entitled to a “certain remedy” for injuries with the right to “obtain justice

freely and without purchase, completely and without denial, promptly and without delay,

conformable to the laws.” Minn. Const. art. I, § 8. Today’s decision chisels a chunk

from that pillar.

PAGE, Justice (dissenting).

I join in the dissent of Justice Lillehaug.

Turning Unambiguous Statutory Materials into Ambiguous Statutes:Ordering Principles, Avoidance, and Transparent Justification in Cases of Interpretive Choice

Carlos E. González

Rutgers School of Law

123 Washington Street Newark, NJ 07102-1811

Carlos E. González is a professor of law and Herbert Hannoch Scholar at Rutgers School of Law, Newark, where he teaches Constitutional Law, Statutory Interpreta-tion, and Torts. His publications include Trumps, Inversions, Balancing, Presump-tions, Institution Prompting, and Interpretive Canons: New Ways for Adjudicating Conflicts Between Legal Norms in the Santa Clara Review (2005), Representing Struc-tures Through Which We The People Ratify Constitutions: The Troubling Original Understanding of the Constitution’s Ratification Clauses in the UC Davis Law Review (2005), and Turning Unambiguous Statutory Materials into Ambiguous Statutes: Ordering Principles, Avoidance, and Transparent Justification in Cases of Interpretive Choice in the Duke Law Journal (2011).

Turning Unambiguous Statutory Materials into Ambiguous Statutes... ■ González ■ 235

Turning Unambiguous Statutory Materials into Ambiguous Statutes: Ordering Principles, Avoidance, and Transparent Justification in Cases of Interpretive Choice

I. Paper ...........................................................................................................................................................237

Table of Contents


I. Paper

Demystifying Vagueness:Uncovering the Objective Test

John M. Thomas

Dykema Gossett PLLC

2723 South State Street, Suite 400 Ann Arbor, MI 48104 (734) 214-7613 [email protected]

John M. Thomas is recognized nationally as a class action and appellate practitioner. He has briefed and argued appeals in federal and state courts throughout the country. Before joining Dykema, he led Ford Motor Company’s appellate practice for 27 years. In that role, he supervised Ford’s most significant appellate, class action, and complex litigation. He pioneered Ford’s acclaimed Advanced Motions Program, designed to influence the long-term development of the common law, by integrating legal scholarship and appellate practice with successful trial strategy. Mr. Thomas was one of the founding members of the Product Liability Advisory Council.

Demystifying Vagueness: Uncovering the Objective Test ■ Thomas ■ 307

Demystifying Vagueness: Uncovering the Objective Test

I. Paper ...........................................................................................................................................................309

Table of Contents


I. Paper

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Demystifying Vagueness: Uncovering the Objective Test

By John M. Thomas1

I. Introduction ............................................................................................................................. 3

II. The Evolution of The Modern “Void For Vagueness” Standard ............................................ 8

A. Origins: 1810-1910. ........................................................................................................... 8

B. Early Rulings From The United States Supreme Court: 1875-1910. .............................. 13

C. The Supreme Court’s First Vagueness Rulings: Waters-Pierce (1909) and Nash (1913). 16

D. International Harvester and Its Aftermath (1914-1920). ................................................. 21

E. Cohen Grocery and Its Aftermath (1921-1925)................................................................ 24

F. Prong I Of The Modern Standard Articulated and Applied (Inconsistently): Connally, Miller, Trenton Potteries, and Cline (1926-1932). ................................................................... 28

G. Prong II Of The Modern Standard Articulated: Giacco (1966) ....................................... 34

1 Member, Dykema Gossett PLLC; formerly Counsel, Ford Motor Company. The ideas expressed in this article are mine alone, and they do not necessarily reflect the views of anyone else. But three people in particular have had a substantial influence on the development of these ideas: (1) the late G. Richard Doty, who first suggested to me that the general standard for awarding punitive damages would be unconstitutionally vague as applied to product liability cases involving the design of mass-produced products unless the standard was tailored specifically for such cases, and whose arguments on this point were rejected, in an unjustifiably peremptory fashion, in Grimshaw v. Ford Motor Co., 119 Cal.App.3d 757, 174 Cal. Rptr. 348 (1981) (effectively treating Mr. Doty’s “as applied” challenge as if it were a “facial” challenge); (2) Malcolm E. Wheeler, who articulated a specific test for awarding punitive damages in design defect cases (whether all reasonable people would necessarily conclude that the product was defective) that was consistent with the general standard prevalent in most states and that (as it turns out) would survive a vagueness challenge; and (3) Professor David G. Owen, who provided the important insight that punitive damages should not be awarded in a design defect case unless the plaintiff is entitled to a directed verdict (or close thereto) on the issue of design defect. David G. Owen, Problems In Assessing Punitive Damages Against Manufacturers Of Defective

Products, 49 U. CHI. L. REV. 1, 37-38 (1982). I am also indebted to Mr. Wheeler, Professor Owen, the late Robert W. Powell, Michael J. O’Reilly, Kristin Pil, Marcy Hahn, Theodore J. Boutrous, Wendy Lumish, Brian Bohl, and Krista Lenart for taking the time to review and comment upon earlier (and much longer longer) drafts of this article.


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III. The Evolution Of “Facial” vs. “As Applied” Analysis........................................................ 36

A. A Landmark—But Probably Erroneous—Decision: Reese (1875). ................................ 36

B. The First (Inconsistent) Decisions In Vagueness Cases: Wurzbach, Lanzetta, Petrillo, and Screws (1930-1947). ................................................................................................................. 37

C. Raines and its Aftermath (1960-1971). ............................................................................. 46

D. The “Hard Core” Principle (1973-1978, With a Flashback to 1957). .............................. 53 1. Hard Core “Obscenity”: Roth and Miller. ..................................................................... 53 2. “Hard Core” Political Activity: Broadrick v. Oklahoma. ............................................ 56 3. “Conduct Unbecoming An Officer” and “Crimes Against Nature”: Parker and Rose. 58

IV. Further From Nash, Closer To Tozer. ................................................................................... 62

A. Nash Revisited: United States Gypsum and Colautti (1978-1979). ................................. 62

B. The Flipside And Its Aftermath (1982-1996). .................................................................. 66

C. Closing the Circle: Lanier (1997). ................................................................................... 71

D. Continuing Debate Over Facial vs As-Applied Analysis: Morales (1999). .................... 74

V. Vagueness in the 21st Century............................................................................................... 76

VI. Conflict and Reconciliation. ................................................................................................. 81

A. Dey/Tozer and Its Progeny. ............................................................................................... 82

B. Nash and Its Progeny. ....................................................................................................... 86

C. Nash and Dey/Tozer Reconciled. ...................................................................................... 88 1. Superimposing Modern Facial vs. As-Applied Analysis On Older Cases. .................... 88 2. Distinguishing Between Laws Defining Unlawful Conduct And Laws Specifying Penalties. ............................................................................................................................... 92 3. Recognizing that Punitive Laws Are Unique. ................................................................ 96

VII. Applying Vagueness Doctrine: An Example. .................................................................... 100

VIII. Conclusion. ......................................................................................................................... 104


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I. INTRODUCTION

“It cannot be stated that the case before us is entirely free from any possible doubt nor that

intelligent men may not differ as to the correct answer to the question we are called upon to

decide.”2

Decisions of the United States Supreme Court addressing due process and vagueness

often seem to be in hopeless conflict. As Anthony Amsterdam observed in his classic article on

vagueness, Supreme Court decisions sustaining or rejecting vagueness challenges in apparently

similar cases create the impression of “a pair of poolhall scoring racks on one or the other of

which, seemingly at random, cases get hung up.”3 Other commentators have agreed, lamenting,

for example, that vagueness analysis “defies principled reasoning” and seems to be “devoid of

objective tests.”4 As a result, most law review articles on the subject assume that the results in

cases can be explained only by extra-legal or non-legal considerations not explicitly addressed in

the opinions.5

2 Ex Parte Young, 209 U.S. 123, 142 (1908).

3 Anthony G. Amsterdam, Note, The Void for Vagueness Doctrine in the Supreme Court, 109 U. PA. L. REV. 67 (1960).

4 John F. Decker, Addressing Vagueness, Ambiguity, and Other Uncertainty in American

Criminal Laws, 80 DENV. L. REV. 241, 242, 243 (2002); accord, e.g., Rex A. Collings, Jr., Unconstitutional Uncertainty—An Appraisal, 40 CORNELL L. Q. 195 (1955)(“One of the more perplexing judicial doctrines is unconstitutional uncertainty . . . . To understand and rationalize the applications of the doctrine would require a philosopher’s stone, for which one may search in vain in the reported decisions. The more time spent in trying to understand the doctrine, the less sure one becomes about its content.”); Note, Due Process Requirements of Definiteness in

Statutes, 62 HARV. L. REV. 77 (1948)(“During four decades of developing the doctrine, the Supreme Court . . . has yet to work out a systematic basis for applying those factors [relevant to vagueness analysis] to a particular situation.”); Note, Void For Vagueness: An Escape From

Statutory Interpretation, 23 IND. L. J. 272, 283 (1948)(“One’s foremost impression is of the capriciousness with which the doctrine of ‘void for vagueness’ has been argued by the parties and used by the courts.”); Note, Indefinite Criteria of Definiteness In Statutes, 45 HARV. L. REV. 160, 161 (1931)(“Itself as indefinite as the statutes it condemns, the doctrine has been applied with little consistency by different courts.”).

5 Amsterdam, for example, concluded that vagueness doctrine “has been used by the Supreme Court almost invariably for the creation of an insulating buffer zone of added protection at the


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It is true, of course, that the result in any individual case might in reality be driven by

considerations other than the legal principles that the court is purporting to apply. Nevertheless,

approaching the law of vagueness as if the results are always driven by extraneous considerations

does not assist the bench and bar to understand the nature of the legal principles that, in theory at

least, ought to be driving the result. Accordingly, the thesis of this article is that there is an

identifiable test for vagueness, one that is as objective as the test for whether a public official is

immune from civil liability, and the test for whether a court should grant a directed verdict in

favor of the party with the burden of proof. Stated quite simply, the test is this: A law is

unconstitutionally vague if applied to punish a defendant under circumstances where reasonable

people acting in good faith can disagree about whether the conduct at issue was lawful.

This test is not one that can be readily discerned from a review of any individual case; in

fact, by relying on selected portions of selected cases, an advocate could facilely demonstrate

that any such test is flatly contrary to Supreme Court precedent. Nevertheless, the test is one that

emerges so clearly from the overall mosaic of the law that most of the seemingly contrary pieces

actually fit easily within the larger pattern, and most of the rest can be recognized as obvious

peripheries of several of the Bill of Rights freedoms.” Amsterdam, supra note 2, at 75. Decker concludes that vagueness is an area where “one begins with a conclusion and thereafter works backward for rational support.” Decker, supra note 4, at 243. Batey believes that in resolving vagueness challenges courts of necessity must balance the need for statutory ambiguity against the impact on protected or desirable conduct. As a result, he concludes, judges must “discriminate among legislation and among rights, though their warrant to do either is questionable; therefore, judges veil these steps, muddying waters already quite murky.” Robert Batey, Vagueness and the Construction of Criminal Statutes—Balancing Acts, 5 VA. J. SOC. POL’Y & LAW 1, 2-3 (1997); see also Ryan McCarl, Incoherent and Indefensible: An

Interdisciplinary Critique of the Supreme Court’s “Void-for-Vagueness” Doctrine, 42 Hastings Const. L.Q. 73, 75 (2014) (“Scholars have criticized the void-for-vagueness doctrine as a fig leaf for judges’ extraconstitutional substantive commitments”);Rex A. Collings, Jr., Unconstitutional

Uncertainty—An Appraisal, 40 CORNELL L. Q. 195 (1955)(“Small wonder that it should be suggested that decisions of invalidity are based upon ‘antagonism to legislative policy rather than uncertainty concerning legislative meaning.’”).


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flaws. Moreover, this larger pattern would have become apparent much sooner, and would be far

more easily recognizable today, but for four confounding factors.

The first of these confounding factors was the failure of the courts, particularly in the

formative years of vagueness doctrine, to distinguish between those cases in which it was

appropriate to rule that a law was void in toto, or “on its face,” and those cases in which it was

appropriate to rule only on the validity of the law as applied to the facts actually before the court.

As a result, many of the decisions fluctuated between two extremes; some apparently held that a

law was valid in its entirety because it would clearly be valid in some hypothetical cases, while

others apparently held that a law was invalid in its entirety because it would clearly be invalid in

some other, equally hypothetical cases. Today, the circumstances under which a court may

declare a case unconstitutionally vague “on its face” remain debatable, but it is apparent that a

court, considering the validity of a law in one case, should not attempt to foresee all possible

applications of that law in future cases and declare in advance, before any of those cases have

ever arisen, that the law can be constitutionally applied to all of those cases. Superimposing this

principle on older cases—i.e., simply recognizing that the rejection of a constitutional challenge

based on vagueness in one case cannot properly be interpreted as a holding that the law in

question would necessarily be valid in all of its possible future applications—goes a long way

towards reconciling many of the seemingly irreconcilable conflicts.

The second confounding factor is the failure of the courts to consistently recognize the

significant difference between using an imprecise standard to punish a defendant for conduct that

reasonable people could conclude was permitted by that standard, and using that same standard

for other purposes, such as for crafting prospective relief, awarding compensatory damages, or

drafting administrative regulations that specify the conduct prohibited by the standard. For


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example, there is a major difference between (1) punishing an oil company for producing natural

gas in quantities that a jury, after the fact, finds to be “waste,” and (2) issuing an injunction in

advance of any punishment defining “waste” to include production of oil in excess of 27,187,000

cubic feet per day. A standard that may be impermissibly vague when applied by a jury to

impose punishment for past conduct may be sufficiently clear to permit the court to craft an

injunction to guide future conduct, but distinctions of this nature have not always been

recognized.

The third confounding factor is the failure of the courts to consistently recognize the

significant difference between the type of vagueness that makes it difficult to distinguish

between lawful and unlawful conduct, and the type of vagueness that makes it difficult to predict

the consequences of conduct that is clearly unlawful. For example, a person who fraudulently

gains access to an apartment and forces the resident to engage in sex at knife-point cannot predict

with precision what the penalty will be at the time of his wrongful act, because the penalty will

depend (among other things) on the extent of injury to his victim and which of various

potentially applicable statutory prohibitions (assault, battery, rape, reckless endangerment, or

“crime against nature,” to name just a few) the prosecutor will elect to rely upon. But regardless

of any theoretical ambiguity in any of the statutory prohibitions under which he might ultimately

be charged, that same person could have no reasonable doubt that his conduct was unlawful.

Thus, any vagueness in a “crime against nature” statute as applied to this defendant is

fundamentally different from, for example, the vagueness in a statute declaring it a crime to sell a

product at an “unreasonably” high price, as such a statute is applied to a seller of sugar who must

decide at what price to sell his product without knowing what price a jury will later find to be

“unreasonable” and therefore criminal.


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Finally, the fourth confounding factor, and perhaps the most important, is Justice

Holmes’s opinion for the Supreme Court in Nash v. United States, a criminal prosecution under

the Sherman Act in which the defendants argued that the act, making criminal any

“unreasonable” restraint of trade, was unconstitutionally vague because “a man might find

himself in prison because his honest judgment did not anticipate that of a jury of less competent

men.”6 In elegant, superficially plausible, but ultimately misleading language, Justice Holmes

rejected this argument because “the law is full of instances where a man’s fate depends on his

estimating rightly, that is, as the jury subsequently estimates it, some matter of degree.”7 Justice

Holmes’s opinion was undermined within days of its issuance, and the Supreme Court spent

decades distinguishing and limiting it. In 1978, in fact, the same vagueness concerns raised by

the defendants in Nash—that the “the behavior proscribed by the Act is often difficult to

distinguish from the gray zone of socially acceptable and economically justifiable business

conduct”8—led the Supreme Court to reject the interpretation of the Sherman Act that would

permit a defendant to be punished simply because a jury, in hindsight, found a restraint of trade

to be “unreasonable.”9 And yet, Justice Holmes’s powerful language continues to be quoted

today, a gravitational-like force pulling vagueness doctrine outside of its natural orbit.10

Nevertheless, when the evolution of vagueness law is examined as a whole, it becomes

readily apparent that there are some basic, timeless principles that have been repeatedly

embraced by a majority of the Supreme Court for a century. Parts II-V of this article undertake

6 229 U.S. 373, 376 (1919)

7 Id. at 377.

8 United States v. United States Gypsum Co., 438 U.S. 422, 440-41 (1978).

9 Id.

10 E.g. State v. Neumann, 2013 Wis. 58 (Wis. 2013)


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this examination, following the course of the law from its origin in the common law, through the

upheaval caused by Nash, through decades of recovery, and back, almost full circle, to its

origins. Part V demonstrates that, once the confounding factors are accounted for, even Justice

Holmes’s opinion in Nash can be reconciled with a vagueness standard that protects individuals

from being punished unless reasonable people would necessarily conclude that their conduct was

unlawful.11 Finally, Part VI, using an actual case as an example, shows how vagueness doctrine

can be applied to resolve vagueness challenges in a way that is just as objective as resolving a

motion for directed verdict.

II. THE EVOLUTION OF THE MODERN “VOID FOR VAGUENESS” STANDARD

“In some of the cases the statutes involved were upheld; in others, declared invalid. The precise

point of differentiation in some instances is not easy of statement.”12

A. Origins: 1810-1910.

The earliest cases holding laws invalid on grounds of vagueness or uncertainty relied

principally upon cases holding that criminal and penal laws should be strictly construed in favor

of the defendant. An example is The Enterprise, an 1810 decision of the federal Circuit Court

11 Note that this question, whether reasonable people would necessarily conclude that the conduct alleged was unlawful, is different from the factual question normally entrusted to juries, i.e., whether the defendant, as a matter of fact, actually engaged in the conduct alleged. Thus, a law that is applied to punish a motorist for failing to stop at a stop sign would not be unconstitutionally vague simply because reasonable people might legitimately disagree about whether, as a matter of fact, the motorist stopped at the sign. As applied in most cases, at least, such a law would not raise any constitutional issue because it would not be open to the jury to decide, in hindsight, whether or not the motorist was legally required to stop at the sign. See,

e.g., United States v. Williams, 553 U.S. 285, 305 (2008)(“What renders a statute vague is not the possibility that it will sometimes be difficult to determine whether the incriminating fact it establishes has been proved, but rather the indeterminacy of precisely what that fact is.”). Where the issue is whether the incriminating fact has been proved, the defendant’s rights are protected (in criminal cases at least) “not by the doctrine of vagueness, but by the requirement of proof beyond a reasonable doubt.” Id.

12 Connally v. General Construction Co., 269 U.S. 385, 391 (1926).


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for New York cited by several of the early vagueness decisions.13 According to the court in that

case, penal laws should be construed strictly, “as such laws always have been and ever should

be,” and should “not . . . be extended to offences other than those which are specially and clearly

described and provided for.”14

It should be a principle of every criminal code, and certainly belongs to ours, that no person be adjudged guilty of an offence unless it be created and promulgated in terms

which leave no reasonable doubt of their meaning. If it be the duty of a jury to acquit where such doubts exist concerning a fact, it is equally incumbent on a judge not to apply the law to a case where he labours under the same uncertainty as to the meaning of the legislature. . . . If these principles be correct, as they are deemed to be, a court has no option where any considerable ambiguity arises on a penal statute, but is bound to decide in favour of the party accused.15

The first reported decisions expressly declaring statutes unconstitutional on vagueness

grounds appear to be Louisville & N.R. Co. v. Railroad Commission of Tennessee16

and Ex Parte

Jackson,17

decided in 1884 and 1885, respectively.18 In Jackson, a defendant who left his wife

and child without means of support was charged with violating an Arkansas statute making it a

misdemeanor to commit any act “injurious to . . . public morals.”19 The Arkansas Supreme

Court held that the statute “is simply null”: “The constitution, which forbids ex post facto laws,

could not tolerate a law which would make an act a crime, or not, according to the moral

13 8 F. Cas. 732 (Circuit Court, D. N.Y. 1810).

14 Id.

15 Id at 735 (emphases added).

16 19 F. 679 (C.C.M.D. Tenn. 1884).

17 45 Ark. 158 (1885).

18 An argument might be made that this distinction actually belongs to State v. Mann, 2 Ore 238, 240-241 (1866), which declared “void, for uncertainty” a statute that prohibited the setting up of “gambling devices,” because it did not a provide a “sufficient description of gambling devices to enable the courts to determine, with certainty, what was intended to be prohibited by the legislature.” However, while the defendant relied upon his constitutional right “to demand the nature and cause of the accusation against him,” the court’s opinion does not refer to any constitutional provision. Id.

19 Jackson, 45 Ark. at 164.


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sentiment which might happen to prevail with the judge and jury after the act had been

committed.”20

In Louisville & N.R. Co., a railroad company sought to enjoin enforcement of a statute

that made it a crime for a railroad to charge more than a “just and reasonable” rate.21 The Circuit

Court for the Middle District of Tennessee, citing only an unreported decision, granted the

injunction and held that “quasi criminal” penalties could not be predicated on terms such as

“unjust” and “unreasonable” because one jury might find that the rates charged were unjust or

unreasonable, while another jury, on the same facts, might find to the contrary, thereby “making

the guilt or innocence of the accused dependent upon the finding of the jury, and not upon a

construction of the act.”22

No railroad company can possibly anticipate what view a jury may take of the matter, and hence cannot know in advance of a verdict whether its charges are lawful or unlawful. One jury may convict for a charge made on a basis of 4 per cent., while another might acquit an accused who had demanded and received at the rate of 6 per cent., rendering the statute, in its practical working, as unequal and unjust in its operation as it is indefinite in its terms.23

While the court referred generally to the due process, contract, and equal protection clauses of

the constitution, it did not specify which of these clauses rendered the statute fatally vague,

uncertain, and indefinite.24

In 1888 and 1892, Judge (later Justice) Brewer issued two influential decisions in

Chicago & N.W. Ry. Co. v. Dey25

and Tozer v. United States.26

Dey involved another statute that

20 Id.

21 197 F. at 690.

22 Id. at 691.

23 Id. at 693.

24 Id. at 690.

25 35 F. 866 (C.C.S.D. Iowa 1888).


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made it unlawful for a railroad company to charge more than a “fair and reasonable” rate for

transportation or services.27 Justice Brewer opined that, if construed literally to impose

punishment for any rates determined by a jury to be unfair or unreasonable, the statute “would

certainly be obnoxious to complainant’s criticism” that it is “too indefinite and uncertain, no man

being able to tell in advance what in fact is, or what any jury will find to be, a reasonable

charge.”28 Citing The Enterprise and Ex Parte Jackson, Justice Brewer opined that “no penal

law can be sustained unless its mandates are so clearly expressed that any ordinary person can

determine in advance what he may and may not do under it.”29 Tozer similarly involved a statute

that prohibited a railroad company from giving an “undue and unreasonable advantage” to some

customers at the expense of others.30 Justice Brewer reversed a criminal conviction based on this

statute, holding that “[t]he criminality of an act cannot depend upon whether a jury may think it

reasonable or unreasonable.”31

In neither Dey nor Tozer did Justice Brewer rely upon any constitutional provision, but

those decisions led directly to the first decision squarely holding a statute unconstitutionally

vague on due process grounds. In 1896, the highest court of Kentucky, in Louisville & Nashville

RR Co. v. Commonwealth (Railroad Rates Case), considered yet another statute that made it a

crime for a railroad company to charge more than was “just and reasonable.”32 The court,

26 52 F. 917 (C.C.E.D. Mo. 1892).

27 35 F. at 876.

28 Id. at 876.

29 Id.

30 52 F. at 919.

31 Id.

32 Louisville & Nashville RR Co. v. Commonwealth, 99 Ky. 132, 136, 35 S.W. 129 (1896).


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relying on Dey and Tozer, held the statute violated due process because different juries could

reach different conclusions concerning whether identical conduct was a crime:

[T]hat different juries might reach different conclusions, on the same testimony, as to whether or not an offense has been committed, must also be conceded. The criminality of the carrier’s act, therefore, depends on the jury’s view of the reasonableness of the rate charged; and this latter depends on many uncertain and complicated elements.

That the corporation has fixed a rate which it considers will bring it only a fair return for its investment does not alter the nature of the act. Under this statute it is still a crime, though it can not be known to be such until after an investigation by a jury, and then only in that particular case, as another jury may take a different view, and, holding the rate reasonable, find the same act not to constitute an offense. There is no standard whatever fixed by the statute, or attempted to be fixed, by which the carrier may regulate its conduct; and it seems clear to us to be utterly repugnant to our system of laws to punish a person for an act, the criminality of which depends, not on any standard erected by the law which may be known in advance, but on one erected by a jury.33

In the court’s view, if the infliction of penalties under this statute was not a violation of due

process under both state and federal constitutions, “we are not able to comprehend the force of

our organic laws.”34

In the years that followed, numerous other courts similarly refused to enforce criminal or

quasi-criminal statutes in doubtful cases where different juries or fact-finders were likely to

reach different results with respect to the same conduct.35 In 1910, the District of Columbia

33 Id. at 136-137, 35 S.W. at 129-130.

34 Id. at 138, 35 S.W. at 130. This decision was also the first to suggest a constitutional distinction between criminal penalties and civil liability for compensatory damages. Id. at 137, 35 S.W. at 130-131.

35 See, e.g., Cook v. State, 26 Ind. App. 278, 282-83, 59 N.E. 489, 490 (1901) (“There must be some certain standard by which to determine whether an act is a crime or not, otherwise cases in all respects similar tried before different juries might rightfully be decided differently, and a person might properly be convicted in one county for hauling over a turnpike in that county, and acquitted in an adjoining county of a charge of hauling the same load on the same wagon …. because of the difference of conclusions of different judges and juries based upon their individual views ….”); Czarra v. Board of Medical Supervisors, 25 App. D.C. 443, 451 (1905) (“What conduct may be [unprofessional or dishonorable] remains, as before, a mere matter of opinion … . [I]t must, in respect of some acts at least, remain a varying one, shifting with the


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Court of Appeals decided United States v. Capital Traction Co.,36 a decision of particular interest

because the United States Supreme Court would eventually adopt language from this opinion as

its own.37 The statute at issue in Capital Traction required every street railroad company to give

passage to all persons desirous of using the railway cars “without crowding said cars.”38 The

Court of Appeals expressed concern about penal statutes that “will reasonably admit of different

constructions,” and it noted the general rule that the elements of a crime “must be so clearly

expressed that the ordinary person can intelligently choose, in advance, what course it is lawful

for him to pursue. 39 Applying these principles, the court held the statutory prohibition against

crowded railway cars was too indefinite and uncertain to support an indictment:

What may be regarded as a crowded car by one jury may not be so considered by another. What shall constitute a sufficient number of cars in the opinion of one judge may be regarded as insufficient by another. . . . There is a total absence of any definition of what shall constitute a crowded car. This important element cannot be left to conjecture, or be supplied by either the court or the jury. It is of the very essence of the law itself. 40

B. Early Rulings From The United States Supreme Court: 1875-1910.

The Supreme Court did not begin to address constitutional vagueness principles until

1908, but it did issue some decisions consistent with the emerging consensus in the lower courts.

opinions that may prevail from time to time in the several tribunals that may be called upon to interpret and enforce the law.”); Hewitt v. State Board of Medical Examiners, 148 Cal. 590, 594, 84 P. 39, 41 (1906) (“Taking a given advertisement by a physician, the members of one board might conclude that it contained “grossly improbable statements,” while another board might reach an entirely opposite conclusion.)

36 34 App. D.C. 592, 594 (1910).

37 Connally v. General Construction Co., 269 U.S. 385, 392 (1926), discussed infra at note 121 and accompanying text.

38 34 App. D.C. 592, 595 (1910)

39 Id. at 598.

40 Id. at 596. Capitol Traction was decided in 1910, well after the Supreme Court’s 1908 decision in Waters-Pierce Oil Co. v. Texas, 212 U.S. 86 (1908), discussed below, which cast the first glimmer of doubt over decisions like Dey and Tozer. The D.C. court’s failure to even cite Waters-Pierce is puzzling.


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For example, Cotting v. Kansas City Stock Yards Co.41 and Ex Parte Young42 were not vagueness

cases, at least not in the same sense as cases like Dey/Tozer and Capital Traction, but like those

cases, the results were driven by the Court’s concern that parties not be punished for conduct

where the lawfulness of that conduct could not be determined in advance.

Cotting (written by Justice Brewer) involved a Kansas statute making it unlawful for

certain stock yards to charge more than 15 cents per head of cattle for certain services. Prior

decisions of the Court had established that such statutes were constitutional if the maximum

charges were “reasonable.”43 Thus, while there was no uncertainty about the maximum rates

permitted by the statute—the 15 cent rate was specified in the statute—there was uncertainty

about whether imposing those rates was unconstitutional because they were “unreasonable.” But

a party who desired to challenge the constitutionality of the statute on grounds that the prescribed

rates were unreasonable could do so only by violating the statute and risking a ruinous penalty in

the event the challenge was rejected. In dicta, Justice Brewer strongly suggested that imposing

such penalties in advance of a judicial determination of whether the maximum rates were

reasonable would be unconstitutional.44 Justice Brewer’s dicta was confirmed by the Court

seven years later in Ex Parte Young, involving another statute that made it a crime to charge in

excess of certain specified rates. The Court held that the criminal penalties for charging in

excess of those rates were unconstitutional “on their face” because they “impos[ed] such

41 183 U.S. 79 (1901).

42 209 U.S. 123 (1908).

43 Cotting,183 U.S. at 84-92.

44 Id. at 99-102


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enormous fines and possible imprisonment as a result of an unsuccessful effort to test the validity

of the laws themselves.”45

Justice Holmes’s first relevant decision for the United States Supreme Court, in Missouri

Pacific Ry. Co. v. Farmers’ Elevator Co.,46 was entirely consistent with Justice Brewer’s

opinions and gives no hint of the conflict that Justice Holmes himself would soon help create.

The case involved a statute that required every railroad company, upon request, to erect side

tracks for the benefit of anyone desiring to operate grain elevators.47 Failure to provide the side

tracks, if requested, was punishable by a $500 fine.48 The principal holding of the case was that

the statute was an unconstitutional taking of the railroad’s property because the statute literally

required railroad companies to accommodate anyone’s request for a side track, without regard to

needs or circumstances, and did not indemnify the railroad for the expense.49 In the course of so

holding, however, Justice Holmes considered whether the statute might be saved if it were

interpreted to require railroads to comply only with reasonable demands for side tracks. Even so

construed, Justice Holmes concluded that the statute “still requires too much.”50

[E]ven on this strained construction, they refrain from paying [for a side track] at the peril of a fine, if they turn out wrong in their guess that in the particular case the court will hold the demand not authorized by the act. If the statute makes the mere demand [for a side track] conclusive, it plainly cannot be upheld. If it requires a side track only when the demand is reasonable, then the railroad ought, at least, to be allowed a hearing in advance to decide whether the demand is within the act. . . . . [A]t the best the owner of the property, if it has any remedy at all, acts at its risk, not merely of being compelled to

45 Ex Parte Young, 209 U.S. at 148.

46 217 U.S. 196 (1910).

47 Id. at 204.

48 Id.

49 Id. at 207.

50 Id.


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pay both the expense of building and the costs of suit, but also of incurring a fine of at least five hundred dollars for its offense in awaiting the result of a hearing.51

C. The Supreme Court’s First Vagueness Rulings: Waters-Pierce (1909) and Nash

(1913).

Thus, as the first decade of the Twentieth Century drew to a close, courts had consistently

ruled that criminal and quasi-criminal penalties could not constitutionally be imposed in doubtful

cases where the statutory language was sufficiently imprecise that different juries or courts

considering the same facts could reach different conclusions about the lawfulness of the

defendant’s conduct. Then, beginning in 1908, the United States Supreme Court effectively

demolished this consensus, initiating a century of confusion.

The first case in which the Court expressly considered a vagueness challenge was

Waters-Pierce Oil Co. v. Texas,52 decided in 1908, which involved Texas antitrust statutes that

prohibited agreements “reasonably calculated to fix and regulate the price of commodities” and

acts which “tend” to restrict trade or commerce.53 The defendant argued that these statutes were

“so vague, indefinite and uncertain” as to be unconstitutional, relying on the railroad rate cases

and Tozer.54 The Court disagreed, purporting to these cases because the Texas antitrust statutes

“do not give the broad power to a court or jury to determine the criminal character of the act in

accordance with their belief as to whether it is reasonable or unreasonable, as do the statutes

condemned in the cases cited.”55 But the Court did not explain how this was so. Instead, the

Court reasoned that “[i]t is not uncommon in criminal law to punish not only a completed act,

51 Id. at 207-208.

52 212 U.S. 86 (1908).

53 Id. at 98-99, 108-109

54 Id. at 108-109.

55 Id. at 109.


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but also acts which attempt to bring about the prohibited result.”56 The Court was not “prepared

to say that there was a deprivation of due process of law because the statute permitted . . . a

conviction not only for acts which accomplished the prohibited result, but also for those which

tend or are reasonably calculated to bring about the things forbidden.”57 The Court avoided

entirely the real issue, i.e., whether the “things forbidden” were themselves sufficiently defined

by the statutes.58

The Court’s next significant decision—arguably, in fact, the Court’s most significant

vagueness decision of all time—was Nash v. United States,59 another antitrust case. Criminal

indictments had been brought against various defendants for conspiracies in restraint of trade and

to monopolize trade in violation of Section 1 of the Sherman Act, which the Court had

previously interpreted to incorporate the “rule of reason” followed at common law. The

indictments alleged that the defendants had done various acts, ranging from bidding down the

price of turpentine and fixing the price of turpentine below the cost of production to issuing

fraudulent warehouse receipts and attempting to bribe employees of competitors, “all the

foregoing being for the purpose of driving competitors out of business and restraining foreign

56 Id.

57 Id. at 111.

58 Justice Brewer was still on the Court at the time, and he apparently concurred in the opinion. He died in 1910, before the Court next considered his opinions in Dey and Tozer.

59 229 U.S. 373 (1913). The Court decided two arguably relevant cases between Waters-Pierce

and Nash, Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 58, 60 (1911) and Baltimore and Ohio RR Co. v. Interstate Commerce Commission,, 221 U.S. 612 (1911). In both cases the Court peremptorily rejected claims that certain statutory provisions were too general or uncertain to be enforced. However, neither case involved criminal or quasi-criminal penalties, and in neither case did the Court cite, let alone disapprove, Dey, Tozer, Louisville & N.R. Co., or any of the other relevant cases; in fact, the Court did not even cite Waters-Pierce.


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trade or . . . of doing so and monopolizing the trade.”60 A jury found some of the defendants

guilty.

On appeal, those defendants argued that under the “rule of reason” standard “a man might

find himself in prison because his honest judgment did not anticipate that of a jury of less

competent men,” and they relied on on Justice Brewer’s holding in Tozer that “the criminality of

an act cannot depend upon whether a jury may think it reasonable or unreasonable.”61

Nevertheless, in language that continues to be quoted to this day, Justice Holmes found “no

constitutional difficulty in the way of enforcing the criminal part of the act.”62

[T]he law is full of instances where a man’s fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. If his judgment is wrong, not only may he incur a fine or a short imprisonment, as here; he may incur the penalty of death. …. But without further argument, the case is very nearly disposed of by Waters-

Pierce Oil Co. v. Texas (No. 1), 212 U.S. 86, 109, where Mr. Justice Brewer’s decision and other similar ones were cited in vain.63

This passage seems to be an unequivocal rejection of the Dey/Tozer line of authority. But

if Justice Holmes meant to reject the underlying rationale of the Dey/Tozer cases and to hold that

criminal punishment could be imposed for conduct not plainly declared unlawful—conduct that

some courts or juries, in fact, could find to be lawful—that holding was undermined by a series

of four decisions issued over the next four years. Indeed, the Court began to undermine Nash a

mere two days later in Missouri Pacific Ry. Co. v. Tucker.64

Factually, Tucker belongs to the line of authority that began with Justice Brewer’s dicta

in Cotting, dicta that was elevated to a holding in Ex Parte Young. In Tucker, the Kansas

60 229 U.S. at 375-376 (emphasis added).

61 Id. at 376-377.

62 Id. at 378.

63 Id. at 377.

64 230 U.S. 340 (1913).


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legislature prescribed a schedule of maximum rates for common carriers, rates which were

constitutional only if they were “reasonable.”65 As in the prior cases, state law afforded carriers

no opportunity to determine whether the statutory rates were reasonable (and therefore

constitutional) except by charging higher rates and raising the defense in an action seeking

penalties for violation of the statute. This put the carriers in a position of “exceeding

perplexity.”66 If carriers gave effect to the statutory rates, and if those rates were so

unreasonably low as to be invalid, then the carriers would sustain a serious and irreparable loss.

If, on the other hand, the carriers did not give effect to the rates, and if their challenge to the rates

was not sustained, then the enforcement of the penalties would likewise entail a serious loss.

Under these circumstances, the Court held, enforcement of the statute “would be nothing short of

the taking of property without due process of law and therefore in contravention of the

Fourteenth Amendment.”67 The Court cited Waters-Pierce as support for its decision, apparently

recognizing a connection between the vagueness cases and the Ex Parte Young cases.68 But it

made no attempt to reconcile its decision with Nash or to explain why the dilemma in which the

statute placed carriers was not simply one of the many instances referred to by Justice Holmes in

Nash “where a man’s fate depends on his estimating rightly.”69

Two years later, the Court relied upon Tucker to reverse a civil penalty imposed in

Southwestern Telegraph & Telephone Co, v. Danaher,70

a case with facts more comparable to

cases like Dey/Tozer than Tucker. Just as the statutes in Dey/Tozer prohibited railroad

65 Id. at 347-348.

66 Id. at 347.

67 Id. at 348.

68 Id.

69 229 U.S. at 377.

70 238 U.S. 482 (1915).


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companies from charging unreasonable rates, or providing unreasonable advantages to certain

customers, the statute in Danaher prohibited telephone companies from denying service based

on unreasonable regulations.71 The defendant telephone company in Danaher had a regulation

that it would not furnish service to patrons in arrears for past service and would not provide to

such patrons the discount normally allowed for paying in advance. Based on this regulation, the

plaintiff, a patron in arrears, was denied service and the pre-payment discount.72 The Arkansas

Supreme Court found that the telephone company’s regulation was unreasonable and that it had

therefore violated the statute; accordingly, it affirmed a penalty of $6,300.73

The United States Supreme Court unanimously held that the $6,300 penalty “was so

plainly arbitrary and oppressive as to be nothing short of a taking of its property without due

process of law.”74 In so holding, the Court found significant the facts that (1) the statute did not

declare the regulation unreasonable but left the issue open, (2) there had been no decision in the

state holding or indicating it was unreasonable, (3) there was no mode of judicially testing the

regulation in advance of acting under it, and (4) similar regulations had been pronounced

reasonable in other states and, while there was some difference of opinion in the reported

decisions, the “weight of authority was on that side.”75 Under these circumstances, the Court

held that the penalty violated the “fundamental principles of justice” embraced by the due

71 Id. at 485.

72 Id. at 486.

73 Id. at 487-88.

74 Id. at 491.

75 Id. at 489.


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process clause.76 This was so even assuming that the telephone company should have known

that the Arkansas Supreme Court might hold the regulation unreasonable:

If it be assumed that the state legislature could have declared such a regulation unreasonable, the fact remains that it did not do so, but left the matter where the company was well justified in regarding the regulation as reasonable and in acting on that belief. And if it be assumed that the company should have known that the Supreme Court of the State in the exercise of its judicial power might hold the regulation unreasonable, even through the prevailing view elsewhere was otherwise, the question remains whether, in the circumstances, penalties aggregating $ 6,300 could be imposed without departing from the fundamental principles of justice embraced in the recognized conception of due process of law. In our opinion the question must be answered in the negative. There was no intentional wrongdoing; no departure from any prescribed or known standard of action, and no reckless conduct. Some regulation establishing a mode of inducing prompt payment of the monthly rentals was necessary. . . . The protection of its own revenues and justice to its paying patrons required that something be done. It acted by adopting the regulation and then impartially enforcing it. There was no mode of judicially testing the regulation’s reasonableness in advance of acting under it, and, as we have seen, it had the support of repeated adjudications in other jurisdictions.77

The Court cited Tucker and a similar case, but it did not mention Waters-Pierce or Nash.78

D. International Harvester and Its Aftermath (1914-1920).

Almost a year to the day after Nash was decided, the United States Supreme Court, for

the first time, sustained a claim that a statute was “void for indefiniteness.” It did so, moreover,

in another antitrust case and in another opinion for the Court by Justice Holmes.

International Harvester Co. of America v. Kentucky,79 involved a Kentucky antitrust

statute that made combinations for the purpose of controlling prices lawful unless for the purpose

or with the effect of fixing a price that was greater or less than the “real value” of the article.

76 Id. at 490.

77 Id. at 490-491.

78 Id. at 491. The Court also cited Wadley Southern Ry. Co. v. Georgia, 235 U.S. 651 (1915), which reaffirmed the holdings in Ex Parte Young and Tucker. However, the Court in Wadley distinguished those cases because the statute in Wadley provided a mechanism by which the defendant the railroad could have secured review of the order at issue prior to violating it.

79 234 U.S. 216 (1914)


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“Real value” was defined to be “its market value under fair competition, and under normal

market conditions.”80 Justice Holmes, speaking for a divided Court (two Justices dissenting on

unstated grounds) held that the statute “cannot stand” under the Fourteenth Amendment because

it was “impossible” to “think away the principal facts of the case as it exists and say what would

have been the price in an imaginary world.”81

Value . . . is a fact and generally is more or less easy to ascertain. But what it would be with such increase of a never extinguished competition as it might be guessed would have existed had the combination not been made, with exclusion of the actual effect of other abnormal influences, and, it would seem with exclusion also of any increased efficiency in the machines but with inclusion of the effect of the combination so far as it was economically beneficial to itself and the community, is a problem that no human ingenuity could solve. The reason is not the general uncertainties of a jury trial but that the elements necessary to determine the imaginary ideal are uncertain both in nature and degree of effect to the acutest commercial mind.82

Justice Holmes cited no authority at all to support his conclusion. He did, however,

regard the decision as consistent with Nash, because in Nash “familiar practice” and a “great

body” of precedent made it “comparatively easy for common sense to keep to what is safe.”83

Some decisions in the years that followed gave more weight to Nash, while others gave

more weight to International Harvester or Tozer, but none of them successfully reconciled those

decisions. For example, the Court followed Nash and distinguished International Harvester in

Miller v. Strahl84

and Omaechevarria v. Idaho.85

Strahl involved a statute that required hotel

employees “do all in their power” to save hotel guests in the event of a fire.86 The Court held

80 Id. at 221.

81 Id. at 222.

82 Id. at 222-223.

83 Id. at 223.

84 239 U.S. 426 (1915).

85 246 U.S. 343 (1918)

86 239 U.S. at 431.


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that the case fell under Nash and not International Harvester because “[r]ules of conduct must

necessarily be expressed in general terms and depend for their application upon circumstances,

and circumstances vary.”87 The Court gave no apparent weight to the fact that this case, unlike

both Nash and International Harvester, was a civil suit for damages, not a criminal prosecution.

Omaechevarria was a criminal prosecution of a sheepman who allegedly violated an

Idaho statute by allowing his sheep to graze on a “cattle range” or “any range usually occupied”

by any cattle grower.88 The Court followed Nash and Strahl, because “[m]en familiar with range

conditions and desirous of observing the law will have little difficulty in determining what is

prohibited by it.”89 Further, according to the Court, any danger to sheepmen which might

otherwise arise was “removed” by a related Nebraska statute, which required proof of intent or

criminal negligence.90

Between its decisions in Miller and Omaechevarria, however, the Court relied on

International Harvester in United States v. Pennsylvania RR Co.91 In that case, the Interstate

Commerce Commission issued an order that the Pennsylvania Railroad cease and desist from

refusing “upon reasonable request and reasonable notice therefore” to furnish tank cars in

sufficient numbers to transport the complainant’s “normal shipments” in interstate commerce.92

Violations of the order subjected the railroad to a penalty of $5,000 per day. The Court held that

the ICC did not have jurisdiction to enter this order, but it expressed serious concern about the

vagueness of the order, citing International Harvester:

87 Id. at 434.

88 246 U.S. at 346 n. 3.

89 Id. at 348.

90 Id.

91 242 U.S. 208 (1916)

92 Id. at 210.


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What is a reasonable request or reasonable notice, and what are normal shipments? The order affords no answer and if the railroad company ventures, however honestly, any resistance to a request or notice not deemed reasonable or to shipments not deemed normal it must exercise this right at the risk of a penalty of $ 5,000 a day against all of its responsible officers and agents. These considerations are very serious (International

Harvester Co. v. Kentucky, 234 U.S. 216 . . . .).93

E. Cohen Grocery and Its Aftermath (1921-1925).

That Justice Holmes’s attempt to reconcile International Harvester with Nash was not

entirely satisfactory (particularly in light of the conflicting signals sent by Tucker, Danaher, and

Pennsylvania RR on the one hand, and Strahl and Omaechevarria on the other) is demonstrated

by the conflict that erupted in the lower courts in criminal prosecutions under the Lever Act,

which made it unlawful “to make any unjust or unreasonable rate or charge in handling or

dealing in or with any necessaries.”94 Several courts opined that the Lever Act would have been

invalid under Dey/Tozer, but concluded that Nash required a different result.95 But other

decisions in Lever Act cases favored Tozer and International Harvester.96

The Supreme Court resolve this specific conflict in United States v. L. Cohen Grocery,97

but the decision in that case seems, on its face, even more obviously inconsistent with Nash than

International Harvester. In Cohen Grocery, the Court considered whether the Lever Act’s

prohibition against any “unjust or unreasonable rate or charge” fixed an ascertainable standard of

93 Id. at 237-238.

94 Act of October 22, 1919, c. 80, § 2, 41 Stat. 297.

95 See, e.g., United States v. Spokane Dry Goods Co., 264 F. 209 (E.D. Wash. 1920); C.A. Weed

& Co. v. Lockwood, 266 F. 785, 790 (2d Cir.1920)( “the so-called ‘rule of reason,’ as announced in [Standard Oil Co. v. United States, 221 U.S. 1 (1911) and a related case] has changed the rule laid down in the Tozer case”); United States v. Rosenbloom, 264 F. 578 (W.D. Pa. 1920);United

States v. Oglesby Grocery Co. 264 F. 691 (N.D. Ga. 1920).

96 See, e.g., Lamborn v. McAvoy, 265 F. 944, 945 (E.D. Pa. 1920) (“if the rule laid down by Mr. Justice Brewer in [Tozer] is the law, the [Lever Act] is too vague, indefinite and uncertain to charge a crime,” and concluding that Nash did not overrule Tozer); United States v. L. Cohen

Grocery Co., 264 F. 218 (E.D. Mo. 1920), aff’d 255 U.S. 81 (1921).

97 255 U.S. 81 (1921).


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guilt.98 That it did not, the Court held, was so obvious “as to render elaboration on the subject

wholly unnecessary.”99 Indeed, the Court opined that that repugnancy of the statute to the

Constitution “is not open to question,” with a string citation to several cases, including

Pennsylvania RR, Dey, Tozer, and Capital Traction.100

The Court saw no need to “stop and

review” Nash, Waters-Pierce, Strahl, or Omaechevarria, because in all of those cases “a

standard of some sort was afforded.”101 The Court did not attempt to explain why the

“reasonableness” standard of the Sherman Act afforded a standard while the “reasonableness”

standard of the Lever Act did not. Instead, the Court believed that the distinction between Nash

and the Dey/Tozer cases was so clearly pointed out in International Harvester that the Court

deemed it necessary only to cite the latter case.102

One year after holding, in Cohen Grocery, that a statute prohibiting “unjust and

unreasonable” prices was unconstitutional, the Court held, in Edgar A. Levy Leasing Co. v.

Siegel,103 that a New York statute prohibiting “unjust and unreasonable” rent was not

unconstitutional. But the statute in Cohen Grocery purported to define a crime, while the New

York statute in Levy Leasing simply made unjust and unreasonable rent a defense to an action by

a landlord to recover rent. Consistent with this distinction, the Court in Levy Leasing simply

dismissed Cohen Grocery as “not applicable” because Cohen Grocery “deal[t] with definitions

98 Id. at 89.

99 Id.

100 Id. at 91-92.

101 Id. at 92.

102 Id.

103 258 U.S. 242 (1922).


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of crime.”104 But three years later, in A.B. Small Co. v. American Sugar Refining Co.,105 the

Court declared that this was “not an adequate distinction.”106 Just as Levy Leasing was an action

by a lessor to recover allegedly unjust and unreasonable rent from a lessee, A.B. Small was an

action by a seller to recover allegedly unjust and unreasonable sugar prices from a buyer. Thus,

the Supreme Court could have decided the case peremptorily by citing Levy Leasing and

declaring Cohen Grocery inapplicable to a civil case. Instead, the Court held that the Lever

Act’s prohibition “was declared a nullity [in Cohen Grocery] because too vague to be

intelligible.”107

According to the Court, in an important passage that was to be quoted again and again in

the following years, it was not the criminal penalty that was held invalid in Cohen Grocery, “but

the exaction of obedience to a rule or standard which was so vague and indefinite as really to be

no rule or standard at all.”108 The real difference between Cohen Grocery and Levy Leasing,

according to the Court, was that in Cohen Grocery “there was no accepted and fairly stable

commercial standard which could be regarded as impliedly taken up and adopted by the

statute.”109 Rather, the value of sugar was subject to fluctuations which manufacturers and

dealers could not control or foresee.110 The real property and related rental values at issue in

Levy Leasing were different, because they were stable and easily ascertained:

104 Id. at 250.

105 267 U.S. 233 (1925).

106 Id. at 239.

107 Id. at 240.

108 Id. at 239

109Id. at 240-41.

110 Id.


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Real property, particularly in a city, comes to have a recognized value, which is relatively stable and easily ascertained. It also comes to have a recognized rental value -- the measure of compensation commonly asked and paid for its occupancy and use -- the amount being fixed with due regard to what is just and reasonable between landlord and tenant in view of the value of the property and the outlay which the owner must make for taxes and other current charges. These are matters which in the course of business come to be fairly well settled and understood. A standard thus developed and accepted in actual practice, when made the test of compliance with legislative commands or prohibitions, usually meets the requirement of due process of law in point of being sufficiently definite and intelligible.111

In effect, A.B. Small amplified the Court’s decision in Cohen Grocery by making factors specific

to the price of sugar part of the analysis, establishing that a prohibition (civil or criminal) against

“unjust and unreasonable” rates can be constitutional or unconstitutional, depending upon the

circumstances specific to the commodity involved. The unspoken, perhaps unrecognized

corollary to this is that, theoretically at least, the Lever Act might have been constitutional when

applied to commodities more comparable to real estate than to sugar.

It soon became apparent that Cohen Grocery, while resolving the conflict in the cases

involving under the Lever Act, had not resolved the fundamental tension between Nash and its

progeny (of which Levy Leasing, as reinterpreted in A.B. Small, was the latest addition) and the

Dey/Tozer cases (of which Cohen Grocery and A.B. Small were the latest additions). As the

Ohio Supreme Court observed, in light of Cohen Grocery it was “difficult to see how the anti-

trust laws [addressed in Nash and other cases] can be entirely free from the criticism that there is

no standard whereby guilt or innocence can be measured.”112 Some courts (like the Ohio court)

elected to follow Nash and its progeny, upholding statutes that penalized, for example, operating

motor vehicles at “greater than reasonable” speeds113 or in such a way that lives or safety “might

111 Id. at 241-42.

112 Harrison v. State, 112 Ohio St. 429, 438, 147 N.E. 650, 652 (1925).

113 Gallaher v. State, 193 Ind. 629, 141 N.E. 347 (1923).


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be endangered”;114 making statements that the defendant “might on reasonable investigation

have ascertained” were untrue;115 and operating “heavily laden” vehicles on roads “wet to a

sufficient extent to be materially damaged by such hauling or use.”116 Other courts of this era

followed Dey/Tozer, International Harvester, and Cohen Grocery in declaring unconstitutional

statutes that, for example, penalized operating motor vehicles at “unreasonable” speeds117;

failing to employ a “sufficient number of practical, experienced miners”118; failing to provide

buildings to protect employees from “cold, rain, sleet, snow, or other inclement weather”119; and

the “negligent[] and careless[]” handling of explosives.120

F. Prong I Of The Modern Standard Articulated and Applied (Inconsistently): Connally, Miller, Trenton Potteries, and Cline (1926-1932).

In 1926 and 1927, the Court issued major decisions that seem to have been intended to

resolve the inconsistencies in the Court’s prior decisions. Indeed, those cases articulated the fair

notice prong of the modern standard which, on its face, seems to repudiate the sweeping

114 Commonwealth v. Pentz, 247 Mass. 500, 510, 143 N.E. 322 (1924).

115 Commonwealth v. Rilly, 248 Mass. 1, 2, 142 N.E. 915, 916 (1924).

116 Standard Oil Co. v. Commonwealth, 131 Va. 830, 832, 109 S.E. 316, 317 (1921).

117 Howard v. State, 151 Ga. 845, 848, 108 S.E. 513, 514 (1921)(“One jury might say that a certain rate of speed was reasonable and proper. Another jury might reach exactly the opposite conclusion from exactly the same state of facts and the same circumstances.”); State v. Lantz, 90 W. Va. 738, 743, 111 S.E. 766, 768 (1922)(“If this statute should be upheld … [t]here would be as many different standards as there would be different opinions among the juries and judges trying the cases as the same arise, and no man would ever know until after he was tried and convicted or acquitted upon the charge brought against him whether he had been guilty of an offense or not.”).

118 Glendale Coal Co. v. Douglas, 193 Ind. 73, 74-75, 137 N.E. 615 (1923).

119 Wabash Ry. Co. v. O’Bryan, 285 F. 583, 586 (E.D. Mo. 1922)(“The ability to guess correctly makes up the difference between guilt and innocence. . . . . If he guess right, he is innocent; if he guess wrong, he is guilty of a misdemeanor. But we need go no further into this; the lack of definiteness and certainty is too plain for argument.”); Chicago & N.W. Ry. Co. v. RR and

Warehouse Comm’n of Minnesota, 280 F. 387, 398 (D. Minn. 1922).

120 State v. Satterlee, 110 Kan. 84, 85, 202 P. 636, 637 (1921).


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language in Nash. And yet, the Court’s one sentence opinion in another case restored full

precedential value to Nash.

The Oklahoma statute at issue in Connally v. General Construction Co.121 required

employers to pay employees no less than “the current rate of per diem wages in the locality

where the work is performed.”122 In evaluating a vagueness challenge to this statute, the Court

candidly conceded the conflict in its prior decisions: “In some of the cases the statutes involved

were upheld; in others, declared invalid. The precise point of differentiation in some instances is

not easy of statement.”123 The Court attempted to reconcile the cases upholding statutes on

grounds that (1) the statutes “employed words or phrases having a technical or other special

meaning, well enough known to enable those within their reach to correctly apply them”

(Omaechevarria); (2) the statutes had “a well-settled common law meaning, notwithstanding an

element of degree in the definition as to which estimates might differ” (Nash); or, (3) as stated in

Cohen Grocery, “‘that, for reasons found to result either from the text of the statutes involved or

the subjects with which they dealt, a standard of some sort was afforded.’”124

The Court quoted extensively from the opinion in Capitol Traction (the crowded streetcar

case), including those portions where the Court of Appeals expressed concern that “[w]hat may

be regarded as a crowded car by one jury may not be so considered by another.”125 Still quoting

from Capital Traction, the Court observed that a “citizen cannot be held to answer charges based

upon penal statutes whose mandates are so uncertain that they will reasonably admit of different

121 269 U.S. 385 (1926).

122 Id. at 388.

123 Id. at 391.

124 Id. at 391-392 (citations omitted].

125 Id. at 392, quoting Capital Traction, 34 App. D.C. at 596.


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constructions,” and that penal statutes “should not admit of such a double meaning that the

citizen may act upon the one conception of its requirements and the courts upon another.”126

And the Court summarized the applicable standard in language that remains the most widely

recognized formulation of the first prong of the modern vagueness standard: “[A] statute which

either forbids or requires the doing of an act in terms so vague that men of common intelligence

must necessarily guess at its meaning and differ as to its application, violates the first essential of

due process of law.”127

Applying this standard, the Court concluded that the statute at issue in Connally was

unconstitutional, both because the words “current rate of wages” could denote the minimum

wage currently paid, the maximum wage currently paid, or anything in between, and because the

term “locality” was “elastic and, dependent upon circumstances, may be equally satisfied by

areas measured by rods or by miles.”128

The result is that the application of the law depends not upon a word of fixed meaning in itself, or one made definite by statutory or judicial definition, or by the context or other legitimate aid to its construction, but upon the probably varying impressions of juries as to whether given areas are or are not to be included within particular localities. The constitutional guaranty of due process cannot be allowed to rest upon a support so equivocal.129

Thus, in Connally, the Supreme Court endorsed, unequivocally, the opinion in Capital

Traction, which squarely held that the statute at issue was unconstitutional where different juries

could reach different conclusions about whether the defendant’s conduct was lawful. Consistent

with this, the Court in Connally articulated a general standard under which a statute was

126 269 U.S. at 393, quoting Capitol Traction, 34 App. D.C. at 598.

127 269 U.S. at 391.

128 Id at 395.

129 Id.(emphasis added); see also Herndon v. Lowry, 301 U.S. 242 (1937)(statute unconstitutionally vague where it “licenses the jury to create its own standard in each case”).


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unconstitutionally vague if it is so vague “that men of common intelligence must necessarily

guess at its meaning and differ as to its application.”130 Further, it held that the specific statute at

issue was unconstitutional because it permitted punishment based on the “probably varying

impressions of juries.”131 This would seem to be a rejection of the core of Justice Holmes’s

opinion in Nash, which held that it was permissible—indeed, that it was routine and

commonplace—to make “a man’s fate depend[] on his estimating rightly, that is, as the jury

subsequently estimates it.”132

And yet, just one year after its decision in Connally, the Court issued this one sentence,

per curiam opinion in Miller v. Oregon:133 “Affirmed on the authority of Nash v. United States,

229 U.S. 373.” As described by the Oregon Supreme Court, which the Court affirmed, Miller v.

Oregon involved a motorist who had been convicted of manslaughter based on his violation of

an Oregon statute that prohibited driving “at a rate of speed that will endanger the property of

another, or the life and limb of any person.”134 Vehicular homicide was one of the examples

given by Justice Holmes in Nash of cases where a man’s fate depends upon estimating rightly

what a jury might later decide.135 Thus, it is difficult to read the Court’s one sentence decision in

Miller as anything other than a straightforward endorsement of the very language from Nash

upon which Connally seemed to cast substantial doubt. But, then, in United States v. Trenton

130 269 U.S. at 391.

131 Id. at 395.

132 Nash, 229 U.S. at 377.

133 273 U.S. 657 (1927).

134 State v. Miller, 119 Ore. 409, 414, 243 P. 72, 74 (1926).

135 229 U.S. at 377.


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Potteries Co.,136—like Nash a criminal prosecution under the Sherman Act—the Court observed

that “we should hesitate to adopt a construction making the difference between legal and illegal

conduct in the field of business relations depend upon so uncertain a test as whether prices are

reasonable—a determination which can be satisfactorily made only after a complete survey of

our economic organization and a choice between rival philosophies.”137 Ironically, the Court

cited Nash itself for this proposition (along with Cohen Grocery and International Harvester).138

The Court apparently recognized the continuing tension in its opinions, because in May

1927, five months after its per curiam decision in Miller, it issued another major opinion in

which it made one more attempt to explain its decision in Nash. The statute in Cline v. Frink

Dairy Co.139 declared illegal combinations to restrain trade or commerce, including agreements

to increase or reduce prices, unless the object was to conduct operations at a “reasonable profit”

and a reasonable profit could not be obtained without the combination or conspiracy.140 The

Court found the case indistinguishable from Cohen Grocery:

An attempt to enforce the section will be to penalize and punish all combinations in restraint of trade in a commodity when in the judgment of the court and jury they are not necessary to enable those engaged in it to make it reasonably profitable, but not otherwise. Such a basis for judgment of a crime would be more impracticable and complicated than the much simpler question in the Cohen Grocery case, whether a price charged was unreasonable or excessive. The real issue which the proviso would submit to the jury would be legislative, not judicial. To compel defendants to guess on the peril of an indictment whether one or more of the restrictions of the statute will destroy all profit or reduce it below what would be reasonable, would tax the human ingenuity in

136 273 U.S. 392 (1927).

137 Id. at 398.

138 Id.

139 274 U.S. 445 (1927).

140 Id. at 456.


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much the same way as that which this Court refused to allow as a proper standard of criminality in [International Harvester].141

The Court addressed Nash at length, explaining that in Nash “we held that the common

law precedents as to what constituted an undue restraint of trade were quite specific enough to

advise one engaged in interstate trade and commerce what he could and could not do under the

statute.”142 Ultimately, however, the Court concluded that Cohen Grocery was distinguishable

from Nash simply because “[Nash] did not relate to the reasonableness or excessiveness of prices

charged for necessaries, without more, as a basis for criminality, while [Cohen Grocery] plainly

did.”143

The Court also explained and distinguished its ruling in Miller v. Oregon, observing that

“on an issue like negligence, i.e., a rule of conduct for the average man in the avoidance of injury

to his neighbors, every one may be held to observe it either on the civil or criminal side of the

court. It is a standard of human conduct which all are reasonably charged with knowing and

which must be enforced against every one in order that society can safely exist.”144

Nevertheless, the Court concluded, “it will not do to hold an average man to the peril of an

indictment for the unwise exercise of his economic or business knowledge involving so many

factors of varying effect that neither the person to decide in advance nor the jury to try him after

the fact can safely and certainly judge the result.”145

141 Id. at 457-458.

142 Id. at 460.

143 Id. at 463.

144 Id. at 464.

145 Id. at 465. The Court appeared not to have anticipated the possibility that some cases (such as modern product liability litigation involving alleged design defects) might well involve both a rule for “avoidance of injury” and an exercise of “business knowledge involving so many factors of varying effect that neither the person to decide in advance nor the jury to try him after the fact


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G. Prong II Of The Modern Standard Articulated: Giacco (1966)

The Court decided numerous vagueness cases between 1932 and 1966, and the most

significant of those are discussed below in the context of the Court’s evolving approach to facial

versus as-applied analysis. Before turning to that issue, however, it will be useful to complete

this discussion of the evolution of vagueness by addressing Giacco v. Pennsylvania,146

in which

the Court articulated the second prong of the modern standard for evaluating vagueness: the

arbitrary and capricious enforcement prong.

Giacco involved a Pennsylvania statute that, as interpreted by the Pennsylvania courts,

permitted a jury in a criminal case to assess the costs of prosecution against a defendant who had

been acquitted where the defendant’s innocence was “doubtful” or where the defendant’s

conduct, while not criminal, had been “reprehensible in some respects,” “improper,” or

“outrageous to ‘morality and justice.’”147 The Pennsylvania appellate courts rejected a

vagueness challenge, largely because the act was not penal in nature but provided for the

collection of costs of a “civil character.”148 The United States Supreme Court reversed. It

began by once again minimizing the significance of the distinction between civil and criminal

penalties, because “[b]oth liberty and property are specifically protected by the Fourteenth

Amendment against any state deprivation which does not meet the standards of due process, and

this protection is not to be avoided by the simple label a State chooses to fasten upon its conduct

can safely and certainly judge the result.” See generally James A. Henderson, Judicial Review of

Manufacturers’ Conscious Design Choices: The Limits of Adjudication, 73 Columbia L. Rev. 1531, 1533 (1973)(describing the “polycentric” nature of the task facing an engineer making product safety decisions, who must “place relative values upon a multitude of factors,” including market price, utility, aesthetics, safety, and the proper balance among them, and whose decisions on these factors “are as interrelated and interdependent as the strands of an intricate web.”).

146 382 U.S. 399 (1966).

147 Id. at 403-404.

148 Id. at 402.


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or its statute. So here this state Act whether labeled ‘penal’ or not must meet the challenge that it

is unconstitutionally vague.”149 On the merits of the vagueness challenge, the Court declared

that a law fails to meet the requirements of due process “if it is so vague and standardless that it

leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to

decide, without any legally fixed standards, what is prohibited and what is not in each particular

case.”150 The Court asserted that this principle was “established,”151 but this appears to be the

first time that the Court explicitly articulated a vagueness analysis that consists of two alternative

prongs, one focused on whether the standard provides notice adequate to guide the public, and

one focused on whether the standard provides adequate guidance to judges and juries.152

Applying this standard, the Court held the statute unconstitutional because it “leave[s] to the jury

such broad and unlimited power in imposing costs on acquitted defendants that the jurors must

149 Id..

150 Id. at 402-403 (emphasis added).

151 Id. at 402.

152 To support this “established” proposition, the Court cited Lanzetta v. New Jersey, 306 U.S. 451 (1939) and Baggett v. Bullitt, 377 U.S. 360 (1964). Both cases were decided based on traditional principles of adequate notice and neither directly supports a two-prong analysis. The two-prong test was later articulated in greater detail in Papachristou v. City of Jacksonville, 405 U.S. 156 (1972). In Papachristou, the Court held that a vagrancy statute was unconstitutionally vague under both prongs. As to the second prong, the Court observed that “[w]here, as here, there are no standards governing the exercise of the discretion granted by the ordinance, the scheme permits and encourages an arbitrary and discriminatory enforcement of the law. It furnishes a convenient tool for ‘harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure.’“ Id. at 170, citing Thornhill v. Alabama, 310 U.S. 88, 97-98 (1940)(holding statute void “on its face,” not for vagueness but as violative of the First Amendment). See also Grayned v. City of Rockford, 408 U.S.104, 108-109 (1972)(“Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them.Document0zzFN_F0054 A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.”).


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make determinations of the crucial issue upon their own notions of what the law should be

instead of what it is.”153

III. THE EVOLUTION OF “FACIAL” VS. “AS APPLIED” ANALYSIS.

“It is neither our obligation nor within our traditional role to resolve questions of

constitutionality with respect to each potential situation that might develop.”154

It was not until 1930 that the Court began to explicitly consider an issue that it had

ignored in most if not all of its vagueness decisions: When, if at all, is it appropriate to evaluate

a vagueness challenge to a statute “on its face,” i.e., in the abstract, without regard to the way it

is being applied to an actual defendant in the actual case before the Court? Like vagueness

doctrine itself, the Court’s decisions on this issue are rife with inconsistencies.

A. A Landmark—But Probably Erroneous—Decision: Reese (1875).

Reese v. United States,155

decided in 1875, was not a vagueness case, and its most

relevant holding was effectively overruled in 1960.156 But like Nash it continues to exert an

influence in vagueness decisions—and, like Nash, it often tends to be a confounding influence.

In one sense, Reese is consistent with the general consensus that existed at the close of the 19th

Century; in dicta, the Court opined that “[f]f the legislature undertakes to define by statute a new

offence, and provide for its punishment, it should express its will in language that need not

deceive the common mind. Every man should be able to know with certainty when he is

committing a crime.”157 But in Reese itself, Congress had expressed itself unambiguously by

declaring it a crime for public officials to interfere in specified ways with a citizen’s right to

153 Giacco, 382 U.S. at 403.

154 Id. at 168.

155 92 U.S. 214 (1875).

156 See Raines v. United States, 362 U.S. 17 (1960), discussed infra at note 202 and accompanying text.

157 Id. at 220.


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vote. Congress purported to act pursuant to the Fifteenth Amendment, which precludes states

from denying the right to vote based on race, and the defendant in the case had interfered with a

citizen’s right to vote based on race. Thus, the defendant’s conduct was both clearly within the

terms of the statute and within the power of Congress to punish under the Fifteenth Amendment.

But the legislation was not limited to interferences based on race; rather, public officials were

guilty of a crime if they interfered with the right to vote (in the specified ways) for any reason.

As to those officials, who were not before the Court, the act would be unconstitutional. For this

reason, the Court held that the statute could not constitutionally be applied to anyone:

It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government.158

In short, the Court in Reese permitted a person to whom the statute could constitutionally be

applied to challenge the statute on the basis that it would be unconstitutional as applied to

others—and it sustained that challenge, holding the statue unconstitutional in toto.

B. The First (Inconsistent) Decisions In Vagueness Cases: Wurzbach, Lanzetta, Petrillo, and Screws (1930-1947).

When the Court first addressed this issue in the context of a vagueness challenge, it was

Justice Holmes who wrote the opinion for the Court—and who ignored Reese. United States v.

Wurzbach159

involved a statute that made it a crime for Senators, Representatives in Congress, or

“any other officer or employee of the United States, or any person receiving any salary . . . from

money derived from the Treasury” to solicit or receive contributions for a political purpose from

158 Id. at 221.

159 280 U.S. 396 (1930).


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other such officers, employees, or persons.160 The defendant argued that that the statute was

unconstitutionally vague with respect to the persons subject to the statute. But the defendant was

a “Representative in Congress.” Justice Holmes opined that the defendant’s vagueness objection

“need not trouble us now” because “[t]here is no doubt that the words include

representatives.”161 Further, “if there is any difficulty, which we are far from intimating, it will

be time enough to consider it when raised by some one whom it concerns.”162 Thus, in

Wurzbach (unlike Reese) the Court refused to allow a defendant to whom the statute could

constitutionally be applied challenge the statute based on its unconstitutionality as applied to

others. Further, in Wurzbach (unlike Nash) Justice Holmes explicitly recognized that the

decision upholding the constitutionality of the statute applied only to the defendant in the case,

and that other defendants in future cases were free to argue that the statute was unconstitutionally

vague as applied to them.

Justice Holmes retired from the Court in 1931, and in 1939, when the Court first

explicitly addressed the relevance of the actual facts of the case at hand to a vagueness challenge,

it relied on Reese and ignored Wurzbach entirely. In Lanzetta v. New Jersey,163 a New Jersey

statute defined “gangster” as any person, who was not engaged in a lawful occupation, who had

previously been convicted of any crime, and who was “known to be a member of any gang

consisting of two or more persons.”164 Persons declared to be “gangsters” were subject to being

160 Id. at 398.

161 Id. at 399.

162 Id.

163 306 U.S. 451 (1939).

164 Id. at 452.


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imprisoned for up to 20 years. The defendant in the case was convicted and sentenced to prison,

but the Court decided that the facts of the particular defendant’s case were irrelevant:

If on its face the challenged provision is repugnant to the due process clause, specification of details of the offense intended to be charged would not serve to validate it. It is the statute, not the accusation under it, that prescribes the rule to govern conduct and warns against transgression.165

Without reference to the specific facts of the case before it, the Court held that the term “gang”—

which was so broad that it could conceivably apply to groups of persons whose purposes were

lawful and even commendable—rendered the statute so “vague, indefinite and uncertain that it

must be condemned as repugnant to the due process clause.”166 As in Reese, the effect of the

decision was to declare the statute void in toto, or “on its face,” even as applied to members of

obviously criminal gangs.

In 1947, in United States v. Petrillo,167

the Court once again declared the facts to be

irrelevant, but this time it rejected a constitutional challenge based on vagueness. The statute at

issue in Petrillo made it a crime for a person to “willfully” coerce or attempt to coerce a radio

broadcasting company to employ any person “in excess of the number of employees needed by

such [company] to perform actual services.”168 A motion to dismiss was granted; thus, the case

arrived at the Supreme Court with almost no facts other than the general allegations tracking the

statute. Nevertheless, the Court opined that “no refinement or clarification of issues which we

can reasonably anticipate would bring into better focus the question of whether the contested

section is written so vaguely and indefinitely that one whose conduct it affected could only guess

165 Id. at 453 (citation omitted).

166 Id. at 458.

167 332 U.S. 1 (1947).

168 Id. at 3.


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what it meant.”169 Accordingly, the Court held that the motion to dismiss “squarely raises the

question of whether the section invoked in the indictment is void in toto, barring all further

actions under it, in this, and every other case.”170

The Court held that the statute was not “void in toto.”171 The Court recognized the

statute would be unconstitutional “if persons of ordinary intelligence would be unable to know

when their compulsive actions would force a person against his will to hire employees he did not

need.”172 But the fact that there were many factors that might be considered in determining how

many employees were needed was not sufficient to violate this principle, “because the same

thing may be said about most questions which must be submitted to a fact-finding tribunal in

order to enforce statutes.”173 As the Court viewed it, the argument “really seems to be that it is

impossible for a jury or court ever to determine how many employees a business needs, and that,

therefore, no statutory language could meet the problem Congress had in mind.”174 This the

Court was unable to accept, and it held that the language challenged “conveys sufficiently

definite warning as to the proscribed conduct when measured by common understanding and

practices.”175

The Court recognized that there “may be marginal cases in which it is difficult to

determine the side of the line on which a particular fact situation falls is no sufficient reason to

169 Id. at 6.

170 Id. at 5-6.

171 Id.

172 Id. at 6.

173 Id.

174 Id. at 7 (emphasis added).

175 Id. at 8.


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hold the language too ambiguous to define a criminal offense.”176 But the Court never said how

these “marginal cases” should be resolved. In other words, while it is clear that the Court held

that the statute was not void “in toto . . . in this, and every other case,” it is not so clear that it

was holding that the statute was valid “in toto . . . in this and every other case.”177

Between Lanzatta and Petrillo, the Court decided Screws v. United States.178

In that

case, the Court was sharply divided, in large part by the significance of the facts of the case

before it. In Screws, three Georgia lawmen arrested a man for stealing a tire, handcuffed him,

and beat him to death.179 The three lawmen were charged with violating a federal statute which

made it a crime for anyone acting under color of law to “willfully” subject a person “to the

deprivation of any [constitutional] rights.”180 The defendants, relying on Cohen Grocery,

claimed that the statute was unconstitutionally vague because of the numerous conflicting views

as to the construction of the due process clause.181 In the lead opinion, Justice Douglas,

speaking for himself and (on this point) for a majority of the Court, recognized the “serious

character” of this challenge, particularly where the offense was committed “willfully” only in the

sense that the defendant intended to do an act “which some court later holds deprives a person of

due process of law.” 182 Under this construction of the Act, a defendant would be a criminal

176 Id. at 7.

177 Id. at 6.

178 325 U.S. 91 (1945).

179 Id. at 92-93

180 Id. at 93.

181 Id. at 95-96.

182Id. at 96, 97. Although only three other justices joined in Justice Douglas’s opinion, it is

apparent that the entire court agreed that the statute, if interpreted to punish conduct that state officers might reasonably believe was lawful, would be unconstitutional. For this reason, three other Justices (Roberts, Frankfurter, and Jackson) would have gone further than Justice Douglas


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“though his motive was pure and though his purpose was unrelated to the disregard of any

constitutional guarantee.”183 The “treacherous ground” on which state officials walked was

indicated by the “closeness of decisions of this Court” interpreting the due process clause.184 To

avoid this constitutional problem, Justice Douglas felt it necessary to interpret the term

“willfully” to mean the specific intent to deprive a person of a federal right that had been “made

definite” by decision or other rule of law.185

With regard to the case at hand, Justice Douglas appeared to agree that the right to be

tried by a jury and not “by ordeal” had been “made definite by decision or other rule of law”;

“[t]hose who decide to take the law into their own hands and act as prosecutor, jury, judge, and

executioner plainly act to deprive a prisoner of the trial which due process of law guarantees

him.”186 Nevertheless, the jury was simply instructed that the defendants acted illegally if they

used more force than was necessary and were not asked to decide whether the defendants “had

the purpose to deprive the prisoner of a constitutional right.”187 Accordingly, Justice Douglas

and three other Justices voted to reverse the conviction and remand for a new trial with

appropriate instructions.

and reversed the convictions outright, because they did not believe that any narrowing construction could make the statute constitutional. And, as discussed in the text, Justices Murphy and Rutledge agreed generally with Justice Douglas but would have affirmed because they saw no constitutional difficulty in applying the statute to the actual facts before the Court.

183 Id.

184 Id. As examples of cases where the uncertain requirements of due process might lead to such an unfair conviction, Justice Douglas referred to confessions obtained by “too long questioning,” enforcement of an ordinance requiring a license for distribution of religious literature, enforcement of “certain types” of anti-picketing statutes, and other similar examples. Id.

185 Id. at 103. As examples of cases in which this test would be met, Justice Douglas referred to cases where a local officer persists in enforcing a type of ordinance held invalid by the Court, or who selects juries in a “manner which flies in the teeth of decisions of the Court.” Id. at 104.

186 Id. at 106.

187 Id. at 107.


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Two other Justices, in two separate opinions, would have affirmed the convictions. The

thrust of both of these opinions is that there was no need to adopt a narrowing construction in the

case because, whatever doubt there might be with respect to the liability of other defendants

under other hypothetical facts, the liability of the defendants in this case was—to borrow a

phrase that Justice Douglas himself would later use in a similar case—as “plain as a pikestaff.”188

Justice Murphy explained it this way:

It is axiomatic, of course, that a criminal statute must give a clear and unmistakable warning as to the acts which will subject one to criminal punishment. . . . . But this salutary principle does not mean that if a statute is vague as to certain criminal acts but definite as to others the entire statute must fall. Nor does it mean that in the first case involving the statute to come before us we must delineate all the prohibited acts that are obscure and all those that are explicit.

Thus it is idle to speculate on other situations that might involve Section 20 which are not now before us. We are unconcerned here with state officials who have coerced a confession from a prisoner, denied counsel to a defendant or made a faulty tax assessment. Whatever doubt may exist in those or in other situations as to whether the state officials could reasonably anticipate and recognize the relevant constitutional rights is immaterial in this case. Our attention here is directed solely to three state officials who, in the course of their official duties, have unjustifiably beaten and crushed the body of a human being, thereby depriving him of trial by jury and of life itself.189

Justice Rutledge agreed with Justice Murphy that the potential invalidity of the statute as

applied to other hypothetical cases where the right at issue was not clearly defined did not justify

narrowly construing the statute:

[T]he doubtful character of the right infringed could give reason at the most to invalidate the particular charge, not for outlawing the statute or narrowly restricting its application in advance of compelling occasion.

For there is a body of well-established, clear-cut fundamental rights, including many secured by the Fourteenth Amendment, to all of which the sections may and do apply, without specific enumeration and without creating hazards of uncertainty for conduct or

188 Williams v. United States, 341 U.S. 97, 101 (1951).

189 Screws, 325 U.S. at 136.


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defense. Others will enter that category. So far, at the least when they have done so, the sections should stand without question of their validity.190

In 1951, in Williams v. United States, a majority of the Court squarely held that the actual

facts of the case, far from being irrelevant, were dispositive.191 Williams, like Screws, was a

prosecution of state law enforcement officers for willfully depriving citizens of their

constitutional rights. The defendants took four men to a paint shack, held them there for three

days, and used brutal methods to force them to confess to a crime. 192 Nevertheless, the

defendants, relying on cases where the Court was divided on the illegal character of methods

used to secure confessions, argued that there was no ascertainable standard of guilt. “If,” asked

the defendants, “the Court cannot agree as to what confessions violate the Fourteenth

Amendment, how can one who risks criminal prosecutions for his acts be sure of the

standard?”193

Justice Douglas, joined by five other justices, rejected this argument because it was

“plain as a pikestaff that the present confessions would not be allowed in evidence whatever the

school of thought concerning the scope and meaning of the Due Process Clause.”194 According

to Justice Douglas, “where police take matters in their own hands, seize victims, beat and pound

190 Id. at 130-131.

191 341 U.S. 97 (1951). A few years earlier, in Winters v, New York, 333 U.S. 507, 514 (1948), the Court struck down as unconstitutionally vague a state statute that made it a crime to publish materials that “so massed their collection of pictures and stories of bloodshed and of lust ‘as to become vehicles for inciting violent and depraved crimes against the person.” The Court did so without even considering the nature of the publications at issue. As Justice Frankfurter noted in dissent, “the Court’s opinion could have been written by one who had never read the issues of ‘Headquarters Detective’ which are the basis of the prosecution before us.” Id. at 526. Justice Frankfurter further opined that “[n]ot to make the magazines with which this case is concerned part of the Court’s opinion is to play ‘Hamlet’ without Hamlet.” Id. at 527.

192 341 U.S. at 98-99.

193 Id. at 101.

194 Id.


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them until they confess, there cannot be the slightest doubt that the police have deprived the

victim of a right under the Constitution.”195 At the same time, however, Justice Douglas

recognized that not every case would be so free from doubt, and he expressly noted that “[s]ome

day the application of § 20 to less obvious methods of coercion may be presented and doubts as

to the adequacy of the standard of guilt may be presented.”196 Thus, the holding in Williams that

the statute was not unconstitutionally vague plainly was not a holding that the statute could

validly be applied in all cases.

The Court’s next significant decision, Jordan v. DeGeorge,197 was consistent with the

fact-specific analysis utilized in Williams. In that case, the Court held that the statute that

permitted deportation where an alien is convicted of a “crime involving moral turpitude” was not

unconstitutional as applied to an alien convicted of a crime involving fraud, because there was a

substantial body of precedent in which it had been held without exception that the phrase

included “crimes in which fraud was an ingredient.”198 But three years later, in United States v.

Harriss,199 the Court was once again opining, as it had in Petrillo, that “we judge the statute on

its face.”200 Even more surprising, dissenting Justice Douglas, apparently oblivious to the

contrast with his “plain as a pikestaff” opinion in Williams, would have held that lobbying statute

involved in Harriss unconstitutional without regard to the facts of the particular case. Indeed, he

195 Id.

196 Id.

197 341 U.S. 223 (1951).

198 Id. at 227.

199 347 U.S. 612 (1954).

200 Id. at 617.


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expressly opined that the question “is not what the information charges nor what the proof might

be. It is whether the statute itself is sufficiently narrow and precise as to give fair warning.”201

C. Raines and its Aftermath (1960-1971).

In United States v. Raines,202

decided in 1960, the Court unequivocally declared as a

general rule (with some exceptions) that it not would declare a statute unconstitutional based on

its potential application to persons not before the Court. Like Reese, Raines involved a challenge

to a statute based not on due process or vagueness but on the 15th Amendment. In it, the United

States sought an injunction against public officials to enjoin them from discriminating on the

basis of race against African Americans who desired to register to vote. The action was based on

a statute that permitted an injunction against anyone, even private persons, who would deprive

any other person of the right to vote.203 The district court held that the statute was

unconstitutional because the 15th Amendment gave Congress no power to regulate the affairs of

private persons.204 Justice Brennan, writing for the Court—and citing Justice Holmes’s opinion

in Wurzbach—held that the potential unconstitutional application of the statute to private persons

was irrelevant, because the defendants in the case were public officials as to whom the statute

was plainly constitutional.

“‘. . . . In the exercise of that jurisdiction [to decide actual controversies], [the Court] is bound by two rules, to which it has rigidly adhered: one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other, never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’ Kindred to these rules is the rule that one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional. United States v. Wurzbach, 280 U.S. 396 [and other cases]. In

201 Id. at 629.

202 362 U.S. 17 (1960).

203 Id. at 19-20.

204 Id.at 20.


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Barrows v. Jackson, 346 U.S. 249, this Court developed various reasons for this rule. Very significant is the incontrovertible proposition that it “would indeed be undesirable for this Court to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation.” Id., 346 U.S. at page 256, 73 S.Ct. at page 1035. The delicate power of pronouncing an Act of Congress unconstitutional is not to be exercised with reference to hypothetical cases thus imagined.205

To the extent Reese “depend[ed] on an approach inconsistent with what we think the better one

and the one established by the weightiest of the subsequent cases, we cannot follow it here.”206

However, Justice Brennan also articulated some significant exceptions to this general

rule: (1) where application of this rule “would itself have an inhibitory effect on freedom of

speech”; (2) where the statute in question has “already been declared” unconstitutional in the

vast majority of its applications, such that it can fairly be said that “it was not intended to stand

as valid, on the basis of fortuitous circumstances, only in a fraction of the cases it was originally

designed to cover”; and (3) “that rarest of cases where this Court can justifiably think itself able

confidently to discern that Congress would not have desired its legislation to stand at all unless it

could validly stand in its every application.”207 Justice Brennan recognized that there had been

cases “where this Court has not applied with perfect consistency these rules for avoiding

unnecessary constitutional determinations, and we do not mean to say that every case we have

cited for various exceptions to their application was considered to turn on the exception stated, or

is perfectly justified by it.”208

205 Id. at 21-22 (citations omitted).

206 Id. at 24.

207 Id. at 23.

208 Id. at 24.


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For a while, at least, the Court adhered to the holding in Raines in vagueness cases. In

United States v. National Dairy Products Corp.,209 for example, the prosecution alleged that the

defendants intentionally sold milk and dairy goods below cost, thereby violating the Robinson-

Patman Act, which made it a crime to sell goods at “unreasonably low prices for the purpose of

destroying competition.”210 The defendants argued that the prohibition against unreasonably

low prices was unconstitutionally vague, relying (logically enough) on Cohen Grocery. The

Court rejected the defendant’s argument. Relying on Raines, the Court emphasized that “[w]e do

not evaluate § 3 in the abstract”; that the difficulty presented by “marginal cases” not before the

Court does not automatically invalidate the statute; and that “[i]n determining the sufficiency of

the notice a statute must of necessity be examined in the light of the conduct with which a

defendant is charged.”211 Accordingly, the Court considered the vagueness attack “solely in

relation to whether the statute sufficiently warned National Dairy and Wise that selling ‘below

cost’ with predatory intent was within its prohibition of ‘unreasonably low prices.’”212 So

considered, the Court concluded that the extensive legislative history made it plain that predatory

pricing was one of the specific evils which the antitrust acts were intended to prohibit, and that

the defendants therefore could reasonably understand from the statutory language that sales

below cost for the purpose of destroying competition was specifically proscribed by the Act.213

209 372 U.S. 29 (1963).

210 Id. at 29.

211 Id. at 32-33.

212 Id. at 33.

213 Id. at 34.


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By 1971, however, the Court was overlooking the consensus it had reached in Raines.

United States v. Vuitch214 involved a statute that made it a crime for a physician to perform an

abortion except when necessary to preserve the mother’s “life or health.”215 The district court,

granting a motion to dismiss an indictment, held that the statute was unconstitutionally vague

because “the word ‘health’ is not defined and in fact remains so vague . . . that there is no

indication whether it includes varying degrees of mental as well as physical health.”216 There is

no suggestion in district court’s opinion that the case actually involved an abortion performed for

reasons of mental health; indeed, it appears that the district court was simply imagining one of

numerous potential uncertainties that might arise in some hypothetical future case to illustrate its

concern that a physician might be found guilty or innocent of violating the statute based simply

upon the jury’s “acceptance or nonacceptance of an individual doctor’s interpretation of the

ambivalent and uncertain word ‘health.’“217 Nevertheless, the majority opinion by Justice Black

addressed the issue as if the only possible uncertainty in the act was whether “health” referred to

mental as well as physical health—and it simply removed this uncertainty by interpreting the

word “health” to include mental health. With this uncertainty removed, the Court declared that

“the term ‘health’ presents no problem of vagueness.”218 The Court, in other words, effectively

declared the statute, as construed, constitutional in toto without any reference to the facts of the

case before it.

214 402 U.S. 62 (1971).

215 Id. at 67-68.

216 Id. at 68 n.3.

217 United States v. Vuitch, 305 F.Supp. 1032, 1034 (D.D.C. 1969).

218 Vuitch, 402 U.S. at 72.


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Justice Douglas’s dissenting opinion was equally unfaithful to Raines and National Dairy

(and his own “plain as a pikestaff” opinion in Williams), because he would have held that the

statute was unconstitutionally vague without regard to the facts of the case:

That judgment [of the physician], however, is highly subjective, dependent on the training and insight of the particular physician and his standard as to what is ‘necessary’ for the ‘preservation’ of the mother’s ‘life or health.’

The answers may well differ, physician to physician. . . . .

. . . . What will the jury say? . . . Are the concepts so vague that jurors can give them a gloss and meaning drawn from their own predilections and prejudices? Is the statutory standard so easy to manipulate that although physicians can make good-faith decisions based on the standard, juries can nonetheless make felons out of them?219

Thus, Justice Douglas’s dissenting opinion is a mirror image of the majority opinion.

While the majority effectively declared the statute constitutional in toto because it was

constitutional when applied in a few hypothetical cases, Justice Douglas would have declared the

statute unconstitutional in toto because it would be unconstitutional when applied to other

equally hypothetical cases.

Only Justice White—in his first of many opinions on the issue—remained true to the

Court’s recent pronouncements in Raines and National Dairy. Justice White noted that the case

came before the Court “unilluminated by facts or record.”220 Citing National Dairy, he

concluded that the statute could not be unconstitutional “on its face,” because, at the very least, it

put the public on notice that abortions performed without regard to whether the mother’s health

required it were prohibited:

219 Id. at 74-75. Justice Douglas understandably found it necessary to distinguish Justice Holmes’s opinion in Nash; he did so simply by asserting that Justice Holmes “wrote in a context of economic regulations which are restrained by few, if any, constitutional guarantees.” Id. at 76.

220 Id. at 73.


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No one of average intelligence could believe that under this statute abortions not dictated by health considerations are legal. Thus even if the ‘health’ standard were unconstitutionally vague, which I agree is not the case, the statute is not void on its face since it reaches a class of cases in which the meaning of ‘health’ is irrelevant and no possible vagueness problem could arise. We do not, of course, know whether this is one of those cases. Until we do facial vagueness claims must fail.221

The same difference in approach is evident in the opinions in Coates v. City of

Cincinnati,222 also decided in 1971. In Coates, a city ordinance made it a crime for three or more

persons to assemble on a public sidewalk and engage in conduct “annoying” to passers-by. 223

Throughout the litigation, it had been the defendant’s position that the ordinance was

unconstitutional “on its face.”224 Apparently as a result, the record before the reviewing courts

was virtually silent regarding the conduct for which the defendants had been tried and convicted.

The Ohio Supreme Court upheld the ordinance, opining that the word “annoying” is a “widely

used and well understood word; it is not necessary to guess at its meaning.”225 Justice Stewart,

writing for the majority of the Court, was not persuaded, because “[c]onduct that annoys some

people does not annoy others.”226 For this reason, Justice Stewart (quoting Connally) said, “the

ordinance is vague, not in the sense that it requires a person to conform his conduct to an

imprecise but comprehensible normative standard, but rather in the sense that no standard of

221 Id. at 74.

222 402 U.S. 611 (1971).

223 Id. at 611.

224 Id. at 612.

225 Id. The Ohio court observed that “‘[a]nnoying’ is the present participle of the transitive verb ‘annoy’ which means to trouble, to vex, to impede to incommode, to provoke, to harass or to irritate,” suggesting that a statute cannot be unconstitutionally vague as long as it uses words that can be defined. Id.

226 Id. at 614.


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conduct is specified at all. As a result, ‘men of common intelligence must necessarily guess at

its meaning.’”227

Justice Stewart recognized the statute was broad enough to encompass many types of

conduct that would clearly be prohibited by the statute, but nevertheless held that enforcement of

the statute could not constitutionally be made to depend upon “whether or not a policeman is

annoyed.”228 Because the ordinance was “aimed directly” at activity protected by the First

Amendment, the Court “need not lament that we do not have before us the details of the conduct

found to be annoying. It is the ordinance on its face that sets the standard of conduct and warns

against transgression.”229

Justice White, joined by two other justices, saw the case differently. Because the

ordinance on its face did not purport to bar or regulate speech as such, Justice White would have

dealt with it “as we would with the ordinary criminal statute.”230 He observed that “[a]ny man of

average comprehension should know that some kinds of conduct, such as assault or blocking

passage on the street, will annoy others and are clearly covered by the ‘annoying conduct’

standard of the ordinance.”231 As to conduct of this nature, it would be “frivolous” to say that it

is “not within the foreseeable reach of the law”;232 accordingly, in his view, the statute could not

be unconstitutionally vague on its face:

The ordinance clearly reaches certain conduct but may be illegally vague with respect to other conduct. The statute is not infirm on its face and since we have no information from this record as to what conduct was charged against these defendants, we are in no

227 Id.

228 Id.

229 Id. at 616.

230 Id. at 620.

231 Id. at 618.

232 Id.


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position to judge the statute as applied. That the ordinance may confer wide discretion in

a wide range of circumstances is irrelevant when we may be dealing with conduct at its

core.233

D. The “Hard Core” Principle (1973-1978, With a Flashback to 1957).

Consistent with Justice White’s dissent in Coates, the Court began to gravitate toward an

approach that recognized an additional exception to the ones already recognized in Raines: a

statute could be declared unconstitutionally vague on its face if there is no identifiable “hard

core” of prohibited conduct to which the statute clearly applied.234 In considering the

development of this concept, it makes sense to begin with the Court’s treatment of vagueness

issues in obscenity cases.

1. Hard Core “Obscenity”: Roth and Miller.

The Court’s seminal obscenity decision in Roth v. United States,235

decided in 1957,

involved statutes that imposed criminal penalties for mailing or distributing “obscene” materials.

For purposes of its opinion, the Court in effect assumed that materials were obscene under the

relevant statutes if to “the average person, applying contemporary community standards, the

dominant theme of the material taken as a whole appeals to prurient interest.”236 The principal

issue before the Court was whether material meeting this definition was protected by the First

233 Id. at 620-621 (emphasis added).

234 One commentator anticipated the “hard core” analysis towards which the Court eventually gravitated as early as 1955. Rex A. Collings, Jr., Unconstitutional Uncertainty—An Appraisal,

40 Cornell L. Q. 195, 206 (1955)(“In view of these cases, one must conclude that the presence of difficult borderline or peripheral cases will not invalidate a statute at least where there is a hard core of circumstances to which the statute unquestionably applies and as to which the ordinary person would have no doubt as to its application.”). Strangely, however, the Court has never cited this article on this point. Equally strange is the fact that the “hard core” analysis seems to have been articulated first by Justice Rutledge, concurring in United States v. Congress of

Industrial Organizations, 335 U.S. 106, 152 (1948), but this opinion was not cited by Collings in his article, nor has it been cited on this point by the Court.

235 354 U.S. 476 (1957).

236 Id. at 489.


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Amendment; the Court, in an opinion by Justice Brennan, held that it was not. Justice Brennan

also considered and rejected, almost peremptorily, the argument that the definition of obscenity

was unconstitutionally vague. He opined that that the Court had consistently held that “lack of

precision is not itself offensive to the requirements of due process,” and that the potential for

marginal cases “is no sufficient reason” to invalidate a statute.237 And he dropped this footnote,

for which he could have cited Nash as authority:

It is argued that because juries may reach different conclusions as to the same material, the statutes must be held to be insufficiently precise to satisfy due process requirements. But, it is common experience that different juries may reach different results under any criminal statute. That is one of the consequences we accept under our jury system.238

But nowhere in the opinion does Justice Brennan address the nature of the materials

involved in the cases before the Court. In fact, Justice Brennan observed in another footnote

(somewhat surprisingly) that “[n]o issue is presented in either case concerning the obscenity of

the material involved.”239 Thus, the vagueness issue addressed by Justice Brennan necessarily

was whether the definition of obscenity was unconstitutionally vague, not as applied to the

parties in the cases, who were not even claiming the materials were not obscene, but as it might

potentially be applied to others. Accordingly, although Justice Brennan did not address the

issue, Roth can be read as simply holding that the definition of obscenity was not

237 Id. at 491.

238 Id. at 492 n.30. Instead of citing Nash for this proposition, Justice Brennan provided only a

“Cf.” citation to Dunlop v. United States, 165 U.S. 486, 499-500 (1897), an 1897 decision which held (in the portion cited in the opinion) only that it was proper to instruct the jury that it could use its common sense.

239 Roth, 354 U.S. at 482 n.8


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unconstitutionally vague on its face, leaving open the possibility that it might be unconstututional

as applied in some circumstances.240

The same can be said of Justice Burger’s 1973 opinion in Miller v. California,241

which

reaffirmed Roth’s holding that “obscenity” is not protected by the First Amendment and is not

unconstitutionally vague—once again without examining the nature of the specific materials in

question. Recognizing the existence of some confusion in the definition of “obscenity,” Justice

Burger undertook to provide “concrete guidelines to isolate ‘hard core’ pornography from

expression protected by the First Amendment”: “(1) whether the average person, applying

contemporary community standards, would find that the work as a whole appears to the prurient

interest, (2) whether the work depicts, in a patently offensive way, sexual conduct specifically

defined by state law, and (3) whether the work, as a whole, lacks serious literary, artistic,

political, or scientific value.”242 Given these criteria, Justice Burger opined, no one would be

subject to criminal prosecution for the sale of obscene material “unless these materials depict or

describe patently offensive ‘hard core’ sexual conduct.”243

As to the possibility that different jurors might nevertheless reach different conclusions as

to the same materials, Justice Burger simply repeated Justice Brennan’s observation that “it is

common experience that different juries may reach different results under any criminal

240 Much later, the Court would expressly hold that statutes regulating sexually explicit material, unlike statutes regulating other forms of expression, are not subject to a facial attack because narrowing constructions are possible and “there is surely a less vital interest in the uninhibited exhibition of material that is on the borderline between pornography and artistic expression than in the free dissemination of ideas of social and political significance.” Young v. American Mini

Theatres, Inc., 427 U.S. 50, 61 (1976).

241 413 U.S. 15 (1973).

242 Id. at 24, 29.

243 Id. at 27 (emphasis added).


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statute.”244 Ironically, however, by this time Justice Brennan had concluded that Roth “cannot be

reconciled with the fundamental principles of the First and Fourteenth Amendments.”245 In a

dissent in a companion case decided the same day as Miller, Justice Brennan (joined by Justices

Stewart and Marshall) explained that the Court was unable to define obscenity in advance except

by reference to concepts “so elusive that they fail to distinguish clearly between protected and

unprotected speech,” and whose meaning “necessarily varies with the experience, outlook, and

even idiosyncrasies of the person defining them.”246 Justice Brennan recognized that this vague

language failed to provide the “fair notice” required by the due process in two respects—first,

because it compels persons to guess whether their conduct is covered by a criminal statute; and

second, to guess whether their conduct falls within the constitutionally permissible reach of that

statute.247

2. “Hard Core” Political Activity: Broadrick v. Oklahoma.

The “hard core” concept proved useful to the Court in other contexts as well. In

Broadrick v. Oklahoma,248

decided the same year as Miller, classified civil servants who

allegedly participated actively in the re-election campaign of their superior brought an action

seeking to have the statute prohibiting such political activity declared unconstitutionally vague

and overbroad “in toto.”249 The Court, in an opinion by Justice White, rejected this argument,

applying the same analysis Justice White had articulated in his dissents in Vuitch and Coates.

Any imprecision in the language of the statute “has little relevance here,” Justice White

244 Id. at 26 n. 9.

245 Paris Adult Theatre I v. Slaton, 413 U.S. 49, 83 (1973)(Brennan, J. dissenting).

246 Id. at 84.

247 Id. at 87.

248 413 U.S. 601 (1973).

249 Id. at 606-607.


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observed, “where appellant’s conduct falls squarely within the ‘hard core’ of the statute’s

proscriptions and appellants concede as much.”250 In the context of “this type of obviously

covered conduct, the statement of Mr. Justice Holmes [in Wurzbach] is particularly appropriate:

‘if there is any difficulty . . . it will be time enough to consider it when raised by someone whom

it concerns.’“251

The principle applied by Justice White was applied to declare a statute unconstitutional

on its face in Smith v. Goguen.252

In that case, the defendant was convicted of violating a

Massachusetts statute that made it a crime to treat the United States flag “contemptuously.”253

The “slender record” in the case “reveals little more than that Goguen wore a small [4” by 6”]

cloth version of the United States flag sewn to the seat of his trousers.”254 The state argued that

the defendant was a “hard-core violator as to whom the statute was not vague, whatever its

implications for those engaged in different conduct.”255 The Court agreed that there were

statutes that as written or construed apply without question to certain activities, but whose

application to other behavior is uncertain, and that “[t]he hard-core violator concept makes some

sense with regard to such statutes.”256 But a majority of the Court held that the statute at issue

was not in that category because “it has no core.”257 The Court believed that the statute failed to

provide fair notice because casual treatment of the flag had become commonplace; while the

250 Id. at 608.

251 Id. at 609, quoting United States v. Wurzbach, 280 U.S. 396, 399 (1930).

252 415 U.S. 566 (1974).

253 Id. at 568.

254 Id. at 568.

255 Id. at 577.

256 Id. at 578.

257 Id.


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legislature surely did not intend to make criminal every informal use of the flag, the statute “fails

to draw reasonably clear lines between the kinds of nonceremonial treatment that are criminal

and those that are not.”258 But the Court believed that statute’s “most notable deficiencies”

related to the absence of minimal guidelines to govern law enforcement.259 According to the

Court, the language of the statute was sufficiently unbounded to punish “any public deviation

from formal flag etiquette” and would permit “policemen, prosecutors, and juries to pursue their

personal predilections.”260

3. “Conduct Unbecoming An Officer” and “Crimes Against Nature”: Parker and Rose.

In Parker v. Levy,261

decided in 1974, Justice Rehnquist, speaking for the majority,

picked up Justice White’s refrain. The defendant in that case was a captain in the Army who

issued public statements urging enlisted men to disobey orders to go to Vietnam.262 He was

convicted under provisions of the Code of Military Justice that prohibited “conduct unbecoming

an officer” and of “disorders and neglects to the prejudice of good order and discipline in the

armed forces.”263 The Court concluded that these provisions were not unconstitutionally vague

258 Id. at 574.

259 Id.

260 Id. at 575. Justice White disagreed. According to Justice White, the statute was not unconstitutionally vague on its face because it was self-evident there was a “whole range of conduct that anyone with at least a semblance of common sense would know is contemptuous conduct.” Id. at 584. Nor did Justice White believe the statute was unconstitutionally vague as applied to the defendant, because Goguen admitted—indeed, he expressly argued—that his treatment of the flag was an expression of contempt protected by the First Amendment. Id. at 585. For this same reason, however, Justice White also concluded that the statute, while not unconstitutionally vague as applied to Goguen, did violate Goguen’s First Amendment rights. Id. at 588-589.

261 417 U.S. 733 (1974).

262 Id. at 736-37.

263 Id. at 737-38.


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as applied to the defendant. As Justice Rehnquist observed for the majority, the defendant’s

conduct fell squarely within the “substantial range of conduct to which both articles clearly apply

without vagueness or imprecision.”264 Since the defendant could have had “no reasonable

doubt” that his public statements urging enlisted men to disobey orders were violations of the

articles, he had no standing to “challenge the vagueness of these articles as they might be

hypothetically applied to the conduct of others.”265

Justice Stewart dissented, finding it “hard to imagine criminal statutes more patently

unconstitutional than these vague and uncertain general articles.”266 Justice Stewart pointed out

that the articles had been used to punish such disparate conduct as sexual acts with a chicken,

window peeping at a trailer park, and cheating while calling bingo numbers.267 Justice

Blackmun wrote a concurring opinion for the purpose of responding specifically to Justice

Stewart. The thrust of Justice Blackmun’s opinion is that a person who performs sexual acts

with chickens, peeps in windows, or cheats at bingo necessarily knows that his or her conduct is

wrongful in some fundamental moral sense, such that there is no unfairness or arbitrariness in

imposing punishment for such conduct under a general prohibition such as those at issue (at least

given the unique needs of the military). He opined that there were certain “fundamental concepts

of right and wrong,” independent of the criminal law, violation of which the articles in question

264 Id. at 754.

265 Id. at 756. Much of the Court’s opinion is spent detailing the unique status of the military, but the significance of this discussion to the actual holding is not entirely clear, beyond the Court’s holding that the factors differentiating military society justified applying the standard of review “which applies to criminal statutes regulating economic affairs.” Id. at 756-757, citing United

States v. National Dairy Products Corp., 372 U.S. 29, 32-33 (1963). By this, the Court apparently meant to support its conclusion that the defendant, although being punished for speech, could not challenge his conviction by relying on the hypothetical unconstitutionality of the articles as applied to other potential defendants.

266 417 U.S. at 774.

267 Id. at 779.


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might constitutionally reach.268 “[T]he moral horizons of the American people,” he observed,

“are not . . . limited by the civil code of Tennessee.”269

But Justice Blackmun failed to apply his insight in a case decided the very next year,

electing to join, instead, the majority’s problematic analysis in Rose v. Locke.270

The case was a

criminal prosecution of Locke, who entered the apartment of a female neighbor late at night with

a knife, forced her to disrobe, and compelled her to submit to cunnilingus.271 He argued that the

Tennessee code provision under which he was convicted did not provide the fair warning

required by the due process clause. A three judge panel of the Sixth Circuit, on writ of habeus

corpus, unanimously agreed. A majority of the Supreme Court reversed in a per curiam decision,

but three justices (Brennan, Stewart, and Marshall) dissented and agreed with the Sixth Circuit

that Locke had not been given fair warning.

At first blush—indeed, at second blush—the sharp division among the judges reviewing

this case seems bizarre. Locke could not possibly have believed that his conduct was innocent;

any reasoning person would have recognized that his conduct was both a moral wrong and a

punishable crime. How could six eminent appellate judges nevertheless conclude that Locke did

not have fair warning that he could be punished? But this is not exactly what those appellate

judges concluded. Rather, they concluded, in effect, that Locke did not have fair warning that

his conduct was punishable under the specific statute pursuant to which he was eventually

268 Id. at 763. Justice Blackmun used as an example failing to repay a debt with fraudulent intent. The criminal law, for historical reasons, might define fraud to include only the obtaining of money, and not the refusal to pay it back. Nevertheless, “[t]he gambler who throws away other people’s money and the spendthrift who uses it in luxurious living instead of paying it back, cheat and defraud their creditors as effectually as the knaves and sharpers who drift within the meshes of the criminal law.” Id. at 764.

269 Id. at 765.

270 423 U.S. 48 (1975).

271 Id.


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charged. For the state of Tennessee inexplicably elected to charge Locke not with (for example)

aggravated assault and battery; instead, the state charged him with a “crime against nature.”272

Courts had differed widely about the meaning of the term “crime against nature.”

Several, in fact, had expressly ruled that it did not include cunnilingus, and the Tennessee courts

had yet to rule on the issue. The majority (which included Justices White, Rehnquist, and

Blackmun) might have taken its lead from the decision in Parker, declaring that whatever

ambiguity and uncertainty the statute might have under other circumstances, Locke himself had

even less reason to proclaim lack of fair warning than did the defendant in Parker. Indeed, in

this context, Justice Blackmun’s comment in Parker that “the moral horizons of the American

people are not . . . limited by the civil code of Tennessee” would have been prescient, had he

simply substituted “criminal” for “civil.” But this is not what the majority did. Instead, the

majority, in an unsigned per curiam opinion, held that (1) the phrase “‘crime against nature’ is

no more vague than many other terms used to describe criminal offenses at common law and

now codified in state and federal penal codes,” (2) courts in Maine had construed the phrase to

include cunnilingus, (3) Tennessee courts, prior to Locke’s conduct, and relying on cases from

Maine, had interpreted the phrase to include fellatio, (4) the Tennessee courts had indicated an

intention to construe the phrase broadly, and, as a result, (5) Locke had no reason to believe his

conduct was outside the scope of the statute.273 The Court apparently deemed it irrelevant that

other state courts had concluded that fellatio, but not cunnilingus, was a “crime against

nature.”274 The Court also overlooked its decision in Southwestern Telegraph & Telephone Co,

272 Id. at 48.

273 Id. at 50-53.

274 See id. at 56-57 (Brennan, J., dissenting).


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v. Danaher,275

the case in which the Court concluded that a telephone company could not

constitutionally be punished for conduct in Alabama, even though the defendant had reason to

know of the possibility that Alabama might declare the conduct unlawful, where other states had

declared the conduct to be lawful. And the Court did not even acknowledge the possibility that a

different result might have been required had the case involved other, less obviously unlawful

conduct, such as consensual cunnilingus performed by married couples.276

IV. FURTHER FROM NASH, CLOSER TO TOZER.

The qualified immunity test is simply the adaptation of the fair warning standard to give officials

(and, ultimately, governments) the same protection from civil liability … that individuals have

traditionally possessed in the face of vague criminal statutes.277

The remainder of the 20th Century brought no further clarification of when a facial

challenge based on vagueness was appropriate; if anything, in fact, it brought further confusion.

But with a few slight detours and some revisionist history, the principal decisions of the Court

between 1978 and 1999 were consistent with the consensus that existed at the close of the 19th

Century, before the upheaval caused by Nash.

A. Nash Revisited: United States Gypsum and Colautti (1978-1979).

In United States v. United States Gypsum Co.,278

the Court revisited Nash, § 1 of the

Sherman Act, and the rule of reason. The precise issue addressed by the Court was whether

intent was an element of a criminal antitrust offense under the Sherman Act. According to the

Court, there was an array of considerations arguing against treating antitrust violations as strict-

275 238 U.S. 482 (1915).

276 Of course, after the Tennessee court’s decision, no vagueness remained, at least with respect to its application to cunnilingus. But the nature of the Court’s decision suggests that it would have rejected a vagueness challenge even if made by a married couple who engaged in the practice before the Tennessee court’s decision in Locke.

277 United States v. Lanier, 520 U.S. 259, 270-71 (1997)(citations omitted).

278 438 U.S. 422 (1978).


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liability crimes, first among them the fact that the Sherman Act does not precisely identify the

conduct which it proscribes and subjects businessmen to potential criminal liability for a good

faith error of judgment:

[T]he behavior proscribed by the Act is often difficult to distinguish from the gray zone of socially acceptable and economically justifiable business conduct. Indeed, the type of conduct charged in the indictment in this case—the exchange of price information among competitors—is illustrative in this regard. The imposition of criminal liability on a corporate official, or for that matter on a corporation directly, for engaging in such conduct which only after the fact is determined to violate the statute because of anticompetitive effects, without inquiring into the intent with which it was undertaken, holds out the distinct possibility of overdeterrence; salutary and procompetitive conduct lying close to the borderline of impermissible conduct might be shunned by businessmen who chose to be excessively cautious in the face of uncertainty regarding possible exposure to criminal punishment for even a good-faith error of judgment.279

The Court recognized that Nash held that the imprecision of the Sherman Act did not

preclude imposition of criminal liability, but it also recognized that this factor had been “deemed

particularly relevant” by those charged with enforcing the act.280 For example, a 1955 Attorney

General’s report had concluded that the criminal provisions of the act should be reserved for

those circumstances “where the law is clear and the facts reveal a flagrant offense and plain

intent unreasonably to restrain trade.”281 To avoid these vagueness problems, the Court

concluded that “the criminal offenses defined by the Sherman Act should be construed as

including intent as an element.”282

Colautti v. Franklin,283 decided the following year, was an action to enjoin enforcement

of a Pennsylvania statute that required a physician, prior to performing an abortion, to make a

279 Id. at 440-441.

280 Id. at 439.

281 Id. at 439.

282 Id. at 443.

283 439 U.S. 379 (1979).


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determination concerning whether the fetus is “viable” or if “there is sufficient reason to believe

that the fetus may be viable.”284 If so, the physician was required to use the abortion technique

that “would provide the best opportunity for the fetus to be aborted alive so long as a different

technique would not be necessary in order to preserve the life or health of the mother.”285

Violation of the statute potentially rendered a physician criminally liable for homicide.286 A

majority of the Court, in an opinion written by Justice Blackmun, concluded that the statute was

unconstitutionally vague, apparently on its face. As the majority interpreted the statute, a

physician was subject to potential criminal liability simply for intentionally, negligently, or

recklessly causing the death of a viable fetus, with no finding of culpability required with respect

to the viability determination. And yet, determining viability was a matter that involved a

number of complicated factors that could well lead different physicians to reach different

conclusions:

The perils of strict criminal liability are particularly acute here because of the uncertainty of the viability determination itself. As the record in this case indicates, a physician determines whether or not a fetus is viable after considering a number of variables . . . . Because of the number and the imprecision of these variables, the probability of any particular fetus’ obtaining meaningful life outside the womb can be determined only with difficulty. Moreover, the record indicates that even if agreement may be reached on the probability of survival, different physicians equate viability with different probabilities of survival, and some physicians refuse to equate viability with any numerical probability at all. In the face of these uncertainties, it is not unlikely that experts will disagree over whether a particular fetus in the second trimester has advanced to the stage of viability.287

As a result, “the statute is little more than ‘a trap for those who act in good faith.’”288

284 Id. at 380 n.1.

285 Id.

286 Id. at 394.

287 Id. at 395-396.

288 Id. at 395, quoting United States v. Ragan, 314 U.S. 513 (1942).


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But there was yet another troublesome area of uncertainty: determining which abortion

method that would provide the best opportunity for the fetus to be aborted alive, without

endangering the life or health of the mother. The parties agreed, in fact, that “there is

disagreement among medical authorities about the relative merits and the safety of different

abortion procedures that may be used during the second trimester.”289 Nor was there any support

for the contention that the statute required only a good faith selection of the proper procedure.

Under these circumstances, the Court concluded, the statute was unconstitutionally vague:

The choice of an appropriate abortion technique, as the record in this case so amply demonstrates, is a complex medical judgment about which experts can—and do— disagree. The lack of any scienter requirement exacerbates the uncertainty of the statute. We conclude that the standard-of-care provision, like the viability-determination requirement, is void for vagueness.290

Justice White, joined by Chief Justice Burger and Justice Rehnquist, dissented. One

might have expected Justice White’s dissent to focus on the fact that the majority had, once

again, improperly considered a vagueness challenge in the abstract. Surprisingly, however,

Justice White made this point only indirectly, if at all. Rather, Justice White seemed content to

evaluate the Pennsylvania statute on its face, because as he interpreted Pennsylvania law “there

is not the remotest chance that any abortionist will be prosecuted on the basis of a good-faith

mistake . . . with respect to which abortion technique is to be used.”291 Thus, the disagreement

between the majority and the minority in Colautti is of little significance in evaluating vagueness

doctrine (although Justice White’s apparent acquiescence in a facial challenge tends to confuse

facial versus as-applied analysis even further). No justice in the case expressed any

disagreement with the notion that the statute at issue would be unconstitutionally vague if it

289 Colautti, 439 U.S. at 399.

290 Id. at 400.

291 Id. at 408-409


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permitted punishment under circumstances where reasonable physicians could disagree, either

about the viability of the fetus or the appropriate abortion technique. Indeed, the following year,

the entire Court joined in an opinion by Justice Stewart that cited Colautti and concluded (albeit

in a footnote) that a Medicaid provision was not “void for vagueness” because “the sanction

provision in the Medicaid Act contains a clear scienter requirement under which good-faith

errors are not penalized.”292

B. The Flipside And Its Aftermath (1982-1996).

In Village of Hoffman Estates v. The Flipside293 a unanimous Court made a serious

attempt to synthesize and reconcile its often conflicting vagueness decisions, both with respect to

application of the vagueness standard itself and with respect to when a facial challenge was

permissible. But the attempt was flawed and (perhaps as a result) the unanimity disappeared

almost immediately. In The Flipside, a village ordinance prohibited the sale, without a license,

of any items “designed or marketed for use” with illegal drugs.294 The village had issued

guidelines specifying some particular items to which the ordinance was applicable, such as

“roach clips.”295 Businesses could also seek clarification of the ordinance by petitioning for the

adoption of an interpretative rule.296 Violations of the ordinance were subject to a civil fine.297

The Flipside sold a variety of merchandise potentially subject to the ordinance, but,

instead of petitioning for an interpretative rule, it filed an action in federal court seeking to have

the ordinance declared unconstitutional. According to the Court (in an opinion by Justice

292 Harris v. McRae, 448 U.S. 297, 311 n.17 (1980).

293 455 U.S. 489 (1982).

294 Id. at 491.

295 Id. at 492.

296 Id. at 493 n.4.

297 Id. at 499.


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Marshall joined in relevant part by the entire Court except Justice Stevens, who did not

participate), The Flipside was a “preenforcement facial challenge” to the ordinance.298

Accordingly, the Court began by explaining the principles it believed were applicable to such a

“facial challenge.”

A “facial challenge” in this context, the Court observed, “means a claim that the law is

‘invalid in toto—and therefore incapable of any valid application.”299 The Court once again

recognized the general principle that vagueness challenges “which do not involve First

Amendment freedoms must be examined in the light of the case at hand”; “[a] plaintiff who

engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law

as it applies to others.”300 Further, the Court once again suggested that a plaintiff to whom a

statute may constitutionally be applied can prevail on a facial vagueness claim, outside of the

First Amendment context, only by showing that “no standard of conduct is specified at all,”301

i.e., that the provision “simply has no core”302 and the law is for this reason “impermissibly

vague in all of its applications.”303 Accordingly, the Court ruled, the Court of Appeals erred by

holding that the statute was unconstitutionally vague on its face simply “because it is unclear in

some of its applications.”304

Although the ordinance at issue in The Flipside “simply regulate[d] business” and

nominally imposed only civil penalties, the village conceded that the ordinance was “quasi-

298 Id. at 491

299 Id. at 495 n.5.

300 Id. at 495 n.7.

301 Id. at 495 n. 7

302 Id.

303 Id. at 495

304 Id. (emphasis in original).


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criminal” and that its “prohibitory and stigmatizing effect may warrant a relatively strict test.”305

Even under such a test, however, the Court concluded that Flipside’s facial challenge failed; “the

ordinance is sufficiently clear as applied to Flipside,” because the ordinance (particularly as

amplified by the guidelines) “is sufficiently clear to cover at least some of the items Flipside

sold,” such as “roach clips” and a specially designed pipe used for smoking marijuana.306

Further, it was a clear violation of the guidelines to market pipes and colored rolling papers

alongside magazines and books with titles such as “High Times,” “A Child’s Garden Of Grass,”

and “The Pleasures of Cocaine.”307

The Court recognized that there were ambiguities, and some potential for arbitrary and

discriminatory enforcement, but “[t]he theoretical possibility that the village will enforce its

ordinance against a paper clip placed next to Rolling Stone magazine [as suggested by the Court

of Appeals] is of no due process significance unless the possibility ripens into a prosecution.”308

In other words (reminiscent of the words of Justice Holmes in Wurzbach), “it will be time

enough to consider any such problems when they arise.”309

305 Id. at 499-500.

306 Id. at 502.

307 Id. at 502-503.

308 Id. at 502, 503 n. 21.

309 Id. at 504. The Court also purported to catalogue the factors influencing the result of specific cases, but it did so in a manner that was not completely accurate. For example, it opined that economic regulation is subject to a less strict test, because its subject matter is often more narrow and because businesses can be expected to consult legislation in advance of action. Id. at 498. But, of course, vagueness as a constitutional doctrine first arose in the context of economic regulation, in cases such as International Harvester, Cohen Grocery, A.B. Small, and Connally. Indeed, in Cline v. Frink Dairy Co., 274 U.S. 445, 465 (1927), discussed supra at note 139 and accompanying text, the Court held that vagueness doctrine was especially applicable to cases involving the exercise of “economic or business knowledge.” See also Note, Void For

Vagueness: An Escape From Statutory Interpretation, 23 IND. L. J. 272, 280 (1948) (“Once


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The unusual unanimity on display in The Flipside lasted only until Kolender v.

Lawson,310decided less than a year later, when the Court divided once again over whether a

facial challenge, divorced from the facts of the case, was appropriate. A California statute

required persons loitering or wandering on the streets to provide “credible and reliable”

identification when requested by a police officer under certain circumstances.311 The majority,

in an opinion by Justice O’Connor, held that the statute was unconstitutionally vague on its face.

Justice O’Connor interpreted Smith v. Goguen (where the Court held that the “most notable

deficiency” in the flag contempt statute was the potential for arbitrary enforcement) as

establishing that “the most important” aspect of the vagueness doctrine was not actual notice but

the requirement “that the legislature establish minimal guidelines to govern law enforcement.”312

It was this prong of the vagueness doctrine that led Justice O’Connor to conclude that the statute

was unconstitutionally vague, because police officers were given virtually complete discretion to

determine whether the identification provided by the stopped defendant was “credible and

reliable.”313

Predictably, Justice White dissented, relying on the “usual rule” that one who has

received fair notice that his conduct is within the statute cannot rely on the possibility that the

statute might be unconstitutional as applied to others.314 “If any fool would know that a

particular category of conduct would be within the reach of the statute, if there is an

established, the primary use of the [vagueness] doctrine continued to lie in the field of economic regulation.”).

310 461 U.S. 352 (1983).

311 Id. at 353.

312 Id. at 358.

313 Id.

314 Id. at 369.


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unmistakable core that a reasonable person would know is forbidden by the law, the enactment is

not unconstitutional on its face and should not be vulnerable to a facial attack in a declaratory

judgment action such as involved in this case.”315 Justice O’Connor offered several responses to

Justice White’s dissent, to which Justice White, in turn, offered his own rebuttal:

• Justice O’Connor, asserting without explanation that “[o]ur concern here is based upon

the potential for arbitrarily suppressing First Amendment liberties,” noted that the Court

had permitted facial challenges when a law reaches a substantial amount of

constitutionally protected conduct.316 Justice White, in contrast, did not believe that the

case presented any First Amendment implications.317

• Justice O’Connor maintained that where criminal penalties are involved, the “standard of

certainty is higher” and this concern has “at times, led us to invalidate a statute on its face

even when it could conceivably have had some valid application.”318 She believed this

distinguished The Flipside, which involved an ordinance that simply regulated business

315 Id. at 370-71. As an example, Justice White hypothesized a defendant who, in response to a request from a police officer for identification, refused to provide anything at all; “[s]urely the suspect would know from the statute that a refusal to provide any information at all would constitute a violation.” Id. at 372.

316 Id. at 358.

317 Id. at 374.

318 Kolender, 461 U.S. at 358 n.8. To support this proposition, Justice O’Connor cited Lanzetta

v. New Jersey, 306 U.S. 451 (1939) (discussed supra at note 163 ) and Colautti v. Franklin, 439 U.S. 379 (1979) (discussed supra at note 283), but neither case establishes that a facial challenge is proper simply because it imposes criminal penalties. Lanzetta seemed to establish the principle that vagueness challenges were always evaluated on the face of the statute, without considering the “details of the offense intended to be charged.” But this aspect of Lanzetta could not have survived the Court’s “plain as a pikestaff” opinion in Williams v. United States, 341 U.S. 97 (1951), or Justice Brennan’s majority opinion in United States v. Raines, 362 U.S. 17 (1960), discussed supra at note 202 and accompanying text. And the Court in Colautti appeared to declare a statute unconstitutionally vague on its face, but none of the opinions in the case address why it was appropriate to do so.


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activity.319 Justice White pointed out, correctly, that the Court had treated the ordinance

in The Flipside as a criminal ordinance and had nevertheless rejected a facial challenge

because at least some of the Flipside’s conduct clearly was covered by the ordinance.320

• Finally, Justice O’Connor pointed out that no authority cited by Justice White supported

his argument “about facial challenges in the arbitrary enforcement context.”321 But in

Justice White’s view, this distinction made no difference. If there is a range of conduct

clearly within the scope of a statute, there would be “nothing arbitrary or discriminatory

about” arrests for such offenses.322 “That the law might not give sufficient guidance to

arresting officers with respect to other conduct should be dealt with in those

situations.”323

C. Closing the Circle: Lanier (1997).

Unanimity on vagueness issues returned in United States v. Lanie,r324

arguably the most

important (and yet most overlooked) vagueness decision of the 20th Century. Lanier was a

criminal case brought under 18 U.S.C. § 242, the successor to the statute interpreted by the Court

in Screws. It provided criminal penalties for anyone who, acting under color of law, “willfully

subjects any person . . . to the deprivation of any rights, privileges, or immunities secured or

protected by the Constitution or laws of the United States.”325 The criminal defendant in Lanier

was a state Chancery Court judge who was convicted of violating § 242 by sexually assaulting

319 Kolender, 461 U.S. at 358 n. 8.

320 Id. at 372 n. *.

321 Id. at 358 n. 8.

322 Id. at 371.

323 Id.

324 520 U.S. 259 (1997).

325 Id. at 264 n.3.


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several women in his judicial chambers. The Sixth Circuit, relying on Screws, overturned the

conviction because the constitutional right at issue had not been “made specific,” as required by

Screws.326

In an opinion by Justice Souter, the Supreme Court unanimously reversed.

Justice Souter recognized (as had all of the Justices in Screws) that the statute did not

delineate the range of forbidden conduct with particularity; rather it incorporated constitutional

law by reference, and “many of the incorporated constitutional guarantees are . . . themselves

stated with some catholicity of phrasing.”327 The right to “due process,” he pointed out, was a

case in point, with the irony that a prosecution to enforce one application of due process under §

242 can threaten the accused with deprivation of another, “what Justice Holmes spoke of as ‘fair

warning . . . in language that the common world will understand, of what the law will do if a

certain line is crossed.”328 But Justice Souter believed that the Sixth Circuit erred in demanding

more for purposes of criminal liability under § 242 than what was required to overcome a public

officer’s qualified immunity in civil cases under § 1983.329

Indeed, Justice Souter expressly

equated the test for qualified immunity to the test for vagueness under the due process clause:

[T]he object of the “clearly established” immunity standard is not different from that of “fair warning” as it relates to law “made specific” for the purpose of validly applying § 242. The fact that one has a civil and the other a criminal law role is of no significance; both serve the same objective, and in effect the qualified immunity test is simply the

adaptation of the fair warning standard to give officials (and, ultimately, governments)

the same protection from civil liability and its consequences that individuals have

traditionally possessed in the face of vague criminal statutes. To require something clearer than “clearly established” would, then, call for something beyond “fair warning.”330

326 Lanier, 520 U.S. at 263, 268.

327 Id. at 265.

328 Id., quoting McBoyle v. United States, 283 U.S. 25, 27 (1931).

329 Id. at 270.

330 Id. at 270-271 (emphasis added, citations omitted).


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Quoting the Court’s qualified immunity decision in Anderson v. Creighton,331

Justice Souter

concluded that the constitutional requirement of fair warning is satisfied if, but only if, “in the

light of pre-existing law the unlawfulness [under the Constitution] is apparent.”332

The defendant in Anderson v. Creighton, was Anderson, an FBI agent who conducted a

warrantless search of a home. The homeowners sued Anderson for money damages, alleging

that the warrantless search violated their Fourth Amendment rights. The trial court granted

summary judgment for Anderson based on his qualified immunity. The Supreme Court agreed

with the trial court. In an opinion by Justice Scalia, the Court observed that its cases had

provided qualified immunity for public officials, “shielding them from civil damages liability as

long as their actions could reasonably have been thought consistent with the rights they are

alleged to have violated.”333 Thus, the Eighth Circuit erred because it “specifically refused to

consider the argument that it was not clearly established that the circumstances with which

Anderson was confronted did not constitute probable cause and exigent circumstances.”334 The

relevant question in the case was “the objective (albeit fact-specific) question whether a

reasonable officer could have believed Anderson’s warrantless search to be lawful, in light of

clearly established law and the information the searching officers possessed.”335 Accordingly,

the Court concluded, Anderson should have been permitted to argue that “he is entitled to

summary judgment on the ground that, in light of the clearly established principles governing

331 483 U.S. 635, 640 (1987).

332 Lanier, 520 U.S. at 271-272.

333 Id.

334 Id. at 640-641.

335 Id. at 641.


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warrantless searches, he could, as a matter of law, reasonably have believed that the search of the

Creightons’ home was lawful.”336

Thus, Lanier and Anderson, read together, bring vagueness doctrine almost full circle,

back to its roots in the principle that punishment is not appropriate where reasonable people (and,

therefore, reasonable juries) could conclude that the conduct at issue was lawful.

D. Continuing Debate Over Facial vs As-Applied Analysis: Morales (1999).

In an ideal world, the story would end here, but for a subsequent decision of the Court

neatly resolving the “facial” vs. “as applied” debate. Instead of this ideal ending, however, the

end of the 20th Century brought a decision that actually expanded the latter debate. City of

Chicago v. Morales337

involved a city ordinance that permitted police offers to order a group of

persons to disperse “from the area” where (1) the police officer reasonably believed at least one

of the persons was a “gang member,” and (2) the persons were “loitering,” i.e., “remaining in

any one place with no apparent purpose.”338 In the Supreme Court, Justice Stevens was joined

by five other Justices in holding that the statute at issue was unconstitutional on its face, based on

the arbitrary and discriminatory prong of the vagueness doctrine, because it “violates ‘the

requirement that a legislature establish minimal guidelines to govern law enforcement.’”339

There was no majority at all, however, on why it was proper to hold the ordinance

unconstitutional on its face, without regard to the facts of any of the several cases actually before

the Court.

336 Id. at 642.

337 527 U.S. 41 (1999).

338 Id. at 47.

339 Id. at 61, quoting Kolender v. Lawson, 461 U.S. 352, 358 (1982).


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Justice Stevens, joined by Justices Souter and Ginsburg, asserted that a facial challenge

was appropriate because the ordinance was a criminal law with no mens rea requirement—as

opposed to a statute that “simply” regulates business behavior—and because vagueness

“permeates the text.” (perhaps tantamount to a holding that the statute had no hard core of

prohibited conduct). Justices O’Connor, Breyer, and Kennedy, while agreeing with Justice

Stevens that the statute was unconstitutional on its face, did not join in this portion of Justice

Stevens’s opinion. Justices O’Connor and Kennedy did not explain why they believed a facial

challenge was warranted. Justice Breyer, speaking for himself alone, appeared to adopt the view

expressed by Justice O’Connor for the majority in Kolender v. Lawson,340

that a facial challenge

is appropriate whenever the statute violates the arbitrary and discriminatory enforcement prong

of the vagueness doctrine.341

Justice Thomas, joined by Justice Scalia and Chief Justice Rehnquist, did not believe a

facial challenge was warranted. They “subscribe[d] to the view of retired Justice White—‘If any

fool would know that a particular category of conduct would be within the reach of the statute, if

there is an unmistakable core that a reasonable person would know is forbidden by the law, the

enactment is not unconstitutional on its face.’ This is certainly such a case.”342 Accordingly, “the

plurality’s ability to hypothesize that some individuals, in some circumstances, may be unable to

ascertain how their actions appear to outsiders is irrelevant to our analysis. Here, we are asked to

340 461 U.S. 352 (1983), discussed supra at note 310 and accompanying text.

341 City of Chicago, 527 U.S. at 77. As Justice Breyer explained, “the city of Chicago may no more apply this law to the defendants, no matter how they behaved, than it could apply an (imaginary) statute that said, ‘It is a crime to do wrong,’ even to the worst of murderers.” Id.

342 527 U.S. at 112 (citation omitted).


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determine whether the ordinance is ‘vague in all of its applications.’ The answer is

unquestionably no.”343

Justice Scalia, speaking for himself alone, articulated a new and novel test for

determining whether a statute is unconstitutionally vague on its face. According to Justice

Scalia, however, to demonstrate that a statute is unconstitutional on its face, the party

challenging the statute must show that it is unconstitutional in all of its applications.344 Justice

Scalia, in effect, converted the consequence of a ruling that a statute is facially

unconstitutional—it becomes unconstitutional to apply the statute to anyone—into the test for

determining whether the statute is facially unconstitutional. Thus, Justice Scalia believed that a

“facial attack, since it requires unconstitutionality in all circumstances, presumes that the litigant

before the court would be able to sustain an as-applied challenge.” 345 Thus, in Justice Scalia’s

view, the “ultimate demonstration of the inappropriateness of the Court’s holding of facial

invalidity” is the fact that it was doubtful whether some of the actual defendants could even

sustain an as-applied challenge.346

V. VAGUENESS IN THE 21ST CENTURY.

Thus far in the 2ist Century, the Court’s decisions have done nothing to undermine the

holding and analysis in Lanier—but neither have they done anything to advance it. And the

343 527 U.S. at 114 (citation omitted).

344 Id. at 77-78.

345 City of Chicago, 527 U.S. at 77.

346 Id. at 82.


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Court’s decisions on facial and as-applied challenges remain in disarray.347 Two of the Court’s

recent decisions are illustrative.

Holder v. Humanitarian Law Project348 involved a federal statute that made it a crime to

provide “material support or resources” to organizations designated by the Secretary of State as

foreign terrorist organizations.349 “Material support or resources” was defined to include (among

other things) “training.”350 “Training,” in turn, was defined to mean “instruction or teaching

designed to impart a specific skill, as opposed to general knowledge.”351 Several nonprofit

groups brought a preenforcement challenge to the statute, alleging that they planned to engage in

specific activities as to which these provisions of the statute were unconstitutionally vague.

Justice Roberts, writing for an apparently unanimous Court on this point, rejected the

vagueness argument. The Court held that the specific activities planned by the plaintiffs

“readily fall within the scope of the term[] ‘training’” 352 For example, the plaintiffs wanted to

train members of the organizations how to use international law to peacefully resolve disputes.353

According to the court, “[a] person of ordinary intelligence would understand” that such

instruction “imparts a ‘specific skill,’ not general knowledge.” 354 Plaintiffs relied on several

hypothetical situations where the result would not be so clear, such as teaching a course in

347 Another commentator views the Court’s recent vagueness decisions even less kindly. Robert Batey, The Vagueness Doctrine In The Roberts Court: Constitutional Orphan, 80 UMKC L. Rev. 113, 113-114 (2011) (“[T]here may well be no one on the [current] Court who cares enough about the vagueness doctrine to think deeply about it.”).

348 561 U.S. 130 (2010).

349 Id. at 8.

350 Id.

351 Id. at 21.

352 Id.

353 Id. at 21-22.

354 Id. at 22.


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geography. But “[w]hatever force these arguments might have in the abstract, they are beside

the point here” because “Plaintiffs do not propose to teach a course in geography.”355 The scope

of the statute “may not be clear in every application,” but “the dispositive point here is that the

statutory terms are clear in their application to plaintiffs’ proposed conduct, which means that

plaintiffs’ vagueness challenge must fail.” 356

At first glance, this may seem to be a straightforward application of the predominant

view of vagueness principles. But there are two differences, one subtle and one quite obvious.

First, under Lanier and Anderson, the correct question to ask would have been whether the

plaintiffs could “reasonably have believed that [their planned conduct] was lawful,”357 i.e.,

whether reasonable person could conclude that the instruction planned by plaintiffs imparted

only “general knowledge” and was, therefore, lawful. The question asked by the Court—

whether a reasonable person “would” understand that the planned instruction impart

“specialized knowledge” and was, therefore, unlawful—is subtly but significantly different,

because it implicitly assumes that all reasonable people would reach the same conclusion when

in fact reasonable persons might differ. In other words, the fact that some reasonable persons

“would” conclude that the planned instruction imparted “specialized knowledge” (as the Court

found) does not preclude the possibility that other equally reasonable persons could reach the

opposite conclusion (a question on which the Court was silent). In this particular case, the result

might have been the same, but it is difficult to know without more details about exactly what the

instruction planned by the plaintiffs entailed.

355 Id.

356 Id. at 21.

357 Anderson, 483 U.S. at 642.


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The Court’s more obvious departure from prior precedent arises from the fact that the

statute at issue specifically prohibited certain speech, i.e., “instruction and teaching” designed to

impart specific skills to certain organizations. And yet, the Court refused to allow a facial

challenge based on vagueness. According to the Court, the rule disallowing facial challenges

based on how the statute might be applied to others “makes no exception for conduct in the form

of speech.” 358 For this proposition the Court cited Parker v. Levy, but the statute at issue in

Parker was not directed at speech. And other decisions of the Court expressly recognized that

facial challenges (including facial challenges based on vagueness) are permissible where the

statute at issue is directed at speech, and even where First Amendment rights are only potentially

implicated.359

Three years earlier, in Gonzalez v. Carhart,360 the Court had issued another decision

emphasizing that “‘[a]s applied challenges are the basic building blocks of constitutional

adjudication.’”361 Therefore, the Court rejected a facial challenge to a partial-birth abortion

statute because the plaintiffs “have not demonstrated that the Act would be unconstitutional in a

large fraction of relevant cases.”362 And yet, in Skilling v. United States,363 the entire Court in

effect permitted the defendant to make a facial challenge—and sustained it—without even

discussing whether such a challenge was appropriate. Instead, the Court divided 6-3 on the

358 561 US at 20.

359 Kolender v. Lawson, 461 U.S. 352 (1983);.Coates v City of Cincinnatti, 402 U.S. 611 (1971); United States v. Raines, 362 U.S. 17 (1960)..

360 550 U.S. 124 (2007).

361 Id. at 168.

362 Id. at 167-168.

363 561 U.S. 358 (2010).


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appropriate relief: Whether to construe the statute narrowly (to rewrite the statute, as the dissent

saw it) or whether to declare the statute void in toto.

Skilling involved the federal mail fraud statute, which prohibits use of the mail to

advance “any scheme or artifice to defraud,” with the latter term defined to include “a scheme or

artifice to deprive another of the intangible right of honest services.”364 The defendant, the CEO

of a major corporation (Enron), was charged with violating this statute by “misrepresenting the

company’s fiscal health, thereby artificially inflating its stock price.”365 According to the Court,

he asked the courts to “invalidate the statute in toto” because it “is impossible to identify a

salvageable honest-services core.”366 The six-Justice majority, in an opinion by Justice

Ginsberg, recognized that “Skilling’s vagueness argument has force,” because “there was

considerable disarray [in the case law] over the statute’s application.”367 Given this, the majority

seemed to believe that its only choices were to either “condemn” (or “destroy”) the statute in its

entirety, an unpalatable option, or “salvage” the statute by adopting a narrowing construction.368

The Court seemed unaware of its other (and more defensible) alternative: holding the statute

unconstitutional (or constitutional) only as applied to Skilling, with its constitutionality as to

others left for resolution if and when those cases arose. Instead, the Court adopted a narrowing

construction: finding that Congress intended to prohibit “at least” bribery and kickbacks, the

Court construed the statute to criminalize “only” bribery and kickbacks.”369 In effect, then, the

Court held that the statute would be unconstitutional if applied to any conduct other than bribery

364 Id. at 369 n.1.

365 Id. at 413.

366 Id. at 365, 405.

367 Id. at 405.

368 Id. at 403, 407.

369 Id. at 408 (emphases in original).


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and kickbacks, overlooking its pronouncement just three years earlier in Gonzalez that is “[i]t is

neither our obligation nor within our traditional role to resolve questions of constitutionality with

respect to each potential situation that might develop.”370

The concurring Justices in Skilling, in an opinion by Justice Scalia (joined in relevant part

by Justices Thomas and Kennedy), argued with some force that the majority had not construed

the statute but had improperly rewritten it. Relying on Cohen Grocery, these Justices would

have reversed the defendant’s conviction because the statute provided “no ascertainable standard

of guilt.”371 Ironically, Justice Scalia relied on United States v Reese, 92 U.S. 214 (1876), to

support his view that the majority erred in rewriting the statute.372 He apparently overlooked the

fact that this aspect of Reese was expressly disapproved in Raines.373

VI. CONFLICT AND RECONCILIATION.

“There are, to be sure, cases where this Court has not applied with perfect consistency these

rules . . ., and we do not mean to say that every case we have cited for various exceptions to their

application was considered to turn on the exception stated, or is perfectly justified by it.”374

Justice Stone, discussing the evolution of legal doctrine in a 1936 address at Harvard Law

School, observed that “[g]eneral rules, underlying principles, and finally legal doctrine, have

successively emerged only as the precedents, accumulated through the centuries, have been seen

to follow a pattern, characteristically not without distortion and occasional broken threads, and

seldom conforming consistently to principle.”375 He might have been discussing the evolution of

370 Gonzalez v Carhart, 550 U.S. 124, 168 (2007).

371561 U.S. at 416.

372 Id. at 416, 424 (Scalia, J., dissenting).

373 United States v. Raines, 362 U.S. 17, 24 (1960), discussed supra at note 202 and accompanying text.

374United States v. Raines, 362 U.S. 17, 24 (1960).

375 Harlan F. Stone, The Common Law In The United States, 50 Harv. L. Rev. 4, 5-7 (1936).


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vagueness doctrine over the last two centuries. Notwithstanding the numerous distortions,

inconsistencies, and broken threads, there are patterns which strongly suggest the existence of

some underlying principles that have persisted for so long that they surely deserve to be

recognized as legal doctrine. The decisions that seem on first glance to be in hopeless conflict

can in fact be satisfactorily reconciled if one makes allowance for the fact that any court’s

understanding of any doctrine at any particular point in time is likely to be influenced not just by

the principles themselves but also by the distortions and the broken threads. Specifically, the

conflict between Dey/Tozer and its progeny and Nash and its progeny can be reconciled by

superimposing on those cases wisdom available only now, after more than 100 years of doctrinal

development.

A. Dey/Tozer and Its Progeny.

Foremost among the underlying principles that emerge from the evolution of vagueness

doctrine is this: a law is unconstitutionally vague if it is applied to punish a person for conduct

that reasonable people (and, therefore, reasonable juries) could conclude was lawful. This

principle was the driving force behind cases like The Enterprise.376 In this and similar cases, the

apparent sources of the river that ultimately became vagueness doctrine, the fundamental

concern was the considerable ambiguity that made it doubtful whether the defendant’s conduct

was unlawful at all, such that under some interpretations of the statute the defendants would be

guilty of a crime, and under others no crime at all. Beginning in earnest with the railroad rate

cases, courts amplified this concern, agreeing that the constitution could not tolerate a law which

made an act a crime—or not—according to the views of the judge or jury that happened to hear

the case, such that one jury might convict and another jury acquit based on exactly the same

376 The Enterprise, 8 F. Cas. 732 (Circuit Court, D. N.Y. 1810), discussed supra at note 13 and accompanying text.


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facts.377 This view found its most influential proponent in Justice Brewer, who opined in Dey

that no penal law can be sustained unless its mandates are so clearly expressed that any ordinary

person can determine in advance what he may and may not do under it,”378 and in Tozer that the

criminality of an act “cannot depend upon whether a jury may think it reasonable or

unreasonable.”379 Other courts of the pre-Nash era agreed, with virtual unanimity;380 the DC

Court of Appeals’ holding in Capital Traction that Criminal laws “should not admit of such a

double meaning that the citizen may act upon the one conception of its requirements and the

courts upon another” is merely one example.381 Indeed, even the United States Supreme Court,

speaking through Justice Brewer in Cotting, and Justice Holmes in Farmers’ Elevator,

effectively acknowledged that it was problematic, if not unconstitutional, to punish a defendant

for engaging in conduct determined only after the fact to be unlawful.382

The force of this principle is so strong that it survived even Justice Holmes’s opinion in

Nash. Indeed, within two years of Nash, the Court (1) reaffirmed Justice Brewer’s opinion in

Cotting,383

(2) declared unconstitutionally vague a statute that required men to “guess [with

377 See notes 15-38, supra, and accompanying text.

378 Chicago & N.W. Ry. Co. v. Dey, 35 F. 866, 876 (C.C.S.D. Iowa 1888), discussed supra at note 24 and accompanying text.

379 Tozer v. United States, 52 F. 917, 919 (1892), discussed supra at note 25and accompanying text.

380 See note 35, supra, and accompanying text.

381 United States v. Capital Traction Co., 34 App. D.C. 592, 598 (1910), discussed supra at note 36 and accompanying text.

382 See Cotting v. Kansas City Stock Yards Co., 183 U.S. 79 (1901), discussed supra at note 41 and accompanying text, and Missouri Pacific Ry. Co. v. Farmers’ Elevator Co., 217 U.S. 196 (1910), discussed supra at note 46 and accompanying text.

383 Missouri Pacific Ry. Co. v Tucker, 230 U.S. 340 (1913), discussed supra at note 64 and accompanying text.


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respect to a complex question] on peril of indictment,”384 (3) questioned the validity of another

statute that required a defendant to determine, on peril of a fine, whether a request for tank cars

was “reasonable,”385 and (4) held that it violated fundamental principles of due process for

Arkansas to punish a defendant for conduct deemed “unreasonable,” where that same conduct

had been declared reasonable in other states.386 The confusion created by the Court’s poorly

reasoned decision in Cohen Grocery (and the obviously unreconciled conflict with Nash) was

eventually ameliorated to some extent by its decision in A.B. Small, where the Court made it

clear that the reasonableness standard in Cohen Grocery was insufficient because there was no

“accepted and fairly stable commercial standard” that could be used to make a determination.387

Then, in Connally, the Court endorsed the holding in Capital Traction, opined that application of

a law could not rest “upon the probably varying impressions of juries,” and articulated the

modern standard for evaluating whether a prohibition is unconstitutionally vague: whether “men

of common intelligence must necessarily guess at its meaning and differ as to its application.”388

384 International Harvester Co. v. Kentucky, 234 U.S. 216, 224 (1914), discussed supra at note 79 and accompanying text.

385 United States v. Pennsylvania RR Co., 242 U.S. 208, 237-238 (1916), discussed supra at note 91 and accompanying text.

386 Southwestern Telephone & Telegraph Co. v. Danaher, 238 U.S. 482 (1915), discussed supra at note 70 and accompanying text.

387 A.B. Small Co. v. American Sugar Refining Co., 267 U.S. 233, 240-241 (1925), interpreting United States v. L. Cohen Grocery, Inc., 255 U.S. 81 (1921), discussed supra at notes 97 and 105 and accompanying text.

388 Connally v. General Construction Co., 269 U.S. 385, 391-392, 395 (1926), discussed supra at note 121 and accompanying text.


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The Court issued opinions consistent with this in the following years (with occasional

exceptions like the per curiam decision in Miller v. Oregon389

). In Cline, the Court opined that

“it will not do” to punish a defense for an “unwise exercise of business knowledge where it

“involve[s] so many factors of varying effect that neither the person to decide in advance nor the

jury to try him after the fact can safely and certainly judge the result.”390 In Screws,391 and in

U.S. Gypsum,392

the Court interpreted statutes to avoid the constitutional problems of exposing

defendants to punishment for good faith errors of judgment based on after-the-fact

determinations by courts or juries. In Coates,393

the Court held unconstitutional a prohibition

against “annoying” conduct because “[c]onduct that annoys some people does not annoy others.”

Conversely, in Williams and Broadrick, the Court recognized that there was no constitutional

violation where it was “plain as a pikestaff” that the defendant’s conduct was unlawful, and that

the conduct fell within the “hard core” of the statute’s prohibitions.394 Most recently, these same

general principles were articulated and relied on in Lanier,395

where the Court recognized that

389 273 U.S. 657 (1927), discussed supra at note 133 and accompanying text. Another possible exception is Rose v. Locke, 423 U.S. 48 (1975), discussed supra at note 270 and accompanying text.

390 Cline v. Frink Dairy Co., 274 U.S. 445, 465 (1927) discussed supra at note 139 and accompanying text.

391 Screws v. United States, 325 U.S. 91 (1945), discussed supra at note 178 and accompanying text.

392 United States v. United States Gypsum Co, 438 U.S. 422 (1978), discussed supra at note 278 and accompanying text.

393 Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971), discussed supra at note 222 and accompanying text.

394 Williams v. United States, 341 U.S. 97, 101 (1951), discussed supra at note 191 and accompanying text; Broadrick v. Oklahoma, 413 U.S. 601, 608 (1973), discussed supra at note 248 and accompanying text.

395 United States v. Lanier, 520 U.S. 259 (1997), discussed supra at note 324 and accompanying text.


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the test for vagueness was, in effect, the same as the test for qualified immunity, which protects

defendants from being held liable for conduct that reasonable people could conclude was lawful,

and in Colautti,396 where the Court applied vagueness standards to prohibit punishment for

conduct where “experts can—and do—disagree.”

B. Nash and Its Progeny.

There is, of course, another equally detectable pattern in the mosaic, one that is almost

the exact reverse of the first: imposing punishment for conduct that some juries might find

lawful does not violate due process, because, in the resonating words of Justice Holmes, “the law

is full of instances where a man’s fate depends on his estimating rightly, that is, as the jury

subsequently estimates it, some matter of degree.”397 To almost the same extent as the first

pattern, this one too has permeated the law for more than a century. In Miller v. Oregon, just

after its apparent rejection of Nash in Connally,398

the Court peremptorily affirmed the Oregon

Supreme Court’s decision on the sole authority of Nash.399

In Petrillo, the Court observed that

the potential for “marginal cases” where it is “difficult to determine the side of the line on which

a particular fact situation falls” is “no sufficient reason” to declare a statute unconstitutional.400

In Roth, Justice Brennan, speaking for the Court, relied on this observation in rejecting the

396 Colautti v. Franklin, 439 U.S. 379, 401 (1979), discussed supra at note 283 and accompanying text.

397 Nash v. United States, 229 U.S. 373, 377 (1913), discussed supra at note 59. Indeed, in 1948 one commentator concluded, based on Nash, that it was “apparent” that “the test actually applied by the Court is less stringent than the commonly stated test of whether intelligent laymen will differ as to the statute’s meaning.” Note, Due Process Requirements of Definiteness in Statutes,

62 HARV. L. REV. 77, 79 (1948).

398 Connally v. General Constr. Co., 269 U.S. 385 (1926) discussed supra at note 121 and accompanying text.

399 Miller v. Oregon, 273 U.S. 657 (1927), discussed supra at note 133 and accompanying text.

400 United States v. Petrillo, 332 U.S. 1, 7 (1947), discussed supra at note 167 and accompanying text.


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vagueness challenge to obscenity statutes, observing that “it is common experience that different

juries may reach different conclusions under any criminal statute.”401 Justice Brennan ultimately

reconsidered his position on this, but in Miller v. California, Chief Justice Burger, speaking for

the Court, reaffirmed Roth on this point almost verbatim.402

Similar language can be found sprinkled throughout the Court’s decisions. And yet,

decisions after Nash establish without question that Justice Holmes’s sweeping and elegant

language in Nash cannot be applied literally. International Harvester, Danaher, Cohen

Grocery, Connally, Champlin, Screws, Coates, and Colautti, among others, all demonstrate that

there are indeed instances where a man’s fate cannot constitutionally depend on his estimating

rightly what a jury might later decide. Indeed, in Connally, the Court expressly ruled that the

constitutional guaranty of due process cannot be allowed to rest upon a support so equivocal as

the “probably varying impressions of juries.”403 Nevertheless, the “man’s fate” language from

Nash continues to be relied upon by some lower courts as if it is a complete answer to a

vagueness challenge.404

401 Roth v. United States, 354 U.S. 476, 492 n. 30 (1957) discussed supra at note 235 and accompanying text.

402 Miller v. California, 413 U.S. 15, 26 n. 9 (1973), discussed supra at note 241 and accompanying text.

403 Connally v. General Constr. Co., 269 U.S. 385, 395 (1926)

404 See, e.g., United States v. Caseer, 399 F.3d 828, 836 (6th Cir. 2005); United States v. Welch,

327 F. 3d 1081, 1099 (10th Cir. 2003); TXU Generation Co., L.P. v. Public Utility Com’n of

Texas, 165 S.W.3d 821, 841 (Tex.App. 2005); Personal Watercraft Coalition v. Board of

Supervisors, 100 Cal.App.4th 129, 138-139, 122 Cal.Rptr.2d 425, 432 (Cal.App. 2002); Brown

v. United States, 766 A.2d 530, 533 (D.C. App. 2001).


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C. Nash and Dey/Tozer Reconciled.

1. Superimposing Modern Facial vs. As-Applied Analysis On Older Cases.

Today, Nash and its progeny can be reconciled with Dey/Tozer and its progeny, in large

part because those cases can now be viewed through the prism of advances in the Court’s

understanding of the differences between facial and as-applied challenges—a difference that was

completely ignored in virtually all of the vagueness decisions decided by the Supreme Court and

by lower courts before Justice Holmes’s 1930 decision in Wurzbach.405 The circumstances under

which a court will entertain a vagueness challenge made by a person whose conduct is plainly

unlawful remain subject to vigorous debate, even today, as the decisions in City of Chicago,

Holder, and Skilling demonstrate.406 Nevertheless, the major governing principles have

crystallized a great deal in the century since Nash and Dey/Tozer were decided, thanks largely to

Justice Brennan’s majority opinion in Raines.407 Today, the exceptions to the general rule

announced in Raines remain unclear, but the general rule itself remains (relatively) undisturbed:

One to whom a statute may validly be applied cannot challenge the statute on grounds that it

might be unconstitutional as applied to others, as long as the statute has an identifiable “hard

core” of prohibited conduct.

The powerful reconciling force of this principle can be demonstrated by overlaying it on

the decisions in Nash and Cohen Grocery, two decisions that are otherwise almost impossible to

405 United States v. Wurzbach, 280 U.S. 396 (1930, discussed supra at note 159 and accompanying text. One notable exception is the D.C. Court of Appeals decision in Czarra v.

Board of Medical Supervisors, 25 App. D.C. 443 (1905), a precursor to United States v. Capital

Traction Co., 34 App. D.C. 592 (1910).

406 City of Chicago v. Morales, 527 U.S. 41 (1999), discussed supra at note 337 and accompanying text.

407 United States v. Raines, 347 U.S. 612 (1954) discussed supra at note 202 and accompanying text.


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harmonize. In Nash, the Court held that a prohibition against “unreasonable” restraints of trade

provided a standard sufficient to uphold the convictions at issue in that case (although those

convictions were reversed for other reasons), while in Cohen Grocery (as explained in A.B.

Small) the Court held that a prohibition against “unreasonable” rates or charges provided “no

rule or standard at all.”408 In both cases, the standard was reasonableness, so the difference

between the two cases cannot lie in the standard itself. Rather, the real difference between the

two cases necessarily lies in the facts to which the standard was potentially applicable.

As Justice Holmes explained in Nash, and reiterated in International Harvester, the

common law of restraint of trade was “taken up” by the Sherman Act, such that “a great body of

precedent on the civil side coupled with familiar practice” made it “comparatively easy” to

comply with the law.409 Indeed, the conduct alleged in Nash fell squarely within the core of the

Sherman Act’s prohibition. That indictment specifically alleged that the defendants committed

various acts—issuing fraudulent warehouse receipts, for example, and bribing employees of

competitors to obtain information—”for the purpose” of restraining trade.410 It was the unlawful

intent to accomplish precisely what the Sherman Act prohibited that “convert[ed] what on their

face might be no more than ordinary acts of competition or the small dishonesties of trade into a

conspiracy of wider scope.”411

Thus, considered in light of principles made explicit only in cases decided much later, the

holdings in Nash might fairly be recharacterized in this fashion: (1) the statute was not

408 Nash v. United States, 229 U.S. 373, 377-378 (1913); United States v. L. Cohen Grocery Co.,

255 U.S. 81, 92-93 (1921); A.B. Small Co. v. American Sugar Refining Co., 267 U.S. 233, 239 (1925).

409 Nash, 229 U.S. at 377; International Harvester Co. of America v. Kentucky, 234 U.S. 216, 223 (1914).

410Nash, 229 U.S. at 376.

411 Id. at 378.


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unconstitutional on its face, or in toto, because there was a “hard core” of conduct, easily

identifiable in light of the common law, that the statute plainly made unlawful, and (2) the statute

was not unconstitutional as applied, because the alleged conduct of the defendants fell within the

readily identifiable “hard core” of proscribed conduct. Thus, a decision after Nash in a different

case holding the Sherman Act’s reasonableness standard unconstitutionally vague as applied to

different conduct would not necessarily have conflicted with the decision in Nash.

A fortiori, there was no necessary conflict between the holding in Nash and the holding in

Cohen Grocery. Applying the standard of reasonableness to the price of sugar obviously raised

problems far more serious that applying that standard to defendants who issued fraudulent

statements for the purpose of restraining trade. As the Court explained in A.B. Small, there was

no “accepted and fairly stable commercial standard” applicable to sugar which could be regarded

as “impliedly taken up and adopted by the statute.”412 Absent such a standard, it was not

“comparatively easy,” as it was in Nash, to distinguish between lawful and unlawful conduct.

Thus, to the extent that Cohen Grocery held only that the reasonableness standard adopted by the

Lever Act was unconstitutionally vague as applied to the sugar prices charged by the defendant

in that case, there is no conflict at all with Nash.

But it seems apparent that the Court in Cohen Grocery did not think that its decision was

limited to the sugar prices charged by the defendant, or even to sugar prices in general. On the

contrary, on the same day it decided Cohen Grocery, it reversed a conviction based on

unreasonable clothing prices with no discussion at all of how stable or unstable the prices were in

this market.413 Further, in A.B. Small the Court held that Cohen Grocery applied to the price of

412 A.B. Small Co., 267 U.S. at 240-241.

413 Weeds v. United States, 255 U.S. 109 (1921).


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oleum, again with no separate discussion of the stability of oleum prices.414 Thus, Cohen

Grocery and the related decisions might be read to hold that the Lever Act’s reasonableness

standard was unconstitutional in toto simply because it was unconstitutional as to sugar prices.

If this were truly the holding in Cohen Grocery, reconciliation with Nash would be

impossible. But today, at least, it seems unlikely that the Court in Cohen Grocery meant to rule

that a statute would be unconstitutional in toto simply because it would be unconstitutional as

applied in some circumstances. Instead, when the Court in A.B. Small explained its decision in

Cohen Grocery, it said that the Lever Act’s reasonableness standard established “no rule or

standard at all.”415 The Court could not have meant, consistent with Nash (or, for that matter, its

decision in Levy Leasing, upholding a prohibition against unreasonable rent416) that

reasonableness in the abstract imposed no rule or standard at all; rather, it must have meant that

there was no set of prices that could readily be recognized as unreasonable. In other words, it

seems likely that the majority of the Court intuitively understood one fundamental difference

between the Sherman Act and the Lever Act: the Sherman Act, because of its common law

origins, had a definable, readily recognizable “core” and therefore was likely to be constitutional

in the vast majority of its likely applications, while the same could not be said for the Lever Act.

While some commodities subject to the Lever Act might have had stable prices comparable to

real estate prices, most would not, and applying the statute only to the few that did would be

arbitrary and unrelated to the purposes of the act. In other words, the statute in Cohen Grocery

414 A.B. Small, 267 U.S. at 239-240.

415 A.B. Small, 267 U.S. at 239.

416 Edgar A. Levy Leasing Co. v. Siegel, 258 U.S. 242 (1922), discussed supra at note 103 and accompanying text.


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was unconstitutional on its face because it was likely to be unconstitutional as applied “in a large

fraction of relevant cases” (to use the terminology from the 2007 decision in Carhart).417

This may be the true distinction between Nash and Cohen Grocery, but it is one that was

not apparent at the time those cases were decided. Now that this distinction can be recognized,

however, it helps to reconcile much of what otherwise seems irreconcilable.

2. Distinguishing Between Laws Defining Unlawful Conduct And Laws

Specifying Penalties.

Superimposing facial versus as-applied analysis on those decisions in which that analysis

was ignored helps to resolve many, but not all of the conflicting patterns. Other confounding

factors also need to be considered. For example, there are some senses in which it is true, as

Justice Holmes observed in Nash, that the fates of men and women do indeed rest on after-the-

fact determinations made by juries. But the examples given by Justice Holmes in Nash related

primarily to the nature or degree of the offense, and the severity of punishment, not to the

fundamental question of whether the defendant’s conduct was in fact an offense of any kind.418

Vagueness doctrine apparently does play some role in ensuring that persons who commit similar

crimes are not arbitrarily subject to vastly different penalties, and the Supreme Court has recently

held that defendants are even entitled to “fair notice” of the potential penalties for wrongful

conduct.419 Nevertheless, the fate of a defendant who commits a plainly unlawful act (an

unjustifiable killing, for example) necessarily is at the mercy of the prosecutor, who decides (for

417 Gonzalez v. Carhart, 550 U.S. at 167-168, discussed supra at note 360 and accompanying text.

418 See Nash, 229 U.S. at 377-78.

419 BMW of North America, Inc. v. Gore, 517 U.S. 559, 574 (1996)(“Elementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may impose.”).


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example) whether to charge first degree murder, second degree murder, manslaughter, or some

other potentially applicable crime; of the jury, which decides which of these crimes have been

committed; and of the judge, who decides the appropriate punishment within a fairly broad

range. Not surprisingly, therefore, the Court has also suggested that uncertainty regarding the

extent of punishment that may be imposed for conduct that is plainly unlawful is of less concern

for due process than uncertainty regarding whether the conduct is in fact unlawful.420 Indeed,

this makes common sense if, as has historically been the case, one of the principal purposes of

vagueness doctrine has been to ensure that people have fair notice of conduct that is proscribed

so that they can tailor their conduct to avoid any punishment.

As a result, trying to apply vagueness principles developed in cases where there is

fundamental uncertainty about whether the conduct is unlawful to cases where there is

uncertainty about the potential penalty for conduct that is plainly unlawful can create doctrinal

havoc. This is illustrated by the Court’s decisions in Rose v. Locke,421

where the Court sustained

a conviction for “crime against nature,” even though reasonable people could well have

concluded (and in other states had concluded) that “crime against nature” did not include

cunnilingus. This holding permitted (theoretically, at least) the prosecution of law-abiding

couples engaging in consensual sexual activity deemed lawful in at least some states and not

specifically declared unlawful in the state in which they resided. As written, therefore, the

420 See Pacific Mut. Ins. Co. v. Haslip, 499 U.S. 1, 24 n. 12 (1991)(rejecting vagueness challenge to standards for determining amount of punitive damages because “[d]ecisions about the appropriate consequences of violating a law are significantly different from decisions as to whether a violation has occurred”); Chapman v. United States, 500 U.S. 453, *467-468, 111 S.Ct. 1919,**1929 (U.S. 1991)(finding that statute was not vague, “particularly [where] whatever debate there is would center around the appropriate sentence and not the criminality of the conduct.”); Jordan v. DeGeorge, 341 U.S. 223, 230 (1951)(“ It should be emphasized that this statute does not declare certain conduct to be criminal. Its function is to apprise aliens of the consequences which follow after conviction [of two crimes involving ‘moral turpitude’].”).



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opinion cannot be reconciled with, for example, Danaher, Connally, and Coalutti.422 And yet,

the conduct of the defendant in Rose consisted of forcing the victim to submit to cunnilingus at

knifepoint, conduct that no reasonable person could conclude was lawful. Thus, the Court could

have decided the case simply by citing, for example, Williams (the “plain as a pikestaff” case)

and Parker (“conduct unbecoming an officer”),423 and by noting that the only uncertainty

involved was which of various crimes under which the prosecutor would elect to proceed.

Further, treating cases like Rose as if they are governed by the same vagueness principles

as (for example) Cohen Grocery and Colautti tends to dilute the importance of the “fair warning”

required by due process by reducing it to what Professor John Jeffries calls “lawyer’s notice.”424

As Professor Jeffries observes, in “the great run of cases, the picture of a citizen relying to his or

her detriment on highly technical legal sources is simply not credible.”425 The idea that the

defendant in Rose, for example, might have consulted a lawyer to decide whether to commit

forcible cunnilingus or simply assault and would have altered his behavior to avoid punishment

specifically for “crime against nature,” verges, in Professor Jeffries words, “on the absurd.”426

Moreover, as Professor Jeffries writes, the claim of such a person “to our moral sympathies is

unconvincing and obscure,” and “a person who embarks on obviously wrongful conduct takes

422 Southwestern Telegraph & Telephone Co. v. Danaher, 238 U.S. 492 (1915), Connally v.

General Construction Co., 269 U.S. 385 (1926), and Colautti v. Franklin, 439 U.S. 379 (1979), discussed supra at notes 70, 121, and 283 and accompanying text.

423 Williams v. United States, 341 U.S. 97 (1951) and Parker v. Levy, 417 U.S. 733 (1974), discussed supra at notes 191and 261and accompanying text.

424 John Calvin Jeffries, Legality, Vagueness, and the Construction of Penal Statutes, 71 Va. L. Rev. 189, 211 (1985).

425 Id. at 230

426 Id..


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his chances on just how seriously the rest of society may view the matter.”427 This, in essence,

was what Justice Blackmun apparently had in mind in Parker v. Levy, where he wrote in his

concurring opinion that the “moral horizons of the American people are not . . . limited by the

civil code of Tennessee,” that there were “fundamental concepts of right and wrong”

independent of any specific statute, and that because such concepts did exist soldiers could be

expected to recognize that cheating while playing bingo (for example) might well subject them to

punishment under some provision of the Military Code.428 It is also what Justice Rutledge

apparently had in mind in Screws, where he wrote that defendants “who cannot be ignorant that

they do great wrong” have all the notice that is constitutionally required.429

On the other hand, it is not so absurd to assume that a person, trying in good faith to

comply with his or her legal obligations and to avoid punishment, might consult with a lawyer or

do other research to determine whether the price to be charged for goods are “reasonable,”

whether statements critical of the military constitute conduct unbecoming an officer, whether a

sexually explicit book is “obscene,” whether the law prohibits certain abortion techniques, etc.

These are the types of questions where the “fundamental concepts of right and wrong” alluded to

by Justice Blackmun often provide no clear cut answers, and it was in the context of these kinds

of questions that vagueness doctrine arose. Suggesting that vagueness doctrine applies at all to

cases like Rose v. Locke —or, for that matter, to cases like Lanier, where the defendant was

427 Id. at 231.

428 Parker v. Levy, 417 733, 762-764 (1974)(Blackmun, J., concurring).

429 Screws v. United States, 325 U.S. 91, 129, 130 (1945)(Rutledge, J., concurring); accord, e.g.,

Note, Due Process Requirements of Definiteness in Statutes, 62 HARV. L. REV. 77, 85 (1948)(“[I]t is not important to protect one already bent on serious wrongdoing. There is little need for advance notice to the bank robber that this act, which he well knows to be wicked, is a violation of a statute.”)(relying on the opinions of Justices Murphy and Rutledge in Screws).


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accused of sexually assaulting women in his chambers430—extends “the rhetoric of notice and

fair warning . . . far beyond the circumstances that give it force,” and “has diverted our attention

from instances of real unfairness.”431

3. Recognizing that Punitive Laws Are Unique.

Vagueness doctrine has its roots in the criminal law, in the ancient principal that a person

should not incur the wrath of the state unless, both factually and legally, it is clear beyond a

reasonable doubt that he or she is guilty of a crime.432 Thus, courts, including the Supreme

Court, have repeatedly emphasized the importance of the criminal nature of the proceedings in

applying vagueness doctrine. Indeed, the civil vs. criminal distinction appeared as long ago as

1896, in the Kentucky Court of Appeals’ decision in Louisville & Nashville RR Co.,433 the very

first case declaring a statute unconstitutionally vague under the due process clause, and it has

repeatedly appeared in the case law ever since.434

And yet, in another apparently conflicting pattern, the courts have repeatedly applied

vagueness doctrine in civil cases. Indeed, The Enterprise was, at least nominally, a civil in rem

proceeding,435 and other purely civil cases were among the principal cases cited to support the

earliest vagueness decisions. For example, vagueness doctrine was applied to reverse the

revocations of physicians licenses, because the right to practice medicine was a “valuable

430 United States v. Lanier, 520 U.S. 259 (1997), discussed supra at note 324 and accompanying text.

431 Jeffries, supra note 424, 71 Va. L. Rev. at 212, 231.


433 See, e.g., Louisville & Nashville RR Co. v. Commonwealth, 99 Ky. 132, 140, 35 S.W. 129, 130-131 (1896).

434 See, e.g., Edgar A. Levy Leasing Co. v. Siegel, 258 U.S. 242, 249 (1922); Eng v. Trinidad,

271 U.S. 500, 518 (1926); Village of Hoffman Estates v. The Flipside, 455 U.S. 489 (1982).

435 The Enterprise, 8 F. Cas. 732 (Circuit Court, D. N.Y. 1810), discussed supra at notes 13-15, supra, and accompanying text.


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privilege or right in the nature of property”436 and revocation of a license could “operate

disastrously” upon the physician.437 In later cases, the Supreme Court has sometimes rejected

vagueness challenges in civil cases without even hinting that the civil nature of the case played

any role in its analysis,438 and sometimes sustained vagueness challenges in civil cases, explicitly

minimizing if not outright rejecting the distinction between civil and criminal cases.439

The schizophrenic nature of the positions the Courts has taken on this issue is best

illustrated by the decisions of the Supreme Court in Levy Leasing, where it peremptorily

concluded that Cohen Grocery was not applicable because no crime was involved, and its later

decision in A.B. Small, where it concluded that this “was not an adequate distinction.”440 One

thing, at least, is clear from a century of Supreme Court case law, however: there is no support

for the proposition that vagueness doctrine never applies in civil cases. On the contrary, the

Court has made it quite clear that vagueness doctrine does apply in at least some civil cases, i.e.,

in those cases where the purposes of the proceeding are to punish and not merely compensate.

Thus, in Champlin Refining Co., the Court held a civil statute unconstitutional because the

penalties it imposed were not “in aid of remedy” but were designed “to inflict punishment.”441

Similarly, in Jordan v. De George, the Court applied vagueness analysis to deportation

436 Czarra v. Board of Medical Supervisors, 25 App. D.C. 443, 454 (1905).

437 Hewitt v. State Board of Medical Examiners, 148 Cal. 590, 84 P. 39 (1906).

438 See, e.g., Miller v. Strahl, 239 U.S. 426 (1915), discussed supra at note 84 and accompanying text; Bandini Petroleum Co. v. Superior Court, 284 U.S. 8 (1931); Old Dearborn Distributing

Co. v. Seagram-Distillers Corp., 299 U.S. 183 (1936).

439 See, e.g., Giacco v. Pennsylvania, 382 U.S. 399 (1966), discussed supra at note 146 and accompanying text.


441 Champlin Refining Co. v. Corporation Commission of Oklahoma, 286 U.S. 210, 240-241 (1932).


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proceedings because deportation was a “forfeiture” and a “penalty.”442 And in The Flipside, the

Court applied “strict” vagueness analysis to a civil ordinance that imposed “quasi-criminal”

penalties.443 Most recently, in Federal Communications Comm’n v. Fox Television Stations,

Inc.,444

the Court reversed orders of the Federal Communications Commission finding that

certain broadcasts were “indecent” under 18 U.S.C. § 1804; the court held the statute

unconstitutional as applied because the broadcasters did not have fair notice that the broadcasts

at issue would be deemed obscene, The court so held even though the FCC imposed no

sanctions at all against the broadcasters, in large part because “findings of wrongdoing can result

in harm to a broadcaster’s ‘reputation with viewers and advertisers.”445

On the other hand, attempting to apply vagueness analysis in all civil cases would

correctly invite Justice Holmes’s criticism in Nash, because it is indeed routine to permit non-

unanimous juries in civil cases, applying the preponderance of the evidence standard, to award

compensatory damages (based on the reasonable care standard applied in negligence cases, for

example) even though other juries considering the same case might reasonably return a verdict

for the defendant. For this reason, the decisions like A.B. Small,446

holding application of the

Lever Act unconstitutional even in purely civil cases for breach of contract, are suspect.

In A.B. Small, the Supreme Court purported to justify its conclusion by characterizing the

Lever Act’s reasonableness standard as simply “unintelligible,” but it is simply not true that a

standard based on reasonableness is “unintelligible.” Indeed, at the time A.B. Small was decided

442 341 U.S. 223, 231 (1951).

443 Village of Hoffman Estates v. The Flipside, 455 U.S. 489, 499 (1982).

444 ___ U.S. ___, 132 S.Ct. 2307 (2012).

445 Id. at 2319.

446 A.B. Small Co. v. American Sugar Refining Co., 267 U.S. 233 (1925), discussed supra at note 105 and accompanying text.


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it was clearly established as a matter of basic contract law that where a contract for the sale of

goods did not specify a price, a “reasonable” price would be inferred.447 Thus, if it is

impermissible to permit a jury to decide what constitutes a “reasonable” price solely for the

purpose of adjusting the contractual rights of the parties, it would be equally impermissible to

permit a jury to decide reasonableness in a host of other cases.

Plainly, however, it is not impermissible for juries and regulatory agencies to apply a

reasonableness standard—and many other equally ambiguous standards—in civil cases. For this

reason, the Court’s assumption in some cases that the same vagueness principles apply equally in

civil and criminal cases has tended to retard development of a truly coherent vagueness doctrine;

in fact, it has undoubtedly helped to perpetuate the influence of Justice Holmes’s misleading

language in Nash. In Bandini Petroleum Co. v. Superior Court, for example, the Court rejected

a vagueness challenge to the term “waste,” citing Nash and its progeny.448

But in Champlin

Refining Co. v. Corporation Commission of Oklahoma, decided the following year, the court

sustained a vagueness challenge to the word “waste.”449 The results in the two cases could easily

have been reconciled by noting that Banidini was a civil action seeking prospective injunctive

relief while Champlin was an action seeking to impose a penalty on the defendant for past

conduct.450 And yet, the decision in Bandini, by ignoring this distinction and relying exclusively

on Nash and its progeny, hides this distinction and adds unwarranted weight to Nash.

447 E.g. In re Pierce, Butler & Pierce Mfg. Co. 246 F. 814, 816 (2d Cir. 1917)(“Where a contract for sale, either executed or executory, contains no specific agreement as to price the law supplies a reasonable one.”).

448 284 U.S. 8, 18 (1931).

449 286 U.S. 210 (1932).

450 See, e.g., Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2168 (U.S. 2012) (“It is one thing to expect regulated parties to conform their conduct to an agency’s interpretations once the agency announces them; it is quite another to require regulated parties to divine the agency’s


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VII. APPLYING VAGUENESS DOCTRINE: AN EXAMPLE.

“[T]he behavior proscribed by the Act is often difficult to distinguish from the gray zone of

socially acceptable and economically justifiable business conduct.”451

Once the confounding factors—facial vs. as-applied analysis, conduct vs. consequences,

and purely civil vs. punitive—are accounted for, at least one relatively objective test for

unconstitutional vagueness emerges: a law is unconstitutionally vague if applied to impose

punishment for conduct that reasonable people could conclude was lawful.452 Applying this

standard to a concrete factual situation will help illustrate the objective and straightforward

nature of that doctrine. For this purpose, consider the facts of BMW of North America v. Gore.453

In that case, BMW had adopted a nationwide policy concerning cars damaged during

manufacture or transportation. If the repair cost did not exceed three percent of suggested retail

interpretations in advance or else be held liable when the agency announces its interpretations for the first time in an enforcement proceeding ….”).

451 United States v. United States Gypsum Co., 438 U.S. 422, 440-441 (1978).

452 Once the test has been articulated in this fashion, a new question arises: Is there any need for a second, independent test, i.e., the “arbitrary and discriminatory enforcement” test relied upon by the Court in recent years. At least one other commentator has suggested abandoning this prong. Cristina D. Lockwood, Defining Indefiniteness: Suggested Revisions To The Void For

Vagueness Doctrine, 8 Cardozo Pub. L. Pol’y & Ethics J. 255, 310-339 (2010). Others have staunchly defended the need for such a standard. See Tammy W. Sun, Equality by Other Means:

The Substantive Foundations of the Vagueness Doctrine, 46 Harv. C.R.-C.L. L. Rev. 149 (2011). Full consideration of this question is beyond the scope of this article, but my suggestion is that the arbitrary and capricious standard is necessary and appropriate only for those cases where the issue is not whether defendants can constitutionally be punished, but whether the punishment to be exacted is unconstitutional As discussed above, fair notice is of substantially less concern where criminal liability has already been established in a constitutional manner, and where the only issue is the extent of the punishment. But even wrongdoers are entitled to be sentenced in a manner is not arbitrary and capricious, and if the standard for determining the extent of the punishment invites arbitrary and capricious sentencing, the Court’s decisions provide ample grounds for finding that due process has been violated for that reason. See, e.g.,

Godfrey v. Georgia, 446 U.S. 420 (1980).

453 517 U.S. 559 (1996).


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price, the car was sold as new without disclosure to dealers or consumers. This disclosure policy

was consistent with the statutes governing precisely this issue in roughly twenty-five states; the

most stringent of these required disclosure only of repairs costing more than three percent of the

suggested retail price and none mandated disclosure of less costly repairs. Alabama, however,

had no such statute, nor had the Alabama Supreme Court held that additional disclosures were

required by Alabama common or statutory law. When Dr. Gore, an Alabama resident,

discovered that his BMW had been damaged by acid rain during transportation and repainted, he

sued BMW for common law fraud (as codified in an Alabama statute) even though the cost of

the repairs were substantially less than three percent of the car’s suggested retail price. The jury

found BMW liable for common law fraud, i.e., for “suppress[ing] a material fact,” and awarded

compensatory damages.454 The jury also awarded punitive damages pursuant to an Alabama

statute that permitted such an award for “‘gross, oppressive, or malicious’ fraud.”455

Application of vagueness doctrine to this factual situation is relatively straightforward.

First, the compensatory award raises no significant vagueness issue, because the common law

fraud standard is not unintelligible and is purely civil, not punitive, in nature and purpose. In

contrast, however, the punitive damages statute, albeit nominally civil, is exclusively punitive in

nature and purpose. The entire body of Supreme Court precedent, without exception, supports

application of vagueness doctrine to quasi-criminal statutes of this type.456

Nevertheless, the Alabama punitive damages statute is not “void for vagueness” or

unconstitutionally vague on its face. It does not on its face implicate free speech or other

constitutional rights, and (like the statute upheld in Nash) it “take[s] up” a vast body of common

454 Id. at 579-580.

455 Id. at 565.



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law precedent.457 Thus, there is a core of proscribed conduct to which the statute would plainly

apply. For example, a jeweler who represented that a ring was made of gold, knowing that it was

made of brass, could not complain that a punitive damage award under the statute would violate

his constitutional rights simply because the statute might be unconstitutional as applied to other

hypothetical facts.458

But BMW’s conduct was plainly well outside that core, so far outside that reasonable

people could well conclude that its conduct was lawful. Indeed, legislatures in twenty-five states

had agreed that three percent (or lower) was the appropriate point below which no disclosure was

required. The Supreme Court itself noted that “BMW could reasonably rely on [these] state

disclosure statutes for guidance.”459 Under these circumstances, the Supreme Court’s decision in

Danaher460

would seem to compel a conclusion that the punitive damage statute was

unconstitutional, not on its face but as applied to BMW, even without regard to the rest of the

Court’s vagueness jurisprudence. In Danaher, as in BMW, a state court assessed a quasi-

criminal penalty against the defendant for implementing policies found, after the fact, to violate a

general prohibition of state law (in Danaher, the prohibition was against “unreasonable”

457 Nash v. United States, 229 U.S. 373, 377 (1913).

458 A handful of courts have rejected vagueness challenges to punitive damage awards, but almost without exception those challenges were (or were treated as) as facial challenges and were resolved in the abstract without considering the facts of the case actually before the Court. See, e.g., Sturm, Ruger & Co., 594 P.2d 38, 46 (Alaska 1979); Grimshaw v. Ford Motor Co., 119 Cal. App. 3d 757, 811, 174 Cal. Rptr. 348, 383 (1981); Palmer v. A.H. Robins Co., 684 P.2d 187, 214-215 (1984); Hospital Authority of Gwinnett County v. Jones, 259 Ga. 759, 762-763, 386 S.E.2d 120, 124 (1989); Potomac Electric Power Co. v. Smith, 79 Md. App. 591, 637, 558 A.2d 768, 791 (1989); Carpenter v. Chrysler Corp., 853 S.W.2d 346, 365 (Mo. App. 1993); Stoner v.

Nash Finch, Inc., 446 N.W.2d 747, 755-756 (N.D. 1989).

459 BMW, 517 U.S. at 579.

460 Southwestern Telegraph & Telephone Co. v. Danaher, 238 U.S. 482 (1915), discussed supra

at note 70 and accompanying text.


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regulations).461 In Danaher, as in BMW, nothing in state law prior to the Defendant’s conduct

specifically addressed the legality of the defendant’s policy, but that same policy had been found

lawful in numerous other states. In Danaher, the Court held that assessment of the penalty

violated “fundamental principles of justice,” even assuming that the defendant should have

known that the state supreme court might eventually hold that its policy was unlawful.462 It is

difficult to see how a different result would have been justified in BMW.

Note that the test suggested here for determining whether the Alabama punitive damages

was unconstitutional as applied to BMW’s conduct in that case is functionally identical to the

test that would be used in federal court (and in most state courts) to determine whether the

plaintiff would be entitled to a directed verdict on the issue of whether BMW committed

common law fraud. If the plaintiff had moved for a directed verdict against BMW on the issue

of whether BMW committed common law fraud, the issue for a federal trial court would have

been whether reasonable jurors could disagree about whether the evidence established that

BMW’s conduct was fraudulent.463 Accordingly, if reasonable jurors would necessarily

conclude that BMW’s conduct was fraudulent, and if a directed verdict against BMW on this

issue would have been appropriate, BMW could have no constitutional complaint about an award

of punitive damages in addition to an award of compensatory damages. If, on the other hand,

reasonable jurors could disagree about the fraudulent nature of BMW’s conduct, a directed

verdict against BMW on the underlying fraud claim would have been improper—and, for the

461 Id. at 485.

462 Id. at 490.

463 See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252 (1986).


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same reason, an award of punitive damages would be constitutionally impermissible. Thus, the

test for vagueness suggested by this article is as objective as the test for directed verdict.464

VIII. CONCLUSION.

“In order to know what [the law] is, we must know

what it has been, and what it tends to become.”465

Surprisingly, given the similarities between Danaher and BMW, the Court in BMW did

not even address whether any penalty could be assessed consistent with due process; instead, it

addressed only whether the amount of punitive damages was excessive. The best explanation for

the Court’s failure to recognize that vagueness in the liability standard was at least as much an

issue in BMW as was vagueness in the amount of the penalty is probably that the former issue

was not raised in the courts below. That, in turn, is not surprising. Rarely do practicing lawyers

and judges have the time to review the evolution of the legal doctrines upon which they are

relying in as much detail as this article examines vagueness doctrine. Further, it is apparent that

a lawyer or judge whose research happened to identify Nash, Petrillo, Bandini, Rose, and Vuitch,

as the leading cases466 would reach conclusions entirely different than a judge or lawyer who

464 It would be simplistic and erroneous to suggest that punitive damages are constitutionally permissible in a fraud case only if the plaintiff is entitled to a directed verdict on the underlying claim for compensatory damages. For example, the fraudulent nature of the defendant’s alleged misrepresentation might be abundantly clear, but there might be a factual dispute about whether the defendant actually made the misrepresentation. In this case, an award of punitive damages would be constitutional even though the plaintiff would not be entitled to a directed verdict on the underlying claim for compensatory damages.

465 Oliver Wendell Justice Holmes, Jr., THE COMMON LAW, at 1.

466 Nash v. United States, 229 U.S. 373 (1913), United States v. Petrilla, 332 U.S. 1 (1947), Bandini Petroleum Co. v Superior Court, 284 U.S. 8 (1931), Rose v. Locke, 423 U.S. 48 (1975), and United States v. Vuitch, 402 U.S. 62 (1971).


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happened to find, instead, Capital Traction, Cohen Grocery, Connally, Screws, and Colautti.467

Indeed, in Danaher itself, for reasons that appear entirely fortuitous, the Court happened to

identify Ex Parte Young468—not Nash—as the relevant authority. It would take a careful

researcher indeed to uncover the somewhat surprising link between qualified immunity and

vagueness, and the typical lawyer could write an entire brief on vagueness and due process

without ever appreciating how the true significance of any particular holding depends

fundamentally on whether the court was considering a facial or an as-applied challenge.

And yet, when Supreme Court precedent is considered as a whole, as it has been

considered here, some patterns emerge so vividly, rising so far above the confusion, that they

permit the formulation of some objective, fundamental, almost timeless principles. One of those

principles is that a person should not be subject to punishment for conduct that reasonable people

could conclude was lawful; as the court observed long ago in The Enterprise, “It should be a

principle of every criminal code, and certainly belongs to ours, that no person be adjudged guilty

of an offence unless it be created and promulgated in terms which leave no reasonable doubt of

their meaning.”469 Indeed, once such patterns are identified, it becomes difficult to understand

how they could have remained so dimly seen for so long. Thus, examined with the perspective

available only after almost 200 years, vagueness doctrine stands out as an excellent example of

the genius of our judicial system in creating a body of law that, incredibly enough, actually

promotes justice notwithstanding the imperfections—the sometimes substantial imperfections—

in the individual pieces making up the larger, ever-changing, never fully-realized whole.

467 United States v. Capital Traction Co., 34 App. D.C. 592 (1910), United States v. L. Cohen

Grocery Co., 255 U.S. 81 (1921), Connally v. General Construction Co., 269 U.S. 385 (1926), Screws v. United States, 325 U.S. 91 (1945), and Colautti v. Franklin, 439 U.S. 379 (1979).


469 8 F. Cas. 732, 734 (Circuit Ct. D. N.Y. 1810).

The Other Delegate:Judicially Administered Statutes and the Nondelegation Doctrine

Margaret H. Lemos

Duke University Law School

210 Science Drive Box 90360 Durham, NC 27708-0360 (919) 613-7099 [email protected]

Margaret H. Lemos is a professor of law at Duke University. Her scholarship focuses on the institutions of law interpretation and enforcement. Before joining the Duke faculty in 2011, Professor Lemos was an assistant professor at Cardozo Law School and a law clerk to Judge Kermit Lipez of the U.S. Court of Appeals for the First Circuit and U.S. Supreme Court Justice John Paul Stevens. She received her law degree summa cum laude from NYU School of Law.

The Other Delegate: Judicially Administered Statutes and... ■ Lemos ■ 417

The Other Delegate: Judicially Administered Statutes and the Nondelegation Doctrine

I. Introduction ...............................................................................................................................................419

Table of Contents

The Other Delegate: Judicially Administered Statutes and... ■ Lemos ■ 419

The Other Delegate: Judicially Administered Statutes and the Nondelegation Doctrine

I. IntroductionThe nondelegation doctrine demands that although Congress may seek help from other government

branches, Congress must retain certain legislative power and doing otherwise would violate the U.S. Consti-tution’s separation of powers principles. Under the doctrine as formulated today, Congress must “supply an ‘intelligible principle’ to guide and constrain whatever policymaking discretion it cedes to another institu-tion.” Margaret H. Lemos, The Other Delegate: Judicially Administered Statutes and the Nondelegation Doc-trine, 81 S. Cal. L. Rev. 405–76, 417 (2008).

The nondelegation doctrine is the subject of a vast and ever-expanding body of scholarship. But nondelegation literature, like nondelegation law, focuses almost exclusively on delegations of power to administrative agencies. It ignores Congress’s other delegate—the federal judiciary.

This Article brings courts into the delegation picture. It demonstrates that, just as agencies exercise a lawmaking function when they fill in the gaps left by broad statutory delegations of power, so too do courts. The nondelegation doctrine purports to limit the amount of lawmak-ing authority Congress can cede to another institution without violating the separation of pow-ers. Although typically considered only with respect to agencies, the constitutional principles underlying the doctrine apply with full force to delegations to courts. In principle, then, the nondelegation doctrine extends equally to both of Congress’s delegates. In practice, matters are more complicated. Despite judicial rhetoric to the contrary, virtually unlimited delegations to agencies long have been tolerated, even welcomed. To the extent the modern Court has enforced the nondelegation doctrine in the administrative context, it has been through narrow statu-tory construction rather than constitutional decree. The narrow-construction strategy does not make sense as a means of limiting courts’ own discretion, however. Nor do the functional arguments that have been offered in defense of a hands-off attitude toward broad delegations to agencies work when applied to courts. Far from justifying nondelegation law’s inattention to courts, considerations of institutional structure and capacity suggest the need for careful evalu-ation of statutes administered by unelected, generalist judges.

To be sure, the features that set courts apart from agencies also may make them particularly valuable delegates in certain areas of the law. The goal of this Article is not to condemn all del-egations to courts, but rather to demonstrate that they warrant more attention than they cur-rently receive. There has been a robust debate about the constitutional permissibility and functional desirability of delegations to agencies. We need to have a similar conversation about delegations to courts.

Lemos, supra, at 405–06 (article abstract).

Professor Lemos refers participants to her article, cited above, available in Westlaw (Secondary Sources, Law Reviews and Journals).

THE VEXATION OF LEGISLATION

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