AMERICAN CONSTITUTION SOCIETY

DISTRICT OF COLUMBIA LAWYER CHAPTER LUNCH

ORIGINALISM AND STATUTORY CONSTRUCTION

A PANEL DISCUSSION

Thursday, January 15, 2004

12:50 p.m.

RFD Washington 810 Eighth Street, N.W.

Washington, D.C.

MODERATOR: Professor Jonathan T. Molot George Washington University School of Law PANEL MEMBERS: Professor William Eskridge, Jr. Yale Law School Professor John F. Manning Columbia University School of Law

MR. MOLOT: If I could have your attention. I

want to thank you all for coming, thanks especially to

Gary O'Connor for having organized this and for

Professors Eskridge and Manning for coming down for the

event.

I should say that, Gary, before you run off to

grab napkins, you chose a great topic for an ACS Lawyer's

Lunch because I would say that the exchange that was in

the Columbia Law Review a few years ago between

Professors Manning and Eskridge is a great example of

where scholarship can be interesting in its own right and

also relevant for lawyers and judges, and it was really

important for two reasons.

One, they showed us--they took a debate that's

very important in statutory interpretation to lawyers and

judges as well as scholars and really shed new light on

it by tapping some historical sources people hadn't

looked to. And second, in the course of doing that, they

also taught us how to use history and how not to use

history, and not just for this debate but for others, and

at least they taught me how to, and I can tell you why,

is that a few months before, there were three articles.

Professor Manning's came out first and then Professor

Eskridge's response, and then Professor Manning had a

reply, and a few months before the first Manning article

came out, I had written my own article on the founders'

views of statutory interpretation.

It was the first thing I had written as a law

professor. You know I put in my time researching it, and

thought I was covering new ground and I had gotten into

it with a different contemporary debate in mind, looking

into how, well, how do we compare the founders' views of

the judicial role and the judicial role on statutory

interpretation in particular with the contemporary

reality that judges have ceded a lot of their

interpretive authority to agencies under Chevron, that

they defer to administrative interpretations of statute.

So I set off with that project and I looked

back at the founding--and I was shocked by what I found.

Kind of in law school you're taught about legal realists

looking back at 19th century formalists that viewed law

as a science, and it seemed very naive, and I thought,

you know, this is the olden days, and you look at the

founding, they were incredibly sophisticated about law

and language and interpretation.

On the one hand, they understood the inherent

ambiguity of the written word, of language generally and

of law in particular, and therefore understood that

interpretation was a creative enterprise and that judges

did an important thing in interpreting statutes.

On the other hand, they also understood there

were real constraints on judges in the course of

interpretation. They focused on stare decisis, prior

cited cases, and also on canons of construction, and it

was incredibly nuanced and

balanced what I found when I looked back at the founding

materials, and I thought this is fantastic stuff to find,

and actually there wasn't all that much written about it

before, and you know junior scholar got in good

placement, a good article, I thought, wow, I've done

something, you know.

And then two months later, Manning's article

came out, a few months later Eskridge's, and then

Manning's reply, and I realized I had done nothing.

Really what I had covered was a small snippet of the

history, and essentially what they taught me and taught

lots of people who have read the article--scholars, and I

hope it's ultimately relevant to lawyers and judges

writing briefs and writing opinions--is it's not enough

to pick out the snippets from--you know, I've looked at

the Convention, I've looked at the ratification debates--

there wasn't as much in the convention. There's a fair

bit in the ratification debates on views of judging and

in statutory interpretation, but it's not enough to pick

out those snippets. You've got to look back. They look

back at the English materials which the founders were

educated in.

They looked at early American cases before the

founding. They looked, of course, at the Convention and

at the ratification debates and the states deciding

whether to sign off on the Constitution, and then they

looked at several decades of history soon after that for

examples of how judges perceived the Constitution and

viewed their role.

And in doing that, really set an example for

scholars writing articles and I think frankly for lawyers

generally on how to use history. And that's one thing

that was valuable at the debate.

The other thing is they really cast a new light

on a debate that was a really important one over whether

judges should be faithful agents of Congress, carrying

out Congress' instructions as subordinates to Congress

or, on the other hand, whether judges are partners with

Congress. They are a coordinate branch, a co-equal

branch of government and when Congress passes a statute,

it passes something that's inevitably ambiguous, and it

puts it out there for others to apply and the law takes

on meaning as judges go ahead and apply the law to

particular facts.

The debate had raged, but people hadn't looked

back at the history. And so I found the debate

incredibly useful, both for the example it set for using

history and law and for the particular way in which they

applied it and shed new light on a really important

debate that judges and justices talk about all the time.

So I guess Professor Manning will start and

make his case, Professor Eskridge make his, Manning

reply. I think as a moderator--someone said today my job

is going to make sure they don't tear each other apart.

I think, in fact, I'm going to have to egg them on a

little bit because they may end agreeing more than we

would hope. So let's hope we can get them a little

feisty.

Okay.

MR. MANNING: Thanks, Professor Molot. I just

wanted to thank the ACS for inviting me to this debate.

I will be brief which, of course, is a term of art for I

will go over my allotted time.

[Laughter.]

MR. MANNING: Although billed as a debate, the

interesting thing for me is how much the exchange that

Professor Eskridge and I had in the pages in the Columbia

Law Review revealed common ground. This should be as

disturbing to the Federal Society as it is to the members

of the American Constitution Society. It's not to say

that Professor Eskridge and I no longer have differences.

We do. That's something I'll address at the end, but our

differences, the difference between textualists and

pragmatists I think now is much clearer and is much

smaller in relation to our common understandings.

All right. So there are two things I want to

cover. The first is it seems to me that the important

thing about this debate from my perspective is that it

helped to refocus the question of the appropriate methods

of statutory interpretation to where it ought to be on

inferences from the constitutional structure.

Now much of the writing in the new wave of

statutory interpretation scholarship including writing by

prominent textualists like Judge Easterbrook and Justice

Scalia have treated the problem of interpretation as one

of ascertaining Congress' commands. Right. That's the

starting assumption. What we have to do is read what the

legislature did as accurately as possible, figure out

their intent, their meaning, whatever you want to call

it. It's a command theory--right--you're looking to try

to decipher the legislature's instructions.

Then what the textualists argued was in the

first wave of textual scholarship was because

legislatures are complex, because there are a lot of

backroom deals, we can't ever really tell what Congress

would have done with the question that it didn't actually

resolve, and so we stick as closely as possible to the

plain meaning of what they actually enacted, what the

legislators, what Congress actually enacted.

Now, the fact is interpretation does require a

theory of legislation--right--how do you read the words.

But it also requires a theory of adjudication, what

powers do judges have in relation to those words, and

that was, I think, what was missing from the discussion

to a large extent and that Professor Eskridge's exchange,

that our exchange really brought out.

So think about the following problem. Think

about the most simple imaginable statute, a statute that

says something like no dogs in the park. Now, I start

from the presumption that language can be determinant and

that this sentence is semantically clear in relevant

respects. So that is to say a reasonable person with

relevant linguistic and cultural knowledge of English

would understand that this command does not apply to

wolves or coyotes or to those little pot-bellied pigs

that people in Los Angeles used to bring into the parks

in the 1980s when I was living there.

You know in a lot of ways all these animals

create the same kinds of mischief that dogs in parks do,

but the semantic meaning of no dogs in the park, no

matter how much one tortures the language, will not cover

that.

So, let's say that I want to bring my pet

coyote into the park and a constable wants to stop me

from doing it. So what are the ways that you could

interpret the no dogs in the park language to cover a

coyote, notwithstanding its semantic clarity?

Well, one thing you could say is, look, given

the purposes or the reasons that the city council might

have passed the legislation--right--to control noise, to

preserve hygiene, to preserve safety, if they had thought

about coyotes, they certainly would have used a different

word other than dogs. They would have used canines or

quadrupeds or pets or whatever to describe the

prohibition.

They had a broader intention, as is obvious

from the purposes of the statute, and implementing the

statute against a coyote which would implicate all the

mischiefs of bringing a dog into the park a fortiori

would simply implement the legislature's intent; right.

So this is intentionalism.

Now, the second way one could imagine resolving

this problem--right--getting the ban to apply to coyotes

is to say judges simply have common law powers. Federal

judges, in fact, the argument goes, have common law

powers in relation to statutes. They can extend a

statute or contract it, not because the legislature

necessarily intended, for example, the no dogs

prohibition to apply to coyotes and simply misspoke, but

rather because judges in our system are common law

lawmakers and can build on even the clearest

constitutional command, even the clearest statutory

command.

So they could extend the dog statute to

coyotes, they could contract it not to apply to police

dogs if they think that there are relevant policy

interests that a common law judge would take into account

in deciding whether to apply the ban to a working

professional dog and not a disruptive pet.

All right. So these are the two possible

approaches: the intentionalist approach, the common law

approach, and so what is this debate have to do with all

of this? In a couple of articles in the 1980s, Bill

Eskridge made the point that textualists have largely

dropped the ball on this question by assuming and not

establishing that judges, federal judges, in particular,

are faithful agents, not partners with the legislature.

That what we've assumed is that what you're

trying to do is figure out, as accurately as possible,

what the meaning of the commands is, and haven't

considered whether there is some inherent judicial power

to adjust statutes equitably according to their ratio

legis or background purpose.

And what's worse, as he pointed out, English

judges, who were the model for our judiciary, had prior

to the American Revolution and prior to the adoption of

the U.S. Constitution interpreted statutes equitably,

which I will use as a shorthand for the kind of common

law reasoning I described earlier. So, in England, if a

statute imposed a certain kind of liability on the warden

of the jail of London, English courts would have no

difficulty extending that carefully delimited liability

to all jailers on the realm. They would do so by

equitable interpretation.

Now, as Professor Eskridge pointed out, many

state courts had used the same practices in the founding

era and founding era debates indicated that at least some

of the founders understood judges to have such broad

lawmaking capacities.

And so the question he posed was this: does the

judicial power of the United States adopted in Article

III, including the Marbury v. Madison power to say what

the law is, include the power for federal judges to act

like common law judges in relation to statutes? And that

was the source of what turned out to be--I don't know--

pretty close to 300 pages of writing in the Columbia Law

Review between our three pieces on this, as I described

it, seemingly narrow topic.

Okay. But this is not, I think, the place to

get into the details. My friend over in the center here

may think differently. Much of our debate, I think,

boils down to the question about how to categorize

evidence about the original meaning of the judicial power

and how much weight to attach to different categories of

evidence, and unsurprisingly, we each bring our prior

assumptions about interpretation to the task of

categorizing and interpreting that evidence, and I'll

just give one example.

I think Professor Eskridge perhaps relies more

heavily than I would on the ratification debates. As I

read them, there are relatively few statements, somewhere

between a half dozen and a dozen, that seem to presuppose

equitable methods of interpretation. These comments seem

to me in the context of a multi-state, 13-state, debate

that was, in some respects, national, and, as Professor

Eskridge acknowledges, in some respects local, a half

dozen to a dozen remarks strike me as rather scattered

and sporadic, and as a textualist, I'm going to be very

reluctant to rely on legislative history like the

Federalist Papers to determine the meaning even of an

open-ended term like the "judicial power."

So what do I rely on? I rely mainly on the

constitutional structure. Again, I'm only going to give

one example of ways in which I rely on the constitutional

structure. It seems to me that one of our great

safeguards of liberty is the requirement of bicameralism

and presentment. All legislation has to go through two

houses and clear the president's desk, and so it has to

be passed through three institutions that answer to

different constituencies.

Now, political scientists have shown that this

effectively adopts a super-majority requirement for the

adoption of legislation, and so political minorities in

our society have extraordinary and explicitly conferred

power to block legislation or more importantly to insist

upon compromise as the price of assent.

That means that if judges can extend or

contract the scope of legislation in the guise of

exercising judicial power, it permits them to rewrite the

specific compromises that emerge from the process of

bicameralism and presentment and to make hash of this

explicit constitutional safeguard.

Now, still, despite our disagreement on the

particulars, including this particular, I think the

important point about our debate is that we have helped

to move the debate about what methods of interpretation

are appropriate to where it belongs to inferences about

the Constitution, to that kind of argument.

All right. So that's my first point of

similarity and the first commonality that's come from the

debate.

A second consequence of the debate is that I

think textualists and pragmatists have a lot more in

common in their method of interpretation. Textualists

have long since abandoned literalism. We do believe that

textual determinacy is possible, but we also acknowledge

that language is a matter of social convention.

There is no intrinsic meaning of the word

"dog." The word "dog" means something to us only because

we're all familiar with the practices of our culture that

have been refined over centuries of usage, and so

textualists acknowledge that in the specialized community

of lawyers of legal language, you have to pay attention

to things like terms of art.

You have to use the words like "prize" and

"capture" in admiralty law, and understand them according

to the art of admiralty, the common law of admiralty or,

as Professor Eskridge has argued, perhaps the word

"discriminate" in Title VII may have had a colloquial or

technical meaning of invidious discrimination rather than

its literal meaning of merely to differentiate.

Textualists use canons of interpretation

provided that they're well enough established to be part

of the background environment against which Congress

enacts its statute, so we have no problems with using the

rule of lenity or the canon of disfavoring

interpretations in derogation of the law of nations, and

the short of it is that, like pragmatists, we understand

words in context in their full social and cultural

context, and so the difference between textualists and

pragmatists are perhaps smaller than was once believed.

Now, that doesn't mean that there are no

differences, and I think what divides us is still

important, and I'm going to close with giving an example

from a real case that I think Professor Eskridge and I

would decide differently, and it goes a little like this:

Imagine a statute that says that a prevailing

plaintiff can recover attorney's fees. And so I'm, let's

say, a prevailing plaintiff whose attorney has hired an

expert witness to help him with the case, and--him or her

with the case--and so do I recover an expert witness fee

as part of my attorney's fee?

Now, a literalist would say no, an expert is

not an attorney. Attorney's fee means a fee for an

attorney. That's not what textualists do. Right.

Textualists would recognize that the term "attorney's

fee" in our social usage might include all sorts of

things that are incidental to the representation. Right.

It might include copying costs, courier costs, the costs

of paralegals, even potentially the cost of experts.

All right. Now, let's imagine another fact is

added to this, that every other previously and subsequent

enacted attorney's fee statute provides for the recovery

of, quote, "attorney's fees and expert fees."

A textualist would say that the semantic

meaning in that case is clear. Congress in light of its

prevailing practice doesn't use the term "attorney's fee"

to include expert fees. A pragmatist, someone engaging

in equitable interpretation, might say the term

"attorney's fee" should be construed broadly to make the

statute coherent in a policy sense, in a common law

sense, with every other attorney's fee statute, even if

the language doesn't bear that meaning in context.

This is in the end what remains of our

differences. I think it continues to be an important

difference, and I think what our debate has done is to

clarify really what the stakes are and what remains that

divides us.

Bill.

MR. ESKRIDGE: Yes. I'd also like to heartily

thank the ACS and Jonathan and Gary for bringing us

together today, and your article--you're thinking about

your Stanford article, I take it?

MR. MOLOT: Right.

MR. ESKRIDGE: That is a fabulous article, and

I think should actually be read together with the three

articles we're talking about here. It really enriches.

I didn't actually read it until I was finished writing my

article, and then I did redo parts of my article in light

of what you had found.

So this is really great. Now, I agree with

John, we're divided by common language to a certain

extent. I think theoretically there is something that

divides us. In practice, I actually vote with you on the

attorney's fees case the way you set it up, not the Casey

case, but the way you set it up.

And one of the things we need to keep in mind

is that to some extent we've both gone native. John

clerked for Justice Scalia, but I think you approach

statutory interpretation very differently from Justice

Scalia even though you're on the same theoretical road

map.

Let me use a different hypothetical to frame my

remarks. My hypothetical is the classic HLA Hart no

vehicles in the park statute. Statute says no vehicles

are allowed in the park, and let's even say the statute

defines vehicle the way a dictionary would, and that's a

mechanism to transport a person from one place to

another. Let's say that's the definition.

Okay. So if you bring an automobile into the

park, the gendarme will certainly stop you, and if it's

Rudy Giuliani will probably do unspeakable things to you.

But let's imagine the following three circumstances:

Has this been a violation of vehicles in the

park statute, and can Giuliani arrest and beat you?

[Laughter.]

MR. ESKRIDGE: One is a mother pushes her

perambulator into the park, transporting a baby from one

place to the next. Now, I'll make an important caveat,

the baby is not arrested, but the mother and the

perambulator are and they're impounded.

Second example would be a little six-year- old

child, girl or boy--it doesn't matter to me--brings her

or his tricycle into the park. Again what does the

gendarme do?

Third example, Professor Manning has a serious

and life-threatening accident in the center of the park,

Molot comes in with an ambulance to save the critically

injured Manning; does Giuliani stop the ambulance at the

entrance, et cetera, et cetera?

Now, I think the nuance that divides us is I

think how far do you take text because one thing we

should all be clear about as lawyers--most of us in this

room are lawyers--the text solves the case in 99.9

percent of the cases, and it solves it in a way that's

consistent with common sense, with policy, with

legislative intent, with purpose, with norms, with the

Constitution, with all of it.

We're really only talking about a small

percentage of the cases, and I would dare say in my

vehicles in the park statute, most of the cases can be

easily resolved by looking at the text and applying it in

a very common sense way that we could probably all

readily agree with.

So, for example, the automobile, or even a

motorcycle, possibly even a bicycle. We'd probably

mostly agree on that. The hard cases are the ones in my

opinion where a statute is being applied to something

that is beyond the core concentration of the legislature

and that raises normative questions about the breadth or

sometimes narrowness of the words that are used, and each

of these examples does it in a slightly different way.

And so one of the things I would submit is that

there should not be some huge divide between the faithful

agent and the partner. I would argue the faithful agent

has to be a partner in many circumstances, and the

partner is not being a cooperative partner unless she is

faithful to what the other person is up to.

Moreover, I would also submit, and this is a

deep philosophical disagreement, but I think we would

still vote the same way in the cases because we're

pointy-headed intellectuals, and that is that I would

resist the concept instinct in American law's rhetoric

but not in its operation that there is a preexisting

plain meaning which precedes the interpretive process.

Now, I would submit in most cases, it's

invisible. Whatever work is being done by interpretation

is invisible. You say bicycle, you say motorcycle, you

say truck, and you immediately think vehicle fits the

purpose of the statute, seems sensible, da-da-da-da. We

apply it.

When you get to baby carriage, then you have to

do more interpretive work, and I would argue that norms

are always at work in statutory interpretation, not just

dictionary description, but also normative work. It's

usually invisible.

It shows up however you vote in the case when

you get to the baby carriage, the tricycle and even the

ambulance.

Now, the ACS billed this as a discussion of

originalism, and I want to relate my hypothetical to

originalism. I want to think about the original intent

of the Constitution and the judicial power of the federal

courts to interpret Article III and why we as moderate

attorneys and professors and what not should be

interested in originalism on this question, and I think

most of this is in very much agreement with what

Professor Manning has said.

I think one reason is, as we have seen, is that

constitutional original intent is an important part of

rule of law discourse where lawyers, where trained

lawyers, where lawyers participate in policy

disagreements, et cetera, and it seems to me even as the

Lawrence court said, for example, recently, even if

original intent is not the endpoint, it is certainly a

starting point, and it is important materials for us to

consider in thinking about either constitutional law or

even the power of courts and statutory interpretation.

Originalism has received at least a partial

revival in the Rehnquist court, and the standard account

such as in Printz and other decisions by Justice Scalia

is that in doing original meaning, a court is supposed to

look at the practical background including judicial

practice that the framers brought, either to the 1787

Constitution or the 1868 14th Amendment. You're supposed

to look at the ratification debates. Some originalists

will not look at the drafting debates, but you are

supposed to look at ratification debates.

Justice Scalia and Justice Thomas, our most

eminent originalists, almost always look to the

Federalist Papers, sometimes, in fact, usually as the

only source of the ratification debates, and then you

look to the constitutional structure and purpose, and

Professor Manning emphasizes that.

Now, secondly, second reason we might be

interested in the original expectations, and that is a

reason of irony and perhaps politics and mischief maybe,

and that is that judges and justices who are most

interested in constitutional original intent and most

willing to draw broad constitutional rules from snippets

of the Federalist Papers, see e.g. Printz, are the same

justices who follow strict plain meaning, and the

justices who are most dogmatic about that statutory plain

meaning, and most unwilling to bend to contextual factors

such as legislative purpose, the facts of the case,

international law, sometimes but not always

constitutional law.

And it seems that feature of the strict plain

meaning rule, which is not dominant in federal courts,

but it is dominant in a certain portion of the judiciary,

including the Supreme Court, as I argue in my Casey

article inconsistent with the standard historical

methodology for understanding the statutory

interpretation baseline for the Article III judicial

power.

In other words, applying exactly the

methodology Justice Scalia told us we had to apply in the

Printz case, I come up with a very different approach to

statutory interpretation, at least than Scalia, Thomas,

sometimes Rehnquist, and other very strict textualists

follow.

So, for example, just digesting a little bit of

what I found, I did find that state judges before and

after 1789 understood words and their application more

flexibly and were always open to reconsidering statutory

plain meaning in light of contextual factors including

but not limited to justice in the individual case and

broader principles of public law. Arguably the most

famous statutory interpretation case before the

Philadelphia convention was Rutgers v. Waddington, a 1784

New York case interpreting a statute that seemed on its

face to disallow a military orders defense for a charge

brought against a merchant, that he had injured property

during the British occupation of New York City in the

1770s.

Alexander Hamilton, an important framer,

represented the defendants, and argued that the New York

statute was inconsistent with the law of nations and

otherwise unreasonable. All of the attorneys in the case

argued that the words needed to be understood in light of

the normative context including the law of nations and

the Treaty of Paris and Chief Judge Duane of the New York

court agreed, and I can give the quotation in Q&A if

people want it.

That was the leading interpretation. It was--

Manning likes to use the word "equitable." I would use

the word "contextual" and I would certainly use the idea

that the Chief Judge refused to read the language

acontextually and insisted on reading it in light of its

normative context including the law of nations.

Now, Rutgers was certainly a controversial

decision, though the people who attacked it in New York

were overwhelmingly people who were opponents later of

the Constitution. George Washington, the President of

the Philadelphia Convention, explicitly endorsed the

Rutgers decision, and the 34 lawyers at the Philadelphia

Convention would all or almost all have known about it,

and the large majority of them had public careers that

went along exactly the same lines including Hamilton of

New York, James Wilson of Pennsylvania, who was even

broader than Hamilton, Judge Oliver Ellsworth of

Connecticut, who had some judicial opinions going that

far, as well as Judges Wythe and Blair of Virginia ditto.

And then I argued that in the ratification

debates, even the anti-Federalists like Brutus accepted a

narrowing power of judges, explicitly accepted that

judges can read statutes more narrowly than they're

written in some circumstances. Their main fear was a

broad avoidance power, particularly as applied to state

statutes.

Hamilton agreed with Brutus as to the narrowing

power, and indeed in the main Federalist Paper, but by no

means the only one relevant, Hamilton specifically in

Federalist 78, same place he talked about judicial

review, set forth a partial theory of statutory

interpretation, and I'm quoting from Federalist 78.

"These [ill-humors of the political system]

sometimes extend no further than to the injury of the

private rights of particular classes of citizens by

unjust impartial laws." This is all quoting Hamilton.

Here also the firmness of the judicial

magistracy is of vast importance in mitigating the

severity and confining the operation of such laws.

Now, the argument is that the dilemma for the

new textualists is that the Article III power to

interpret statutes is a much milder form of textualism

and it's a much more contextual, a kinder, gentler

textualism, as it were, than that often argued by Justice

Scalia.

I think the most characteristic statement of

the judicial task was uttered by Oliver Ellsworth, the

second Chief Justice of the United States, and he says--

I'm quoting one of his opinions in 1796:

"If however the construction of a statute would

amount of a denial of justice, would be oppressively

injurious to individuals or would be productive of a

general mischief, I should then be disposed to resort to

any other rational exposition of the law which would not

be attended with these deprecated consequences."

And there are lots of quotations you can take

from other judges including Chief Justice Marshall, one

of the most mischievous, inventive and textually

brilliant statutory interpreters in American history.

Now a third reason it seems to me to be

interested in the original debates is that the early

statutory interpretation cases I think are intrinsically

interesting. I think they exemplify pragmatic and

normative approaches to statutory texts. And there is no

one better exemplifying this than John Marshall.

My time is drawing to a close so I can't give

an exegesis of one of my favorite but obscure cases,

Talbot v. Sieman, an 1801 case. If you want to ask about

it in Q&A, I can do a wonderful exegesis of that case.

[Laughter.]

MR. ESKRIDGE: But my conclusions from John

Marshall, here's how John Marshall would have approached

the vehicles in the park statute. He would not have

applied it to the baby carriage, maybe to the tricycle,

looking to the statutory purpose, maybe other statutes,

see how tricycles are treated in other statutes, and I

also think he would not have applied it to the ambulance

or would have come up with a compromise ruling. It

violates the statute, but Giuliani is estopped from

stopping the ambulance.

You know that's what Marshall would have done.

He would have come up with some devious but fair and

ultimately very rational approach to the statute which

would go beyond the simple plain meaning of the text.

So my three conclusions are the following, and

I think these are three important lessons for statutory

interpretation today. One is the plain meaning of words

does not preexist the interpretive process. This

principle is as old as Aristotle, and every framer, to my

knowledge, agreed with Aristotle that the purpose of the

legislature is to pass general statutes which are then to

be applied by judges--this is the role of judges--

attentive to the concrete facts of any case.

And in fact, Aristotle's view was there is no

meaning of a statute until it is actually applied to

concrete facts. Okay. And this is a theory of statutory

interpretation, uncontroversial in the 18th century,

uncontroversial in the 19th century, that is normative

and not simple plain meaning.

Second point is that creative interpretation

beyond plain meaning is not equivalent to judicial

usurpation or judicial infidelity to legislative roles.

My point, that judges, under Article III--remember it's

not Article I, Article I.1 and I.2, it's Article I, II

and III. The judiciary like the legislature is a

coordinate branch of government. It is both a partner

and an agent, and its fidelity is owed not just to the

legislative program certainly but also to the norms and

values in the Constitution.

And then a third point, which I haven't had a

chance to develop much in today's talk, is that one thing

you see in the early period that you do not see as much

in the 20th century, maybe it's reviving now, is the

importance of international law, transnational norms and

treaties for a very cosmopolitan court interpreting

statutes in light of those norms, and I can give lots of

good examples of that if it comes up in Q&A.

Thank you.

MR. MOLOT: Do you want to respond?

MR. MANNING: I'll just take a couple of

minutes. One thing is this is, I think Professor

Eskridge's remarks point out or highlight one of the sort

of terminological differences that we have about what

counts as textualism and what doesn't. So in the baby

carriage example, the tricycle example, and the example

in which I'm grievously wounded in the park, I suppose

the implication is as a textualist, I would want

Professor Molot not to bring the ambulance into the park,

but I would.

[Laughter.]

MR. ESKRIDGE: As a victim, you want it.

MR. MANNING: No, not as a victim, as a

textualist, both really. But here's the reason.

The literal meaning of vehicle, and of course

anybody who teaches legislation has looked up this word

in many dictionaries, and roughly paraphrasing, it's a

conveyance for the transportation of persons and things

on land or water or air, something like that; right.

But the fact is that one of the features of

textualism and one of the ideas of using language in the

way a reasonable user of language uses it is that you're

going to take language with its nuances, with its

contextual nuances, in the way that, sometimes in ways

that are not captured by dictionaries.

So I doubt that if anyone of us were pushing a

baby carriage into the park, even the most literal-minded

cop would not come up and say, sir, you're going to have

to move that vehicle. It is not the way we use the word

"vehicle."

Similarly, we don't use the word "vehicle" to

describe tricycle. It's not the way--it is literally a

vehicle, but it is not the way our social usage has come

to understand it. Ambulance presents another aspect of

textualism that I think is a little bit softer than

people usually understand it to be, but I still think

quite different from the interpretive method that

Professor Eskridge describes.

The ambulance case would also be easy for a

textualist because there is an implied--there's a

convention that says that prohibitory statutes like that

don't apply to the sovereign unless the sovereign is

clearly named; right. That's why, for example, if the

U.S. attorney offers a plea agreement to a codefendant to

cooperate and testify, the U.S. attorney has not bribed

the witness by offering something of value because law

enforcement officials, as public officials, are subject

to this canon of exception from general prohibitory

statutes for the sovereign.

Similarly, an ambulance can go into a park, a

police officer can go into a park in his or her car, by

application of the same established canon, but it's not a

question of applying some open-ended notion of what would

the legislature do, how do we put ourselves in the mind

of the legislature or what's the best purpose to apply in

this context. It's the application of a well-established

social convention.

Now, I won't go too far into the history here,

but I just want to point out two things. One, Rutgers v.

Waddington was an extremely, extremely controversial

case. It's not by any means clear that the 34 lawyers

who gathered in Philadelphia, even if their

understandings were relevant to the public understanding

of the judicial power, which I don't think it is, that

those 34 lawyers would have regarded it as necessarily

being the model for understanding federal judicial power

and reinforcing that.

It's very important to understand that the

Federal Constitution was in large measure a reaction

against the practices and arrangements that had gone on

in state constitutions prior to the meeting in

Philadelphia in 1787.

There were enormous abuses that were largely

attributed to a parchment separation of powers, right, an

insufficient, genuine set of separation and checks and

balances. And so the state courts pretty widely before

the adoption of the Constitution were vulnerable to

legislative control through the control of salaries,

through legislative review of judgments, through

legislative power to remove upon the address of both

houses, that is by simple legislation, to remove judges.

And so the idea that you're going to have

different behavior from judges in state courts prior to

the adoption of the Constitution than you'll see after

the Constitution is adopted in the federal context is not

at all surprising.

All right. My final point. It is true, like

any judge, Chief Justice Marshall, was creative in his

reading of the text. Every judge is. Justice Brennan

was, Justice Stevens certainly is, Justice Scalia is very

creative in reading words. That is to say I don't think

that they always follow language exactly the way an

average member of society or even an average lawyer would

understand it.

But the fact is that the Marshall court was

talking faithful agent talk and doing it rather early and

decisively. So Pennock v. Dialogue from 1829, Justice

Story: We are not at liberty to reject words which are

sensible in the place where they occur merely because

they may be thought in some cases to impose a hardship or

to tie up beneficial rights within very close limits.

The Joseph Segunda, 1825, again Story: It might

have been wise policy to have extended these benefits

much further, but courts of law can deal with questions

of this nature only so far as the legislature has clearly

expressed its will.

The Schooner Adeline, 1815: The statute is

expressed in clear and unambiguous terms. We cannot

interpose a limitation or qualification upon the terms

which the legislature itself has not imposed. I really

literally could go on and on. I won't. I'll just give

you another quote, Evans v. Jordan, on the Circuit Court,

Chief Justice Marshall said in 1813: "The legislative

department is confided without revision. The power of

deciding on the justice as well as wisdom of measures,

wherever then their language admits of no doubt, their

plain and obvious intent must prevail."

And this is in many, many, many cases. Some of

the quotes that Professor Eskridge mentioned are in the

context of courts saying when the language is obscure,

when it's ambiguous, if it's not clear, then courts can

take into account hardship, they can take into account

conflict with the law of nations. They can apply the

rule of lenity. There are all sorts of conventions and

practices that allow the mitigation of the severity and

harshness, as Hamilton put it, of statutory language

evident in the early cases, including in the early

federal cases.

But what I would submit is that these cases

were almost always carefully qualified by the

specification that the language of the statute must admit

of some doubt. And that's something that certainly a

textualist today would freely admit.

And I have subsided.

MR. MOLOT: Well, I'm going to open it to

questions, but I'll go ahead and ask at least one before

I open it to everybody, take my privilege. I'm curious

as to where you guys really disagree. There's all the

tone of how you disagree, but when you think about it,

Professor Manning accepts that context is relevant to

reading the text, that before you'd even arrive at plain

meaning, you'd go through some contextual analysis, there

would be some interpretation going on. But he then would

accuse people of going beyond the plain meaning, taking

into account various factors that might lead you to stray

from the plain meaning.

How different is that? Isn't it just a

question of timing? If you have all these interpretive

practices that you might use in order to decide what a

statute means, when do you say I've used enough that now

that's the plain meaning and anything I do beyond that is

an equitable extension of the statute or inequitable

change in the statute? Is there--and it may just be a

question of psychology of how confident you are in the

plain meaning of language with very little context

considered.

MR. ESKRIDGE: Well, I think we differ most in

terms of how much of the judicial veil we want to leave

up. That's true. Justice Scalia would have nothing to

do with anything that John Manning had to say about the

vehicles in the park statute, and by the way, I disagree

with you on the tricycle. I think a tricycle actually

probably should be regulated. The purpose of the statute

is probably safety. You know that would be the obvious

purpose and it's probably supported by the legislative

history.

MR. MOLOT: And that's why Manning was actually

bleeding because Eskridge hit him when his child rode the

tricycle through the park.

MR. ESKRIDGE: Absolutely. On the ambulance

thing, remember my ambulance was a private ambulance, it

was not a government ambulance. So John is not only

rewriting the statute, but he's rewriting the

hypothetical.

[Laughter.]

MR. ESKRIDGE: So I think Justice Scalia would

go with me on the tricycle. I think on the baby

carriage, Scalia would say, well, that's an absurd

result, but now Manning has criticized the absurd result

exception, so Scalia and I would vote the same way, I

think, on the ambulance thing and Manning would be left

in lonely dissent.

Now, the difference, it seems to me, is mainly

that sort of the pointy-headed law professor thing,

saying, well, meaning does not preexist the interpretive

enterprise. The incentive of judges, and I know there

are a number of law clerks in the room, so don't go back

to your judges and saying, oh, we ought to say in the

next opinion, oh, we're going to interpret statutes

dynamically and normatively if it doesn't preexist and

what not. The judge will fire you if you say that.

The job of judges is to hold up the mask, and

the mask is that we're simply applying what's there as

preexisting and if you gave the same task to a hundred

people of goodwill and intelligence, they'd reach the

same answer.

And most of the time that's true. Sometimes

it's absurd, but the judges will still want to say it or

at least not to admit that that's not true. And so

Manning is still--he wants to allow them to hold up the

mask, and I'm just not there. I'm just not there. No, I

think the mask has slipped. I think it's fine for judges

to say that it's part of their job, but it's part of my

job to sort of suggest the way in which this is highly

normative.

That's one place we disagree. Though in terms

of voting, I don't think that predicts how we would vote.

A second place I think where we disagree is

that I would take the position that John Marshall takes.

Mr. Manning says, oh, one of his early decisions, 1829.

Now for you historians, Marshall was on the court--what--

1801. He's almost dead in 1829, and he might even be

dead soon after that and holds on for another few years,

so that one of his enemies can't point a successor.

Let me read from a case in 1801 when Marshall

was still young and vigorous and not almost dead. And

this is Talbot v. Sieman. The act of March 2, 1799

authorized salvage in a prize case of one-half--in other

words, if you were the captain that seized a vessel, you

got one-half of the vessel's worth--if it were owned by

citizens of friendly countries that were recaptured after

more than four days in possession of the enemy, and we

were sort of at war with France in that period.

The American captain, under this statute,

stoutly maintained that the recapture, quote, "is in the

very words of the act." Marshall agrees. Marshall

explicitly on page 30 of the opinion agrees with that

statement--page 43 of the opinion explicitly agrees with

that statement.

But then he goes on to hold exactly the

opposite, and he says, but it has been urged by the other

side, and we think with great force, that the laws of the

United States ought not, if it be avoidable, to be so

construed as to infract the common principles and usages

of nations or the general doctrines of national law.

What Marshall ended up doing was some kind of

compromise verdict. He says, well, give the captain a

sixth as salvage, but the original ship maintains most of

its value.

And there are a lot of other examples in my

Casey article. I only got to 1806 because there are so

many Marshall cases. Marbury v. Madison, Marshall's

interpretation of Section 13 of the Judiciary Act is

squarely contrary to the structure of the act, it seems

to me, as well as the language of the act.

So I would emphasize with a little bit more

force that Marshall did not even pay lip service to a

strong textualism. What I think he did pay lip service

to consistently was the idea that the words are relevant,

the structure is relevant, but that that's not all that's

relevant. And I think an important thing I would draw,

and here we might also differ, John, is that both in

Marshall's time and particularly in admiralty cases, as

many of the early cases were, but I think we have modern

analogues, immigration law, asylum law, some of the cases

now before the Supreme Court, I would be much more

inclined to look at international norms, norms in

treaties, norms adopted in customary international law,

et cetera, when I interpreted statutes and not just

statutes like the asylum statute that are explicitly

premised upon international conventions, but other

statutes, immigration statues, as well.

Now, again 99.9 percent of the cases, we vote

the same way. I think most of us in the room would vote

the same way. We're only talking about the cases that

involve normative disconnects between the apparent plain

meaning of the statute and what seems like the normative

result preferred by the Constitution, international law,

common sense, whatever.

MR. MANNING: It seems to me that where we

would really differ is the law can be expressed in the

form of rules, and rules are going to be over and under

inclusive in relation to their background justifications;

right. So the no dogs in the park rule I think is

semantically comprehensible as excluding wolves, but the

background purposes, however you might describe them, at

whatever level of generality you might describe them,

would apply to somebody bringing a wolf into a park.

Whatever noise, disruption, safety concerns a

dog might pose, a wolf would pose a fortiori. I think

the difference between Professor Eskridge and me is that

I certainly believe that when you're trying to figure out

what the semantic or conventional meaning of a statute

is, you look at all sorts of things including

colloquialism, including rules of interpretation,

including the content of terms of art.

When a statute is ambiguous, that is to say

when the semantic meaning does not precisely address the

problem at hand, I think you can look at the apparent

background purpose, but when the semantic meaning is

clear, you cannot, in my judgment, shift the level of

generality so that no dogs becomes no dangerous animals

or no canines or no quadrupeds or no pets without

disturbing the compromise that was the foundation of the

adoption of the legislation.

And that I think is the basic difference, and I

think the only thing that divides textualists and you

could call dynamists, purposavists, pragmatists. That's

it. And it really comes down to a judgment about equity

and fairness in individual cases versus whatever systemic

benefits you believe you get from holding the legislature

to what it enacted.

That is to say to the public meaning when it is

clear of what it enacted, and I think there are very

systemic benefits that come from not helping the

legislature out of a jam; right. They're going to have

an incentive to pass statutes more clearly. They are

going to be less misleading about what they do. The

public is going to have better notice of what its

obligations are. There are all sorts of functional goals

that underlie the protection of compromise, but to me the

basic idea is that the constitutional structure strongly

favors the instantiation of compromises into legislation.

And as a matter of structural inference, I

think that's the best way to read the judicial power in

the absence of compelling evidence to the contrary.

MR. ESKRIDGE: John, I think there is--and

remember, you're the man who says an ambulance is not a

vehicle.

MR. MANNING: Yes.

MR. ESKRIDGE: Right? So here's--

MR. MANNING: No. Wait a second.

MR. ESKRIDGE: Whatever, whatever. You said

that. You said ambulance is not a vehicle.

MR. MANNING: No, I said there's a background

convention that permits it to come in--

MR. ESKRIDGE: I know but under my statute, the

ambulance is not a vehicle.

MR. MANNING: All right.

MR. ESKRIDGE: So this is the nuance, that John

is caught in this vortex.

[Laughter.]

MR. MANNING: That's actually true. I am

caught in a vortex.

MR. ESKRIDGE: To do this sophisticated legal

thing, John is going to look at tons of context, whether

you call them canons. And by the way, if you look at

canons, as both of us do, and as Nick Rosenkranz does

back in the back, if you look at canons, anything is

possible because the canons are multifarious and there is

almost no result that you cannot support by rolling out a

canon, and yet we're all committed to it.

So this is the thing, that there is a tension

between the rule of law face you want to present that

results are predictable, objective, not being driven by

judicial preferences, and the legislature can know what

it's doing when it passes its statute, that's one face.

The other face is but it's really contextual,

surprising, that ambulance actually doesn't always mean

vehicle; right. And that tricycle also doesn't,

according to Manning, mean vehicle, which was a bit of a

surprise to me. So that's the problem. And the way my

criticism of the judges, not of John, of the judges who

are new textualists, is that they are very adamant that

what they're doing is objective, neutral, complete--

that's what they say they're doing.

And yet what they're actually doing is the same

thing as the pragmatists in a lot of the hard cases.

Okay. And that's my problem.

Now, John is a little bit more out of the

closet on the contextualist stuff, a lot more, a lot

more.

MR. MANNING: Well, I do think that it is

possible to disagree about whether the semantic meaning

of vehicle includes tricycle and still claim that looking

for the semantic meaning is more objective than taking a

word--so I think the vehicles in the park statute is

deeply ambiguous, and I'm not alone in this. Justice

Holmes in a fabulous case that I'm sure that my

colleagues know very well, McBoyle v. United States, the

Motor Vehicle Theft Act.

Now, somebody--I don't know how you do this

actually--but somebody stole an airplane, and was

prosecuted.

MR. ESKRIDGE: C.f. 9/11.

MR. MANNING: What?

MR. ESKRIDGE: 9/11 was stealing an airplane.

MR. MANNING: So stealing an airplane, and I

don't know how, but the prosecutor goes to the Supreme

Court and Justice Holmes makes a judgment that this is

not covered by the Motor Vehicle Theft Act, and why is

that? Well, even though an airplane is technically a

vehicle, and this one had a motor--I guess it could have

been a glider, and then it would be a completely easy

case for me--but it's a motorized vehicle, but what

Justice Holmes says is, look, everybody knows we don't

use motor vehicles to describe airplanes. That's not

what we picture.

When we say motor vehicle, we picture a car or

a truck or maybe a motorcycle, but we don't picture an

airplane. Now, applying this criminal statute to

somebody who stole an airplane would not have caused any

kind of social disruption. Indeed, morally it would have

been quite nice to have a hook for putting somebody in

jail who stole an airplane and, indeed, it's probably

reflected a gap in the law that there wasn't an airplane

theft act, and there probably was one enacted soon after

the McBoyle decision came down.

But the fact is that you can disagree about

whether motor vehicles should apply to airplanes, but it

is possible to engage in some kind of discussion about

whether a reasonable person voting for this statute would

have understood the statute semantically in a particular

way.

Often the answer will be you can't decide, then

the statute is ambiguous, then all the stuff that

Professor Eskridge and I both love to apply when we're

interpreting statutes--purpose and policy and equity and

history and tradition and all these wonderful things--

that comes in. But once you decide that semantically

there's one answer, I believe that that's the end of the

ballgame and--

MR. MOLOT: Yes.

QUESTION: I agree that I think the places

where you really disagree are in this concept of law

existing independent of the facts, and that there is a

clear meaning without actually applying it to the facts,

and then I think that pragmatists would argue that until

you actually apply the law to the facts, you can't really

identify whether there's an ambiguity or not.

And so my question is it seems the whole

concept of the law existing independent of application to

the facts would almost suggest the courts should be

issuing advisory opinions without any sort of real

plaintiffs or defendants in front of them telling

everyone what the law is because there is this plain

meaning that's, you know, readily apparent to everyone

and the facts are completely irrelevant to that exercise.

MR. MOLOT: Just so everyone can hear, I take

it it's a question for Professor Manning, but the

position being I guess what you're saying or

characterizing Professor Manning as saying that you're

giving law meaning without applying it to the facts, and

how would you respond to that?

MR. MANNING: I mean I think I'm applying it to

the facts. I mean I think if somebody comes to the

border of a park with a coyote and I'm thinking to

myself, all right, it says no dogs in the park, and

socially does this law mean, does this word mean, include

coyote? Well, no, so you can come in.

Now, you know, am I going to apply the law that

way? You know I think so. I don't like it, but I'm

going to apply the law that way. Am I applying the law

to the facts? I am, but the way I'm applying it is by

trying to ascertain the semantic meaning.

Now, if by am I applying it to the facts, am I

applying it in a way that I think either a reasonable

legislator would want, I think the difference between

what Professor Eskridge does and what I do is I ask how

would a reasonable person understand these words as

applied to these facts, and I think Professor Eskridge

might ask how would a reasonable person, maybe reasonable

legislator, solve this problem as applied to these facts

given this statute; is that a fair characterization?

MR. ESKRIDGE: Yeah, except I think they

converge. I think the two--how a reasonable person would

apply this statute to these facts I think converges at

the latter question. That actually is my point. So

you've stated the two things nicely, and I'm arguing they

converge in the hard cases, and here's the other thing.

The more emotionally normative the issue, the more they

unconsciously converge.

So in Title VII, they use the word

"discriminate," and they don't define it, and so Justice

Scalia feverishly believes that don't discriminate means

no affirmative action, and I believe he sincerely

believes that as a matter of etymology and linguistics

and the whole business, but I think that's inescapably

intertwined with his normative skepticism about

affirmative action. Ditto for Justice Thomas, and the

opposite for Justice Brennan, who I think plausibly

believed that discriminate was more open textured, that

it could include something that was not malignant or

maligned or badly inspired, and a lot of people who favor

affirmative action sincerely think that discriminate is

capacious enough to include it.

So I think the descriptive and the normative,

the higher voltage the normative issue, I think the more

they merge, and the more sure one is that one's view is

actually a description and not just my view.

MR. MOLOT: In the back.

QUESTION: Professor Manning, could you respond

to the argument, at least as I hear it, that there really

are truly no neutral principles of judging, and a lot of

this debate really comes down to outcome determinative

type of philosophy. I even think when the country

formed, the whole idea of whether or not to centralize

the government or decentralize it was driven by the

issues of the day.

You know even today, you know, the abortion

debate, some people say send it back to the states,

that's an appropriate forum would be. People say, well,

you know, Congress should now get involved, the very same

people, a lot of them who want to send the abortion

debate back to the states. So I wonder, you know, as a

political theory, is there really truly equal principle

for judging or is all this just a proxy for some of these

other controversial issues?

MR. MANNING: Well, I think that for most

statutes, there is a wide range within which judges can

make decisions on the basis of a variety of factors

including ultimately the judge's view of, you know, the

judge's value judgment; right. And usually I think that

value judgment is not untethered; right. It's some value

judgment about how to apply the statute in a way that

makes sense of the scheme or makes sense of the apparent

objectives. But it's at a fairly high level of

abstraction and generality and so people could come out,

as Professor Eskridge suggests, people could come out

differently based on the presuppositions that they carry

with them to the decision.

I think that's true of a lot of cases. My case

is a more modest one, and I think it's why in the end one

of the things that we're trying to do here is to figure

out how we differ, and that's the law does set some

boundaries, and I do believe that judges are capable of

and should aspire to respecting those boundaries when

they are clear, and so it seems to me that can you have a

sort of consistent neutral principle as jurisprudence, I

haven't thought enough about it to know if I believe that

that's something that we can have in practice or whether

there is some way of implementing it so that we should

aspire to it or--that's a question that's sort of

tangential to what I do.

I'm more worried about boundaries, and I do

believe that there are boundaries, and I do believe that

legislatures can choose rules or they can choose

standards and that when they choose rules, when they

choose something that's more specific, that courts and

administrators ought to respect it, and so maybe the

cases that I'm worried about you'd say are the boring

cases; right. So if Congress passes a statute that says,

OSHA, you should go out and regulate polyvinylchloride in

the workplace to reasonable levels.

I mean there is no statute that specific, but

let's imagine they adopted that statute, and then a few

years later, some official in OSHA discovers that benzene

is hazardous in ways that are similar to

polyvinylchloride. I don't believe--I don't think this

is a true hypothetical, but it's a different chemical,

different chemical properties used in different ways in

industry, but very similar mischief to polyvinylchloride.

Well, should the EPA be allowed to use the

polyvinylchloride statute to regulate benzene? Well, my

answer would be of course not because whatever compromise

caused people to come up with the idea of

polyvinylchloride, that's how the statute is limited.

It's very clear. Even if another chemical comes up with

very similar chemical properties, Congress has expressed

itself in very clear and precise terms. It used a rule

rather than a standard, and you know we're stuck with

that. That's the compromise.

They authorize the government to disturb

people's liberty, property, but they did it on conditions

that were very clearly demarcated and textually

comprehensible, and I think that it's possible to aspire

to having judges and administrators live within the

boundaries set by the text.

MR. ESKRIDGE: I'm going to agree with John on

this. Let me just say this quickly. I think there are

three constraints on judges, and there should be. One is

the textual stuff, which I'm 99.9 percent, and the reason

I agree with you, John, on the expert fee statute, you

said before that statute and after that statute, all the

statutes had said counsel and expert fees, and that's

persuasive enough to me. Congress left it out. Maybe it

was a mistake. Unless there's strong evidence of that,

I'm going to go with you and it doesn't include that in

that particular statute.

Second limit on judges, I think, is legislative

purpose, and that's why I come out differently from you,

John, on the tricycle thing, is that I do agree with the

faithful agent theory. I think they're partners and

agents. It's like the Certs debate. Remember the breath

mint thing. They're both, and for the tricycle, I think

the role of a judge is to internalize the scheme and

project that the legislature had said, in effect, and if

that project is a safety project and tricycles come

within the definition, then I think they fall into the

statute, and I think it's as simple as that, and I think

that does constrain judges.

I do not want to arrest the little girl or the

little boy, but I think it falls under the statute and I

think that the gendarme can regulate that in certain

ways. And I wouldn't sentence the child to jail or

anything. It goes to sentence.

And then the third thing is these larger norms,

that international law is not completely open-ended. It

was certainly not in Marshall's day; it's not today.

Treaties are fairly clear once we've ratified and others.

The Constitution gained some degree of clarity through

judicial interpretation. You can look at a body of law

and see in any given point, generally speaking, what

constitutional law is, the direction it's going, what

international law is, da-da-da-da.

And I think those are limitations on judges,

and I think that's good. So to say it's normative does

not mean that judges are unconstrained. They're not

accountable to interrogation for the proposition that

you're just implementing your own parochial view of

affirmative action, whether you're Brennan or Scalia, but

instead are you really applying judicial kinds of

materials to resolve the difficult etymological questions

of what the word "discriminate" means or statutory

questions.

MR. MOLOT: Pam.

QUESTION: For me a lot of the way this plays

out in practice--I write briefs--is how much you put

under your first heading, which is we win under plain

meaning. And I feel that maybe 15, ten years ago, those

tended to be very short sections, and it would be mostly

just a literalist paragraph, you know, vehicle says this

in the dictionary and we win, and now more and more you

get, you know, the dictionary definition, that here's the

way, all still under Roman Numeral I, here's the way the

word is used in other statutes, here's the way it's used

in context in this statute, here's why this leads to a

sensible policy resolution, and sometimes even

legislative history, it's consistent with legislative

history, and you're still in Roman Numeral I--this is the

plain meaning of the word.

And I guess my question is does that mean that

Professor Manning is winning because now we're all plain

meaningists. We know that if we want our argument to be

taken seriously we have to say it's plain meaning.

Or does it mean that Professor Eskridge is

winning because plain meaning, whatever, you can put

anything under that? Or does it mean it really doesn't

matter because as a practical thing, we've kind of

resolved this? Everybody knows what we're doing or

judges know what we're doing, and who cares? That's my

question.

MR. ESKRIDGE: You know from a law professor's

point of view, the answer is both. And law professors

always claim we're both winning. I think there are two

interesting ironies here.

MR. MANNING: I'll go with that.

[Laughter.]

MR. ESKRIDGE: No, but I think that's the

answer, but here are two ironies that I want to

underline. One is that I think it's a healthy trend for

attorneys to read the statutes carefully and there is an

undisciplined--when I was in private practice at Shay &

Gardner here in town, we ignored the statute and went

straight to the legislative history, and we argued it

relentlessly, and we won with that.

And that was wrong to ignore the statutory text

as we tended to do. I think it's like Scylla and

Charybdis. So we were at Scylla, but I think Charybdis

is just as bad, that if the focus becomes a fetishized

dictionary shopping, which you see in town now, and

structure shopping, which you also see in town now, then

there's a danger the statutory interpretation becomes a

bead to game, and it becomes a game of cleverness, and in

the game of cleverness, we lose sight of the evolution of

statutory policy.

And we lose sight of, particularly if you

exclude legislative history as some do and some don't,

and, you know, in town that remains a debate,

particularly if you lose sight of here is their project,

here is the history of what the agency has been doing,

because, remember, most of the interpretation here is by

agencies, right, and so courts are second guessing, you

know, and here is why the agency is doing it this way and

here is the feedback they're getting from Congress, and I

think that's very complicated. I think it's very

normative, and one other norm for judges is, I think,

they have to defer to the agencies as well as Congress in

terms of how does all this work out.

I don't think judges should be so trigger happy

to intervene and substitute their judgment even when it's

a textual judgment sometimes. Okay. So I think that's a

danger of fetishizing the dictionary word choice and even

structure.

And by the way, the first structuralist was

John Marshall. He was the one who I think even today is

the most brilliant deployer. There has been no better

deployer of statutory structure and no more devious

deployer of statutory structure in American history, I

think, than John Marshall. He didn't shop dictionaries

so much, but he was a brilliant structuralist, even when

you disagree--brilliant, brilliant.

MR. MOLOT: Yes, Gary.

QUESTION: Looking at the historical record,

who, if anybody should have the burden of proof? it seems

to me in your debate, it seems that you're saying, well,

the way that judges dealt with statutes before the

Constitution was pretty much the same as after the

Constitution. Nothing really changed. Professor Manning

seems to be saying there's a huge change, and if you look

at the historical record, at least if we argue that, if

there's going to be a huge change, people are going to be

saying, look, there's a huge change here, but if people

assume that it's going to stay the same, they won’t

necessarily say, oh, nothing is going to change. I mean

is there a burden of proof there?

MR. ESKRIDGE: Well, Chief Justice Rehnquist

when he was an Associate Justice invented the dog doesn't

bark canon. And he said it's a canon I think of

statutory interpretation that when something big is

happening, it's like the Arthur Conan Doyle Silver Blaze

story. And the dog is there, the dog will bark; right.

Now, Justice Scalia doesn't like that canon--

MR. MANNING: I hate that canon, too.

MR. ESKRIDGE: Justice Scalia doesn't like it,

but the majority of the court cites it all the time. And

Scalia usually gives as a counter cite Nero's dog, who I

think did not bark while Rome was burning. That's his

counter cite.

MR. MANNING: There you have it; right.

MR. ESKRIDGE: So I completely agree with you

and he doesn't. Right? Don't you? Surely not.

MR. MANNING: My view on this, what I set out

to do when I wrote the first long impenetrable article of

what ended up being a trilogy between the two us--

MR. ESKRIDGE: A trinity.

MR. MANNING: Exactly--was to show that

Professor Eskridge had not in some earlier work met his

what I regarded as his burden of persuasion, and the

reason that I believe that the burden of persuasion is on

Professor Eskridge is that for many, many years, the

court has and you could call it pretended or stated or

acted as though what it is doing is deciphering commands

and even when it is departing from the text of a statute

in order to implement its spirit or purpose, it is doing

so because it will more faithfully capture the intentions

of the legislature.

All right. So if you believe that that is the

faithful agent theory, then somebody who is trying to

show that there's a partnership model bears the burden of

persuasion. Now, you could make the argument the other

way, and being a law professor, I'll make the argument

against myself now, the argument would be, look, the

courts may have talked the language of faithful agent,

but maybe up until very, very, very recently, what they

have done in practice is stuff that looks very similar to

what English judges were doing; right.

That's what Holy Trinity Church v. United

States does, and that's Weber v. Steelworkers does. It's

what, you know, a whole host of cases, and so people who

want to argue for the faithful agent theory and against

spirit or purpose based interpretation have to bear the

burden of persuasion.

Who's right? We can't tell you. And, you

know, I don't think anybody can say, but that's our--I

think I've fairly stated our positions.

QUESTION: Professor Manning, a little while

ago, if I heard you right, you said that once you

determined a term was ambiguous, that you and Professor

Eskridge were going to do the same kind of thing, you

were going to look to the same type of sources. I wonder

if Professor Eskridge would agree with that statement,

whether you, in fact, would go about it the same way?

And the second part of the question is if that

is true, how do you decide when a term then is ambiguous

and you go do that? In your hypothetical, you use a term

which has a fairly concrete meaning, yet we can talk

about whether the the coyote and a dog is a dog or a

coyote, but--

MR. MANNING: Yeah, there are going to be

ambiguities, sure.

QUESTION: --you know, they are common--in the

case of a vehicle, it's a little less concrete, a little

more ambiguous, and when we get to discrimination, or the

use some of the other hypothetical, you used the word

"reasonable" in your regulatory case. When we get to

there, now we're out here. Where do you draw that line

in defining ambiguous so that you can do that?

MR. MANNING: You can't. You can't. I mean

it's a matter of social--I mean what the standard line is

in the scholarship is that a text is clear in context as

applied when most people would agree on its meaning.

You know so you have nine judges. That's not a

very big sample of people, and they're going to disagree

about whether most people would agree on its meaning, and

so you're going to have disagreements about ambiguity. I

don't think that disagreements about whether a statute is

ambiguous is proof that it's ambiguous, but I think we

would both agree, there's no metric for determining

clarity versus ambiguity.

I will say--and I'll turn it over to Professor

Eskridge in just a second--I will say that I think we

would use pretty much the same material with one

exception, although even with respect to that, it might

be a question of degree. I basically wouldn't use

legislative history at all. You know maybe I would use

it in the same way I would use a persuasive law review

article or persuasive brief to clue me into facts about

the world, about the extra-legislative context that I

might not know.

But in terms of using it as an account of the

understanding with which people in the legislature

enacted the legislation, I would not credit it at all,

and I'm not sure how much--

MR. MOLOT: Professor Eskridge, you'll have to

have the last word.

MR. ESKRIDGE: Yeah, the way I would say

ambiguity is that I think ambiguity is both social and

normative. So the question whether a tricycle is a

vehicle I think will be quite clear in some normative

context and quite unclear in others. Okay. So it's both

social and it's normative. It depends upon the goal, the

policy.

And in the criminal statute, the role of

lenity, you know, which we both subscribe to, that one

reason to go John's way on the tricycle, for example, is

the rule of lenity. If there is any doubt, you should

apply the prototypical, the core meaning of vehicle,

which might be more like motorcycle, truck, ambulance--

right--et cetera--rather than tricycle, and that also

could support you on ambulance even though I do think

it's a prototypical vehicle. Well, anyway, that's the

point about ambiguity.

On legislative history, I would look at

legislative history. John is right. We do differ on

that. We agree that legislative history is not

authoritative in the way that judges and law professors

used to say before the John Manning article, but I think

legislative history has three different kinds of utility.

And I think judges ought to look at it.

One is factual. So we're in agreement on that.

And I think the meaning of terms, you can often see how

did these legislators use the term "vehicle" in their

debates. How did they use the term "labor" in the Holy

Trinity statute? So I agree with John on that. But I

would also look at legislative history for statutory

purpose.

Generally speaking, there would be a fair

amount of agreement, and if there's not, then it's not so

useful, on what is the core purpose of the statute and

how much did Congress really want to sacrifice for this.

So you can tell both purpose, and maybe purposes, and

intensity from the legislative history. And I do firmly

agree with the honest agent or the faithful agent model

that you are not a faithful agent unless you understand

and try to understand what is their project, what are

their assumptions, what are their norms, how much did

they want to pursue them? And I think you get more

traction usually by looking at the legislative history.

And then thirdly, I think you can discern from

the legislative history some of the deals that were made.

You have to read it critically. You have to read with an

appreciation of strategic behavior, the whole business,

so this is the least reliable, I completely agree, but

there is goes to weight. It's admissible and it goes to

weight.

And if you argue, if you want to argue judges

can't do that, I will say I completely disagree, but I

think you have to be a really smart judge. You read

opinions by Judge Posner and Justice Stevens to mention

simply two of the more brilliant ones, and those people

are able to do brilliant and illuminating exegeses of

statutory deals and legislative history.

And I think that is useful information, not

always dispositive, and maybe not even trumping text,

even ambiguous text. But I think from the point of view

of both the pragmatist and the faithful agent, that this

is relevant information for a cloistered Article III

judge to have.

MR. MOLOT: We're over our time. Join me in

thanking Professors Manning and Eskridge.

[Applause.]

[Whereupon, at 2:10 p.m., the panel discussion

was concluded.]