Statutory Interpretation and Legislative Unresponsiveness
posted by Daniel Solove
I see it happening over and over again. A legislature passes a statute. A new situation arises, one that doesn’t seem to have been anticipated by the legislature at the time of passing the statute. Judges must interpret the statute, and they often make one of two arguments: (1) had the legislature anticipated the case at bar, it would have clearly addressed it by encompassing or excluding it under the statute; the court should interpret the statute with its best guess about how the legislature might have addressed the new situation had it been aware of it when it created the law; or (2) the statute must be strictly construed; if the legislature really doesn’t like how the strict application of the statute’s language applies to a particular situation, then it can change the law.
I thought of this issue when blogging about the application of electronic surveillance statutes to people who record their encounters with police. In Commonwealth v. Hyde, a person was convicted for recording his conversation with a cop during a traffic stop. This is a situation that I doubt the state legislature considered when passing the law. The court concluded that the law contained no special exception contemplating situations where people record their encounters with police, and thus the defendant’s conviction under the statute was affirmed.
One of the problems with Interpretation #2 above is that legislatures rarely go back and update their laws. They pass laws, and courts encounter ambiguities and difficulties and unexpected cases. Yet only sometimes do legislatures go back and fix the laws to address these problems. Often, the legislature just makes the law and walks away. I have a casebook, and it is a chore constantly updating it. But I feel an obligation to keep it up to date. It is too bad that legislatures feel no similar obligation with respect to the laws they pass.
So what should be done in these situations? Regardless of whether one prefers Interpretation #1 or #2 above, there seems to be a fundamental problem if legislatures are not being diligent about following up over the way their laws are being interpreted. Now, one might argue that the courts are just anticipating the right interpretation most of the time, but I think the reasons why legislatures don’t follow up on old laws are that (a) it is hard work; (b) revising laws can be difficult political battles; (c) there are many other pressing issues on the table; or (d) it just isn’t on the current legislature’s radar screen unless there’s an egregious or highly-publicized case involving the law.
Meanwhile, however, people are convicted under these laws. People must make decisions based on these laws, which can be difficult if the laws have big ambiguities or don’t address emerging situations. More progress should be made examining how to deal with the inactivity and unresponsiveness of legislatures. Given the amount of legislation passed, and the number of issues on the legislative agenda, I doubt that voters are likely to push legislatures to revise old laws except in rare highly-publicized instances.
Guido Calabresi took a stab at addressing this problem in A Common Law for an Age of Statutes (1982). Calabresi contended that courts should actively fix and update laws. Interpretation #1 above is one common way that courts already do this. It allows courts some leeway in ensuring that laws are interpreted reasonably and justly. If the legislature doesn’t like the result, it can change the law. Most likely it won’t, as I’ve pointed out above. But at least Interpretation #1 will let laws be a bit more flexible and responsive to the unique situations they might be applied to. That said, the ideal solution is to figure out a way to encourage legislatures to keep their laws in better shape. But is there a solution to this problem? Any ideas? In the absence of an effective solution, does this problem justify Interpretation #1?
December 12, 2007 at 12:19 am
Posted in: Legal Theory
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Responses (15)
anon - December 12, 2007 at 9:36 am
Interesting post. This issue also arises where courts simply change they way they interpret and apply statutes. For example, the Supreme Court’s analysis for determining whether a statute creates rights that are enforceable under 42 U.S.C. 1983 has changed considerably over the past twenty years. Congress had no way to anticipate that its statutes would be interpreted so differently in the future. Should courts take that into account or do we have to wait for Congress to go back and amend the statutes to conform to the Supreme Court’s current analysis?
Bruce Boyden - December 12, 2007 at 12:40 pm
Dan, your (1) versus (2) pretty much describes my entire Internet Law class. Just about every case or statute we consider attempts to resolve exactly that problem (in the case of statutes, the problem is whether a gap has arisen in a prior statute/common law doctrine that needs to be fixed). Indeed, I usually describe Internet Law as a subject as the study of the responses of courts and legislatures to challenges posed for existing law by new technology. In the last couple of years, I’ve assigned the portion of Hart’s Concept of Law on the “open texture” of law — possibly to the chagrin of my students — to illustrate the source of the difficulty.
Richard Campbell - December 12, 2007 at 1:33 pm
“In the absence of an effective solution, does this problem justify Interpretation #1?”
No. While Interpretation #1 works for lawyers, it means that the average lay person, even should they be so lucky to find an appropriate statute relevant to their situation, has no way to realize that the law may have been “clarified” in a way that now absolutely hoses them, from a previously ambiguous interpretation.
A better solution would be to simply strike down statutes with these problems, thus forcing the legislature’s hand.
Daniel J. Solove - December 12, 2007 at 1:42 pm
Richard — Countless laws have these problems, so striking them down would be the equivalent of tearing up most of the flowers in order to get at the weeds. Some more limited way of restricting them is thus more practical, but that is often accomplished with Interpretation #1 (by concluding that certain special cases are exempt from the statute, etc.).
As far as the average lay person goes, the laws are too numerous and often too complicated for the average person to understand, so judicial interpretations aren’t going to change the situation all that much. Moreover, in criminal cases, doctrines such as the rule of lenity require courts, when faced with ambiguity, to err on the side of the defendant. Courts don’t always do this, but a more potent rule of lenity might go far toward relieving the problems you raise.
JP - December 12, 2007 at 2:58 pm
A partial solution is to restrict the reach of legislatures (e.g., more federalism, subsidiarity, etc…). Fewer and narrower laws equals fewer bad laws with less egregious consequenses. Another, related (and probably equally unpopular and less practical) solution might be mandatory sunset provisions. Certain classes of laws expire after 2, 5, or 10 years. (The difficulty, I suppose, is getting the legislature to revise the laws when it re-passes them).
On another note, Interpretation 2 generally increases uncertainty in the law. With # 1 currently in vogue (at least in federal courts), I can advise clients that “Yes, this is a stupid result, but [Generic Act] clearly makes [benign action] unlawful. Under #2, the advice becomes, “[Generic Act] clearly makes [benign action] unlawful, but given the political / jurisprudential / philosophical makeup of the relevant judiciary, there is an X out of Y probability that the law won’t be enforced in this specific case.
anony - December 12, 2007 at 7:03 pm
Penalty defaults in public law. Make Congress pay for writing ambiguous, crappy statutes.
Congress likes having courts “fix” things, because it gives congress political cover AND allows congresspersons to attack the courts for being “activist.”
Right now, courts just enable this behavior, which disincentivizes congress from acting.
So, in an ambiguous criminal statute, always rule in favor of the defendant. This is not just the rule of lenity–it is a rule that encourages congress to fix things.
Richard Campbell - December 12, 2007 at 8:29 pm
“Richard — Countless laws have these problems, so striking them down would be the equivalent of tearing up most of the flowers in order to get at the weeds.”
I have faith that legislatures would quickly fix the problems if faced with them in an unambiguous way.
“As far as the average lay person goes, the laws are too numerous and often too complicated for the average person to understand, so judicial interpretations aren’t going to change the situation all that much.”
Making it worse certainly doesn’t help, though. Even switching the official copy of the codes to an annotated version (perhaps not as detailed as the USCA, but simply having bullets of clarifications that have been issued) would be an improvement, but the judiciary can’t force that.
To the numerous point, the more reason to suggest they be struck down, then!
“a more potent rule of lenity might go far toward relieving the problems you raise.”
It might. In my limited experience with the rule of lenity, though, all I have seen it work ought is “maybe construe against the defendant if they didn’t do anything *too* bad.”
Orin Kerr - December 12, 2007 at 10:03 pm
That said, the ideal solution is to figure out a way to encourage legislatures to keep their laws in better shape. But is there a solution to this problem? Any ideas?
Yes. Interpretation #2.
Richard Campbell - December 12, 2007 at 10:22 pm
Orin – do you see any fashion to use Interpretation #2 while unambiguously forcing the legislature to clarify their statute?
JP - December 13, 2007 at 12:08 pm
Oops. Returning to add a follow-up thought, I see that in my previous comment I said Interpretation 1 when I meant 2, and vice-versa, making the comment pretty much unintelligible.
Anyway, my follow-up–
Prof. Solove focuses only on the Legislature and Judiciary, ignoring the Executive. Executive functions like prosecutorial discretion and the pardon power are (or should be) powerful mechanisms for avoiding or mitigating injustices resulting from short-sighted or sloppy legislation.
Daniel J. Solove - December 13, 2007 at 12:30 pm
JP — Is relying on executive branch discretion really a viable solution? Many of the attacks on broad judicial interpretation have focused on the fact that it undermines the rule of law by vesting too much discretion into the hands of the judiciary. Is putting that power in the hands of executive officials any better? Should we depend heavily on the whims of particular executive officials? Doesn’t this increase the uncertainty of law? Judges are constrained at least by precedent. Executive officials can change how they exercise discretion without such a constraint. So a law could go unenforced for years to suddenly be enforced by a prosecutor somewhere who wants to make a name for herself. As for pardons, the exercise of the pardon power is far from consistent, orderly, or fair. It strikes me as haphazard at best, and sometimes self-serving and quite troubling at worst.
Orin — There is no evidence to suggest that Interpretation #2 is more likely to encourage legislatures to keep their laws in better shape than Interpretation #1. When they strictly construe a law that leads to results many might find unjust or problematic, many judges applying Interpretation #2 say “well, the legislature can surely fix it.” But this doesn’t often happen. So I think that this argument is not a valid reason to justify Interpretation #2.
Maryland Conservatarian - December 13, 2007 at 1:59 pm
Clearly #2 is most in line with current legal precedent:
As Justice Ginsburg recently intimated in her Kimbrough decision, legislative inaction over just a few months is legally significant…and the current Speaker of the House is on record as referring to a Supreme Court decision (Kelo) as “almost as if God has spoken”.
So, by the new Ginsburg standard, legislative inaction on supposed known mistakes in past legislation s/b seen as an affirmative act and the legislation, as enacted, should therefore be respected…unless you all are willing to chuck stare decisis.
Daniel J. Solove - December 13, 2007 at 2:04 pm
Maryland Conservatarian — The argument that legislative inaction is a form of tacit ratification of an interpretation can also be used to justify Interpretation #1 just as readily as Interpretation #2. I don’t think much can be made of legislative inaction. Legislative inaction can occur for a variety of reasons, not just because of tacit approval of particular judicial interpretations of law.
This doesn’t mean that all legislative inaction is meaningless. Perhaps legislative inaction with additional evidence (rejected bills, hearings and discussion, new laws that depend upon the old laws in question, etc.) can be persuasive, but mere legislative inaction alone doesn’t prove much of anything in my opinion.
JP - December 13, 2007 at 2:41 pm
Prof. Solove – I certainly don’t think that executive branch discretion is a solution to the problem you raise. Rather, it mitigates against the bad results we might otherwise expect from Interpretation #2.
Executive discretion will clearly be haphazard and sometimes self-serving. So will judicial discretion. Perhaps part of the question is which is a better check on those problems: democratic accountability, or precedent?
Maryland Conservatarian - December 13, 2007 at 3:19 pm
To follow up on JP’s latest posting – democratic accountability is the better alternative but I also prefer #2 because I just don’t like – or trust – an active judiciary.
And my mention of Justice Ginsburg’s Kimbrough decision should not be taken as a favorable cite but only because she found congressional inaction (on a matter ripe only from April 2007) esp. significant and supportive of her presumed favorable outcome. Such are the vagaries of judicial fixes. I’ll be curious to see if such respect for inaction survives congressional stalemates on administrative actions that are not to the liking of her progressive cheerleaders.
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