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Copyright 2010 by Northwestern University School of Law Northwestern University Law Review

Printed in U.S.A. Vol. 104, No. 4

Essay
STATUTORY INTERPRETATION AS A MULTIFARIOUS ENTERPRISE
Todd D. Rakoff
INTRODUCTION........................................................................................................... 1559 I. AN EXAMPLE ..................................................................................................... 1560 A. B. II. An Interpretation Based on Formal Legal Documents.............................. 1561 An Interpretation Based on an Analysis of the Situation........................... 1565

THE TWO METHODS COMPARED......................................................................... 1567

III. ARE MULTIPLE APPROACHES LEGITIMATE?........................................................ 1570 IV. CHOOSING THE APPROPRIATE FRAME OF REFERENCE ......................................... 1575 CONCLUSION .............................................................................................................. 1585

INTRODUCTION What is the best way to interpret statutes? The hard truth of the matter, wrote Henry Hart and Albert Sacks better than a half-century ago, is that American courts have no intelligible, generally accepted, and consistently applied theory of statutory interpretation.1 In the intervening years, and especially in the last quartercentury, various writersmostly scholarshave tried to provide the needed theory.2 Through their efforts we undoubtedly now have a more subtle understanding of the problems involved than we once did. At the same time, it continues to be remarked, and in a statistical way even demonstrated, that judges in general do not restrict themselves, sometimes even within a single opinion, to following any single theory of statutory construction.3
Byrne Professor of Administrative Law, Harvard Law School. I thank the participants in the Harvard Law School faculty summer workshop, and Peter Strauss of Columbia Law School, for helpful comments on earlier drafts. 1 HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS 1169 (William N. Eskridge & Philip P. Frickey eds., 1994). 2 For a recent, comprehensive review of the state of the literature, see FRANK B. CROSS, THE THEORY AND PRACTICE OF STATUTORY INTERPRETATION (2009). For a briefer treatment, see Elizabeth Garrett, Legislation and Statutory Interpretation, in THE OXFORD HANDBOOK OF LAW AND POLITICS 360, 360 75 (Keith E. Whittington et al. eds., 2008). 3 See James J. Brudney & Corey Ditslear, Canons of Construction and the Elusive Quest for Neutral

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Perhaps we are looking for the wrong thing. Perhaps there is no theory that would justify its being the consistently applied theory of statutory interpretation. As the title of this Essay suggests, that is my thesis. My claim is that there are many legitimate and useful modes of statutory interpretation, that these methods can look very different from one another, and that choosing the right one in any given instance is not a question of theory in the ordinary sense of the term but of appropriateness or fit. I urge this partly to take account of the fact that, in our society, many other actors besides judges have the need, and often the obligation, to interpret statutes, often with definitive results. But this approach also presents the possibility that judges, or at least some of them, could explain to our satisfaction what they are doing: they are pursuing their craft by choosing the right tools for the varying tasks at hand, just the way most other craftspeople do. I begin with an example of a statute in need of interpretation and proceed from there. I. AN EXAMPLE To show what I have in mind, I am going to pursue a straightforward question of statutory interpretation using two very different methods. The question arises from the Federal Family and Medical Leave Act of 1993 (FMLA).4 As far as I can tell, it has never been litigated, at least in a reported case. Broadly speaking, the FMLA entitles employees to take up to twelve weeks of leave from work during any twelve month period for certain medical and family purposes.5 The leave is unpaid, but employers are required to maintain preexisting health care benefits and to restore employees, at the end of their leaves, to their former jobs or the equivalent.6 The circumstances for which this protected leave is available include the care of a newborn, adoption of a son or daughter, an incapacitating serious health condition of the employee, and this:
In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.7

Reasoning, 58 VAND. L. REV. 1, 44 51 (2005); Jane S. Schacter, The Confounding Common Law Originalism in Recent Supreme Court Statutory Interpretation: Implications for the Legislative History Debate and Beyond, 51 STAN. L. REV. 1, 14 37 (1998); Nicholas S. Zeppos, The Use of Authority in Statutory Interpretation: An Empirical Analysis, 70 TEX. L. REV. 1073, 1091 120 (1992). 4 Family and Medical Leave Act of 1993, Pub. L. No. 103-3, 107 Stat. 6 (codified in scattered sections of 29 and 5 U.S.C.). 5 Id. 6 Id. 7 29 U.S.C. 2612(a)(1)(C) (2006).

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The present question concerns the meaning of the term parent. This is not an inherently ambiguous word, and in many situations it will mean the same thing regardless of interpretive method. But it is a much-remarked pattern in our society for a married couple, having raised children, to turn to the care of such of their parents as are still alive and need help. Suppose one of these elderly people has a serious health condition and needs care. Who will help? Suppose the couple decides that the best person to care for the elderly person is the spouse who is not the child of the person being cared for. Does that caregiver qualify under the FMLA for a protected leave? Or is caring for a parent-in-law different from caring for a parent? A. An Interpretation Based on Formal Legal Documents One way to approach this question of the dimensions of the statutory term parent is to try to answer it, insofar as possible, by reasoning from the various applicable legal documents. We start with the directly applicable statutory provision just quoted. It lists spouse, son, daughter, and parent, and all of these are qualified by the phrase of the employee. Should we inferperhaps under the maxim expressio unius est exclusio alteriusthat parent-in-law is specifically excluded? Taken by itself, that argument is insufficient, since it does not quite meet the counter-contention that parent-in-law really is in the list, contained in the word parent. (What, after all, is the use of the phrase in-law, if not to assert equivalence for a purpose like this?) But the argument for exclusion gains considerably greater force when we recognize that parent is a term defined by the statute:
The term parent means the biological parent of an employee or an individual who stood in loco parentis to an employee when the employee was a son or daughter.8

Now it does seem that the drafters of the text paid attention to the scope of the term parent and insisted that the person to be cared for be, in the ordinary case, a biological parent of an employee. The most important piece of legislative history, the Report of the Senate Labor and Human Resources Committee, supports this restrictive view (albeit without directly addressing it).9 This Report speaks of the employee who faces the serious illness of his or her own parent or spouse10 and includes, as human interest vignettes illustrating the need for

Id. 2611(7). The included phrase son or daughter is also a defined term. See id. 2611(12). See S. REP. NO. 103-3 (1993). This report is the principal piece of legislative history because the Senates bill became the finally enacted language and because the Committee was chaired by Senator Kennedy, long-time sponsor of the legislation. 10 Id. at 10.
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this part of the Acts coverage, the cases of two women, each of whom faces difficulties trying to care for a person described as her aged father.11 Against all this we have to consider the following provision of the Act, included some eighty lines of statutory text after the main coverage provision:
Spouses employed by same employer[]In any case in which a husband and wife entitled to leave . . . are employed by the same employer, the aggregate number of workweeks of leave to which both may be entitled may be limited to 12 workweeks during any 12-month period, if such leave is taken (1) under subparagraph (A) or (B) of subsection (a)(1) [of the coverage provision, that is, to care for a newborn son or daughter or because of an adoption]; or (2) to care for a sick parent under subparagraph (C) of such subsection.12

The overall effect of this somewhat curious language is, in the situations named, to give two spouses working for the same employer only the amount of leave in total that each of them would individually have been entitled to if they instead were working for separate employers. This provision, says the Senate Report, is intended to eliminate any employer incentive to refuse to hire married couples.13 Why would the Act, without this provision, create such an incentive? There is no reason to think, for example, that two people married to each other are each more likely to develop a serious illness justifying leave in the same year than are the two unrelated people who might have been hired instead. But if the couple has a child, or adopts one, there is such a reason: under the gender-neutral provisions of the Act, this single birth or adoption would entitle each member of the couple to twelve workweeks of leave, taken either simultaneously or within the same twelve months. Presumably, that is why childbirth and adoptionthe circumstances included within subparagraph (A) or (B) of subsection (a)(1)are included here, while the employees own serious health conditionthe circumstance included under subparagraph (D) of subsection (a)(1)remains unnamed. What, then, is the implication of the specific inclusion of caring for a sick parent? When would it be that a husband and a wife would both be caring for a parent? We can safely assume that Congress was not addressing the possibility of an incestuous marriage. To say that the language was addressing the possibility of both spouses having to look after their individual biological parents within the same twelve-month period would be to describe a situation in which there is no special reason to think married couples were more likely to impose a burden on an employer than were two otherwise similar but unrelated employees. Rather, it seems that
11 12 13

Id. at 1011. 29 U.S.C. 2612(f). S. REP. NO. 103-3, at 28.

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this provision is written on the assumption that a husband and wife might each be caring, at some time during the year, for the same persona person who is the biological parent of one of them and thus related to the other only as an in-law. And it further assumes that, except as provided in this provision, both of those persons would be entitled to leave. There is, moreover, modest support in the Senate Report for this reading: in its Summary of the Bill, the Report says that [s]pouses employed by the same employer are limited to a total of 12 weeks of leave for the birth or adoption of a child or for the care of a sick parent with both child and parent in the singular.14 What, then, are the choices for interpreting the term parent? One possibility is to understand the definition of parent as restricted to the employees own biological parents, with the in loco parentis exception. In this case, insofar as the provision above applies to spouses both caring for a parent, it seems to have no purpose. Another possibility is to read both the initial provision for leave and the limitation for married couples as effective, making them as consistent with each other as we can make them. In that case, we should say that the basic description of leave to care for a parent (including the definition of parent) should not be read with the negative pregnant that excludes parent-in-law, but rather that parent should be read to include that relationship.15 If that is so, even when spouses work for different employers, each is entitled to leave in order to care for a parent-in-law. Or should we say that the statute is ambiguous between these possibilities? That alternative is of legal, not just linguistic, consequence because of the Chevron doctrine.16 The basic mode for enforcement of the Family and Medical Leave Act is through the courts, initiated by lawsuits brought either by employees themselves or by the Department of Labor.17 But the Secretary of Labor is also given the authority and responsibility to prescribe such regulations as are necessary to carry out the basic
Id. at 2. I should perhaps point out that this spouses employed by the same employer provision differentiates among other cases because its limitation on leave applies to care for a sick parent under subparagraph (C) while subparagraph (C) itself speaks of care for the spouse, or a son, daughter, or parent, of the employee. 29 U.S.C. 2612 (a)(1)(C). This would apparently allow both parents to take their full leaves to care for the same sick child, even if they worked for the same employer; accordingly, the provision as a whole seems to underexecute the idea of not giving employers an incentive to refuse to hire both married partners. In the absence of evidence as to why this was done, perhaps the best that can be said is that there may have been a deal here to go so far and no further. Even if that were the explanation, it does not destroy the point made in the text. The statute only needs to address the case of caring for a sick parentor, if you like, the limitation on caring for a sick parent contained in this provision was only worth bargaining forif, without the language, both spouses would be entitled to take protected leave. 15 The statutory definition would still do work: it would exclude step-parents (unless they qualified under in loco parentis). See 29 U.S.C. 2611(7). 16 See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). 17 29 U.S.C. 2617.
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provisions of the Act.18 The Department issued extensive regulations shortly after the Act was passed and has recently comprehensively revised them; in both cases there were notice-and-comment proceedings that, per United States v. Mead Corp.,19 make Chevron applicable in this context. Both the original regulations20 and the current ones21 explicitly state that parent does not include parents in law. The statement of basis and purpose for the present regulations offers no explanation for this decision and seems to carry over this part of the original regulatory language without further thought.22 But at the time the first set of regulations was being adopted, many participants in the process urged that the final regulations specify that parents-in-law be included, and the statement of basis and purpose accompanying the original regulations rejected that claim explicitly.23 The agency proffered no particular policy reason for making this choice. It is always possible that, because the agency wrote the regulations just after the statute had been enacted, it had some additional, unexplained insight into what Congress was trying to accomplish. What it said, however, was that [s]tandard rules of statutory construction required the result, given the Acts definition of parent.24 However, the regulations adopted to implement the provision of the Act regarding two spouses with the same employer also said, without further explanation, that the couple may be limited to a combined total of 12 weeks of leave . . . if the leave is taken: . . . (3) to care for the employees parent with a serious health condition.25 The regulations thus replicated the confusion present in the statute itself with no notice of, or effort to resolve, the disjunction.26 So where does this leave us? The statute seems somewhat confused, and there is a duly promulgated regulation providing that parent does not include parent-in-law. The agency justified this regulation based on its reading of the text of the statute but did not fully address the complications involved. If we view Chevron as saying that courts need a strong reason for overturning an agencys regulations when a statute is doubtful, then the regulation should prevail. If, however, we view Chevron as saying that courts should defer to an agencys view when it is based on policy
Id. 2654. 533 U.S. 218, 226 27 (2001). 20 29 C.F.R. 825.113 (1995). 21 29 C.F.R. 825.122 (2009). 22 See Family and Medical Leave Act of 1993, 73 Fed. Reg. 67,934, 67,95051 (Nov. 17, 2008). 23 Family and Medical Leave Act of 1993, 60 Fed. Reg. 2180, 2191 (Jan. 6, 1995). 24 Id. 25 29 C.F.R. 825.202 (1995). The unhelpful discussion of this language in the statement of basis and purpose is in Family and Medical Leave Act of 1993, 60 Fed. Reg. at 2201. 26 The new regulation is organized differently but seems to end up at the same conclusion. See 29 C.F.R. 825.201 (2009). The statement of basis and purpose offers little enlightenment. See Family and Medical Leave Act of 1993, 73 Fed. Reg. at 67,973.
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considerations but should not defer when the question is one of traditional statutory interpretation, then a court should insist on what is probably the better (albeit not unambiguous) view of the text: that parent does include parent-in-law.27 A legitimate judicial opinion could be written either way. B. An Interpretation Based on an Analysis of the Situation Let us now see what this question of statutory interpretation looks like if we approach the problem in an entirely different fashion. We are still trying to determine the legally effective meaning of parent used in the statutory specification of one of the grounds for an entitlement to leave: In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.28 But instead of tying our analysis of parent to the intricacies of, and varying authority of, numerous legal texts, let us instead begin with the situation the statute was addressing and look for the meaning of parent from that point of view. The Family and Medical Leave Act makes it possible for employees to take leave when their own health requires itwhich is not the situation that makes parent relevantand to care for others when they need help which is where the scope of parent matters. Parent describes a familial relationship, as do the statutes other coverage terms: spouse, son, and daughter; it seems uncontroversial (whatever the wisdom of the matter) to say that the FMLA distinguishes care in a familial relationship from other possible types of caring relationships. Moreover, the statute distinguishes immediate family relationships from extended family relationships. Providing care for an uncle does not count. Thus, it seems reasonable to understand the statute as directed to helping (or at least making it possible for) the working members of the family unit to assume a family obligation of care for a close family member. In this situation, is providing care for a parent-in-law sufficiently like providing care for a parent that it should be understood to be included in the statute? A parent-in-law is of course a family member as the statute understands family, because he or she is already a parent to one of the spouses. The question for the family unit is this: which of the spouses ought to provide the needed care requiring absence from work? If we imagine a discussion between the spouses addressing that question, we might find them considering the following, among other matters: which of them is better at rendering care; if both work, who makes more money at work, or whose job demands more ongoing personal continuity; which of them gets along better with the ill person; how they feel (pro or con) about
See Carcieri v. Salazar, 129 S. Ct. 1058, 1069 (2009) (Breyer, J., concurring) (rejecting Chevron deference although there was statutory ambiguity because the decision did not implicate departmental expertise). 28 29 U.S.C. 2612(a)(1)(C) (2006).
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the cultural stereotype that, for many, still counsels that this type of work is womens work; whether one of them is already occupied with other caregiving responsibilities; and so on. Of course, even in discussions within the family unit, it might come down to biological connection; shes your mother is a not-unheard-of claim. But allowing coverage for a parent-in-law does not eliminate coverage for a parent. If we view the family as a working relationship to which society often leaves (or delegates) matters of care and understand the matter from the point of view of the participants, a rule that allows for the care of both parents and parents-inlaw, and therefore allows the choice of caregiver to be made on other-thanbiological grounds, better matches the situation. When I say better matches, it is not that ordinary employees cannot see the linguistic ambiguity in parent or cannot distinguish between the terms parent and parent-in-law. It is rather that, from a practical point of view, they would resolve the ambiguity in favor of understanding the statutes use of parent to include both possibilities. It would not make sense to them for the law both to help them care for aged members of the family and yet to draw a distinction between a biological parent and a parent-in-law. The point is behavioral as well as linguistic: the interpretation depends on the distinctions people make (or do not make) as they go about their business, not just the way they speak.29 Which is not to say that there is no counterargument to be made, even using the general method of looking at the situation rather than at the intricacies of various formal texts. If the statute is viewed as directed to individuals carrying out their responsibilities, rather than to families doing the same, the statutory selection of spouse, son, daughter, and parent might simply name the conventionally most important relationshipsthe ones where it matters most to people that they be allowed leave to provide care. On that basis, do parents and parents-in-law stand on the same footing? The actual relationships that exist between
See Justice Grays mix of linguistic and behavioral evidence when speaking for the Court in Nix v. Hedden, 149 U.S. 304 (1893), where the question (for tariff purposes) was whether the tomato was a fruit or a vegetable: Botanically speaking, tomatoes are the fruit of a vine, just as are cucumbers, squashes, beans, and peas. But in the common language of the people, whether sellers or consumers of provisions, all these are vegetables, which are grown in kitchen gardens, and which, whether eaten cooked or raw, are, like potatoes, carrots, parsnips, turnips, beets, cauliflower, cabbage, celery, and lettuce, usually served at dinner in, with or after the soup, fish, or meats which constitute the principal part of the repast, and not, like fruits generally, as dessert. Id. at 307. Should we also ask how employers conceive of this situation? I think not. An employer asked to grant leave might (or might not) have an opinion on whether care for a parent-in-law should qualify, but it would not be an active participant in the underlying caregiving situation. However, the practices of employers might well be relevant for other issues arising under the Act, such as what constitutes employment at a specific worksitewhich is relevant for purposes of counting the number of employees in order to apply the Acts exclusion of small employers.
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individual spouses and their parents-in-law vary widely. Some married people spend their whole lives estranged from their in-laws, while others live in the same house with them and call them mom and pop. Of course, the relationships between adults and their own parents run a gamut as well. But if one hazards the guess that in general each adult cares more about his or her own parents than about his or her spouses parents, then, from this point of view, reading the statute to distinguish the cases would make sense. Although this second alternative exists, the first way of trying to understand the statute in terms of the situationthat is, the approach that sees it as fundamentally about a familial rather than individual situationis probably to be preferred. It embodies a richer and more dynamic sense of the context. And there is some support for it in the words of the statute; as Congress explicitly stated, the first-named purpose of the Act is to balance the demands of the workplace with the needs of families.30 But just as we concluded a few pages ago with regard to basing the Acts interpretation on the intricacies of various formal legal texts, here, too, a judicial opinion could probably be written either way.31 II. THE TWO METHODS COMPARED We have looked at two very different methods by which the statutory term parent could be interpreted. The first method emphasizes the multiplicity, intricacies, and relative authority of legal texts; the second emphasizes the interplay of the core statutory language with the practical situation to which it is addressed.32 How should we evaluate these differences? As is evident, the distinction between these two methods is not that one solves the problem and the other does not. Alternative conclusions are possible within each method. This result is not, in my view, surprising. There is a large body of literature to the effect that neither in theory nor in fact do alternative methods of statutory interpretation, by themselves, decide most cases of any difficulty.33 There are usually subsidiary, embedded issues that can go one way or the other. But that does not mean that the choice of method is irrelevant: different methods raise different subsidiary, embedded issues. If we ask of doctrines of statutory interpretation not that they control the case, but that they direct the attention of the interpreter to what it is that ought to matter, then the choice is real.
29 U.S.C. 2601(b)(1). See supra Part I.A. 32 I should acknowledge that I have purposefully avoided giving either method any of the possible conventional names that might be used to describe it for fear of entangling my argument in various controversies that would be subsidiary to my main point. 33 See, e.g., CROSS, supra note 2, at 199 200 (describing trends in circuit court practice of varying methods of statutory interpretation); Brudney & Ditslear, supra note 3, at 28.
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Accordingly, we might begin our comparison of these two methods by asking what range of materials, what sorts of factual predicates, each of them uses. Here is a list for the first method: The specific statutory provision being construed: In order to care for the spouse, or a son, daughter, or parent, of the employee . . . . Other provisions of the Act: a statutory definition and another use of the relevant words in a disparate provision A committee report An on-point administrative regulation and other regulations for comparison The agencys statements of basis and purpose accompanying its regulations Modest assumptions about social life And here is a list for the second method: The specific statutory provision being construed: In order to care for the spouse, or a son, daughter, or parent, of the employee . . . . Social understandings of biological and nonbiological family relationships Common intrafamily practices for allocating family burdens Cultural stereotypes Modest assumptions about the rest of the statute Let us start by considering the first and last bullet points in each list. As to the first, it is of course the same in each list: the specifically applicable statutory provision. That is not remarkableit is hard to imagine a method of statutory interpretation that does not consider the words of the statute to be relevant. But I stress the point because I fear some may think that the second method I have presented just invents the law and has nothing to do with construing the statute. That is plainly wrong. The second approach is an attempt to come to terms with the statutory inclusion of parent within the statutory quadruplet of spouse, son, daughter, and parent, just as much as the first one is. Absent some constitutional claim, there would be no argument for covering parents-in-law under either method if the statute were amended to exclude them explicitly. As to the last bullet point in each list, together they suggest, broadly speaking, that these methods are not hermetically sealed off from each other; instead, each makes modest reference to the materials thought most important by the other. So, for example, in the first method, in trying to put the different textual uses of parent together, it was necessary to assume that incestuous marriages were rare in society and would not, for both descriptive and prescriptive reasons, be the groundwork of congressional action. And in the second method, it was helpful, in deciding which of the 1568

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situational analyses was most persuasive, to mention the explicit statutory statement of purpose with its reference to helping family units. Even in their purest forms, methods of statutory construction are often interconnected, differing in emphasis more than in absolute inclusion and exclusion. Which brings us to the middle bullet points. To see what is at stake in their differences, we might view them within a broaderlonger and more general but probably still not all-inclusivelist of sources that at one time or another have been used to guide the interpretation of statutory terms: Other parts of the same statute Legislative materials surrounding passage of the statute Uses of the same words in other, closely connected statutes Common law usages Interpretations by a relevant administrative agency Dictionary definitions Usual practices of lawyers expert in the particular field of law Scientific or technical usages Distinctions made in a relevant situation by a relevant trade Lay usages and cultural meanings Common social practices regarding a relevant situation This list is organized, roughly speaking, to proceed from the most specific sorts of materials to the most general.34 What it reveals, I think, is that the interpretive materials that are used to flesh out statutes are each connected, expressly or impliedly, to an institutional context. This is not accidental; it is this institutional context that potentially gives them force. This is obvious as regards the materials at the very top of the list, which are thought one way or another to show Congresss meaning. It seems clear also in the middle of the list, where the organized expertise of administrative agencies or of teams of lexicographers are claimed to validate their interpretations. But it is also true as we move to the bottom of the list. It is not the idiosyncratic voice of the single scientist or tradesman that carries weight; it is the voice of the relevant science or trade as an organized practice.35 And as sociologists and anthropologists spend their lives proving, common social and cultural practiceswhich appear at the very end of the listare, in this sense, institutionally grounded too. They bear the marks of the structures and social forces within which they were
As will become clearer, this list is not meant to represent a hierarchy of authority either top to bottom or bottom to top, but rather an open field of choices that has to be put down on paper somehow. 35 This becomes clear if one considers how trade practice, for example, is proven in court as an institutional usage. For a particularly clear case arising from the parallel body of law in which parties have tried to prove trade usage for purposes of interpreting the language of a contract, see Frigaliment Importing Co. v. B.N.S. Intl Sales Corp., 190 F. Supp. 116, 117, 119 (S.D.N.Y. 1960), in which parties tried to prove the trade usage of the word chicken.
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created, and of the efforts of people to deal reasonably with those situations; they are not simply the statistical cumulation of personal eccentricities. Choosing to use any of these materials for interpretive purposes means choosing an institutional lens through which to see the matter at hand and caring about how the matter looks from that point of view. Modern scholarship has sensitized us to this fact as regards sources near the top of the list that come from formal legal institutions.36 But the point remains the same as we move down the list. Of course, one can consider a problem from more than one point of view. Presumably one wants to choose the point of view that is (or points of view that are) most significant for the matter at hand. That, I think, is what is at stake in comparing the middle bullet points for the two methods of construing parent in the FMLA. The first method uses materials that highlight the interpretations and interactions of the formal governmental institutions involved.37 The second method uses materials that highlight the common practices and meanings generated by ordinary people faced with the situation the statute addresses. If that is, broadly speaking, what is at stake, two questions arise. First, are both approaches legitimate? Second, if they are, how are we to decide when one is to be preferred over the other?38 III. ARE MULTIPLE APPROACHES LEGITIMATE? Undoubtedly, the first method we have looked at, based on formal legal texts, is more familiar than the second, especially among those who have read the recent academic literature on statutory interpretation.39 There seems to be no doubt as to its overall legitimacy, notwithstanding whatever disputes remain as to its best incarnation. But just because method two, based on a situational analysis, is unfamiliar does not imply that it is
See, e.g., John F. Manning, Textualism as a Nondelegation Doctrine, 97 COLUM. L. REV. 673, 695 706 (1997). 37 I acknowledge that I have suppressed many local disputes (such as whether judges should, or should not, consult legislative history) in my effort to present a broader terrain that, it seems to me, has often been missed. 38 Perhaps this is the place to mention that I do not propose to address the further complications raised when there is a large span of time between the passage of a statute and its application to a novel question. The issues are thoughtfully canvassed in WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION (1994), and Peter L. Strauss, On Resegregating the Worlds of Statute and Common Law, 1994 SUP. CT. REV. 429. 39 See Jonathan Molot, The Rise and Fall of Textualism, 106 COLUM. L. REV. 1, 23 29 (2006) (moderate textualism has prevailed and only minor squabbles remain). But see John F. Manning, What Divides Textualists from Purposivists?, 106 COLUM. L. REV. 70, 110 11 (2006) (something substantial does remain). To get a clear statement of what I have presented as the second method, it may be necessary to go back as far as Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, 3 VAND. L. REV. 395, 397 (1950), claiming that what matters most is the sense of the situation as seen by the court.
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illegitimate. Is there only one proper method, or can method two also be used? The claim that some version of the first method is in principle the only permissible method for construing statutes rests, as far as I can tell, on the claim that every issue of statutory interpretation is framed by two overwhelmingly important facts: the statute is passed by a legislature that is democratically elected, and it is interpreted by a court that is not.40 This combination is thought not only to require legislative supremacy in the ordinary sensefor example, in the sense that a legislature can amend a statute to override a courts statement of the law based on the statutes prior versionbut also to limit drastically the options open to courts when statutes are ambiguous, have gaps, or conflict with each other. These two facts are, of course, highly relevant under method one, with its emphasis on the relative value of materials generated by various governmental institutions. But they would be treated as not especially relevant under method two, which on this theory would therefore be a poor choice. More generally, since these two facts are thought to be constitutionally inflected, this claim comes down to the proposition that some version of method one is the only legitimate version of statutory interpretation. Building a theory of statutory interpretation simply on this basis that what is always the fundamental issue is the interpretation of the expression of the democratic will by an unelected judiciaryfaces great difficulties. First, most of the judges who give statutes their final interpretations are elected. A great many statutes are passed by state legislatures covering, for example, almost all of our criminal law and the fundamentals of our commercial law. Their authoritative construction belongs to the state supreme courts, and the state supreme courts in most states are composed of elected judges.41 If being unelected is the crucial fact, then we need two completely separate theories of statutory interpretation: one for jurisdictions where judges are elected, and one for where they are not.42 But no one, as
See, e.g., ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 22 (1997) (It is simply not compatible with democratic theory that laws mean whatever they ought to mean, and that unelected judges decide what that is.). 41 The justices of thirty-eight out of fifty state supreme courts face some sort of election; the twelve outliers are in New England, along the eastern seaboard, and in Hawaii. See Jed Handelsman Shugerman, Economic Crisis and the Rise of Judicial Elections and Judicial Review, 123 HARV. L. REV. 1061, 106364 & n.2 (2010). The failure of the recent literature to take account of this fact may come from the present tendencynot universally shared, but a real oneto view the question How should statutes be interpreted? as synonymous with the question How should the Supreme Court of the United States interpret statutes? The writers on legislation from earlier generations tended to deal with statutes on a much larger canvas. See, e.g., James McCauley Landis, Statutes and the Sources of Law, in HARVARD LEGAL ESSAYS 213, 213 34 (Roscoe Pound ed., 1934); Roscoe Pound, Common Law and Legislation, 21 HARV. L. REV. 383 (1908). 42 The same point would apply to theories that emphasize other particularities of the Federal Constitution. See, e.g., John Manning, Textualism and the Equity of the Statute, 101 COLUM. L. REV. 1, 58 70 (2001) (arguing that in considering role of federal judges vis--vis legislation, it is important to consider
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far as I know, actually carries the proposition to this logical conclusion. To the contrary, the leading treatise on statutory construction intermingles citations to federal cases, to state cases from unelected courts, and to state cases from elected courts.43 If the response is: Well, those state-court judges may be elected, but they are still supposed to behave like judges, then that is the pointthe role of judge as we understand it is not determined by whether judges are elected. After all, being unelected is not equivalent to being a usurper: federal judges, and the judges in the nonelecting states, are still selected to be judges through constitutionally prescribed means. At least in the federal system, those means are firmly controlled by elected officials: the President and the Senate. In short, judges are selected, one way or another, to act like judges, a role whose specifications does not depend on the presence or absence of popular election. Once it is conceded, however, that the only restraint is that the judge should act like a judge, there is simply no basis for saying that there is only one judge-like way to think about statutes. There are outer limits, of course; judges who decide casescommon law, statutory, constitutional, whateverthrough necromancy are not doing the judges job. But there is a wide variety of what they can do, and have done, while still considering themselves to be judges. For example, it may be that what I have called method two is closer to common law thinking than method one iscloser, that is, to using statutory terms as a foundation for analogical reasoning based on common social patterns (within the possibilities of the statutory text). If that is so, does it prove that the method is not judicial? I would have thought the opposite. Of course, there may be better and worse ways to do the job of statutory construction, but that is the point; within a broad range, alternative methods are better or worse, not legitimate or illegitimate. Second, most statutory interpretation is not done by judges. Judges necessarily act after the factafter the interpretive work done by ordinary citizens trying to comply with the law, by private lawyers advising clients, by public prosecutors deciding what charges (if any) to bring, by administrative agencies enforcing statutes or making rules, and so on. In most instances, these nonjudicial determinations will have a determinative effect, either as a matter of law under a principle of deference or nonreviewability, or as a matter of practice because the determination will never be tested in court.44 Unless we believe that statutory interpretation is
specific features of the U.S. Constitution such as life tenure for judges and protection of interests of small states in apportionment of the Senate). 43 See, e.g., NORMAN J. SINGER & J.D. SHAMBIE SINGER, Criteria of Interpretation, in STATUTES AND STATUTORY CONSTRUCTION 45 (7th ed., 2007). 44 See Kent Greenawalt, A Pluralist Approach to Interpretation: Wills and Contracts, 42 SAN DIEGO L. REV. 533, 548 (2005) (Unofficial interpretation is the crucial backdrop for official interpretation.).

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legitimate only when based on a prediction of what judges would do, were they to construe the statute on their ownand not even Justice Holmes thought that predicting what the judges would do had normative force45 there is no reason to limit all of this statutory interpretation by the particular limitations of the role of the judge. There are many social processes in play; why should the supposed situation of one of them assume paramount importance?46 Moreover, the fact that statutory interpretation takes place in many institutional settings is not a necessary evil; it is an affirmative good. We all too easily fall into an outmoded view of what modern legislation entails. We imagine the ideal statute as one in which the legislature unambiguously and fully specifies all its applications, thereby producing a statute that can be applied by a judge (or other reader) to any relevant situation without a need for interpretation once the particular facts have been determined. But as Edward Rubin has convincingly argued, if we approach the problem from the point of view of statutory design for a modern society, the statute that simply states a rule that can be employed by judges without significant interpretation is really just a corner solution existing in a much larger array of intelligent possibilities.47 To use Rubins terminology, a great many statutory directives are intransitivethat is, incapable of being directly applied to primary action and in need of further transformation before they can be so used.48 A directive to an administrative agency to formulate rules to flesh out a vague statutory standard is the archetype here, but it is by no means the only case. Rubin discusses as common examples statutes that focus on stating goals rather than rules and statutes that focus on establishing implementation processes other than rule application.49 This intransitivity could represent a failure of design, but often it represents a recognition that there are many kinds of directives other than fully fleshedSee Oliver Wendell Holmes, Jr., The Path of the Law, 10 HARV. L. REV. 457, 457 62 (1897) (asserting that predicting what judges will do is the central inquiry of the bad man as well as the good). 46 The proposition that administrative agencies, when interpreting statutes, ought not mimic judicial analysis was first asserted with regard to the use of legislative history in Peter L. Strauss, When the Judge Is Not the Primary Official with Responsibility to Read: Agency Interpretation and the Problem of Legislative History, 66 CHI.-KENT L. REV. 321, 351 53 (1990). The claim was expanded to a broad range of interpretive techniques in Jerry L. Mashaw, Norms, Practices, and the Paradox of Deference: A Preliminary Inquiry into Agency Statutory Interpretation, 57 ADMIN. L. REV. 501, 504 36 (2005), with which ADRIAN VERMEULE, JUDGING UNDER UNCERTAINTY 213 15 (2006), is basically in agreement. For a defense of the proposition that agencies should mimic judges, see Richard J. Pierce, Jr., How Agencies Should Give Meaning to the Statutes They Administer: A Response to Mashaw and Strauss, 59 ADMIN. L. REV. 197 (2007), to which Mashaw responded with Agency-Centered or Court-Centered Administrative Law? A Dialogue with Richard Pierce on Agency Statutory Interpretation, 59 ADMIN. L. REV. 889 (2007). 47 See Edward L. Rubin, Law and Legislation in the Administrative State, 89 COLUM. L. REV. 369, 371 72 (1989). 48 Id. at 380 85. 49 Id. at 411, 418.
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out rules that can be usefully incorporated in legislation. Mechanisms of this sort often represent better ways for a legislature to achieve its statutory purposes than by writing a fully specified statute. Although Rubin limits his analysis to legislative directives that fall in the first instance on other governmental entities (including judges), there is no reason in practice or in theory to do so. Designers of a statute to authorize and structure private corporations might well conclude that their purposes would be better achieved by stipulating processes for the corporation to follow rather than by delineating substantive rules. And in other situations one might simply decide to piggyback on existing social processes, such as those that create trade usages, which in some cases are formally enunciated by organized entities and in others grow as customs grow. In each case, one may have to fill in a stated statutory norm with further specifications drawn from private action before the final rule is known. And this may well be true even when the issue is the rightness of the behavior of participants in the very institution that makes the additional specification. One must have some scruples, of course, about the degree to which one puts public authority behind privately enunciated norms, but as these examples show, those limits function at the margins and do not control the basic design decisions.50 Because issues of statutory interpretation do not arise unless a statute has been passed, we are tempted to look at any statute from the point of view of the enactors of the legislation. Because of our predisposition to favor fully enacted statutes, we tend to try to see how the enactors might have resolved the particular ambiguity or uncertainty that has arisen. This approach has always been subject to the criticism that the point of view of those subject to the legislationits readersought to count for something.51 To put the matter in language more commonly applied to private documents, there has long been a dispute between the subjective and the objective readings of statutory language. But we need now to recognize that in addition to enactors and readers, there is another legitimate category: the active users of statutes who have both the need and the authority, delegated or recognized, to interpret statutes within some significant leeway. These users are highly variegated, ranging from administrative agencies to organized trade groups, to more loosely constructed foci of expertise, on to ordinary people creating ordinary customs.

The basic article on the matter is probably still Louis L. Jaffe, Law Making by Private Groups, 51 HARV. L. REV. 201 (1937). For a recent treatment, see Gillian E. Metzger, Private Delegations, Due Process, and the Duty to Supervise, in GOVERNMENT BY CONTRACT 291, 291 309 (Jody Freeman & Martha Minow eds., 2009). 51 Most famously, this was the stance taken by Justice Jackson. See, e.g., Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 396 (1951) (Jackson, J., concurring.).

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Indeed, one could go further to argue that among the desirable design criteria for the legal system as a whole we should include keeping statutory law close to social practices, rather than distantly formal (recognizing that, at times, closeness implies changing common practice, too). Much can be said for the proposition that legal systems in which customs, social norms, and legislatively specified rules flow together are the most successful. Certainly the judge-made common law has traditionally taken a similar point of view. But even if one does not embrace that further evaluative proposition, as a matter of plain fact statutes undoubtedly do vary as to the degree to which they stipulate the rules ultimately to be used or instead leave the applicable norms open-ended. That fact can be understood as representing reasonable, purposeful behavior on the part of legislators. A wide variety of institutional arrangements can be sensibly enlisted. Some will have a specific organizational locus; others may be more diffuse. In some cases, the result will be most easily described in public law termsas a delegation to an agency or to some group within societyand in other cases, most easily in private law termson the model of adopting trade practice. However described, determining what institutional locus should be looked to in order to fill in the open areas is part of understanding the statutes design and place within the legal system as a whole. Correspondingly, if, in a matter of statutory interpretation raised in court, a judge considers or even relies on materials generated by the appropriate institutionwhich may well be something other than formal legal texts enunciated by a formal legal institutionwhat he or she is doing is not properly understood as stepping beyond the judicial role. Understanding a statute on this level logically precedes determining the meaning of statutory terms that are meant to be used as rules of behavior, because determining the context vis-a-vis which the construction of the rules is to proceed comes before the construing process itself.52 Accordingly, if by statutory interpretation we mean the process of deciding what conduct the statute authorizes or requires, there are many legitimate methods of statutory interpretation, because there are, over the broad range of statutory provisions, many legitimate institutional frames of reference. IV. CHOOSING THE APPROPRIATE FRAME OF REFERENCE The implication of the foregoing is not merely that both of the methods we looked at are to be taken seriously but that in fact there is a whole spectrum of legitimate ways in which statutes can be interpreted. The issue

Of course, if, on the particular issue, the statute means the same thing in all of the potentially relevant frames of reference, this analysis can be elided.

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then becomes how to choose, from among the legitimate possibilities, the most desirable method for the case at hand. What might this process look like? The best writing I know of on that subject was penned forty-five years ago by Judge Henry Friendly, commenting on (and quoting from) the opinions of Justice Felix Frankfurtercraftsman on craftsman:
[I]t is well to set down some of the Justices hints on how to read. Ordinary words should be read with their common, everyday meaning when they serve as directions for ordinary people, as, for example, in the Selective Service Act. A different principle applies to technical expressions: Tax language normally has an enclosed meaning or has legitimately acquired such by the authority of those specially skilled in its application. Words that have a welldefined meaning in general speech may have a different sense in a particular context: The recognized practices of an industryhere motor carriage give life to the dead words of a statute dealing with it. Again, The TaftHartley Act is not an abstract document to be construed with only the aid of a standard dictionary. Although the ordinary English words that it uses, such as national or international labor organization, may carry to the ordinary ear . . . a meaning different from that which they carry in the domain of industrial relations, the courts are bound to apply the latter. Another important reading aid is to remember the kind of statute we are reading. At one end of the spectrum are enactments such as the Sherman Law that embody a felt rather than defined purpose and necessarily look to the future for the unfolding of their content, making of their judicial application an evolutionary process nourished by relevant changing circumstances, or statutes empowering an agency to regulate under broadly defined criteria. Statutes of this sort are to be read somewhat as the Constitution itselfthey are open- rather than closed-ended, although even here expansion is limited to the extent that the words with which [the] purpose is conveyed fairly bear such expansion. At the opposite extreme is a statute which, in effect, was a century-old land grant from the government to a railroad; such a specific grant . . . does not gain meaning from time. Its scope today is what it was in 1862, and the judicial task is to ascertain what content was conveyed by that section in 1862. Another variant is the strongly worded prohibitory enactment, qualifying language or exceptions in which must not be read so broadly as to stultify the declared end.53

Judge Friendlys list of examples is, of course, just that. This is not surprising since the forman essay of appreciationconstrains him to draw from and quote cases that Justice Frankfurter decided. But we can infer some of the principles that draw these examples together. One is certainly that statutory language is to be read as though the legislature were in dialogue with the audience impacted by the statutewith reference to both that audiences use of language and to its practices. Another is that
HENRY J. FRIENDLY, BENCHMARKS 203 04 (1967) (citations to Justice Frankfurters opinions omitted).
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statutes vary by the extent to which they are open to evolutionary development and by the entity entitled to take charge of that development. (It is worth noting that deference to an administrative agency is not something entirely distinct, but part of the same field of analysis.) Finally, we might note a principle demonstrated by silence: ascertaining the kind of statute under any of these principles is not necessarily dependent on somehow identifying an actual intent or purpose of Congress. The relevant point about the Selective Service Act is not that Congress meant for it to be read in an everyday fashion but that the Act serve[d] as directions for ordinary people.54 It is a matter of the design of the statute as seen in its overall institutional setting. Taken at a higher level of abstraction, the process involved is one of matching a statutory issue with an appropriate frame of reference. This process of fitting is, in my view, something very different from what we usually think of when we think of applying a theory of statutory interpretation. It cannot be properly understood as fundamentally consisting of the characterization of a set of facts under an applicable principle derived from an overarching theory. Rather, it is based on at least three closely connected points. First, there are many principles or considerations in play; indeed, the set of potentially relevant factors is always open. (For example, I would add to Judge Friendlys list, as often relevant, the matter of what body of law the statute should be seen to be part of: are the terms drawn from, or best interpreted as part of, the common law, admiralty law, a specialized body of regulation, or whatever?)55 Second, there is no tight algorithm available to connect those multiple principles into an easily stated single metaprinciple; they need to be put together in some more complex fashion. (There is, for instance, no organized hierarchy of interpretive resources, such that there is a set starting point, and one moves to a lower valued source only if a higher valued one generates results that are useless or ambiguous.)56 Third, the principles are not highly theorized, and indeed are often susceptible to multiple theoretical
Id. at 203. See, e.g., Williams v. Wilmington Trust Co., 345 F.3d 128, 133 (2d Cir. 2003) (Katzmann, J.) (stating that owner in a seamans wage statute should be understood as owner is traditionally understood in admiralty law). 56 On this point particularly, the multifarious approach I am proposing seems to me to differ from what is often referred to as the pragmatic school of interpretation. For instance, William Eskridge and Philip Frickey present their method as having a distinct form (their funnel of abstraction) superior to purposivism, intentionalism, and textualism, and applicable in general to questions of statutory construction. See William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 STAN. L. REV. 321, 324 25, 353 (1990). The fact that the method itself is an all-things-considered method does not deny that the authors seem to assume that there is basically one type of statute and one proper structure within which the issues should be addressed. That their mention of what they term highly technical statutes, to be read as understood by the common sense of the special audience to which the statute is addressed, appears only in a footnote, id. at 355 n.124, seems to me to confirm the point.
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formulations. (Ordinary words should be read with their common, everyday meaning when they serve as directions for ordinary people, for example, might be grounded on the authority of the speakers point of viewon the way we believe Congress talks when it talks about ordinary things; or on the legitimacy of the audiences point of viewon the way ordinary people are entitled to assume Congress talks, when it talks about ordinary things.) In my view, this process of multifactored, midlevel equilibration, this nonfoundational approach, is the proper one to use for deciding how to interpret the kinds of statutes we have in the kind of political and social system in which we live. There are too many different kinds of statutes used for too many different kinds of reasons for us to expect there to be a workable singular theory of statutory interpretation. Whatever may have been true a hundred years ago, today we recognize both that statutes can constitutionally embrace any of a number of quite different substantive objectives and also that our system is democratic not in the sense of the pointed enunciation of a fully specified popular will by elected representatives but rather in the sense of a legislatively controlled, but widespread, diffusion among many institutions of law-applying, and to some extent law-making, powers. We have come to accept the interpretive implication of the variety of permissible purposes: we recognize that there is an open field of substantive criteria that might be used to resolve statutory ambiguities in particular instances, but no single general criterion to be used in every case. Similarly, we should also accept the implication that there is a plethora of potentially relevant institutional perspectives and treat the choice among the interpretive resources they generate as an open field of decision.57 That said, choosing among the points of view of the enactors of a statute, its readers, and its several types of users, once they are all considered potentially relevant, is not easy. It is, of course, possible that the legislature has explicitly stipulated a choice of interpreter for a particular provision; absent constitutional constraint, that would seem to lie within its prerogative.58 But that is not the common case. More commonly what we
The truth of this proposition is more often acknowledged than its importance is recognized. For example, Cass Sunsteins ambitious effort to organize the interpretation of statutory texts in modern times appears to assume that even though we can generate only partial substantive canons to use for interpretation, there is still a single systemic point of view from which interpretation in general can proceed. Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405 (1989). At the same time, in a footnote Sunstein says: It is important to emphasize that my approach is directed to regulatory statutes. Id. at 411 n.20. But there is little discussion of which statutes in the regulatory state are to be thought of as regulatory statutes or of what we are to do with the rest of the legislatures output. Is the FMLA a regulatory statute? 58 See, e.g., 29 U.S.C. 158(b)(5) (2006) (explicitly directing the Labor Board to consider the practices and customs of labor organizations in the particular industry in deciding whether union membership fees are excessive or discriminatory); 213(a)(1) (2006) (explicitly delegating power to the Secretary of Labor to define and delimit statutory terms bona fide executive, administrative or profes57

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have is ambiguous language in need of interpretation and more than one claimant to interpretive authority. Those who wrote the statute may have understood its ambiguity as a delegation of authorityto someone undetermined59to clarify it, or they may have missed the problem, or they may not have been able under the circumstances to do any better.60 The various potential readers and users of the language come at it from different points of view arising from different institutional settings. What should we do? We can narrow the problem, but only somewhat, by recognizing that these various interpreters often know of each others existence, or, if not, perhaps ought to. Probably the ordinary citizen should understand that the words of a statute are being used by its drafters in a formal legislative contextat least to the extent of disallowing the interpretation of its words as being used metaphorically or ironically. But should they assume the yet more formal proposition that what is not specifically stated is excluded? And if Congress passes a statute that incorporates terms that are routinely used in the industrial situation being addressed, perhaps the legislative history shows that that language, by itself, was meant to delegate to trade practice the task of filling in the specifics.61 But what if there is no evidence that Congress meant to adopt the usage or was even aware of it? Do we still adopt the users point of view, and if so, because of its own importance, or on the theory that Congress was negligent not to know?62 It seems that this interactive approach will not fully resolve our problem; it will always be possible to turn the kaleidoscope of possible recursive readings one notch further.63
sional capacity and capacity of outside salesman). 59 In the common case of a statute administered by an agency, there is a general delegation to the agency to make rules or decide cases and a general delegation to the judges to review what the agency has done, with the interpretive materials to be used by each of these potential delegatees undefined and the line between the two delegations itself notoriously in need of definition. 60 This point was famously made by Justice Stevens in Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 865 (1984). In their empirical study of legislative drafting by the Senate Judiciary Committee, Victoria Nourse and Jane Schacter found that contending congressional staffers understood that leaving language ambiguous was in effect delegating decisionmaking elsewhere, with the hope that someone else would decide the disputed point their respective ways. Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. REV. 575, 59697 (2002). More broadly, their work shows that, for the Senate at least, the desire to get agreement and achieve results is more important than the desire to write precise language to satisfy interpretive virtues. 61 So held in Corning Glass Works v. Brennan, 417 U.S. 188, 201 03 (1974) (stating that working conditions does not include the time of day worked). 62 Cf. Todd D. Rakoff, Washington v. Davis and the Objective Theory of Contracts, 29 HARV. C.R.C.L. L. REV. 63, 89 (noting that public officials can fairly be held to know common meanings as their stock in trade). 63 The complexities of this point are nicely developed in Kent Greenawalt, Are Mental States Relevant for Statutory and Constitutional Interpretation?, 85 CORNELL L. REV. 1609, 1672 (2000) ([R]eaders attend to the purposes of writers and writers formulate communications in light of what they

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To reach conclusions that will get us beyond these conundrums, we need to formulate an understanding of the design of the statute in its overall institutional setting. There are many aspects to a statute: one can look at its structure, the processes it establishes, and other things besides the exact substantive language it uses. It is hard to avoid the conclusion that the overall social context, potentially different for each statute although probably falling into recognizable patterns, will also influence choice in these matters. What we are looking for more resembles a center of gravity defined by multiple force vectors than the Q.E.D. of logical argument. The instinct of judges to look at questions of statutory interpretation using many different types of evidence, coming at the problem from different directions, may not be so far off the mark.64 But is this all too complex? After all, a method of analysis is not much use if it is not usable. If statutory interpretation is seen as a multifarious enterprise, as I propose, how will those who have to interpret statutes know what they are to do? Would we not be better off with an only-one-method theory? The first point to be made on this score is that for many users of statutes, the multifarious way of proceeding is by far the most functional. One of the real virtues of construing technical language with reference to trade usage, for example, is that members of the trade are able to understand what the law requires of them (or what their lawyers tell them the law requires of them) without engaging in an extensive effort at translation. Their instinctive reliance is protected. The same is true where the law penetrates everyday life; if it is interpreted on that understanding, it lays fewer traps.65 The more difficult issue is how to make this analysis manageable when used firstly by judges, and secondarily by those, especially lawyers, who handle the kinds of matters likely to go on to judicial resolution. As previously stated, litigated cases, even potentially litigated cases, comprise only a small part of the domain of statutory construction. But what can we
perceive will be the understandings of readers.). The interactions of the drafters and readers are also addressed in Caleb Nelson, What is Textualism?, 91 VA. L. REV. 347 (2005), and in Peter M. Tiersma, A Message in a Bottle: Text, Autonomy, and Statutory Interpretation, 76 TUL. L. REV. 431 (2001). 64 In deciding litigated cases, there is also the matter of what the evidence shows; judges are inevitably drawn to frames of reference that provide an answer for the matter at hand. 65 See Daniel A. Farber, The Inevitability of Practical Reason: Statutes, Formalism, and the Rule of Law, 45 VAND. L. REV. 533, 559 (1992) (For ordinary citizens, the precise language of complex statutes may be much less accessible than an understanding of its general purposes, as they relate to shared social norms, so plain meaning interpretation may be more effective in creating traps for the unwary than in easing their way.). Although perhaps mentioned in passing, the thrust of this point seems to me to be missing from what Cass Sunstein and Adrian Vermeule call their potentially sensible institutional defense of formalism, that is to say, of a plain meaning approach to interpretation. Cass R. Sunstein & Adrian Vermeule, Interpretation and Institutions, 101 MICH. L. REV. 885, 921 (2003); see also Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Meaning, 1990 SUP. CT. REV. 231 (arguing that plain-meaning interpretation serves an important stabilizing function).

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do to help the judges choose well among the potential frames of reference and to help the lawyers predict what the judges will do? There are contrasting jurisprudential gambits on the question of what form of law best serves the judicial process. A well-used opening states that tests based on a single, or at most a very few, factorsstrongly doctrinal testsfacilitate judicial diagnosis. The countermove replies that simple doctrinal tests necessarily create a considerable amount of ill fit, to which judges will respond by fiddling with the doctrine, ultimately making it less predictable than a frankly multifactored test would be. To which the surresponse is that judges do not have to act that way. So the question is not only one of logic; it is also a matter of assessing judicial discipline. To test that matter, we can look at the most developed body of law we have on a question that resembles the issues we have been discussing. This is the case law relating to the problem sometimes referred to as Chevron Step Zerothat is, the cases setting forth the prerequisites to according agency action Chevron deference.66 In effect, this body of law addresses the question of when an administrative agency provides the most important institutional setting for interpreting the statute in question. In these cases, the Supreme Court has pursued both sides of the jurisprudential game sketched above. In the leading case, United States v. Mead Corp.,67 the Court emphasized the doctrinal approach: where the federal statute gives the agency the power to engage in adjudication or notice-and-comment rulemaking, and the agencys interpretation claiming deference was promulgated in the exercise of that authority, Chevron applies.68 But the Court was not willing to completely bind itself and also said (in a nondoctrinal fashion) that some other indication might justify such deference.69 And in probably the most important case to make such an alternative determination of fit, the Court produced this highly multifactored conclusion:
In this case, the interstitial nature of the legal question, the related expertise of the Agency, the importance of the question to administration of the statute, the complexity of that administration, and the careful consideration the Agency has given the question over a long period of time all indicate that Chevron provides the appropriate legal lens through which to view the legality of the Agency interpretation here at issue.70

The Supreme Courts effort to have it both ways has not received good reviews in the academic press. On the one hand, some question whether the
Cass R. Sunstein, Chevron Step Zero, 92 VA. L. REV. 187, 191 (2006). The term itself originated in Thomas W. Merrill & Kristen E. Hickman, Chevrons Domain, 89 GEO. L.J. 833, 836 (2001). 67 533 U.S. 218 (2001). 68 Id. at 22627. 69 Id. at 227. 70 Barnhart v. Walton, 535 U.S. 212, 222 (2002) (Breyer, J., speaking for eight members of the Court).
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factor in the doctrinal formulation most commonly determinativewhether the statute contains a grant to the agency of rulemaking powercan bear so much weight. Congress may have meant much less in allowing (or telling) an agency to make rules than the application of Chevron implies.71 On the other hand, the failure of the Court to explain how the alternative multifactored test relates to the Courts rationalization of the doctrinal formulation has caused real confusion in the lower courts as to what factors ought to be considered.72 Moreover, it seems that the Supreme Court itself has had trouble living with its formal test when it produces overbroad results. There are many cases where the Court seems to ignore or evade Chevron in situations to which, under the doctrinal tests, it should apply.73 This experience suggests that, once we conclude that there are legitimately many factors to consider in deciding on the appropriate frame of reference for an issue of statutory interpretation, we ought not try to cabin the work of judges in a highly doctrinal test.74 The effort will cause confusion, and in the end, it will not work. That does not mean that judges ought not try to line cases up with each other and tease out the most important factors; it just means that we should not expect them to get those factors down to one or a very few. Insofar as we are looking at judges work, we will be best served by frank discussion of the grounds for choosing among points of view, until the several relevant dimensions clarify. Over time we can expect various nodes to develop, various clusters of considerations that often go together to yield a particular result. There are many areas of the law where a similar balance has been struck. Indeed, the cases that the Supreme Court is willing to treat as Chevron
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See Thomas W. Merrill & Kathryn Tongue Watts, Agency Rules with the Force of Law: The Original Convention, 116 HARV. L. REV. 467, 472 74 (2002). 72 Lisa Schultz Bressman, How Mead Has Muddled Judicial Review of Agency Action, 58 VAND. L. REV. 1443, 1445 48 (2005). 73 William N. Eskridge & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 GEO. L.J. 1083, 1090 (2008) (To our surprise, we found that the Court usually does not apply Chevron to cases that are, according to Mead and other opinions, Chevron-eligible.); see also id. at 1120 23 (describing additional details). Although I have not done the extensive research that would be necessary to prove the idea, it may be that the analysis I put forth explains some of these otherwise hard-to-understand Chevron-avoiding cases. Perhaps the questions raised in these cases were not questions of deference versus no deference (the way the matter is usually put) but rather questions of whether the agencys viewpoint or another viewpoint furnished the best frame of reference, with the Court (inarticulately) choosing another point of view. 74 The argument that we would do best to have a simple, broad test for giving deference to agencies is ably presented in VERMUELE, supra note 46. But Vermeule does not address the reasons why judges might want to defect from such a system, especially when it is recognized that the choice is not merely between court and agency but rather implicates a whole range of possible institutional interpreters. Cf. Richard A. Posner, Reply: The Institutional Dimension of Statutory and Constitutional Interpretation, 101 MICH. L. REV. 952 (2003) (discussing a broad range of institutional factors).

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cases are perhaps best seen in that light, rather than as hit-or-miss applications of a doctrinal rule.75 To see what such a multifactored approach to choosing an interpretive standpoint might look like if extended beyond the question merely of deference to an administrative agency, let us again look at the FMLA. We have developed two substantially different interpretive methods.76 Which of these approaches best fits the question of determining whether parent includes parent-in-law in the Family and Medical Leave Act? Should we look to the formal legal texts as interpreted by the authoritative instruments of government? Or should we look to the practical situation the terms of the Act address as understood by those who live in it? There is much to be said in favor of relying on the situational analysis. The statute speaks in ordinary language with reference to common social relationships; there is no need for technical expertise to explicate the relevant concepts. We have no reason to think that the underlying customs are oppressive or that the statute was meant to reform the common practice at issue rather than to enable it. The subject matter is personal and deeply important for the individuals involved. They have to decide how to act, and how they understand their actions probably matters a lot to them. By contrast, deciding one way or the other on parents and parents-in-law implicates no great shift in the relative power of governmental institutions such that we should care greatly what it means to them. Against this, and in favor of adopting the approach based on formal legal texts, we have first and foremost the Acts delegation to the Secretary of Labor of the authority and the obligation to prescribe such regulations as are necessary for carrying the statutory leave provisions into effect.77 Written in 1993, this language should probably be read to include prescribing substantive regulations consistent with the terms of the Act. But this delegation does not mean that the FMLA matches Judge Friendlys category of statutes empowering an agency to regulate under broadly defined criteria.78 To the contrary, the Act is rather specific. It is written using lay, not technical, words, and the substantive standards are framed as rules for primary behavior, not as directions to the Secretary. (The authority to promulgate regulations is put much later in the statute, in the title covering Miscellaneous Provisions.79) Indeed, the Act is usable without agency action. Alleged violations of the Act are to be tried in the
Perhaps not surprisingly, Eskridge and Baer, having found widespread Chevron avoidance by the Supreme Court, concluded that the most significant factor leading the Court in fact to accord Chevronlevel deference was the agency applying special expertise to a technical issue, seriously applying its understanding for the facts to carry out congressional purposes. Eskridge & Baer, supra note 73, at 1180. 76 See discussion supra Part II. 77 29 U.S.C. 2654 (2006). 78 FRIENDLY, supra note 53, at 204. 79 29 U.S.C. 2651 2654.
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ordinary courts, and while the Department of Labor can bring such a suit, the Act clearly wants to encourage employees to sue employers directly without any such intermediation: it provides for doubling the damages in many cases and, more importantly, allows for successful plaintiffs to recover attorneys fees and expert witness fees.80 This suggests participation by the ordinary practicing bar. Indeed, the Act recognizes that employees, and not just their lawyers, are part of the expected audience of the Act: it requires each employer to post a summary of the Act in conspicuous places on the premises of the employer where notices to employees and applicants for employment are customarily posted.81 True, the summary is to be prepared by the Secretary. But even so, part of the design of the Act is to encourage ordinary workers to know their rights and presumably make their plans based on them. From what point of view should we decide whether the term parent includes parent-in-law? In my view, the specificity of the statute expressed in everyday terms, the lack of intricate connections with other areas of the law, the complexity of the personal relationships involved and the degree to which they require practical trade-offs, the absence of any reason to think the relevant practices are oppressive, and the decisions by Congress to limit the role of the Department of Labor and to have the terms of the Act publicized directly to a lay audience all indicate that the social understandings of that lay audience provide the appropriate legal lens (to use the Supreme Courts term)82 through which to interpret the statute. That method fits better. In other words, if we were to assume (what is not true) that under our first method, based on legal texts, the result that parent does not include parent-in-law was clearly established; and if we were to assume (what is closer to the truth, but not fully established) that under the second method, based on an analysis of the situation, parents should definitely be read to include parents-in-law; then in my view, the statute is best interpreted as allowing employees to claim leave to care for their parents-in-law. I am not saying that the second method should be used only when the first method fails to produce a definite result; the second method is, in this situation, a distinct best. Some readers may be tempted to say that, in making this choice to favor an interpretation of statutory language according to the lay meanings and practices relevant to the situation rather than according to the materials
Id. 2617(a). Id. 2619(a). The form of the notice can be found at 29 C.F.R. pt. 825, App. C (2009). Both the original form, Family and Medical Leave Act of 1993, 60 Fed. Reg. 2180, 2275 (Jan. 6, 1995), and the new form, Family and Medical Leave Act of 1993, 73 Fed. Reg. 67,934, 68,123 (Nov. 17, 2008), say that leave is available to care for the employees spouse, son, daughter, or parent who has a serious health condition without explicitly addressing parents-in-law yea or nay. 82 Barnhart v. Walton, 535 U.S. 212, 222 (2002).
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(other than the directly relevant statutory language) generated by official institutions, even if those other materials are unambiguous, I am advocating for overriding the clear meaning of the statute. I do not think that is right. To assert that a statute has a clear meaning in this context is to claim that one particular interpretive frameperhaps method oneshould be used to make the authoritative decision as to whether a statute is, or is not, ambiguous. But ambiguity very often results precisely from the fact that there is more than one frame of reference with a decent claim to being relevant. The ambiguity lies not within any one frame, but in the different meanings ascribed to important terms from within different frames. As a consequence, ambiguity, in the operational sense of a need to do further interpretive work, can be proven even against a clear standard usage.83 All that said, I admit that the case would be even stronger for using method two to decide on the meaning of parent if the agency had not been given rulemaking powers. And the case for the first method might well predominate if Congress had implemented its purposes by producing a statute of highly interrelated technical provisions with violations of the statute to be tried in the first instance before the agency. And if you agree with these conclusions, even if you do not agree with my reading of the FMLA, then you see my basic point: there is more than one kind of statute; there is more than one way to read a statute; and determining the right way to read any particular statute is a matter of fit. CONCLUSION Often, statutes mean the same thing when seen from any relevant point of view. But when statutory language needs interpretation, the additional premises needed to construct a result have to come from somewhere.
The law of trade usage, for example, would mostly disappear if common terms could not be proven to have uncommon meanings. The contrary is the truth. For a recent example, see Mason Capital, Ltd. v. Kaman Corp., No. 3:05CV1470, 2005 WL 2850083, at *10 (D. Conn. Oct. 31, 2005) (involving expert testimony as to trade practice used to override a grammatical rule even where applicable state statute requires plain meaning to prevail). While not phrased in these terms, it seems to me that Justice Breyers opinion in Zuni Public School District No. 89 v. Department of Education, 550 U.S. 81 (2007), proceeds on much the same theory. Some readers may also be tempted to say that my argument is clouded by an unjustified preference for using the more diffuse items found at the bottom of my list of possible interpretive resources. It is true that I think that, in the ordinary discussion of statutory interpretation, there is less consideration of trade usages and social practices than is justified, but that is because I think, as I have argued here, that there should be an open field of evaluation. It is obvious that there are many cases that should be decided by reference only to the sorts of official texts found at the top of the list. To take an extreme example, in FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000), the issue was the authority of the Food and Drug Administration (FDA) to regulate cigarettes on the ground that nicotine was a drug. As the Court rightly saw, this presented a high-stakes separation of powers question; the Court had to decide whether Congress had, or had not, transferred a very large block of power to the FDA. The center of gravity lay in the statements and actions of official institutions; whether cigarettes or nicotine were or were not drugs in ordinary usage and practice would have no bearing on that matter.
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Where is that somewhere? There are many somewheres. Within each of them there are reasons, not just whims or preferences, for understanding a statute one way rather than another. We can also reason about which somewhere is the most important one for interpreting any particular statute. Statutes come in myriad forms and address in one way or another nearly everything we do. We should accept the fact that we are working on a broad terrain, one open to a full range of social practices. Statutory interpretation is more open-ended, more dependent on wisdomand, I might add, more interestingthan the search for a comprehensive but monistic theory allows.

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