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name; and to say that courts should consult textual and agency-deference can- ons when interpreting statutes.4 5 7
These differences raise the additional possibility that drafter awareness of the canons is generational and is changing across time. We surveyed our re- spondents at a single point in time, and so our data cannot confirm these dy- namics. But it also was our impression that, with respect to each drafter whom we interviewed, his or her views about the matters we surveyed had reached equilibrium-that is, that canon awareness and use is not dynamic for particular drafters over time, but perhaps may be dynamic across different drafters. As legislation courses proliferate in law schools and increasingly enter the first- year curriculum, it is possible that awareness will continue to grow as newly trained lawyers enter congressional service.
There are some interesting doctrinal implications of this potentially genera- tional-and shifting-aspect of canon knowledge. Most obviously, it means that where canons sit in our typology may be subject to change. Canons that are unknown today may be feedback canons that affect congressional drafting ten years from now, if legal education has something to do with it. A normative framework that depends on drafter awareness and/or use of the canons and their concepts thus might have to move with the generations. There would obviously be difficult operational issues associated with such an approach-or any ap- proach that shifts with the realities of the drafting process. In the short term, it would be impossible for courts to determine which lawyers had taken a legisla- tion course and which had not. Over the longer term, even if one assumes that most future counsels will be familiar with the canons, not all statutes are draft- ed by counsels. Courts also would have to decide whether the canon knowledge of the enacting Congress or current Congress should control. Ultimately, the question would be whether the doctrines of the field should be understood as dynamic or static. This question might extend not only to drafter knowledge of the canons but also to other potentially changing facets of the legislative pro- cess-for instance, if Congress moves increasingly toward unorthodox legisla- tion over time.
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A few scholars and judges have suggested some steps that Congress might take to produce more coherent statutes458 or to foster more courts-Congress communication.4 59 One set of justifications for such proposals has emphasized the importance of statutory coherence for the public and the desirability, from a democracy perspective, of Congress rather than courts imposing that clarity upon the U.S. Code.4 6 0 Another set of justifications has focused on interbranch
comity and the need for Congress to assist courts working to discern congres- sional intent.4 6 1 Still another set of arguments has been rule-of-law-oriented, emphasizing that some predictability is needed and that Congress is in the best position to impose it.4 6 2
But we wonder whether, as a matter of theory, there is more to say about Congress as a "faithful principal" relative to the courts as "faithful agents." For instance, does Congress have its own set of obligations to pay more attention to the Court's interpretive work? Are there arguments about Congress's institu- tional role that are distinguishable from more common arguments that are real- ly about the courts (such as those describing courts as undemocratic or empha- sizing the need for predictable legal rules)? Should Congress more aggressively try to change the rules of interpretation with which it disagrees or that it knows cannot practically be implemented (like broad presumptions of consistent us- age)? Or perhaps Congress should change its own rules or practices to bring them in line with judicial interpretation. For example, Congress might address the disconnect between its rules preventing substantive legislative language in appropriations text and the federal courts' refusal to give legal effect to the ap- propriations legislative history that typically contains the key directives, or the disconnect between the institutional importance of the markup and the fact that Congress does not make markup transcripts readily accessible to the (litigating) public.4 63 Might that obligation be heightened in the current climate, when congressional overrides are rare? If Congress cannot address judicial interpreta-
458. See Ruth Bader Ginsburg & Peter W. Huber, The Intercircuit Committee, 100 HARV. L. REv. 1417, 1431-32 (1987) (suggesting a congressional committee to propose mi- nor changes to ambiguous legislation and noting similar proposals by Judge Friendly and Justice Stevens).
459. See Katzmann, supra note 53, at 686-93 (describing a pilot project for transmitting D.C. Circuit statutory interpretation opinions to the House of Representatives); Nourse &
Schacter, supra note 10, at 621-22.
460. See Ginsburg & Huber, supra note 458, at 1426 ("Nonuniform application of na- tional statutes, most especially those intended for the micromanagement of human affairs, is unsettling and on balance undesirable. We neither want nor need the reflective fluidity of judge-made common law; we need the definition, discipline, and precision of a well-written
statute."); see also id at 1417.
461. See Katzmann, supra note 53, at 693.
462. See Rosenkranz, supra note 15, at 2088, 2143-48.
463. See supra notes 282, 312, and accompanying text.
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tions with which it disagrees ex post, does it have an obligation to try to better coordinate or communicate with the courts ex ante?
Intriguingly, these are questions that have been addressed in the context of constitutional law, but not statutory interpretation. Scholars who have debated whether Congress has its own obligations to consider constitutional issues have addressed matters such as whether judges have a "monopoly" on constitutional interpretation; the two branches' relative competence to interpret the Constitu- tion; and whether there is a real distinction between policy and constitutionality that justifies the separation.46 4 The answers to these questions may be clearer in the statutory interpretation context, given the obviously shared authority be- tween the branches over statutory meaning, as well as Congress's understand- ing of the documents it drafts and the perhaps inextricable link between policy (and possibly even politics) and statutory law.
As we detail in the companion Article, however, a theory of Congress as a faithful principal has its own set of operational difficulties. Most importantly, even taking into account the centrality of the Offices of Legislative Counsel in the drafting process, there is currently no mechanism for coordinating drafting behavior. As we illustrate, not only the House and Senate Offices of Legislative Counsel but also many different committees each have different drafting prac- tices-including different drafting manuals!-and many parts of statutes are drafted by noncommittee staff who report only to their members.465 These kinds of institutional barriers would have to be dismantled if Congress were expected to exercise its obligations as a faithful principal through a more coor- dinated drafting process. An easier reform might be the establishment of a spe- cial federal office, like those that exist in many states, tasked with the job of monitoring judicial statutory decisions and bringing opinions involving statuto- ry ambiguities, potential mistakes, and the like to Congress's formal attention periodically.4 6 6 Many noted jurists through the years have suggested that such an office be created.46 7
We did ask our drafters whether they had ever drafted or considered draft- ing rules of interpretation for courts to follow. A small number (5%) responded that they thought such rules would raise constitutional issues. Thirty-seven per- cent, however, said they had drafted or considered drafting such rules, and 24%
pointed to the literally thousands of "rules of construction" that already exist in the U.S. Code. Interestingly, Justice Scalia's new book claims that Congress
464. See MORGAN, supra note 166, at 12-15, 331; Brest, supra note 166, at 587-89.
465. See Bressman & Gluck, supra note 8.
466. See Shirley S. Abrahamson & Robert L. Hughes, Shall We Dance? Steps for Legis- lators and Judges in Statutory Interpretation, 75 MINN. L. REv. 1045, 1059-64 (1991) (de-
scribing similar offices in several states).
467. See Ginsburg & Huber, supra note 458, at 1432; Katzmann, supra note 53, at 687 (noting that Justice Stevens supported a similar proposal).
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rarely legislates interpretive rules.4 6 8 But federal courts already routinely fol- low many of these already-codified rules of construction, and there is arguably little difference between many of them and the court-created canons.469 As just one example, consider the similarity between the Employee Retirement Income Security Act (ERISA)'s famous "savings clause"-"[N]othing in this subchap- ter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities4A7°-and the presump- tion against preemption.
Scholars have exhaustively debated whether Congress has the power to impose rules of interpretation on the courts.47 1 To our knowledge, however, that debate has not addressed these rules of interpretation that Congress already imposes. Nor has that debate occurred within a framework of what theory should animate Congress's own conception of its role in the relationship. Any theory of statutory interpretation that depends at least in part on an interbranch dialogue-like most in current deployment-requires more attention to Con- gress's participation and obligations in that conversation.
In that vein, we turn our focus now from the doctrines that courts employ to the companion Article, which details other aspects of the drafting process that our respondents emphasized were essential to understanding how statutes are interpreted on the inside.
468. SCALIA & GARNER, supra note 13, at 245 (calling this question "academic" on the ground that "[a]part from the rule-of-lenity abridgments ... , the only common enactments directing judicial interpretation that we are aware of are those prescribing that the provisions of a statute 'are to be liberally construed"').
469. For examples of the Court's reliance on savings clauses, see Chamber of Com- merce v. Whiting, 131 S. Ct. 1968, 1973 (2011); and Williamson v. Mazda Motor of Am., Inc., 131 S. Ct. 1131, 1135-36 (2011). For examples of reliance on severability clauses, see Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2607 (2012) ("[The Medicaid stat- ute] includes a severability clause confirming we need go no further."); and Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686 (1987). For examples of reliance on preemption clauses, see Nat'l Meat Ass'n v. Harris, 132 S. Ct. 965, 970 (2012); Whiting, 131 S. Ct. at 1977.
ERISA's savings clause has been cited in at least twenty-six cases in the U.S. Supreme Court, fifty-three cases in state supreme courts, and 352 cases in the courts of appeals. Its preemption clause has been cited at least fifteen times in the Supreme Court, eighty times in state supreme courts, and 349 times in the federal courts of appeals. These numbers are de- rived from a Westlaw KeyCite search of 29 U.S.C. § 1144, limited to terms "savings" or
"preemption clause." For elaboration of this point, see Gluck, Federal Common Law, supra note 165, at 801-04.
470. 29 U.S.C. § 1144(b)(2)(A) (2011).
471. See, e.g., Rosenkranz, supra note 15 (arguing that Congress could legislate inter- pretive canons that are not constitutionally required).
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