The Importance of Other Statutes in Statutory Interpretation

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6 Responses

  1. Kirsten says:

    Thanks for the useful post. I haven’t read the case yet, but may add it to my Spring Leg. syllabus. One more answer (entirely consistent with yours) as to what the Court is doing when it averts to other statutes and their prior interpretations:

    Code consistency arguably makes it easier for legislative drafters and enacters to predict the interpretive consequences of particular word choices. This is already an expectation of many repeat players on Capitol Hill. When I was first involved in legislative drafting (circa 2001), more than once I proposed text that (to me) seemed much, much clearer than other proposed language that had been chosen for insertion into bill text. I quickly learned the reason for preferring the language that was opaque and awkward: It was a cut-and-paste from a ‘sister’ statute that had been interpreted in desired ways by courts or agencies.

    One problem for this argument of course is that the SCT is not consistent in adhering to Code-like readings over time. (For example, some cong’al bill drafters and enacters may have relied on the SCT caselaw on implied-private-rights-of-action to their detriment.)

  2. TJ says:

    Good issue. I think the impetus goes further than just making the US code more consistent for its own sake. Ours is a system of reasoning by analogy, and part of the rationale is that if a system works for one statute, it probably works for another. For example, almost every state has a slightly differently worded Statute of Frauds. But courts over the centuries have largely figured out the right balance for various issues regarding when stuff has to be in writing. Adopting a different balance has the disadvantages of (1) introducing exotic concepts and making everyone learn more law, and (2) probably achieving less good outcomes under a “if its not broken, don’t fix it” philosophy. So while a legislature could certainly impose a different rule (e.g. the UCC for sales of goods), courts probably like their existing regime, and so anything that seems analogous will get shoehorned under the old rule absent a clear statement to the contrary.

  3. Hillel Y. Levin says:


    I am in total agreement with you, but I think that this is part of a much larger principle of statutory interpretation: the search for horizontal coherence.

    When I think about this principle, I see it underlying lots of canons of interpretation and moves that the courts make. It explains the rule against surplusage, the rules of meaningful variation and consistent usage, the in pari materia rules, the common law as gap-filler rule, constitutional avoidance, and many others.

    The points is that the courts want statutes to make sense within the larger body of law. Therefore, looking to how other statutes have been interpreted in similar situations makes sense.

    Shapiro touched on this (as well as a principle that I call vertical stability, which also underlies several canons and interpretive tools) in an article published in the early 90s, I think. And Calabresi’s Common Law for the Age of Statutes makes the point that judges are unique in their perspective, in that they see the entire body of law as one relatively coherent whole.

    I’ll only add that I think it is fair to critique this approach as based on a fiction that there IS a coherent whole. After all, WHO SAYS that the way different statutes treat this question has to be the same? So what if it is different? And maybe congress never thought about it, or doesn’t care either way? The response to this would be that in the absence of real evidence that congress wanted it to be incoherent, the courts should assume that there is coherence. And, as Kirsten points out, it serves as a tool to discipline congress.

  4. Anita Krishnakumar says:

    Thanks for all of the terrific comments!

    I especially agree with Hillel that this approach of referencing other statutes is part of a much larger principle of seeking to ensure horizontal coherence – one that also favors interpreting individual statutes in light of the common law, background constitutional principles, etc. I talk about this at length in my recent paper on the Roberts Court’s approach to statutory interpretation and distinguish it from an approach that is much more individual-statute focused.

    I also agree with Hillel’s criticisms of the Code coherence approach. I would only add that adherents of this methodology probably would defend it on the grounds that even if a Code coherence (or larger legal landscape coherence) approach is based on a fiction of sorts (as Scalia acknowledges a bit in his Matter of Interpretation), it is part of the court’s/judge’s job to make sure that law as a whole is sensible, consistent, and coherent.

  5. JR says:

    A recent Harvard Law Review case comment makes a similar point: