Book Review: Cross’s The Theory and Practice of Statutory Interpretation

Frank B. Cross, The Theory and Practice of Statutory Interpretation, Stanford University Press, 2009.

True to its title, Frank Cross’s ambitious book seeks to bridge the gap that long has existed between scholarly theorizing about statutory interpretation and the actual, on-the-ground judicial practice of construing statutes.  The book’s first few chapters engage in excellent analyses of four competing theories of statutory interpretation—textualism, legislative intent, interpretive canons, and pragmatism.  Cross examines each of the theories in detail, reviewing and critiquing the most prominent arguments made in favor of and against each approach.  These chapters are extremely well-done; they not only provide a virtual primer on the most prominent works in the field of statutory interpretation, but are infused with Cross’s own incisive take on the standard debates.

The second half of the book turns to reporting the results of an empirical study that Cross conducted analyzing a sample of 120 cases from the Supreme Court’s 1994 through 2002 terms.  Cross’s study was designed, inter alia, (i) to measure the Court’s and individual Justices’ patterns of canon use for consistency with the different theoretical approaches; (ii) to test the various interpretive methodologies’ ability to constrain ideological decision-making; and, to a lesser extent, (iii) to assess the interpretive methodologies’ relative ability to command consensus on the Court.  To this end, Cross coded for judicial reliance on several specific canons and interpretive tools and then grouped these canons and tools into four categories corresponding to the interpretive theories—i.e., textualism, intentionalism, canons, and pragmatism.  He then measured the Court’s rates of reliance on each category of interpretive tools, the correlation between individual Justices’ ideological preferences and the ideological outcomes of cases in which the Justices referenced interpretive tools within each category, and the relationship between the interpretive tools used and the level of consensus reached by the Court in particular cases.  Cross’s empirical findings can be summed up as follows:

Patterns of canon use: No one interpretive approach seems to predominate on the Supreme Court.  Rather, the Justices appear to be “pluralist” in their approach to construing statutes—that is, willing to pick and choose among different interpretive tools in different cases.  The Court does, however, tend to rely more frequently (i.e., in a majority of cases) on textualist and intentionalist tools than on canons or pragmatic tools (less than 10% of the cases).  Finally, textualism and intentionalism do not seem to be at war in actual practice, as a majority of cases studied relied on both textualist and intentionalist tools in the same opinion.  (This latter finding is consistent with the findings made in earlier empirical studies conducted by Nicholas Zeppos and Jane Schacter)

Ideology: Contrary to conventional wisdom (at least that propounded by several textualist thinkers), the use of textualist interpretive tools does not seem to have any constraining effect on ideological judging.  In fact, in the cases studied by Cross, the plain meaning standard seemed to be ideologically manipulable—in that the probability of a Justice reaching a liberal or conservative outcome using the plain meaning standard corresponded rather closely to the Justice’s overall ideological preferences.  Use of legislative intent, by contrast, yielded more liberal outcomes from every Justice, including those with conservative ideological preferences.  Perhaps most surprisingly, pragmatism was the theoretical approach that seemed least susceptible to ideological manipulation—with the exception of the absurdity doctrine, which the Justices did employ in an ideological manner.

Consensus: Cross found that “only pragmatism showed a statistically significant effect on consensus” and that its association “was quite strong.”

Cross’s book provides many valuable insights and findings—in my view the most interesting are his findings about the correlation between ideological outcomes and the use of textualist versus pragmatic interpretive tools.  These findings fly in the face of conventional thinking about statutory construction:  It is decidedly counterintuitive (and a little mind-boggling) to think that the written words in a statute’s text somehow operate as less of a constraint against ideological judging than do judicially-selected pragmatic norms about the consequences of a particular interpretation.  And this is the source of my only real quibble with Cross’s book—his findings about ideological constraining effects are so shocking that I would have liked to hear more about them.  I would have liked to read case-specific examples of how particular pragmatic tools corresponded to decisional outcomes that were inconsistent with the Justices’ ideological preferences.  I also would have liked to hear Cross hypothesize about why the absurdity doctrine proved more ideologically manipulable than did other pragmatic tools of construction.  Relatedly, I would have liked to see more information about the specific pragmatic tools for which Cross coded; his book mentions the absurdity doctrine and deference to the executive branch (including use of the Chevron doctrine), but it is unclear what other kinds of deference Cross coded for.  If, as seems likely based on his description, Cross did not count as pragmatic tools references to the justness of a result, the practical difficulty of implementing an interpretation, and similar consequentialist reasoning, then his pragmatism variable may not fully have captured the interpretive approach scholars have had in mind when theorizing about the ideological manipulability of pragmatic interpretivetools.  I similarly would have liked to see a few case-specific examples of Cross’s findings regarding the ideological manipulability of textualist interpretive tools.  Cross tells us that the Justices often “differed considerably” over the application of the plain meaning standard in the same case, but a few examples would have been useful—especially in contrast to examples of the Justices’ use of pragmatic interpretive tools.

To be fair, Cross describes the findings in his study as tentative—largely because they are based on a small sample size of cases—and this may, in the end, account for his failure to delve more deeply into the implications of his results.  In sum, Cross has written an excellent book whose only flaw may be that it leaves the reader hungry for a little more explanation (or even speculation) about its intriguing findings.

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Anita L. Krishnakumar is a law professor at St. Johns School of Law.  The focus of her scholarship is on legislative process and statutory interpretation.

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