Ask the author: Chief Judge Katzmann on statutory interpretation
on Oct 27, 2014 at 8:00 am
Chief Judge Robert A. Katzmann
The following is a series of questions posed by Ronald Collins on the occasion of the publication of Judging Statutes (Oxford University Press), by Chief Judge Robert Katzmann of the U.S. Court of Appeals for the Second Circuit.
Welcome, Chief Judge Katzmann. Thank you for taking the time to participate in this Question and Answer exchange for our readers. And congratulations on the publication of your latest book and for all the attention it has received, including your C-SPAN interview with Brian Lamb, a review essay by retired Justice John Paul Stevens, commentaries by Jeffrey Toobin (The New Yorker) and Norman Ornstein (The Atlantic), and Tony Mauro’s story in The National Law Journal.
Question: You have long been concerned with the relationship between courts and Congress, this from the perspective of a trained political scientist, academic, and judge. How did you become interested in the subject?
Katzmann: My interest in courts and Congress goes back quite a while, from the time I was very young in my career. In 1984, Judge Frank M. Coffin — then chair of the U.S. Judicial Conference Committee on the Judicial Branch, a committee concerned in part with enhancing inter-branch understanding — asked if I might assist the Committee in developing an agenda that would examine past, present, and future relations between the courts and Congress. I was then doing interdisciplinary work (having a Ph.D. in government from Harvard and a J.D. from Yale) at the Brookings Institution. The opportunity to work with Judge Coffin was irresistible. He was a former legislator, someone I greatly admired as a judge. That is why I was so attracted to the idea of becoming involved with him in matters vital to an independent judiciary. That led to a series of projects, books, and articles over the next fifteen years, while I was at Brookings, Georgetown, and the Governance Institute.
Question: How did your training in law and political science affect your approach?
Katzmann: At Harvard I learned from some extraordinary scholars, public intellectuals, and government officials, including Daniel P. Moynihan, James Q. Wilson, and Richard E. Neustadt. They were concerned with practical governance – with understanding how institutions operated in practice, not just in theory. Making government more effective became the focus of my work in a series of writings in my pre-bench days. With my background in political science, I was of the soak-and-poke school; I would try to learn first hand about the institutions I was studying, and then to marinate myself in those institutions so that I could understand their challenges.
Question: Why this book now?
Katzmann: An important part of a judge’s responsibility is interpreting statutes, whether it be the laws of Congress or those emanating from state legislatures. My focus is on the work of the federal judge dealing with federal statutes. The methodology of interpretation when the words of a statute are ambiguous – whether to stick to the text or go beyond the text to such aids as legislative history – can affect the outcomes in cases. There is also the important matter as to whether Congress’s meaning has been interpreted correctly. Energized by Justice Antonin Scalia’s assault on legislative history, there has been much debate in the past few decades over how best to interpret statutes.
Having been a judge for fifteen years, and having long had an interest in relations between courts and Congress, I thought the time was right for me to return to the subject I had studied in my pre-bench days. In reviewing the literature over the last fifteen years, I found that although there has been considerable ink spilled on how judges should interpret statutes, what was generally lacking was attention to how Congress works – what the legislative branch thinks is important in understanding its statutes.
Statutory interpretation thus became the subject of my Madison Lecture at New York University School of Law. At the suggestion of Adam Liptak of The New York Times, I expanded the lecture into a book, the resulting Judging Statutes.
Question: What do you want the reader to take away from the book?
Katzmann: The takeaway is that in our constitutional system in which Congress, the people’s branch, is charged with enacting laws, how Congress makes its purposes known — through text and reliable materials — should be respected. It is a bipartisan perspective within Congress that courts should consider reliable legislative history and that failing to do so impugns Congress’s work process. The experience of executive agencies in interpreting statutes can also be useful to courts. And practical ways should be pursued to further the objective of promoting statutory understanding.
Question: You worked with the late Senator Daniel Patrick Moynihan, and in 1998 you edited a book in his honor. Can you say a few words about how your experience with the senator shaped your thoughts on courts and the legislative process?
Katzmann: Were it not for Senator Moynihan I would not be on the federal appellate bench. When I was twenty-one years old, I had the privilege of taking a one-on-one tutorial with then Harvard Professor Moynihan in preparation for my Ph.D. oral exam. For nearly three decades thereafter, mostly while he was in the Senate, I had a close association with him. He gave me the opportunity to become involved in a variety of matters dealing with Capitol Hill and the other branches of government. For all concerned with good governance, he remains the gold standard.
From Senator Moynihan I learned about the strength and fragility of our institutions, about social science and social policy, about the need for humility about what we know and what we can achieve. He liked to say that you’re entitled to your own opinion, but not to your own facts. He would quote the philosopher Georges Bernanos: “the worst, the most corrupting of lies are problems poorly stated.” He wanted to know what works, what the consequences and unanticipated consequences of proposed policies might be, and whether the data supported those policy proposals.
Senator Moynihan treated everyone with respect; he reached out across the aisle where he enjoyed genuine friendships. He was concerned not with partisan advantage, but with working together to achieve what was best for the greater good. Senator Moynihan had a searing intellect, and could see connections that others could not imagine.
Question: In Chapter 5 of your book, you provide the reader with three statutory opinions you wrote followed by opinions by other appellate courts and their interpretations of the same statutory text you construed. You also provide the reader with the Supreme Court’s response to all of this, even when a majority reversed you. Tell us a little bit about your thinking there.
Katzmann: I wanted to give the reader, especially the non-lawyer, in an accessible way, a sense of how judges interpret statutes. It seemed to me that providing three actual cases I decided would be the best vehicle to do so. I leave to the reader whether my panel was right or not. But hopefully, the reader will have a better understanding of the thought processes and methodology used by appellate judges.
To give a sense of the range of cases before a judge interpreting ambiguous statutes, I thought it would be of interest to look at a case that showed the limits of simply relying on text; another that showed the importance of understanding statutory purposes; and still another, the uses of legislative history. By offering examples of cases reviewed by the Supreme Court, including when I was reversed, I sought to give the reader a complete perspective on different approaches to interpreting statutes.
Question: In a recent program at the Georgetown University Law Center, you said: “To disregard legislative history is to impugn the integrity of the legislative process.” Is that a serious problem today, and if so, why?
Katzmann: Respecting Congress’s work product is a way for courts to foster inter-branch relations. There will certainly be disagreements from time to time about outcomes reached in particular cases, but by being respectful of Congress’s work-product, courts reduce the grounds for needless tension that could spill over as Congress deals with the judiciary.
Question: With ever-increasing frequency, modern legal thought tends towards this or that school of interpretation, be it texualism or purposivism. Say a few words about how your book navigates the controversial waters of, as you term it, “grand theory.”
Katzmann: In my experience, the judge’s work in interpreting statutes takes place not on the lofty plane of grand, unified theory, but on the ground of practical, common sense inquiry. In approaching the interpretive task, a judge can use several tools, including: text, statutory structure, history, word usage in other relevant statutes, common law usages, agency interpretations, dictionary definitions, technical and scientific usages, lay usages, canons, common practices, and purpose. The judge pulls from the interpretive toolbox those instruments that can help extract what the statute means in light of congressional purposes. The toolbox can help the judge, for example, appreciate the institutional context that may serve as a guide to understanding a statute’s meaning.
Statutes vary in design and substance, and so the interpretive task may change and the tools used may vary depending on the particular statutory issue at hand. As Justice Stephen Breyer has pointed out, most judges are neither wholly textualists nor purposivists (that is, seekers of purpose). Purposivists tend not to go beyond the words of an unambiguous statute; at times, textualists look to purposes and extra-textual sources such as dictionaries. What sets the two apart is a difference in emphasis and the tools employed to find meaning.
Especially when interpreting ambiguous statutes, I find legislative history in reliable form helpful in understanding what Congress tried to do, what the purposes behind the statute were. Textualists, such as Justice Scalia, have helpfully pointed to some of the misuses of legislative history. But the solution is not to jettison legislative history altogether, but to use reliable legislative history as Congress would have us do.
Question: You write about a project of statutory housekeeping and the idea of appellate courts transmitting their statutory opinions to the House and Senate for its information. How many circuits have done this and how successful has this project been?
Katzmann: The project on “statutory housekeeping” – aptly named by Ruth Bader Ginsburg – began with an invitation several years ago from the D.C. Circuit. Judge Coffin and I were asked to explore what happens in Congress after a statutory opinion is rendered by an appellate court. What I found in a study I undertook is that Congress was generally not aware of decisions in low-visibility cases, in cases where the losing parties are not likely to go to Congress for a statutory fix. To make a long story short, that ultimately led to the creation of a mechanism supported by the U.S. Judicial Conference, whereby circuits transmit to Congress for its information, without comment, published appellate statutory opinions identifying possible problems that bear on understanding legislative meaning – e.g., problems of grammar, ambiguities in language, etc.
As a transmission belt of communication, over the years the project has consistently won strong bipartisan support in Congress from the chairs and ranking members of the judiciary committees. As they said: “These modest efforts have supplied pertinent and timely information to Congress that it might not otherwise receive,” including about “possible technical problems in statutes that may be susceptible to technical amendment; and, in any case, how statutes might be drafted to reflect legislative intent most accurately.”
The project’s principal purpose is not to produce legislative change, but to inform busy legislators and their staffs of possible technical problems in statutes. Within the judicial branch, Carol Messito of the Administrative Office of the U.S. Courts staffs the project, and Russell Wheeler, president of the Governance Institute (the organization that developed the project), has closely monitored it. Several circuits are participating, with the Seventh Circuit being the most active.
Question: When it comes to construing statutes, administrative agencies play an important role. How does that role inform what courts should do in construing statutes?
Katzmann: Agencies, as Columbia Law Professor Peter Strauss wrote many years ago, are generally the first – often the primary – interpreters of statutes. Given that courts afford considerable deference to agencies as to the interpretations of ambiguous statutes, it seemed to me instructive for courts to better understand how agencies make use of pre-enactment legislative history as judges consider what use they should make of legislative history.
Although there needs to be fuller empirical inquiry about the methodology of agency interpretation, anecdotal evidence suggests, not surprisingly, that agencies pay quite a lot of attention to legislative history. Agency officials are very sensitive to signals from the Hill, and pay close attention to language in committee reports. As I write in my book, it is unfathomable that a cabinet secretary would ignore a committee report directly bearing on how the statute should be implemented.
Question: What might be done to help address the interpretive problems posed by omnibus legislation that covers a wide and diverse range of subjects?
Katzmann: There is no question that large omnibus bills can pose significant challenges for judges charged with interpreting their provisions. That is all the more reason for the legislative branch to make legislative history more reliable. To better signal a statute’s meaning, legislative leadership could clearly identify legislative history that courts should take into account. For instance, where feasible, the floor managers of a bill could indicate what constitutes the definitive legislative history, including committee reports, floor statements and colloquies. Such signaling would simplify a court’s task in reviewing legislative materials.
Professor Steven Charnovitz has suggested that the enrolled bill (the final copy of a bill or joint resolution that has passed both chambers in identical form, signed by the appropriate House and Senate officers and submitted to the president for signature) could also be a vehicle for conveying legislative history. In other words, accompanying the enrolled bill would be an official listing of legislative history, although, of course, the president would not be asked to sign the legislative history.
Professor Charnovitz also suggested the use of THOMAS, an on-line resource of the Library Congress, launched by the leadership of the 104th Congress, to make federal legislative information freely available to the public. Under Congress’s direction, THOMAS could add a section, “Legislative History” that would consist, for example, of specific links to committee reports, relevant colloquies and floor statements, making it easier for courts to sift through such history.
Question: Is there anything the administrative staffs of the courts and Congress can do to increase mutual understanding of the legislative and judicial processes respectively?
Katzmann: To assist the judiciary in understanding Congress, some entity such as the Congressional Research Service of the Library of Congress, perhaps in conjunction with the legislative counsels’ offices in both legislative chambers, could sponsor periodic seminars for judges and law clerks about the legislative process, perhaps developing a manual and videos about the lawmaking process. A start on this task is a pamphlet for judges on legislative drafting conventions by M. Douglass Bellis, longtime member of the House legislative counsel’s office. Similarly, to help Congress understand how the courts work, the Federal Judicial Center and the Administrative Office of the U.S. Courts could develop programs for legislators and their staffs about how the judiciary functions. Optimally, such activities could be incorporated into orientation programs for new judges, legislators, and staffs.
Question: You propose that Congress consider adopting certain “default rules.” Can you say something about that? Can you give us an example?
Katzmann: A default rule would become effective when the legislative branch has not dealt with the particular issue in question in a specific substantive statute. For example, a statute may not explicitly provide for the time period in which a lawsuit must commence after the alleged violation of the law occurs. The failure to do so could lead to litigation, calling on courts to determine that time period. But a default rule enacted by Congress, as to civil statutes, solves the problem in circumstances where the specific law does not address the issue: “Except as otherwise provided by law, a civil action arising under an Act of Congress enacted after the date of the enactment of this section may not be commenced later than four years after the cause of action accrues.” Hence, the default position is triggered if a particular statute has not addressed the time limitations on the commencement of civil actions arising under it.
Question: Generally speaking, do you think law schools are doing enough to educate students about the legislative process and statutory interpretation? If not, what might they consider doing?
Katzmann: I believe that it is important for all law students to be taught about the workings of the legislative process; this is so essential if they are to make sense of statutes. That requires an understanding not just of law, but also of the nuts and bolts of the legislative process. Law schools have made great strides in recent years in offering, indeed, requiring courses on legislation and the administrative state.
More than a generation ago Hans Linde and George Bunn wrote a pioneering textbook that combined the studies of legislation and the administrative process. There are now a number of textbooks specifically on legislation, with William Eskridge and Philip Frickey’s 1988 work a trailblazer in the field. Some years ago, I was chair of the legislation section of the American Association of Law Schools. When I think back then, and look at legal education now, I am encouraged.
Question: You have long urged improvements in the relationship between the courts and Congress, to improve the administration of justice. Is that possible in light of how ideologically divided Congress is? If not, where does that leave us?
Katzmann: Although members of Congress are divided about policy, I have been struck by how much they agree that the work product of Congress should be respected. And, as to the administration of justice, in my role as chair of the U.S. Judicial Conference Committee on the Judicial Branch – the very committee for which I began working on inter-branch relations with Judge Coffin – I am struck by the bipartisan support for a vital judiciary, for the fair and effective administration of justice.
