Wednesday, June 09, 2010

Institutional Versus Linguistic Textualism

By Mike Dorf

As I observed in my FindLaw column and accompanying blog entry last week, Justice Scalia's allergy to legislative history appears to be stronger than the corresponding distaste felt by any of his colleagues.  Monday's decision in Kapruski v. Costa Crucierc, S.P.A. provides further evidence of distance between Justice Scalia and even the Court's other textualists--at least with respect to the felt need to make a point.  Kapruski unanimously holds that the question of whether a complaint that mis-names the defendant will count as timely under Federal Rule of Civil Procedure 15(c), should be resolved by asking whether the new defendant had notice of the suit during the period permitted for service under the statute of limitations (and the applicable tolling and service rules).  Justice Scalia joined Justice Sotomayor's opinion for the Court except for its reliance on the Notes of the Advisory Committee.

Here is the substance of Justice Scalia's objection:
The Advisory Committee’s insights into the proper interpretation of a Rule’s text are useful to the same extent as any scholarly commentary. But the Committee’s intentions have no effect on the Rule’s meaning.  Even assuming that we and the Congress that allowed the Rule to take effect read and agreed with those intentions, it is the text of the Rule that controls.
That needs a bit of explanation for those of you who aren't federal court litigators and forgot (or never learned) civil procedure.   Under the federal Rules Enabling Act, the original Rules of Civil Procedure and Amendments thereto come into effect as a result of three steps (more or less): 1) The Rules Advisory Committee--a body of lawyers, judges and legal academics--makes a study of the needs of the civil litigation system, soliciting input from the profession and the public, and then proposes new Rules or Amendments; 2) Such proposals then go to the Supreme Court, which usually (though not invariably), adopts new Rules or Amendments; but 3) At least six months before such new Rules or Amendments go into effect, the Supreme Court has to transmit them to Congress.  That way, if Congress doesn't like the change, it can pass legislation canceling it.

That procedure may seem odd, but it has long been understood as an acceptable variation on the traditional power of courts to adopt their own rules of civil procedure.  Thus, even though Justice Scalia dissented from the Supreme Court's 1989 decision in the Mistretta case on the ground that Congress cannot give a judicial administrative body the power to make what he regarded as substantive decisions about the criminal law, he has accepted that the Rules Advisory Committee process is permissible.  (Justice Scalia said so in his Mistretta dissent, accepting the authority of the Sibbach case.)

Now note what Justice Scalia is doing in his Kapruski concurrence: He is applying his brand of textualism to the Rules Advisory Committee process.  In his view, the Notes of the Rules Advisory Committee are analogous to the House or Senate Committee Report on a bill before enacted by Congress--a gloss that may or may not reflect the intent of the enactors, but, in any event, is not part of the enacted law, and not even relevant as any kind of authoritative source for resolving ambiguity in the law.

Yet even if one accepts Justice Scalia's critique of the use of legislative history in the construction of federal statutes, it is not obvious that the Notes of the Rules Advisory Committee are equally irrelevant to the construction of a Rule of Civil Procedure.   To begin, as I explained in my column, perhaps the best argument for textualism in statutory construction is to implement the principle that Congress cannot delegate power to a subset of itself.  Yet that principle has no bearing on rules promulgated by bodies wholly outside of Congress. Indeed, in other settings, Justice Scalia has been sensitive to this sort of difference.  Thus, he accepts the authority of the "Application Notes" that accompany the Sentencing Guidelines: Promulgated together with the Guidelines themselves and by the very same body (the Sentencing Commission), they can be treated as authoritative.

Now I suppose that one could develop an explanation for why the Rules Advisory Committee Notes should be treated as potentially misleading gloss analogous to Justice Scalia's view of legislative history, but what is interesting about his concurrence in Kapruski is that Justice Scalia doesn't seem to think that it is necessary to do so.  He appears to think that textualism is simply a product of what it means to read a text.  As he said fifteen years ago in Tome v. United States, when first espousing the view that the Rules Advisory Committee Notes should not be given any authoritative weight: "Like a judicial opinion and like a statute, the promulgated Rule says what it says, regardless of the intent of its drafters."  This is a linguistic account of textualism, not an institutional one (of the sort that public choice scholars and others have defended).

I don't think that this objective theory of language is necessarily a bad theory, but what makes it peculiar, in my view, is that Justice Scalia seems to think this is simply a matter of the nature of communication--even as intentionalists also think that their directly contrary view is simply a matter of the nature of communication.  Justice Scalia thinks that when Doe says "X" he means whatever his audience will reasonably understand "X" to mean, regardless of Doe's subjective intent, whereas Stanley Fish thinks that when Doe says "X" he means whatever Doe intends, regardless of what his audience will (reasonably or otherwise) understand.

To my mind, we have two different conceptions of the meaning of language at work here, one subjective and the other objective (or perhaps inter-subjective).  It is not especially useful for each side to insist that its conception of meaning is correct.  They would much more usefully argue over what consequences follow from adopting one or another conception of meaning in different contexts.  The institutional claims for and against textualism do that; the insistence on textualism as simply a matter of linguistics does not.


andy grewal said...

"Justice Scalia thinks that when Doe says "X" he means whatever his audience will reasonably understand "X" to mean, regardless of Doe's subjective intent, whereas Stanley Fish thinks that when Doe says "X" he means whatever Doe intends, regardless of what his audience will (reasonably or otherwise) understand."

That seems slightly off. Doesn't Scalia conclude that X means X, regardless of what Doe means, NOT that Doe means X if he says X?

Stated differently, Scalia treats statutes as having meaning independent of authorial intentions; he does not state that everyone necessarily says what he or she means.

Michael C. Dorf said...

Andy: Ironically, you and I are using "mean" in a different sense. In the language you quote, I was using "Scalia means X" as a shorthand for "the meaning of what Scalia says is X," not as "Scalia intends." I thought that was clear from the contrast between my use of "means" and "intends." Thus, I agree entirely that Scalia thinks language (not just statutes) has meaning apart from speaker's intentions. That was my whole point in contrasting his view with that of an intentionalist like Fish.

andy grewal said...

this is why debates over language are so much fun :). thank you for taking note of these issues.

Charles T. Wolverton said...

Now I'm confused. My assumption is that Prof Dorf's "intent" in the passage andy quoted was to contrast the general idea of "original public meaning" (also the idea to which I assume andy's "X means X" alludes) - independent of speaker's intent by definition - with the general idea of "speaker's intent meaning". Was that assumption wrong?

Michael C. Dorf said...

Charles: I don't understand your confusion. Your assumption was correct. I did indeed intend to contrast "public meaning" with "speaker's meaning."

Publius the Clown said...

Actually, I think that Justice Scalia is making an institutional argument.

In Tome, Justice Scalia says that "[i]t is the words of the Rules that have been authoritatively adopted—by this Court, or by Congress if it makes a statutory change." In Krupski, he relies on this opinion to say that, "[e]ven assuming that we and the Congress that allowed the Rule to take effect read and agreed with those intentions, it is the text of the Rule that controls."

In other words, even if the body that adopts a rule as law agrees with an interpretation, the interpretation is not binding if the interpretation is not itself adopted as law. This is an institutional principle.

So, for instance, if the text of an amended rule clearly leads to interpretation "x," but the Advisory Committee's Notes clearly indicate a preference for interpretation "y," the text of the rule would still control.

By contrast, in cases where the text was more ambiguous, the Advisory Committee's Notes would be particularly helpful—a proposition with which Justice Scalia would likely agree. In Tome, he says that the Advisory Committee's Notes are "ordinarily the most persuasive" commentaries (emphasis omitted).

Craig J. Albert said...

I've never been too perturbed over this type of textualism, although I do think that there's a meta-issue that underlies the Scalia mode of thinking, which I'll address later. The reason it doesn't bother me is that I think it's reasonable to ask the legislature, or the administrative agency, or the Advisory Committee/Supreme Court/non-vetoing Congress to write down exactly what they mean in the text of the law or regulation or rule, and not leave anything up to interpretation. Sure, asking them to do this makes for more cumbersome texts, but at least it yields the advantage of a precise result. (As you can probably guess, I'm not one who's easily offended by political rhetoric that says that the Tax Code is bad because it's really long.) I'm especially offended by the resort to things like committee reports, floor colloquies and mark-up transcripts precisely because they reflect the views only of those who participated, and not those of the body as a whole.

But here's the meta-issue. Assuming that there is an aura of reasons and values that surrounds every legislative and policy debate, that aura raises the possibility of a variance between text and context. If you're on average happy with the text, then adding context can only make you less happy. In other words, context can be dangerous to a worldview.

Michael C. Dorf said...

Publius, you are setting the bar mighty low for what counts as an "institutional" argument. You characterize Scalia's argument in Tome as follows: "even if the body that adopts a rule as law agrees with an interpretation, the interpretation is not binding if the interpretation is not itself adopted as law. This is an institutional principle."

That's an institutional principle only in the sense that in the particular example we have an "institution" doing the speaking or adoptive speaking. But what I meant by an "institutional" argument for textualism was an argument that relies on supposed characteristics the particular institution whose words must be construed. Examples include Prof. Manning's claim that Congress should not be able to delegate to a subset of itself and Judge Easterbrook's claim that members of Congress do the bidding of interest groups. Everything Justice Scalia says here comes from a general theory of language that says that the officially spoken (or written) words are complete in themselves. That is not an institutional argument; it's a general rejection of speaker's meaning in favor of public meaning.

I don't know what to make of your final paragraph, but it doesn't support the claim that Justice Scalia is making a claim about how to read text from particular institutions.

The full context for the line from the Tome concurrence you quote is the following: "Having been prepared by a body of experts, the Notes are assuredly persuasive scholarly commentaries - ordinarily the most persuasive - concerning the meaning of the Rules. But they bear no special authoritativeness as the work of the draftsmen, any more than the views of Alexander Hamilton (a draftsman) bear more authority than the views of Thomas Jefferson (not a draftsman) with regard to the meaning of the Constitution." Justice Scalia is making a point about ALL commentaries by authors of official text: It's simply not valuable as an expression of their subjective intent. Once again, this is a linguistic, not an institutional, claim.

Sam Rickless said...

Thanks for a most interesting post. I think that Andy and Charles are onto something here, and that your answers to their questions are very helpful. Let me see if I can restate your view, to see whether I have it right, and then make a comment.

Scalia's theory is not a theory of speaker-meaning, but rather a theory of semantic-meaning. Scalia doesn't care about what a person P means when P says "X" (this is speaker-meaning). Rather, Scalia's view is that what "X" (semantically) means is whatever P's audience (presumably, at the time of P's utterance) will reasonably understand P to mean. Fish's theory is also, I think, a theory of semantic meaning. Fish's view is that what "X" (semantically) means is whatever proposition P intended to communicate when P said "X".

Now you suggest that Scalia and Fish both think that theories of semantic meaning follow from basic facts about the nature of communication, that it is not productive to decide this question, and that it would be better to look at the consequences of adopting one or the other theory of meaning.

I'm not sure that it's the nature of *communication* per se from which Scalia and Fish purport to derive their theories of semantic meaning. But in any case, I have to agree with both of them that it matters greatly who is right about the nature of semantic meaning, and that a great deal of havoc will be caused in the law if we look to the *consequences* of theories of semantic meaning to determine their viability. For one thing, allowing judges to decide which consequences are good and which consequences are bad, and allowing them to weigh the good against the bad, will encourage a consequentialist cost-benefit approach to interpretation that is as undesirable as cost-benefit analysis generally in the law (especially on matters concerning *rights*).

The basic problem here is that neither Scalia nor Fish is right. Fish is wrong because what words mean is indeed independent of what those who utter them intend. Scalia's view is wrong because what the audience understands is, by itself, irrelevant to what words mean. If you tell me to get rid of nasty smells, and the word "nasty" in my dialect means "sweet", then Scalia's theory entails that the meaning of "nasty" in this case is the same as the meaning of "sweet". The meanings of words are a function of linguistic conventions. It is on these conventions that we rely when we communicate. What a speaker intends to say, and what an audience reasonably understands her to be saying, may be different from what the linguistic conventions dictate.

Rule of law values reinforce the independently plausible view that legally binding statements should be construed in accordance with linguistic convention. The point here is that producers and recipients of legally binding statements should be held to account based solely on what may be reasonably asked of them in the matter of interpreting items communicated by legal acts.
And what may be reasonably demanded of both producers and recipients is that they be cognizant of the relevant linguistic conventions. What may *not* be reasonably demanded of recipients is that they ferret out the intentions of the relevant producers; and what may *not* be reasonably demanded of producers is that they be able to predict what all recipients will reasonably understand their words to mean.

Michael C. Dorf said...


To be fair to Justice Scalia, I was the one who brought up the notion of audience meaning, not he. In general, his view would say that the linguistic conventions provide exactly the same meaning as the audience understanding. If the audience is, say, English speakers in the United States in 1791, then we will look to the linguistic conventions of those people. The only time we will see a difference between general linguistic conventions and the audience understanding is when the target audience consists of specialists, as when the law uses terms of art. And in that case, both Justice Scalia and I would say that looking to the understandings of the particular audience makes more sense than the general linguistic conventions. But that's not because we prefer subjective to objective meanings; it's because we have in play a different, more specialized, set of linguistic conventions.

Meanwhile, although I think speaker's meaning is vulnerable to the criticisms you make in many contexts, it is not always so. Suppose I own a property that I rent to a new tenant. The tenant mails me a $1000 check along with a note instructing me to "put this in escarole." Were I to follow the linguistic conventions I would take the check and put it in a field of endive, or perhaps on a bed of escarole. But that's nuts. I can infer from the context that my tenant intended for me to put the money in an escrow account; he just didn't know the correct word. Here I make the most sense of his communication by honoring (what is undoubtedly) his subjective intent, not the linguistic convention defining "escarole."

Now I think it's an interesting question whether communications from a legislature to citizens and courts is similar to my escarole/escrow example. As you say, there are reasons connected to the rule of law for favoring the linguistic convention view over the subjective intent view, but I do not regard them as slam dunks. More importantly, I do not see it as fruitful to insist--as Fish, Scalia, and you insist--that one of these views about how to discern meaning from words is simply correct and the others wrong. Each approach has costs and benefits, which vary by context. When I said that the decision of which approach should be used should be made based on consequences, I had in mind the very sorts of consequences to which you point: Which view, or what mixture of views, will best promote values such as the rule of law and democracy over time?

andy grewal said...
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andy grewal said...

(typo corrected)

Were I to follow the linguistic conventions I would take the check and put it in a field of endive, or perhaps on a bed of escarole.

Is it really the case that linguistic conventions require you to treat the check this way? I don't think that's what Scalia would say. Linguistic conventions tell you to read words so that they make sense. If I read something that says "a taxx is imposed of $10," I will interpret as imposing a tax of $10, not a taxx (whatever that is) of $10, regardless of subjective intent.

Additionally, I would contend that the words mean that a tax of $10 is imposed, even if it is shown that the speaker subjectively meant to say that "a tax is NOT imposed."

If someone believes that words have meaning apart from the intentions of the speaker, that doesn't necessarily require him or her to read everything literally or heed typos/errors. Thus, I don't think subjective intentionalism is necessary to avoid the "nuts" interpretation.

Michael C. Dorf said...


In my escarole/escrow example, one can infer that the speaker has made a mistake from the face of his statement. Anybody who wrote "escarole" in this context would have intended "escrow." But suppose a different example: I'm ill and a friend volunteers to shop for me. I provide him with a shopping list. One of the items on the list is "1/2 gal milk." Linguistic conventions would treat this as an instruction to purchase a half gallon of cow's milk, and that would correctly correspond with the meaning intended by most people who wrote this phrase. But my friend knows that I am a vegan and so, to honor my intentions, will purchase a half gallon of soy milk. Perhaps it wouldn't be "nuts" to purchase cow milk under these circumstances, but it would be very peculiar. That's because the point of the activity of shopping for someone else is to purchase the items he wants. Again, the example doesn't prove that intentionalism is the best approach to statutory interpretation. I think it typically is not. But one needs an argument about the nature and goals of statutory interpretation to show what methods should be used when.

andy grewal said...

In those circumstances, I can easily see why the interpreter should take your subjective intentions into account. But, as you perhaps hint, the goals of statutory interpretation are different than from grocery list interpretation. That is, if *not* following a list subjects me to higher taxes, fines, penalties, criminal sanctions and so on, then I think it is grossly inappropriate to require the interpreter to infer that soy milk was subjectively intended.

Absent some textual evidence (e.g., a heading saying "list of organic items to be purchased"), a person shouldn't be penalized for buying cow's milk rather than soy milk here. Ultimately, I think, the potential for punishment is what most significantly influences my view of statutory interpretation: If breaking the law gets you in trouble, shouldn't the laws be interpreted by reference to how a reasonable person would understand it, rather than through some psychoanalysis of the drafters?

Michael C. Dorf said...


yes, yes, a thousand times yes. now you are making what i have been calling an "institutional" argument against intentionalism. you are pointing to reasons why intentionalism in statutory interpretation is unfair, etc. my point all along has been that this is the area in which the contest should occur. it is precisely because intentionalism is prima facie plausible in some contexts that one needs a normative case against it. saying that "language doesn't work that way," as Justice Scalia says in the cases under discussion, doesn't cut it. other arguments that he and others make elsewhere are much more effective. that modest meta point is really ALL i've been arguing here.

andy grewal said...

Great. Thanks again for bringing attention to these issues. These types of discussions are probably why Scalia continues to state his objection to meaningless footnotes over and over again; inevitably, someone new will wonder "why" and perhaps be alerted to the debate over interpretation methodologies.

Publius the Clown said...

Hi, Professor Dorf—We do seem to be disagreeing on the meaning of "institutional," and I'll gladly defer to your suggestion that the literature on the subject uses your definition. So let me set aside my statement that Justice Scalia's textualism here is institutional. My main intent was to respectfully disagree with your argument that Justice Scalia's textualism is "linguistic"—that Scalia believes, as you put it in your blog post, that "textualism is simply a product of what it means to read a text," or, as you put it in your comment, that he is using "a general theory of language that says that the officially spoken (or written) words are complete in themselves."

I agree with you that Justice Scalia "reject[s] . . . speaker's meaning in favor of public meaning." But I don't think his view arises out of a linguistic theory concerned with "the nature of communication" as illustrated in the Doe example. I suspect that he would consider the Doe linguistic debate to be incidental and irrelevant. Instead, his view is grounded in the institutional process by which a bill (or a rule) becomes law—hence his comment that "[i]t is the words of the Rules that have been authoritatively adopted." Scalia rejects speaker's (or drafter's) meaning out of deference to this process. The drafter's intent is not ratified (even if the drafter is Alexander Hamilton); only the text is ratified.

Scalia's textualism is highly formalistic—hence his statement that, even if the Supreme Court and Congress had read and agreed with the Advisory Committee's Notes, only the text of the Rule controls. I think that Scalia's view can be quibbled with in this regard, at least where the text itself is ambiguous. But my point is that his textualism arises out of what has been enacted into law, not out of a linguistic theory about the meaning of a text.

Michael C. Dorf said...

Publius: The language you quote could be read the way you read it, I agree. But that would not necessarily amount to a functional argument for textualism. It might just be that Justice Scalia thinks the only way to identify the "speech" of Congress is through the text of the laws it enacts. But then he would still need an argument for why other events in Congress aren't useful in discerning what Congress said when it did officially speak. In other places, Justice Scalia and other textualists have offered such an argument. Here, though, I read him as simply falling back on a view about language.

And now, onto Justice Souter (see next post).

Sam Rickless said...


Your reply was very helpful. Thank you. Just for the record, I would distinguish between what we might think of as formal scrivener's error and substantive scrivener's error. Your escarole example is of the former, rather than the latter, variety. In brief, formal error arises in case of an obvious typo. Substantive error arises when the typo is not obvious. Rule of law values suggest that intentionalist interpretation is appropriate in the case of formal errors, but not in the case of substantive errors. Not all typos should be treated equally.

I have argued in print that different interpretive approaches are appropriate in different circumstances, in particular in response to features of language that are well known to philosophers of language: ambiguity, vagueness, and context-sensitivity. So I do not think that we are far apart here in practice. Perhaps not even in principle. The details are in "A Synthetic Approach to Legal Adjudication" (San Diego Law Review, 2005).



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