Making Our Democracy Work (16 page)

N
OW LET US
consider an approach that relies more heavily on purposes and consequences. To determine a provision’s purpose, the judge looks for the problem that Congress enacted the statute to resolve and asks how Congress expected the particular statutory words in question to help resolve that problem. The judge also examines the likely consequences of a proposed interpretation, asking whether they are more likely to further than to hinder achievement of the provision’s purpose. In doing so, a judge may examine a wide range of relevant legislative materials. Furthermore, the judge can try to determine a particular provision’s purpose even if no one in Congress said anything or even thought about the matter. In that case the judge (sometimes describing what he does in terms of the purpose of a hypothetical “reasonable legislator”) will determine that hypothetical purpose in order to increase the likelihood that the Court’s interpretation will further the more general purposes of the statute that Congress enacted.

An example based on an actual case will show how courts might use purposes and consequences in practice. A federal statute gives disabled children the right to a “free appropriate public education.” Pearl and Theodore Murphy have a son, Joseph, who suffers from severe learning disabilities. In September 1997 the Murphys, after receiving a specialist’s report that Joseph had a “near total incapacity to process language,” decided that the public school district had failed to provide him with the statutorily required “appropriate education.” The Murphys thought the school district should not have placed Joseph in classes with nondisabled students.
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The statute provides that parents who disagree with a school district’s plan for educating their disabled child can contest the plan before state administrative officials. The Murphys did so. The state
hearing examiner and an appellate administrator both eventually agreed that the Murphys were right and the school district should pay the cost of placing Joseph in a specialized private school. The school district, however, still hesitated to do so.
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The statute also provides that parents such as the Murphys can bring a lawsuit against the school district in a federal court. The Murphys did so and eventually won. The court ordered the district to pay for Joseph’s education at a private school.
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All these proceedings were expensive. The Murphys had hired an educational expert, who charged them $29,000 for her help. The courts later found that the expert’s services were well worth that price. But the Murphys, who were people of modest means, asked the school district to reimburse them for the cost not only of their lawyers but also of their expert. When the district refused, they asked the court to require the school district to pay.
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At this point the court had to decide whether it had the power to order the school district to reimburse the Murphys. The federal statute says that the court may “award” a prevailing party like the Murphys “reasonable attorneys’ fees
as part of
[
their
]
costs
.” The Murphys argued in court that the word “costs” includes the fees of experts they had to hire to support their case. The district argued that the statutory phrase did not include expert fees. That was the question of statutory interpretation that reached the Supreme Court.
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Does the word “costs” include the fees of experts? On the one hand, one can read the statute’s language as restricting “costs” to “attorneys’ fees” plus a few extra expenses, for example, court filing fees, while excluding the separate fees of experts. Courts have often interpreted the word “costs” when used in other rules and statutes in this way. On the other hand, one might read the word as including the “fees” of experts. Those fees do not differ radically in kind from attorneys’ fees. Indeed, attorneys themselves often hire experts and pass an expert’s charges on to the client as part of the attorney’s bill. Moreover, an expert’s fee is a “cost” to the client as the word “cost” is often used in everyday affairs.

It helps to examine the statute’s purposes. Overall, the statute seeks to make available to disabled children the kind of education that few
parents can afford. The statute more specifically seeks to create procedures (including court procedures) that will allow parents to dispute a school district’s claim that it is already doing so. To have any hope of success, parents must often turn to experts, who are expensive. Thus, reading “costs” as
excluding
expert fees, by requiring a winning family to pay those fees, could well place that education beyond the reach of a typical family even if that family shows it is entitled to receive that education. Consider this consequence in light of the statute’s basic purpose. Does it not hinder, interfere with, perhaps thwart, the statute’s basic purpose, namely, an appropriate education for each handicapped child?
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Yet we must go further. After all, Congress might have had a subsidiary money-saving purpose, in respect to legal costs for example. This is why it is important to examine the relevant legislative materials, such as the history of the debates in Congress that led to enactment of the legislation. In this case these materials strongly suggested that Congress intended for the district to pay these expert fees.

A report of a Senate-House conference committee (the joint committee to reconcile House and Senate versions of the bill and produce a final text) said that the statutory language includes reasonable “expenses and
fees of expert witnesses.”
Both houses of Congress unanimously adopted this report. The upshot is that an examination of purposes and consequences would lead the Court to interpret the statute in the way that members of both houses of Congress seemed to intend. It would produce an interpretation that furthered the basic purposes underlying the statute.
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A
S MY EXAMPLES
suggest, I believe a purpose-oriented approach is better than a purely text-oriented approach. Three sets of considerations, taken together, explain why I believe the Court is obliged to follow a purpose-oriented approach.
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First, judicial consideration of a statute’s purposes helps to further the Constitution’s democratic goals. In a representative democracy, legislators must ultimately act in ways that voters find acceptable.
But voters are unaware of the detailed language that legislators write. They can do no more than consider whether a legislator’s work corresponds roughly to their own views, typically expressed in terms of general objectives, say peace, prosperity, healthy environment, and economizing.

A legislator whose statute furthers a popular objective will seek credit at election time—at least if the statute works reasonably well. But suppose the statute does not work well. Then whom should the voters blame? If courts have interpreted the statute in accordance with the legislator’s purposes, there is no one to blame but the legislator. But if courts disregard the statute’s purposes, it is much harder for the voter to know who is responsible when results go awry.

Consider the disabled children’s education statute. Voters can easily understand what Congress sought to do: It sought to help disabled children, to provide them with a free appropriate education, and to create meaningful procedures enabling a dissatisfied parent to challenge a school board’s individualized education plan—all of which will cost the local school districts money. Voters can decide whether they favor these ends and evaluate a legislator accordingly. But what are voters to do when they discover that most parents, because they cannot recover experts’ fees, find the statute’s challenge procedures useless?

Voters do not know whom to blame. They do not read the texts or readily understand the reasoning of a text-based analysis. Legislators can point out that they thought (as their colleagues unanimously assured them) they supported a statute permitting reimbursement for those fees. By way of contrast, voters can understand purposes; and, where a statute furthers the legislators’ purposes, voters more likely know whom to hold responsible.

No single court decision will make a difference. But over time, where vast numbers of statutory provisions are at issue, the following generalizations seem fair. The more the Court relies on text-based methods alone to interpret statutes, the easier it will be for legislators to avoid responsibility for a badly written statute simply by saying that the Court reached results they did not favor. The more the Court seeks realistically to ascertain the purposes of a statute and interprets its provisions in ways that further those purposes, the harder it will be for the legislator to escape responsibility for the statute’s objectives, and the
easier it will be for voters to hold their legislators responsible for their legislative decisions, including the consequences of the statutes for which they vote.

Second, a purpose-oriented approach helps individual statutes work better for those whom Congress intended to help. The disabled children’s education statute offers dissatisfied parents the possibility of challenging a school board decision. An interpretation that denies those parents recovery of expert fees when they successfully challenge a board decision makes the challenge procedures difficult, perhaps impossible, for many parents to use. The result is to deny their children the education that the statute promises. Of course, a denial of expert fee recovery saves the school district money. But Congress did not suggest that it favored that result. Rather, the congressional reports and subsequent legislative votes indicate that Congress expected the contrary. The text-based interpretation undercut the statute’s ability to work effectively for parents.

Third, and most important, by emphasizing purpose the Court will help Congress better accomplish its own legislative work. Congress does not, cannot, and need not write statutes that precisely and exhaustively explain where and how each of the statute’s provisions will apply. For one thing, doing so would require too many words. Who wants statutory encyclopedias that spell out in excruciating detail all potential applications in all potential circumstances? Who could read them?

For another thing, linguistic imprecision, vagueness, and ambiguity are often useful, even necessary, statutory instruments. Congress may not know just how its statute should apply in future circumstances where it can see that future only dimly, and new situations will always emerge. Congress may want to consider only one aspect of a complex, detailed subject, an aspect that warrants a few general words that simply point a court in the right direction. Congress may want to use a general standard, such as “restraint of trade,” while intending courts to develop more specific content on a case-by-case common-law basis. Or, the English language may lack words that succinctly express, say, the necessary quantitative measurement, as, for example, when Congress seeks to punish more severely those who commit “serious” or “violent” crimes.
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In these circumstances, congressional drafting staffs may well use general or imprecise words while relying on committee reports, statements of members delivered on the floor of Congress, legislative hearings, and similar materials to convey intended purposes, hence meaning, scope, and reference. Congress can use that drafting system if, and only if, it can count on the courts to consider legislative purposes when interpreting statutes and look at the associated legislative materials to help determine legislative purpose. When courts do so, drafters, legislators, and judges can work together. They act in tandem with Congress, carrying out the legislators’ objectives in even the most complex statutes, such as those dealing with bankruptcy, transit system mergers, or pension benefit guarantees.

Without such teamwork, legislators and their staffs would face a drafting task that is daunting and even impractical. The drafters would have to think in advance of every likely combination of circumstances that might arise, perhaps compiling and enacting into law lengthy lists of all possible circumstances. And they would have to learn how courts would interpret each word in the much more lengthy statute, say by looking at past cases where courts have interpreted similar words in related contexts. Were there a single drafting staff for all statutes, were judges able to train the drafters, were we able to develop linguistic codes that legislators and judges would uniformly apply, perhaps we could reach a kind of interpretive consensus that would work. But in the absence of some such linguistic utopia, a text-oriented interpretation of ambiguous statutory language that deliberately avoids a search for purpose too often means an interpretation that, from the perspective of a congressional legislator, does not work properly.

In saying all this, I recognize that the political complexion of Congress can change. By looking at the purposes of those who once enacted a statute as I would do, the Court might produce an interpretation that a more recent Congress would disapprove. But in doing so, the Court emphasizes the need for
legislation
, to depart from an earlier statute, and it thereby also assures the present Congress that their own intentions will be honored later when the Court considers the meaning of a statute that they have passed.

My point, of course, is that the better, simpler way for courts to help
Congress is by looking for purposes. Drafting staffs can then, and more easily, indicate clearly (although not necessarily in the statute itself) the statute’s relevant purposes and objectives. They, like Congress, can then assume that the courts, partners in the enterprise, will interpret a statute’s open language accordingly.