Document Type

Article

Publication Date

8-15-2016

Abstract

Legislative intent is a fiction. Courts and scholars accept this by and large. As this Article shows, however, both are confused as to why, and, more importantly, as to what this entails.

This Article argues that the standard account of why legislative intent is a fiction—that Congress is a “they,” not an “it”—rests on an overly simplistic conception of shared agency. Drawing on contemporary work in philosophy of action, this Article contends that Congress as such has no intentions not because of difficulties in aggregating the intentions of individual members, but rather because Congress lacks the sort of delegatory structure that one finds in, for example, a corporation. This reformulated argument for intent skepticism reveals that recent attempts to rehabilitate actual, historical intent—all of which rest upon a delegatory model—are misguided.

Second and more importantly, this Article argues that the fictional nature of legislative intent entails that, contrary to a recent, influential wave of scholarship, interpreters of legislation have little reason to care about the fine details of legislative process. It is platitude that legislative text must be interpreted “in context.” As this Article explains, however, “context” consists of information salient to author and audience alike. This basic insight from philosophy of language necessitates what this Article calls the conversation model of interpretation, whereby legislation is treated as having been written by legislators for those tasked with administering the law (e.g., courts, agencies) and, critically, those on whom the law operates (e.g., citizens). An interpreter thus occupies the position of conversational participant, hearing statements directed at her and other participants. So situated, that interpreter reads legislative text in a “context” consisting of information salient both to members of Congress and to, for example, citizens.

The conversation model displaces what this Article calls the eavesdropping model of interpretation, the prevailing paradigm among both courts and scholars. When asking what sources of information an interpreter should consider, courts and scholars—both textualists and purposivists—reliably privilege the epistemic position of members of Congress. The result is that legislation is treated erroneously as having been written by legislators for legislators. An interpreter is thus relegated to eavesdropper, left to listen in on the conversation. So situated, that interpreter reads legislative text in a “context” consisting of information salient to members of Congress in particular. This tendency is plainest in recent scholarship urging greater attention to legislative process—the nuances of which are of high salience to legislators, but plainly not so to citizens. As this Article explains, attending to “how Congress really works” could make sense if Congress had unexpressed intentions to discover. Because legislative intent is a fiction, however, Congress has no such hidden intentions to find.

Comments

66:5 Duke L.J. __ (forthcoming 2017).