Statutory Interpretation From the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II

Abstract

This is the second of two Articles relaying the results of the most extensive survey to date of 137 congressional drafters about the doctrines of statutory interpretation and administrative delegation. The first Article focused on our respondents' knowledge and use of the interpretive principles that courts apply. This second Article moves away from the judicial perspective. Our findings here highlight the overlooked legislative underbelly: the personnel, structural, and process-related factors that, our respondents repeatedly volunteered, drive the details of the drafting process more than judicial rules of interpretation. These factors range from the fragmentation caused by the committee system, to the centrality of nonpartisan professional staff in the drafting of statutory text, to the use of increasingly unorthodox legislative procedures-each of which, our respondents told us, affects statutory consistency and use of legislative history in different and important ways. Our respondents also painted a picture of legislative staffers in a primary interpretive conversation with agencies, not with courts, and as using different kinds of signals for their communications with agencies than courts consider.