Charles F. Capps (Arizona State University (ASU) – Sandra Day O’Connor College of Law) has posted Legislative Intention on SSRN. Here is the abstract:
The communicative intention of the legislature is the lodestar of statutory interpretation. But despite the large, interdisciplinary literature on the topic, courts and scholars still struggle to make sense of it. On the one hand, ascribing an intention to the legislature that is distinct from the intentions of the legislators seems metaphysically extravagant and incompatible with the legislators’ authority. On the other hand, ascribing an intention to the legislature that is the same as the intentions of the legislators seems impossible: it seems that, normally, there is no communicative intention shared by a majority.
This Article locates the solution in the interaction between the ways in which multimember speakers and multimember audiences complicate the basic Gricean model of communication that provides the foundation for modern linguistics. Together, these complications enabled legislators and their audiences to coordinate around a convention for interpreting statutes, somewhat like how members of a linguistic community coordinate around the conventions that constitute the language. The convention is to treat legislatures as if they operated like simple rule-making groups, reaching first-order agreement on a rule and tailoring their decree to communicate it. This convention enables legislators to achieve second-order agreement without first-order agreement. They can share the intention to communicate the set of rules, whatever they are, that they most plausibly agreed to communicate on the assumption that there was a set of rules that they agreed to communicate.
The solution has important implications for constitutional and statutory interpretation. It implies that legislative history is relevant to statutory interpretation as evidence of the first-order agreement that the majority most plausibly reached on the assumption that the majority reached a first-order agreement. It implies that canons of statutory interpretation should be used exclusively for the purpose of tracking the communicative intention most plausibly attributed to the majority. And it supports intended-meaning originalism in constitutional interpretation while suggesting an interesting rapprochement between it and other forms of originalism.
Highly Recommended! Download it while it’s hot! This is a deep and important paper. For an approach to these issues that is somewhat different, see Pragmatics and Textualism.
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