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The Audiences of Statutes

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The Audiences of Statutes \\jciprod01\productn\C\CRN\105-1\CRN104.txt unknown Seq: 1 4-MAY-20 8:04 THE AUDIENCES OF STATUTES David S. Louk† Although a maxim of statutory drafting is to identify the relevant audience and draft so that the audience can “get the message,” conventional theories of statutory interpretation often overlook important considerations about how statutes communicate and delegate to a diverse range of intended audiences. Statutes exist to change the conduct and behavior of many kinds of intended audiences, including administra- tive agencies, state and local governments, law enforcement officers, corporations, interest groups, lawyers, and laypeople. Influenced by lessons from the philosophies of law and lan- guage, this Article contends that judicial statutory interpreta- tion serves an important yet underappreciated role in providing a legal grammar for how other legal audiences are expected by law to understand, implement, and conform their conduct to the law. If so, then prevailing judicial methods of interpretation may not be equally suitable for all statutory audiences. This is because diverse audiences have distinct roles, interests, and capabilities, and statutes communicate to, and alter the conduct of, relevant audiences in very differ- ent ways. Some statutes set out specific rules that apply di- rectly to the conduct of lay audiences, others conscript qualified third parties to transmit legal knowledge to affected members of the public, and others furnish open-ended man- dates for governmental audiences to implement through sub- sequent regulation and enforcement. Yet dominant interpretive theories like textualism and purposivism often seem to treat judges as the chief audience for statutes, and therefore call for the same methods of interpretation regard- less of the statute or its intended audience(s). † Academic Fellow, Columbia Law School; Ph.D., Jurisprudence & Social Policy, UC Berkeley 2019; J.D., Yale Law School 2015. For excellent comments, suggestions, and conversations at various stages of this project, my sincere thanks to Richard Briffault, Wendy Brown, Bill Eskridge, Abbe Gluck, Jane Gins- burg, Philip Hamburger, Daniel Hemel, Kinch Hoekstra, Bert Huang, Olatunde Johnson, Robert A. Katzmann, Jeremy Kessler, Chris Kutz, Yael Lifshitz, Jamie Macleod, Shaun Ossei-Owusu, Nick Parrillo, Christina Ponsa-Kraus, David Pozen, Matt Shapiro, Larry Solan, Sarah Song, Peter Strauss, Emily Stolzenberg, and the participants at the Columbia Law School Associates & Fellows Workshop, the Fordham Law School Legislation Roundtable, and the Yale Law School Doc- toral Conference. Evan Rocher furnished thorough and terrific research assis- tance. Finally, my deep gratitude to B. for support, advice, and guidance throughout this process. All errors are my own. 137 \\jciprod01\productn\C\CRN\105-1\CRN104.txt unknown Seq: 2 4-MAY-20 8:04 138 CORNELL LAW REVIEW [Vol. 105:137 This Article argues that considerations of statutory audi- ence and canons and methods of interpretation are necessa- rily linked, and it offers the first extensive account of the relationship between judicial statutory interpretation method- ology and statutory audience. This ambit is both descriptive and normative. Descriptively, this Article identifies the subtle ways in which courts already implicitly, if inconsistently, seem influenced by statutory audience considerations. Courts invoke substantive canons of interpretation that can be under- stood in part as audience canons: the rule of lenity (for laype- ople), interpretive deference (for administrative agencies), clear notice rules (for states as Spending Clause counterpar- ties), and mistake-of-law defenses (for deficient taxpayers but not criminal defendants). These substantive judicial doctrines recognize that statutes communicate to, and alter the behavior of, different audiences in distinctive ways. Yet when it comes to choices of interpretive methods, courts often employ one- size-fits-all approaches to interpretation, drawing (or not drawing) on the same preferred semantic and syntactic ca- nons of construction, evidence of linguistic usage, and other sources of statutory meaning regardless of the statute or its audience(s). Courts do so even when this approach may un- dermine both the normative goals that motivate audience-ori- ented substantive doctrines as well as the efficacy of the statutory scheme itself. Normatively, this Article contends that many disagree- ments in statutory interpretation may be attributed to conflicts in prioritizing competing statutory audiences, because many statutes are directed at multiple and distinct audiences. To demonstrate this, this Article revisits prominent statutory in- terpretation cases in financial fraud, environmental, and civil rights law from the standpoint of statutory audience. Viewed through this lens, canonical statutory interpretation debates that typically register as disputes about method can also be understood as disagreements about audience. Indeed, judi- cial opinions often seem written with distinct (and conflicting) statutory audiences in mind. This Article concludes that ex- plicitly addressing audience considerations in interpretation can highlight the important normative stakes of statutory in- terpretation theory; enhance the efficacy of statutes; offer les- sons for legislative and regulatory drafting; and may even provide a way forward beyond debates between textualism and purposivism. INTRODUCTION ........................................... 140 R I. STATUTORY MEANING AND AUDIENCE ................. 149 R A. Judging Statutes ............................. 150 R B. Enacting and Implementing Statutes .......... 152 R C. Interpreting Statutes ......................... 157 R \\jciprod01\productn\C\CRN\105-1\CRN104.txt unknown Seq: 3 4-MAY-20 8:04 2019] THE AUDIENCES OF STATUTES 139 II. THE AUDIENCES OF STATUTES ....................... 159 R A. The Audiences of a Statute ................... 161 R B. Ordinary Audiences .......................... 164 R 1. Ordinary Meaning(s), Prototypical or Common .................................. 168 R 2. Ambiguity and the Rule of Lenity .......... 173 R 3. Extratextual Meanings..................... 176 R 4. Legal Moralism as Contextual Evidence of Meaning .................................. 178 R C. Reliance on Influential Intermediaries as Interpreters .................................. 180 R 1. Reliance and Mistakes of Criminal Law .... 182 R 2. Reliance and Mistakes of Tax Law ......... 184 R D. Official and (Un)official Audiences............. 187 R 1. Unique Interpretive Concerns for Official and (Un)official Audiences...................... 188 R 2. Notice from (and Comment on) Regulatory Statutes .................................. 191 R E. Judicial First-Order Audiences ................ 195 R III. THE MULTIPLE AUDIENCES OF STATUTES .............. 199 R A. Identifying the Principal Audience............. 199 R B. (Mis)identifying the Relevant Audience ........ 204 R 1. Judicial Disagreement About the Relevant Audience ................................. 208 R 2. Identifying the Relevant Audience .......... 210 R C. Misstating the Audience ...................... 212 R IV. CONCLUSION ...................................... 218 R A. Prioritizing Audience-Appropriate Interpretative Methods ..................................... 219 R 1. The Relationship Between Audience and “Ordinary” Meaning ....................... 219 R 2. Regulatory Statutes and Administrative Deference ................................. 220 R 3. Attend to the Statutory Role of Interpretive Intermediaries ............................ 222 R B. Drafting Single Statutory Provisions That Address Multiple Audiences .................. 223 R C. Reconsidering Textualism & Purposivism...... 223 R \\jciprod01\productn\C\CRN\105-1\CRN104.txt unknown Seq: 4 4-MAY-20 8:04 140 CORNELL LAW REVIEW [Vol. 105:137 INTRODUCTION “IDENTIFY THE AUDIENCE.—Decide who is supposed to get the message.”1 So instructs the U.S. House of Representa- tives’ legislative drafting manual. This advice is common to many statutory drafting guides, which emphasize that a stat- ute’s audience should influence a statute’s structure, style, and terminology.2 Different audiences have varied levels of le- gal fluency and background knowledge, and distinct audiences have very different modes of interacting with a given statutory scheme.3 It would be foolish to draft a playground ordinance in the same manner as a multinational corporate tax provision.4 For statutory drafting, at least, audience considerations appear to be a central concern. When it comes to the interpretation of statutes, however, important considerations of audience often go overlooked in statutory interpretation debates. In using the term “audience,” I mean to focus on the range of legal actors whose behavior may be altered as a result of a statutory enactment. These include audiences that are actively engaged in understanding statutory meaning, as well as those passively affected by statutory rules, and also include the many third parties whom the law con- scripts to transmit legal knowledge to the affected audience(s).5 1 OFFICE OF THE LEGISLATIVE COUNSEL, U.S. HOUSE OF REPRESENTATIVES, 104TH CONG., HLC NO. 104-1, HOUSE LEGISLATIVE COUNSEL’S MANUAL ON DRAFTING STYLE 5 (1995). 2 See F. Reed Dickerson, Legislative Drafting, in THE REGULATORY STATE 157, 159 (Lisa Schultz Bressman, Edward L. Rubin & Kevin M. Stack eds., 2010) (“[T]he legislative draftsman will do well to consider the persons to whom the law is primarily
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