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The Modern Parol Evidence Rule and Its Implications for New Textualist Statutory Interpretation, 87 Geo

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The Modern Parol Evidence Rule and Its Implications for New Textualist Statutory Interpretation, 87 Geo Penn State Law eLibrary Journal Articles Faculty Works 1995 The oM dern Parol Evidence Rule and its Implications for New Textualist Statutory Interpretation Stephen F. Ross Penn State Law Daniel Trannen Follow this and additional works at: http://elibrary.law.psu.edu/fac_works Part of the Jurisprudence Commons, and the Legislation Commons Recommended Citation Stephen F. Ross and Daniel Trannen, The Modern Parol Evidence Rule and its Implications for New Textualist Statutory Interpretation, 87 Geo. L.J. 195 (1995). This Article is brought to you for free and open access by the Faculty Works at Penn State Law eLibrary. It has been accepted for inclusion in Journal Articles by an authorized administrator of Penn State Law eLibrary. For more information, please contact [email protected]. The Modern Parol Evidence Rule and Its Implications for New Textualist Statutory Interpretation STEPHEN F. RosS AND DANIEL TRANEN* The "New Textualist" movement in statutory interpretation seeks to exclude from judicial consideration what could be termed extrinsic evidence of legisla- tive intent. The primary source of this extrinsic evidence is a statute's legislative history, such as committee reports, floor debates, sponsor statements, and other indicia of legislative intent not included in the text of the statute.] New Textualists reject the notion that judges should seek out the statute's intended meaning from these sources. Rather, they believe that judges should give the statute the meaning that would be attached to the textual language by an ordinary speaker of English. 2 The movement's best-known advocate, Justice Antonin Scalia, has clearly stated that the most prominent and practical reason for textualism is that "under the guise or even the self-delusion of perusing unexpressed legislative intents, common-law judges will in fact pursue their own objectives and desires.",3 Scalia concludes that on balance the use of are based legislative history "has facilitated rather than deterred decisions that 4 the courts' policy preferences, rather than neutral principles of law.", upon 5 Although there are other, more formalist arguments in favor of textualism, Justice Scalia makes clear that even these ostensibly formalist arguments are really functional, for they serve to ensure a "government of laws, not of men," * Professor of Law, University of Illinois; B.A., J.D., University of California (Berkeley). Associate, Goldstein and Price, L.C. (St. Louis); B.A., University of Pennsylvania, J.D., University of Illinois, respectively. The authors wish to thank Professors Ian Ayres, James Brudney, William Eskridge, Jr., Daniel Farber, Kit Kinports, Russell Korobkin, Peter Maggs, John Nagel, William Popkin, Marie Reilly, Richard Speidel, and Peter Strauss and Judges Alex Kozinski and Patricia Wald for extremely valuable comments and suggestions on an earlier draft. Valuable assistance, of course, does not necessarily signal agreement. 1. See, e.g., ANTONIN SCALIA, A MATrER OF INTERPRETATION (1997); William N. Eskridge Jr., The New Textualism, 37 UCLA L. REv. 621 (1990). Eskridge's article publicly coined the term. 2. See, e.g., Chisom v. Roemer, 501 U.S. 380, 405 (1991) (Scalia, J., dissenting). 3. SCALIA, supra note 1, at 17-18. The key to New Textualism is not its rigid insistence on text-based interpretation. Indeed, as detailed below in text accompanying notes 138-53, New Textualists use a host of presumptions and engage in a "holistic textualism." See WwLLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION 41-47 (1994). Rather, what distinguishes New Textualism is its rigid insistence on an "objective" interpretation, which, as we suggest in this article, is objective only in the sense that it rejects the relevance of the objective manifestations of the subjective intent of the statute's drafters as an integral part of the interpretive process. 4. SCALIA, supra note 1, at 35. 5. The formalist argument is that legislative history has not been passed by both houses of Congress and presented to the President, and it is therefore unconstitutional to give it legal effect. See, e.g., In re Sinclair, 870 F.2d 1340, 1343-44 (7th Cir. 1989); John F. Manning, Textualism as a Nondelegation Doctrine,97 COLUM. L. REv. 673 (1997). We discuss this at infra text accompanying notes 169-78. THE GEORGETOWN LAW JOURNAL [Vol. 87:195 by reducing judicial discretion.6 The claim that judicial discretion is constrained by textualism but facilitated by the use of extrinsic interpretive aids such as legislative history is highly contested. For example, two well-known commentators whose backgrounds include extensive legislative experience-Judge Abner Mikva and Professor Eric Lane-completely disagree with Justice Scalia on this fundamental point. As Mikva and Lane observe, when legislative history is excluded, the remaining interpretive tools available to a judge "effectively permit unfettered discre- tion.",7 Some support for Mikva's and Lane's argument can be gleaned from the candid opinions of commentators whose principal focus is not statutory interpre- tation. Senator Orrin Hatch, a conservative who rails against left-wing "judicial activism," has endorsed reliable forms of legislative history because these references can serve as "additional strands to tie judges to the law itself," notwithstanding the risk of manipulation.8 On the other hand, support for Scalia's legisprudential goal of textualism comes candidly from a leading advocate of an activist jurisprudence that Scalia purports to abhor. Professor Jerry Mashaw, who expresses sympathy for the view that judges should inter- pret statutes not as a faithful agent for the legislature that actually voted on the legislation, but rather as an agent for an idealized body cured of "republican legislative malfunctions," has commended New Textualism and criticized authori- tative reliance on legislative history.9 According to Mashaw, "the exclusion of legislative history is more likely to increase the flexibility of statutes than to render them static or rigid."'o When Mashaw speaks of "flexibility," he of course means flexibility in the hands of the interpreting judge. When judges do not use extrinsic aids, what are the consequences, in terms of the extent of judicial power, the influence of a judge's personal perspective on the case, and the drafters' ability to effectuate their own policy preferences through agreement on a text? Justice Scalia and his followers are not the first to advocate the exclusion of these proffered indicia of the writers' intent. Approxi- mately half a century ago, virtually the same arguments were made by Professor Samuel Williston and other defenders of the First Restatement of Contracts, who sharply criticized the admissibility of parol evidence to assist judges and juries in interpreting contracts. Like Scalia, Williston argued that judges should 6. SCALIA, supra note 1, at 25. Another leading textualist, Judge Frank Easterbrook, seems to emphasize the formalist objection, although he too adds that textualism "cuts down the amount of judicial discretion, for judges free to bend law to 'intents' that are invented more than they are discovered become the real authors of the rule." Herrman v. Cencom Cable Assoc., 978 F.2d 978, 982 (7th Cir. 1992). 7. ABNER J. MIKVA & ERIC LANE, AN INTRODUCTION TO STATUTORY INTERPRETATION AND THE LEGISLATIVE PROCESS 33 (1997). 8. Orrin Hatch, Legislative History: Tool of Constructionor Deconstruction, 11 HARV. J.L. & PUB. POL'Y 43 (1988). 9. Jerry L. Mashaw, Textualism, Constitutionalism, and the Interpretation of Federal Statutes, 32 WM. & MARY L. REV. 827, 836 (1991). 10. Jerry L. Mashaw, As If Republican Interpretation,97 YALE L.J. 1685, 1692-93 (1988). i9981 PAROL EVIDENCE AND STATUTORY INTERPRETATION rely instead on the plain meaning of the text as understood by a "reasonable" third party." Williston's advocacy of a broad and exclusionary parol evidence rule was sharply criticized by other leading contracts scholars, most notably Professor Arthur Corbin. Corbin rejected the notion that extrinsic evidence would taint the reliability of interpretation by giving judges or juries free rein to reach results they felt were desirable, even if such results were not faithful to the terms of the contract. Indeed, the opposite result was more likely. As Corbin argued: when a judge refuses to consider relevant extrinsic evidence on the ground that the meaning of written words is to him plain and clear, his decision is formed by and wholly based upon the completely extrinsic evidence of his own personal education and experience.12 Corbin's view that extrinsic evidence reduces the influence of a judge's personal biases, and thus results in a more accurate interpretation of the words written by the drafters, has been widely accepted in contract law. Both the Uniform Commercial Code (UCC) and the Restatement (Second) of Contracts reflect that 11. Williston candidly recognized that, when interpreting a contract, "it is not the intention of the parties that is material, but the meaning that the court gives to their manifestations." 3 SAMUEL WILLISTON & GEORGE G. THOMPSON, WILLISTON ON CONTRACTS § 603, at 1731 (rev. ed. 1936) [hereinafter WILLISTON]. The appropriate standard for most contracts, he concluded, is that of "reason- able expectation, which would attach to words or other manifestations of intention the meaning which the party employing them should reasonably have apprehended that they would convey to the other party." Id. at 1732. As his editorial successor explained: As applied to contracts and agreements, interpretation is the process of determining from the expressions of the parties what external acts must happen or be performed in order to conform to what the law considers their will. But it is pertinent to note at the outset that if the parties [have a written contract], the law does not recognize their will, or, as it is more frequently stated, their intent, unless it is expressed in, or may be fairly implied from, their writing. 4 WALTER H. E. JAEGER, WILLISTON ON CoNTRACTs § 600A, at 286 (3d ed.
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