Mark Seidenfeld


Despite all that has been written about the choice between purposivist, intentionalist, and textualist approaches to statutory interpretation, to date the literature has not provided a justification for the common judicial practice of relying on intent-based inquiries in some cases and disavowing those approaches for textualism in others. This Article fills that void and, in doing so, lays out a new “legislative process failure” theory of statutory interpretation that has the potential to move the debate beyond a simple choice between textual and intent-based interpretation. This Article argues that Congress and the courts comprise different linguistic communities when they interpret statutory texts. It proceeds to define legislative process failure as occuring when the interpretive mechanisms of those communities produce different understandings of statutory meaning. The paramount question then becomes: What is the legal system’s best response to such failure? Legislative supremacy requires that the courts and Congress come to some accommodation to ensure that courts will interpret statutes in accord with the legislature’s understanding. That assumption, however, is satisfied as long as Congress knows how courts will interpret statutes and can adjust its process to ensure that statutes will be interpreted as it intends. Legislative process failure theory therefore leads to the subsequent question: Which branch should accommodate the other’s method of attaching meaning to statutes, and under what circumstances? This Article concludes that, generally, legislatures cannot engage in judicial-type inquiries into statutory meaning while drafting statutes because the cost of engaging in such statutory analysis before identification of the potential provisions that might exhibit process failure is prohibitive. But, once the legislature becomes aware of a process failure, the costs of engaging in judicial-type textual inquiry become manageable, and the error costs of interpretation due to strategic manipulation of legislative meaning greatly increase. Thus, in the face of such awareness, a textual approach is better justified. Having developed the legislative process failure of interpretation, this Article considers several types of failures for which courts should accommodate the legislative approach to attaching meaning to statutes.