:: Statutory Construction – Textualist Or Intentionalist?

As the Supreme Court has observed, the plain meaning of the statute should be conclusive except in the rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters. It is the rare case of this type that is the subject of this Article.

David F. Shores (Wake Forest) Textualism and Intentionalism in Tax Litigation, 61 Tax Law. 53 (2007).

Paul L. Caron, TaxProf Blog, notes David Shores’ article which appears in the peer-reviewed ABA journal, The Tax Lawyer. Before you conclude this article is just for tax lawyers, at least read the article’s introduction. We ERISA lawyers live in two worlds in a sense, as ERISA has both Title I and Title II.

The administration of ERISA is divided among the U.S. Department of Labor, the Internal Revenue Service of the Department of the Treasury (IRS), and the Pension Benefit Guaranty Corporation (PBGC). Title I, which contains rules for reporting and disclosure, vesting, participation, funding, fiduciary conduct, and civil enforcement, is administered by the U.S. Department of Labor. Title II of ERISA, which amended the Internal Revenue Code to parallel many of the Title I rules, is administered by the IRS. Title III is concerned with jurisdictional matters and with coordination of enforcement and regulatory activities by the U.S. Department of Labor and the IRS. Title IV covers the insurance of defined benefit pension plans and is administered by the PBGC.

(from the EBSA website)

While some of us tour the entire domain, others prefer to stay on the tax side or the employment side. But you don’t have to be a tax lawyer to appreciate the scholarship in David Shore’s article on statutory construction. ERISA controversies often turn on statutory construction as the recent LaRue decision so aptly indicates. Here’s where the article has value for the Title I denizens.
From the introduction:

Tax cases frequently turn on issues of statutory construction. The statute might be general in nature, such as section 162, which allows a deduction for “all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business.” Alternatively, the statute might be highly specific, providing a clear answer to the question at hand. . . . In answering questions of this type, courts will often look to legislative history, statutory structure, or tax policy in an effort to determine exactly what Congress intended when it adopted the provision or term in question. Such an intentionalist approach is, of course, in keeping with conventional rules of statutory construction that call for a determination of congressional intent when no clear answer can be obtained by applying the statutory language to the issue at hand.

In some instances the statute will be highly specific. A court might then adopt a textual or plain meaning approach to statutory interpretation, closing its eyes to legislative history, statutory structure, or tax policy, suggesting a congressional intent at odds with the result dictated by the language of the statute. Indeed, the court might not view such a case as involving an issue of statutory construction at all. To construct or construe a statute implies a need to determine its meaning. But, if the meaning is clear, the court merely needs to apply the statute according to its text. Construction is unnecessary. It is in cases of this type that courts are likely to part company, with some taking a textual approach, and others adopting an intentionalist approach to reach a result viewed as consistent with legislative intent in spite of its inconsistency with the statutory language. As the Supreme Court has observed, “the plain meaning of the statute should be conclusive except in the ‘rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.’” It is the rare case of this type that is the subject of this Article.

Note: Hat tip, of course, to Paul Caron for calling our attention to this article. If you are still reading this, then you will probably be interested in these articles which, unlike the previous work, may be downloaded on SSRN:

Caleb Nelson, What Is Textualism? Virginia Law Review, Vol. 91, April 2005

Herman Philipse, Antonin Scalia’s Textualism in Philosophy, Theology, and Judicial Interpretation of the Constitution, Utrecht Law Review, Vol. 3, No. 2, pp. 169-192, December 2007

This area of discussion very quickly shifts into debates in the philosophy of language, as evidenced by works such as this –

I Do Not Think It Means What You Think It Means: How Kripke and Wittgenstein’s Analysis on Rule Following Undermines Justice Scalia’s Textualism and Originalism ( DANIEL GOLDBERG )

And when you arrive at the conclusion that you need to approach the law via Wittgenstein, I submit you are approaching the outer margin of practical relevance noted in a post by Larry Solum  (also noted by TaxProf) about the law and economics crowd here. I think most of us will agree that a step must have been missed somewhere along the way if this is where we have arrived in theories of statutory construction.

Within limits, though, reflection on how courts should reason in interpreting statutes is a profitable exercise, and I do look forward to reading David Shore’s article, which appearing in The Tax Lawyer, will undoubtedly be grounded in sufficient practical purpose to avoid the relevance dilemma.