Does the word “costs” include the fees of experts? On the one hand, one can read the statute’s language as restricting “costs” to “attorneys’ fees” plus a few extra expenses, for example, court filing fees, while excluding the separate fees of experts. Courts have often interpreted the word “costs” when used in other rules and statutes in this way. On the other hand, one might read the word as including the “fees” of experts. Those fees do not differ radically in kind from attorneys’ fees. Indeed, attorneys themselves often hire experts and pass an expert’s charges on to the client as part of the attorney’s bill. Moreover, an expert’s fee is a “cost” to the client as the word “cost” is often used in everyday affairs.
It helps to examine the statute’s purposes. Overall, the statute seeks to make available to disabled children the kind of education that few parents can afford. The statute more specifically seeks to create procedures (including court procedures) that will allow parents to dispute a school district’s claim that it is already doing so. To have any hope of success, parents must often turn to experts, who are expensive. Thus, reading “costs” as excluding expert fees, by requiring a winning family to pay those fees, could well place that education beyond the reach of a typical family even if that family shows it is entitled to receive that education. Consider this consequence in light of the statute’s basic purpose. Does it not hinder, interfere with, perhaps thwart, the statute’s basic purpose, namely, an appropriate education for each handicapped child?12
Yet we must go further. After all, Congress might have had a subsidiary money-saving purpose, in respect to legal costs for example. This is why it is important to examine the relevant legislative materials, such as the history of the debates in Congress that led to enactment of the legislation. In this case these materials strongly suggested that Congress intended for the district to pay these expert fees.
A report of a Senate-House conference committee (the joint committee to reconcile House and Senate versions of the bill and produce a final text) said that the statutory language includes reasonable “expenses and fees of expert witnesses.” Both houses of Congress unanimously adopted this report. The upshot is that an examination of purposes and consequences would lead the Court to interpret the statute in the way that members of both houses of Congress seemed to intend. It would produce an interpretation that furthered the basic purposes underlying the statute.13
WHY EMPHASIZE PURPOSE AND CONSEQUENCE?
AS MY EXAMPLES suggest, I believe a purpose-oriented approach is better than a purely text-oriented approach. Three sets of considerations, taken together, explain why I believe the Court is obliged to follow a purpose-oriented approach.14
First, judicial consideration of a statute’s purposes helps to further the Constitution’s democratic goals. In a representative democracy, legislators must ultimately act in ways that voters find acceptable. But voters are unaware of the detailed language that legislators write. They can do no more than consider whether a legislator’s work corresponds roughly to their own views, typically expressed in terms of general objectives, say peace, prosperity, healthy environment, and economizing.
A legislator whose statute furthers a popular objective will seek credit at election time—at least if the statute works reasonably well. But suppose the statute does not work well. Then whom should the voters blame? If courts have interpreted the statute in accordance with the legislator’s purposes, there is no one to blame but the legislator. But if courts disregard the statute’s purposes, it is much harder for the voter to know who is responsible when results go awry.
Consider the disabled children’s education statute. Voters can easily understand what Congress sought to do: It sought to help disabled children, to provide them with a free appropriate education, and to create meaningful procedures enabling a dissatisfied parent to challenge a school board’s individualized education plan—all of which will cost the local school districts money. Voters can decide whether they favor these ends and evaluate a legislator accordingly. But what are voters to do when they discover that most parents, because they cannot recover experts’ fees, find the statute’s challenge procedures useless?
Voters do not know whom to blame. They do not read the texts or readily understand the reasoning of a text-based analysis. Legislators can point out that they thought (as their colleagues unanimously assured them) they supported a statute permitting reimbursement for those fees. By way of contrast, voters can understand purposes; and, where a statute furthers the legislators’ purposes, voters more likely know whom to hold responsible.
No single court decision will make a difference. But over time, where vast numbers of statutory provisions are at issue, the following generalizations seem fair. The more the Court relies on text-based methods alone to interpret statutes, the easier it will be for legislators to avoid responsibility for a badly written statute simply by saying that the Court reached results they did not favor. The more the Court seeks realistically to ascertain the purposes of a statute and interprets its provisions in ways that further those purposes, the harder it will be for the legislator to escape responsibility for the statute’s objectives, and the easier it will be for voters to hold their legislators responsible for their legislative decisions, including the consequences of the statutes for which they vote.
Second, a purpose-oriented approach helps individual statutes work better for those whom Congress intended to help. The disabled children’s education statute offers dissatisfied parents the possibility of challenging a school board decision. An interpretation that denies those parents recovery of expert fees when they successfully challenge a board decision makes the challenge procedures difficult, perhaps impossible, for many parents to use. The result is to deny their children the education that the statute promises. Of course, a denial of expert fee recovery saves the school district money. But Congress did not suggest that it favored that result. Rather, the congressional reports and subsequent legislative votes indicate that Congress expected the contrary. The text-based interpretation undercut the statute’s ability to work effectively for parents.
Third, and most important, by emphasizing purpose the Court will help Congress better accomplish its own legislative work. Congress does not, cannot, and need not write statutes that precisely and exhaustively explain where and how each of the statute’s provisions will apply. For one thing, doing so would require too many words. Who wants statutory encyclopedias that spell out in excruciating detail all potential applications in all potential circumstances? Who could read them?
For another thing, linguistic imprecision, vagueness, and ambiguity are often useful, even necessary, statutory instruments. Congress may not know just how its statute should apply in future circumstances where it can see that future only dimly, and new situations will always emerge. Congress may want to consider only one aspect of a complex, detailed subject, an aspect that warrants a few general words that simply point a court in the right direction. Congress may want to use a general standard, such as “restraint of trade,” while intending courts to develop more specific content on a case-by-case common-law basis. Or, the English language may lack words that succinctly express, say, the necessary quantitative measurement, as, for example, when Congress seeks to punish more severely those who commit “serious” or “violent” crimes.15
In these circumstances, congressional drafting staffs may well use general or imprecise words while relying on committee reports, statements of members delivered on the floor of Congress, legislative hearings, and similar materials to convey intended purposes, hence meaning, scope, and reference. Congress can use that drafting system if, and only if, it can count on the courts to consider legislative purposes when interpreting statutes and look at the associated legislative materials to help determine legislative purpose. When courts do so, drafters, legislators, and judges can work together. They act in tandem with Congress, carrying out the legislators’ objectives in even the most complex statutes, such as thos
e dealing with bankruptcy, transit system mergers, or pension benefit guarantees.
Without such teamwork, legislators and their staffs would face a drafting task that is daunting and even impractical. The drafters would have to think in advance of every likely combination of circumstances that might arise, perhaps compiling and enacting into law lengthy lists of all possible circumstances. And they would have to learn how courts would interpret each word in the much more lengthy statute, say by looking at past cases where courts have interpreted similar words in related contexts. Were there a single drafting staff for all statutes, were judges able to train the drafters, were we able to develop linguistic codes that legislators and judges would uniformly apply, perhaps we could reach a kind of interpretive consensus that would work. But in the absence of some such linguistic utopia, a text-oriented interpretation of ambiguous statutory language that deliberately avoids a search for purpose too often means an interpretation that, from the perspective of a congressional legislator, does not work properly.
In saying all this, I recognize that the political complexion of Congress can change. By looking at the purposes of those who once enacted a statute as I would do, the Court might produce an interpretation that a more recent Congress would disapprove. But in doing so, the Court emphasizes the need for legislation, to depart from an earlier statute, and it thereby also assures the present Congress that their own intentions will be honored later when the Court considers the meaning of a statute that they have passed.
My point, of course, is that the better, simpler way for courts to help Congress is by looking for purposes. Drafting staffs can then, and more easily, indicate clearly (although not necessarily in the statute itself) the statute’s relevant purposes and objectives. They, like Congress, can then assume that the courts, partners in the enterprise, will interpret a statute’s open language accordingly.
A QUALIFICATION
TO BE SURE, the dichotomy drawn between text-oriented and purpose-oriented approaches is oversimplified here. Many good judges might consider themselves text oriented even though they sometimes take account of statutory purposes and consequences. Furthermore, purposes and consequences do not unlock the meaning of every ambiguous statutory phrase. Purposes are sometimes hard to determine. And, regardless, purpose cannot produce an interpretation that the statute’s language rules out of bounds. A statute that forbids importing “rocks” does not forbid importing trees irrespective of whether including trees would further the statute’s purposes. Still, the dichotomy exists. Text-oriented judges emphasize the use of language, history, tradition, and precedent while minimizing their use of purpose and consequence as statutory tools. By contrast, purpose-oriented judges view purpose and consequence as particularly useful tools.
OBJECTIONS TO THE PURPOSE-ORIENTED APPROACH
WHAT CAN BE said against a purpose-oriented approach? Some argue that it is linguistically inappropriate to attribute a purpose to an institution such as Congress, rather than to the individuals who make up that institution. In any event, individual legislators have purposes that can differ wildly from the purpose that a judge would attribute to a statute. Suppose a legislator’s purpose in voting for a bill was to help a party leader. Suppose a legislator voted for an amendment in order to defeat the bill by attaching a “poison pill” that he hoped would sabotage the bill. Suppose he did not read the bill. Suppose no member of Congress read the bill, or even thought about the particular matter before the Court.16
It is not conceptually difficult, however, to attribute a purpose to a corporate body such as Congress. Corporations, companies, partnerships, municipalities, states, nations, armies, bar associations, and legislatures engage in intentional activities, such as buying, selling, promising, endorsing, questioning, undertaking, repudiating, and legislating. These corporate bodies may have purposes different and separate from those of the individuals who comprise them. A basketball team’s movements can reveal the team’s defensive purpose even if each individual player’s thoughts are a mile away. A municipality can promise to build a new baseball stadium with the purpose of attracting a major-league team even if no elected official really wants the team but rather hopes the stadium will never be built and privately intends never to provide the necessary funding. Linguistic and social conventions (complicated but well understood) tell us when and how to attribute purposes to these bodies. Lawyers learn how to ascribe purposes and intentions to Congress. There is no rule of language that forbids our doing so.
Moreover, even if Congress did not consider a matter at all, judges can still ascertain a purpose. Here judges can use an artificial construct that disregards the unhelpful silence of congressional reality in order to produce an interpretation that will help the statute work well (in light of the more general purposes that the judge can find). They can ask what a reasonable member of Congress would have intended. This hypothetical question helps judges see the statute as a coherent whole and avoid interpretations that are inconsistent with that more general view. For instance, in the previous example, if the conference report had not confirmed that “costs” meant to include expert fees, the Court could still have looked to the overarching purpose of the statute (to provide a free, appropriate education to disabled children), and the absence of any money-saving purpose, to answer the question.
What if Congress deliberately chooses a vague or ambiguous word to avoid deciding an issue? Members of Congress sometimes disagree on specific terminology, even if they agree on the general need for a statute. If the disagreement is strong, they may deliberately write vague or ambiguous language to secure the necessary votes to enact the legislation. When a court later interprets the language, it can examine the general need for, and purpose of, the statute. Under these circumstances, is the court not open to the criticism that it is just “taking sides” on the open or contested issue? The answer is no. The court is doing its best to make the statute work in the best way possible, by interpreting the provision in light of the statute’s purposes.
A further criticism is that purposes are sometimes difficult to ascertain. Moreover, purposes can be described at different levels of generality. How should a judge describe the purpose of the education act’s cost reimbursement provision? Is it to help disabled children at any cost? Is it to try to help children while keeping costs within certain bounds? Is it just generally to do a good thing for children?
But what is the special problem about finding the “right” level of generality? Normally, we look to context to decide what purposes the speaker has in mind and which of those purposes is relevant. We do the same with statutes. Three men sailing in a balloon over a Maine potato field are lost. One shouts to a farmer down below, “Where are we?” The farmer replies, “In a balloon.” The joke lies in the farmer’s failure to take account of the balloonist’s purpose as made clear by context. When my wife says, “There isn’t any butter,” I have no problem understanding that she is referring to the refrigerator, not to the corner store.
Why is it especially difficult to determine a statute’s purpose? Every time we hear another speak, every time we read a book, we could and often do look for the speaker’s or writer’s purpose. We normally and automatically derive the purposes from the context in which the relevant statement appears. Normally, it is easy to find purpose; sometimes it is not. How does a statute, in this respect, differ from any other writing? The fact that it is sometimes difficult to determine a relevant purpose should not lead courts to abandon that effort across the board. Like Pascal’s wager, the effort, where successful, will end up helping the judge. At worst little is lost.
Moreover, we can look at congressional reports, floor statements, and related legislative material, all part of the relevant context, to help determine the relevant purposes. The conference report on the disabilities education bill and the accompanying votes help make clear that the cost recovery provision was not intended to save money.
The use of legislative history is also criticized. If co
urts examine congressional documents, reports, floor statements, and the like, in an effort to ascertain purpose, will they give too much power not to the elected legislators but rather to the unelected congressional staffs who write such history? Will those staffs write their own views into law?
If the staff system is working properly, this material will not substitute the views of unelected staff for those of elected representatives. A legislative committee staff circulates drafts of reports to all members of the committee. Elected senators and representatives (directly or through staff) can, and do, object to particular statements in the reports. If a committee member disagrees strongly, he or she can write a different view. Like heads of corporations, trade unions, and the president of the United States, members of Congress must rely on staffs and take responsibility for the staff’s work. In a word, when the staff system works properly, the courts need not fear paying attention to staff work. When the system does not work properly, the cure must lie with Congress, not the courts.
Finally, the most strongly held criticism of purpose-oriented interpretation is that this method allows judges to interpret statutes subjectively. Will the purpose-oriented judge resolve linguistic uncertainty by substituting his or her own subjective policy views—that is, the judge’s own purposes—for those of Congress? This criticism, however, applies to the misuse of a purpose-oriented method, not to its proper use. All methods of statutory interpretation are open to misuse. A judge who relies on text alone could misinterpret an ambiguity in order to substitute his own subjective policy views for those of Congress. A judge, when examining precedent, might misread precedent to do the same. The judge’s need to write an opinion explaining his or her reasons for reaching a conclusion helps guard against misinterpretation. And that safeguard works particularly well when the judge uses a purpose-oriented method. In this instance, the judge cannot simply state how he interprets an ambiguity. Rather, he must spell out in detail how he derives relevant purposes, what those purposes are, and how and why he finds that they illuminate the statute’s text.
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