The Judge as a Fly on the Wall: Interpretive Lessons from Positive Theories of Communication and Legislation

How should judges interpret statutes? Like many others, we begin with the premise that statutory interpretation is a quest by judges to use the best available theory and information to determine “what statutes mean.” When seen in this light, two attributes of statutes merit attention. · Statutes are a form of communication. · Statutes contain a constitutionally-privileged command of the form “If you are in situation X, then you must do Y.” In other words, statutes are manufactured by a constitutionally authorized legislative body and are directed towards those who are constitutionally-obligated to implement, enforce, or follow the law. We contend that the purpose of statutory interpretation is to produce a constitutionally legitimate decoding of statutory commands in cases where the meaning of X and/or Y is contested. This perspective leads us to a unique conclusion about the conditions under which judges can use legislative records to more accurately decode a statute’s X’s and Y’s. Our attention to communication leads to these conditions because it clarifies how legislators compress the ideas in their heads, and in the collective understandings they reach, into the descriptions of X’s and Y’s that appear on statutory parchment. Many prominent claims about statutory interpretation are based on unrealistic (or unrecognizable) theories of how people decide which words to use when attempting to convey ideas to others. The consequences of proceeding in such a manner include opaque interpretative proscriptions that are difficult to apply uniformly or to reconcile with constitutional imperatives. We argue that importing a few basic scientific propositions about human communication dynamics can aid those who seek to determine what a statute’s authors meant when they chose to include (or not to include) particular words in a piece of legislation. To this end, we build from well-known communication theories. Their key insight is that successful inference about meaning requires the manner in which the communication is decoded (i.e., the expansion of the signal into information) relate to aspects of its manufacture (i.e., the compression of information into a signal) in particular ways. This insight highlights the importance for interpretive attempts of understanding the procedures by which legislators choose their words. It also provides important clues about the kinds of informational sources that can be useful to those who want to clarify the meaning of a statute’s X’s and Y’s. Better understanding the relationship between legislative rules and communicative incentives provides an improved framework for sorting credible sources of information about a statute’s meaning from sources that should be ignored. To this end, we use a positive political theory of communication-based legislative decision- making to help readers differentiate conditions for communicative sincerity from conditions for grandstanding and dissembling. The theory clarifies the conditions under which particular kinds of legislative records can be useful in decoding a statute’s X’s and Y’s (e.g., when they include detailed testimony about the meaning of an X or Y by either constitutionally empowered actors or by actors to whom constitutional authority was rightly delegated) by examining when legislative rules do, and do not, induce sincere communication. These conditions provide a template for better understanding when judges should ignore claims about a statute’s meaning and when legislative records can aid their search for meaning.