If the Text is Clear—Lexical Ordering in Statutory Interpretation

Adam M. Samaha*

Most courts now endorse lexical ordering for statutory cases. That is, a limited set of top-tier sources, if adequately clear, are supposed to establish statutory meaning. Lower-tier sources are held in reserve for close calls. Examples include legislative history and deference to agency positions, which often are demoted into tiebreaking roles. In fact, some such hierarchy of sources is approved by working majorities at the U.S. Supreme Court and more than forty state supreme courts. Although popular today, lexically ordered interpretation has risen and fallen before. Indeed, we should pause to reconsider whether these instructions are justified and whether judges can follow them.

This Article explores the core trade-offs and implementation challenges of lexical ordering. On trade-offs, the Article spotlights decision quality, decision costs, and, less intuitively, decisiveness. Compared to aggregating all source inferences, lexical ordering threatens decision quality by sometimes throwing out useful information, but it can reduce decision costs and probably will increase the chance of a decisive judgment. Compared to flatly excluding lower-tier sources, lexical ordering probably yields higher quality decisions and decisiveness, but also higher decision costs. Whether the overall compromise seems tolerable depends on a series of debatable judgment calls. Moreover, the actual trade-offs depend on whether judges lexically order sources in their decisionmaking, not only in their opinion writing. To date, we lack evidence either way.

The Article goes on to report results from a new vignette experiment conducted with approximately one hundred appellate judges. These judges showed curiously mixed success at lexical ordering. In a trade name case, we find little evidence that judges were improperly influenced by legislative history. In an election law case, by contrast, we find evidence that judges were improperly influenced by an agency’s position. There is much more to learn about the patterns of judicial behavior in this field. For now, we should expect mixed judicial success at achieving the mixed advantages and disadvantages of lexical ordering. The hard trade-offs cannot be casually assumed or ignored. With that unsettling lesson, more courts might abandon lexical ordering’s complex and sometimes fragile architecture—or at least maintain respect for judges who are committed to less orthodox, more extreme, and simpler methods for deciding statutory cases.

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© 2018 Adam M. Samaha. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Inez Milholland Professor of Civil Liberties, New York University School of Law. Thanks to participants at Columbia Law School’s Legal Theory Workshop, Duke Law School’s Judicial Decisionmaking Colloquium, the 2018 Legislation Roundtable, and NYU School of Law’s Faculty Workshop. For comments on an earlier draft, I am grateful to Matt Adler, Barton Beebe, Jessica Bulman-Pozen, Adam Cox, Ryan Doerfler, William Eskridge, Margaret Lemos, Marin Levy, Jamie Macleod, Caleb Nelson, David Pozen, Fred Schauer, Yahli Shereshevsky, and Peter Strauss. For discussions on the experiment reported below, I thank Emiliano Catan, Scott Hemphill, Bert Huang, Anup Malani, Jeff Rachlinski, Dan Rubinfeld, Dan Simon, Stephan Tontrup, Kristen Underhill, and Tess Wilkinson-Ryan. I owe special debts to the Institute of Judicial Administration for making the experiment possible, and to Roy Germano, Empirical Research Methodologist at NYU School of Law, for his indispensable advice and data analysis. Joy-Anette Atsegbua, Lance Bowman, Olivia Clements, and Emma Moore provided research assistance. Mistakes are mine.