Philip P. Frickey

Statutory Interpretation as Practical Reasoning

In the last decade, statutory interpretation has reemerged as an important topic of academic theory and discussion. This development is welcome, since few topics are more relevant to legal craft and education than the interpretation of statutes, now our primary source of law. The recent theoretical views, however, contrast with practicing lawyers strategies of statutory interpretation. When practitioners give advice to clients about what a statute means, their approach is usually eclectic: They look at the text of the relevant statutory provisions, any legislative history that is available, the context in which the legislation was enacted, the overall legal landscape, and the lessons of common sense and good policy. But when law professors talk about statutory interpretation, they tend to posit a more abstract, grand theory that privileges one or another of these approaches as foundational.2 The commentators grand theories contrast with the more ad hoc, factbased reasoning of the practicing lawyer. How do judges interpret statutes? How should they? Many commentators argue that judicial interpretation is, or at least ought to be, inspired by grand theory. We think these commentators are wrong, both descriptively and normatively: Judges approaches to statutory interpretation are generally eclectic, not inspired by any grand theory,

Judicial Review, the Congressional Process, and the Federalism Cases: An Interdisciplinary Critique

or as applied in any of these cases. We doubt that it is well situated to do so in the future. Leaving such inconveniences aside, the embrace of a universal formal theory of congressional action would be wrongheaded in any event. In our view of the state of political science, no theory of legislative decisionmaking exists that is capable of addressing the issues adequately. For example, positive political theories of legislative politics, which extend well beyond public choice theory of the 1960s and 1970s, have become an important branch of legislative scholarship in political science. 3 Positive political theories treat legislators as instrumentalist and, given a set of assumptions about the rules or institutional setting in which they operate, deduce propositions about legislators behavior, institutional choices, or policy outcomes. There are a variety of positive theories of legislative politics, however. They differ in assumptions about the political motivations of legislators (policy, reelection, or progressive ambition) and about the identity of other players relevant to goal achievement (the President, interest groups, the electorate, the courts, and so on). They also differ in what they seek to explain (individual voting behavior, the structure of committees and parties, or policy outcomes). Simply stated, there is no single positive political theory of legislative decisionmaking. Rather, a variety of theories have emerged to address various aspects of legislative politics. Our approach reflects this state of affairs in the theory of legislative decisionmaking. 4 While there is reason to believe that members are at least partly instrumental, it is unwise for us, or the courts, to attribute any particular motivation to members of Congress. There is no basis, as a general rule, to assume that interest groups, the electorate, parties, or any other political actors dominate the legislative process. In the absence of a single theoretical standard for evaluating the Courts treatment of the legislative process, we turn to the more burdensome, but 112. For example, Bill Eskridges study of instances in which Congress has overridden Supreme Court decisions by statute found that states were among the most successful petitioners for such congressional action, William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 YALE L.J. 331, 348-49 (1991). 113. See, e.g., Symposium, Positive Political Theory and Public Law, 80 GEO. L.J. 457 (1992). 114. See, e.g., Kenneth A. Shepsle & Barry R. Weingast, Positive Theories of Congressional Institutions, in POSITIVE THEORIES OF CONGRESSIONAL INSTITUTIONS 5 (Kenneth A. Shepsle & Barry R. Weingast eds., 1995). Imaged with the Permission of Yale Law Journal [Vol. Ill: 1707 1730 HeinOnline -111 Yale L.J. 173

THE MAKING OF THE LEGAL PROCESS

In one of the most unusual decisions in the history of legal publishing, Foundation Press is printing the I958 tentative edition of Henry M. Hart, Jr. and Albert M. Sackss teaching materials on The Legal Process: Basic Problems in the Making and Application of Law. 1 Although The Legal Process remains unfinished to this day, it provided the agenda, much of the analytic structure, and even the name of the legal process school of the I950S and the ig6os.2 One need not embrace the proposition that The Legal Process is the most influential book not produced in movable type since Gutenberg3 to agree that these are unusually important teaching materials whose influence extends well beyond the students who studied them in a law school course. Despite their fame, The Legal Process materials presented us (the current editors) with several mysteries: How original were they? Why were the materials never published in the authors lifetimes? How did these unpublished materials gain the stature they enjoy today? This Commentary provides both background and our own informed speculation about the answers to these questions. We maintain that The Legal Process was a splendid synthesis of public law themes that had become prominent before World War II. Although the world view and assumptions of the materials were sharply questioned by the next generation, The Legal Process and its philosophy made a come-

A Common Law for Our Age of Colonialism: The Judicial Divestiture of Indian Tribal Authority over Nonmembers

IV. DIVESTING TRIBAL TERRITORIAL SOVEREIGNTY BY REDUCING THE SOVEREIGNTY ......................................................... 28 A. The Foundational Precedent: Williams v. Lee and Tribal-Court Jurisdiction in Civil Cases Brought by Nonmembers Against Members .................................................. 28 B. Congressional Authorization of Tribal Power ........................... 31 C. Tribal Criminal Jurisdiction over Nonmembers ....................... 34 1. Oliphant-Non-Indians and Criminal Jurisdiction ............ 34 2. Duro-Nonmember Indians and Criminal Jurisdiction .......... 39

Getting from Joe to Gene (McCarthy): The Avoidance Canon, Legal Process Theory, and Narrowing Statutory Interpretation in the Early Warren Court

TABLE OF CONTENTS 1. Statutory Interpretation at the Dawn of the Warren Court: The Legal Process Synthesis ............................................................. 404 A. The Postwar Approach to Statutory Interpretation ..................... 404 B. Legal Process Methodology and the Avoidance Canon in the Early W arren C ourt ..................................................................... 408 II. Legal Process Theory, the Rules of Avoidance, and the Political Subversion C ases ............................................................................... 4 13 A. The Model of Avoidance and Admonition in the Candid Service of Avoiding a Serious Constitutional Doubt: United States v. Rum ely .............................................................. 413 B. The First Wave of Subversion Cases in the Warren Court ......... 417 1. 1953-54 Terms: Explicit Incrementalism and Dr. Peters ..... 417

Adjudication and Its Discontents: Coherence and Conciliation in Federal Indian Law

Federal Indian law is rooted in conflicting principles that leave the field in a morass of doctrinal and normative incoherence. In this Commentary, Professor Frickey begins by criticizing two recent efforts to bring coherence to this field. One approach, which narrows the scope of inquiry and attempts to apply non-normative doctrinal analysis, ignores the fictional nature of much federal Indian law doctrine and fails to appreciate the significance of normative and historical principles lurking behind the doctrine. The other approach, which seeks to construct a single descriptive paradigm from the case law, fails because federal Indian law precedents do not lend themselves to a unified theory. Professor Frickey suggests that greater coherence and respect for basic normative principles are likely to result from conceiving of the field as involving the process of negotiation among sovereigns rather than of adjudication in federal court.

A Final Toast to My Network

In the last year of his life, Professor Philip P. Frickey began a book about his personal spiritual journey to serenity in the face of a terminal diagnosis. Forced by circumstances to confront the instinctive fear of death we all share, he had found a way to normalize it, with help from a remarkable network of colleagues, students, family, friends, and treatment personnel. Though he had nurtured this network for years-extending it with little effort to encompass the leading oncologists for his particular cancer-he was both astonished and profoundly touched when it enveloped him, sustained him, and even made him laugh. His oncologists dosed him with jokes as well as anticancer drugs, and he loved them for it. Professor Frickey intended the following essay to be the prologue to the book he ultimately chose not to write, despite the urgings of those closest to him. He had concluded that his primary message was gratitude-too small a topic, he said, to sustain an entire book. Besides, he was fully occupied with living in the present: appointments, work, family, friends, good books, baseball, and other simple pleasures became more enticing than a major writing project. Though he did not draft the prologue as a free standing essay, his coauthor and colleague Bill Eskridge pressed for its inclusion in the issue of the California Law Review (CLR) commemorating the Frickey Festschrift. He would have approved. And had he been able, he would have thanked CLR for allowing him to express his gratitude one last time, to the network ofpeople who supported him through his final illness.

In the Shadow of the Legislature: The Common Law in the Age of the New Public Law

It is a commonplace that we live in a statutory era. A century ago, statutes were considered intrusions into the pristine order of the common law.1 Today, legislatures are the primary source of law, and the statute books grow exponentially. Nevertheless, the common law has shown great vitality. In the past thirty years, for example, the law of products liability has undergone explosive growth.2 The common law has also retained its ability to respond to changes in social values. In contracts, old common law doctrines like employment at will are under increasing attack.3 In property, long-established rules are being challenged in the name of new social values.4 There is nothing new about change in the common law. But in an era of statutes, the role of the common law in formulating social policy has become problematic. Arguments for innovation in the common law are almost always challenged on the ground that the legislature, not the court, is the proper forum in which to argue for reform. Existing common law rules may be challenged for reposing too much policymaking discretion in the courts.5 In this essay, we explore how modem common law judges should view their role vis-a-vis the legislature. We suggest that the perspec-

Is Carolene Products Dead--Reflections on Affirmative Action and the Dynamics of Civil Rights Legislation

Introduction ................................................... 686 I. Carolene Products: The Implications of the Public Choice Critique .................................................. 689 A. The Supreme Courts Limited Use of Carolene Products Political Theory ............................ 691 B. Clarifying the Implications of a Successful Carolene Products Critique ..................................... 697 II. An Analysis of the Public Choice Critique ................. 699 A. Ackermans Critique of Carolene Products ............ 699 B. Critiquing the Critique: Flaws in the Public Choice Model as Applied to Racial Minorities ................ 701 1. Theoretical Shortfalls ............................. 702 2. Do Racial Minorities Have Political Parity? ....... 703 3. The Politics of Affirmative Action ................. 708 a. The 1964 Civil Rights Act ..................... 709 b. The Birth of Affirmative Action ............... 711 c. Affirmative Action From Ford to Bush ......... 713 III. Carolene Products and the Future of Affirmative Action in the Supreme Court ........................................ 716 A. Affirmative Action and Carolene Products Today: An Uneasy Equilibrium .................................. 717 B. Stare Decisis and the Future of Affirmative Action .... 720 Conclusion ..................................................... 727