The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
When I was still in college, co-conspirator Nick Rosenkranz published a justly famous article called "Federal Rules of Statutory Interpretation," arguing that Congress could and should authorize written rules for interpreting federal statutes. (As Nick noted, there already are such rules in peripheral portions of the U.S. Code and in the states.)
That sounds fine to me and may even be a good idea. But in our paper, we argue that we should pay more attention to the laws we already have—unwritten though they are. The rules of statutory interpretation that Congress could pass would be law. So, too, the unwritten rules that we already have are law, in pretty much the same way.
Now the fact that the rules are unwritten can seem a little less intuitive, at first. But unwritten law is a deeply embedded part of our legal system. On the private law side we have unwritten law for interpreting contracts and wills. On the public law side we have unwritten law of criminal defenses (such as duress, necessity or self-defense in the federal system). Just the same, we have unwritten public law of interpretation—such as the rule of lenity or the canon against implied repeals.
I won't bore you with the specifics of all of the rules we envision (but you can read the paper if that doesn't sound boring!). But the categories include both the structure of interpretation—what to interpret and how, which we think is a sort of impure textualism or constructed legislative intent—and also an array of interpretive rules:
- Interpretive defaults (the mens rea canon; the scrivener's error doctrine)
- Priority rules (the last in time rule; the canon against implied repeals)
- Closure rules (the rule of lenity; the rule that "he who asserts must prove")
And while it may seem weird for this unwritten law to affect the meaning of a statute enacted by Congress, it's no weirder than with any other legal default. Thanks to the last-in-time rule, Congress always has the power to override an interpretive default it doesn't like, and probably can override most rules about the structure of interpretation as well. But it usually doesn't, meaning that most of the time, interpretation hinges on unwritten law.