This article lays out a legislative process failure theory of statutory interpretation. It first defends an intent-based approach to interpretation by arguing that Congress, in the process of drafting statutes, does not use the same mechanisms for determining meaning as do courts when they interpret them. Therefore, courts and legislatures comprise different linguistic interpretive communities. The article proceeds to define legislative process failure to occur when the mechanism of each community leads to different understandings of statutory text. The paramount question then becomes: what is the best response of the legal system to such failure? Legislative supremacy requires that the courts and Congress come to some accommodation to ensure that courts will interpret statutes in accord with the legislature’s understanding. That assumption, however, is satisfied so long as Congress knows how courts will interpret statutes and can adjust its process to ensure that the statutes it enacts will be interpreted as it intends.
Legislative process failure theory therefore leads to the subsequent question: which branch should accommodate the other’s method of attaching meaning to statutes, and under what circumstances? I conclude that, generally, legislatures cannot engage in judicial type inquiries into statutory meaning while drafting statutes because the cost of engaging such statutory analysis ex-ante – before identification of the potential provisions that might exhibit process failure – is prohibitive. But, once the legislature becomes aware of a process failure, the costs of engaging in judicial type textual inquiry become manageable, and the error costs of interpretation due to strategic manipulation of legislative meaning greatly increase. Hence, in the face of such awareness, usually a textual approach is justified.
Finally, having developed the legislative process failure of interpretation, the article considers several types of failures for which courts should accommodate the legislative approach to attaching meaning to statutes.
Very interesting and recommended.