Essay: Statutory Interpretation As A Multifarious Enterprise

Copyright 2010 by Northwestern University School of Law Printed in U.S.A.
Northwestern University Law Review Vol. 104, No. 4

1559
Essay
STATUTORY INTERPRETATION AS A
MULTIFARIOUS ENTERPRISE
Todd D. Rakoff

INTRODUCTION........................................................................................................... 1559
I. AN EXAMPLE ..................................................................................................... 1560
A. An Interpretation Based on Formal Legal Documents.............................. 1561
B. An Interpretation Based on an Analysis of the Situation........................... 1565
II. THE TWO METHODS COMPARED......................................................................... 1567
III. ARE MULTIPLE APPROACHES LEGITIMATE?........................................................ 1570
IV. CHOOSING THE APPROPRIATE FRAME OF REFERENCE ......................................... 1575
CONCLUSION.............................................................................................................. 1585
INTRODUCTION
What is the best way to interpret statutes?
The hard truth of the matter, wrote Henry Hart and Albert Sacks
better than a half-century ago, is that American courts have no intelligible,
generally accepted, and consistently applied theory of statutory
interpretation.
1
In the intervening years, and especially in the last quarter-
century, various writersmostly scholarshave tried to provide the
needed theory.
2
Through their efforts we undoubtedly now have a more
subtle understanding of the problems involved than we once did. At the
same time, it continues to be remarked, and in a statistical way even
demonstrated, that judges in general do not restrict themselves, sometimes
even within a single opinion, to following any single theory of statutory
construction.
3

Byrne Professor of Administrative Law, Harvard Law School. I thank the participants in the Har-
vard Law School faculty summer workshop, and Peter Strauss of Columbia Law School, for helpful
comments on earlier drafts.
1
HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS 1169 (William N. Eskridge &
Philip P. Frickey eds., 1994).
2
For a recent, comprehensive review of the state of the literature, see FRANK B. CROSS, THE
THEORY AND PRACTICE OF STATUTORY INTERPRETATION (2009). For a briefer treatment, see Elizabeth
Garrett, Legislation and Statutory Interpretation, in THE OXFORD HANDBOOK OF LAW AND POLITICS
360, 36075 (Keith E. Whittington et al. eds., 2008).
3
See James J. Brudney & Corey Ditslear, Canons of Construction and the Elusive Quest for Neutral
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
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Perhaps we are looking for the wrong thing. Perhaps there is no theory
that would justify its being the consistently applied theory of statutory
interpretation. As the title of this Essay suggests, that is my thesis. My
claim is that there are many legitimate and useful modes of statutory
interpretation, that these methods can look very different from one another,
and that choosing the right one in any given instance is not a question of
theory in the ordinary sense of the term but of appropriateness or fit. I
urge this partly to take account of the fact that, in our society, many other
actors besides judges have the need, and often the obligation, to interpret
statutes, often with definitive results. But this approach also presents the
possibility that judges, or at least some of them, could explain to our
satisfaction what they are doing: they are pursuing their craft by choosing
the right tools for the varying tasks at hand, just the way most other
craftspeople do.
I begin with an example of a statute in need of interpretation and
proceed from there.
I. AN EXAMPLE
To show what I have in mind, I am going to pursue a straightforward
question of statutory interpretation using two very different methods. The
question arises from the Federal Family and Medical Leave Act of 1993
(FMLA).
4
As far as I can tell, it has never been litigated, at least in a
reported case.
Broadly speaking, the FMLA entitles employees to take up to twelve
weeks of leave from work during any twelve month period for certain
medical and family purposes.
5
The leave is unpaid, but employers are
required to maintain preexisting health care benefits and to restore
employees, at the end of their leaves, to their former jobs or the equivalent.
6

The circumstances for which this protected leave is available include the
care of a newborn, adoption of a son or daughter, an incapacitating serious
health condition of the employee, and this:
In order to care for the spouse, or a son, daughter, or parent, of the employee,
if such spouse, son, daughter, or parent has a serious health condition.
7

Reasoning, 58 VAND. L. REV. 1, 4451 (2005); Jane S. Schacter, The Confounding Common Law
Originalism in Recent Supreme Court Statutory Interpretation: Implications for the Legislative History
Debate and Beyond, 51 STAN. L. REV. 1, 1437 (1998); Nicholas S. Zeppos, The Use of Authority in
Statutory Interpretation: An Empirical Analysis, 70 TEX. L. REV. 1073, 1091120 (1992).
4
Family and Medical Leave Act of 1993, Pub. L. No. 103-3, 107 Stat. 6 (codified in scattered sec-
tions of 29 and 5 U.S.C.).
5
Id.
6
Id.
7
29 U.S.C. 2612(a)(1)(C) (2006).
104:1559 (2010) Statutory Interpretation
1561
The present question concerns the meaning of the term parent. This
is not an inherently ambiguous word, and in many situations it will mean
the same thing regardless of interpretive method. But it is a much-remarked
pattern in our society for a married couple, having raised children, to turn to
the care of such of their parents as are still alive and need help. Suppose
one of these elderly people has a serious health condition and needs
care. Who will help? Suppose the couple decides that the best person to
care for the elderly person is the spouse who is not the child of the person
being cared for. Does that caregiver qualify under the FMLA for a
protected leave? Or is caring for a parent-in-law different from caring for a
parent?
A. An Interpretation Based on Formal Legal Documents
One way to approach this question of the dimensions of the statutory
term parent is to try to answer it, insofar as possible, by reasoning from
the various applicable legal documents.
We start with the directly applicable statutory provision just quoted. It
lists spouse, son, daughter, and parent, and all of these are
qualified by the phrase of the employee. Should we inferperhaps under
the maxim expressio unius est exclusio alteriusthat parent-in-law is
specifically excluded? Taken by itself, that argument is insufficient, since it
does not quite meet the counter-contention that parent-in-law really is in
the list, contained in the word parent. (What, after all, is the use of the
phrase in-law, if not to assert equivalence for a purpose like this?) But
the argument for exclusion gains considerably greater force when we
recognize that parent is a term defined by the statute:
The term parent means the biological parent of an employee or an individual
who stood in loco parentis to an employee when the employee was a son or
daughter.
8

Now it does seem that the drafters of the text paid attention to the scope of
the term parent and insisted that the person to be cared for be, in the
ordinary case, a biological parent of an employee.
The most important piece of legislative history, the Report of the
Senate Labor and Human Resources Committee, supports this restrictive
view (albeit without directly addressing it).
9
This Report speaks of the
employee who faces the serious illness of his or her own parent or
spouse
10
and includes, as human interest vignettes illustrating the need for

8
Id. 2611(7). The included phrase son or daughter is also a defined term. See id. 2611(12).
9
See S. REP. NO. 103-3 (1993). This report is the principal piece of legislative history because the
Senates bill became the finally enacted language and because the Committee was chaired by Senator
Kennedy, long-time sponsor of the legislation.
10
Id. at 10.
1562
this part of the Acts coverage, the cases of two women, each of whom
faces difficulties trying to care for a person described as her aged father.
11

Against all this we have to consider the following provision of the Act,
included some eighty lines of statutory text after the main coverage
provision:
Spouses employed by same employer[]In any case in which a husband and
wife entitled to leave . . . are employed by the same employer, the aggregate
number of workweeks of leave to which both may be entitled may be limited
to 12 workweeks during any 12-month period, if such leave is taken
(1) under subparagraph (A) or (B) of subsection (a)(1) [of the coverage
provision, that is, to care for a newborn son or daughter or because of an
adoption]; or
(2) to care for a sick parent under subparagraph (C) of such subsection.
12

The overall effect of this somewhat curious language is, in the
situations named, to give two spouses working for the same employer only
the amount of leave in total that each of them would individually have been
entitled to if they instead were working for separate employers. This
provision, says the Senate Report, is intended to eliminate any employer
incentive to refuse to hire married couples.
13
Why would the Act, without
this provision, create such an incentive? There is no reason to think, for
example, that two people married to each other are each more likely to
develop a serious illness justifying leave in the same year than are the two
unrelated people who might have been hired instead. But if the couple has
a child, or adopts one, there is such a reason: under the gender-neutral
provisions of the Act, this single birth or adoption would entitle each
member of the couple to twelve workweeks of leave, taken either
simultaneously or within the same twelve months. Presumably, that is why
childbirth and adoptionthe circumstances included within subparagraph
(A) or (B) of subsection (a)(1)are included here, while the employees
own serious health conditionthe circumstance included under
subparagraph (D) of subsection (a)(1)remains unnamed.
What, then, is the implication of the specific inclusion of caring for a
sick parent? When would it be that a husband and a wife would both be
caring for a parent? We can safely assume that Congress was not
addressing the possibility of an incestuous marriage. To say that the
language was addressing the possibility of both spouses having to look after
their individual biological parents within the same twelve-month period
would be to describe a situation in which there is no special reason to think
married couples were more likely to impose a burden on an employer than
were two otherwise similar but unrelated employees. Rather, it seems that

11
Id. at 1011.
12
29 U.S.C. 2612(f).
13
S. REP. NO. 103-3, at 28.
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this provision is written on the assumption that a husband and wife might
each be caring, at some time during the year, for the same persona person
who is the biological parent of one of them and thus related to the other
only as an in-law. And it further assumes that, except as provided in this
provision, both of those persons would be entitled to leave. There is,
moreover, modest support in the Senate Report for this reading: in its
Summary of the Bill, the Report says that [s]pouses employed by the
same employer are limited to a total of 12 weeks of leave for the birth or
adoption of a child or for the care of a sick parent with both child and
parent in the singular.
14

What, then, are the choices for interpreting the term parent? One
possibility is to understand the definition of parent as restricted to the
employees own biological parents, with the in loco parentis exception. In
this case, insofar as the provision above applies to spouses both caring for a
parent, it seems to have no purpose. Another possibility is to read both the
initial provision for leave and the limitation for married couples as
effective, making them as consistent with each other as we can make them.
In that case, we should say that the basic description of leave to care for a
parent (including the definition of parent) should not be read with the
negative pregnant that excludes parent-in-law, but rather that parent
should be read to include that relationship.
15
If that is so, even when
spouses work for different employers, each is entitled to leave in order to
care for a parent-in-law.
Or should we say that the statute is ambiguous between these
possibilities? That alternative is of legal, not just linguistic, consequence
because of the Chevron doctrine.
16
The basic mode for enforcement of the
Family and Medical Leave Act is through the courts, initiated by lawsuits
brought either by employees themselves or by the Department of Labor.
17

But the Secretary of Labor is also given the authority and responsibility to
prescribe such regulations as are necessary to carry out the basic

14
Id. at 2. I should perhaps point out that this spouses employed by the same employer provision
differentiates among other cases because its limitation on leave applies to care for a sick parent under
subparagraph (C) while subparagraph (C) itself speaks of care for the spouse, or a son, daughter, or
parent, of the employee. 29 U.S.C. 2612 (a)(1)(C). This would apparently allow both parents to take
their full leaves to care for the same sick child, even if they worked for the same employer; accordingly,
the provision as a whole seems to underexecute the idea of not giving employers an incentive to refuse
to hire both married partners. In the absence of evidence as to why this was done, perhaps the best that
can be said is that there may have been a deal here to go so far and no further. Even if that were the ex-
planation, it does not destroy the point made in the text. The statute only needs to address the case of
caring for a sick parentor, if you like, the limitation on caring for a sick parent contained in this provi-
sion was only worth bargaining forif, without the language, both spouses would be entitled to take
protected leave.
15
The statutory definition would still do work: it would exclude step-parents (unless they qualified
under in loco parentis). See 29 U.S.C. 2611(7).
16
See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
17
29 U.S.C. 2617.
1564
provisions of the Act.
18
The Department issued extensive regulations
shortly after the Act was passed and has recently comprehensively revised
them; in both cases there were notice-and-comment proceedings that, per
United States v. Mead Corp.,
19
make Chevron applicable in this context.
Both the original regulations
20
and the current ones
21
explicitly state
that parent does not include parents in law. The statement of basis
and purpose for the present regulations offers no explanation for this
decision and seems to carry over this part of the original regulatory
language without further thought.
22
But at the time the first set of
regulations was being adopted, many participants in the process urged that
the final regulations specify that parents-in-law be included, and the
statement of basis and purpose accompanying the original regulations
rejected that claim explicitly.
23

The agency proffered no particular policy reason for making this
choice. It is always possible that, because the agency wrote the regulations
just after the statute had been enacted, it had some additional, unexplained
insight into what Congress was trying to accomplish. What it said,
however, was that [s]tandard rules of statutory construction required the
result, given the Acts definition of parent.
24
However, the regulations
adopted to implement the provision of the Act regarding two spouses with
the same employer also said, without further explanation, that the couple
may be limited to a combined total of 12 weeks of leave . . . if the leave is
taken: . . . (3) to care for the employees parent with a serious health
condition.
25
The regulations thus replicated the confusion present in the
statute itself with no notice of, or effort to resolve, the disjunction.
26

So where does this leave us? The statute seems somewhat confused,
and there is a duly promulgated regulation providing that parent does not
include parent-in-law. The agency justified this regulation based on its
reading of the text of the statute but did not fully address the complications
involved. If we view Chevron as saying that courts need a strong reason for
overturning an agencys regulations when a statute is doubtful, then the
regulation should prevail. If, however, we view Chevron as saying that
courts should defer to an agencys view when it is based on policy

18
Id. 2654.
19
533 U.S. 218, 22627 (2001).
20
29 C.F.R. 825.113 (1995).
21
29 C.F.R. 825.122 (2009).
22
See Family and Medical Leave Act of 1993, 73 Fed. Reg. 67,934, 67,95051 (Nov. 17, 2008).
23
Family and Medical Leave Act of 1993, 60 Fed. Reg. 2180, 2191 (Jan. 6, 1995).
24
Id.
25
29 C.F.R. 825.202 (1995). The unhelpful discussion of this language in the statement of basis
and purpose is in Family and Medical Leave Act of 1993, 60 Fed. Reg. at 2201.
26
The new regulation is organized differently but seems to end up at the same conclusion. See 29
C.F.R. 825.201 (2009). The statement of basis and purpose offers little enlightenment. See Family
and Medical Leave Act of 1993, 73 Fed. Reg. at 67,973.
1565
considerations but should not defer when the question is one of traditional
statutory interpretation, then a court should insist on what is probably the
better (albeit not unambiguous) view of the text: that parent does include
parent-in-law.
27
A legitimate judicial opinion could be written either way.
B. An Interpretation Based on an Analysis of the Situation
Let us now see what this question of statutory interpretation looks like
if we approach the problem in an entirely different fashion. We are still
trying to determine the legally effective meaning of parent used in the
statutory specification of one of the grounds for an entitlement to leave: In
order to care for the spouse, or a son, daughter, or parent, of the employee,
if such spouse, son, daughter, or parent has a serious health condition.
28

But instead of tying our analysis of parent to the intricacies of, and
varying authority of, numerous legal texts, let us instead begin with the
situation the statute was addressing and look for the meaning of parent
from that point of view.
The Family and Medical Leave Act makes it possible for employees to
take leave when their own health requires itwhich is not the situation that
makes parent relevantand to care for others when they need help
which is where the scope of parent matters. Parent describes a familial
relationship, as do the statutes other coverage terms: spouse, son, and
daughter; it seems uncontroversial (whatever the wisdom of the matter) to
say that the FMLA distinguishes care in a familial relationship from other
possible types of caring relationships. Moreover, the statute distinguishes
immediate family relationships from extended family relationships.
Providing care for an uncle does not count. Thus, it seems reasonable to
understand the statute as directed to helping (or at least making it possible
for) the working members of the family unit to assume a family obligation
of care for a close family member.
In this situation, is providing care for a parent-in-law sufficiently like
providing care for a parent that it should be understood to be included in
the statute? A parent-in-law is of course a family member as the statute
understands family, because he or she is already a parent to one of the
spouses. The question for the family unit is this: which of the spouses
ought to provide the needed care requiring absence from work? If we
imagine a discussion between the spouses addressing that question, we
might find them considering the following, among other matters: which of
them is better at rendering care; if both work, who makes more money at
work, or whose job demands more ongoing personal continuity; which of
them gets along better with the ill person; how they feel (pro or con) about

27
See Carcieri v. Salazar, 129 S. Ct. 1058, 1069 (2009) (Breyer, J., concurring) (rejecting Chevron
deference although there was statutory ambiguity because the decision did not implicate departmental
expertise).
28
29 U.S.C. 2612(a)(1)(C) (2006).
1566
the cultural stereotype that, for many, still counsels that this type of work is
womens work; whether one of them is already occupied with other
caregiving responsibilities; and so on. Of course, even in discussions
within the family unit, it might come down to biological connection; shes
your mother is a not-unheard-of claim. But allowing coverage for a
parent-in-law does not eliminate coverage for a parent. If we view the
family as a working relationship to which society often leaves (or delegates)
matters of care and understand the matter from the point of view of the
participants, a rule that allows for the care of both parents and parents-in-
law, and therefore allows the choice of caregiver to be made on other-than-
biological grounds, better matches the situation.
When I say better matches, it is not that ordinary employees cannot
see the linguistic ambiguity in parent or cannot distinguish between the
terms parent and parent-in-law. It is rather that, from a practical point
of view, they would resolve the ambiguity in favor of understanding the
statutes use of parent to include both possibilities. It would not make
sense to them for the law both to help them care for aged members of the
family and yet to draw a distinction between a biological parent and a
parent-in-law. The point is behavioral as well as linguistic: the
interpretation depends on the distinctions people make (or do not make) as
they go about their business, not just the way they speak.
29

Which is not to say that there is no counterargument to be made, even
using the general method of looking at the situation rather than at the
intricacies of various formal texts. If the statute is viewed as directed to
individuals carrying out their responsibilities, rather than to families doing
the same, the statutory selection of spouse, son, daughter, and
parent might simply name the conventionally most important
relationshipsthe ones where it matters most to people that they be
allowed leave to provide care. On that basis, do parents and parents-in-law
stand on the same footing? The actual relationships that exist between

29
See Justice Grays mix of linguistic and behavioral evidence when speaking for the Court in Nix
v. Hedden, 149 U.S. 304 (1893), where the question (for tariff purposes) was whether the tomato was a
fruit or a vegetable:
Botanically speaking, tomatoes are the fruit of a vine, just as are cucumbers, squashes, beans, and
peas. But in the common language of the people, whether sellers or consumers of provisions, all
these are vegetables, which are grown in kitchen gardens, and which, whether eaten cooked or
raw, are, like potatoes, carrots, parsnips, turnips, beets, cauliflower, cabbage, celery, and lettuce,
usually served at dinner in, with or after the soup, fish, or meats which constitute the principal part
of the repast, and not, like fruits generally, as dessert.
Id. at 307.
Should we also ask how employers conceive of this situation? I think not. An employer asked to
grant leave might (or might not) have an opinion on whether care for a parent-in-law should qualify, but
it would not be an active participant in the underlying caregiving situation. However, the practices of
employers might well be relevant for other issues arising under the Act, such as what constitutes em-
ployment at a specific worksitewhich is relevant for purposes of counting the number of employees in
order to apply the Acts exclusion of small employers.
1567
individual spouses and their parents-in-law vary widely. Some married
people spend their whole lives estranged from their in-laws, while others
live in the same house with them and call them mom and pop. Of
course, the relationships between adults and their own parents run a gamut
as well. But if one hazards the guess that in general each adult cares more
about his or her own parents than about his or her spouses parents, then,
from this point of view, reading the statute to distinguish the cases would
make sense.
Although this second alternative exists, the first way of trying to
understand the statute in terms of the situationthat is, the approach that
sees it as fundamentally about a familial rather than individual situationis
probably to be preferred. It embodies a richer and more dynamic sense of
the context. And there is some support for it in the words of the statute; as
Congress explicitly stated, the first-named purpose of the Act is to balance
the demands of the workplace with the needs of families.
30
But just as we
concluded a few pages ago with regard to basing the Acts interpretation on
the intricacies of various formal legal texts, here, too, a judicial opinion
could probably be written either way.
31

II. THE TWO METHODS COMPARED
We have looked at two very different methods by which the statutory
term parent could be interpreted. The first method emphasizes the
multiplicity, intricacies, and relative authority of legal texts; the second
emphasizes the interplay of the core statutory language with the practical
situation to which it is addressed.
32
How should we evaluate these
differences?
As is evident, the distinction between these two methods is not that
one solves the problem and the other does not. Alternative conclusions
are possible within each method. This result is not, in my view, surprising.
There is a large body of literature to the effect that neither in theory nor in
fact do alternative methods of statutory interpretation, by themselves,
decide most cases of any difficulty.
33
There are usually subsidiary,
embedded issues that can go one way or the other. But that does not mean
that the choice of method is irrelevant: different methods raise different
subsidiary, embedded issues. If we ask of doctrines of statutory
interpretation not that they control the case, but that they direct the attention
of the interpreter to what it is that ought to matter, then the choice is real.

30
29 U.S.C. 2601(b)(1).
31
See supra Part I.A.
32
I should acknowledge that I have purposefully avoided giving either method any of the possible
conventional names that might be used to describe it for fear of entangling my argument in various con-
troversies that would be subsidiary to my main point.
33
See, e.g., CROSS, supra note 2, at 199200 (describing trends in circuit court practice of varying
methods of statutory interpretation); Brudney & Ditslear, supra note 3, at 28.
1568
Accordingly, we might begin our comparison of these two methods by
asking what range of materials, what sorts of factual predicates, each of
them uses. Here is a list for the first method:
The specific statutory provision being construed: In order to care
for the spouse, or a son, daughter, or parent, of the employee . . . .
Other provisions of the Act: a statutory definition and another use of
the relevant words in a disparate provision
A committee report
An on-point administrative regulation and other regulations for
comparison
The agencys statements of basis and purpose accompanying its
regulations
Modest assumptions about social life
And here is a list for the second method:
The specific statutory provision being construed: In order to care
for the spouse, or a son, daughter, or parent, of the employee . . . .
Social understandings of biological and nonbiological family
relationships
Common intrafamily practices for allocating family burdens
Cultural stereotypes
Modest assumptions about the rest of the statute
Let us start by considering the first and last bullet points in each list.
As to the first, it is of course the same in each list: the specifically
applicable statutory provision. That is not remarkableit is hard to
imagine a method of statutory interpretation that does not consider the
words of the statute to be relevant. But I stress the point because I fear
some may think that the second method I have presented just invents the
law and has nothing to do with construing the statute. That is plainly
wrong. The second approach is an attempt to come to terms with the
statutory inclusion of parent within the statutory quadruplet of spouse,
son, daughter, and parent, just as much as the first one is. Absent
some constitutional claim, there would be no argument for covering
parents-in-law under either method if the statute were amended to exclude
them explicitly.
As to the last bullet point in each list, together they suggest, broadly
speaking, that these methods are not hermetically sealed off from each
other; instead, each makes modest reference to the materials thought most
important by the other. So, for example, in the first method, in trying to put
the different textual uses of parent together, it was necessary to assume
that incestuous marriages were rare in society and would not, for both
descriptive and prescriptive reasons, be the groundwork of congressional
action. And in the second method, it was helpful, in deciding which of the
1569
situational analyses was most persuasive, to mention the explicit statutory
statement of purpose with its reference to helping family units. Even in
their purest forms, methods of statutory construction are often
interconnected, differing in emphasis more than in absolute inclusion and
exclusion.
Which brings us to the middle bullet points. To see what is at stake in
their differences, we might view them within a broaderlonger and more
general but probably still not all-inclusivelist of sources that at one time
or another have been used to guide the interpretation of statutory terms:
Other parts of the same statute
Legislative materials surrounding passage of the statute
Uses of the same words in other, closely connected statutes
Common law usages
Interpretations by a relevant administrative agency
Dictionary definitions
Usual practices of lawyers expert in the particular field of law
Scientific or technical usages
Distinctions made in a relevant situation by a relevant trade
Lay usages and cultural meanings
Common social practices regarding a relevant situation
This list is organized, roughly speaking, to proceed from the most
specific sorts of materials to the most general.
34
What it reveals, I think, is
that the interpretive materials that are used to flesh out statutes are each
connected, expressly or impliedly, to an institutional context. This is not
accidental; it is this institutional context that potentially gives them force.
This is obvious as regards the materials at the very top of the list, which are
thought one way or another to show Congresss meaning. It seems clear
also in the middle of the list, where the organized expertise of
administrative agencies or of teams of lexicographers are claimed to
validate their interpretations. But it is also true as we move to the bottom of
the list. It is not the idiosyncratic voice of the single scientist or tradesman
that carries weight; it is the voice of the relevant science or trade as an
organized practice.
35
And as sociologists and anthropologists spend their
lives proving, common social and cultural practiceswhich appear at the
very end of the listare, in this sense, institutionally grounded too. They
bear the marks of the structures and social forces within which they were

34
As will become clearer, this list is not meant to represent a hierarchy of authority either top to
bottom or bottom to top, but rather an open field of choices that has to be put down on paper somehow.
35
This becomes clear if one considers how trade practice, for example, is proven in court as an in-
stitutional usage. For a particularly clear case arising from the parallel body of law in which parties
have tried to prove trade usage for purposes of interpreting the language of a contract, see Frigaliment
Importing Co. v. B.N.S. Intl Sales Corp., 190 F. Supp. 116, 117, 119 (S.D.N.Y. 1960), in which parties
tried to prove the trade usage of the word chicken.
1570
created, and of the efforts of people to deal reasonably with those situations;
they are not simply the statistical cumulation of personal eccentricities.
Choosing to use any of these materials for interpretive purposes means
choosing an institutional lens through which to see the matter at hand and
caring about how the matter looks from that point of view. Modern
scholarship has sensitized us to this fact as regards sources near the top of
the list that come from formal legal institutions.
36
But the point remains the
same as we move down the list.
Of course, one can consider a problem from more than one point of
view. Presumably one wants to choose the point of view that is (or points
of view that are) most significant for the matter at hand. That, I think, is
what is at stake in comparing the middle bullet points for the two methods
of construing parent in the FMLA. The first method uses materials that
highlight the interpretations and interactions of the formal governmental
institutions involved.
37
The second method uses materials that highlight the
common practices and meanings generated by ordinary people faced with
the situation the statute addresses. If that is, broadly speaking, what is at
stake, two questions arise. First, are both approaches legitimate? Second,
if they are, how are we to decide when one is to be preferred over the
other?
38

III. ARE MULTIPLE APPROACHES LEGITIMATE?
Undoubtedly, the first method we have looked at, based on formal
legal texts, is more familiar than the second, especially among those who
have read the recent academic literature on statutory interpretation.
39
There
seems to be no doubt as to its overall legitimacy, notwithstanding whatever
disputes remain as to its best incarnation. But just because method two,
based on a situational analysis, is unfamiliar does not imply that it is

36
See, e.g., John F. Manning, Textualism as a Nondelegation Doctrine, 97 COLUM. L. REV. 673,
695706 (1997).
37
I acknowledge that I have suppressed many local disputes (such as whether judges should, or
should not, consult legislative history) in my effort to present a broader terrain that, it seems to me, has
often been missed.
38
Perhaps this is the place to mention that I do not propose to address the further complications
raised when there is a large span of time between the passage of a statute and its application to a novel
question. The issues are thoughtfully canvassed in WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY
INTERPRETATION (1994), and Peter L. Strauss, On Resegregating the Worlds of Statute and Common
Law, 1994 SUP. CT. REV. 429.
39
See Jonathan Molot, The Rise and Fall of Textualism, 106 COLUM. L. REV. 1, 2329 (2006)
(moderate textualism has prevailed and only minor squabbles remain). But see John F. Manning, What
Divides Textualists from Purposivists?, 106 COLUM. L. REV. 70, 11011 (2006) (something substantial
does remain). To get a clear statement of what I have presented as the second method, it may be neces-
sary to go back as far as Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules
or Canons About How Statutes Are to Be Construed, 3 VAND. L. REV. 395, 397 (1950), claiming that
what matters most is the sense of the situation as seen by the court.
1571
illegitimate. Is there only one proper method, or can method two also be
used?
The claim that some version of the first method is in principle the only
permissible method for construing statutes rests, as far as I can tell, on the
claim that every issue of statutory interpretation is framed by two
overwhelmingly important facts: the statute is passed by a legislature that is
democratically elected, and it is interpreted by a court that is not.
40
This
combination is thought not only to require legislative supremacy in the
ordinary sensefor example, in the sense that a legislature can amend a
statute to override a courts statement of the law based on the statutes prior
versionbut also to limit drastically the options open to courts when
statutes are ambiguous, have gaps, or conflict with each other. These two
facts are, of course, highly relevant under method one, with its emphasis on
the relative value of materials generated by various governmental
institutions. But they would be treated as not especially relevant under
method two, which on this theory would therefore be a poor choice. More
generally, since these two facts are thought to be constitutionally inflected,
this claim comes down to the proposition that some version of method one
is the only legitimate version of statutory interpretation.
Building a theory of statutory interpretation simply on this basisthat
what is always the fundamental issue is the interpretation of the expression
of the democratic will by an unelected judiciaryfaces great difficulties.
First, most of the judges who give statutes their final interpretations are
elected. A great many statutes are passed by state legislatures covering, for
example, almost all of our criminal law and the fundamentals of our
commercial law. Their authoritative construction belongs to the state
supreme courts, and the state supreme courts in most states are composed of
elected judges.
41
If being unelected is the crucial fact, then we need two
completely separate theories of statutory interpretation: one for jurisdictions
where judges are elected, and one for where they are not.
42
But no one, as

40
See, e.g., ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 22
(1997) (It is simply not compatible with democratic theory that laws mean whatever they ought to
mean, and that unelected judges decide what that is.).
41
The justices of thirty-eight out of fifty state supreme courts face some sort of election; the twelve
outliers are in New England, along the eastern seaboard, and in Hawaii. See Jed Handelsman Shuger-
man, Economic Crisis and the Rise of Judicial Elections and Judicial Review, 123 HARV. L. REV. 1061,
106364 & n.2 (2010). The failure of the recent literature to take account of this fact may come from
the present tendencynot universally shared, but a real oneto view the question How should statutes
be interpreted? as synonymous with the question How should the Supreme Court of the United States
interpret statutes? The writers on legislation from earlier generations tended to deal with statutes on a
much larger canvas. See, e.g., James McCauley Landis, Statutes and the Sources of Law, in HARVARD
LEGAL ESSAYS 213, 21334 (Roscoe Pound ed., 1934); Roscoe Pound, Common Law and Legislation,
21 HARV. L. REV. 383 (1908).
42
The same point would apply to theories that emphasize other particularities of the Federal Consti-
tution. See, e.g., John Manning, Textualism and the Equity of the Statute, 101 COLUM. L. REV. 1, 5870
(2001) (arguing that in considering role of federal judges vis--vis legislation, it is important to consider
1572
far as I know, actually carries the proposition to this logical conclusion. To
the contrary, the leading treatise on statutory construction intermingles
citations to federal cases, to state cases from unelected courts, and to state
cases from elected courts.
43
If the response is: Well, those state-court
judges may be elected, but they are still supposed to behave like judges,
then that is the pointthe role of judge as we understand it is not
determined by whether judges are elected. After all, being unelected is not
equivalent to being a usurper: federal judges, and the judges in the
nonelecting states, are still selected to be judges through constitutionally
prescribed means. At least in the federal system, those means are firmly
controlled by elected officials: the President and the Senate. In short,
judges are selected, one way or another, to act like judges, a role whose
specifications does not depend on the presence or absence of popular
election.
Once it is conceded, however, that the only restraint is that the judge
should act like a judge, there is simply no basis for saying that there is only
one judge-like way to think about statutes. There are outer limits, of
course; judges who decide casescommon law, statutory, constitutional,
whateverthrough necromancy are not doing the judges job. But there is
a wide variety of what they can do, and have done, while still considering
themselves to be judges. For example, it may be that what I have called
method two is closer to common law thinking than method one iscloser,
that is, to using statutory terms as a foundation for analogical reasoning
based on common social patterns (within the possibilities of the statutory
text). If that is so, does it prove that the method is not judicial? I would
have thought the opposite. Of course, there may be better and worse ways
to do the job of statutory construction, but that is the point; within a broad
range, alternative methods are better or worse, not legitimate or
illegitimate.
Second, most statutory interpretation is not done by judges. Judges
necessarily act after the factafter the interpretive work done by ordinary
citizens trying to comply with the law, by private lawyers advising clients,
by public prosecutors deciding what charges (if any) to bring, by
administrative agencies enforcing statutes or making rules, and so on. In
most instances, these nonjudicial determinations will have a determinative
effect, either as a matter of law under a principle of deference or
nonreviewability, or as a matter of practice because the determination will
never be tested in court.
44
Unless we believe that statutory interpretation is

specific features of the U.S. Constitution such as life tenure for judges and protection of interests of
small states in apportionment of the Senate).
43
See, e.g., NORMAN J. SINGER & J.D. SHAMBIE SINGER, Criteria of Interpretation, in STATUTES
AND STATUTORY CONSTRUCTION 45 (7th ed., 2007).
44
See Kent Greenawalt, A Pluralist Approach to Interpretation: Wills and Contracts, 42 SAN
DIEGO L. REV. 533, 548 (2005) (Unofficial interpretation is the crucial backdrop for official interpreta-
tion.).
1573
legitimate only when based on a prediction of what judges would do, were
they to construe the statute on their ownand not even Justice Holmes
thought that predicting what the judges would do had normative force
45
there is no reason to limit all of this statutory interpretation by the particular

limitations of the role of the judge. There are many social processes in
play; why should the supposed situation of one of them assume paramount
importance?
46

Moreover, the fact that statutory interpretation takes place in many
institutional settings is not a necessary evil; it is an affirmative good. We
all too easily fall into an outmoded view of what modern legislation entails.
We imagine the ideal statute as one in which the legislature unambiguously
and fully specifies all its applications, thereby producing a statute that can
be applied by a judge (or other reader) to any relevant situation without a
need for interpretation once the particular facts have been determined. But
as Edward Rubin has convincingly argued, if we approach the problem
from the point of view of statutory design for a modern society, the statute
that simply states a rule that can be employed by judges without significant
interpretation is really just a corner solution existing in a much larger array
of intelligent possibilities.
47
To use Rubins terminology, a great many
statutory directives are intransitivethat is, incapable of being directly
applied to primary action and in need of further transformation before they
can be so used.
48
A directive to an administrative agency to formulate rules
to flesh out a vague statutory standard is the archetype here, but it is by no
means the only case. Rubin discusses as common examples statutes that
focus on stating goals rather than rules and statutes that focus on
establishing implementation processes other than rule application.
49
This
intransitivity could represent a failure of design, but often it represents a
recognition that there are many kinds of directives other than fully fleshed-

45
See Oliver Wendell Holmes, Jr., The Path of the Law, 10 HARV. L. REV. 457, 45762 (1897) (as-
serting that predicting what judges will do is the central inquiry of the bad man as well as the good).
46
The proposition that administrative agencies, when interpreting statutes, ought not mimic judicial
analysis was first asserted with regard to the use of legislative history in Peter L. Strauss, When the
Judge Is Not the Primary Official with Responsibility to Read: Agency Interpretation and the Problem of
Legislative History, 66 CHI.-KENT L. REV. 321, 35153 (1990). The claim was expanded to a broad
range of interpretive techniques in Jerry L. Mashaw, Norms, Practices, and the Paradox of Deference: A
Preliminary Inquiry into Agency Statutory Interpretation, 57 ADMIN. L. REV. 501, 50436 (2005), with
which ADRIAN VERMEULE, JUDGING UNDER UNCERTAINTY 21315 (2006), is basically in agreement.
For a defense of the proposition that agencies should mimic judges, see Richard J. Pierce, Jr., How
Agencies Should Give Meaning to the Statutes They Administer: A Response to Mashaw and Strauss, 59
ADMIN. L. REV. 197 (2007), to which Mashaw responded with Agency-Centered or Court-Centered
Administrative Law? A Dialogue with Richard Pierce on Agency Statutory Interpretation, 59 ADMIN. L.
REV. 889 (2007).
47
See Edward L. Rubin, Law and Legislation in the Administrative State, 89 COLUM. L. REV. 369,
37172 (1989).
48
Id. at 38085.
49
Id. at 411, 418.
1574
out rules that can be usefully incorporated in legislation. Mechanisms of
this sort often represent better ways for a legislature to achieve its statutory
purposes than by writing a fully specified statute.
Although Rubin limits his analysis to legislative directives that fall in
the first instance on other governmental entities (including judges), there is
no reason in practice or in theory to do so. Designers of a statute to
authorize and structure private corporations might well conclude that their
purposes would be better achieved by stipulating processes for the
corporation to follow rather than by delineating substantive rules. And in
other situations one might simply decide to piggyback on existing social
processes, such as those that create trade usages, which in some cases are
formally enunciated by organized entities and in others grow as customs
grow. In each case, one may have to fill in a stated statutory norm with
further specifications drawn from private action before the final rule is
known. And this may well be true even when the issue is the rightness of
the behavior of participants in the very institution that makes the additional
specification. One must have some scruples, of course, about the degree to
which one puts public authority behind privately enunciated norms, but as
these examples show, those limits function at the margins and do not
control the basic design decisions.
50

Because issues of statutory interpretation do not arise unless a statute
has been passed, we are tempted to look at any statute from the point of
view of the enactors of the legislation. Because of our predisposition to
favor fully enacted statutes, we tend to try to see how the enactors might
have resolved the particular ambiguity or uncertainty that has arisen. This
approach has always been subject to the criticism that the point of view of
those subject to the legislationits readersought to count for
something.
51
To put the matter in language more commonly applied to
private documents, there has long been a dispute between the subjective
and the objective readings of statutory language. But we need now to
recognize that in addition to enactors and readers, there is another legitimate
category: the active users of statutes who have both the need and the
authority, delegated or recognized, to interpret statutes within some
significant leeway. These users are highly variegated, ranging from
administrative agencies to organized trade groups, to more loosely
constructed foci of expertise, on to ordinary people creating ordinary
customs.

50
The basic article on the matter is probably still Louis L. Jaffe, Law Making by Private Groups, 51
HARV. L. REV. 201 (1937). For a recent treatment, see Gillian E. Metzger, Private Delegations, Due
Process, and the Duty to Supervise, in GOVERNMENT BY CONTRACT 291, 291309 (Jody Freeman &
Martha Minow eds., 2009).
51
Most famously, this was the stance taken by Justice Jackson. See, e.g., Schwegmann Bros. v.
Calvert Distillers Corp., 341 U.S. 384, 396 (1951) (Jackson, J., concurring.).
1575
Indeed, one could go further to argue that among the desirable design
criteria for the legal system as a whole we should include keeping statutory
law close to social practices, rather than distantly formal (recognizing that,
at times, closeness implies changing common practice, too). Much can be
said for the proposition that legal systems in which customs, social norms,
and legislatively specified rules flow together are the most successful.
Certainly the judge-made common law has traditionally taken a similar
point of view.
But even if one does not embrace that further evaluative proposition, as
a matter of plain fact statutes undoubtedly do vary as to the degree to which
they stipulate the rules ultimately to be used or instead leave the applicable
norms open-ended. That fact can be understood as representing reasonable,
purposeful behavior on the part of legislators. A wide variety of
institutional arrangements can be sensibly enlisted. Some will have a
specific organizational locus; others may be more diffuse. In some cases,
the result will be most easily described in public law termsas a delegation
to an agency or to some group within societyand in other cases, most
easily in private law termson the model of adopting trade practice.
However described, determining what institutional locus should be looked
to in order to fill in the open areas is part of understanding the statutes
design and place within the legal system as a whole.
Correspondingly, if, in a matter of statutory interpretation raised in
court, a judge considers or even relies on materials generated by the
appropriate institutionwhich may well be something other than formal
legal texts enunciated by a formal legal institutionwhat he or she is doing
is not properly understood as stepping beyond the judicial role.
Understanding a statute on this level logically precedes determining the
meaning of statutory terms that are meant to be used as rules of behavior,
because determining the context vis-a-vis which the construction of the
rules is to proceed comes before the construing process itself.
52

Accordingly, if by statutory interpretation we mean the process of
deciding what conduct the statute authorizes or requires, there are many
legitimate methods of statutory interpretation, because there are, over the
broad range of statutory provisions, many legitimate institutional frames of
reference.
IV. CHOOSING THE APPROPRIATE FRAME OF REFERENCE
The implication of the foregoing is not merely that both of the methods
we looked at are to be taken seriously but that in fact there is a whole
spectrum of legitimate ways in which statutes can be interpreted. The issue

52
Of course, if, on the particular issue, the statute means the same thing in all of the potentially
relevant frames of reference, this analysis can be elided.
1576
then becomes how to choose, from among the legitimate possibilities, the
most desirable method for the case at hand.
What might this process look like? The best writing I know of on that
subject was penned forty-five years ago by Judge Henry Friendly,
commenting on (and quoting from) the opinions of Justice Felix
Frankfurtercraftsman on craftsman:
[I]t is well to set down some of the Justices hints on how to read. Ordinary
words should be read with their common, everyday meaning when they serve
as directions for ordinary people, as, for example, in the Selective Service
Act. A different principle applies to technical expressions: Tax language
normally has an enclosed meaning or has legitimately acquired such by the
authority of those specially skilled in its application. Words that have a well-
defined meaning in general speech may have a different sense in a particular
context: The recognized practices of an industryhere motor carriage
give life to the dead words of a statute dealing with it. Again, The Taft-
Hartley Act is not an abstract document to be construed with only the aid of a
standard dictionary. Although the ordinary English words that it uses, such
as national or international labor organization, may carry to the ordinary ear
. . . a meaning different from that which they carry in the domain of industrial
relations, the courts are bound to apply the latter.
Another important reading aid is to remember the kind of statute we are
reading. At one end of the spectrum are enactments such as the Sherman
Law that embody a felt rather than defined purpose and necessarily look to the
future for the unfolding of their content, making of their judicial application an
evolutionary process nourished by relevant changing circumstances, or
statutes empowering an agency to regulate under broadly defined criteria.
Statutes of this sort are to be read somewhat as the Constitution itselfthey
are open- rather than closed-ended, although even here expansion is limited to
the extent that the words with which [the] purpose is conveyed fairly bear such
expansion. At the opposite extreme is a statute which, in effect, was a
century-old land grant from the government to a railroad; such a specific
grant . . . does not gain meaning from time. Its scope today is what it was in
1862, and the judicial task is to ascertain what content was conveyed by that
section in 1862. Another variant is the strongly worded prohibitory
enactment, qualifying language or exceptions in which must not be read so
broadly as to stultify the declared end.
53

Judge Friendlys list of examples is, of course, just that. This is not
surprising since the forman essay of appreciationconstrains him to
draw from and quote cases that Justice Frankfurter decided. But we can
infer some of the principles that draw these examples together. One is
certainly that statutory language is to be read as though the legislature were
in dialogue with the audience impacted by the statutewith reference to
both that audiences use of language and to its practices. Another is that

53
HENRY J. FRIENDLY, BENCHMARKS 20304 (1967) (citations to Justice Frankfurters opinions
omitted).
1577
statutes vary by the extent to which they are open to evolutionary
development and by the entity entitled to take charge of that development.
(It is worth noting that deference to an administrative agency is not
something entirely distinct, but part of the same field of analysis.) Finally,
we might note a principle demonstrated by silence: ascertaining the kind of
statute under any of these principles is not necessarily dependent on
somehow identifying an actual intent or purpose of Congress. The
relevant point about the Selective Service Act is not that Congress meant
for it to be read in an everyday fashion but that the Act serve[d] as
directions for ordinary people.
54
It is a matter of the design of the statute
as seen in its overall institutional setting.
Taken at a higher level of abstraction, the process involved is one of
matching a statutory issue with an appropriate frame of reference. This
process of fitting is, in my view, something very different from what we
usually think of when we think of applying a theory of statutory
interpretation. It cannot be properly understood as fundamentally
consisting of the characterization of a set of facts under an applicable
principle derived from an overarching theory. Rather, it is based on at least
three closely connected points. First, there are many principles or
considerations in play; indeed, the set of potentially relevant factors is
always open. (For example, I would add to Judge Friendlys list, as often
relevant, the matter of what body of law the statute should be seen to be
part of: are the terms drawn from, or best interpreted as part of, the common
law, admiralty law, a specialized body of regulation, or whatever?)
55

Second, there is no tight algorithm available to connect those multiple
principles into an easily stated single metaprinciple; they need to be put
together in some more complex fashion. (There is, for instance, no
organized hierarchy of interpretive resources, such that there is a set starting
point, and one moves to a lower valued source only if a higher valued one
generates results that are useless or ambiguous.)
56
Third, the principles are
not highly theorized, and indeed are often susceptible to multiple theoretical

54
Id. at 203.
55
See, e.g., Williams v. Wilmington Trust Co., 345 F.3d 128, 133 (2d Cir. 2003) (Katzmann, J.)
(stating that owner in a seamans wage statute should be understood as owner is traditionally under-
stood in admiralty law).
56
On this point particularly, the multifarious approach I am proposing seems to me to differ from
what is often referred to as the pragmatic school of interpretation. For instance, William Eskridge and
Philip Frickey present their method as having a distinct form (their funnel of abstraction) superior to
purposivism, intentionalism, and textualism, and applicable in general to questions of statutory construc-
tion. See William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning,
42 STAN. L. REV. 321, 32425, 353 (1990). The fact that the method itself is an all-things-considered
method does not deny that the authors seem to assume that there is basically one type of statute and one
proper structure within which the issues should be addressed. That their mention of what they term
highly technical statutes, to be read as understood by the common sense of the special audience to
which the statute is addressed, appears only in a footnote, id. at 355 n.124, seems to me to confirm the
point.
1578
formulations. (Ordinary words should be read with their common,
everyday meaning when they serve as directions for ordinary people, for
example, might be grounded on the authority of the speakers point of
viewon the way we believe Congress talks when it talks about ordinary
things; or on the legitimacy of the audiences point of viewon the way
ordinary people are entitled to assume Congress talks, when it talks about
ordinary things.)
In my view, this process of multifactored, midlevel equilibration, this
nonfoundational approach, is the proper one to use for deciding how to
interpret the kinds of statutes we have in the kind of political and social
system in which we live. There are too many different kinds of statutes
used for too many different kinds of reasons for us to expect there to be a
workable singular theory of statutory interpretation. Whatever may have
been true a hundred years ago, today we recognize both that statutes can
constitutionally embrace any of a number of quite different substantive
objectives and also that our system is democratic not in the sense of the
pointed enunciation of a fully specified popular will by elected
representatives but rather in the sense of a legislatively controlled, but
widespread, diffusion among many institutions of law-applying, and to
some extent law-making, powers. We have come to accept the interpretive
implication of the variety of permissible purposes: we recognize that there
is an open field of substantive criteria that might be used to resolve
statutory ambiguities in particular instances, but no single general criterion
to be used in every case. Similarly, we should also accept the implication
that there is a plethora of potentially relevant institutional perspectives and
treat the choice among the interpretive resources they generate as an open
field of decision.
57

That said, choosing among the points of view of the enactors of a
statute, its readers, and its several types of users, once they are all
considered potentially relevant, is not easy. It is, of course, possible that the
legislature has explicitly stipulated a choice of interpreter for a particular
provision; absent constitutional constraint, that would seem to lie within its
prerogative.
58
But that is not the common case. More commonly what we

57
The truth of this proposition is more often acknowledged than its importance is recognized. For
example, Cass Sunsteins ambitious effort to organize the interpretation of statutory texts in modern
times appears to assume that even though we can generate only partial substantive canons to use for
interpretation, there is still a single systemic point of view from which interpretation in general can pro-
ceed. Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405 (1989).
At the same time, in a footnote Sunstein says: It is important to emphasize that my approach is directed
to regulatory statutes. Id. at 411 n.20. But there is little discussion of which statutes in the regulatory
state are to be thought of as regulatory statutes or of what we are to do with the rest of the legisla-
tures output. Is the FMLA a regulatory statute?
58
See, e.g., 29 U.S.C. 158(b)(5) (2006) (explicitly directing the Labor Board to consider the
practices and customs of labor organizations in the particular industry in deciding whether union mem-
bership fees are excessive or discriminatory); 213(a)(1) (2006) (explicitly delegating power to the
Secretary of Labor to define and delimit statutory terms bona fide executive, administrative or profes-
1579
have is ambiguous language in need of interpretation and more than one
claimant to interpretive authority. Those who wrote the statute may have
understood its ambiguity as a delegation of authorityto someone
undetermined
59
to clarify it, or they may have missed the problem, or they
may not have been able under the circumstances to do any better.
60
The
various potential readers and users of the language come at it from different
points of view arising from different institutional settings. What should we
do?
We can narrow the problem, but only somewhat, by recognizing that
these various interpreters often know of each others existence, or, if not,
perhaps ought to. Probably the ordinary citizen should understand that the
words of a statute are being used by its drafters in a formal legislative
contextat least to the extent of disallowing the interpretation of its words
as being used metaphorically or ironically. But should they assume the yet
more formal proposition that what is not specifically stated is excluded?
And if Congress passes a statute that incorporates terms that are routinely
used in the industrial situation being addressed, perhaps the legislative
history shows that that language, by itself, was meant to delegate to trade
practice the task of filling in the specifics.
61
But what if there is no evidence
that Congress meant to adopt the usage or was even aware of it? Do we
still adopt the users point of view, and if so, because of its own importance,
or on the theory that Congress was negligent not to know?
62
It seems that
this interactive approach will not fully resolve our problem; it will always
be possible to turn the kaleidoscope of possible recursive readings one
notch further.
63

sional capacity and capacity of outside salesman).
59
In the common case of a statute administered by an agency, there is a general delegation to the
agency to make rules or decide cases and a general delegation to the judges to review what the agency
has done, with the interpretive materials to be used by each of these potential delegatees undefined and
the line between the two delegations itself notoriously in need of definition.
60
This point was famously made by Justice Stevens in Chevron U.S.A., Inc. v. Natural Res. Def.
Council, 467 U.S. 837, 865 (1984). In their empirical study of legislative drafting by the Senate Judici-
ary Committee, Victoria Nourse and Jane Schacter found that contending congressional staffers under-
stood that leaving language ambiguous was in effect delegating decisionmaking elsewhere, with the
hope that someone else would decide the disputed point their respective ways. Victoria F. Nourse &
Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. REV.
575, 59697 (2002). More broadly, their work shows that, for the Senate at least, the desire to get
agreement and achieve results is more important than the desire to write precise language to satisfy in-
terpretive virtues.
61
So held in Corning Glass Works v. Brennan, 417 U.S. 188, 20103 (1974) (stating that working
conditions does not include the time of day worked).
62
Cf. Todd D. Rakoff, Washington v. Davis and the Objective Theory of Contracts, 29 HARV. C.R.-
C.L. L. REV. 63, 89 (noting that public officials can fairly be held to know common meanings as their
stock in trade).
63
The complexities of this point are nicely developed in Kent Greenawalt, Are Mental States Rele-
vant for Statutory and Constitutional Interpretation?, 85 CORNELL L. REV. 1609, 1672 (2000)
([R]eaders attend to the purposes of writers and writers formulate communications in light of what they
1580
To reach conclusions that will get us beyond these conundrums, we
need to formulate an understanding of the design of the statute in its overall
institutional setting. There are many aspects to a statute: one can look at its
structure, the processes it establishes, and other things besides the exact
substantive language it uses. It is hard to avoid the conclusion that the
overall social context, potentially different for each statute although
probably falling into recognizable patterns, will also influence choice in
these matters. What we are looking for more resembles a center of gravity
defined by multiple force vectors than the Q.E.D. of logical argument. The
instinct of judges to look at questions of statutory interpretation using many
different types of evidence, coming at the problem from different directions,
may not be so far off the mark.
64

But is this all too complex? After all, a method of analysis is not much
use if it is not usable. If statutory interpretation is seen as a multifarious
enterprise, as I propose, how will those who have to interpret statutes know
what they are to do? Would we not be better off with an only-one-method
theory?
The first point to be made on this score is that for many users of
statutes, the multifarious way of proceeding is by far the most functional.
One of the real virtues of construing technical language with reference to
trade usage, for example, is that members of the trade are able to understand
what the law requires of them (or what their lawyers tell them the law
requires of them) without engaging in an extensive effort at translation.
Their instinctive reliance is protected. The same is true where the law
penetrates everyday life; if it is interpreted on that understanding, it lays
fewer traps.
65

The more difficult issue is how to make this analysis manageable when
used firstly by judges, and secondarily by those, especially lawyers, who
handle the kinds of matters likely to go on to judicial resolution. As
previously stated, litigated cases, even potentially litigated cases, comprise
only a small part of the domain of statutory construction. But what can we

perceive will be the understandings of readers.). The interactions of the drafters and readers are also
addressed in Caleb Nelson, What is Textualism?, 91 VA. L. REV. 347 (2005), and in Peter M. Tiersma, A
Message in a Bottle: Text, Autonomy, and Statutory Interpretation, 76 TUL. L. REV. 431 (2001).
64
In deciding litigated cases, there is also the matter of what the evidence shows; judges are inevi-
tably drawn to frames of reference that provide an answer for the matter at hand.
65
See Daniel A. Farber, The Inevitability of Practical Reason: Statutes, Formalism, and the Rule of
Law, 45 VAND. L. REV. 533, 559 (1992) (For ordinary citizens, the precise language of complex stat-
utes may be much less accessible than an understanding of its general purposes, as they relate to shared
social norms, so plain meaning interpretation may be more effective in creating traps for the unwary
than in easing their way.). Although perhaps mentioned in passing, the thrust of this point seems to me
to be missing from what Cass Sunstein and Adrian Vermeule call their potentially sensible institu-
tional defense of formalism, that is to say, of a plain meaning approach to interpretation. Cass R.
Sunstein & Adrian Vermeule, Interpretation and Institutions, 101 MICH. L. REV. 885, 921 (2003); see
also Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Meaning, 1990
SUP. CT. REV. 231 (arguing that plain-meaning interpretation serves an important stabilizing function).
1581
do to help the judges choose well among the potential frames of reference
and to help the lawyers predict what the judges will do?
There are contrasting jurisprudential gambits on the question of what
form of law best serves the judicial process. A well-used opening states
that tests based on a single, or at most a very few, factorsstrongly
doctrinal testsfacilitate judicial diagnosis. The countermove replies that
simple doctrinal tests necessarily create a considerable amount of ill fit, to
which judges will respond by fiddling with the doctrine, ultimately making
it less predictable than a frankly multifactored test would be. To which the
surresponse is that judges do not have to act that way. So the question is
not only one of logic; it is also a matter of assessing judicial discipline.
To test that matter, we can look at the most developed body of law we
have on a question that resembles the issues we have been discussing. This
is the case law relating to the problem sometimes referred to as Chevron
Step Zerothat is, the cases setting forth the prerequisites to according
agency action Chevron deference.
66
In effect, this body of law addresses the
question of when an administrative agency provides the most important
institutional setting for interpreting the statute in question.
In these cases, the Supreme Court has pursued both sides of the
jurisprudential game sketched above. In the leading case, United States v.
Mead Corp.,
67
the Court emphasized the doctrinal approach: where the
federal statute gives the agency the power to engage in adjudication or
notice-and-comment rulemaking, and the agencys interpretation
claiming deference was promulgated in the exercise of that authority,
Chevron applies.
68
But the Court was not willing to completely bind itself
and also said (in a nondoctrinal fashion) that some other indication might
justify such deference.
69
And in probably the most important case to make
such an alternative determination of fit, the Court produced this highly
multifactored conclusion:
In this case, the interstitial nature of the legal question, the related expertise of
the Agency, the importance of the question to administration of the statute, the
complexity of that administration, and the careful consideration the Agency
has given the question over a long period of time all indicate that Chevron
provides the appropriate legal lens through which to view the legality of the
Agency interpretation here at issue.
70

The Supreme Courts effort to have it both ways has not received good
reviews in the academic press. On the one hand, some question whether the

66
Cass R. Sunstein, Chevron Step Zero, 92 VA. L. REV. 187, 191 (2006). The term itself originated
in Thomas W. Merrill & Kristen E. Hickman, Chevrons Domain, 89 GEO. L.J. 833, 836 (2001).
67
533 U.S. 218 (2001).
68
Id. at 22627.
69
Id. at 227.
70
Barnhart v. Walton, 535 U.S. 212, 222 (2002) (Breyer, J., speaking for eight members of the
Court).
1582
factor in the doctrinal formulation most commonly determinativewhether
the statute contains a grant to the agency of rulemaking powercan bear so
much weight. Congress may have meant much less in allowing (or telling)
an agency to make rules than the application of Chevron implies.
71
On the
other hand, the failure of the Court to explain how the alternative
multifactored test relates to the Courts rationalization of the doctrinal
formulation has caused real confusion in the lower courts as to what factors
ought to be considered.
72

Moreover, it seems that the Supreme Court itself has had trouble living
with its formal test when it produces overbroad results. There are many
cases where the Court seems to ignore or evade Chevron in situations to
which, under the doctrinal tests, it should apply.
73

This experience suggests that, once we conclude that there are
legitimately many factors to consider in deciding on the appropriate frame
of reference for an issue of statutory interpretation, we ought not try to
cabin the work of judges in a highly doctrinal test.
74
The effort will cause
confusion, and in the end, it will not work. That does not mean that judges
ought not try to line cases up with each other and tease out the most
important factors; it just means that we should not expect them to get those
factors down to one or a very few. Insofar as we are looking at judges
work, we will be best served by frank discussion of the grounds for
choosing among points of view, until the several relevant dimensions
clarify. Over time we can expect various nodes to develop, various
clusters of considerations that often go together to yield a particular result.
There are many areas of the law where a similar balance has been struck.
Indeed, the cases that the Supreme Court is willing to treat as Chevron

71
See Thomas W. Merrill & Kathryn Tongue Watts, Agency Rules with the Force of Law: The
Original Convention, 116 HARV. L. REV. 467, 47274 (2002).
72
Lisa Schultz Bressman, How Mead Has Muddled Judicial Review of Agency Action, 58 VAND. L.
REV. 1443, 144548 (2005).
73
William N. Eskridge & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment
of Agency Statutory Interpretations from Chevron to Hamdan, 96 GEO. L.J. 1083, 1090 (2008) (To our
surprise, we found that the Court usually does not apply Chevron to cases that are, according to Mead
and other opinions, Chevron-eligible.); see also id. at 112023 (describing additional details).
Although I have not done the extensive research that would be necessary to prove the idea, it may be
that the analysis I put forth explains some of these otherwise hard-to-understand Chevron-avoiding
cases. Perhaps the questions raised in these cases were not questions of deference versus no deference
(the way the matter is usually put) but rather questions of whether the agencys viewpoint or another
viewpoint furnished the best frame of reference, with the Court (inarticulately) choosing another point of
view.
74
The argument that we would do best to have a simple, broad test for giving deference to agencies
is ably presented in VERMUELE, supra note 46. But Vermeule does not address the reasons why judges
might want to defect from such a system, especially when it is recognized that the choice is not merely
between court and agency but rather implicates a whole range of possible institutional interpreters. Cf.
Richard A. Posner, Reply: The Institutional Dimension of Statutory and Constitutional Interpretation,
101 MICH. L. REV. 952 (2003) (discussing a broad range of institutional factors).
1583
cases are perhaps best seen in that light, rather than as hit-or-miss
applications of a doctrinal rule.
75

To see what such a multifactored approach to choosing an interpretive
standpoint might look like if extended beyond the question merely of
deference to an administrative agency, let us again look at the FMLA. We
have developed two substantially different interpretive methods.
76
Which of
these approaches best fits the question of determining whether parent
includes parent-in-law in the Family and Medical Leave Act? Should we
look to the formal legal texts as interpreted by the authoritative instruments
of government? Or should we look to the practical situation the terms of
the Act address as understood by those who live in it?
There is much to be said in favor of relying on the situational analysis.
The statute speaks in ordinary language with reference to common social
relationships; there is no need for technical expertise to explicate the
relevant concepts. We have no reason to think that the underlying customs
are oppressive or that the statute was meant to reform the common practice
at issue rather than to enable it. The subject matter is personal and deeply
important for the individuals involved. They have to decide how to act, and
how they understand their actions probably matters a lot to them. By
contrast, deciding one way or the other on parents and parents-in-law
implicates no great shift in the relative power of governmental institutions
such that we should care greatly what it means to them.
Against this, and in favor of adopting the approach based on formal
legal texts, we have first and foremost the Acts delegation to the Secretary
of Labor of the authority and the obligation to prescribe such regulations
as are necessary for carrying the statutory leave provisions into effect.
77

Written in 1993, this language should probably be read to include
prescribing substantive regulations consistent with the terms of the Act.
But this delegation does not mean that the FMLA matches Judge Friendlys
category of statutes empowering an agency to regulate under broadly
defined criteria.
78
To the contrary, the Act is rather specific. It is written
using lay, not technical, words, and the substantive standards are framed as
rules for primary behavior, not as directions to the Secretary. (The
authority to promulgate regulations is put much later in the statute, in the
title covering Miscellaneous Provisions.
79
) Indeed, the Act is usable
without agency action. Alleged violations of the Act are to be tried in the

75
Perhaps not surprisingly, Eskridge and Baer, having found widespread Chevron avoidance by the
Supreme Court, concluded that the most significant factor leading the Court in fact to accord Chevron-
level deference was the agency applying special expertise to a technical issue, seriously applying its
understanding for the facts to carry out congressional purposes. Eskridge & Baer, supra note 73, at
1180.
76
See discussion supra Part II.
77
29 U.S.C. 2654 (2006).
78
FRIENDLY, supra note 53, at 204.
79
29 U.S.C. 26512654.
1584
ordinary courts, and while the Department of Labor can bring such a suit,
the Act clearly wants to encourage employees to sue employers directly
without any such intermediation: it provides for doubling the damages in
many cases and, more importantly, allows for successful plaintiffs to
recover attorneys fees and expert witness fees.
80
This suggests
participation by the ordinary practicing bar. Indeed, the Act recognizes that
employees, and not just their lawyers, are part of the expected audience of
the Act: it requires each employer to post a summary of the Act in
conspicuous places on the premises of the employer where notices to
employees and applicants for employment are customarily posted.
81
True,
the summary is to be prepared by the Secretary. But even so, part of the
design of the Act is to encourage ordinary workers to know their rights and
presumably make their plans based on them.
From what point of view should we decide whether the term parent
includes parent-in-law? In my view, the specificity of the statute
expressed in everyday terms, the lack of intricate connections with other
areas of the law, the complexity of the personal relationships involved and
the degree to which they require practical trade-offs, the absence of any
reason to think the relevant practices are oppressive, and the decisions by
Congress to limit the role of the Department of Labor and to have the terms
of the Act publicized directly to a lay audience all indicate that the social
understandings of that lay audience provide the appropriate legal lens (to
use the Supreme Courts term)
82
through which to interpret the statute. That
method fits better.
In other words, if we were to assume (what is not true) that under our
first method, based on legal texts, the result that parent does not include
parent-in-law was clearly established; and if we were to assume (what is
closer to the truth, but not fully established) that under the second method,
based on an analysis of the situation, parents should definitely be read to
include parents-in-law; then in my view, the statute is best interpreted as
allowing employees to claim leave to care for their parents-in-law. I am not
saying that the second method should be used only when the first method
fails to produce a definite result; the second method is, in this situation, a
distinct best.
Some readers may be tempted to say that, in making this choice to
favor an interpretation of statutory language according to the lay meanings
and practices relevant to the situation rather than according to the materials

80
Id. 2617(a).
81
Id. 2619(a). The form of the notice can be found at 29 C.F.R. pt. 825, App. C (2009). Both the
original form, Family and Medical Leave Act of 1993, 60 Fed. Reg. 2180, 2275 (Jan. 6, 1995), and the
new form, Family and Medical Leave Act of 1993, 73 Fed. Reg. 67,934, 68,123 (Nov. 17, 2008), say
that leave is available to care for the employees spouse, son, daughter, or parent who has a serious
health condition without explicitly addressing parents-in-law yea or nay.
82
Barnhart v. Walton, 535 U.S. 212, 222 (2002).
1585
(other than the directly relevant statutory language) generated by official
institutions, even if those other materials are unambiguous, I am advocating
for overriding the clear meaning of the statute. I do not think that is right.
To assert that a statute has a clear meaning in this context is to claim that
one particular interpretive frameperhaps method oneshould be used to
make the authoritative decision as to whether a statute is, or is not,
ambiguous. But ambiguity very often results precisely from the fact that
there is more than one frame of reference with a decent claim to being
relevant. The ambiguity lies not within any one frame, but in the different
meanings ascribed to important terms from within different frames. As a
consequence, ambiguity, in the operational sense of a need to do further
interpretive work, can be proven even against a clear standard usage.
83

All that said, I admit that the case would be even stronger for using
method two to decide on the meaning of parent if the agency had not been
given rulemaking powers. And the case for the first method might well
predominate if Congress had implemented its purposes by producing a
statute of highly interrelated technical provisions with violations of the
statute to be tried in the first instance before the agency. And if you agree
with these conclusions, even if you do not agree with my reading of the
FMLA, then you see my basic point: there is more than one kind of statute;
there is more than one way to read a statute; and determining the right way
to read any particular statute is a matter of fit.
CONCLUSION
Often, statutes mean the same thing when seen from any relevant point
of view. But when statutory language needs interpretation, the additional
premises needed to construct a result have to come from somewhere.

83
The law of trade usage, for example, would mostly disappear if common terms could not be
proven to have uncommon meanings. The contrary is the truth. For a recent example, see Mason Capi-
tal, Ltd. v. Kaman Corp., No. 3:05CV1470, 2005 WL 2850083, at *10 (D. Conn. Oct. 31, 2005) (involv-
ing expert testimony as to trade practice used to override a grammatical rule even where applicable state
statute requires plain meaning to prevail). While not phrased in these terms, it seems to me that Jus-
tice Breyers opinion in Zuni Public School District No. 89 v. Department of Education, 550 U.S. 81
(2007), proceeds on much the same theory.
Some readers may also be tempted to say that my argument is clouded by an unjustified preference
for using the more diffuse items found at the bottom of my list of possible interpretive resources. It is
true that I think that, in the ordinary discussion of statutory interpretation, there is less consideration of
trade usages and social practices than is justified, but that is because I think, as I have argued here, that
there should be an open field of evaluation. It is obvious that there are many cases that should be de-
cided by reference only to the sorts of official texts found at the top of the list. To take an extreme ex-
ample, in FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000), the issue was the authority
of the Food and Drug Administration (FDA) to regulate cigarettes on the ground that nicotine was a
drug. As the Court rightly saw, this presented a high-stakes separation of powers question; the Court
had to decide whether Congress had, or had not, transferred a very large block of power to the FDA.
The center of gravity lay in the statements and actions of official institutions; whether cigarettes or nico-
tine were or were not drugs in ordinary usage and practice would have no bearing on that matter.
1586
Where is that somewhere? There are many somewheres. Within each of
them there are reasons, not just whims or preferences, for understanding a
statute one way rather than another. We can also reason about which
somewhere is the most important one for interpreting any particular statute.
Statutes come in myriad forms and address in one way or another nearly
everything we do. We should accept the fact that we are working on a
broad terrain, one open to a full range of social practices. Statutory
interpretation is more open-ended, more dependent on wisdomand, I
might add, more interestingthan the search for a comprehensive but
monistic theory allows.

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there is no reason to limit all of this statutory interpretation by the particular

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