Amidst the whirl of commentary about how the U.S. Supreme Court has become increasingly textualist and what precise shape modern textualism should take, the Court’s continued reliance on one decidedly atextual interpretive tool has gone largely unnoticed — the common law. Indeed, the common law has played an underappreciated, often dispositive, gap-filling role in statutory interpretation for decades, even as the textualist revolution has sidelined other non-text-focused interpretive tools. But despite the persistent role that the common law has played in statutory interpretation cases, the use of common law rules and definitions as an interpretive resource is surprisingly understudied and undertheorized in the statutory interpretation literature.
This Article provides the first empirical and doctrinal analysis of how the modern Supreme Court uses the common law to determine statutory meaning, based on a study of 602 statutory cases decided during the Roberts Court’s first fourteen and a half Terms. The Article catalogs five different justifications the Court regularly provides for consulting the common law, as well as three different methods the Court uses to reason from the common law to statutory meaning. The Article also notes several problems with the Court’s current use of the common law to determine statutory meaning. For example, the Court has provided no criteria indicating when the common law is relevant to an interpretive inquiry, leading to inconsistencies in the Court’s use of the common law even with respect to the same statute. Moreover, the Court’s reliance on the common law — an arcane, sophisticated set of legal rules inaccessible to the average citizen — is in tension with modern textualism’s focus on the meaning that a statutory term would have in everyday conversation. In addition, there are democratic accountability problems inherent in the use of potentially antiquated doctrines created by unelected, elite judges to determine the meaning of modern statutes enacted by a legislature representing a diverse electorate.
In the end, the Article recommends that the Court limit its use of the common law to situations in which congressional drafting practices or rule of law concerns justify the practice — for example, where Congress itself has made clear that it intended for the relevant statute to incorporate the common law, where the statutory word or phrase at issue is a legal “term of art” with a clearly established common law meaning, or where courts have long construed the statute in light of the common law, so that it can be considered a “common law statute.”
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* Professor of Law, Georgetown University Law Center. I owe deep thanks for valuable insights and conversations to Aaron-Andrew Bruhl, Elizabeth Beske, William N. Eskridge, Jill Hasday, Margaret H. Lemos, Victoria F. Nourse, Kevin Tobia, and participants at workshops at Georgetown University Law Center, the University of Minnesota Law School, and American University Washington College of Law. I am especially indebted to my husband, Ron Tucker, for his patience and support throughout this project. Special thanks to Dean William Treanor and Georgetown University Law Center for generous research assistance. Kathryn Baldwin, John Burger, Danielle DelGrosso, Thomas Combs, Christina Corcoran, Brian Dolan, Sade Forte, Elizabeth Fray, Kim Friedman, Sean Kelly, Theodore Miller, Ilya Mordukhaev, Vince Nibali, Melissa Parres, Barbara Reilly, Jennifer Roseman, Peter Ryan, Christine Sammarco, Jonathan Sclar, Ashleigh Shelton, Samuel Sroka, Jennifer Thomas, Rita Wang, and Lissa Yang provided excellent research assistance. Janet Ruiz-Kroll provided invaluable assistance with the tables. All errors are my own.