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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.”

Publication Citation

136 Harv. L. Rev. 608 (2022)