University of Pennsylvania Law Review
Statutory interpretation is a unique legal field that appreciates fiction as much as fact. For years, judges and scholars have acknowledged that canons of interpretation are often based on erudite assumptions of how Congress drafts federal statutes. But a recent surge in legal realism has shown just how erroneous many of these assumptions are. Scholars have created a robust study of congressional practices that challenge many formalist canons of interpretation that are divorced from how Congress thinks about, drafts, and enacts federal statutes. This conversation, however, has yet to confront statutory incorporation, which describes when Congress incorporates state law into federal statutes. Statutory incorporation is one of the most common legislative tools employed by Congress and has been used to enact hundreds of federal statutes that affect liberty and property rights across multiple areas of law. Traditional analyses of statutory incorporation argue that it allows Congress to achieve goals of federalism and/or delegation, both of which empower state governments to shape federal policies. But this traditional narrative falls short when held up to the scrutiny of statutory realism.
This Article offers an alternative explanation: specifically, that statutory incorporation is a tool that allows Congress to abdicate federal legislative responsibility and pass it on to the states, which in turn allows the politically motivated members of Congress to avoid political accountability. This theory of a more interest-based statutory incorporation is an important contribution that adds to the growing realism literature in the statutory incorporation field and carries important implications for the future of scrutinizing the fictions that dominate this space.