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Maureen Bridget Cavanaugh
January 7 1955 - April 4 2005

 Washington & Lee Public Law and Legal Theory

Research Paper Series

 

Working Paper 00-2

September 2000

 

 

 

 

 

ORDER IN MULTIPLICITY: ARISTOTLE ON TEXT,

CONTEXT, AND THE RULE OF LAW

 

 

 

 

MAUREEN B. CAVANAUGH

 

 

 

 

 

 

 

 

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 Abstract

Order in Multiplicity: Aristotle on Text, Context and the Rule of Law

 

Maureen B. Cavanaugh

 

Justice Scalia, among others, has made the question of textual interpretation tantamount to a referendum on whether we are a government that is governed by the 'rule of law' or the 'rule of

men'. Interestingly modern reliance on Aristotle, while frequent, also turns out to be selective. This Article examines what Aristotle's theories of interpretation may contribute to a resolution of current problems of statutory interpretation, especially his analysis of different (non-

univocal) uses of the same word and conclusion that homonyms are not all random. Associated homonyms allow us to understand related ideas. Recent Aristotelian scholarship permits us to apply Aristotle to the central question of how to interpret a text. Following an explication of

Aristotelian methodology, this Article then considers Gregory, an early tax case articulating a non-literal statutory interpretation of 'reorganization' as a paradigm. This methodology could

be applied equally to any number of other areas of the law involving issues of statutory

interpretation. This Article demonstrates that Aristotle helps us avoid unwarranted assumptions of univocity while providing a positive mechanism for finding order in multiplicity. 

 

 

 Table of Contents

 

I. Introduction                                                                                     2

II. Theories of Statutory Interpretation                                              7

A. Intentionalism                                                                                 9

B. Textualism                                                                                     13

C. Dynamic-Pragmatic Interpretation                                               18

III. Tax Statutory Interpretation: Gregory and Business Purpose    21

A. Gregory                                                                                          21

B. Business Purpose Doctrine                                                            27

C. Reaction to Gregory                                                                      29

IV. Aristotelian Analysis                                                                    42

A. Introduction                                                                                   42

B. Homonymy                                                                                    45

C. Definitions                                                                                     48

1. Priority                                                                                           50

2. Levels of Definition                                                                       52

3. Core-Dependent Homonymy                                                         55

4. Functional Determinism and Causation                                        57

5. Identification of Homonyms – Signification                                 60

V. ‘Reorganization’: an Example of Homonymy                               62

A. Difference in Signification establishes Homonymy                      63

B. ‘Reorganization’ as Definition                                                     64

C. Genus - ‘Not-Sale’                                                                     65

D. Core-Dependent Homonyms                                                      67

E. Functional Determination                                                           68

F. Application of Law of Non-Contrariety                                        69

G. Extrinsic Evidence                                                                   70

 

VI. Conclusion                                                                              71

 

 

Order in Multiplicity*: Aristotle on Text, Context, and the Rule of Law

Maureen B. Cavanaugh**

 

 

 *. The title of this Article makes reference to CHRISTOPHER SHIELDS,ORDER IN MULTIPLICITY,HOMONYMY IN THE PHILOSOPHY

OF ARISTOTLE (Oxford, 1999), whose explication of Aristotle’s theory of homonymy is crucial to my application of Aristotelian methodology, that necessarily includes other theories as well, to issues of statutory interpretation.

 

** Assistant Professor, Washington and Lee University School of Law. Swarthmore College B.A., Cornell University, M.A., Ph.D. (Classics), University of Minnesota, J.D; author of ELEUSIS AND ATHENS:DOCUMENTS IN FINANCE, POLITICS AND RELIGION IN THE 2NDHALF OF THE 5TH CENTURY B.C. (1996). The assistance of the Francis Lewis Law Center, Washington and Lee University is gratefully acknowledged. I would like to thank all of my readers for their helpful comments, especially Karen C. Burke, Lewis H. LaRue, David Millon, Grayson M.P. McCouch, Joan M. Shaughnessy and Scott Sundby from whose suggestions this Article has benefitted enormously. All remaining errors are of course mine.

 

I. Introduction

 

Therefore, it is preferable for the law to rule rather than any one of the citizens, and according to this same principle, even if it be better for certain men to govern, they must be appointed as guardians of the laws and in subordination to them[.]1

 

The appeal of “plain meaning” statutory interpretation is obvious where, as in the United States, the ‘rule of law’ is seen as preferable to the ‘rule of men’ and Justice Scalia, its most prominent supporter, argues for his method’s adoption by articulating its democratic pedigree and linking the ‘rule of law’ directly with textualism.2 Framing the debate to advance one’s position, including selectively quoting Aristotle without regard to the passage or context in which the ‘rule of law’ statement appears, while understandable has left this issue – what method of interpretation can most fully give effect to the ‘rule of law’, an issue central to the success of our democracy – at a stalemate.

Legal realists and postmodernists have undercut the foundation for “plain meaning” – that language is both objective and determinate: legal realists with their examination of the political process and deconstructionists arguing that the contextual nature of language and the process of interpretation preclude a determinate answer. A middle ground has been advanced by scholars3 who argue for a dynamic approach to statutory interpretation, an approach based on practical reasoning that seeks to mediate between the various competing principles at work in statutory interpretation. The difficulty with all these various positions is that none has established a completely coherent and systematic approach which assures us of the maximum level of determinacy that our society, with its preference for the rule of law, craves.4

 

 Order of Multiplicity

This Article offers some principles of analysis that recognize not only the primacy of the text and the necessarily contextual nature of the process of interpreting language but also the basically determinate nature of language and legal concepts, principles that will thus be useful for statutory interpretation. This Article proposes to supply such a methodology by considering how Aristotle approaches issues of interpretation, especially in cases of common words that are used with variable meanings, termed ‘homonyms’ and described by Aristotle as ‘words spoken in many ways’. By recognizing that words are not always univocal (having only one meaning), Aristotle demonstrates that unwarranted assumptions of univocity undermine both the ability to understand and to argue or reason persuasively (a skill as much a part of the American legal process today as it was for the Greek society that has provided so much of our political and cultural heritage that includes Aristotle).

Difficulties occasioned by ambiguity within the context of statutory interpretation often result in modern legal scholars assuming away ambiguity or accepting it as insoluable. Reference to Aristotle will demonstrate that recognition of non-univocity does not, however, result in only indeterminacy and incoherence. On the contrary, when properly applied, Aristotelian analysis reduces incoherence and may well provide a theory of interpretation superior to the seemingly random methods of statutory interpretation that, on occasion, prevail. While frequently criticized (and certainly not all of his ideas have withstood the test of time), Aristotle remains a figure of unparalleled importance in the history of philosophy, including political philosophy, logic and rhetoric. The wealth of ideas contained in his corpus continues to be the subject of fruitful research with much to offer those willing to consider carefully his arguments and apply them beyond the domain of traditional Aristotelian scholarship.

Beginning with a review of the major theories of interpretation, this Article then considers Gregory v. Helvering, an early tax case articulating a non-literal statutory interpretation of ‘reorganization’ as a paradigm for applying and testing Aristotelian principles of interpretation. It will be seen that any number of other statutes from other areas of the law that involve issues of statutory interpretation of definitions could serve equally.  Gregory features prominently in most theories of tax statutory interpretation and is the seminal case setting forth the doctrine of business purpose: tax provisions offering advantageous treatment are predicated on the existence of a business purpose for the transaction. Business purpose is a doctrine of farreaching and long-lasting importance in tax statutory interpretation. It and other doctrines deemed variants of business purpose are now offered as a bulwark against corporate tax shelters,5 not just in their judicially articulated form but importantly in current proposals6 to codify the economic substance doctrine. A brief review of the business purpose doctrine as first articulated and as it subsequently developed is then offered.  Reaction to the articulation and application of the business purpose doctrine can then be understood as representative in tax scholarship of the main philosophies of statutory interpretation.7 For example, those who argue against the doctrine’s validity rely on “plain meaning”: absent an express statement of a business purpose requirement by Congress, courts should not imply one because citizens should have notice of whatever laws the state, with all its coercive powers, will enforce. Those who rely on a purposive approach see the business purpose doctrine as necessary to give effect to the purpose of the statutes in which it is implied and to preserve the integrity of the entire tax system. The gulf that exists between these positions, in tax or generally, does not seem susceptible to immediate solution.

This Article then examines what Aristotle’s theories of interpretation may contribute to a resolution of current problems of statutory interpretation, theories acknowledging both the determinacy and the complexity of language. Whether in the law courts or the academy, Aristotle recognizes the critical importance of language and logic for persuasive and successful argumentation, considering at length in his treatises many of the topics which confound modern scholars of interpretation. For example, the nature of ‘definition’: Aristotle reasons that when we define or signify something our ‘definitions’ exist on multiple levels corresponding to the task at hand (something confirmed by our everyday existence). Aristotle also considers different uses of the same word and finds that these non-univocal uses of common words, termed homonyms, are not all random and unrelated but may also be associated. Associated homonyms do not simply occasion incoherence but allow us to understand related ideas, especially where homonyms are associated around a core (so-called core-dependent homonyms). The significance Aristotle attaches to understanding core-dependent homonymy has not been fully understood even by those, such as H.L.A. Hart, who understood the significance of homonymy but recognized no distinction between discrete homonymy and synonymy (see infra). Most importantly, the distinction between discrete and coredependent homonymy and the distinction between core-dependent homonymy and synonymy has only recently been explicated within Aristotelian scholarship and thus its significance for interpreting statutes has yet to be understood.

As Aristotle examines definitions and homonyms in his work, he identifies a theory of priority: priority in definition corresponding to the levels of definition and priority among homonyms, where associated. Ultimately, the methodology Aristotle develops for considering the relationship of words and their definitions, including priority and causality, allows a determinate yet open-ended method for understanding language that corresponds well with our experience in reality, but is supported by sophisticated logical and philosophical underpinnings. In short, Aristotle reveals order in multiplicity, providing a method for principled analysis, the true base requirement in a society that values the rule of law, and a method that allows for resolution of some hard and interesting cases.

Following an explication of this Aristotelian methodology, the statute defining the permissible forms of tax-deferred reorganizations will be reconsidered. Applying Aristotelian methodology, ‘reorganization’ can now be identified as an example of core-dependent homonymy. This is a critical step: by recognizing the homonymous nature of ‘reorganization’ we avoid unwarranted assumptions of univocity.  Understanding priority as part of the definition and the relationship among associated homonyms further suggests the inherent nature of the genus of transactions singled out for beneficial tax treatment because of their shared characteristics, including their business purpose. The application of Aristotle’s methodology for discerning homonyms and levels of definition is thus demonstrated through application to tax deferred ‘reorganization’ but it is shown to be a method that has applicability generally to theories of statutory interpretation, so the discussion of it in the context of tax is purely illustrative.8  Finally, the Article concludes that Aristotelian principles of analysis for arriving at definitions of words and considering related but non-univocal words present a text-based method of analysis that will be helpful for current theories of statutory interpretation, precisely because it relies heavily on the text of the statute while seeking to glean as much as possible from the context.

This Article thus demonstrates that Aristotle provides a positive mechanism for finding order in multiplicity and sets forth a methodology that is based on a conceptual and logical framework familiar to those employing a judicial language frequently conceived in similar logical and philosophical terms.9

Above all, Aristotle’s analysis has the potential for improving our comprehension of language with special applicability to theories of statutory interpretation seeking more determinate answers satisfying ‘rule of law’ concerns while acknowledging language complexity.

II. Theories of Statutory Interpretation

This Article does not seek to describe every theory advanced for how statutes may best be interpreted nor does it seek to give a complete history of statutory interpretation in the United States.10 The following rather cursory discussion is more modest in its goal, seeking to set forth current theories of statutory interpretation to show the advantages each offers while demonstrating that none effectively resolves the dilemma facing courts and citizens attempting to comply with the law: how to understand and how to interpret statutory language generally or specifically. Text-based formalism endures as a method of interpretation because of its appeal to those who value the rule of law but offers little as it is currently formulated, with its declaration of a single ‘ordinary meaning’ because it generally assumes away difficult cases of interpretation. Dynamic or practical reasoning methods of interpretation, while recognizing the importance of arriving at principled decisions in difficult cases, offer little systematic methodology that answers formalist arguments for the importance of rule of law principles: how to produce bounded, consistent results. In short, both suffer from problems of reliability and validity, producing neither consistent nor necessarily correct results.  Despite significant scholarly and judicial attention,11 no universally accepted approach to statutory interpretation has emerged in America.12 The main theories of interpretation, fervently held by their advocates, are certainly well defined and articulated. These can be conveniently divided into textualism, purposivism and dynamic (pragmatic) interpretation.13 At one level, these theories can be further reduced to whether the statutory text is the main or rather the only valid text for consideration and how successfully each method allows for consistent resolution of hard cases.14  Given the common law tradition – case-by-case application of authorities to the case at hand15 – in existence at the founding of the United States, it is not surprising that approaches to statutory

 

 interpretation continued to make use of familiar and eclectic techniques. Starting with the text of the statute and then applying that text to the case at hand, courts employed what has been called a “soft” plain meaning approach: the statute’s “plain meaning” could be trumped by contradictory legislative history since the primary, indeed sole, task of any judge interpreting a given statute is simply to give effect to Congress’s intent in enacting the statute.16 The leading case usually cited, both for and against this approach, is Church of the Holy Trinity,17 relying on the spirit, in preference to the letter, of the law.


A. Intentionalism

The ‘intentionalist’, or ‘archaeological’ approach to statutory interpretation allows, even encourages, courts attempting to determine the ‘intent’ of the enacting legislature to refer to the legislative history of the statute in question. Focusing on the enacting legislature, such an approach elevates historical, or vertical coherence, concerns.18 Given the wide range of materials included in legislative history,19 from committee reports of enacted statutes to rejected proposals to legislative silence, courts’ use of available material varies considerably, resulting in a method with its own coherence problems.20 Is the court, by examining the legislative history, simply “looking over a crowd and picking out [its] friends” to find support for its interpretation?21 Apart from issues of the appropriateness of any particular materials, the very idea of Congressional ‘intent’ is problematic, according to the realists (who argue against the possibility of collective intent)22 and the proponents of public choice theory (who de-couple the process of legislative decision-making from any resulting statutes).23 Empirical work, based on sophisticated formal models, has now demonstrated a greater level of institutional stability than public choice theory seems at first to suggest is even possible,24 but has not restored intentionalism to its previous, accepted position.  Another, more cogent objection to a potentially unbounded search for the statute’s meaning comes from the formalists, who echo Justice Holmes in stating: “We do not inquire what the legislature meant; we ask only what the statute means.”25  Formalism, a term without any single definition and subject to its own interpretative dilemmas,26 argues for ‘tightly constrained’ statutory interpretation because judicial freedom to make law is contrary to the democratic nature of the American legislative process, violating the Constitution’s authorization of Congress as the sole body capable of enacting legislation.27 Where judges perform a function that could be described as legislative, they violate the constitutionally prescribed
separation of powers.28 Ultimately, formalists argue, construing statutes to enlarge their clear terms is inefficient.29 Formalism, for all its high-minded justifications is ultimately plagued by its own problems
–coherence, morality and effectiveness.
 
B. Textualism
 
Modern textualism is closely associated with Justice Scalia who begins from the assumption that judge-made law is essentially undemocratic,30 rejects theories of statutory interpretation that aim to discover the intent of the legislature and advances his theory of textualism based on the “plain meaning” of the text, a method that seeks to limit judicial discretion, as the only legitimate approach.31 “Government by unexpressed intent is similarly tyrannical. It is the law that governs, not the intent of the lawgiver....
 

 A government of laws, not of men. Men may intend what they will; but it is only the laws they enact which bind us.”32 He thus defends his form of textualism from criticisms of “formalism” by arguing that “[t]he rule of law is about form.”33 Indeed, Scalia equates textualism and formalism with a government of laws, not men.34

Defining his “plain meaning” approach to textualism not as “strict constructionism”, Scalia claims to construe a text “reasonably, to contain all that it fairly means.”35 To construe a text reasonably, however, Scalia eschews any recourse to legislative history36 and focuses his analysis on the ‘plain meaning’37 of the text, seeking the meaning of the statute: 
 
(1) most in accord with context and ordinary usage, and thus most likely to have been understood by the whole Congress which voted on the words of the statute ... and (2) most compatible with the surrounding body of law into which the provision must be integrated – a compatibility which, by a benign fiction, we assume Congress always has in mind.38
 
Thus while textualists such as Justice Scalia and other adherents of a “plain meaning” approach to statutory interpretation avoid legislative history, they freely consult assorted dictionaries,39 make use of various linguistic arguments without benefit of linguistic study40 and varyingly employ canons41 of statutory interpretation in their textual analysis. The advocates of plain meaning do so without establishing (explicitly or implicitly) any methodology, individually or collectively, for the tools they deem acceptable. 42    
 

 As their proponents and critics demonstrate, all of these tools have utility – but only if properly applied.43  In the absence of an articulated, consistent and principled methodology for discovering the plain meaning of a text, the textualists fail to deliver on their promise of interpretation in accordance with the rule of law. Because of this absence of consistency, textualists are thus subject to the same charges, including lack of candor, they level at others. As Solan notes, judges who varyingly apply standards and tools yet pronounce the meaning clear are “judges attempt[ing] to mask the fact that a case is hard in the first place.”44 Despite daily evidence of our ability to communicate, few would argue that this basic ability of competent speakers to communicate coupled with a desire for government by the rule of law removes all possibility for hard cases or the need for a methodology to deal with such cases.45  Critics of Justice Scalia’s “new textualism”46 have argued that as a method it is subject to the same criticisms leveled by its proponents against intentionalism: it offers no more determinate results in hard cases than any other method; it contributes little to the legitimacy of the judicial process because of its lack of candor; and, despite its claims to singular constitutional legitimacy based on separation of powers and the legislative process arguments, is neither necessitated by these arguments nor does it offer democracy enhancing results superior to judges using legislative history.47 In short, textualists who argue for “plain meaning” interpretation lose their claim to greater objectivity when they engage in a battle of the dictionaries, opportunistically engage in structural or linguistic arguments, and selectively rely on canons of statutory interpretation.48

 

C. Dynamic-Pragmatic Interpretation
 
Rejecting the foundational approach of either traditional intentionalism or the new textualism, some scholars, most notably Eskridge, Frickey and Farber, have argued that a more dynamic approach to statutory interpretation, one based on practical reasoning, best addresses the various issues raised: beginning with the text, statutory interpretation must address concerns that are both historical (the purpose of the enacting legislature) and evolutive (current factual situations perhaps unanticipated by the original legislature along with the interpreter’s own perspective shaped by current social and legal norms).49 Practical reason, described by its proponents as a “structured problem-solving process,”50 proposes a model of statutory interpretation that “mediates between the general standard and the specific case,” taking its inspiration from Aristotle and what its proponents describe as his method of practical reasoning (phronesis).51 Through the application of a method recognizing the problems inherent in discovering meaning in statutes, whether because of lapse of time or because the problem at hand was one not explicitly addressed by the enacting legislature, practical reasoning seeks to contribute to the legitimacy of our republican constitution, by recognizing the legislature’s constitutionally mandated role of crafting legislation and the judiciary’s responsibility for interpreting statutes.  Practical reason prefers a concrete approach to each case to any unified theory,52 whether relying on Llewellyn’s five factors (ranging from the statute’s purpose to the specific factual situation to the overall coherence of the legal system) or Eskridge and Frickey’s similar “funnel of abstraction”.53 The absence of either a unified theory or more specific guidance, however, for the application of their factors leaves proponents of practical reasoning open to charges of proposing an ad hoc method unsatisfactory to a government by the rule of law.54  Despite arguments advanced by all sides, the question remains: what method of interpretation is most compatible with the rule of law? Adherents of both plain meaning and practical reasoning have amply demonstrated the inadequacies of the opposing viewpoint while neither side has delivered a decisive blow in the battle.55 Even if we prefer a presumption in favor of plain meaning, what rules exist to help decide those difficult cases of contested meaning? Alternatively, how can we be assured of the rule of law guided by factors described by practical reasoning methods only at a fairly high level of generality for all their concretedness? Recourse to Aristotle and his theories of language and logic, especially his interpretation of words ‘spoken in many ways’ may help.  Before considering Aristotle, it is first necessary to consider the business purpose doctrine as articulated in Gregory v. Helvering. For it is in the context of interpreting the statutes and the judicial opinions that first articulated this doctrine and thus reasoning from the particular to the general, that will serve as our exemplar for applying the Aristotelian theories of homonymy, priority and levels of definition to statutory interpretation.
 
III. Tax Statutory Interpretation: Gregory and Business Purpose
 

 Order of Multiplicity

A. Gregory

Gregory v. Helvering,56 in which the business purpose doctrine was first articulated, seems at first glance to provide a simple case requiring nothing more than application of the ‘plain meaning’ of the statutory provisions to the facts in order to arrive at the correct result: did the transaction comply with the statute’s terms. A comparison of the opinions not only illustrates the different interpretations that arise from the application of the “plain meaning” and purposive approaches to the statute governing reorganizations, but also introduces us to the doctrine of business purpose.57 A discussion of the Gregory opinions will be followed by an assessment of the case by adherents of the different methods of interpretation. The importance of the business purpose doctrine will then be briefly examined before considering how an Aristotelian analysis of the term ‘reorganization’ might be fruitful for considering tax statutory interpretation specifically and statutory interpretation generally.

Unlike many tax provisions, in their bare form presented here the reorganization statute as interpreted by the courts in Gregory seems fairly understandable. Gregory thus provides an opportunity to think about statutory interpretation in the context of technical but related provisions. Most important is the opportunity it presents for considering the applicability of the business purpose doctrine not simply to these provisions but to the entire Code.

Mrs. Gregory, as sole shareholder, wanted to sell stock of the subsidiary corporation held as an asset by the parent corporation.58 However, a distribution directly to her of this United stock held by the Monitor corporation would be taxed at its fair market value as a dividend.59 Mrs. Gregory consequently chose a different structure for her transaction.60 Complying with the literal language of the ‘reorganization’ provisions of the 1928 Revenue Act, she relied on provisions allowing for tax-free receipt of corporate stock received as part of a corporate reorganization. This structure allowed Mrs. Gregory to apportion basis from her existing corporation to the new shares, thereby lowering the amount of tax to be paid on the sale of shares.

The provisions on which Mrs. Gregory sought to rely stated the tax consequences and the permissible transaction forms in the following language:

If there is distributed, in pursuance of a plan of reorganization, to a shareholder in a corporation a party to the reorganization, stock or securities in such corporation or in another corporation a party to the reorganization, without the surrender by such shareholder of stock or securities in such corporation, no gain to the distributee from the receipt of such stock of securities shall be recognized. 112(g).

The term “reorganization” means:

(B) a transfer by a corporation of all or part of its assets to another corporation if immediately after the transfer the transferor or its stockholders or both are in control of the corporation to which the assets are transferred. 112(i)(B).

Mrs. Gregory’s corporation transferred these shares of corporate stock as part of a ‘reorganization’ to a newly formed corporation thereby allowing Mrs. Gregory to avoid dividend treatment of the value of the stock receive and pay a lower total tax when she received the shares upon liquidation of the new corporation and subsequently sold the shares received. 61 

First introduced because of changing economic conditions following the First World War, the provisions sought to describe the forms in which reorganizations could occur tax-deferred.62

The Commissioner objected, arguing that the intermediate steps of Mrs. Gregory’s transaction were ‘without substance’ and so the transaction should be re-characterized, and taxed, as a dividend.63 Although the Board of Tax Appeals initially ruled in favor of Mrs. Gregory, the Second Circuit, in an opinion written by Judge Learned Hand, and, ultimately,

the Supreme Court agreed with the Commissioner, but not because the transaction was merely a sham.

Finding literal compliance with the statutory provision (there had been an actual transfer of assets and a receipt of stock), the Board of Tax Appeals concluded that “[a] statute so meticulously drafted must be interpreted as a literal expression of the taxing policy, and leaves only the small interstices for judicial consideration.”64 Hand disagreed. Agreeing that the more articulated the statute, the less room available for interpretation, Hand reasoned that “the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.”65 As a result, although “[a]ny one may so arrange his affairs that his taxes shall be as low as possible,”66 Hand concluded that “it does not follow that Congress meant to cover such a transaction, not even though the facts answer the dictionary definitions of each term used in the statutory definition.”67


xxxx

 

 Justice Sutherland, writing for the Supreme Court, agreed.68 Asking if the transaction was what the statute intended, the Court concluded that the transaction was “[s]imply an operation having no business or corporate purpose”, a “mere device.”69 The Court further concluded that “[t]o hold otherwise would be to exalt artifice above reality and to deprive the statutory provision in question of all serious purpose.”70 Because there was no reorganization – no continued, reorganized business – but simply a distribution followed by a sale of the

shares, Mrs.Gregory had not satisfied the statute’s requirements.71
For purposes of interpreting the statute, the lower court saw the statutory definition of ‘reorganization’ as including all conditions both necessary and sufficient for its benefits.  Literal compliance with the statutory language was, however, not sufficient for the Court of Appeals and the Supreme Court. Learned Hand understood the term ‘reorganization’ to require a “readjustment ... undertaken for reasons germane to the conduct of the venture in hand,”72 relying in part on the purpose for the provisions found both in prior judicial interpretations (requiring continuity of interest)73 and the legislative history (emphasizing necessary business transactions being facilitated by such provisions).74
Agreeing that a ‘reorganization’ required the reorganization of all or part of a business, and concluding that “the transaction upon its face lies outside the plain intent of the statute,” the Supreme Court denied that its decision in any way depended on the tax avoidance motive
B. Business Purpose Doctrine
Business purpose was defined for Learned Hand by the nature of the transactions to which the reorganization sections were to apply.
The purpose of the section is plain enough; men engaged in enterprises – industrial, commercial, financial, or other – might wish to consolidate, or divide, to add to, or subtract from, their holdings. Such transactions were not be considered as ‘realizing’ any profit, because the collective interests still remained in solution. But the underlying presupposition is plain that the readjustment shall be undertaken for reasons germane to the conduct of the venture in hand, not as an ephemeral incident,
egregious to its prosecution. To dodge the shareholders’ taxes is not one of the transactions contemplated as corporate ‘reorganizations.’76
So Justice Sutherland similarly related the business purpose of a reorganization to the business or businesses being reorganized.77
The business purpose doctrine has not always been narrowly interpreted, nor applied only to the reorganization provisions. It has been implied as a requirement in tax provisions governing commercial transactions generally.78 At the same time, the business purpose doctrine has been used as the equivalent of other interpretive doctrines: substance over form (was the substance of the transaction consistent with its chosen form);79 economic substance  (is there economic purpose or risk to the transaction apart from its tax benefits);80 and sham transaction (did the transaction occur as described for tax purposes).81 Some commentators
further equate any version of these doctrines with an analysis of taxpayer motive, asking whether the taxpayer’s intent to escape taxation is relevant to the inquiry. As Blum has noted, the need to inquire into a taxpayer’s state of mind is much less than the rhetoric suggests, given that an assessment of the relative weight of tax and non-tax goals can readily be made.82  Nevertheless, the very multiplicity of the permutations of the business purpose doctrine, conflated as it is with the continuity of interest doctrine within the reorganization provisions,83 has impaired its utility, prompting Treasury to urge abandonment of its judicial formulation and substitute a seemingly more mechanical comparison of the present value of a transaction’s benefits pre- and post-tax.84 Before we can assess the utility of any variation of the business purpose doctrine or its possible modification for current use, a thorough analysis of its function as originally articulated will be helpful. A brief review of how it is perceived by tax commentators followed by a re-examination using Aristotelian methods will better follow such an assessment.
C. Reaction to Gregory
Whether Gregory v. Helvering was correctly decided– that business purpose is a necessary requirement for any (acquisitive or divisive) tax deferred reorganization 85 – can be examined from many perspectives.
Congressional dissatisfaction with the lower court’s literal interpretation is evident from the repeal of the provisions on which Mrs. Gregory attempted to rely.86 From a perspective of statutory interpretation, Gregory can be viewed as part of a tradition of nonliteral interpretations of the reorganization provisions.87 More interestingly, Gregory invites
a consideration of how to interpret the entire Internal Revenue Code, and codes generally.88 A review of Gregory, a decision invariably discussed by tax scholars proposing theories of tax statutory interpretation, also allows for a consideration of these various theories
within the context of tax statutes, including the arguments for treating tax differently.  Whether tax statutes are seen on the one hand as merely one end of a continuum89 or, on the  other hand, a distinct area requiring its own methodology of statutory interpretation,90 a reconsideration
of the Gregory decision, tax complexity and alternative modes of analysis may offer something of use not only for a discussion of the applicability of the business purpose doctrine to the reorganization provisions and the Code but also for a more general discussion of methods of statutory interpretation.
As part of a Code,91 it can be argued that tax statutes require a purposive or contextual interpretation to give effect to the interaction of specific provisions within the Code of which they are necessarily only a part. Alternatively, this interaction could be characterized as requiring a more collaborative approach or one based on practical reasoning. The difference among these modes of interpretation proposed for tax lies not primarily in their use or non-use of extrinsic materials 92 but in their view that the “structure of the Code” may suggest its own mode of analysis. Professors Geier93 and Zelenak94 are among those arguing eloquently for the former; Professors Livingston95 and Popkin96 for the latter.  Geier proposes no simple choice between textualism and purposivism.97 Although she
 

 interpretation generally but requiring recognition that the complexity of the Code makes it more than “just another statute.”103 His discussion of Gregory, however, suggests his concerns with the limitation of, and corresponding ambivalence toward, a nonliteral approach – because of the “progovernment bias” that may result.104  Some tax commentators object to a structural approach. Livingston describes methods working from the Code’s structure as “inductive reasoning that uses the provisions of the code to derive general principles and policies that then may be applied to the resolution of specific problems.”105 In addition, Livingston objects to what he regards as “tax essentialism,”106 rejecting his earlier assessment based on the special nature of the tax legislative process and now preferring Eskridge and Frickey’s method of “practical reason.”107 He distinguishes a ‘practical reason’-based method from purposivism because of its refusal to elevate any one perspective, including the Code’s structure.108 Although recognizing strong similarities between the two, Livingston offers the practical reasoning approach as a “more realistic (if less exalted) vision” to Geier’s structural approach.  Popkin offers a model of interpretation that is normatively collaborative, based on the necessarily contingent process of interpretation but one that recognizes the necessarily creative

 

 role of judges, who operate based on a community of principle. Popkin thus places statutes firmly within the common law.109 Popkin approves of Gregory, regarding it as the “classic criticism of literalism,” despite objections that contextual readings upset ‘reliance’ concerns (what we might term formalist concerns by another name).110 In sum, whether considered through the lens of contextual, structural or practical reasoning interpretation,111 the result in Gregory is likely to be the same.  Those approving the result in Gregory may not be unanimous in their assessment of the courts’ reasoning or the correct methodology for tax interpretation. Those who disapprove of the result in Gregory – who might be loosely described as “textualists”112 – are, however, in agreement about Gregory’s failings. For example, Coverdale utters a plea’ for textualism,113 describing Gregory as a landmark case that has been frequently used by courts to justify “antitextual” readings of the Code.114 Beginning from the statutory language at issue in Gregory, Coverdale asserts that by defining ‘reorganization’ with the word “means” Congress provided therein all the necessary and sufficient elements of that provision. “It is difficult to imagine how Congress could have indicated more clearly that it was enacting a definition that establishes the necessary and sufficient conditions for a transaction to be treated as reorganization.”115 As a result, Coverdale concludes that “[t]he Gregory court’s reliance on arguments about “underlying presuppositions” to justify reading a business-purpose requirement into a definition that includes no such requirement is a case of a court taking a pencil to the statute to correct what it considers to be Congress’s mistake.”116 To avoid such interpretations, Coverdale urges the adoption of a “rule against antitextual interpretations” for reasons not specific to tax: as the enacted text, the Code has unique claims to legitimacy;117 the Code appears generally in the form of rules, not standards;118 and, the frequency of postenactment legislation provides Congress with opportunity to correct any errors.119

Within the context of some ‘musings’ on the doctrine of substance over form and not proposing a general theory of statutory interpretation,120 Isenbergh distinguishes between statutes by asking whether their terms draw their meaning from the statute itself or the real world: if from the statute itself, statutory terms of art define both form and substance.121  Because there is no “natural law of reverse triangular mergers”, Isenbergh initially classifies the reorganization statutes as creatures without real world antecedents,122 where
 

 enlarging the statutory language through the addition of the business purpose requirement is therefore inappropriate. Isenbergh frames the question in this way: is the 1928 statute selfcontained?  If yes, Gregory should win. If the term ‘reorganization’ is “bounded to some extent by its antecedents in the world”, the government should win. Isenbergh’s own analysis ultimately suggests a closer question, despite his characterization of the reorganization provisions as ones without any real world antecedents.123 The use of the business purpose doctrine to introduce considerations of tax avoidance or taxpayer motive is most troubling to Isenbergh .124 Such doctrines afford too much license to judges and contribute significantly to the sorry state of statutory interpretation: “I believe that if Gregory had gone the other way

(and all that entails had ensured), we would now have a more readily fathomable demarcation between the respective spheres of statutory provisions and judicial intuition.” 125  The logical extension of Isenbergh’s identification of self-contained statutes that allow
no reference beyond their four corners is a method of statutory interpretation that satisfies formalist concerns, whether motived by efficiency, anticonsequentialist or apurposive concerns.126 Such pure formalism might appear attractive if the rule of law as a law of rules
 

 did not depend on the effectiveness of its law. Instead the failure of this pure “rule-oriented approach” in tax, now forcefully stated by Weisbach127 and Levmore,128 calls into question the validity of such a formalist approach. Indeed failed formalism creates only a rule of men where those capable of manipulating the rules do so for their own narrow advantage.  Describing tax as the “paradigmatic system of rules,” Weisbach nonetheless concludes that a “purely rule-oriented approach” has failed, whether analyzed on efficiency grounds or

respect for the law.129 Weisbach applies an economic130 analysis to consider the relative efficiency of rules or standards in tax.131 Applying Kaplow’s analysis (that the only difference between rules and standards is whether costs are incurred ex ante or ex post), a conclusion that
rules are inefficient appears somewhat counterintuitive. Given the numerous transactions to which tax rules apply, rules should be more efficient than standards. This counterintuitive result, rules are inefficient in tax, arises precisely because in tax rules must be more complex
than standards. Because of tax arbitrage, taxpayers exploit discontinuities that result from gaps in tax rules. As a result, tax rules must necessarily be increasingly complex because they afford to overlook the uncommon. And, as Weisbach demonstrates, once the
discontinuities in tax are identified, the uncommon becomes common.
In particular, Weisbach then considers the use of anti-abuse132 rules (more properly
 

 called standards) to limit tax avoidance and concludes that anti-abuse provisions are efficient and could even appropriately be read into tax statutes.133 Because rules, even where they are complex and detailed, create discontinuities in tax and discontinuities are exploited by taxpayers, “uncommon transactions” become common. Standards, including anti-abuse provisions, are “fuzzy at the borders.” As a result, they not only decrease tax arbitrage but are more efficient since they reduce complexity within the law.134  Given the failure of a “purely rule-oriented” approach, a failure conceded by some formalists, and that no approach to interpreting statutes, sufficiently determinate and bounded to satisfy all sides, has been articulated, what is the next step? A consideration of how Aristotle approached some issues of language, logic and interpretation followed by a reconsideration of the reorganization provision at issue in Gregory read in light of Aristotle may offer some ideas.

 

IV. Aristotelian Analysis
 
A. Introduction
 
The utility of Aristotle and Aristotelian writings to current issues of statutory interpretation has not gone unnoticed.135 Indeed, Aristotle is recognized as providing the inspiration for some modern theories of interpretation, including practical reasoning.136  Aristotle’s importance should not be surprising given his attention to theories of language and
 

 logic, both critical to dialectic (reasoning based on accepted premises) and indeed his entire system of thought.137 Arguing with others and drawing conclusions from their answers, i.e., commonly referred to as ‘dialectic’, is a natural way to proceed in a forensic setting where we find questions of argument, evidence, confirmation and refutation. Active law courts, requiring skill in dialectic and its counterpart, rhetoric, are as characteristic of twenty-first century America as fifth and fourth century B.C. Athens.138 For example, argumentation that recognizes sophistical fallacies and philosophical errors often originating from equivocity, equivocal use of terms, what modern statutory interuptation describes with terms such as ‘vagueness’ or ‘ambiguity’, has obvious advantages over its opponents.139 In short, Aristotle represents a tradition closely linked with our own legal, logical and philosophical tradition and as such has much to offer, including a discussion in terms and modes quite familiar to those trained in the law and offering much for current debates about statutory interpretation.

Despite Aristotle’s recognized importance in these fields, or perhaps because of an importance that has occasioned frequent misconceptions and uses of Aristotle erroneously conflating aspects of his work with Plato’s quite different views, little serious attention has been paid outside a small group of dedicated Aristotelian scholars until recently140 to Aristotle’s extensive discussion141 of how to distinguish words that are ‘multivocal’, words we might describe as ‘equivocal’ or ‘ambiguous’, because they are without a single meaning.142
 

 For example, homonyms present a class of just such equivocal words. An example of a common homonym is the word “bank” (as in, ‘river bank’ and ‘savings bank’) – the name given is common but the account of being that corresponds to the name (i.e., river bank or savings bank) differs.143 Aristotle’s important contribution is the identification within homonymy generally of class of homonyms (associated homonyms) that can help us re-think issues of equivocity and ambiguity and, in the process, refine our ability to understand language. In modern discussions of statutory interpretation homonyms are recognized as

creating, by their ambiguity, the possibility of confusion, but generally capable of easy resolution or if not, of little utility. H.L.A. Hart provides the fullest account, but does not appreciate the associated nature of some homonyms, seeing no middle ground between discrete homonyms and synonyms.144 Consideration of Aristotle’s extensive discussion of homonymy, and above all his important contribution in recognizing associated homonymy, will thus be a useful starting point.
First, Aristotle’s definition of homonymy will be explored in detail, including his recognition of both discrete (unrelated) and associated homonyms. A brief discussion of why this distinction is an important one will be considered. This will lead to a consideration of Aristotle’s approach to methods and levels of definition. Understanding levels and functions of definition will help our understanding of homonymy while homonymy in turn will help clarify how we should approach issues of definition, including priority within definitions and among homonyms. Ultimately, combining aspects of Aristotle’s theories of language and signification, definition and priority will allow us to reconsider the statutory term, ‘reorganization’.
 
B. Homonymy
 
Aristotle clearly distinguishes homonyms from synonyms,145 finding a consistent - definition for synonym possible.146 What is initially unclear is how Aristotle defines homonyms and why homonyms constitute an important category. The difficulty with defining homonyms appears when the examples by which Aristotle illustrates homonymy are examined.  Homonyms permit different definitions. This equivocity or ambiguity appears at first problematic; but upon closer examination we begin to understand how homonymy provides a source interest for Aristotle.147 If we return to our first example of a homonym, ‘bank’ we see that (river) bank and (savings) bank suggest that homonyms are “discrete”148 (i.e., nonoverlapping)
in their definitions. Non-overlapping homonyms do not seem to offer much; although presenting some possibility of ambiguity, their distinct nature makes it unlikely that they will confuse competent speakers.
Not all homonyms are so discrete or obvious, especially Aristotle’s favorite example, ‘healthy’, from which we can begin to understand that homonyms are far more complicated than previously recognized. Consideration of four sentence examples in which ‘healthy’ appears will illustrate.149
               1) Socrates is healthy.
 

                (2) Socrates’ complexion is healthy.

                (3) Socrates’ regimen is healthy.
                (4) Socrates’ salary is healthy.
 
Without closer examination, the competent speaker might conclude that ‘healthy’ appears here synonymously: that the predicates are both the same word with the same account.  However, the predicate ‘is healthy’ differs in each of the four sentences, appearing more closely related in the first three sentences. Its appearance in the fourth is somewhat more
distinct.150 If we examine the use of ‘healthy’ in each sentence, we see that they are far from being synonyms; they are instead both distinct and irreducible: ‘Socrates is healthy’ indicates a state of well-being for Socrates; a ‘healthy’ complexion indicates a complexion that may reflect not only its own healthy state but Socrates’ healthy state; a ‘healthy’ regimen contributes to and is also related to Socrates’ generally healthy condition. In short, we see that these terms are not synonyms (having both common names and accounts), but homonyms: their name is common but their accounts differ.  As Aristotle describes the term in the first three sentences, “the term ‘healthy’ always relates to health (either as preserving it or as producing it or as indicating it or as receptive of
it)[.]”151 In this example, a ‘healthy complexion’ is indicative of Socrates’ state of health; his ‘healthy regimen’ is contributory to his state of health. Because ‘healthy’ as it is used in these sentences is not univocal, and Aristotle clearly thinks it is not univocal,152 then we have
identified a word exhibiting more than ambiguity (mere ‘equivocity’). Because ‘healthy’ in these associated examples is neither reducible to nor independent of our core example, Socrates is healthy’, we have identified a word displaying “genuine and ineliminable multiplicity.”153 In other words, homonyms such as ‘healthy’ differ from other, discrete
 

 Before examining the significance of and manner in which homonyms are related, it will be helpful to discuss further Aristotle’s method and understanding of definition not because it alone helps us answer difficult questions of interpretation, but because it causes us to re-consider what we signify when we use the word ‘definition’ and how, when we are considering homonyms, what we mean when we use them in a manner we, as casual speakers, would consider a ‘definition’ that might more properly be considered a ‘signification’ that is somehow different from a ‘definition.’ Again, it will be helpful to consider Aristotle’s definition alone and its operation within the context of his other theories of language unencumbered by previous criticism of its possible limitations. Aristotle distinguishes not only between better and worse ‘definitions’ but also between levels of definition. For Aristotle, a ‘better definition’ must satisfy certain minimum conditions.155 More specifically, “it is necessary for the one defining well to define through

genus and differentiae.”156 By requiring identification of the genus157, the class to which what is being defined belongs and is necessarily signified when we say ‘what it is to be something’ in a true definition, Aristotle imposes a priority requirement: because genus exists prior to and is better known than the individual case.158
 
In fact, failure to identify– or correctly identify – the genus to which something belongs is recognized as nothing less than the means by which we could destroy our opponent in dialectic. As Cleary explains:
 
One might also show that, although the definiendum has a genus, your opponent has neglected to put it into any genus or has not placed it in the proper genus (to oikeiou genos). This would destroy his proposed definition because the definiendum must be placed in its proper genus with its appropriate differentiae if there is to be a genuine definition, especially since the genus is generally taken to indicate the substance of the definiendum (ten tou orizomenou ousian).159
 
1. Priority
 
Priority, occupying as it does an important place in Aristotle’s thought, does not immediately define itself. We must consider on what levels of our own experience we might classify something as ‘prior’. For example, priority can be defined both as ‘what is better known’ to us through appearances,160 that is a particular object with which we have immediate
 

 familiarity or experience, or ‘what is better known by nature’, that is ‘better known’ because it corresponds to a more detailed analysis of the nature of the object or belief in question.161  What is ‘prior’, from a perspective of our personal experience does not necessarily correspond

with what is ‘prior’ because of the nature of that being considered. We are able to coordinate these not necessarily identical examples of ‘priority’. This is the function of inquiry and analysis: as we move between the particular and the general,162 we strive to reconcile
contradictory results, puzzles that become apparent upon examination. The nature of the inquiry will dictate which method, empirical163 or dialectic164 or some combination of both, is most appropriate for our attempts to clarify what is confused,165 a progression (from confusion to clarity) that is more important than whether we move from particular to general or from general to particular. Necessarily we must move between the general and particular in order to achieve clarity. 
 
2. Levels of Definition
Because genus includes the essence (‘what it is to be something’)166 of that being defined, a statement of the genus (essence) is a necessary constituent of a ‘better’ or complete definition.167 Essence, in spite of its Platonic connotations of univocity, an assumption of univocity that is unwarranted according to Aristotle, should not be understood to imply what we might understand by ‘platonic essentialism’ implying a single unitary quality or qualities.  Essence for Aristotle is rather something closer to the core element of ‘what it is to be something’, or that without which something ceases to be what the term denotes that it is. Or,
to use Hart’s terms, we might define essence then as that which must be included in order for the term to be true.  Despite Aristotle’s assertion that a ‘better definition’ necessarily includes the essence of that being defined, Aristotle also recognizes that not all definitions state essences.168
 

Competent speakers will concur with Aristotle’s awareness that “different definitions reflect different degrees of scientific awareness.”169 A definition may ‘signify’ without necessarily
describing the essential characteristics of the thing signified. This distinction among types of definition, a distinction familiar from our everyday reality, corresponds to Aristotle’s “epistemic distinction” between things ‘better known to us’ and things ‘better known by nature’, recalling our discussion of priority. Moreover, such a distinction helps us understand the relationship that exists between homonyms. Levels of definition are a crucial point for homonymy. Because not all definitions state essences, the fact that homonymy marks definitional differences does not require that homonyms indicate only essential differences.
Similarly, homonymy does not require univocity. These distinctions caution us that definition and signification are far from “mono-dimensional.”170
 
Aristotle’s description of different types of definition, arising in part as a function of the particular inquiry (whether, for example, it is conducted by a physicist or as part of dialectic exercise),171 suggests that the process of definition is more than “mere linguistic analysis.”172 This conclusion corresponds well to our understanding that signification occurs at multiple levels.173 Because competent speakers share “shallow meanings” there is no disagreement about examples of discrete (non-overlapping) homonymy (e.g., bank in the case of ‘river bank’ and ‘savings bank’; or crane (a bird or a machine)), and we can readily converse as competent speakers of the language. However, the more closely associated are the homonyms (e.g., ‘healthy’; ‘good’; ‘justice’), the more investigation and analysis is required to determine at what level discourse is occurring.174 Such investigation will be rewarded
because we will avoid error in these more philosophically interesting cases. Recognizing these as homonyms will prevent a mistaken assumption that we are dealing with an univocal account.  Absent recognition of non-univocity there will be resulting lack of clarity in either our argumentation or analysis of our opponent’s argument.
 
3. Core-Dependent Homonymy
Aristotle’s identification and analysis of homonymy, distinguishing as it does between distinct and associated homonyms, is critical because it establishes non-univocity. It does far more than establish mere non-univocity; it also establishes a positive mechanism by which we
can understand associated homonyms.175 Returning to the earlier example ‘healthy’, we can understand that it is not only associated but in fact core-dependent176 – so-called because “its various occurrences coalesce around a core notion.”177 As Aristotle noted, in the previous
examples, ‘healthy’ is always related in some manner to ‘health’.  Healthy regimens and healthy complexions necessarily make reference to Socrates’ general state of health, but in a way that is not reducible to that simple statement describing Socrates’ general state of wellbeing.
As Shields describes it, a and b are homonymously F if and only if their accounts refer asymmetrically to each other or there is some c to which the accounts ‘a is F’ and ‘b is F’ necessarily makes reference.178
 
 

 to determine at what level discourse is occurring.174 Such investigation will be rewarded because we will avoid error in these more philosophically interesting cases. Recognizing these as homonyms will prevent a mistaken assumption that we are dealing with an univocal account.  Absent recognition of non-univocity there will be resulting lack of clarity in either our argumentation or analysis of our opponent’s argument.

 

3. Core-Dependent Homonymy
Aristotle’s identification and analysis of homonymy, distinguishing as it does between distinct and associated homonyms, is critical because it establishes non-univocity. It does far more than establish mere non-univocity; it also establishes a positive mechanism by which we
can understand associated homonyms.175 Returning to the earlier example ‘healthy’, we can understand that it is not only associated but in fact core-dependent176 – so-called because “its various occurrences coalesce around a core notion.”177 As Aristotle noted, in the previous
examples, ‘healthy’ is always related in some manner to ‘health’.  Healthy regimens and healthy complexions necessarily make reference to Socrates’ general state of health, but in a way that is not reducible to that simple statement describing Socrates’ general state of wellbeing.
As Shields describes it, a and b are homonymously F if and only if their accounts refer asymmetrically to each other or there is some c to which the accounts ‘a is F’ and ‘b is F’ necessarily makes reference.178  
In other words, in core-dependent homonyms, there is present a base referent179 to which each of these homonyms displays a significant form of association.180 The association is significant and thus worth note. The association must also be open-ended (allowing for inclusion of new examples)and asymmetrical.181 Yet the association does not exist at so broad a level to render the connection meaningless.182 This allows us to recognize that the fourth example ‘Socrates’ salary is healthy’ is a non-core example. The mechanisms by which we can identify and differentiate among associated homonyms must now be considered.
 
4. Functional Determinism and Causation
 
Aristotle’s functional analysis and principles of causation provide a mechanism by
 

 which we can arrive at the determinate but open-ended asymmetrical relationship between homonyms and the core around which they are associated. One method, known as “functional determination,”183 is a mechanism by which Aristotle identifies both kind membership and

individuation that allows differentiation between true and spurious examples. For example, if an axe were to decay to the point where it could no longer function as an axe, then it no longer is an axe, ‘except homonymously’;184 so too, an eye that can no longer see is only homonymous an ‘eye’ because part of the true nature of an eye is its function. 185 Similarly, a representation of an axe or an eye is only called so homonymously.186 While linguistic practice may disincline us from recognizing homonymy in these cases, there are philosophical reasons inherent to the nature of definitions that warrant the recognition of functionally determined classes.187
Similarly, returning to the example of ‘healthy’, we can see that the various examples188 of ‘healthy’ stand in one (or more) of the four causal (efficient, material, final, formal)189 relationships to the core example: ‘Socrates is healthy’ identified by Aristotle.  ‘Healthy regimen’, for example, is efficiently related to Socrates’ health.190 The asymmetricality of the relationship allows for multiple causal relationships at any one time.  Aristotle’s recognition that homonyms are not only associated but related to a core in a not necessarily symmetrical relationship is also crucial. Although core instances need not make reference to derived instances, all derived instances necessarily make reference to the core instance. As a result, there is among core-dependent homonyms definitional asymmetry that assumes priority of the core instance.191  Through the identification of homonyms, especially philosophically interesting ones including the examples ‘healthy’, ‘goodness’, ‘justice’, Aristotle provides a means by which he establishes non-univocity and thereby distinguishes in an important way his philosophy from Plato’s, whose “Forms”192 are based, in Aristotle’s view, on unwarranted assumptions of univocity, assuming as it does participation in the Form of the ‘Good’ of all that can be described as ‘good’.193 Recognition of Aristotle’s crucial contribution, that non univocity does not preclude significant association, nor does significant association require univocity, is essential if we are to understand what his distinctions allow us to achieve in other areas.
 
Moreover, it further requires that we distinguish his contribution and not erroneously conflate his theories with Plato’s. Equally important to the recognition of non-univocity is Aristotle’s identification of core-dependent homonymy through which he provides a positive mechanism
for scientific treatment of core philosophical ideas.194 Hence the appeal of homonymy, not
 

 only for Aristotle but for us, since it may provide a method, based on definitional priority and causal relationships, for careful analysis of texts that require analysis beyond that of the competent speaker.

 

5. Identification of Homonyms – Signification
 
If equivocity (ambiguity) left unclarified inhibits the possibility of meaningful discourse, then homonymy, especially homonymy associated around a core, when recognized and accounted for may actually prove useful. Words that are equivocal because they relate to
a core are useful by highlighting similarity marked by distinction. Because Aristotle’s methodology – avoiding unwarranted assumptions of univocity while defining a mechanism whereby associated terms can be better understood as associated around a core – is appealing, then further consideration of how to identify homonyms will be helpful.
Although it is often easy to identify discrete homonyms,195 those providing interesting cases, i.e., the more associated and the more complex homonyms, will often escape our attention and thus slip in unnoticed. The question then becomes how to identify such cases, and in particular how to define them while not re-asserting some form of univocity. Aristotle provides a variety of indicators, including difference in signification; tests for forms and existence of contrariety; tests based on differentiae of genera or species.196
 

 One important indicator of homonymy is difference in signification.197 If the predicates signified by a name are not the same in all cases – if, in other words, a common word signifies different accounts – for Aristotle this alone is sufficient to establish homonymy.198 Recognizing that non-univocity is more than a semantic distinction for Aristotle and that a valid definition must contain both the genus and differentiae of that being defined, we see that unrecognized homonyms, including homonyms that demonstrate absence of either the genus or the essence specified in the core will result not only in confusion but in the possibility of mistaking a spurious for a real example.199

 

By combining Aristotle’s theories of homonymy (common words signifying different predicates), definition (levels of definitions with better definitions specifying genus), and priority (what is known by nature is prior; associated homonyms refer to a core that is prior),
we have discovered a method for approaching interesting problems of statutory interpretation that allows for greater clarity in the use and understanding of language. With these principles in mind, we can now return to a consideration of ‘reorganization’.
 

 V. ‘Reorganization’: an Example of Homonymy

 

Looking again at the statutory provision at issue in Gregory, we can consider the utility of Aristotelian analysis. The applicable statutory provision states:
 
The term “reorganization” means (A) a merger or consolidation (including the acquisition by one corporation of at least a majority of the voting stock and at least a majority of the total number of shares of all other classes of stock of another corporation, or substantially all the properties of another corporation), or (B) a transfer by a corporation of all or part of its assets to another corporation if immediately after
the transfer the transferor or its stockholders or both are in control of the corporation to which the assets are transferred, or (C) a recapitalization, or (D) a mere change in identity, form, or place of organization, however effected.200
 

 Textualists who rely on the plain meaning of the statutory text have interpreted this passage to indicate that ‘reorganization’ as stated in each one of these alternative forms individually contains all conditions both necessary and sufficient to satisfy the requirements for tax-deferral. Thus, for a textualist, a ‘reorganization’ occurring in the form of a ‘merger’ or ‘a transfer of assets to another corporation’ satisfies completely all the necessary and sufficient requirements for the benefits of tax-deferral. Our examination of Aristotle has demonstrated, however, that the occurrence of a common word signifying different things cannot each signify a univocal account.

 

A. Difference in Signification establishes Homonymy
 
Indeed, Aristotle regards difference in signification as sufficient to establish homonymy.201 ‘Reorganization’ is a common name applied here to four alternative transactions. A ‘reorganization’ that is a ‘merger’ does not signify a transaction synonymous with a ‘recapitalization’ or ‘mere change in place of organization’. Because their accounts differ, it
is not reasonable to infer that each provides a complete, univocal account. In short, ‘reorganization’, as it appears in the statute is a homonym.
 

 Once identified as a homonym, the next question is whether ‘reorganization’ is an example of a discrete (unrelated) homonym or is better understood as an example of an associated or core-dependent homonym: a homonym where the accounts do not completely

overlap.202 Because these alternative transactions are as a group accorded beneficial tax treatment through tax-deferral, their grouping suggests that they are not discrete homonyms (as, for example, river bank and savings bank) but are rather examples of associated homonyms.
 
It does not seem a reasonable conclusion to infer that ‘reorganization’ simply constitutes an ad hoc grouping of randomly selected transactions to which an exception to the realization and recognition requirement is granted. Further investigation of the nature of these homonyms will be helpful in resolving this question.
 
B. ‘Reorganization’ as Definition
 
If we next consider the sufficiency of these statements as definitions, we find once again that Aristotle’s methodology may be helpful. Aristotle recognized levels of definition.203  As competent speakers we may ‘define’ something by denominating it as a ‘dog’. Our understanding of the object so denominated is based on what is known more immediately to us. However, our definition of ‘dog’ need in no way include a statement of the particular
 

 to communicate as speakers of the language because we can generally understand a ‘reorganization’ without understanding the precise nature of that ‘reorganization’, including the status accorded it for tax. However, in order to state ‘what it is to be’ a dog, in the form of a ‘better’ definition, we must include both the genus and the differentiae (characteristics) of that which we so define. For we have seen that genus is necessarily prior to the differentiae (as individual characteristics) since when we state the genus we state the ‘essence’ or what it means to be something.204

 
If we consider again ‘reorganization’ as it appears in the statute, we see that the terms specifying the permissible forms (e.g., merger, recapitalization) state only the particulars (differentiae) applicable to each type. Thus the textualists who interpret ‘reorganization’ to define all necessary and sufficient conditions are stating an incomplete definition because they do not state the genus to which they belong, viz. a group of transactions for which an exception to the realization requirement has been granted. As competent speakers, we can understand generally what is meant by a ‘reorganization’ describing mergers and other forms of business adjustments. However, on a more sophisticated level of understanding the ‘reorganization’ provisions as a definition of a group, we recognize that we need a ‘better’ definition, one that includes the genus to which these transactions belong as well as their individual permissible forms.
 
C. Genus - ‘Not-Sale’
 
 

 Because each transaction denominated by ‘reorganization’ in the statute does not specify its genus, it may be possible to infer the genus by virtue of the tax consequences applicable to transactions appearing in any one of these alternative forms, i.e., deferral of immediate recognition of any gain. We do not simply assume the genus by reason of the tax consequences. Rather, we begin from a consideration of the characteristics of these transactions that justify their tax treatment (deferral) and investigate whether, in fact, characteristics of the genus correspond to characteristics associated with the tax consequences.

 

The default characterization for all changes in ownership, whether termed ‘sale’, ‘disposition’ or ‘transfer of interest’ in a corporation is a ‘sale’. Any sale, transfer or other disposition of one’s interest in a corporation – for whatever reason and for whatever type of consideration (e.g., cash) – results in a taxable event requiring immediate recognition of any gain or loss.  Within a realization based income tax system, the time for measuring gain or loss ends at this
moment of disposition. If any change in ownership can be termed  ‘sale’, then for convenience, we may refer to these four  reorganizations’ as ‘not-sale.’ By ‘not-sale’ we mean here a group of reorganizations that are accorded tax-deferral thereby deferring the moment of taxation inspite of changes that would otherwise trigger a taxable event within a realization based system. Because genera do not overlap,205 we may assume that ‘reorganizations’ that qualify for tax-deferral must constitute a genus (‘not-sale’) that is distinct from that of a ‘sale.’
It is not the form (differentiae) described by the alternative transactions that of itself characterizes a distinct genus excepted from immediate tax. Because a ‘sale’ or other realization event would include an alteration of one’s ownership interest in a corporation that occurred through any one of the forms specified here (mergers, reorganizations or the like), we can infer that a taxable reorganization would require recognition of gain or loss upon its occurrence. If the forms alone do not result in beneficial tax deferral, we may infer that character of the genus are what constitute the ‘not-sale’. In short, absent this statutory provision, any reorganization occurring in any one of these alternative forms would result in a taxable event requiring recognition of gain or loss. We can assume, therefore, that a reorganization that confers the benefit of non-recognition has characteristics that would allow it to be characterized as a ‘not-sale’. The basis then for distinguishing between reorganizations
that require immediate realization and recognition of gain and those to which tax-deferral is granted is not in the particular forms specified in the statue, viz. merger or stock for stock transaction. Rather, the distinction lies in characteristics of the genus to which these
‘reorganizations’ belong. 
 
Characteristics that describe a genus that merits no immediate tax recognition include continuity of interest, because continuity itself allows for postponement until a later date for measuring any gain or loss inherent upon final disposition of one’s ownership interest. If one
has continued one’s ownership interest unchanged, no exception to realization is required, because there has been no ‘sale’. However, mere continuity of ownership or business does not recognize the nature of business and economic conditions. The need to make changes in
business structure, ownership or combination occurs independently of the willingness to acknowledge gain or loss and the attendant tax consequences. In other words, if continuity is required to avoid realization and recognition, there is no genus distinct from ‘sale’ that is
anything but unchanged ownership interest. A tax system that does not acknowledge business exigency  creates a significant impediment to the conduct of business and the healthy functioning of an economy unimpeded by the system itself. The genus (‘not-sale’) of transactions can be distinguished from a disposition of an ownership interest for any reason or no reason because it is motivated by a reason that is inherent in the nature of the business.
 
In other words, transactions motivated by business exigency despite incomplete continuity constitute members of the genus ‘not-sale’. The combined characteristics of business purpose (a business motivation for a transaction) plus some level of continuity that is less than complete
but that is consistent with the business purpose constitutes characteristics of the genus ‘notsale’.  A ‘not-sale’ then can be characterized as a change in ownership that would otherwise
require realization of gain but which is excepted from such realization and recognition because
 

 of both continuity of ownership and its origin in a reason inherent in the very nature of its business. What distinguishes then a ‘reorganization’ to which tax-deferral is granted from those which require immediate tax consequences are those characteristics of a ‘not-sale’, viz. continuity of interest and change in business ownership prompted by business purpose. In short, a tax-deferred ‘reorganization’ is within the genus ‘not-sale’ because of the characteristics of continuity within the ownership interest but continuity that is less than complete and thus motivated by business purpose – those very characteristics identified by the judicial doctrines of business purpose and continuity (of enterprise and shareholder interest).

We will see that these constitute the ‘core’ principles defining ‘not-sales’ around which these homonyms are associated and to which they must refer.206

D. Core-Dependent Homonyms

If ‘reorganization’ is an example of an associated homonym, and it would seem reasonable to so conclude based on their identical tax consequences although their individual forms vary, we must now consider how they are associated and whether we can identify them

as core-dependent homonyms. In defining associated or core-dependent homonyms, we have seen that they can be related in two ways. First, as in the example ‘healthy’, we saw that a ‘healthy complexion’ was indicative of Socrates’ state of healthiness while ‘Socrates’ healthy regimen’ was contributory to that state of Socrates being ‘healthy’. In this example, our associated homonyms relate causally and asymmetrically (since they were not reducible to but necessarily refer to Socrates’ being healthy) to the core statement: Socrates is healthy. More important for our example ‘reorganization’ we see core-dependent homonymy also defined to allow reference to some base referent by each of the associated homonyms: where ‘a is F’ and ‘b is F’ and there is some c to which the account of F-ness in both a and b necessarily include c.207

Where tax-deferred ‘reorganization’ specifies only the differentiae and not the genus, we can infer that it must make reference to and implicitly contain the essential characteristics of the genus, the basis upon which tax-deferral is predicated: that is, business purpose and continuity. While their forms208 (differentiae) are included in the definitions as stated within the statute’s provisions (and as such constitute ‘definitions’ that as we as competent speakers

 

 commonly understand as ‘reorganization’), as core-dependent homonyms to which tax-deferral is granted, these provisions alone cannot be understood as complete definitions or Aristotle’s so-called ‘better definitions’ but must be understood to be incomplete. To provide a complete definition, we must understand that ‘reorganization’ relates efficiently to the core provisions that constitute its essential nature.

 

E. Functional Determination
 
We can also analyze ‘reorganizations’ or that group specified here that confers the benefit of tax deferral from a functional perspective. Applying Aristotle’s test of “functional determination”,209 we can consider what function these ‘reorganizations’ perform. The
reorganization provisions function as an exception to the realization and recognition requirement to allow the benefits of deferral of immediate tax consequences. The benefits of deferral are offered to encourage any such organizational changes that otherwise would occasion an immediate tax event where motivated by business exigency lest the associated tax consequences otherwise resulting from such a ‘reorganizations’ inhibit or preclude the very changes necessitated by a business purpose. Those transactions merely taking one of the permissible forms absent a business purpose is only  homonymously a ‘reorganization’ to which tax-deferral is inappropriately granted because it is spurious.210
 
F. Application of Law of Non-Contrariety
 
We may find further support for our distinction between ‘sale’ and ‘not-sale’ by reference to a fundamental logical principle, the law of non-contrariety. Aristotle describes the law of non-contrariety as the “most certain of all principles” and states this because “it is impossible at once to be and not to be.”211 In other words, the law of non-contrariety states
explicitly that it is impossible for ‘contrary attributes’ to belong to the same subject at the same time. For example, Socrates as a ‘man’ is also an ‘animal. It is possible to name correctly a dog (a ‘not-man’) as an animal but it will not be true to call Socrates both an ‘animal’ and a ‘not-animal’. By function of the law of non-contrariety, it would be false then to state simultaneously that ‘Socrates is an animal’ and that ‘Socrates is a not-animal’.  
 
We can thereby logically infer that what is defined and classified as a ‘not-sale’ cannot simultaneously be a ‘sale.’ We can infer further that a ‘sale’ or transfer – a severing or alteration of one’s investment for no reason and with any type of consideration– can not also
 

 be defined as a ‘not-sale.’ Within a system predicated on the realization requirement, ‘notsale’ exists because it is predicated on business purpose. To infer otherwise suggests that the statutory provisions in question, and their interrelationship with other provisions of the Code

(realization/recognition), are simply ad hoc, apurposive rules. To assure ourselves that Congress’s lengthy effort to craft statutory provisions that accomplish their function (exception to realization requirement predicated on business purpose) is not merely apurposive rulemaking,
we can now turn to the extrinsic evidence provided by a statute with an eighty year history.
 
G. Extrinsic Evidence
 
To confirm that our process of reasoning based on homonymy, levels of definition and the logical rule of non-contrariety is in accord with Congressional understanding,212 we can look briefly at the rather lengthy legislative history associated with the statute, from the date
of the introduction of the reorganization provisions (1921) to their amendment in 1954, when they assumed a form close to the current one, codified in 1986 and amended as recently as 1997. As the nature of business transactions and the ingenuity of tax lawyers evolved, Congress has re-visited these provisions and continues to do so. Throughout its development, business purpose is repeatedly discussed as justification for this increasingly complex provision. Business purpose coupled with concern lest the provisions be mis-used for tax avoidance purposes (including loss recognition) is discussed as the most significant factor cited in the record of Congressional efforts which yielded increasingly complex statutory language in an effort to make the provisions clearer. However much public choice theory cautions us to view legislative history with suspicion, the mass of evidence in support of ‘business
purpose’ as the base referent seems to argue against simply dismissing all of this material as strategic.
 

 This examination of ‘reorganization’ as a homonym where a common name signifies different predicates allows us to recognize ‘reorganization’ as a definition understood by competent speakers but one which necessarily lacks all elements necessary to provide a ‘better’

definition. A ‘better definition’ that recognizes the priority of the genus to which these taxdeferred reorganizations belong demonstrates that as a genus distinct from ‘sale’, a ‘not-sale’ to which tax deferral is granted correctly incorporates business purpose within its core, or essential, attributes. As such, business purpose is correctly understood to apply to all taxdeferred reorganizations, in whatever form they are structured. As homonyms, all reorganizations necessarily incorporate their essential nature, including business purpose.
 
The application of Aristotelian principles of homonymy, association and priority among homonyms, and priority in levels of definition, leaves many questions unanswered, including the quantum of business purpose necessary and whether the doctrine is correctly applied outside of the reorganization provisions. This e served its purpose if it helps definitively answer whether the Gregory decisions, articulating business purpose, are correct. If we are closer to agreeing on that fundamental question, it may now be possible to address these still unanswered issues.
 
VI. Conclusion
 
We must now address the question posed initially: the suitability of the proposed method of statutory interpretation to a society dedicated to the ‘rule of law.’ Can application of the methods outlined above, including consideration of homonyms (whether they are associated or discrete; related in one of the causal relationship to a core idea), levels of
definition (whether a definition includes sufficient information to provide a better rather than a worse definition) and common principles of logic (law of non-contrariety) be reconciled with the rule of law?
As a text and contextually based system, the method proposed would seem to adhere more closely to the rule of law theory than current forms of textualism, with its ad hoc recourse to dictionaries and canons of statutory construction, or formalism whose very nature within tax
interpretation undermines the rule of law. These principles based on Aristotle’s methodology certainly provide more determinate principles for analysis than dynamic statutory interpretation, at least for beginning an initial inquiry into the language of the statute.xamination will, nonetheless, have Certainly Aristotelian methods are not going to replace current methods of statutory interpretation. But if they allow the solution of some common but difficult issues and provide some determinate answers based on a principled methodology, they may contribute to the development of an ultimately more satisfying theory of statutory interpretation.  Finally, if we are willing to look at the entire passage too frequently only selectively quoted to propose a strict textualist approach, we will see that Aristotle himself answers the
question of how textual interpretation and the function of those charged with both interpreting and giving effect to the law can be reconciled with the principle of the ‘rule of law’.

Therefore, it is preferable for the law to rule rather than any one of the citizens, and according to this same principle, even if it be better for certain men to govern, they must be appointed as guardians of the laws and in subordination to them. It may be objected that any case which the law appears to be unable to define, a human being also would be unable to decide. But the law first specially educates the magistrates for the purpose and then commissions them to decide and administer the matters that it leaves over ‘according to the best of their judgement,’ and furthermore it allows them to introduce for themselves any amendment that experience leads them to think better than the established code.213
 
 

 Interpretation, therefore, is inescapable as part of the application of law to any factual situation. Principled analysis of words that are homonymous, by following a methodology such as Aristotle suggests, will allow for a reasoned approach to common and important issues of statutory interpretation.  However much we value the rule of law, language is not, except in the simplest cases, self-evident.214 As such analysis and interpretation by those committed to judge in the ‘best

manner possible’ are required to give effect to the rule of law and are thus essential and not contrary to it. We must begin with the text but we must necessarily consider the full context in which the text appears and then ‘judge in the best manner possible’. If analysis and interpretation is undertaken by “well-trained, honest, able men [sic], conscientiously obeying the laws, and imbued with the spirit of democracy”, only then will we actually construe a text “reasonably, to contain all that it fairly means.”215
 

 


Footnotes

 

1. ARISTOTLE,POLITICS, III, xi. 3-4, 1287a 20-24 (1932)(Rackham trans.). See infra notes 34 (reprinting the translation quoted by Justice Scalia) and 213 (quoting and discussing the passage in its entirety). For the course of transmission of Aristotle’s ‘rule of law’ into American jurisprudence, see JEROME FRANK, IF MEN WERE ANGELS, SOME ASPECTS OF GOVERNMENT IN A DEMOCRACY 190-211 (1942).

2. See William D. Popkin, An “Internal” Critique of Justice Scalia’s Theory of Statutory Interpretation, 76MINN. L.REV. 1133, 1165-66 (1992)(examining Justice Scalia’s justification for and method of statutory interpretation and noting that “[b]y linking injustice with judicial discretion, Justice Scalia puts his critics at a rhetorical disadvantage”).

3. See infra notes 49-54 (discussing dynamic or practical reason models of statutory interpretation proposed by William Eskridge, Daniel Farber, and Philip Frickey). 

4. Our daily experience as competent speakers suggests that it should be possible to arrive at more, rather than less, determinate answers for the meaning of most statutes, despite the frequency with which we wrestle with issues of ambiguity. See TIMOTHY A.ROBINSON,ARISTOTLE IN OUTLINE 3 (1995) (our most important beliefs are accepted (or rejected) not by directly testing them against the facts, but by considering the roles they play in our systems of belief).

5. For a summary explanation of the principles at work in tax shelters, see Kenneth W. Gideon, Mrs. Gregory’s Grandchildren: Judicial Restriction of Tax Shelters, 5 VA. TAX REV. 825, 849 (1986) (describing common aspects of tax shelters relying on deferral, conversion and leverage for taxpayer advantage).

6. See DEPARTMENT OF THE TREASURY, THE PROBLEM OF CORPORATE TAX SHELTERS: DISCUSSION, ANALYSIS AND

LEGISLATIVE PROPOSALS (July 1999) [hereinafter TREASURY, WHITE PAPER], Doc 1999-22641, 1999 TNT 127-12 (ascribing to

Gregory the origin of most judicial doctrines, including business purpose, substance over form, step transaction and economic substance, that override purely literal interpretations of tax statutes to disallow transactions deemed to fall outside the scope of the provisions).

7. See infra notes 97-111 (discussing purposive or structural approach) and 117-125 (discussing literalism).

 

 

 8. This method may provide some insight for cases such as National Org. for Women v. Scheidler, 114 S.Ct. 798 (1994)(‘enterprise’) and Chisom v. Roemer, 501 U.S. 380 (1991)(‘representative’). For linguistic analysis applied to these cases, see LAWRENCE M. SOLAN, THE LANGUAGE OF JUDGES (1993) and Clark D. Cunningham et al, Plain Meaning and Hard Cases, 103 YALE L.J. 1561 (1994), BOOK REVIEW, LAWRENCE M. SOLAN’S THE LANGUAGE OF JUDGES (1993)).

9. See, for example, RONALD DWORKIN, LAW’S EMPIRE (1986). While Solan’s linguistic approach, see SOLAN, supra note
8, has great utility, a conceptually-based approach may ultimately be more useful for application by lawyers not trained in linguistics.
A system of analysis such as that provided by Aristotle, already familiar to lawyers trained in methods of legal argumentation and persuasion (including rhetoric) may provide a more accessible common ground.
10. For a comprehensive overview of the subject of statutory interpretation, see WILLIAM N. ESKRIDGE, JR., DYNAMIC
STATUTORY INTERPRETATION (1994). 
11. Justice Scalia justifies his essay on interpretation as an attempt to explain the “current neglected state of the science of construing legal texts”. ANTONIN SCALIA, A MATTER OF INTERPRETATION [hereinafter SCALIA, INTERPRETATION] 3 (1997). The literature attempting to explicate theories of statutory interpretation is, however, voluminous. See ESKRIDGE, supra note 10, at 1; see also sources cited infra in note 49.
12. It may be that no one theory is possible or even desirable. See, for example, William Eskridge and Philip Frickey, Statutory Interpretation as Practical Reasoning, 42 STAN. L. REV. 321 (1990)[hereinafter Eskridge & Frickey, Practical Reasoning](contrasting “foundational” approach of law professors who seek one “grand theory” of statutory interpretation with practitioners who employ an eclectic mode of analysis in trying to advise clients on the meaning of statutes and ultimately advocating the more eclectic ‘practical reasoning’ approach). However, to the extent that no systematic methodology is offered, practical reasoning will remain subject to formalist objections.
13. A detailed exposition of all major theories is beyond the scope and purpose of this Article. The major theories will be summarized here to provide the necessary background to consider the question at hand. For a thorough discussion of the various theories of interpretation and their base assumptions, see ESKRIDGE, supra note 10.
14. The answer to whether the text of the statute alone is primary might seem obvious: as the only legally valid document, the text alone must control all issues of statutory interpretation. Yet as Eskridge notes, the interpretation of any statute presents an “analytical conundrum”. William N. Eskridge, Jr., The New Texualism, 37 UCLA L.REV. 621 (1990) [hereinafter Eskridge, New Textualism]. Eskridge describes the conundrum of text and context: “The statute’s text is the most important consideration in statutory interpretation, and a clear text ought to be given effect. Yet the meaning of a text critically depends upon its surrounding context. Sometimes that context will suggest a meaning at war with the apparent acontextual meaning suggested by the statute’s language. How should the judge proceed?” Id. On whether the text has an objective, determinate meaning separate and apart from its interpreter, compare Daniel A. Farber and Philip P. Frickey, Legislative Intent and Public Choice, 74 VA. L.REV. 423, 457 (1988)[hereinafter Legislative Intent] (“[O]ne fundamental flaw in the Scalia-Easterbrook conception is its assumption that statutes have a legal meaning that exists before the process of statutory interpretation.” ) with Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 HARV. J.L. & PUB. POL’Y 61, 67 (1994) (arguing for a “relatively unimaginative, mechanical process of interpretation”). Easterbrook
concedes that the distinction between interpretation and application is a difficult one. See Frank H. Easterbrook, Statutes’ Domain,
50 U. CHI. L.REV. 533, 535 (1983) (“The distinction between application and interpretation is a line worth drawing – however
difficult to maintain because of the malleability of words.”).
15. See William N. Eskridge, Jr., Textualism, The Unknown Ideal? BOOK REVIEW ANTONIN SCALIA’S, A MATTER OF
INTERPRETATION: FEDERAL COURTS AND THE LAW, 96 MICH. L.REV. 1509, 1548 (1998) (describing “common law method” as incremental process, a case-by-case judgment that works by analogy from authorities and precedents to unanticipated facts). See also
Daniel A. Farber, The Inevitability of Practical Reason: Statutes, Formalism, and The Rule of Law, 45 VAND. L. REV. 533, 535
(1992)[hereinafter Farber, Inevitability ](describing common law and decisionmaking).
 

 16. Eskridge, New Textualism, supra note 14, at 626 (describing role of any court in interpreting a statute as being the “honest agent” of Congress). The use of legislative history is then justified as a “check” on the court’s reading of even plain statutory language. See id. at 627 (“In almost all of the leading plain meaning cases of the Warren and Burger Courts, the Court checked the legislative history to be certain that its confidence in the clear text did not misread the legislature’s intent.”).

17. Church of the Holy Trinity v. United States, 143 U.S. 457 (1892)(statute prohibiting anyone from aiding foreigners’ transport to the United States in order to perform “labor or service of any kind” did not apply to church hiring and paying for transportation of English clergyman)(“a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers”). This problem of how to reconcile “plain meaning” with absurd consequences is not unique to American statutory interpretation. See Daniel A. Farber, The Hermeneutic Tourist: Statutory Interpretation inComparative Perspective, 81 CORNELL L. REV. 513, 514 (1996)(noting that the “absurdity” rule, first articulated in Holy Trinity, is
a ‘staple’ of statutory interpretation throughout the countries encountered in MacCormick and Summers’ comparative study).
18. See Eskridge, New Textualism, supra note 14, at 625. Emphasizing the intent of the enacting legislature elevates the importance of vertical coherence of statutory meaning at the expense of horizontal coherence (contemporary legal and social issues). For views attaching greater importance to contemporary, or historical coherence, concerns, and suggesting the impossibility of reconstructing texts because of interpreter’s own assumptions, see id. at 644-45 and HANS-GEORG GADAMER, TRUTH AND METHOD (1975)(describing philosophical hermeneutics and interpretation of text itself lacking objective meaning as necessarily resulting in dialectic between the text and the interpreter) and William N. Eskridge, Gadamer/Statutory Interpretation, 90 COLUM. L.REV. 609 (1990) (applying Gadamer’s hermeneutical method to statutory interpretation).
19. What materials from the entire range of materials denominated as “legislative history” can legitimately be consulted itself raises serious questions. For a review and hierarchy of materials, see Eskridge, New Textualism, supra note 14, at 636 and WILLIAM ESKRIDGE AND PHILIP FRICKEY, CASES AND MATERIALS ON LEGISLATION (1988) (describing a descending hierarchy of sources as a mini-funnel that begins with the most reliable material (committee reports and sponsor statements), moves to material of more uncertain import (rejected proposals, floor and hearing colloquies, testimony of nonlegislative drafters and sponsors), and ultimately to material too ambiguous to provide a firm basis for conclusion (legislative silence and subsequent history)).
20. See Eskridge, New Textualism, supra note 14, at 641 (describing critics, most notably Professor Reed Dickerson). Criticism of intentionalism intensified during the 1980s, in part due to objections offered by realists, historicists and formalists. Until Justice Scalia, however, criticism of the Supreme Court’s use of legislative history operated at the margins, with general acceptance of the assumption that the Court’s proper role was ‘to divine’ legislative intent and that the use of legislative history posed no particular constitutional problems. Id. at 624.
 

 21. Judge Leventhal’s criticism could be applied equally to the new textualists’ selection of dictionaries when trying to choose

the “plain meaning” of a term. See infra note 56 (discussing applicability to textualists’ use of dictionaries and canons of
construction). Farber and Frickey attribute the ‘assault’ on the use of legislative history as self-serving to the notion that “legislative
history is the product of legislators at their worst – promoting private interest deals, strategically posturing to mislead judges, or abdicating all responsibility to their unelected staffs (who presumably either have their own political agendas or randomly run amok).” Farber and Frickey, Legislative Intent, supra note 14, at 437-38.
22. See Eskridge, New Textualism, supra note 14, at 642, especially note 79 (describing the legal realists’ (including Max Radin) position, articulated in the 1930s, that to speak of “collective legislative intent” is incoherent because no ‘intent’ could be attributed collectively to the individuals involved in the legislative process because they do not comprise any unified whole).
23. Applying economic and game theory to the legislative process, public choice theory undermines the likelihood of
ascertaining legislative “intent” by denying its coherence. See Eskridge, New Textualism, supra note 14, at 643 (describing outcome of the legislative process as highly dependent on a variety of issues (including who controls the agenda) related and unrelated to the specific statute, resulting in legislative history that is at best inconclusive and at worst suspect, given the potentially strategic nature of the legislative process).
24. See Farber and Frickey, Legislative Intent, supra note 14, at 432 (noting various institutional features of the legislature actually promote stability and coherence). They acknowledge skepticism towards legislative integrity and the incoherence of majority voting based on ‘Arrow’s Paradox’ (majority voting leads to cycling majorities that cannot choose among three or more mutually exclusive alternatives) and the ‘chaos result’ theorem (given a large number of voters and issues, cycling inevitable and will include almost every possible outcome). But Farber and Frickey conclude that there are a relatively small number of possible outcomes, based on empirical results of sophisticated formal models. Id. at 433 (“In short, we have very strong reasons, both empirical and theoretical, for believing that actual legislatures do not suffer from the instability and incoherence some public choice theories have predicted.”).
25. O.W. Holmes, The Theory of Legal Interpretation, 12 HARV. L.REV. 417, 419 (1899). Holmes’ statement is frequently cited by those advancing formalism who fail to mention Holmes’ willing use of legislative history to resolve the meaning of language.  See Boston Sand & Gravel Co. v. United States, 278 U.S. 41, 48 (1928) (“It is said that when the meaning of language is plain we are not to resort to [extrinsic] evidence in order to raise doubts. This is rather an axiom of experience than a rule of law and does not preclude consideration of persuasive evidence if it exists). 
26. Definitions of ‘formalism’ are plentiful and conflicting. See Frederick Schauer, Formalism, 97 YALE L. J. 509, 542 (1988)
(describing types of formalism and identifying appeal of formalism with its stabilizing influence) See also Frank I. Michelman, A Brief Anatomy of Adjudicative Rule-Formalism, 66 U. CHI. L. REV. 934 (1999)(distinguishing “sundry formalisms”); Richard H. Pildes, Forms of Formalism, 66 U. CHI. L.REV. 607 (1999); Larry Alexander, “With Me, It’s All er Nuthin’”: Formalism in Law and Morality, 66 U.CHI. L.REV. 530, 544 (1999)(describing formalism as “posited norm that settles all questions about what ought to be done that fall within its scope”); Daniel A. Farber, Legal Formalism and the Red-Hot Knife, 66 U. CHI. L. REV. 597, 599 (1999)(questioning truth of whether “law is “essentially formalistic” – only truly law-like to the extent it is made up of rules rather than standards”); Daniel A. Farber, The Ages of American Formalism, 90 NWULREV. 89, 99-101(1995) (distinguishing formalist psychology and methodology). See Ernest J. Weinrib, Legal Formalism: On the Immanent Rationality of Law, 97 YALE L. J. 949
(1988) (discussion of formalism as the belief that specific norms are immanent in their forms).
 

 27. “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” U.S.CONST., art. I §1. The Constitution prescribes that legislation is created only where it has passed both houses of Congress (the bicameralism requirement) and approved by the President (the presentment requirement). Constitution, article I, section 7. See INS v. Chadha, 462 U.S. 919 (1983)(invalidating legislative vetoes as violative of these requirements).

28. The separation of powers argument relies on the Constitution’s division of government among the three branches (i.e., article I for Congress’s legislative competence, article II for implementation by the Executive branch and article III for judicial competence). Separation of power between the legislature (charged with enacting statutes) and the judiciary (charged with applying those statutes to particular facts), it is argued, requires giving meaning to the words only as codified. Some criticize intentionalism and the use of legislative history as anti-democratic because it represents judicial “usurpation” of legislative power. See Eskridge, New Textualism, supra note 14, at 648 (citing Starr in American Mining Congress v. EPA) and 652-53 (citing Scalia in INS v. Cardoza-Fonseca (citations omitted)). Alternatively, legislative control of judicial process through legislative history can also be seen
to violate separation of powers. See UNITED STATES DEP’T OF JUSTICE OFFICE OF LEGAL POLICY,USING AND MISUSING LEGISLATIVE HISTORY: ARE-EVALUATION OF THE STATUS OF LEGISLATIVE HISTORY IN STATUTORY INTERPRETATION (“Intended meaning is a form of extra-statutory legislative interpretation of a statute, and judicial reliance upon it allows the legislature to exercise essentially judicial powers”)(discussed and quoted by Eskridge, New Textualism, supra note 14, at 648).
29. The argument for formalism based on efficiency cuts both ways: to the extent that a statute represents an efficient compromise, it is inefficient to apply it beyond its terms. See Easterbrook, Statutes Domain, supra note 14, at 540 (discussing gap filling as inefficient where legislation imposes regulation up to limit of benefits). To the extent that courts force Congress to revisit and to specify every detail to which a statute could possibly apply but the courts refuse to address without a ‘clear statement’, judicial and legislative resources are mis-allocated. See Justice Stevens’ response to a ‘clear statement rule’: “[i]n the domain of statutory interpretation, Congress is the master. It obviously has the power to correct our mistakes, but we do the country a disservice when we needlessly ignore persuasive evidence of Congress’ actual purpose and require it “to take the time to revisit the matter” and to restate its purpose in more precise English whenever its work product suffers from an omission or inadvertent error.” West Virginia
University Hospitals, Inc. v. Casey, 111 S.Ct. 1138, 1153-55 (1991).
30. How “democracy” is to be defined within the context of describing the form of government adopted by the United States is somewhat more complicated than those advocating new textualism suggest. See, for example, CARL RICHARDS,THE CLASSICS AND THE FOUNDERS (1994)(discussing the classical education of the founders and their ambivalence to pure democracy).
31. Justice Scalia likens the common-law judge to someone playing king, “devising, out of the brilliance of one’s own mind, those laws that ought to govern mankind.” SCALIA, INTERPRETATION, supra note 11, at 7. He describes judicial decision-making by such great judges as Holmes or Cardozo as an “unqualified good” – were it not for our democratic government founded on the separation of powers. Id. at 9. For a less cynical view of the causes of judicial activism, see GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 607 (1982)(“[M]uch of the current criticism of judicial activism, and of our judicial system generally, can be traced to the rather desperate responses of our courts to a multitude of obsolete statutes in the face of the manifest incapacity of legislatures to keep those statutes up to date.”).
 

 32. Id. at 17 (comparing judicial interpretation seeking the intent of legislature through legislative history to the reported practice of the Roman emperor Nero posting edicts at a height above which his subjects could read their content). It is important to recognize that for Scalia it appears there is no distinction between interpretation by elected officials and the edicts of tyrants. For a more accurate description of Nero’s reign and the three readily distinguishable systems of government in Rome from the Roman Republic, which had a truly republican government (res publica), to its replacement by the Augustan principate through Nero, see H.H. SCULLARD, FROM THE GRACCHI TO NERO (1970) at 226 (describing Augustan principate as monarchy despite attempt to create appearance of dyarchy with Senate) and at 332 (Nero’s reign ultimately absolutilist).

33. Id. See also Schauer, Formalism, supra note 26, at 510 (“insofar as formalism is frequently condemned as excessive reliance on the language of a rule, it is the very idea of decisionmaking by rule that is being condemned, either as a description of how decisionmaking can take place or as a prescription for how decisionmaking should take place.”).
34. Id. See also Antonin Scalia, The Rule of Law of Law as a Law of Rules, 56 U. CHI. L.REV. 1175, 1175 (1989)(quoting identical passage of Aristotle from translation by Ernest Barker (1946): “Rightly constituted laws should be the final sovereign; and personal rule, whether it be exercised by a single person or a body of persons, should be sovereign only in those matters on which law is unable, owing to the difficulty of framing general rules for all contingencies to make an exact pronouncement.”). The Rackham translation, quoted elsewhere in the Article, is both more accurate, adhering closer to the original text, and far less florid than Barker’s. See infra note 213 (discussing the entire context in which Aristotle discusses the rule of law and the interpretation required in applying the rule).
35. SCALIA, INTERPRETATION, supra note 11, at 23. Indeed, Scalia derides strict constructionism as “a degraded form of textualism that brings the whole philosophy into disrepute.” Id. Others would disagree with Scalia’s assessment that he is not a “strict constructionist”. See Bradley C. Karkkainen, “Plain Meaning”: Justice Scalia’s Jurisprudence of Strict Statutory Construction,
17 HARV. J.L. & PUBL POL’Y 401, 474 (1994)(describing Scalia as a strict constructionist but ultimately characterizing it as “an eclectic form of strict constructionism”).
36. The use of legislative history – to go beyond the text – is for Scalia to use “democratically adopted texts” as “mere springboards” for judicial lawmaking. The only “law” is the “objective indication of the words” and so legislative history should not be used as an authoritative source from which a statute’s meaning can be derived SCALIA, INTERPRETATION, supra note 11, at 25, 29-30.
37. “Plain meaning” is by definition something of a paradox. See Karkkainen, supra note 35, at 433, 434-35 (describing development of “plain meaning rule” in American jurisprudence and stating that: “contrary to Justice Scalia’s view, the use of legislative history in statutory interpretation actually coincides historically with the introduction of the Plain Meaning Rule in its modern form. The Rule itself was meant not to preclude the use of legislative history generally, but only to prevent a court from using it when the meaning of a statute was so plain on its face as to make a search of the legislative history unnecessary.”). “Plain” can mean “clear” or it can mean “unambiguous.” See Cunningham et al, Plain Meaning, supra note 8, at 1563-64 (noting that “[o]ne of Solan’s most powerful critical moves is to analyze the seemingly embarrassing paradox in Supreme Court cases where all nine Justices agreed that the meaning of a provision was “plain,” but split five to four over what that provision meant”).
 

 38. Green v. Bock Laundry Mach. Co, 109 S.Ct. 1981, 1994 (1989)(Scalia concurring). See Eskridge, New Textualism, supra

note 14, at 679-80 (describing it as the clearest statement of Scalia’s methodology). Eskridge concludes that Scalia’s “benign fiction”
is based on unrealistic assumptions, most notably that “when it enacts statutes Congress is omniscient,” not only about all of the
currently applicable law, judicial interpretations of that law, including canons of statutory construction that might be applied). In
short, Justice Scalia’s ‘new textualism’ replaces recourse to legislative history, created within the legislative process, with its reliance
on judge-made and judge-changed canons of construction, characterized by its “bait-and-switch” quality. Id. at 681-84. So too Popkin, supra note 2 (providing detailed criticism of Scalia’s assumptions).
39. See Note, Looking It Up: Dictionaries and Statutory Interpretation, 107 HARV. L. REV. 1437-38 (1994) [hereinafter Looking It Up]. While no one appears to challenge the legitimacy of using dictionaries, those who have studied the Court’s recent use of and reliance on dictionaries have persuasively criticized its approach. See id. at 1444-45 (describing the Court as treating dictionaries as “a sort of default source, presumptively decisive”). Dictionaries are not compiled nor intended to be used as such. See Ellen P. Aprill, The Law of the Word: Dictionary Shopping the Supreme Court, 30 ARIZ.ST. L. J. 275 (1998)(describing in detail the sources and limitations of how dictionaries are compiled and concluding that “[d]ictionaries include common meanings of
words.... not ... all meanings. They may well exclude meanings that are quite ordinary although less common.... Dictionary definitions are only generalizations, summaries, and approximations. Their definitions are not right or wrong in any absolute, objective sense.”) Id. at 297. Aprill advocates using dictionary definitions as ‘starting points’ not ‘end points’ in the Court’s search for word meaning. Id. at 313. Above all, the author of Looking It Up concludes that “[i]f the Court is serious about its quest for ordinary meaning, it should not continue to employ dictionaries in such a chaotic fashion”). Looking It Up, supra, at 1447-48. H.L.A. Hart noted earlier the lack of utility of dictionaries for authoritatively settling questions of legal meaning. H.L.A. Hart,
Definition and Theory in Jurisprudence, 70 LAW Q. REV. 37 (1954) (noting that transformation of question to ‘what does the word ‘right’ mean’ suggests dictionary has greater utility than it does and arguing that questions of legal meaning can only be settled by stating conditions under which the statements containing legal terms are true).
40. See SOLAN, supra note 8, for a linguistic critique of Supreme Court opinions that claim to be based on “plain meaning.” Solan is openly critical of the way judges currently employ linguistic arguments, asserting that “judges resort to linguistic argumentation in what appears to be an effort to find a seemingly scientific and neutral justification for difficult decisions.” Id at 1-14. Frequently, linguistic argumentation either fails or collapses into incoherence, as “window dressing,” masking some other agenda at the root of the judge’s opinion. See also Cunningham et al., supra note 8 at 1561(noting lack of systematic methodology in the Court’s use of linguistics and offering suggestions that could assist judges in interpreting statutes “in a principled and objective way”).
41. Canons of statutory construction are “a homely collection of rules of thumb for interpreting statutes.” Eskridge, New Textualism, supra note 14, at 663. Their use is not new; Anglo-American treatises have relied heavily on the canons as an aid to statutory interpretation. See ESKRIDGE, supra note 10, at 275. Since Karl Llewellyn demonstrated in 1950 that “there are two opposing canons on almost every point”, their utility in increasing the determinacy of results in statutory interpretation has been considered questionable. Karl Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons about How Statutes Are to Be Construed, that appeared in 3 VAND. L. REV. 395, 401-06 (1950). Indeed, Scalia himself reveals an ambivalence to the canons. “To the honest textualist, all of these preferential rules and presumptions are a lot of trouble.” SCALIA, INTERPRETATION, supra note 11, at 28.
42. For example, some but not all of the canons are considered acceptable. See Eskridge, New Textualism, supra note 14, at
664 (“Inclusio unius [“inclusio unius est exclusio altrerius”] arguments have grown like weeds in a vacant lot during the last two Terms”). For a discussion of Scalia’s troubling approach to canons, see Eskridge, The Unknown Ideal?, supra note 15, at 1542 (describing Scalia’s own skepticism towards the use of canons as deeply problematic because of formalism’s need for a system of rules). Because Scalia differentially accepts which canons to use, describing them as “artificial rules” and “dice-loading rules” their use serves only to increase both the unpredictability and arbitrariness of judicial decisionmaking. As a result, it is hard to see the
 
 

 benefits of variably substituting these canons in place of recourse to legislative history.

43. For one persuasive example of the utility of linguistic analysis including empirical studies, that also suggests how to observe
the limitations of dictionaries, see Cunningham et al. who helpfully distinguish linguistic analysis from dictionary consultation. See
supra note 8, at 1614-16 (noting, for example, variation in dictionary definitions of the term “enterprise” and arguing against reliance
on dictionaries to resolve issues more properly within linguistic sphere). They note that: dictionaries are not independent of the users
of that language; appearance of a meaning in a dictionary can only be evidence of usage with no valid inference for absence of a
particular meaning – in contrast to the results of an empirical study of a particular word; dictionary ‘ranking’ reflects not at all on the “plainest” meaning for the word in question; and dictionaries provide definitions for “thousands of contexts” and thus have no special legal significance. In contrast, linguists advocate empirical, linguistic analysis to arrive at meaning pertinent to the use of the word in context at issue. Id. 1614-16.
44. SOLAN, supra note 8, at 208 n.10. Attempts to make decisions appear both neutral and definitive originate with legitimacy concerns. Discrepancy between actual and theoretical methods will also lead to perceptions of illegitimacy. Compare Solan’s optimistic view of the judicial decision-making that is possible with greater candor and better methods with Karkkainen’s much less optimistic view. “What is particularly troubling about Justice Scalia’s method is that these choices are seldom made with an open acknowledgment that a choice is being made, or a public weighing of the factors that ultimately influence the choice. Instead, interpretive choices are made under the rubric of originalism in constitutional adjudication and plain meaning in statutory
interpretation. Both notions lay a false claim to objectivity and imply that the conclusion reached is the only possible one, thus narrowing our range of choice and curtailing the boundaries of discourse.” Karkkainen, supra note 35, at 476-7745. For a discussion of both our general ability communicate through language and limitations on that ability, seeSOLAN, supra note 8, at 11-13 and at 169. Solan quotes Cardozo who described as similarly unattainable a legal code “ so minute, as to supply in advance for every conceivable situation the just and fitting rule. But life is too complex to bring the attainment of this ideal within
the compass of human. powers.”. Id. at 13 (quoting B. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 143 (1921)).
46. “New textualism” is the label coined by Eskridge, New Textualism, supra note 14, at 623 (describing Scalia’s textualism as “new textualism” because its “intellectual inspiration” derives from public choice theory, arguments about the separation of powers prescribed by the Constitution and Scalia’s ideological conservatism).
47. See Judge Patricia M. Wald, The Sizzling Sleeper: The Use of Legislative History in Construing Statutes in the 1988-89
Term of the United States Supreme Court, 39 AM. U. L. RV. 277, 305-06 (1990)(“To disregard committee reports as indicators of congressional understanding because we are suspicious that nefarious staffers have planted certain information for some undisclosed
reason, is to second-guess Congress’ chosen form of organization and delegation of authority, and to doubt its ability to oversee its
 

 own constitutional functions effectively. It comes perilously close ... to impugning the way a coordinate branch conducts its operation

and, in that sense, runs the risk of violating the spirit if not the letter of the separation of powers principle.”) For a complete discussion
of the flaws of constitutionally based arguments necessitating “new textualism”, see also, inter alia, Eskridge, New Textualism, supra
note 14, at 670 et seq.; Eskridge, Unknown Ideal, supra note 15, at 1551; and Karkkainen, supra note 35, at 475-76 (all criticizing
constitutionally based arguments offered by Scalia to support his approach).
48. See Eskridge, Unknown Ideal, supra note 15, at 1546 (describing the phenomenon of “shopping the canons – picking out the friendly ones and ignoring or explaining away the rest”). See also Karkkainen, supra note 35, at 449-50 (describing motivation for Scalia’s “aggressive” use of canons to rule out possible interpretations, a process whereby the use of ”grammatical and structural arguments” often carry him “far afield from any plain meaning or ordinary usage that an ordinary reader, or even a Member of Congress voting on the statute, might glean from the text. One must question the application of the Plain Meaning Rule when it renders the meaning of a statute plain only to a single Justice of the Supreme Court.”).
49. See, for example, Eskridge & Frickey, Practical Reasoning, supra note 12, at 321 (1990). In addition to works cited elsewhere in this Article, see also William N. Eskridge, Jr., Dynamic Statutory Interpretation, 135 U. PA.L.REV. 1479 (1987); William N. Eskridge, Jr., Norms, Empiricism, and Canons in Statutory Interpretation, 66 U. CHI. L.REV. 671 (1999); Philip P. Frickey, From the Big Sleep to the Big Heat: The Revival of Theory in Statutory Interpretation, 77 MINN. L. REV. 241 (1992); and Daniel A. Farber & Philip P. Frickey, Public Choice Revisited, BOOK REVIEW OF PUBLIC CHOICE AND PUBLIC LAW: READINGS AND COMMENTARY BY MAXWELL L. STEARNS (1997), 96 MICH. L.REV. 1715 (1998).
50. See Farber, Inevitability, supra note 15, at 537.
51. See, Farber, Inevitability, supra note 15, at 538 (quoting Frank Michelman’s definition of “practical reason”) and Eskridge
and Frickey, Practical Reasoning, supra note 12, at 323 (discussing Aristotle as inspiration for their model and Aristotle’s theory
of “practical reasoning” (phronesis)(“the concrete situatedness of the interpretive enterprise”)).
52. See Farber, Inevitability, supra note 15, at 539 (“practical reason means a rejection of foundationalism) and Eskridge & Frickey, Practical Reason, supra note 12, at 323 (concretedness “militates against overarching theories”). It is not clear that Aristotle
 

 would agree. That reasoning, in language, argumentation and dialectic, requires working from the particular to the general and from the general to the particular for Aristotle will become clear. See infra notes 162-65. I will argue that Aristotle’s theories of definition,

logic and priority provide at least one unified theory that permits more reasoned interpretation generally.
53. See Farber, Inevitability, supra note 15, at 537 (describing Llewellyn’s five factors as 1) the court’s sense of the situation;
2) overall coherence of the legal system; 3) presumed statutory purpose; 4) legislative history of at least recent statutes; and 5) statutory language. See Eskridge & Frickey, Practical Reason, supra note 12, at 353-62 (funnel of abstraction).
54. See Farber, Inevitability, supra note 15, for a cogent defense of practical reason against these charges and replying to the
formalists that “[f]ormalist methods of statutory interpretation neither eliminate the need for practical reason nor ease communication
between legislatures and citizens.” Id.at 534. Nevertheless and despite obvious problems, the appeal of plain meaning and formalism
lies with the linking of such an approach to democracy and the notice function it serves, because of the fundamental importance of
notice to our form of government, that is thus reinforced. Id. at 549. Farber is, nonetheless, surely correct in pointing out the fallacy
of this function, and the possibility of a contrary result where this is assumed for most statutes. See infra note 90 (discussing the
technical nature of tax statutes). “Formalism may merely confuse ordinary citizens by forcing legislators to resort to more specific
but also more numerous and complex rules.” Id. at 552. For a discussion of this very result in tax generally, see infra note 129.
55. Farber summarizes the viewpoints of both sides: “[t]he vices of formalism are excessive confidence in the power of “the
word” and excessive distrust of the ability of judges to exercise good judgment. At the other extreme, too much “informality” in
statutory interpretation can give short shrift to statutory language and leave too much to the unguided discretion of judges.”  Inevitability, supra note 15, at 559. In particular, adherents of plain meaning formalism argue that practical reasoning is antiintellectual, ad hoc and ultimately “incoherent, subjective and unpredictable” Id. at 534, 541; while adherents of practical reasoning reject the legal formalism of plain meaning, denying that an inexorable legal result can be deduced from a “pre-existing set of rules.”
Id. at 539.
 

 56. 27 B.T.A. 223 (1932), 69 F.2d 809 (1934), 293 U.S. 465 (1935).

57. Gregory and the business purpose doctrine loom large in most tax discussions of statutory interpretation. Gregory has had an almost unparalleled vitality in the case law. The business purpose doctrine and now in its permutation as the “economic substance doctrine” are seminal to Treasury’s efforts to curb corporate tax shelters. See supra note 6 (discussing TREASURY,WHITE PAPER).
58. A ‘sale’ generally constitutes a taxable event. §1001. For discussions of the realization doctrine, see David A. Weisbach, Line Drawing, Doctrine, And Efficiency in the Tax Law, 84 CORNELL L.REV. 1627 (1999) [hereinafter Line Drawing] (urging efficiency as better measure); Daniel N. Shaviro, An Efficiency Analysis of Realization and Recognition Rules under the Federal Income Tax, 48 TAX L.REV. 1 (1992)(realization requirement promotes efficiency in tax system); and David J. Shakow, Taxation without Realization: A Proposal for Accrual Taxation, 134 U. PA. L.REV. 1111 (1986)(urging accrual taxation).
59. Reorganization provisions at issue in Gregory, added in 1918, provide an exception to general rule taxing corporate
distributions as dividends. See Rockefeller v. U.S., 257 U.S. 176 (1921), and U.S. v. Phellis, 257 U.S. 156 (1921)(pre-1918 Gregorytype
transaction taxable as dividend). See Shaviro, supra note 58 at 20 (describing rationale for exception from taxation represented
by reorganization provisions).
60. Mrs. Gregory wished to sell her shares of Monitor Securities Corporation (MSC) to an unrelated 3rd party paying the least
tax. She structured the transaction as follows. As sole shareholder of United Mortgage Corporation (UMC), the actual owner of the
Monitor Securities shares, she caused UMC to form a new corporation (Averill) by transferring the Monitor Securities to it in exchange for its stock. Averill corporation then transferred its MSC shares to Mrs. Gregory, its sole shareholder, and immediately dissolved. Mrs. Gregory sold the shares and calculated her gain on sale by the amount received less the basis in the MSC shares (the portion of her UMC basis allocable to the MSC shares), taxable at capital gains rates. Assuming that the entire transaction qualified as a ‘reorganization’, the transfer of the Averill shares to Mrs. Gregory was tax-deferred by virtue of the corporate reorganization
 

 provisions, Sections 112(g) and (i)(B).

61. Mrs. Gregory argued that the transfer to the new corporation of the MSC shares (part of the assets of UMC) qualified as a ‘reorganization’ so that the receipt of shares of the new corporation would be tax free. See Revenue Act of 1928, ch. 852, 45 Stat. 791, sections 112(g) and (i)(B).
62. Beginning with the 1918 Act, Congress sought to facilitate “necessary business adjustments” while preventing tax avoidance. For example, Congress wrestled in 1918, 1921 and 1924 with language equal to the task of permitting the various business transactions considered ‘reorganizations’ to occur tax-deferred. See, e.g., H.Rept. No. 350, 67th Cong., 1st Sess., 10 , Reprinted in SEIDMAN’S 1938-1861, 790 (1938) and S. Rept. No. 275, 67th Cong., 1st Sess., 11-12, Reprinted in SEIDMAN’S 1938-1861, 791 (1938). Throughout, the impetus for these provisions was clearly understood: to avoid impeding transactions necessitated by business needs where the taxpayer’s investment remained “substantially the same.” See Homer Hendricks, “Developments in the Taxation of Reorganizations,” 34 COLUM. L. REV. 1198, 1209 (1934). For a discussion of congressional concerns about use of the provisions for tax avoidance, see “Corporate Reorganization To Avoid Payment of Income Tax,” 45 YALE L. J. 134 (1935).
63. Disregarding the reorganization provisions and the creation of the Averill corporation, the Commissioner viewed the distribution of the MSC shares as a dividend with no basis thus allocable to it and fully taxable in the amount of its fair market value at ordinary income rates.
For a discussion of how basic principles of corporate taxation result in their corresponding avoidance techniques, see Robert Charles Clark, The Morphogenesis of Subchapter C: An Essay in Statutory Evolution and Reform, 87 YALE L.J. 90 (1977)(identifying 1) separate taxation of corporate entity; 2) taxation of shareholder only upon distribution of corporate earnings; 3) preferential tax rate for capital assets; 4) taxation of dividends at ordinary income rates; 4) taxation of corporate stock dispositions as capital assets; 5)nonrecognition provisions; and 6) General Utilities doctrine as fundamental corporate principles from which all tensions in corporate tax arise and proposing alteration of some principles to resolve corporate tax discontinuities). Clark identifies
the tension created by combination of principles one through five leading inexorably to the Gregory type bail-out. Id. at 120-23.
A “bail-out” is generally defined to include extraction at capital gains rates from a corporation profits that would otherwise be taxed
at ordinary income rates.
64. 27 B.T.A. 223, 225. The Board of Tax Appeals described the statute as “meticulously drafted.” For a discussion of related
but distinct issues of specificity and complexity in the area of tax-deferred corporate reorganizations, see, for example, BORIS I.
BITTKER AND JAMES S. EUSTICE, FEDERAL INCOME TAXATION OF CORPORATIONS AND SHAREHOLDERS 12.01[4](1994)(6th edition)(“The reorganization provisions are extraordinarily complex, even for the Code.”) and Zelenak, infra note 103 (noting
distinction between complexity and specificity). 65. 69 F.2d 809, 810-11. For a discussion of Hand’s musical analogy, see Jerome Frank, “Words and Music: Some Remarks
on Statutory Interpretation,” 47 COLUM. L. REV. 1259, 1267 (1947)[hereinafter Frank, Words and Music](comparing the interpretation of statutes by judges with the interpretation of musical scores by performers and noting that in Hand’s pronouncement are echoes of Gestalt psychology suggesting unanalyzability of melodies). For a recent review of Frank’s theory of statutory interpretation, see Kent Greenawalt, Variations on Some Themes of a “Disporting Gazelle” and His Friend: Statutory Interpretation as Seen by Jerome Frank and Felix Frankfurter, 100 COLUM. L.REV. 176 (2000).
66. For the importance of this statement by Hand as encouragement of tax avoidance, see Marvin A. Chirelstein, Learned Hand’s Contribution to the Law of Tax Avoidance, 77 YALE L.REV. 440 (1968) and David A. Weisbach, Formalism in the Tax Law, 66 U. CHI. L.REV. 860 (1999)[hereinafter Weisbach, Formalism]. An important distinction is lost here. That someone is entitled to arrange business affairs to choose among better tax results simply means a taxpayer capable of satisfying all requirements for a transaction to qualify for nonrecognition is not forced to effect a similar transaction with far worse tax consequences simply because it would yield more revenue for the Treasury. However, the converse is not true; because there are two ways of effecting a transaction, a taxpayer can not elect the better form where substantively all necessary requirements can not be satisfied.
67. 69 F2d 809, 810-11. Id. at 810 (citations omitted). Importantly, Hand did not agree with the Commissioner – that the intermediate steps should be disregarded as a sham, since in fact they were carried out.
 

 68. 293 U.S. 465 (1935). He added that: “[t]he reasoning of the court below in justification of a negative answer leaves little

to be said.” Id. at 469.
69. Id. at 469. The Court regarded the transaction as a “mere device” to disguise in corporate reorganization form what was essentially a sale. The Board of Tax Appeals had based its decision in large part on the need to respect the corporate form of the transaction. The Supreme Court rejected this characterization because the new corporation was formed only for the transfer of the shares and ceased to exist once it had performed that function. Id. at 466-67. The “device” language ultimately is codified as a requirement for tax-free spin-offs in the 1954 Code, now §355 of the Internal Revenue Code of 1986, as amended. A discussion of whether that language codified the business purpose doctrine or conversely specifically made it inapplicable in the context of divisive
reorganizations is beyond the scope of this Article.
70. Id.
71. The business purpose doctrine and continuity of interest doctrines are thus intertwined, as Hand’s opinion indicates. See
infra note 83 (discussing Hand’s reliance on the continuity of interest doctrines).
72. 69 F.2d 809, 811.
73. Citing Pinellas Ice & Cold Storage Co. v. Comm’r, 287 U.S. 462 (1933) and Cortland Specialty Co. v. Com’r, 60 F.2d 937
(1932), Hand noted that literal compliance was not sufficient in either case. Both cases could have been decided on narrower grounds
(short-term notes not securities); however in both cases the transactions failed for lack of continuity of interest. 69 F.2d 809, 811.
For discussion of the overlap between the business purpose and continuity of interest doctrines, see infra note 83.
74. Citing both the 1924 House (No. 179, 68th Cong., 1st Sess.) and Senate (No. 398) Reports, Hand noted that the reorganization provisions were added to “exempt ‘from tax the gain from exchanges made in connection with a reorganization in order that ordinary business transactions will not be prevented.’” Id. at 811. The Reports state the justification for the reorganization provisions receiving such favorable tax treatment as based on their characteristic as “purely a paper affair. It is the exchange of the stock of different corporations for business purposes”(emphasis added). Reprinted in SEIDMAN’S 1938-1861, 792-797
(1938)(Watson). See supra note 62 (legislative history corresponding to Congressional effort to resolve conflicting goals of the
reorganization provisions for transactions with both continuity and business purpose).
 

 75. 293 U.S. 465, 466-67 (1935). Both opinions emphasized that no “ulterior purpose” (i.e., tax avoidance) was important for

the decision, citing U.S. v. Isham, 17 Wall. 496, 506 (“the legal right of taxpayer to decrease the amount of what otherwise would
be his taxes ... by means which the law permits, cannot be doubted”). Learned Hand added: “there is not even a patriotic duty to
increase one’s taxes.” 69 F.2d 809, 811. Nevertheless, the business purpose doctrine is routinely criticized for introducing the
taxpayer’s motive into judicial decisionmaking and thereby turning an analysis of the objective characteristics of the transaction into
a subjective analysis. See infra note 82.
76. 69 F.2d at 811.
77. Specifically, the Court found than a transfer of assets made by one corporation to another must for purposes of section 112(g) be made “in pursuance of a plan of reorganization,” not “in pursuance of a plan having no relation to the business of either[.]” 293 U.S. at 467.
78. See, e.g., Transport Trading & Terminal Corp., 176 F.2d 570 (2d Cir., 1949)(“[I]t [business purpose] means that in
construing words of a tax statute which describe commercial or industrial transactions we are to understand them to refer to
transactions entered upon for commercial or industrial purposes and not to include transactions entered upon for no other motive but
to escape taxation.”) and Fairfield Steamship Corp. v. Commissioner, 157 F.2d 321 (2d Cir., 1946)(“we hold that the Act is to be
interpreted against its own background, and in determining how far it adopted all legal transactions that the state law may have
covered, it was proper to exclude those that had no other result than to evade taxation.”). See also Robert Thornton Smith, Business
Purpose: The Assault upon the Citadel, 53 TAX LAW. 1 (1999)(underlying justification of business purpose found in avoiding ‘selfdefeating’ interpretations of Code).
79. Hand himself contributed to the equation of business purpose with the substance over form doctrine stating, in Chisholm v. Commissioner: “The question always is whether the transaction under scrutiny is in fact what it appears to be in form.... In Gregory v. Helvering ... the incorporators adopted the usual form for creating business corporations; but their intent or purpose, was merely to draught papers, in fact not to create corporations as the court understood that word. That was the purpose which defeated their exemption, not the accompanying purpose to escape taxation; that purpose was legally neutral. Had they really meant to conduct a business by means of the two reorganized companies, they would have escaped whatever other aim they might have had, whether to avoid taxes, or to regenerate the world.” Chisholm v. Commissioner, 79 F.2d 14 (2d Cir., 1935). For a discussion of the substance over form doctrine, see, inter alia, Ronald Jensen, Of Form and Substance: Tax-Free Incorporations and Other Transactions Under
Section 351, 11 VA. TAX REV. 349 (1991).
80. At its simplest, the economic substance doctrine requires a change in economic benefits associated with a transaction. See ACM v. Commissioner, TCM 1997-115, at 82-83: “[t]he tax laws, however, require that the intended transactions have economic substance separate and distinct from the economic benefit achieved solely by tax reduction. The doctrine of economic substance becomes applicable, and a judicial remedy is warranted, where a taxpayer seeks to claim tax benefits, unintended by Congress, by means of transactions that serve no economic purpose other than tax savings.” This statement of the doctrine, of course, does not specify the requisite quantum of economic substance.
81. For a discussion of Gregory as merely a different formulation of the “sham transaction” doctrine and urging its limitation
to sham transactions, see Harvey M. Spear, “‘Corporate Business Purpose’ in Reorganization,” 3 TAX L. REV. 225, 235 (1947).
While a common assessment, it is also inaccurate: Hand recognized the validity of the steps in Gregory but disagreed that they
resulted in a reorganization. See 69 F.2d at 811-12 (disagreeing with Commissioner that steps should be disregarded).
82. See Walter J. Blum, Motive, Intent and Purpose in Federal Income Taxation, 34 U.CHI. L.REV. 485, 543-44 (1967)(noting
limitations of motive analyses and commenting that because purpose can be equated with function “it is possible largely to ignore
state of mind considerations and to rely almost entirely on external factors”). Blum observes that for purposes of identifying tax
avoidance, difficulties in measuring motive are avoided by assessing relative weight of non-tax and tax goals. Id. at 516. “All in all,
the role of any state of mind inquiry is very much smaller than the rhetoric might seem to suggest.” Id. at 523-24. See also Edwin
S. Cohen, Tax Avoidance Purpose as a Statutory Text in Tax Legislation, 9TH ANNUAL TULANE TAX INSTITUTE 229, 259
(1960)(distinguishing business purpose from test for taxpayer motive and urging adoption of former, not latter, as standard for
taxability). Cf. RANDOLPH PAUL,STUDIES IN FEDERAL TAXATION 139 and 152 (1937) (Gregory “imparted into the statutory provision, a meaning which made relevant the [taxpayer’s] motive”).
83. Some commentators see business purpose as a permutation of the continuity of interest requirement (identified as among
the bases for Hand’s decision) or continuity of interest combined with economic substance. See Spear, supra note 81, at 234
(1947)(Gregory explicable by continuance of business requirement) and Allan F. Ayers, Jr., “How to Insure Recognition of a
Corporation Formed to Fit a Tax-Free Reorganization Pattern,” 8 NYU INST. ON FED. TAX’N 165, 166 (1949)(business purpose
satisfied if continuity of business enterprise and shareholder interest).
84. For example, business purpose has been castigated and praised because of its vagueness. Compare BITTKER &EUSTICE,
supra note 64 (benefits of in terrorem effect) and Boris I. Bittker, What is ‘Business Purpose’ in Reorganizations?” 8 NYU INST.
ON FED. TAX’N 134 (1949)(noting, with specific reference to Gregory, literal compliance insufficient and stating that “[t]hose who
hope that the courts can be induced to ignore the spirit of the Code for its letter are doomed to disappointment. Courts are not what
they used to be – and probably never were”) with Spear, supra note 81, at 246 (vague doctrine operating only for the benefit of Commissioner).
See TREASURY,WHITE PAPER, supra note 6, at BNA S-11 (rejecting the utility of these judicial doctrines because of their uncertain
 

 application, in definition and use, and proposing instead a codification of the economic substance doctrine that compares present

value of expected pre-tax profit and expected tax benefits). On the appropriateness of just such a seemingly mechanical test and its
ability to accomplish its stated goals, see David Weisbach, Implications of Implicit Taxes, 52 SMU L.REV. 373 (1999).
85. The business purpose doctrine appears as a requirement in the regulations for both acquisitive and divisive reorganizations.
See Reg. §§ 1.368-1(b)(acquisitive) and 1.355-2(b)(divisive). The nature of the requirement is much more vigorous within the context of divisive reorganizations.
86. See 1933 Subcommittee Report and 1934 Act, subsequent to the original Board of Tax Appeals’ decision sanctioning
Gregory transaction. H.Rept. Dec. 4, 1933, Reprinted in SEIDMAN’S 1938-1861, 332 et seq. (1938) (three of eight scenarios representing tax avoidance transactions resembled Gregory, cited by name in the seventh and as the basis for repeal of all provisions providing tax-deferred treatment for reorganizations). Dissatisfaction with the decision was significant enough to lead to the repeal of only that provision, even after lower court was reversed. Although repeal of the entire ‘reorganization’ provision was urged, the remaining provisions survived. See id. at 338 et seq. (“The reorganization provisions have been in effect for many years, having been adopted in substantially their present form in 1924. They state in detail how each step of a reorganization should be treated for tax
purposes. The policy was adopted of permitting reorganizations to take a wide variety of forms, without income-tax liability. As a result, astute lawyers frequently attempted, especially during the prosperous years, to take advantage of these provisions by arranging in the technical form of a reorganization, within the statutory definition, what were really sales.”).  The Supreme Court decisions in the reorganization cases (e.g., Gregory, Pinellas, discussed supra note 73) establishing continuity
of interest and business purpose) were specifically cited with approval. Id.
87. Bittker, supra note 84 (noting that it is commonly known that literal compliance with the reorganization provisions is insufficient).
88. See Lawrence Zelenak, Thinking About Nonliteral Interpretations of the Internal Revenue Code, 64 N.C. L.REV. 623, 638-
66 (1986)(advancing theory that nonliteral interpretations may be permissible for the Internal Revenue Code because of tax statutory
complexity, necessity of preserving underlying structure of the Code and fact that intended audience is comprised of specialists).
89. Michael Livingston, Practical Reason, “Purposivism,” and The Interpretation of Tax Statutes, 51 TAX L. REV. 677, 679
(1996) [hereinafter Livingston, Practical Reason] (describing tax as at one end of a continuum because it is “a detailed and
programmatic legal code” but denying unique nature of tax).
 

 90. Arguments for treating tax differently have been advanced by both courts and commentators. For example, on the sheer volume of the Code, see Deborah A. Geier, Interpreting Tax Legislation: The Role of Purpose, 2 FLA. TAX REV. 492, 511 (1995).  On the Code as a code, see also Zelenak, supra note 88, at 638 (quoting Helvering v. Morgan’s Inc., 293 U.S. 121, 126 (1934) [hereinafter, Geier, Purpose] (“[t]he true meaning of a single section of a statute in a setting as complex as that of the revenue acts, however precise its language, cannot be ascertained if it be considered apart from related sections, or if the mind be isolated from the history of the income tax legislation of which it is an integral part”). On the issue of complexity due to factual complexity, see

Justice Frankfurter, Reflections on Reading Statutes, 47 COLUM.L.REV. 527, 528 (1947)(“The imagination which can draw an income tax statute to cover the myriad transactions of a society like ours, capable of producing the necessary revenue without producing a flood of litigation, has not yet revealed itself.”).
91. See Bruce Frier, Interpreting Codes, 89 MICH. L.REV. 2201 (1991)(discussing interpretive methods for UCC and distinguishing between types of codes, those that seek systematic structure of law to be distinguished from simple regroupings of existing statutes). Frier notes the impact of codes on “fundamental issues of interpretation” quoting German jurist Rudolph Sohm: “A rule of law may be worked out either by developing the consequences which it involves, or by developing the wider principles which it presupposes .... The more important of these two methods of procedure is the second, i.e. the method by which, from given rules of law, we ascertain the major premisses which they presuppose. For having ascertained such major premisses, we shall find
that they involve, in their logical consequences, a series of other legal rules not directly contained in the sources from which we obtained our rule.”). Id. at 2210.
92. Tax scholars align themselves along a continuum of methods of statutory interpretation. It should be noted at the onset, however, that these methodologies uniformly do not reject the use of legislative history or external sources as completely as their nontax counterparts.
93. See Geier, Purpose, supra note 90, and Deborah A. Geier, Commentary: Textualism and Tax Cases, 66 TEMP. L.REV. 445
(1993).
94. See Zelenak, supra note 88.
95. See Livingston, Practical Reason, supra note 89 and Michael A. Livingston, Congress, The Courts, and The Code: Legislative History and the Interpretation of Tax Statutes, 69 TEX. L.REV. 819 (1991).
96. See William D. Popkin, The Collaborative Model of Statutory In97. See Livingston, Practical Reason, supra note 89, at 684 (describing Geier’s articulation as the “most sophisticated statement of the purposive argument”). Thus Geier advocates no “one size fits all” approach to statutory interpretation, no “simplistic reduction” to a dichotomy between textualism and a purposive approach. In order to give effect to the statute’s purpose may requireterpretation, 61 S.CAL. L. REV. 541 (1988). See also Popkin, supra note 2 (critiquing Scalia’s ‘plain meaning’ methodology). various and alternative approaches, in Geier’s view, including: 1) a textualist approach; 2) a nonliteral approach; 3) informing the express language of the statute with knowledge of its purpose; and 4) application of the common law principles (such as substance over form) where a literal interpretation does not yield results consistent with the provision’s purpose. Geier, Purpose, supra note 90, at 496-97.
98. See supra notes 18-29 and accompanying text (describing intentionalism (purposivism) in statutory interpretation).
99. Geier, Purpose, supra note 90, at 497. Geier explains that the “fundamental structure” is the “theoretical construct that overarches the sum of the entire Internal Revenue Code and is intended to be captured by it.” Id. This includes the distinction necessitated by our choice of an income, not a consumption, tax system; such distinctions as that between ordinary and capital income; and the realization requirement. Id. Because, for example, these distinctions are not necessarily understood by all as part of the “structure” of the Code, the limitation
to this approach becomes apparent – it falters in the absence of agreement by all parties affected by the Code. Geier herself notes
the problem. Id. at 511.
100. See Geier, Textualism, supra note 93, at 488 (noting disadvantages of both “hard- core deconstruction” and “hard-core textualism”stating that “[h]ard-core deconstruction insists upon a chaotic lack of definitive meaning, often in spite of the text. Hardcore textualism insists upon a single meaning arrived at by a sterile parsing of the statutory words often in spite of the factual and statutory context.”).
101. Id. at 500 (citing Gregory approvingly and noting that “[b]y providing one set of rules for dividends and another for corporate reorganizations, Congress implied in the statutory structure that there is a substantive difference between these two types of transactions and that in substance a dividend should be taxed as such, even if it is cloaked in the form of a reorganization.”). Geier questions, however, the utility of the business purpose doctrine since “it is easy to come up with a business purpose when it is convenient to do so[.]” Nonetheless, Geier argues that most common law doctrines are thus supportable by the structure rationale. Id.
102. Zelenak, supra note 88, at 624. Because of the contextual nature of interpreting provisions within a Code, Zelenak concludes that “[s]ufficiently strong evidence can justify a contextual interpretation, even when that interpretation is irreconcilable with the statutory language”, but cautions that “the greater the conflict between a proposed contextual interpretation and the literal language of the statute, the stronger the evidence for the contextual interpretation must be.” Id. at 675. Ultimately, Zelenak argues for no “absolute rule” but greater candor, describing as “chaos” current approach to statutory interpretation because it lacks general “formula” for applying literal or contextual interpretation. Id. at 675-76. See also id. at 661-62 (noting difficulty in discerning when underlying policies permit or require nonliteral interpretation) and 640-41 (cautioning that flexibility of words may lead judges to reject reconcilable contextual interpretations).
 

 103. Zelenak, supra note 88, at 630. Zelenak also distinguishes between complexity and the Code’s direction at specialists. Id. at 675. This additional distinction seems especially important in tax. As Zelenak notes: “[j]udges who rely on statutory complexity as a reason for strictly adhering to the literal terms of a statute may be confusing statutory complexity with the question whether Congress considered and addressed a particular fact pattern in enacting the statute.” Id. at 660.

104. Id. at 667-68. Zelenak cites Gregory as “the most influential case in the development of the progovernment interpretive bias” and notes that “[t]he spirit of Gregory has infused the entire law of the tax treatment of corporate reorganizations”. Zelenak specifically attributes courts’ willingness to require nonliteral interpretations within the reorganization area to Gregory. Finding this appropriate within the context of reorganizations, Zelenak nevertheless articulates the frequent complaint that a nonliteral approach tends to favor the government over individual taxpayers. Id. 669-70.
105. Livingston objects to the use of inductive reasoning from a code’s principles describing it as “radical purposivism.” Livingston, supra note 89 at 688, 709 (discussing, inter alia, Frier, supra note 91). In addition he questions the legitimacy of any approach that seems to elevate scholar/experts to a standing equal to legislature. The limits of purposivism are described by Livingston as including: 1) descriptive problem (does it adequately describe the results of tax cases); 2) practical problem (does it yield positive long-term results); and 3) theoretical problem (suggesting tax cognoscenti interpreting underlying principles to trump plain meaning). Id. at 701-12.
106. Livingston’s rejection of specialized methodologies for tax is a position standing in stark contrast to an earlier one where
his detailed exposition of the tax legislative process makes a very persuasive case for why tax is different. There he argued that a
contextual approach to tax statutory interpretation was not only proper but the dominant one since “few if any tax terms have a “plain”
meaning that can be divorced from the statutory and decisional context in which the terms arise.” Livingston, supra note 95, at 830-31. Then Livingston identified the following distinguishing characteristics of tax: the complex and constantly changing character of the tax code; the contextual style of tax interpretation, with an emphasis on Treasury regulations, previous judicial decisions, and the broader statutory structure rather than the literal or plain meaning of the provision being construed; and the conceptual nature of the tax legislative process, in which members of Congress set only general guidelines for both the statute and legislative history. Id. at 822.
107. Id. at 720- 24. See supra notes 52-54 (discussing practical reason).
108. Livingston defines practical reason in the context of interpreting tax as allowing courts to consider a variety of interpretive factors, including the age of the Code (thereby allowing greater weight for an evolutive perspective necessary because of the “sheer volume of tax judicial and administrative decisions”); the existence of a “unified tax code” (not simply a series of distinct statutes) and the revenue effects associated with decisions. Id. at 720-21.
 

109. Popkin, supra note 96 (proposing approach that combines aspects of critical legal studies contingency of meaning with Dworkin’s community of principle). Id. at 580. Popkin’s approach is controversial not because he recognizes that judges import their own values but that he views this as normatively desirable. Id. at 590.
110. Popkin, supra note 96, at 592 and n. 213 (distinguishing literalism (“Literalism wrenches a word completely out of context”) from plain meaning (requiring examination of context, both internal and external). Because background considerations (including consideration of purpose) may unsettle statutory plain meaning, reliance interests argue for adhering to the statute’s literal meaning. Popkin argues against weighting “reliance interests” – the importance of “certainty of legal rules” – to defeat a contextual reading since such interests are weaker when tax avoidance is a serious concern (as today). Id. at 599-600. In tax discussions generally, formalist concerns are voiced in language based on a taxpayer’s right to rely on the literal language of the statute. See Weisbach, Formalism, supra note 66, at 875 (discounting the importance of reliance concerns in tax).
111. Earlier Livingston argued for a contextual mode of interpretation in tax (citing Gregory as the classic nonliteral interpretation). Livington, supra note 95, at 830 n.49. In Practical Reason he does not discuss Gregory, but an application of the factors to be considered in interpretation does not suggest a different result. See supra notes 89 and 105.
112. “Textualist”, as used here, is a term of convenience that describes a presumed attitude of deference to the statutory text rather than a single method of interpretation. Certainly, while Coverdale, Isenbergh and Hariton may place greater emphasis on the text than their contextualist counterparts, they do not seem to share Justice Scalia’s abhorrence of use of legislative history. See infra notes 133-135 (discussing Coverdale’s definition of modern textualism) and 133-135 (discussing Isenbergh, etc.).
113. John F. Coverdale, Text as Limit: A Plea for a Decent Respect for the Tax Code, 71 TUL. L.REV. 1501 (1997). He distinguishes his “rule against antitextual interpretations” from “naive plain-meaning,” that presupposes no interpretation. Describing naive, plain-meaning as “an impoverished view of interpretation that fails to recognize that all interpretation involves a dynamic interaction of reader and text with objective and subjective aspects,” he thus describes himself in terms similar to those used by Justice Scalia. Id. at 1514. See supra notes 35-37.
114. See id. at 1502 (“For more than sixty years courts have cited Gregory v. Helvering to justify reading the tax laws in ways
their texts simply will not bear.”); at 1503 (“Courts deciding tax cases have frequently found in Gregory justification not only for
adding conditions that Congress did not put in the Code but also for reading provisions in the Code in other ways that fall outside
the range of meanings that their text, taken in context, has in ordinary speech or in other provisions of the Code.”); 1507-08 (analysis
of Gregory “reveals significant reasons for questioning whether the decisions could be said to reflect even probable congressional
intent or purpose.”); at 1529 (Gregory and progeny “exemplify the pernicious tendency of courts interpreting the Code to ignore
Congress’s commands to achieve the results they consider desirable.”). Coverdale is not troubled by use of extrinsic material, including material outside of the legislative process, to buttress his claim. See id. at 1533-35 (statutory changes enacted between 1921 and 1924 prompted by Congressional desire to impart clarity and certainty to this area of the law). At least based on the materials deemed acceptable, Coverdale would seem to be a textualist of quite a different stripe than Justice Scalia.
 

 115. Id. at 1532. Coverdale offers no support for his assumption that Congress intended to indicate a shift to all necessary and

sufficient conditions by substituting the word “means” for “includes” in the 1924 changes.  Cunningham et al. note that to qualify as a definition, a statement must include the necessary and sufficient conditions to qualify as such. See infra notes 201-04 and accompanying text(explaining that as homonyms, the necessary and sufficient conditions of reorganization cannot be limited to the express language of the statute).
116. Id. at 1532-33.
117. Id. at 1515-1521. Justification based on legitimacy arguments and constitutional requirements are similar to those advanced by Justice Scalia. See supra notes 31-38. For a discussion of the limitations inherent in these arguments, see supra note 47.
118. Id. at 1522-25. Placing great emphasis on the “rule-like” nature of the Code, Coverdale argues that the “highly formal rules”
result in economically equivalent transactions being treated quite differently by reason of their form. The importance of both notice
and predictability argue against courts relying on purpose, intent or policy in reading the enacted language in a way that “the words
will not bear.” Repeatedly stating this as the standard, Coverdale unfortunately provides little guidance on how to discern the
difference within the context of the Code. 119. Id. at 1525-28 (noting the frequency of major tax bills in recent years). Although he acknowledges the difficulty of passing legislation, Coverdale rejects this as an argument for broader interpretation because of legitimacy issues. See supra note 36 (discussing legitimacy issues).
120. Joseph Isenbergh, Musings on Form and Substance in Taxation, REVIEW OF FEDERAL TAXATION OF INCOME,ESTATES AND
GIFTS BY BORIS I. BITTKER, 49 U. CHI. L.REV. 859 (1982) (noting origin of doctrine [substance over form] that form of transaction
will not be allowed to defeat its substance as deriving from general agreement among both tax lawyers and theorists that the tax
revenues should not be “defeated by certain entirely artificial maneuvers” but identifying more difficult question as discerning whether the substance of any particular transaction is consistent with its form).
121. Id. at 879 (stating “[t]he most important inquiry at the threshold is whether a statutory provision draws its meaning from the terms of the statute itself or (and to what extent) from outside”). Unfortunately, nowhere does Isenbergh offer any rules or standards for determining whether a statute is self-contained or bounded by real-world antecedents.
122. Surely Isenbergh does not mean that Congress randomly created apurposive rules to which it granted preferred tax treatment. For a more complete discussion of some of the real world concerns motivating the evolution of the statute governing reorganizations, see Steven A. Bank, Federalizing the Tax-Free Merger: Toward an End to the Anachronistic Reliance on State Corporation Laws, 77 N.C. L.REV. 1307 (1999)(describing the competing concerns motivating the statutory changes, including the
 

 broader range of business transactions covered by these provisions as well as the desire to limit their benefits, including their

inappropriate uses in triggering loss recognition).
123. Isenbergh concedes it is a close call. Isenbergh, Musings, supra note 120, at 867. Nevertheless, on basis of the ‘means’ - ‘includes’ distinction, Isenbergh seems to prefer an apurposive rule. “As an abstract proposition, it is not immediately obvious why a division of corporate assets would have to be germane to the conduct of the remaining business or even what it means to be germane.... what is meant by ‘germane’ [is] that the end of a reorganization as such cannot be tax avoidance. This also is far from self-evident, however for the whole point of the reorganization provisions in the Code is to make certain transactions tax-free.” Id. at 869. See also Steven M. Surdell, The Emerging Role of Business Purpose in Corporate Tax-Motivated Transactions, 431 PLI/TAX
1133, 114 (1998) (“It is significant to note, however, that by enacting provisions such as the reorganization provisions, Congress
could be seen to have granted those transactions special status so that tax avoidance motives are less relevant.”).  Isenbergh’s analysis seems to ignore the historical context of the reorganization provisions. Even prior to Gregory, Congress wrestled with the process of successfully writing a statute to govern tax-deferred divisive reorganizations so as to permit necessary business reorganizations while not allowing their use for transactions that do not meet a “business exigency” standard.
124. Isenbergh, Musings, supra note 120, at 863. Isenbergh is most troubled by the business purpose doctrine as providing an anti- tax avoidance doctrine. See also id. at 870 (decrying subsequent decisions using Gregory to attack “perceived ‘bad’ features” of transactions).
125. On the matter of judicial license, see id. at 879 (rejecting gap-filling by the courts to preserve fisc as justification for “extrastatutory or remedial forays”) and 882 (describing judicial aspirations). See id. at 883 (describing Gregory as nothing less than the reason for the sorry state of current statutory interpretation and judicial excess).
126. See Pildes, supra note 26, (1999)(describing divergent views of formalists as making it implausible to see “any unified, coherent vision of modern legal formalism”). Pildes’ identifies three modes of formalism: (1) formalism as anticonsequential morality in law; (2) formalism as apurposive rule-following; and (3) formalism as a regulatory tool for producing “optimally efficient mixes of law and norms”. Id. Pildes notes that preferences for formalism, for rule-following, makes senses in “conditions of distrust.”
Id. 614. This is certainly the case within tax. Tax textualists might be better denominated as tax formalists since as a group they share
a greater distrust of the judiciary than of legislative history or extrinsic sources than non-tax textualists.
 

 See also David P. Hariton, Sorting Out the Tangle of Economic Substance, 52 TAX LAW. 235 (1999)(analyzing economic

substance doctrine in light of ACM v. Commissioner, 157 F.3d. 231 (3d Cir. 1998)). Hariton alternatively seems to identify apurposive and anticonsequentialist concerns. A commitment to a “relatively objective system” militates against overturning “technical” results. Hariton states that “[t]he taxpayer, we believe, is entitled to rely on the rules and the answers to which those rules give rise. She should not be denied beneficial tax results which she stumbles upon, or, even seeks out, in the course of her legitimate business dealings, even if those results are obviously unanticipated, unintended or downright undesirable.” See id. at 237. His description of the realization requirement suggests a more apurposive formalism, stating that “the timing of realization is essentially formalistic, and the proposition that taxpayers are getting away with something to which they are not properly entitled when they use transactions to alter the timing of realization is therefore dubious.”). Id. at 254.
127. Weisbach, Formalism , supra note 66, at 860 (1999).
128. Saul Levmore, Double Blind Lawmaking and Other Comments on Formalism in the Tax Law, 66 U. CHI. L.REV. 915 (1999).
129. Weisbach, Formalism, supra note 66, at 860 (defining failure as taxpayers’ ability to endlessly manipulate the rules to produce results not intended by the drafters). This failure is inefficient, resulting in a loss of revenue and demoralizing others. Even Hariton, who argues for a highly formalistic perspective in the application of tax statutes, recognizes the difficulties of a rule-based system in an increasingly complex business world where the consequences of our failure to maintain limits results in an “(1) an increasingly defensive set of rules – niggardly, complex and narrow of spirit – designed with a view to potential abusers, real and imagined; (2) an increasingly inequitable allocation of tax liabilities, with relatives benefits inuring to bigger taxpayers that are able and willing to enter into costly tax-motivated transactions; and (3) primarily as a result of (2), an erosion of confidence in what is functionally a self-enforced honor system of determining tax liabilities.” See Hariton, supra note 126, at 237.
130. By “economic approach”, Weisbach considers whether anti-abuse rules are welfare maximizing. Weisbach, Fromalism, supra note 66, at 862. Weisbach is not offering a theory of statutory interpretation, although he notes that the literature on anti-abuse
provisions is frequently found within statutory interpretation. Id. at 861 n.3.
131. Id. at 865-72. Weisbach considers in turn the work of Isaac Ehrlich and Richard A. Posner, An Economic Analysis of Legal Rulemaking, 3 J. LEGAL. STUD. 257, 265 (1974)(arguing that rules reduce cost and simplify prediction) and Louis Kaplow, Rules versus Standards: An Economic Analysis, 42 DUKE L.J. 557 568-88 (1992)(no necessary connection between complexity and the use of either rules or standards). Weisbach concludes that in tax rules are more complex and inefficient than standards.
132. Anti-abuse rules, appearing in both Code provisions and in tax regulations, allow the government to override the literal language of the statute or regulation if a taxpayer uses a transaction for tax avoidance purposes contrary to the purpose of the statute or regulation. Id. at 860.
Treasury regulations contain examples of anti-abuse provisions, the most notable being the partnership anti-abuse regulation whose
promulgation occasioned a great deal of discussion about the merits of anti-abuse provisions generally. See Treas. Reg. 1.701-2.
For a discussion of anti-abuse provisions, see also Daniel Halperin, Are Anti-Abuse Rules Appropriate?, 48 TAX. LAW. 807
 

 (1995)(discussion of anti-abuse rules and method of statutory interpretation (literalism vs. purposivism) inseparable); Frank V. Battle,

Jr., The Appropriateness of Anti-Abuse Rules in the U.S. Income Tax System, 48 TAX LAW. 801 (1995); Pamela Olson, Some Thoughts
on Anti-Abuse Rules,48 TAX LAW. 817 (1995); Sheldon I. Banoff, The Use and Misuse of Anti-Abuse Rules, 48 TAX LAW. 827 (1995); Kenneth W. Gideon, Use Abuse, and Anti-Abuse: Policy Considerations Affecting the Nature of Regulatory Guidance, 637 TAXES (December 1995)(anti-abuse rules are second-best solution but may be necessary); William F. Nelson, The Limits of Literalism: The Effect of Substance over Form, Clear Reflection and Business Purpose Considerations on the Proper Interpretation of Subchapter K, TAXES 641 (December 1995)(partnership antiabuse provisions are inappropriate and supplant current law).
133. Weisbach, Formalism, supra note 66, at 884. Weisbach does not necessarily suggest the wholesale judicial application of anti-abuse provisions. Because they are not always appropriate, courts might not accurately apply them in all cases.
134. For a discussion of the evolution of the law from standards to rules to standards within the context of a discussion of the organic development of Subchapter C of the Internal Revenue Code, see Clark, supra note 63. See also Bayless Manning, Hyperlexis and the Law of the Conservation of Ambiguity: Thoughts on Section 385, 38 TAX LAW. 9 (1982) (defining problem with hyperlexis [elaboration]: efforts to eliminate ambiguity through detail only create more ambiguity are thus doomed to failure).
135. See Frank, “Words and Music”, supra note 65, at 1259 (noting Aristotle’s discussions of problems of statutory interpretation and concluding that most modern expositions are “but restatements, with here and there a bit of embroidery, of what Aristotle said”). See also Guiseppi v. Walling, 144 F2d 608 (1944) (J.Frank) (discussing, inter alia, “the rule of law”, separation of powers and statutory interpretation in upholding administrative regulation prohibiting home embroidery work as means to effect minimum wage law) and FRANK, IF MEN WERE ANGELS, supra note 1.
136. For Aristotle as a source for theories of “practical reason” theory of statutory interpretation, see, for example, Eskridge, and Frickey, Practical Reason, supra note 12, at 323 (Aristotle’s theory of practical reason (phronesis) is inspiration). For Aristotle as inspiration for the modern hermeneutical tradition, see GADAMER, supra note 18, at 278 (1975)(Aristotle concerned not with hermeneutical problem but with right estimation of role for reason in moral action).
 

 137. Aristotle is accepted as the founder of logic, a field in which he occupied an unparalleled position of importance until the

twentieth century. Even now Aristotelian methods show strong relationship with modern logical theory. See Robin Smith, Logic,
27 IN THE CAMBRIDGE COMPANION TO ARISTOTLE (ed. Jonathan Barnes)(1995)(Aristotle first to conceive of a “systematic treatment of correct inference”).
138. See id. at 59-60. See also THOMAS COLE, THE ORIGINS OF RHETORIC IN ANCIENT GREECE 10 (1991)(describing rhetoric
as compounded out of skills that require ability to produce premises and inferences that a deliberative or judicial body is likely to accept). See ARISTOTLE, RHETORIC 1.1 1354a14-15 (describing dialectic argumentation as main body of rhetorical persuasion).
139. Aristotle places much emphasis on clarity in logic and language as a necessary precondition for successful reasoning and debate. In this he follows in a well-established tradition that includes Plato and the Sophists. For example, Aristotle begins the Topics as follows: “The purpose of the present treatise is to discover a method by which we shall be able to reason from generally accepted opinions about any problem set before us and shall ourselves, when sustaining an argument, avoid saying anything self-contradictory.”
TOPICS, I.100a18-21 (trans. Hugh Tredennick)(1960). On the sophists and the tradition leading up to Aristotle, see W.K.C.GUTHRIE,
THE SOPHISTS (1971) including a discussion of sophists that may well remind modern scholars of the deconstructionists’ rejection of determinacy of meaning.
140. Until recently, there was limited discussion of ‘words spoken in many ways’, a topic that pervades much of Aristotle’s
corpus. Now thanks to CHRISTOPHER SHIELDS, ORDER IN MULTIPLICITY, HOMONYMY IN THE PHILOSOPHY OF ARISTOTLE (Oxford, 1999), who has systematically considered the topic, it is possible to apply a unified analysis of Aristotelian homonymy beyond his work. Much of the following analysis relies heavily on Shields work. Important earlier discussions of homonymy can be found
especially in Terence Irwin, Homonymy in Aristotle, 34 REV.METAPHYSICS 523-44 (1981) and the seminal work of G.E.L. Owens, Logic and Metaphysics in Some Earlier Works of Aristotle, IN ARISTOTLE AND PLATO IN MID-FOURTH CENTURY 163-`90(eds. I. During and G.E.L. Owens), reprinted IN LOGIC, SCIENCE, AND DIALECTIC (Martha Nussbaum ed.)(1986).
141. On the importance of homonymy in Aristotle’s entire corpus and the development of his metaphysics, a topic beyond the scope of this Article, see, e.g., SHIELDS, supra note 140.
142. Multivocal is an easier way to refer to what Aristotle frequently describes as ‘words spoken of in many ways’ (pollakis legomenon). Modern commentators prefer ‘vague’ or ‘ambiguous’.
 

 143. Aristotle discusses homonymy early on and develops his theory of homonymy throughout his work. Aristotle’s important contribution is the identification of both discrete (unrelated) and associated (associated) homonyms. In the Categories (generally considered an early work), Aristotle distinguishes homonymy and synonymy: “Those things are called homonymous of which the name alone is common, but the account of being corresponding to the name is different ... Those things are called synonymous of which the name is common, and the account of being corresponding to the name is the same.” Cat. Ia1-4 ,6-7 (SHIELDS trans, supra note 140, at 11).

144. H.L.A. Hart, supra note 39, at 4, recognizes the homonymous nature of significant legal terms in need of elucidation. He dismisses this notion as one having any utility precisely because he is not aware of Aristotle’s important contribution in this area.  This is clear because Hart does not distinguish a middle ground (a tertium quid) between ‘mere homonyms’ (discrete homonyms that are easily identifiable) and what Aristotle would describe as a synonym, demonstrating a mistaken notion of univocity: Hart describes the alternative use of the homonymy of these important legal concepts as “the mistaken belief (false not only of complex legal and political expressions like ‘law’ ‘state’ ‘nation’, but of humbler ones like ‘a game’) that if a word is not a mere homonym then all the instances to which it is applied must possess either a single quality or a single set of qualities in common”). Hart’s description here
acknowledges only discrete homonymy and synonymy and helps us realize that we have failed to recognize Aristotle’s contribution
in establishing a definition of homonymy that recognizes it as more than mere homonymy and thus establish the importance of nonunivocity
of key words.  Current discussions of homonymy often do not recognize it as such or recognize only the less interesting and helpful discrete
homonyms. See SCALIA, INTERPRETATION, supra note 11, at 26 (discussing an example of discrete homonyms within his discussion
of the canon of statutory construction known as noscitur a sociis (a word is known by its companions) and illustrating application as follows. “If you tell me, “I took the boat out of the bay,” I understand “bay” to mean one thing; if you tell me, “I put the saddle on the bay,” I understand it to mean something else.”) and Cunningham et al, supra note 8 at, 1610 (discussing empirical research on ‘enterprise’ and noting that disagreement among respondents about its meaning is not “result of speakers choosing between two meanings which all speakers use, as is the case of homonym pairs like bank as the land edge next to a river and bank as a financial institution”). This ‘homonym pair” (river bank and savings bank) is frequently used by Shields, but only as a discrete homonym, not the more interesting associated homonyms of importance to Aristotle. See infra notes 175-182 (discussing core-dependent
homonyms).
 

 145. See supra note 143 (Aristotle defining homonyms as having a common name but with the account corresponding to the

name differing while synonyms have both name and account in common).
146. See SHIELDS, supra note 140, at 11 (“Aristotle’s account of synonymy is relatively straightforward: ‘x and y are synonymously F iff [if but only if] (i) both are F and (ii) the definitions corresponding to “F” in “x is F” and “y is F” are the same.’”). What is initially unclear is whether there is a middle ground, a tertium quid, between homonyms and synonyms. Hart, (see discussion, supra note 144), and others, do not recognize any middle ground, perhaps influenced by Plato’s emphasis on univocity – a mistaken belief from which Aristotle clearly departs.
147. See infra note 194 (discussing centrality of homonymy to Aristotle’s Metaphysics). Words with subtly overlapping meaning
interest Aristotle because of their potential philosophical interest. For example, ‘justice’ and ‘good’ are prime examples of homonyms
of philosophical import. On ‘justice’ as a homonym, see NICOMACHEAN ETHICS 1129a26-31(“Justice and injustice seem to be spoken of in many ways, although this escapes our notice because of the extreme closeness of their homonymy. These cases are unlike cases
where <the homonymy> is far apart (for here the difference in form is great), as for example <it is clear> that the collar bones of animals and that with which we open doors are homonymously called ‘keys’.”)(SHIELDS trans., supra note 140, at 36).
148. Shields defines discrete homonymy in the following terms: x and y are homonymously F iff [if but only if](i) the have their
name in common, but (ii) their definitions have nothing in common and so do not overlap in any way. Id at 11. Discrete homonyms, also called ‘homonyms by chance’ (apo tyches), are accidents of language and thus easily identifiable. As a result, frequently discrete homonyms are founds in jokes). See also TOPICS 106a23-5 and SOPHISTICI ELENCHI 33. See supra note 144 (discussing “bay” noted by Justice Scalia).
149. The four examples are taken from SHIELDS, supra note 140, at 37 (discussing Aristotle’s passage from the Metaphysics, 1003a34-b1, discussed infra at note 151).
 

 150. Shields explicates the nonreducibility of the sentences as follows. ‘Socrates is healthy’ signifies that Socrates is in a state of being free of disease and functioning well. ‘Socrates’ complexion is healthy’ indicates that Socrates’ outward appearance is in the state reflective of that described by the sentence ‘Socrates is in a state being free of disease and functioning well.’ ‘Socrates’ regimen is healthy’ signifies that Socrates’ regimen brings it about that ‘Socrates is in a state free of disease and functioning well.’ Therefore, the accounts of the second two sentences are “neither reducible to the account of the predicate in the initial sentence nor independent of it. Rather, they must appeal to it in order to be correct and complete; but since they mean more than the predicate

of [the first sentence] taken alone, such an appeal is insufficient by itself.” Id. at 38.
151. METAPHYSICS, 1003a34-b1 (trans. Hugh Tredennick)(1933).
152. See TOPICS 107b6-12, where Aristotle urges careful examination of terms to avoid lack of clarity: “Homonymy often trails
into the accounts themselves unnoticed, and for this reason one needs to look into the accounts. For example should someone say that what is indicative or productive of health is what has balance with respect to health, one should not stand fast but must inquire further in what balance was mentioned in each case, for example, if in the one case it means to be of a sort as to produce health, but in the other it means to be of such a sort as to be able to indicate what kind of state <health> is.” (trans. SHIELDS, supra note 140, at 18-19).
153. SHIELDS, supra note 140, at 38. Shields makes a distinction between ‘equivocity’ and ‘ambiguity’ that is useful not only
for his discussion of homonymy but may well help in our efforts in statutory interpretation. He defines ‘equivocity’ to indicate a term
with more than one meaning “when those meanings might be connected in various ways.” He distinguishes ‘equivocity’ from ‘ambiguity’ which also denotes a term with more than one meaning, but “where those meanings are not connected in any semantically interesting ways;” in other words, they are merely equivocal. Id. at 44 n.1. So too Hart, see supra note 39, at 4 note 1 (describing ‘mere homonymy’).
154. If they overlapped completely, then they would be synonyms, not homonyms. Shields defines comprehensive or associated
homonymy thus: x and y are homonymously F iff [if but only if] (i) they have their name in common, and (ii) their definitions do not completely overlap. SHIELDS, supra note 140, at 11. The distinction between comprehensive and discrete homonymy in Aristotle is critical, a distinction carefully demonstrated by Shields. If homonymy is only discrete and not associated, then there must be some tertium quid between homonyms and synonyms, viz. healthy. Since there is no tertium quid for Aristotle, he must subscribe to a view of comprehensive homonymy. Id.
155. TOPICS 141b25-27. A detailed discussion of Aristotle’s corpus that seeks to elaborate systems of classification by division
is beyond the scope of this Article and unnecessary to the present discussion. For a discussion of the importance of this system of
classification for Aristotle’s logical works, see Smith, supra note 137, at 27-65. For key discussion of classification in Aristotle’s
corpus, see TOPICS I.v.101b-102a (identifying four predicates: definition, property, genus and accident); and Categories 1b 25ff
(listing ten divisions: 1) substance (‘what it is); 2) quantity (‘how large’); 3) quality (‘what sort is it’); 4) relation (‘related to what’);
5) where (‘what place’); 6) posture/position (‘in what attitude’); 7) state or condition (‘how circumstanced’); 8) action (‘doing what’);
9) passivity (‘how passive’); and 10) affection (‘what suffering’)). See also SHIELDS, supra note 140, at 21 (describing Aristotle’s
four types of being corresponding to four types of predications)(“some things are said-of and in other things; others are said-of and
not in; others are in but not said-of; and still others are neither said-of nor in”). Because these predications are irreducibly distinct,
no one can be identified with any other by reason of Leibniz’s law (identity of indiscernables). For Cunningham et al.’s statement
that a definition necessarily states all necessary and sufficient conditions, see supra note 131.
156. TOPICS vi,4 141b25-27 (SHIELDS trans). SHIELDS, supra note 140, at 91. For purposes of this discussion, differentiae need
not be precisely defined but can be assumed to include characteristics of the item defined that are more specific to the particular than
the genus, of which it is necessarily a member. See supra note 155 (describing Aristotle’s system of classification in Topics and
Categories). For example, it can include quality. See SHIELDS, supra note 140, at 250 n.70 (discussing various passages to decide
if differentia includes ‘quality’).  Hart recognizes the limitations of this requirement, arguing instead for ‘paraphrase’ as the method by which we seek to define important legal terms. See Hart, supra note 39, at 8. In particular, the requirement for identifying the genus may pose a problem for
 

 anomalous cases. Nevertheless, Hart’s method of paraphrase and assertion that one defines by stating the conditions under which

statements using the legal terms to be defined are true provides no solution for cases requiring interpretation whether the necessary
and sufficient conditions for tax-free ‘reorganizations’ are met since it assumes the very issue in question. In other words, textualists
and structuralists would define those conditions quite differently.
157. Nothing can be categorized as belonging to more than one genus; therefore no two definitions of the same thing are possible. SeeTOPICS 141b22-142a2, 144a11-15, 151a32-b2, b15-17 and 152a23-b5 (discussed by SHIELDS, supra note 140, at 91).  Because of the requirement of including differentiae (essentially individual characteristics), things within the genus will thereby be distinguishable.
158. Without a detailed analysis, we can say that Aristotle notes the existence of primary substances, what must exist or without
which no other types of ‘being’ would exist. Within intra-categorial instances, Aristotle seems to recognize primary and secondary
instances within categories (including substance and quantity). See SHIELDS, supra note 140, at 21. See also POSTERIOR ANALYTICS,
II, xiii, 96b15-17 (“In making a systematic study of a whole class of objects, one should first divide the genus into the primary [those
which exhibit the properties of the genus in their simplest form] infimae species.”).
159. On the priority of genus in any definition, see JOHN J. CLEARY, ARISTOTLE ON THE MANY SENSES OF PRIORITY (1988)
(discussing the importance Aristotle ascribes to priority and describing different ways definitional priority allows rejection or refutation of definition proposed by one’s opponent within the framework of a dialectical joust) (“In keeping with that purpose, he gives a number of ways in which one might overthrow such proposed definitions: (i) One could show that the description cannot be applied to the subject named; for instance, that the proposed definition (horismos) of man does not apply to everything called a man.  (ii)(quoted in full in text supra). Furthermore, (iii) one could overturn a proposed definition by showing that the description is not peculiar to the definiendum, given that this is at least a necessary condition for a correct definition. Finally, (iv) even if your opponent has satisfied all the foregoing, he may still have failed to give a definition inasmuch as he has not stated the essence (to ti en einai) of the definiendum.”)(emphasis added).
160. Aristotle assumes that perceptions or appearances – what is better known to us immediately – must form the beginning of an inquiry. See e.g., NICOMACHEAN ETHICS 1145b2-7; PHYSICS 211a7. It is clear that for Aristotle, appearances can include common beliefs, not simply physical perceptions. See T. IRWIN, ARISTOTLE’S FIRST PRINCIPLES 26-51 (1988).
 

 161. See SHIELDS, supra note 140, at 93-97 (discussing what Aristotle means by ‘priority’, including a detailed explication of Aristotle’s most lengthy statement in the Posterior Analytics). What is prior– better known and clearer to us – is not necessarily what is naturally prior, that which is inherent in what is being defined. In a sense, prior can mean ‘what is better known to us’ because we have immediate experience with the object in question; but, from a perspective of a definition, what is prior must indicate the genus to which the thing defined belongs since it contains the essential elements that characterize what is being defined.

Nevertheless, Aristotle recognizes the necessity of starting, whether for purposes of dialectic or scientific analysis, with what is known to us, precisely because it is known to us. By allowing for development in our beliefs that may incorporate inaccuracies due to the nature of perception, Aristotle ultimately must allow for different types of definitions because of varying modes of appearances.  In other words, we form our initial perceptions through properties that may or may not be accidental and thus correspond more or less well with the essential nature of that which we perceive. Through investigation (empirical or philosophical) we can distinguish the essential from the accidental. See IRWIN, supra notes 160, at 29-31 (discussing Aristotle’s method of empirical and dialectic
investigation).
162. Movement between the particular and general is also the hallmark of Aristotle’s work that gave inspiration to “practical reason” as a method of statutory interpretation. See supra note 51 (discussing practical reason moving from particular to general in statutory interpretation).
163. Empirical inquiry begins from the accumulation of particular appearances which allow for the discovery of generalizations.
See IRWIN, supra note 160, at 30 (discussing, inter alia, Analytics Prior 46a17-27). The accumulation of appearances allows for the
possibility of collection of false appearances. Nonetheless, through experience and inquiry we can compile a fuller and more accurate
picture, ultimately eliminating those that are false. See id. at 31- 36 (outlining realist difficulties with Aristotle’s assumption of
induction, generalization from particular to universals, but noting that through dialectic (examination of common beliefs to arrive
at first principles) Aristotle restores our confidence in some non-perceptual appearances).
164. By ‘dialectic’ Aristotle provides “‘a method from which we will be able to syllogize from common beliefs (endoxa) about every topic proposed to us, and will say nothing conflicting when we give an account ourselves’”. IRWIN, supra note 160, at 36
(quoting Aristotle Topics 100a18-21 (Irwin trans)). In dialectic, unlike the empirical method, we may begin with generalizations, with common beliefs. Indeed, we may be proceeding from the universal to the particular “since the inarticulate whole is better known to perception.” IRWIN, supra note 160, at 43 (citing PHYSICS 184a16-26). Essentially in dialectic the goal is to move from the confused to the clear. Dialectic begins with a puzzle, such as when there are equally cogent arguments reaching contradictory conclusions – for example, when nine justices split 5-4 for two different ‘plain’ meanings. See TOPICS 145b17-20. Dialectic examination will be especially useful for just such puzzles to which empirical analysis can not always provide an answer.
161. See SHIELDS, supra note 140, at 93-97 (discussing what Aristotle means by ‘priority’, including a detailed explication of Aristotle’s most lengthy statement in the Posterior Analytics). What is prior– better known and clearer to us – is not necessarily what is naturally prior, that which is inherent in what is being defined. In a sense, prior can mean ‘what is better known to us’ because we have immediate experience with the object in question; but, from a perspective of a definition, what is prior must indicate the genus to which the thing defined belongs since it contains the essential elements that characterize what is being defined.
Nevertheless, Aristotle recognizes the necessity of starting, whether for purposes of dialectic or scientific analysis, with what is known to us, precisely because it is known to us. By allowing for development in our beliefs that may incorporate inaccuracies due to the nature of perception, Aristotle ultimately must allow for different types of definitions because of varying modes of appearances.  In other words, we form our initial perceptions through properties that may or may not be accidental and thus correspond more or less well with the essential nature of that which we perceive. Through investigation (empirical or philosophical) we can distinguish the essential from the accidental. See IRWIN, supra notes 160, at 29-31 (discussing Aristotle’s method of empirical and dialectic
investigation).
162. Movement between the particular and general is also the hallmark of Aristotle’s work that gave inspiration to “practical reason” as a method of statutory interpretation. See supra note 51 (discussing practical reason moving from particular to general in statutory interpretation).
163. Empirical inquiry begins from the accumulation of particular appearances which allow for the discovery of generalizations.
See IRWIN, supra note 160, at 30 (discussing, inter alia, Analytics Prior 46a17-27). The accumulation of appearances allows for the
possibility of collection of false appearances. Nonetheless, through experience and inquiry we can compile a fuller and more accurate
picture, ultimately eliminating those that are false. See id. at 31- 36 (outlining realist difficulties with Aristotle’s assumption of induction, generalization from particular to universals, but noting that through dialectic (examination of common beliefs to arrive at first principles) Aristotle restores our confidence in some non-perceptual appearances).
164. By ‘dialectic’ Aristotle provides “‘a method from which we will be able to syllogize from common beliefs (endoxa) about every topic proposed to us, and will say nothing conflicting when we give an account ourselves’”. IRWIN, supra note 160, at 36 (quoting Aristotle Topics 100a18-21 (Irwin trans)). In dialectic, unlike the empirical method, we may begin with generalizations, with common beliefs. Indeed, we may be proceeding from the universal to the particular “since the inarticulate whole is better known to perception.” IRWIN, supra note 160, at 43 (citing PHYSICS 184a16-26). Essentially in dialectic the goal is to move from the confused to the clear. Dialectic begins with a puzzle, such as when there are equally cogent arguments reaching contradictory
conclusions – for example, when nine justices split 5-4 for two different ‘plain’ meanings. See TOPICS 145b17-20. Dialectic examination will be especially useful for just such puzzles to which empirical analysis can not always provide an answer.
161. See SHIELDS, supra note 140, at 93-97 (discussing what Aristotle means by ‘priority’, including a detailed explication of Aristotle’s most lengthy statement in the Posterior Analytics). What is prior– better known and clearer to us – is not necessarily what is naturally prior, that which is inherent in what is being defined. In a sense, prior can mean ‘what is better known to us’ because we have immediate experience with the object in question; but, from a perspective of a definition, what is prior must indicate the genus to which the thing defined belongs since it contains the essential elements that characterize what is being defined.
Nevertheless, Aristotle recognizes the necessity of starting, whether for purposes of dialectic or scientific analysis, with what is known to us, precisely because it is known to us. By allowing for development in our beliefs that may incorporate inaccuracies due to the nature of perception, Aristotle ultimately must allow for different types of definitions because of varying modes of appearances.
In other words, we form our initial perceptions through properties that may or may not be accidental and thus correspond more or less well with the essential nature of that which we perceive. Through investigation (empirical or philosophical) we can distinguish
the essential from the accidental. See IRWIN, supra notes 160, at 29-31 (discussing Aristotle’s method of empirical and dialectic investigation).
162. Movement between the particular and general is also the hallmark of Aristotle’s work that gave inspiration to “practical reason” as a method of statutory interpretation. See supra note 51 (discussing practical reason moving from particular to general in statutory interpretation).
163. Empirical inquiry begins from the accumulation of particular appearances which allow for the discovery of generalizations.
See IRWIN, supra note 160, at 30 (discussing, inter alia, Analytics Prior 46a17-27). The accumulation of appearances allows for the
possibility of collection of false appearances. Nonetheless, through experience and inquiry we can compile a fuller and more accurate
picture, ultimately eliminating those that are false. See id. at 31- 36 (outlining realist difficulties with Aristotle’s assumption of
induction, generalization from particular to universals, but noting that through dialectic (examination of common beliefs to arrive at first principles) Aristotle restores our confidence in some non-perceptual appearances).
164. By ‘dialectic’ Aristotle provides “‘a method from which we will be able to syllogize from common beliefs (endoxa) about every topic proposed to us, and will say nothing conflicting when we give an account ourselves’”. IRWIN, supra note 160, at 36
(quoting Aristotle Topics 100a18-21 (Irwin trans)). In dialectic, unlike the empirical method, we may begin with generalizations,
with common beliefs. Indeed, we may be proceeding from the universal to the particular “since the inarticulate whole is better known
to perception.” IRWIN, supra note 160, at 43 (citing PHYSICS 184a16-26). Essentially in dialectic the goal is to move from the confused to the clear. Dialectic begins with a puzzle, such as when there are equally cogent arguments reaching contradictory conclusions – for example, when nine justices split 5-4 for two different ‘plain’ meanings. See TOPICS 145b17-20. Dialectic examination will be especially useful for just such puzzles to which empirical analysis can not always provide an answer.161. See SHIELDS, supra note 140, at 93-97 (discussing what Aristotle means by ‘priority’, including a detailed explication of
Aristotle’s most lengthy statement in the Posterior Analytics). What is prior– better known and clearer to us – is not necessarily what
is naturally prior, that which is inherent in what is being defined. In a sense, prior can mean ‘what is better known to us’ because we have immediate experience with the object in question; but, from a perspective of a definition, what is prior must indicate the genus to which the thing defined belongs since it contains the essential elements that characterize what is being defined. Nevertheless, Aristotle recognizes the necessity of starting, whether for purposes of dialectic or scientific analysis, with what is known to us, precisely because it is known to us. By allowing for development in our beliefs that may incorporate inaccuracies due to the nature of perception, Aristotle ultimately must allow for different types of definitions because of varying modes of appearances.
In other words, we form our initial perceptions through properties that may or may not be accidental and thus correspond more or
less well with the essential nature of that which we perceive. Through investigation (empirical or philosophical) we can distinguish
the essential from the accidental. See IRWIN, supra notes 160, at 29-31 (discussing Aristotle’s method of empirical and dialectic investigation).
162. Movement between the particular and general is also the hallmark of Aristotle’s work that gave inspiration to “practical
reason” as a method of statutory interpretation. See supra note 51 (discussing practical reason moving from particular to general in
statutory interpretation).
163. Empirical inquiry begins from the accumulation of particular appearances which allow for the discovery of generalizations.
See IRWIN, supra note 160, at 30 (discussing, inter alia, Analytics Prior 46a17-27). The accumulation of appearances allows for the
possibility of collection of false appearances. Nonetheless, through experience and inquiry we can compile a fuller and more accurate
picture, ultimately eliminating those that are false. See id. at 31- 36 (outlining realist difficulties with Aristotle’s assumption of
induction, generalization from particular to universals, but noting that through dialectic (examination of common beliefs to arrive
at first principles) Aristotle restores our confidence in some non-perceptual appearances).
164. By ‘dialectic’ Aristotle provides “‘a method from which we will be able to syllogize from common beliefs (endoxa) about every topic proposed to us, and will say nothing conflicting when we give an account ourselves’”. IRWIN, supra note 160, at 36 (quoting Aristotle Topics 100a18-21 (Irwin trans)). In dialectic, unlike the empirical method, we may begin with generalizations, with common beliefs. Indeed, we may be proceeding from the universal to the particular “since the inarticulate whole is better known to perception.” IRWIN, supra note 160, at 43 (citing PHYSICS 184a16-26). Essentially in dialectic the goal is to move from the confused to the clear. Dialectic begins with a puzzle, such as when there are equally cogent arguments reaching contradictory
conclusions – for example, when nine justices split 5-4 for two different ‘plain’ meanings. See TOPICS 145b17-20. Dialectic examination will be especially useful for just such puzzles to which empirical analysis can not always provide an answer.161. See SHIELDS, supra note 140, at 93-97 (discussing what Aristotle means by ‘priority’, including a detailed explication of Aristotle’s most lengthy statement in the Posterior Analytics). What is prior– better known and clearer to us – is not necessarily what is naturally prior, that which is inherent in what is being defined. In a sense, prior can mean ‘what is better known to us’ because we have immediate experience with the object in question; but, from a perspective of a definition, what is prior must indicate the
genus to which the thing defined belongs since it contains the essential elements that characterize what is being defined. Nevertheless, Aristotle recognizes the necessity of starting, whether for purposes of dialectic or scientific analysis, with what is known to us, precisely because it is known to us. By allowing for development in our beliefs that may incorporate inaccuracies due to the nature of perception, Aristotle ultimately must allow for different types of definitions because of varying modes of appearances.  In other words, we form our initial perceptions through properties that may or may not be accidental and thus correspond more or less well with the essential nature of that which we perceive. Through investigation (empirical or philosophical) we can distinguish the essential from the accidental. See IRWIN, supra notes 160, at 29-31 (discussing Aristotle’s method of empirical and dialectic
investigation).
162. Movement between the particular and general is also the hallmark of Aristotle’s work that gave inspiration to “practical reason” as a method of statutory interpretation. See supra note 51 (discussing practical reason moving from particular to general in statutory interpretation).
163. Empirical inquiry begins from the accumulation of particular appearances which allow for the discovery of generalizations.
See IRWIN, supra note 160, at 30 (discussing, inter alia, Analytics Prior 46a17-27). The accumulation of appearances allows for the
possibility of collection of false appearances. Nonetheless, through experience and inquiry we can compile a fuller and more accurate
picture, ultimately eliminating those that are false. See id. at 31- 36 (outlining realist difficulties with Aristotle’s assumption of
induction, generalization from particular to universals, but noting that through dialectic (examination of common beliefs to arrive
at first principles) Aristotle restores our confidence in some non-perceptual appearances).
164. By ‘dialectic’ Aristotle provides “‘a method from which we will be able to syllogize from common beliefs (endoxa) about every topic proposed to us, and will say nothing conflicting when we give an account ourselves’”. IRWIN, supra note 160, at 36 (quoting Aristotle Topics 100a18-21 (Irwin trans)). In dialectic, unlike the empirical method, we may begin with generalizations, with common beliefs. Indeed, we may be proceeding from the universal to the particular “since the inarticulate whole is better known to perception.” IRWIN, supra note 160, at 43 (citing PHYSICS 184a16-26). Essentially in dialectic the goal is to move from the confused to the clear. Dialectic begins with a puzzle, such as when there are equally cogent arguments reaching contradictory
conclusions – for example, when nine justices split 5-4 for two different ‘plain’ meanings. See TOPICS 145b17-20. Dialectic examination will be especially useful for just such puzzles to which empirical analysis can not always provide an answer.
165. The task of the two types of inquiry differs. While beginning with empirical appearances, the one employing an empirical inquiry will compile observations resting on wider realm of appearances. The dialectic inquirer will begin with common beliefs or theories and examine them See IRWIN, supra note 160, at 39 (noting that distinction between empirical and dialectical method not sharp). The crucial point is not simply the movement from the particular to the general but from “the confused to the clear.” Id. at 43.
166. TOPICS 141b24-25. Shields explains the critical nature of Aristotelian ‘essence.’ “Essences are for Aristotle those
properties which are not only necessary to a particular kind but are also fundamental in the sense of explaining the existence of other
properties invariably realized by members of that kind (the propria).” SHIELDS, supra note 140, at 94. Aristotle’s emphasis on
‘essence’, indicating the nature of that being defined, must be distinguished from any univocal ‘essence’ we associate with the
Platonic Forms. For a discussion of Aristotle’s departure from Plato and the development of his system of categorization and classification as indicative of the importance of recognizing non-univocity, see infra notes 192-93 (discussing NICOMACHEAN ETHICS,
Ostwald translation).  For a discussion of ‘platonic essentialism’ as problematic for methods of statutory interpretation, see Weisbach, Line Drawing, supra note 58, at 1644 (criticizing failure of ‘platonic essentialism’ as line-drawing method within discussion of realization
requirement). Weisbach attributes O.W. Holmes with misguided introduction of ‘platonic essentialism’ as method of statutory
interpretation. Id. at note 72 (citing O.W. Holmes, The Path of the Law, 10 HARV. L.REV. 457, 460 (1897)). However, an examination of Holmes reveals no mention of Plato or essentialism but in fact highlights Holmes’ thoughts on the importance of a theory in jurisprudence and his search for “first principles” – perhaps showing some Aristotelian, rather than Platonic, influence, although neither are mentioned by name. See Holmes, Path, at 476-77 (discussing importance of theory); at 458 (aim to set forth “some first principles”).
167. The relationship between essence, genus and priority in definition is explored in detail by Aristotle and examined by Shields, who translates the key passage from the Topics. “First <one must examine> whether he has not rendered the definition through what is prior and better known. Since ... we know not through what happens <to be the case> but through what is prior and better known.... It is clear, then, that the one not defining through what is prior and better known has not defined.” SHIELDS, supra note 140, at 91 (translating Topics 141a247-b2). 168. See SHIELDS, supra note 140, at 91-92 (discussing Aristotle’s differentiation among definitions of definition). Aristotle clearly recognized better and worse definitions, including the utility of worse definitions, since the purpose for which a definition is offered will affect whether a ‘worse’ definition is in fact better for the particular purpose for which it is offered. Failure to specify the essence, therefore, does not preclude denominating a statement as a definition; it simply results in it being a worse (less complete), rather than better, definition.
On levels of definition, and their importance for homonymy, see id. Because not all definitions state essences, the fact that homonymy marks definitional differences does not require that homonyms indicate only essential differences. Id. See also SHIELDS, supra note 140, at 95 (discussing Posterior Analytics 93b29-94a14 and Aristotle’s types of definitions). According to Aristotle, definitions include those that state: (1) an account of what a name signifies (nominal account); (2) an account of why something is; and, (3) a deduction of what something is.
The recognition of varying kinds of definitions is also important for another reason – distinguishing between definitions that are
the result of scientific or philosophical investigation from those rendered by competent speakers. To assume that they are co-terminus
would be an unwarranted assumption of univocity, something Aristotle warns us against. See infra notes 173 (discussing deep and
shallow meaning).
 

 169. See SHIELDS, supra note 140, at 95 (illustrating with examples, including general familiarity with ‘dog’ not necessarily

indicating familiarity with essence of dog as canine and carnivore). If general familiarity with appearances also indicated familiarity
with essences, there would be no point in scientific investigation, clearly something that neither Aristotle nor most competent speakers
believe is the case.
170. SHIELDS, supra note 140, at 95-96. Within the context of discussing Aristotle’s levels of definition, Shields notes the
important question: whether homonymy applies simply to words or to things, ultimately taking the position that it applies to both.
See id. at 13 n.7 (noting dominant view that Aristotle has a concern about the senses of words, but noting that Aristotle is not merely
concerned about how words are used or merely interested in common usage). In other words, the debate about homonymy is about
things, and is thus more than simply semantic.
171. See, for example, Aristotle in De Anima 403a29-b3 (describing the different definitions provided by physicist and dialectician). Explicit reference to physical properties will be necessary for a physicist since ‘heat’ could not be explained merely by reference to linguistic meaning, while the philosopher may offer definitions uninformed by physical properties because her concerns do not overlap those of a physicist. SHIELDS, supra note 140, at 99.
172. SHIELDS, supra note 140, at 99. This is not to say that semantic differences are irrelevant; it is simply to say that recourse
only to a dictionary or to linguistic analysis may be insufficient to solve a problem that requires a conceptual analysis. See, for example, id. at 98 (discussing distinction between concepts and properties and reasoning that Aristotle appears to require reference to physical properties because “it would be foolish to believe that one could settle matters of empirically discernible identities by the meanings of terms as they have developed in natural language”).
173. Shields describes meaning as shallow and deep. Shallow meaning corresponds to meaning that is shared by competent speakers of a language while deep meaning requires some level of investigation (conceptual or empirical) that permits discovery of the definition containing the essence. Id. at 99-100 (illustrating shallow and deep meaning by describing Euthyphro’s ‘pontification’ on the subject of piety not as inept, i.e., one that could not be understood by competent speakers, but as shallow, demonstrating no real understanding of the true nature of ‘piety’.).
 

 174. Id. at 101 (explaining that investigation moves from shallow meanings (things as they appear to us) to deep meanings

(things as signified by nature). Competent speakers who share shallow meanings can disagree about interesting homonyms, cases
that require analysis. The type of investigation and analysis required is described by Aristotle in the Metaphysics 1004b1-4 (ascribing
to the philosopher the function of giving account of both concepts and substance).
175. If Aristotle only established non-univocity, the result would largely be negative, a precursor to deconstructionism that questions our ability to arrive at any one known meaning. It is precisely because Aristotle’s analysis arrives at a way to establish coredependent homonymy that he provides a positive methodology, a way to find order in multiplicity that may have special value for hard cases in statutory interpretation.
176. ‘Core-dependent’ is Shields’ term. SHIELDS, supra note 140, at 104. Previously these cases of associated homonyms were
referred to as examples of ‘focal meaning’ based on Aristotle’s statement in the Metaphysics (“and we shall discover other things
said in ways similar to these– so too is being said in many ways, but always relative to some one source (pros mian archen)”). Met.
1003a34-b6 (SHIELDS trans., supra note 140, at 58).
G.E.L. Owen first discussed this passage using the phrase ‘focal meaning’. See G.E.L. Owen, Logic and Metaphysics in Some
Earlier Works of Aristotle, supra note 140. Irwin proposed instead ‘focal connection’ to emphasize that the association was not only
semantic or linguistic. See Irwin, Homonymy, supra note 140, at 523-44. A word has focal meaning if it is used in several ways,
one of which is primary and the others derivative, the accounts of the derivative way containing the accounts of the primary. Jonathan
Barnes, Metaphysics, supra note 137, at 76 et seq.
177. SHIELDS, supra note 140, at 105. The passage from Aristotle’s Metaphysics, 1003a34-b6, quoted supra at notes 151 and
176 and accompanying text, describes ‘healthy’ – or words ‘said in many ways’ as always relating to a core, a single source (pros
mian archen)(“Just as everything which is healthy is related to health (pros hugieian), some by preserving health, some by producing
health, others by being indicative of health, and others by being receptive of health; and as the medical is relative to the medical craft
(pros iatriken), for some things are called medical because they possess the medical craft, others because they are well-constituted
relative to it, and others by being the function of the medical art – and we shall also discover other things said in ways similar to these
– so too is being said in many ways, but always relative to some one source (pros mian archen).” (Shields trans). Id. at 105.
178. Core-dependent homonymy can be described as follows: “a and b are homonymously F in a core-dependent way iff [if and
only if]: (i) a is F; (ii) b is F; and (iii a) the account of F in ‘b is F’ necessarily makes reference to the account of F in ‘a is F’ in an asymmetrical way, or (iii b) there is some c such that the accounts of F-ness in ‘a is F” and ‘b is F’ necessarily make reference to the
account of F-ness in ‘c is F’ in an asymmetrical way.” Id. at 104.
179. See also M.T. LARKIN, LANGUAGE IN THE PHILOSOPHY OF ARISTOTLE 100-01 (1971) (“The criterion of pros hen [focal]
equivocals is that the primary meaning is implicit in the definition of all secondary meanings because there is some relation between
the things name.”). Larkin notes that the relations between the primary and secondary meanings differ but “in virtue of any relation
the primary definition or meaning is included in the definition or meaning of the thing to which the name is secondarily imposed.”
180. The association is significant because the relationship offers some insight into words or concepts that are conceptually
interesting and informed by these associated appearances. Discrete homonyms offer nothing similarly interesting.
For an explanation of how Aristotle understood the association or reference to ‘one source’, see SHIELDS, supra note 140, at 106
n.4 (discussing Aquinas, and his understanding of two forms of ‘association’: source-dependent analogy’ and ‘ordered analogy’).
Aquinas described discrete homonymy as ‘equivocity’ and associated homonymy as ‘analogical predication.’ Source-Dependent
Analogy occurs when: “ a and b are analogically F in a source-dependent way iff [if and only iff]: (i) a is F; (ii) b is F; and (iii) there
is some c such that the accounts of F-ness in ‘a is F’ and ‘b is F’ necessarily make reference to the account of F-ness in ‘c is F’ in
an asymmetrical way.” Ordered Analogy occurs when: “ a and b are analogically F in an ordered way iff [if and only if]: (i) a is F;
(ii) b is F; and (iii) the account of F in ‘b is F’ necessarily make reference to the account of F in ‘a is F’ in an asymmetrical way.”
See id. at 73-74 (discussing Wittgenstein’s ‘doctrine of family resemblance’ and its similarity but ultimately distinguishing it from
Aristotelian association because the Wittgensteinean results are “often purely negative”).  See infra note 206 (proposing that source-dependent analogy, as described in (iii b) applies in the case of ‘reorganizations’; there is a core to which all the variant forms refer by nature of their being ‘reorganizations’).
181. If open-ended, the possibility for new instances (both core and non-core) exists. An example of a non-core relationship
would be ‘healthy salary.’ The asymmetricality of the relationship is not at first obvious. See SHIELDS, supra note 140, at 107 (stating that “[a] core case of being F should be core minimally in the sense that non-core cases must make reference to the core case in their account, while the
core case need not make reference to the non-core cases in its account.”). If ‘heathy complexion’ and ‘healthy regimen’ make
reference to ‘healthy person’, it is not at first obvious why ‘healthy person,’ can not make reference to ‘healthy complexion’ or
‘healthy regimen’ to create a symmetrical relationship. It is here where Aristotle’s focus on priority of relationship supplies the reason
for the asymmetricality, since the complexion and regimen exist only by reference to the individual (Socrates) to whose healthy state
the associated uses necessarily make reference. Yet the references are not reducible because they state more than the specific
statement to which they refer. As between the associated instances, see also LARKIN, supra note 179, at 69 (“In other words, no
specific relation or set of specific relations between two things is necessary for one to be named by reference to the other.”) (citing
Eud. Eth. VII: ch. 2; 1236a7-33).
182. See SHIELDS, supra notes 140, at 105-108 (discussing previous example (‘healthy regimen’, ‘healthy complexion’ and
‘healthy salary’)). To include the last example (healthy salary) within the core (healthy regimen, healthy complexion – both indicative
of and contributory to Socrates’ health – state of well-being) would be to allow a trivial, or profligate (Shields’ term), relationship
to suffice for the association. However, as a non-core homonym, it is still understandable. Aristotle’s methodology for establishing
core-dependence must be determinate yet open-ended. If it is not determinate, then we lack the positive methodology that does more
than simply establish non-univocity; if it is not open-ended, it lacks future utility.
 

 183. See id. at 33 (defining functional determination (FD) for Aristotle) “FD: An individual x will belong to a kind or class F

iff [if and only if]: x can perform the function of that kind or class.”). FD specifies both necessary and sufficient conditions for
membership in kind F that x have the function definitive of being F. “This reflects Aristotle’s contentions that ‘if something can
perform its function, it truly is <an F>’ (the sufficiency claim) and that ‘when something cannot <perform that function>: it is
homonymously <F>’ (the necessity claim).” Id.
See infra notes 205 and 209 and accompanying text (discussing genus of tax-deferred reorganizations as ‘non-sales’, functioning
to permit exceptions to realization and recognition requirement for business purpose) so that various forms permitted all serve
essentially the same function). If however the formal reorganization (i.e, Mrs. Gregory’s transaction) does not serve the functional
requirements of the genus (‘not-sale’), then we would have a spurious example, similar to the ceremonial axe, to use one of Aristotle’s
examples.
184. See De Anima 412b10-15.
185. See POLITICS 1253b19-25; Meteor. 390a10-15 and SHIELDS, supra note 140, at 31-35.
186. See SHIELDS, supra note 140, at 35 and 154-75. Aristotle’s development of the ideas of philosophical importance in the
Metaphysics is beyond the scope of this Article.
187. See SHIELDS, supra note 140, at 31-35 (especially 35).
188. See supra notes 149-51 and accompanying text (describing ‘healthy regimen’, ‘healthy complexion’).
189. Aristotle identifies four causes (aitia): (1) material (such as the bronze of a statue; (2) formal (the form or characteristics
of the generic type); (3) efficient (agent); and (4) final (aim). See PHYSICS II, iii. These may best be explained by example. Of a
house, the bricks and mortar are its material cause; its formal cause the design or arrangement of its constituent parts; its efficient
cause the builder; and its final cause the purpose for which it is built – to provide a structure for habitation. See Monique Canto-
Sperber, Aristotle, IN PHILOSOPHIE GRECQUE 337 (M. Canto-Sperber ed.) (1997)(Aristotle’s causal analysis guided by the different
senses in which we can answer ‘why’)(“la question du fait, la question de la raison ou de la cause, la question de l’existence et la
question de l’essence.”). Id. at 338. See also IRWIN, supra note 160, at 105 (discussing four causal structure and arguing that all
material, formal and final causation are types of efficient causation).
For an interesting discussion of the ‘formal’ relationship of the law to its content, see Ernest J. Weinrib, supra note 26, and The
Jurisprudence of Legal Formalism, 16 HARV. J.L. & PUB. POLY’ 583 (1993).
190. See SHIELDS, supra note 140, at 111-22 (discussing various examples of four causal relationships). It is not necessary that
homonyms exhibit only one of the four causal relationships or that there be a predetermined, uni-directional relationship between
the asymmetrical examples and the core around which they are associated. For example, Socrates’ health and healthy regimen stand
in an efficient causal relationship. It is not necessary that the regimen alone is sufficient to produce Socrates’ healthy. There is a
similar causal relationship between the healthy complexion that is reflective of Socrates’ health and healthy regimen. Id. at 113-14.
See id. at 110 (crediting Cardinal Cajetan with recognizing, albeit in a somewhat inchoate form, the four-causal relationship between
associated homonyms and their core).
191. Id. at 123 (discussing Categories xii where Aristotle identifies different types of priority, including (1) temporal; (2)
“priority as regards implications of existence”; (3) priority in order (e.g., in presentation); and (4) priority in value (family over
friends)). Aristotle adds a fifth type of priority in Categories xiv, ‘reasonably prior by nature’ to describe the relationship whereby
“two things which reciprocate as regards implication of existence, one may nevertheless ‘in some way be the cause of the existence
of the other’). Id. (discussing Cat. 14b12-13). For example, Socrates’ being white and the true proposition that Socrates is white
reciprocate: Socrates being white is true because Socrates is white; the truth of the proposition (‘Socrates is white’) is not responsible
for Socrates’ being white.
192. The CAMBRIDGE DICTIONARY OF PHILOSOPHY 710 (2d ed. 1999) describes Platonic Forms thus: “The unchanged and
incorporeal Form is the sort of object that is presupposed by Socratic inquiry; what every pious act has in common with every other
is that it bears a certain relationship – called “participation” – to one and the same thing, the Form of Piety. In this sense, what makes
a pious act pious and a pair of equal sticks equal are the Forms Piety and Equality.” See also Aristotle’s description of the Forms
in Eudemian Ethics, I.8 1217b2-16: “For the Good is most truly defined in terms of the Form of the Good (since all other goods are
good <only> in terms of participating in it or resembling it), and it is the first of the goods: for if that in which things participate were
to be destroyed, the things participating in the Form would also be destroyed, viz., the things which derive their definition from their
participation in the Form. Now, this is the relation existing between the first and the latter <members of a series>. Hence the Good
itself is the Form of the Good, for it exists separate from the things which participate in it just as the other Forms do.” (Ostwald
trans.).
193. Much of Aristotle’s work can be seen as a response to Plato and the Platonic Forms and we can find specific statements
to that effect. See NICOMACHEAN ETHICS 1096a11-13(“But perhaps we had better examine the universal good and face the problem
of its meaning, although such an inquiry is repugnant, since those who have introduced the doctrine of Forms are dear to us.)(trans.
M. Ostwald, 1962). Despite Aristotle’s regard for his mentor (Plato), he continues in his search because a philosopher values truth
more highly than friends ( amicus Plato, sed magis amica veritas). See also SHIELDS, supra note 140, at 20-21 (noting much of
Categories as anti-Platonic and explaining Aristotle’s unexplained introduction of homonymy as consistent with Aristotle’s goal of
introducing both “inter-and intra-categorial non-univocity”).
194. The importance of Aristotle’s achievement for philosophy is significant. See Owens, supra note 140 at 189 (“The concept of a word as having many senses pointing in many ways to a central sense is a major philosophical achievement; but its scope and
power are to be understood by use and not by definition.”).
See SHIELDS, supra note 140, at 67-72 (discussing Aristotle’s criteria for ‘scientific’ investigation). Because Aristotle maintains
that a ‘science’ requires a unified subject matter (i.e., a class of entities realizing a “single, unified universal), and there is a single
unified subject only if it an univocal account, it would seem that denying univocity to ‘goodness’, ‘justice’ etc. would preclude the
possibility of any scientific inquiry. The development of comprehensive, or core-dependent, homonymy, rather than making scientific
inquiry impossible, provides the very mechanism for scientific study unhampered by unwarranted assumptions of univocity.
195. See SHIELDS, supra note 140, at 29 (discussing Aristotle’s description of discrete homonyms with terms like ‘obvious’ or
‘silly’ and noting that discrete homonyms are mistaken only by the dim-witted).
196. Aristotle discusses at least twelve indicators of non-univocity and homonymy in Topics i.15. See SHIELDS, supra note 140,
at 53 (noting that any one of the tests is sufficient for establishing homonymy). The indicators include: (i) Tests for forms of
contrariety (for example, ‘sharp’ applied to music is ‘flat’; applied to ‘intelligent’ is ‘dull”)(106a9-21); (ii) Tests for the existence
of contraries (love (signifying emotion) and hate; physical love lacks contrary) (106a24-35); (iii) test for intermediates (black and
white issues contrast with colors black and white as opposites with host of intermediates)(106a35-b12); (iv) difference in
contradictory opposites (for example, failing to perceive contrasted on the one hand by sensing and distinguished on the other from
grasping the point)(106b14-20); (v) test based on inflections and paronomy (judicious as applied to judge or to billiard player is
homonymous)(106b29-107a1); (vi) signification (‘clear’ applied to sheets of glass signifies transparency while ‘clear’ applied to
consciences signifies ‘free of guilt’)(107a3-18); (vii) sameness of genus (cranes can refer to different genera, specifying both animals
and machines)(107a3-18); (viii) test based on definition and abstraction (bright for girl signifies ‘intelligent’ while bright for light
signifies ‘shining’, if abstracted indicates that ‘bright’ is not univocal)(107a36-b5); (ix) comparability (for example, while knives and
professors are both sharp, they are not comparable since one can not be sharper than the other)(107b13-18); (x) a test based on the
differentiae of genera which are not subordinate or superordinate to one another (‘flat’ differentiates one kind of sound from another
and also one kind of terrain from one another; since sounds and terrains are not genera related by subordination or superordination,
‘flat’ is non-univocal) (107b19-26); (xi) test based on distinctness of differentia (flowing symphonies vs flowing rivers do not describe
same differentia)(107b26-31); (xii) test to see if one term is used as differentia on the one hand and as a species on the other
demonstrates non-univocity since species is never also a differentia)(107b32-6).
197. On the importance of ‘signification’ (signifying that for Aristotle homonyms are semantic phenomenon and metaphysical
principle), see SHIELDS, supra note 140, at 54-56.
198. As Shields explains, if ‘F’ in ‘a is F’ and ‘b is F’ signify different things, than ‘F-ness’ is homonymous. Id. at 54-55. That
difference in signification is sufficient to establish homonymy for Aristotle is clear. See ARISTOTLE, TOPICS 107a3-12 (“It is
necessary also to consider the types of predicates <signified> by the name, <to determine> whether it is the same in all cases. For
if it is not the same, it is clear that what is said is homonymous.).
199. See SHIELDS, supra note 140, at 55 who describes it thus: “When an F has lost what is definitive of being an F, it is no
longer an F as such.” The significance of both (discrete and associated) types of homonymy is critical homonymy for
‘reorganizations’. See infra note 201-07 and accompanying text (explaining that reorganization as defined in statute clearly
homonymous and refers to genus of ‘non-sale’). Reorganizations that meet differentia of one of the forms without also making
reference to non-sale characteristics of genus (including business purpose and continuity of interest) are homonymously
reorganizations but spurious ones).
200. Revenue Act of 1928, ch. 852, 45 Stat. 791, section 112(i). See supra notes 64-84 and accompanying text (discussing the
statutory development and its interpretation by the courts in Gregory).
201. See supra note 198 (quoting Aristotle, Topics 107a3-12 (“It is necessary also to consider the types of predicates <signified>
by the name, <to determine> whether it is the same in all cases. For if it is not the same, it is clear that what is said is homonymous.)).
202. See supra notes 148 (identifying discrete homonyms (a and b) as homonymously F if and only if their names are common
but their accounts have nothing in common) and 154 (defining associated homonyms (a and b) as homonymously F if and only if their
name is common and their definitions do not completely overlap).
203. See supra notes 156 (Aristotle asserting that one who defines well must include both genus and differentia) and 168
(discussing Aristotle’s recognition of levels of definition corresponding to the level of inquiry).
204. See supra notes 159 (quoting Cleary on priority of genus in definition) and 166 (discussing meaning of ‘essence’ for
Aristotle).
205. See supra note 157.
206. See supra note 178 (describing core-dependent homonymy as where a and b are homonymously F if there is some c such
that the accounts of F-ness in ‘a is F’ and ‘b is F’ necessarily make reference to the account of F-ness in ‘c is F’ in an asymmetrical
way).
207. See supra notes 150 (describing nonreducibility of statements) and 178 (defining core-dependent homonymy, in addition
to asymmetrical relations found in our examples regarding Socrates’ health as “a and b are homonymously F in a core-dependent
way iff [if and only if]: (i) a is F; (ii) b is F; and (iii b) there is some c such that the accounts of F-ness in ‘a is F” and ‘b is F’
necessarily make reference to the account of F-ness in ‘c is F’ in an asymmetrical way”).
208. The particular form that the transaction takes could be termed either its material, formal or efficient cause. Identification
of the exact causal relationship is not essential to the argument here as it applies to cases of business reorganizations. Irwin argues
effectively for the ‘efficient’ causal relationship subsuming the other causes, it could be argued that an efficient causal relationship
is the most appropriate designation. See supra note 189 (discussing the four causes and Irwin’s assessment).
209. See supra note 183 (describing Aristotelian “functional determination” as where x will belong to a kind or class of F if and
only if x can perform the function of that class).
210. See supra note 199 (describing when an F has lost what is definitive of being an F, it is no longer an F as such, only
homonymously so).
211. METAPHYSICS 1005b35-1006a6 (trans. Hugh Tredennick). See also CATEGORIES 77a22-25 (“The law that either the
assertion or the negation of every predicate must be true is used in demonstration by reductio ad impossibile. It is not always applied
universally, but only so far as is sufficient, i.e., in reference to the genus. By “in reference to the genus,” I mean, e.g., as regards the
genus which is the subject of the demonstration in question[.]”) Aristotle illustrates by the example of a man who is truly called an
animal, even if ‘not-man’, i.e., a dog, is also called an animal because it will be true to call Callias an animal, even if it is true to call
not-Callias (a dog) an animal. But it will not be true to call Callias a not-animal.
 

 212. See supra note 74 (discussing legislative history).

213. ARISTOTLE,POLITICS, III, xi. 3-4, 1287a 20-29 (1932)(Rackham trans.)(emphasis added). Aristotle continues: “He therefore

that recommends that the law shall govern seems to recommend that God and reason alone shall govern, but he that would have man govern adds a wild animal also.” Noteworthy is the context in which Aristotle makes this statement. Aristotle is contrasting monarchy where law is dispensed by one individual with absolute power with a more mixd, democratic government that could justifiably be described as government by the rule of law, not man. See generally id. (describing forms of government and advocating mixed government, not monarchy or democracy because in their absolute forms they degenerate into tyranny and ochlocracy).

The expression “according to their best judgment” is formulaic, part of the oath taken by the dikasts at Athens. SeeDOUGLAS M. MACDOWELL,THE LAW IN CLASSICAL ATHENS 44 (1978)(noting Demosthenes (4th century orator) as source for dikast’s [juror’s] oath ‘I will judge according to the laws and decrees of Athens, and matters about which there are no laws I will decide by the justest opinion’ )(citing Demosthenes, 20.118, 23.96, 39.40, 57.63; Aischines 3.6.). MacDowell makes the important distinction here that ‘no law’ is most sensibly interpreted to mean not an absence of any law, but the absence of a specific statutory provision applicable to the case at hand. He uses an example from Plato’s Euthyphron (homicide law proposed against Euthyphron’s father who left a man in a ditch absent law classifying specific activity as homicide). Id. at 60.

214. See Guiseppi v. Walling, 144 F2d. 603, 623 (“Laws neither execute nor interpret themselves. Men must discharge those functions.”).

215. SCALIA, INTERPRETATION, supra note 11. Thus this methodology should allow use to better accomplish what in fact Justice Scalia claims for his goal in interpreting statutes. Indeed this is Frank’s conclusion. “The phrases “separation of powers” and “a government of laws, and not of men,” if properly construed, embody principles of the first importance in a democracy; but if so construed as seriously to cripple effective government, they will lead to democracy’s downfall, for, as the Federalist tells us, an ineffective government paves the way to anarchy and thence to depotism [sic]. Laws neither execute nor interpret themselves. Men must discharge those functions. Above all what we need is the selection of well-trained, honest, able men, conscientiously obeying the laws, and imbued with the spirit of democracy, to serve as administrators and on the bench.” Guiseppi v. Walling, 144 F2d at 623 (citations omitted).

 

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