Statutory Default Rules : : How to Interpret Unclear Legislation / / Einer Elhauge.

• VerfasserIn: Elhauge, Einer,
• Place / Publishing House: Cambridge, MA : : Harvard University Press, , [2009]; ©2008
• Year of Publication: 2009
• Language: English
• Physical Description: 1 online resource (400 p.)

Most new law is statutory law; that is, law enacted by legislators. An important question, therefore, is how should this law be interpreted by courts and agencies, especially when the text of a statute is not entirely clear. There is a great deal of scholarly literature on the rules and legal materials courts should use in interpreting statutes. This book takes a fresh approach by focusing instead on what judges should do once the legal materials fail to resolve the interpretive question. It challenges the common assumption that in such cases judges should exercise interstitial lawmaking power. Instead, it argues that--wherever one believes the interpretive inquiry has failed to resolve the statutory meaning--judges can and should use statutory default rules that are designed to maximize the satisfaction of enactable political preferences; that is, the political preferences of the polity that are shared among enough elected officials that they could and would be enacted into law if the issue were on the legislative agenda. These default rules explain many recent high-profile cases, including the Guantánamo detainees case, the sentencing guidelines case, the decision denying the FDA authority to regulate cigarettes, and the case that refused to allow the attorney general to criminalize drugs used in physician-assisted suicide.

Table of Contents

Frontmatter -- Contents -- Acknowledgments -- CHAPTER 1 Introduction and Overview -- CHAPTER 2 Why Courts Should Maximize Enactable Preferences When Statutes Are Unclear -- PART I Current Preferences Default Rules -- CHAPTER 3 The General Theory for Current Preferences Default Rules -- CHAPTER 4 Inferring Current Preferences from Recent Legislative Action -- CHAPTER 5 Inferring Current Preferences from Agency Action -- PART II Enactor Preferences Default Rules -- CHAPTER 6 From Legislative Intent to Probabilistic Estimates of Enactable Preferences -- CHAPTER 7 Moderation, Unforseen Circumstances, and a Theory of Meaning -- PART III Preference-Eliciting Default Rules -- CHAPTER 8 Eliciting Legislative Preferences -- CHAPTER 9 Canons Favoring the Politically Powerless -- CHAPTER 10 Linguistic Canons of Statutory Construction -- CHAPTER 11 Interpretations That May Create International Conflict -- CHAPTER 12 Explaining Seeming Inconsistencies in Statutory Stare Decisis -- PART IV Supplemental Default Rules -- CHAPTER 13 Tracking the Preferences of Political Subunits -- CHAPTER 14 Tracking High Court Preferences -- PART V Objections -- CHAPTER 15 The Fit with Prior Political Science Models and Empirical Data -- CHAPTER 16 Interest Group and Collective Choice Theory -- CHAPTER 17 Protecting Reliance or Avoiding Change or Effect -- CHAPTER 18 Rebutting Operational and Jurisprudential Objections -- Notes -- Index