Statutory Default Rules: How to Interpret Unclear Legislation

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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.

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Editorial Reviews

Adrian Vermeule
Statutory Default Rules is an important contribution to the debate over legal interpretation. It rehabilitates the imaginative-reconstruction approach of Learned Hand and gives it new intellectual foundations, including a sophisticated appreciation of relevant social science.
Mariano-Florentino Cuellar
An important contribution to the field, cogently written and well-organized, it will spark lively discussion in a domain of legal scholarship that could certainly use it.
Jonathan Macey
The book is a masterpiece which I will be using in my own work (hopefully) for decades to come!
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Product Details

  • ISBN-13: 9780674024601
  • Publisher: Harvard University Press
  • Publication date: 2/15/2008
  • Edition description: New Edition
  • Pages: 400
  • Sales rank: 1,419,643
  • Product dimensions: 6.38 (w) x 9.48 (h) x 1.10 (d)

Meet the Author

Einer Elhauge is Professor of Law at Harvard Law School.
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Table of Contents

1. Introduction and Overview

2. Why Courts Should Maximize Enactable Preferences when Statutes Are Unclear

Part I. Current Preferences Default Rules

3. The General Theory for Current Preferences Default Rules

4. Inferring Current Preferences from Recent Legislative Action

5. Inferring Current Preferences from Agency Action

Part II. Enactor Preferences Default Rules

6. From Legislative Intent to Probabilistic Estimates of Enactable Preferences

7. Moderation, Changed or Uncontemplated Circumstances, and a Theory of Meaning

Part III. Preference-Eliciting Default Rules

8. Eliciting Legislative Preferences

9. Canons Favoring the Politically Powerless

10. Linguistic Canons of Statutory Construction

11. Interpretations that May Create International Conflict

12. Explaining Seeming Inconsistencies in Statutory Stare Decisis

Part IV. Supplemental Default Rules

13. Tracking the Preferences of Political Subunits

14. Tracking High Court Preferences

Part V. Objections

15. The Fit with Prior Political Science Models and Empirical Data

16. The Critiques of Politics by Interest Group Theory and Collective Choice Theory

17. Alternative Default Rules that Protect Reliance or Avoid Change or Effect

18. Rebutting Operational and Jurisprudential Objections



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