Conservative & Libertarian Legal Scholarship: Legislation

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XX. Legislation

Bruno Leoni, Freedom and the Law (3d ed. 1991). A powerful critique of the tendency in modern society to subject more and more of life to "inflated legislation" designed to benefit a particular interest group, rather than relying on "the spontaneous application of nonlegislated rules of behavior" that benefit the public as a whole. Written by an Italian scholar and first published in 1961-six years before Leoni's untimely death-the book deserves a larger American audience.

U.S. Department of Justice, Using and Misusing Legislative History: A Reevaluation of the Status of Legislative History in Statutory Interpretation (1989). An exceptional study canvassing recent thought on legislative history. For a more recent survey which supports the adoption of the "plain meaning rule," see Gregory E. Maggs, The Secret Decline of Legislative History: Has Someone Heard a Voice Crying in the Wilderness?, 1994 Pub. Interest L. Rev. 57. Professor Maggs chronicles the numerous opinions of Justice Scalia, which provide a blueprint for conventional plain-meaning analysis.

William Eskridge, Dynamic Statutory Interpretation (1994). Professor Eskridge, one of the most prolific authors in the field, has developed an interpretive theory he calls "dynamic statutory interpretation." Eskridge argues that courts can and should take into account changes in society that arise after the passage of a statute in interpreting that statute. Thus, for example, Eskridge has argued that it is legitimate for a court to consider post-1964 developments in race relations when interpreting the Civil Rights Act of 1964. One reviewer has raised the interesting and somewhat amusing question of how the courts-on Eskridge's view-should treat the results of the 1994 Congressional elections in interpreting statutes passed by earlier Democratic Congresses. John Copeland Nagle, Newt Gingrich, Dynamic Statutory Interpreter, 143 U. Pa. L. Rev. 2209 (1995).

Steven D. Smith, Law without Mind, 88 Mich. L. Rev. 104 (1989). In this excellent, short essay, Professor Smith critiques "present-oriented interpretation"-that is, interpreting statutes not as originally understood, but "in a way that will render law ‘the best it can be' in light of present needs and values." He concludes, "Present-oriented interpretation not only cuts the connection between text and political authority; it severs the link between text and mind."

Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527 (1947). Henry Friendly, Mr. Justice Frankfurter and the Reading of Statutes, in Benchmarks (1967). These are among the leading defenses of using legislative history in statutory construction.

Robert D. Tollison, Public Choice and Legislation, 74 Va. L. Rev. 339 (1988). A survey of the literature propounding the "economic theory of legislation." Part of a symposium issue on public choice theory.

Edward L. Rubin, Beyond Public Choice: Comprehensive Rationality in the Writing and Reading of Statutes, 66 N.Y.U. L. Rev. 1 (1991). Addresses the limitations of public choice theory in statutory interpretation.

Tom Ginsburg, The Uses of Empiricism and Theory in Legal Scholarship, 2002 U. Ill. L. Rev. 1139 (2002). This article considers the role of public choice in legal scholarship along with some of the criticisms of public choice. It begins with a review of the main propositions of public choice and summarizes the empirical literature testing them. The evidence shows that the criticism that public choice lacked empirical support was partly correct, and that the negative implications drawn from public choice theory have not been supported by empirical testing. Rather than abandon the theory, scholars refined their propositions to reflect experimental results and have more explanatory power. These modifications of public choice propositions have very different implications for the prospect of democratic government than the traditional theory. After discussing some of these implications, the article concludes with a discussion of the roles of theory and empiricism in legal scholarship.

Philip P. Frickey, From the Big Sleep to the Big Heat: The Revival of Theory in Statutory Interpretation, 77 Minn. L. Rev. 241 (1992). A very readable discussion of the recent intellectual ferment in legislative theory which acknowledges that the courts have largely ignored it all. Inasmuch as the fancy new theories of interpretation tend to be nontextual, most readers of this volume will applaud the courts' lack of interest in these "theoretical" developments.

Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. Cal. L. Rev. 845 (1992). Justice Breyer's defense of the use of legislative history by judges.

Frank H. Easterbrook, What Does Legislative History Tell Us?, 66 Chi-Kent L. Rev. 441 (1990); and Frank H. Easterbrook, Legal Interpretation and the Power of the Judiciary, 7 Harv. J. L. Pub. Pol'y 87 (1984). In these articles, Judge Easterbrook makes three important points: first, the plain-meaning rule begs the central question of meaning; second, legislative history cannot be escaped insofar as it shows the extent of agreement; and third, legislative history should not be used to fill textual gaps or to shift the level of a statute's generality.

Frank H. Easterbrook, Statutes' Domains, 50 U. Chi. L. Rev. 533 (1983). Argues that courts should read statutes much as they read contracts, and "give" an interest group seeking to expand the domain of a statute that confers a benefit on its members "no more and no less" than they bargained for with the legislature.

Jonathan Macey, Promoting Public-Regarding Legislation through Statutory Interpretation: An Interest Group Model, 86 Colum. L. Rev. 223 (1986). Argues for courts to place increased emphasis on those portions of a statute that sound as if the public's interest-rather than the interest of some narrow private group-will be advanced by the statute.

Jonathan R. Macey & Geoffrey P. Miller, The Canons of Statutory Construction and Judicial Preferences, 45 Vand. L. Rev. 647 (1992). Professors Macey and Miller argue that Karl Llewellyn's famous critique of the canons of construction is largely irrelevant to an understanding of judicial behavior. They offer three reasons why judges continue to invoke the canons: they permit judges to specialize in certain areas of law, they allow judges to reduce the expected costs of mistaken decisions, and they provide judges who have no particular view on an issue a tool for interpretation.

Frank Easterbrook, Judicial Discretion in Statutory Interpretation, 57 Okla. L. Rev. 1 (2004). Easterbrook addresses the question of what is the right level of generality at which a federal judge should read a statute? Easterbrook argues that the identity of the interpreter affects the means of interpretation, and thus the meaning, of a statute. This explains why textualist or plain meaning interpretations are not inherently conservative methods.

The Theory and Practice of Legislation: Essays in Legisprudence (Wintgens, Luc, ed.,  2005). This work provides a rational framework for legislation. The unifying premise behind the essays is that, although legislation and regulation are the result of a political process, legislation and regulation can be the object of theoretical study. The volume focuses on problems that are common to most European legal systems and the approach involves applying to legislative problems the tools of legal theory - hence ‘legisprudence'. Whereas traditional legal theory deals predominantly with the application of law by the judge, legisprudence enlarges the field of study so as to include the creation of law by the legislator.

Adrian Vermuele, Interpretive Choice, 75 N.Y.U. L. Rev. 74 (2000). In this Article, Professor Vermeule argues that scholarship to date has overlooked the central dilemma of interpretive choice: The empirical assessments needed to translate theories of statutes' authority into operative doctrine frequently exceed the judiciary's capacity. Judges faced with problems of interpretive choice must therefore apply standard decisionmaking strategies of choice under irreducible empirical uncertainty, strategies derived from decision theory, rhetoric, and other disciplines. Vermuele concludes that judges should exclude legislative history, should pick between canons rather than debating their relative merits, and should observe an absolute rule of statutory stare decisis. In short, judges should embrace a formalist approach to statutory interpretation, one that uses a minimalist set of cheap and inflexible interpretive sources.

John Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387 (2003). Part I of this article examines the traditional theory behind the absurdity doctrine and explores the conceptual difficulties with justifying that doctrine as a means of implementing legislative "intent." Part II discusses structural constitutional considerations, original and modern, that counsel against continued adherence to the absurdity doctrine in its conventional form. Finally, Part III suggests that a contextual interpretation of statutory texts and a principled exercise of judicial review are more appropriate means to handle many of the problems otherwise subject to the absurdity doctrine.

Nicholas Rosenkranz, Federal Rules of Statutory Interpretation,  115 Harv. L. Rev. 2085 (2002). This article concludes that Congress has constitutional power to codify some tools of statutory interpretation. Congress has used this power in the past, but only sporadically and unselfconsciously, at the periphery of the United States Code. Used wisely, congressional power to legislate interpretive strategies may improve legislative-judicial communication and thus bring our legal system closer to its democratic ideal. Rosenkranz tentatively recommends a few illustrative interpretive statutes, though these specific prescriptions are secondary to the more general point: some interpretive statutes would be constitutional and wise. He also argues that the ideal implementation of an interpretive regime would be as a set of federal rules: the Federal Rules of Statutory Interpretation.

John Manning, Textualism and Legislative Intent, 91 Va. L. Rev. 419 (2005). Manning outlines the distinctive conception of legislative intent that follows from textualist judges' bedrock assumptions about the legislative process. Part I lays the groundwork by examining the modern textualists' underlying skepticism of intent. Part II examines the distinction between rules and standards relied upon by other professors in their critical writings about the textual method. Although textualists may in practice have a predilection for rules, Manning suggests that the key to understanding textualism is not such a preference; rather, textualism rests on a straightforward conviction that faithful agents must treat rules as rules and standards as standards.

Internet resources: The most comprehensive site on Federal legislation is the "Thomas" (as in Jefferson) site maintained by the Library of Congress, Included in the Thomas site are fairly lengthy essays by the House and Senate Parliamentarians on "how a bill becomes a law." For an on-line "how to" guide to researching Federal legislative histories, see

For information on state legislatures, visit the address http://www.legislature.state.[insert state's 2-letter abbreviation here].us

Last updated October 2010

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