85 Mich. L. Rev. 672 (1986-1987)
Statutory Obsolescence and the Judicial Process: The Revisionist Role of the Courts in Federal Banking Regulation

handle is hein.journals/mlr85 and id is 694 raw text is: STATUTORY OBSOLESCENCE AND THE
Donald C. Langevoort*
What do -      or should -     courts do when asked to interpret an
apparently obsolete statute? This question is an important one half
a century or more after the enactment of much of the fundamental
federal legislation in such fields of economic regulation as labor, com-
munications, antitrust, securities, and - the subject of this study -
banking. For a variety of reasons, including political inertia and spe-
cial interest pressure, many of these statutes remain substantially un-
changed even though the assumptions about marketplace structure
and conditions that formed the basis for the legislation have long since
ceased to hold true.
The dominant jurisprudential tradition states that the courts are
the faithful agents of the enacting legislature, and that their role is
therefore limited to determining and carrying out the legislative intent
of that body. If so, statutory obsolescence is irrelevant, a matter of
concern for the legislature but not the courts.I At the same time, there
has been vigorous dissent from this tradition. It finds its most notable
expression in Guido Calabresi's A Common Law for the Age of Stat-
utes,2 which urges judges to assume the power both to update and (in
* Associate Professor of Law, Vanderbilt University. B.A. 1973, University of Virginia;
J.D. 1976, Harvard Law School. - Ed.
The author gratefully acknowledges the helpful comments and suggestions of Professors John
Coffee, Jonathan Macey, and Joel Seligman.
1. An important contemporary proponent of this view is Judge Richard Posner. See Posner,
Economics, Politics and the Reading of Statutes and the Constitution, 49 U. Cm. L. REv. 263
(1982) [hereinafter Posner, Reading of Statutes]; Posner, Statutory Interpretation - in the Class-
room and in the Courtroom, 50 U. CHI. L. Rav. 800 (1983) [hereinafter Posner, Statutory Inter-
pretation]. Posner's writing grows out of an earlier work, Landes & Posner, The Independent
Judiciary in an Interest-Group Perspective, 18 J.L. & ECON. 875 (1975). Judge Frank Easter-
brook is also a proponent of fidelity, with the caution that when actual intent is difficult to
discern, there should be a presumption of statutory inapplicability. See Easterbrook, Statutes'
Domains, 50 U. CHI. L. REV. 533 (1983); see also Easterbrook, Foreword: The Court and the
Economic System, 98 HARV. L. REV. 4 (1984) [hereinafter Easterbrook, The Court and the Eco-
nomic System]. For an example ofjudicial expression of fidelity, see American Bankers Assn. v.
Connell, 686 F.2d 953 (D.C. Cir. 1979), where the court took the unusual step of delaying the
effect of its ruling to allow Congress to act.

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