About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

78 Geo. L. J. 281 (1989-1990)
Statutory Interpretation and Legislative Supremacy

handle is hein.journals/glj78 and id is 307 raw text is: Statutory Interpretation and Legislative Supremacy DANIEL A. FARBER* The general contemporary American view of statutory interpretation is that there is not a great deal to say about the subject. As a result, nothing else as important in the law receives so little attention., In the six years since that statement was written, there has been something of a renaissance of scholarship about statutory interpretation.2 Nevertheless, our understanding of statutory interpretation remains quite limited. The tre- mendous variety of statutes, as well as the broad range of contexts in which they must be interpreted, suggests that a unified theory of statutory interpre- tation may be unattainable. Still, theory can at least illuminate some of the recurring problems of statutory interpretation. This article is an attempt to clarify one particular interpretation question: to what extent are judges constrained by statutory language and legislative intent? It is a commonplace that, apart from constitutional issues, judges are subordinate to legislatures in the making of public policy.3 If this * Henry J. Fletcher Professor of Law, University of Minnesota. Doug Baird, Carol Chomsky, Bill Eskridge, Phil Frickey, Walter Gellhorn, Hank Greely, Roger Park, Richard Posner, and Fred Schauer contributed valuable comments on earlier drafts, as did participants in faculty workshops at Columbia University and the University of Minnesota. 1. Weisberg, The Calabresian Judicial Artist: Statutes and the New Legal Process, 35 STAN. L. REV. 213, 213 (1983); see also Froomkin, Climbing the Most Dangerous Branch: Legisprudence and the New Legal Process (Book Review), 66 TEX. L. REv. 1071, 1071 (1988) (reviewing W. ESKRIDGE & P. FRICKEY, CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY (1988)) (Legislatures, and the statutes they produce, are the poor cousins of legal education.). 2. Much of the new learning is collected in W. ESKRIDGE & P. FRICKEY, CASES AND MATER- IALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY ch. 7 (1988). For a thoughtful survey of the scholarly literature, see Eskridge & Frickey, Legislation Scholarship and Pedagogy in the Post-Legal Process Era, 48 U. Prrr. L. REv. 691 (1987). 3. See, e.g., California v. Sierra Club, 451 U.S. 287, 297-98 (1981) (refusing to imply a private cause of action in the face of contrary statutory language and legislative history); S. BURTON, AN INTRODUCTION TO LAW AND LEGAL REASONING 41-42 (1985) (judiciary subordinate to legisla- ture in statutory application because judges are less accountable to the electorate); R. POSNER, LAW AND LITERATURE: A MISUNDERSTOOD RELATION 240, 252-53 (1988) (subordinate judiciary must ferret out the intent of the legislature in statutory interpretation); Aleinikoff, Updating Statutory Interpretation, 87 MICH. L. REV. 20, 22 (1988) (describing as archaeological statutory interpreta- tion seeks to fulfill the intent of the drafting legislature); Langevoort, Statutory Obsolescence and the Judicial Process: The Revisionist Role of the Courts in Banking Regulation, 85 MICH. L. REV. 672, 672 n.1 (1987) (citing both Easterbrook and Posner as proponents of the dominant jurisprudential tradition that statutory obsolescence is a matter of concern for the legislature only, not their faithful servants, the courts); Maltz, Statutory Interpretation and Legislative Power: The Case for a Modified Intentionalist Approach, 63 TUL. L. REv. 1, 9 (1988) (doctrine of legislative supremacy rests on

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most