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

80 Geo. L.J. 705 (1991-1992)
Positive Canons: The Role of Legislative Bargains in Statutory Interpretation

handle is hein.journals/glj80 and id is 729 raw text is: Positive Canons: The Role of Legislative Bargains in Statutory Interpretation MCNOLLGAST* The expanded scope of government in this century has inevitably forced the judiciary to devote ever more effort to the problem of determining legisla- tive intent. When courts attempt to apply statutory language to real world circumstances, the central question that arises is: What standards should govern how courts interpret legislation? Political theorists and legal scholars have proposed various standards of judicial review, the most important of which have in common an emphasis on uncovering the original intent of the parties to the legislation.I The search for original intent has led courts to pursue progressively deeper readings of legislation, usually involving use of the myriad legislative documents such as floor debates, conference com- mittee reports, standing committee reports, and even committee hearing testimony.2 The purpose of this paper is to use positive political theory to develop a deeper insight into the concept of the original intent of legislation. Our start- ing point is the analogy between legislation and contracts.3 In the case of legislation, parties to a statutory contract are the members of the legislative coalition that enacted the statute, and the contract is an agreement over pub- lic policy. In the tradition of the economic analysis of contract law, we argue that the methods employed by the courts to interpret legislation should be * The author is professor of political science at the University of California, San Diego; Morris M. Doyle Centennial Professor of Public Policy at Stanford University; and Senior Fellow at the Hoover Institution, Stanford University. Helpful conversations with Robert Cooter, William Eskridge, John Ferejohn, Mitchell Polinsky, and Daniel Rodriguez are gratefully acknowledged. The author also thanks Gabriella Montinola for her helpful research assistance. 1. See WILLIAM N. ESKRIDGE, JR. & PHILIP P. FRICKEY, CASES AND MATERIALS ON LEGISLA- TION: STATUTES AND THE CREATION OF PUBLIC POLICY 569-828 (1988). 2. Leading critics of the deep reading approach argue for a narrow textualist reading of legislation. Another critical school uses a more passive approach, deferring to agencies in their interpretations. See generally Frank H. Easterbrook, The Role of Original Intent in Statutory Con- struction, 11 HARV. J.L. & PUB. POL'Y 59 (1988); Frank H. Easterbrook, Statutes' Domains, 50 UNIV. CHI. L. REV. 533 (1983); William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REv. 621 (1990). 3. This observation has been pursued, albeit along a different path, in a seminal paper by Daniel A. Farber. See generally Daniel A. Farber, Legislative Deals and Statutory Bequests 75 MINN. L. REV. 667 (1991). We adopt Farber's argument that the spirit of interpreting statutes, like contracts and wills, should be to remain faithful to the drafters' intent. See also DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE: A CRITICAL INTRODUCTION 88-115 (1990); Gil- lian Hadfield, Incomplete Contracts and Statutes: Comment on Shepsle, Congress Is a They Not an 'It,' 12 INT'L REV. L. & ECON. (forthcoming June 1992).

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