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50 Duke L.J. 1215 (2000-2001)
Super-Statutes

handle is hein.journals/duklr50 and id is 1229 raw text is: SUPER-STATUTES WILLIAM N. ESKRIDGE, JR.t JOHN FEREJOHNtt INTRODUCTION Not all statutes are created equal. Appropriations laws perform important public functions, but they are usually short-sighted and have little effect on the law beyond the years for which they apportion public monies.1 Most substantive statutes adopted by Congress and state legislatures reveal little more ambition: they cover narrow subject areas or represent legislative compromises that are short-term fixes to bigger problems and cannot easily be defended as the best policy result that can be achieved.2 Some statutes reveal ambition but do not penetrate deeply into American norms or institutional practice. Even fewer statutes successfully penetrate public normative and institutional culture in a deep way. These last are what we call super-statutes. Copyright © 2001 by William N. Eskridge, Jr. and John Ferejohn. t John A. Garver Professor of Jurisprudence, Yale Law School. tt Carolyn S.G. Munro Professor of Political Science and Senior Fellow of the Hoover Institution, Stanford University. Michael Shumsky, Yale Law Class of 2003, provided needed and excellent research assistance as well as useful comments on an earlier draft of this Essay. 1. Indeed, the Supreme Court has created a presumption against construing appropriations laws to effect any change in substantive federal law. Tenn. Valley Auth. v. Hill, 437 U.S. 153,190 (1978). 2. These statutes are legion. For two very different examples, compare the Alcohol and Drug Abuse Amendments, Pub. L. No. 98-24, 97 Stat. 175 (1983) (requiring the Secretary of Health and Human Services to report every three years on the addictive property of tobacco--a pallid response to the deadly effects of the drug nicotine), with the Hawaii Reciprocal Beneficiaries Act, 1997 Haw. Sess. Laws 2786, Act 383 (H.B. 118) (creating a new institution of reciprocal beneficiaries open to couples who cannot marry-namely, same-sex and couples related to one another-as part of a compromise that overrode constitutional arguments for same-sex marriage but did not satisfy the long-term demand for state recognition of same-sex relationships). For an example of an aspiring snper-statute, the success of which is dubious, see the Prison Litigation Reform Act of 1995, Pub. L. No. 104-134,110 Stat. 1321-66. 1215

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