August 17, 2006
In a post below, I raised up the use by legislatures of "interpretive directives." There are a variety of them now, but typically they "order" courts to consider far more than just the text, and even when the text is not ambiguous. Our book catalogs them, but I know there are many.
Here's my question or point to ponder: what do these directives mean? Textualists think that relying on legislative history allows judges to "legislative" by picking out favorable statements to support their interpretation. Do these directives mean, therefore, that legislators trust judges more than judges do? Are they power grabs by the legislature, intending to require judges to listen to and consider as "law" what one fellow from some small district thought the statute meant? Or, something else?
Personally, I'd thought they were signs that the legislatures didn't like textualism, but why? What do you suppose is going on?
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See generally Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 Harv. L. Rev. 2085 (2002).
Posted by: Nicholas Quinn Rosenkranz | Aug 26, 2006 6:05:58 AM
Thanks for the cite. I enjoyed that article, by the way.
Posted by: David Hricik | Aug 26, 2006 7:41:53 AM