May 5, 2008
Interesting New Piece ON LINE about Severability
Severability as Judicial Law Making is available here, and was published at 76 Geo. Wash. L. Rev. 639 (2008), and is by David H. Gans. I was intrigued by this issue when we wrote our stat law book, and his introduction raises some of the issues we ponder:
What is a court doing when it severs the invalid portions of a statute? Is it merely issuing a *640 savings construction or is it rewriting the statute? If the latter, is severability compatible with separation-of-powers principles? How should a court decide whether or not to sever? Should legislative intent be the touchstone? The academic literature, for the most part, does not adequately answer these questions. The literature on the topic is surprisingly limited, with only a handful of articles addressing the doctrine.
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