October 31, 2008
Fascinating New Article on Interpretive Directives and Separation of Powers
You'll enjoy this: Linda Jellum (my colleague at Mercer University School of Law, and co-author of our book on statutory interpretation): 'Which is to Be Master,' the Judiciary or the Legislature? When Statutory Directives Violate Separation of Powers, __ UCLA L. Rev. ___ (2008).
The abstract pretty much explains her provocative view (I'm not yet sure I agree, and I know she takes issues with others):
Statutory interpretation is at the cutting edge of legal scholarship and, now, legislative activity. As legislatures have increasingly begun to perceive judges as activist meddlers, some legislatures have found a creative solution to the perceived control problem: statutory directives. Statutory directives, simply put, tell judges how to interpret statutes. Rather than wait for an interpretation with which they disagree, legislatures use statutory directives to control judicial interpretation.
Legislatures are constitutionally empowered to draft statutes. In doing so, legislatures expect to control the meaning of the words they choose. Moreover, they prefer to do so early in the process, not after a judge has interpreted the statute in a way they did not expect or intend. Judges are constitutionally empowered to interpret statutes without legislative-micromanagement. The question then is how to balance these valid, but competing, constitutional roles. This article explores when statutory directives violate separation of powers and concludes that when the legislature tries to control the process of interpretation, as opposed to trying to influence the outcome of interpretation to promote specific policy objectives, the legislature aggrandizes itself, oversteps constitutional boundaries, impermissibly intrudes into the judicial sphere, and becomes master of the interpretive process.
The article is forthcoming in the UCLA Law Review, and is on ssrn now, here.