DOCSLIB.ORG

Originalism and Its Discontents

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Originalism and Its Discontents Spring !"!# Originalism and Its Discontents !"#$%#& #. !'(%! Duke University Course !"#.$% O&ce hours: ! !":#"–!$:$" " !:#"–#:#" https://bit.ly/3hGY50A [email protected] Originalism is a major school of constitutional interpretation and an im- portant !eld of study. Legal discussions and public debates regularly feature originalist arguments or criticisms of originalism. To engage these argu- ments, lawyers and citizens need to weigh the merits of a diverse set of originalist theories. This course is designed to acquaint you with originalist and nonoriginal- ist arguments; to enable you to assess their strengths; and to give you an opportunity to sharpen your own views on the topic. Among other things, it examines a variety of theories (original intentions, original meanings, original methods, original law, and so on), emphases (the “old” originalism vs. the “new”), and forms of argument (conceptual, normative, positive). !"#$% This course meets on Tuesdays. Due to the ongoing pandemic, all sessions will be taught online; the Zoom link is available on the class website, under 2021.01.06.1147 “Resources.” Each session starts promptly at !":#" a.m. Please have the as- signed readings with you, and complete the !rst readings before the !rst class. During the !rst week, our class (like all Tuesday classes) will be held on Thursday, Jan. $!. The %rst response paper is due from all students by & a.m. on the morning of the !rst class session. &"#$'(")% Reading assignments are listed at the end of this syllabus. This course has a coursepack, but no textbook. Electronic copies of the readings are also posted online. The readings are rather extensive, averaging roughly ""# law review pages per class. I’ve included approximate page counts for each week to help you plan your workload. A few readings are marked “(skim)”; you really only need to skim these. Optional readings are listed at the end of the syllabus. These are truly optional; they’re included only for further enrichment in your copious free time. (Preferably in a good armchair, a sni$er of brandy and your loyal spaniel at your side.) On the other hand, if you do read most of the pieces on this list, you’ll have a pretty terri!c education in originalism. You can !nd discussions of current developments in originalism on the Originalism Blog, http://originalismblog.typepad.com/. New papers relat- ing to originalism are regularly featured on Lawrence Solum’s Legal Theory Blog, http://lsolum.typepad.com/. '$%*+,%$ *"*$'% As mentioned above, each student is to submit a response paper, uploaded the “Forum” section of the website, by % a.m. on the morning of the !rst class. This paper should address the !rst set of readings and describe your general opinion of originalism. (Any position—including complete confu- sion—is perfectly !ne!) Your response papers should be '(" to !""" words long, which is roughly three to four pages. Shorter papers will be returned for resubmission; longer papers will be read only in part. To standardize length and appearance, ! !"#$%& '(') please use the template available online (under “Resources”), !lling the appropriate information into the header. Response papers shouldn’t try to summarize the assigned readings, which everyone will already have read. Rather, take and defend a position on at least one of the issues discussed. Please write your papers in as straightforward a way as possible: citations, Bluebooking, footnotes, and the like are strictly prohibited.1 A$er the !rst paper, there are two options for the course. The standard option is to write a response paper for each individual class session. Each paper a$er the !rst is due by !!:(& p.m. on the Sunday night before a class. Your papers will be available for your classmates to read online and will serve as a basis for that week’s discussion (hence the early deadlines). One additional response paper discussing the course materials as a whole—or any other originalism-related subject of interest to you—is due by ):#" p.m. on Friday, May ', the last day of the exam period. Each student taking this option has two free “passes” to skip the weekly response papers. To use a pass, just email me before your paper would be due; no further explanation is necessary. Otherwise, half credit is available for unexcused late papers uploaded within a day of the deadline, and one- quarter credit is available for unexcused even-later papers submitted before the end of the exam period. (If you have any technical problems with sub- mission, or any other extraordinary circumstances, just email me.) The alternative option for the course is to pursue an independent re- search project related to originalism. First and !nal dra$s (~&# pp.) should be submitted in compliance with Duke’s upper-level writing requirement. This option is only available with permission; you must also !le the proper forms with the Registrar prior to the close of the Drop/Add period. -)"%% *"'#(-(*"#(+, Unless you’ve requested a “pass” for that week, each student is expected to participate in the discussions, and class participation will be part of your grade. At times, I may choose to cold-call. For emergencies or other special circumstances, just contact me. ! Seriously, no footnotes. *#$&$%+,$!- +%. $/! .$!0*%/1%/! " +..(-$ /+0'% This semester, my o'ce hours are on Mondays, !:#"–#:#" p.m. A sign-up sheet with (#-minute blocks is linked from the website. If no one has signed up for a particular slot, feel free to add your name. If you’d like to arrange an appointment at another time, just email me. You should also feel free to sign up in groups, invite other students to join you during your block, and so on. Please don’t worry about a question sounding silly. If it’s troubling you enough for you to send an email or to sign up for o'ce hours, it’s worth asking and getting cleared up! 1'"!(,1 Grades for the course will be based on your written work and class partici- pation. I will follow the Law School’s standard grading rules for courses of this size. # !"#$%& '(') Originalism and Its Discontents Syllabus ............................................................................................................................ ) (,#'+!0-#(+, ! Jan. $! (!"): The “Dead Hand of the Past” (94 pp.) ).) Constitution of the United States (skim) ................................................ * ).+ Griswold v. Connecticut, &," U.S. -.% ("%/0) ...................................... )1 ).2 Robert H. Bork, Neutral Principles and Some First Amend- ment Problems, -. Ind. L.J. ", "–(# ("%.") ........................................... +* ).3 Magna Carta ("("0) (skim) ........................................................................ 3* ).* William J. Brennan, Jr., The Constitution of the United States: Contemporary Rati!cation, -& Guild Prac. " ("%,/) ........................ 31 ).4 Paul Brest, The Misconceived Quest for the Original Under- standing, /# B.U. L. Rev. (#-, ((-–&, ("%,#) ..................................... 4* ).5 David A. Strauss, Common Law Constitutional Interpreta- tion, /& U. Chi. L. Rev. ,.., ,..–,,#, ,,%–%#, %#&–#/ ("%%/) ..... 6) ).6 Frank H. Easterbrook, Textualism and the Dead Hand, // Geo. Wash. L. Rev. """% ("%%,) ............................................................... 1) $ Jan. $* (!): Change over time (102 pp.) +.) Paul Brest, The Misconceived Quest for the Original Under- standing, /# B.U. L. Rev. (#-, (#-–(- ("%,#) .................................... 11 +.+ Ronald Dworkin, Comment, in Antonin Scalia, A Matter of Interpretation ""0, ""0–(( ("%%.) .......................................................... )+) i +.2 Keith E. Whittington, The New Originalism, ( Geo. J.L. & Pub. Pol’y 0%% ((##-) ............................................................................. )2) +.3 Christopher R. Green, Originalism and the Sense-Reference Distinction, 0# St. Louis U. L. Rev. 000, 000–/., 0.-–./, 0.%– %#, 0%-–%/, /"-–"0 ((##/) .................................................................... )35 +.* John F. Stinneford, The Original Meaning of “Unusual”: The Eighth Amendment as a Bar to Cruel Innovation, "#( Nw. U. L. Rev. ".&%, ".&%–-. ((##,) ................................................................. )6) +.4 Caleb Nelson, Originalism and Interpretive Conventions, .# U. Chi. L. Rev. 0"%, 0&%–-. ((##&) ...................................................... )1) -+,-$*#0") "'10&$,#% # Feb. $ (!): Original meaning, original intent (96 pp.) 2.) Gary Lawson, On Reading Recipes . and Constitutions, ,0 Geo. L.J. ",(& ("%%.) ................................................................................ +7) 2.+ Lawrence B. Solum, We Are All Originalists Now, in Robert W. Bennett & Lawrence B. Solum, Constitutional Original- ism: A Debate ", "&–"/ ((#"") ................................................................ +)* 2.2 Je8rey Goldsworthy, The Case for Originalism, in The Chal- lenge of Originalism -(, -(–--, -/–0" (Grant Huscro$ & Bradley W. Miller eds., (#"") ................................................................ ++) 2.3 Larry Alexander & Saikrishna Prakash, “Is That English You’re Speaking?” Why Intention Free Interpretation is an Im- possibility, -" San Diego L. Rev. %/. ((##-) .................................... +2) 2.* Unicorn News Article ............................................................................ +4) 2.4 Larry Alexander, Telepathic Law, (. Const. Comment. "&%, "&%–-0 ((#"#) ............................................................................................ +42 ii
Load more

Recommended publications
  • Early Understandings of the "Judicial Power" in Statutory Interpretation
    ARTICLE ALL ABOUT WORDS: EARLY UNDERSTANDINGS OF THE 'JUDICIAL POWER" IN STATUTORY INTERPRETATION, 1776-1806 William N. Eskridge, Jr.* What understandingof the 'judicial Power" would the Founders and their immediate successors possess in regard to statutory interpretation? In this Article, ProfessorEskridge explores the background understandingof the judiciary's role in the interpretationof legislative texts, and answers earlier work by scholars like ProfessorJohn Manning who have suggested that the separation of powers adopted in the U.S. Constitution mandate an interpre- tive methodology similar to today's textualism. Reviewing sources such as English precedents, early state court practices, ratifying debates, and the Marshall Court's practices, Eskridge demonstrates that while early statutory interpretationbegan with the words of the text, it by no means confined its searchfor meaning to the plain text. He concludes that the early practices, especially the methodology ofJohn Marshall,provide a powerful model, not of an anticipatory textualism, but rather of a sophisticated methodology that knit together text, context, purpose, and democratic and constitutionalnorms in the service of carrying out the judiciary's constitutional role. TABLE OF CONTENTS Introduction .................................................... 991 I. Three Nontextualist Powers Assumed by English Judges, 1500-1800 ............................................... 998 A. The Ameliorative Power .............................. 999 B. Suppletive Power (and More on the Ameliorative Pow er) .............................................. 1003 C. Voidance Power ..................................... 1005 II. Statutory Interpretation During the Founding Period, 1776-1791 ............................................... 1009 * John A. Garver Professor ofJurisprudence, Yale Law School. I am indebted toJohn Manning for sharing his thoughts about the founding and consolidating periods; although we interpret the materials differently, I have learned a lot from his research and arguments.
    [Show full text]
  • Statutory Construction in Florida: in Search of a Principled Approach
    STATUTORY CONSTRUCTION IN FLORIDA: IN SEARCH OF A PRINCIPLED APPROACH Peter D. Webster Sylvia H. Walbolt Christine R. Davis I. INTRODUCTION .......................................... 437 II. STATUTORY CONSTRUCTION BY THE FLORIDA SUPREME COURT IN THE TWENTY-FIRST CENTURY ................. 447 A. The Polestar of Statutory Construction—Legislative Intent............................................... 448 B. Competing Canons of Statutory Construction ........ 449 1. Knowles v. Beverly Enterprises—Florida, Inc. 451 2. Delgado v. State ............................... 457 3. Donato v. American Telephone & Telegraph Co.............................................. 461 4. B.C. v. Florida Department of Children & Families........................................ 463 5. Malu v. Security National Insurance Company . 465 6. State v. Goode ................................. 468 7. American Home Assurance Co. v. Plaza Materials Corp. ................................ 470 8. State v. Paul ................................... 476 9. Sarkis v. Allstate Insurance Co.................. 482 10. Horowitz v. Plantation General Hospital Limited Partnership .................................... 484 C. Whose Rule of Statutory Construction is the Best Rule?............................................... 487 III. STATUTORY CONSTRUCTION AND THE DOCTRINE OF SEPARATION OF POWERS ................................ 494 A. The Need for Restraint ............................. 497 B. Church of the Holy Trinity v. United States—A Court Run Amok? ........................................
    [Show full text]
  • Parliamentary Debates in Statutory Interpretation: a Question Of
    Parliamentary Debates in Statutory Interpretation:A Question of Admissibilityor of Weight? St6phane Beaulac" The exclusionary rule which prohibits references La r~gle qui exclue l'utilisation des debats parle- to parliamentary materials as an aid to statutory inter- mentaires comme outil d'interpr6tation legislative a te pretation has been applied for decades in most common appliqude pendant des d6cennies dans la plupart des ju- law jurisdictions. The House of Lords handed down its ridictions de common law jusqu'a la decision de prin- fundamental decision in Pepper v. Hartwhich allowed cipe du comit6 d'appel de la House ofLords dans Pep- reference to parliamentary debates in limited circum- per c. Hart. L'auteur examine d'abord les origines an- stances. glaises de la r~gle d'exclusion ainsi que ses applica- The author first examines the English origins of tions dans d'autres juridictions de common law telles the exclusionary rule as well as its application in other I'Australie, la Nouvelle-Z6lande, les ttats-Unis et le 1998 CanLIIDocs 38 common law jurisdictions, including Australia, New Canada. L'auteur commente aussi la situation dans le Zealand, the United States and Canada. The author also syst~me de droit civil qu6b6cois. L'exclusion des d6- comments on the situation prevailing in Quebec's civil bats parlementaires est ensuite consid6r6e dans le con- law system. The exclusion of parliamentary debates is texte plus global des m6thodes et des principes then considered in the broader context of the methods d'interpretation legislative. and principles of statutory construction. L'auteur soutient que l'utilisation des d6bats par- The author contends that the issue of parliamen- lementaires dans l'interpretation legislative est une tary debates in statutory interpretation is a question of question de poids plutft que d'admissibilite.
    [Show full text]
  • Importance of Statutory Interpretation Statutory Interpretation Is An
    Importance of statutory interpretation Statutory interpretation is an important aspect of the common law. In about half of all reported cases in Australia, the courts are required to rule on the meaning of legislation. Interpretation Acts The meaning of Commonwealth legislation is governed by the provisions in the Acts Interpretations Act (1901). It prescribes the meanings of common terms and provides courts with clear directions to resolve a range of potential inconsistencies. The Traditional (General) Rules – sometimes referred to as Literalism The traditional common-law approach to statutory interpretation was to "look at the words of the Act". This approach was founded on the assumption that the statute alone was a reliable guide to the intent of the Parliament. That is, Parliament said what it means, and means what it said (within the context of the legislation). However, to assist the courts in interpreting legislation, judges relied upon three general rules (REFER SEPARATE DOCUMENT CONCERNING A 4TH RULE – THE MORE THAN RULE). These were the: Literal Rule: The literal rule dictated that the courts gave effect to the "ordinary and natural meaning" of legislation. This Rule was defined by Higgins J, in The Amalgamated Society of Engineers v The Adelaide Steamship Co Ltd (1920). Justice Higgins said “The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the whole of the statute as a whole. The question is, what does the language mean; and when we find what the language means in it's ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient, impolitic or improbable”.
    [Show full text]
  • Statutory Interpretation in a Nutshell
    THE CANADIAN BAR REVIEW VOL. XVI - JANUARY, 1938 - - NO. 1 STATUTE INTERPRETATION IN A NUTSHELL PRELIMINARY OBSERVATIONS RULE I.-If you are trying to guess what meaning a; court will :attach to a section in a statute which has not yet been passed on by a court, you should be careful how you use. Craies' Statute Law and Maxwell on The Interpretation of Statutes. As armouries of arguments for counsel they can be very useful: but, you must know how to choose your weapon. In at least three respects these legal classics are very defective (a) Both books assume one great sun of a principle, "the plain meaning rule", around which revolve .in planetary order a series of minor rules of- construction : both assume that what courts do is unswervingly determined by that one principle . This is not so. Examine a few recent cases and you will find not a principle - nothing so definite as that - but an approach, - a certain attitude towards the words of a statute. Rook closer and -,you will see that there is not one single approach, but three,._ (i) "the literal rule", (ii) "the golden rule", - (iii) "tithe mischièlf rule". Any one of these approaches may be selected by your -.court : which it does decide to "select may, in a élose Yourcase, be t-he determining element in its decision .2 guess should therefore be based on an application of all three approaches : you should not be misled by Craies and Maxwell into thinking there is only one to consider. (b) Both books base their rules not on decisions, not on what the courts did in cases before them, but on dicta, the 1 Thus in Vacher v.
    [Show full text]
  • Which Textualism?
    COMMENTS WHICH TEXTUALISM? Tara Leigh Grove ∗ INTRODUCTION The academic indictment of textualism was almost in. Although textualism has in recent decades gained considerable prominence within the federal judiciary,1 legal scholars remain skeptical: critics argue that textualism is insensitive to the actual workings of Congress,2 overly rigid,3 or (conversely) overly malleable4 and thus not much different from its main competitor purposivism.5 Moreover, some critics charge that textualism is not a neutral method of interpretation at all. Instead, ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– ∗ Charles E. Tweedy, Jr., Endowed Chairholder of Law & Director, Program in Constitutional Studies, University of Alabama School of Law. Many thanks, for helpful comments on earlier drafts, to Josh Blackman, Sam Bray, Aaron Bruhl, Jessica Clarke, Neal Devins, Heather Elliott, Katie Eyer, Richard Fallon, David Fontana, Cary Franklin, Laura Heymann, Bert Huang, Orin Kerr, Andy Koppelman, Anita Krishnakumar, Alli Larsen, Gary Lawson, Henry Monaghan, Victoria Nourse, Jim Pfander, Susan Provenzano, William Pryor, Richard Re, Naomi Schoenbaum, Larry Solum, Kevin Stack, and Chris Walker. 1 Justice Kagan commented several years ago that “w[e are] all textualists now.” Harvard Law School, The 2015 Scalia Lecture | A Dialogue with Justice Elena Kagan on the Reading of Statutes, YOUTUBE at 08:28 (Nov. 25, 2015), https://youtu.be/dpEtszFT0Tg [https://perma.cc/6HMD- 727M]. Although that may be an exaggeration, Justice Kagan’s comment captures how the rise of modern textualism has impacted the way that judges approach cases. See Thomas R. Lee & Stephen C. Mouritsen, Judging Ordinary Meaning, 127 YALE L.J. 788, 793 (2018) (underscoring the influence of textualism in the courts); Gillian E.
    [Show full text]
  • Typologies of Statutory Interpretation
    *WORD VERSION OF ARTICLE AS APPEARS IN RATIO JURIS* Comparative Statutory Interpretation in the British Isles KAY GOODALL Abstract: Existing studies of statutory interpretation are often of excellent quality but they have tended either to focus on legal practice to the detriment of comparative jurisprudence, or have examined legal reasoning at a level of abstraction which has made empirical study difficult. The author examines a recent development in this area and considers how it might be used to begin a project to identify any divergences in statutory interpretation among the various legal systems of the United Kingdom. Statutory interpretation has for many years, particularly in the United States, been an object of jurisprudential interest (see for example MacCallum 1993). However this field has been so important to legal practice that the bulk of the work on statutory interpretation has been informed by professional requirements rather than legal theory. This has resulted in some works of superb intellectual quality, but relatively little which could be used for incisive comparative study. In the British Isles in particular, this scholarship was traditionally developed through practitioners’ typologies whose origins lay in English judicial practice (see for example Maxwell, Craies, Bennion and Cross, most recently revised by Langan, 1969; Edgar 1971; Bennion, 1990 and Bell and Engle, 1995). Although there are some excellent Scottish and Irish commentaries, there are no Scottish or Irish texts dealing with statutory interpretation in the same depth as the major English works – or indeed possessing the same longevity. For some years it has been assumed by many, without much empirical investigation, that the legal systems of Scotland and Northern Ireland (and indeed the Republic of Ireland) share a practice of statutory interpretation so similar to that of England that no there is no worthwhile distinction to be made.
    [Show full text]
  • How to Construe a Hybrid Statute
    MARX_BOOK 2/21/2007 9:45 PM HOW TO CONSTRUE A HYBRID STATUTE Jonathan Marx* INTRODUCTION ANY statutes create what appears to be a single substantive M duty enforceable through both civil and criminal litigation. By way of example, such a “hybrid” statute might be structured as follows: imagine that Section One requires or prohibits certain conduct, Section Two creates a private cause of action for damages caused by violations of Section One, and Section Three makes will- ful or knowing violation of Section One a crime. These “hybrid statutes,” which include such well-known statutes as the Sherman Act1 and the Racketeer Influenced and Corrupt Organizations Act (“RICO”),2 are commonplace, but they raise some intractable interpretive questions. To the extent that Section One is ambiguous, the use of standard rules of construction may create problems for interpreters. If the ambiguity first comes to light in a criminal or other “penal” proceeding, the court might ap- ply the rule of lenity and give Section One a narrow construction. But if the ambiguity first came to light in a “remedial” civil pro- ceeding, the mere existence of ambiguity would not dictate a par- ticular outcome, and a court might not narrowly construe the am- biguous Section One as it would in a penal proceeding. Instead, the court might invoke the canon of broad remedial construction to justify a broad construction, or might rely on some other canon or presumption to reach either outcome. The ambiguous Section One need not receive a narrow construction as it would in a penal pro- * Law Clerk for the Honorable T.S.
    [Show full text]
  • The Administrative and Regulatory State, Cristina Rodriguez
    NYU School of Law Outline: The Administrative and Regulatory State, Cristina Rodriguez Will Frank (Class of 2011) Spring Semester, 2009 Contents 1 Introduction 2 1.1 Historical Overview of the Regulatory State . 2 1.2 Statutory Interpretation and the Implementation of Public Policy in the Regulatory State . 4 2 Legislation and Statutory Interpretation 6 2.1 Basic Legislative Process . 6 2.2 Bicameralism and Presentment . 8 2.3 Schools of Statutory Interpretation . 11 2.3.1 Intentionalism, Purposivism, and Legal Process . 11 2.3.2 Plain Meaning and Textualism . 13 2.3.3 Dynamic Interpretation and Changed Circumstances . 16 2.4 Statutory Interpretation Doctrine . 18 2.4.1 Textual Canons . 18 2.4.2 Substantive Canons and the Rule of Lenity . 19 2.4.3 Extrinsic Sources of Legislative History . 20 2.4.4 Interpretation in Light of Other Statutes . 24 2.4.5 Stare Decisis and Statutory Precedents . 25 3 Regulation and the Administrative Process 26 3.1 Congress and the Agencies . 26 3.1.1 The Nondelegation Doctrine . 26 3.1.2 Legislative Control over Agencies . 28 3.2 The President and the Agencies . 29 3.2.1 Appointment and Removal . 29 3.2.2 Other Mechanisms of Presidential Control . 30 3.3 The Judiciary and the Agencies . 31 3.3.1 Agency Exercise of Judicial Authority . 31 3.3.2 Due Process and Administrative Agencies . 32 1 3.4 The Administrative Procedure Act: Rulemaking and Adjudication 36 4 Reviewing Courts 38 4.1 Judicial Review of Agency Policy . 38 4.2 Judicial Review of Agency Factfinding . 41 4.3 Judicial Review of Questions of Law .
    [Show full text]
  • The Law Commission and the Scottish Law Commission (LAW COM
    The Law Commission and The Scottish Law Commission (LAW COM. No. 21) (SCOT. LAW COM. No. 11) THE WTERPRETATION OF STATUTE§ Laid before Parliament by the Lord High Chancellor, the Secretary of State for Scotland and the Lord Advocate pursuant to section 3(2) of the Law Commissions Act 1965 Ordered by The House of Commons to be printed 9th June 1969 LONDON HER MAJESTY’S STATIONERY OFFICE Reprinted 1 9 7 4 256 4Op net The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law other than the law of Scotland or of any law of Northern Ireland which the Parliament of Northern Ireland has power to amend. The Commissioners are: The Honourable Mr. Justice Scarman, O.B.E., Chairman. Mr. L. C. B. Gower. Mr. Neil Lawson, Q.C. Mr. Norman S. Marsh, Q.C. Mr. Andrew Martin, Q.C. Mr. Arthur Stapleton Cotton is a special consultant to the Commission. The Secretary of the Commission is Mr. J. M. Cartwright Sharp, and its offices are at Lacon House, Theobald’s Road, London, W.C.l. The Scottish Law Commission was set up by section 2 of the Law Com- missions Act 1965 for the purpose of promoting the reform of the Law of Scotland. The Commissioners are: The Honourable Lord Kilbrandon, Chairman. Professor A. E. Anton. Professor J. M. Halliday. Mr. A. M. Johnston, Q.C. Professor T. B. Smith, Q.C. I The Secretary of the Commission is Mr. A. G.
    [Show full text]
  • The History of Statutory Interpretation: a Study in Form and Substance, 6 Cardozo L
    University of Miami Law School University of Miami School of Law Institutional Repository Articles Faculty and Deans 1985 The iH story of Statutory Interpretation: A Study in Form and Substance William S. Blatt University of Miami School of Law, [email protected] Follow this and additional works at: https://repository.law.miami.edu/fac_articles Part of the Jurisprudence Commons Recommended Citation William S. Blatt, The History of Statutory Interpretation: A Study in Form and Substance, 6 Cardozo L. Rev. 799 (1985). This Article is brought to you for free and open access by the Faculty and Deans at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. THE HISTORY OF STATUTORY INTERPRETATION: A STUDY IN FORM AND SUBSTANCE William S. Blatt* A history of statutory interpretation has yet to be written, either for the civil or the common law.' Max Radin's observation of 1942 remains true today. Although the process of statutory interpretation has received considerable atten- tion, its history has not. Courts and commentators generally view the field as ahistorical, consisting of a few timeless rules.2 Perhaps this lack of appreciation is related to the modem con- sciousness of the tension between form and substance. Formal justice is associated with rules that are based on ascertainable facts, restrain official arbitrariness, and provide certainty. Substantive justice is as- sociated with standards that direct courts to assess a particular fact situation in terms of the overall objectives of the legal order.
    [Show full text]
  • Mukt Shabd Journal Volume IX, Issue VIII, AUGUST/2020 ISSN NO
    Mukt Shabd Journal ISSN NO : 2347-3150 GENERAL PRINCIPLES OF STATUTORY INTERPRETATION ALONG WITH SPECIAL REFERENCE TO MISCHIEF RULE AND GOLDEN RULE OF INTERPRETRATION *Upasana Borah Student N.E.F LAW COLLEGE AFFILIATED TO GAUHATI UNIVERSITY, ASSAM B.B.A LL.B (HONS) ABSTRACT Lawmaking body makes the law and court deciphers it at the hour of conveying equity. Understanding is the essential capacity of a court. At whatever point debate precedes the court and there is a vagueness about the genuine significance of the law, court deciphers the law. Translation implies giving best single importance of the words or expressions utilized in the law, The Golden Rule was characterized by Master Wens leydale in the Gray v Pearson case (1857) as: "The syntactic and standard feeling of the words is to be clung to except if that would prompt some ridiculousness or some repulsiveness or irregularity with the remainder of the instrument in which case the syntactic and normal feeling of the words might be adjusted in order to maintain a strategic distance from the idiocy and irregularity, however no farther." The Mischief Rule gives the most watchfulness to judges and is fit to explicit, frequently questionable cases. The standard permits resolutions to be refined and created. Nonetheless, the expanded job of the adjudicator implies that his perspectives and biases can impact the ultimate choice. The standard is expected to amend 'Mischief' in the rule and decipher the resolution fairly. The wickedness Rule employments precedent-based law to decide how the resolution is deciphered. Keywords: INTERPRETATION, GOLDEN RULE, MISCHIEF RULE, SUPREME COURT, EXTERNAL AIDS TO INTERPRETATION.
    [Show full text]