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Statutory Default Rules : How to Interpret Unclear Legislation / Einer Elhauge.

Elhauge, Einer, author.
2009
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Title
Statutory Default Rules : How to Interpret Unclear Legislation / Einer Elhauge.
Author
Elhauge, Einer, author.
ISBN
9780674033672
DOI
https://doi.org/10.4159/9780674033672
Published
Cambridge, MA : : Harvard University Press, [2009]
Copyright
©2008
Language
English
Language Note
In English.
Description
1 online resource (400 p.)
Item Number
10.4159/9780674033672 doi
Dewey Decimal Classification
348.73/2
Summary
Most new law is statutory law; that is, law enacted by legislators. An important question, therefore, is how should this law be interpreted by courts and agencies, especially when the text of a statute is not entirely clear. There is a great deal of scholarly literature on the rules and legal materials courts should use in interpreting statutes. This book takes a fresh approach by focusing instead on what judges should do once the legal materials fail to resolve the interpretive question. It challenges the common assumption that in such cases judges should exercise interstitial lawmaking power. Instead, it argues that--wherever one believes the interpretive inquiry has failed to resolve the statutory meaning--judges can and should use statutory default rules that are designed to maximize the satisfaction of enactable political preferences; that is, the political preferences of the polity that are shared among enough elected officials that they could and would be enacted into law if the issue were on the legislative agenda. These default rules explain many recent high-profile cases, including the Guantánamo detainees case, the sentencing guidelines case, the decision denying the FDA authority to regulate cigarettes, and the case that refused to allow the attorney general to criminalize drugs used in physician-assisted suicide.
Access Note
Access limited to authorized users.
System Details Note
Mode of access: Internet via World Wide Web.
Digital File Characteristics
text file PDF
Source of Description
Description based on online resource; title from PDF title page (publisher's Web site, viewed 18. Sep 2023)
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Frontmatter
Contents
Acknowledgments
CHAPTER 1 Introduction and Overview
CHAPTER 2 Why Courts Should Maximize Enactable Preferences When Statutes Are Unclear
PART I Current Preferences Default Rules
CHAPTER 3 The General Theory for Current Preferences Default Rules
CHAPTER 4 Inferring Current Preferences from Recent Legislative Action
CHAPTER 5 Inferring Current Preferences from Agency Action
PART II Enactor Preferences Default Rules
CHAPTER 6 From Legislative Intent to Probabilistic Estimates of Enactable Preferences
CHAPTER 7 Moderation, Unforseen Circumstances, and a Theory of Meaning
PART III Preference-Eliciting Default Rules
CHAPTER 8 Eliciting Legislative Preferences
CHAPTER 9 Canons Favoring the Politically Powerless
CHAPTER 10 Linguistic Canons of Statutory Construction
CHAPTER 11 Interpretations That May Create International Conflict
CHAPTER 12 Explaining Seeming Inconsistencies in Statutory Stare Decisis
PART IV Supplemental Default Rules
CHAPTER 13 Tracking the Preferences of Political Subunits
CHAPTER 14 Tracking High Court Preferences
PART V Objections
CHAPTER 15 The Fit with Prior Political Science Models and Empirical Data
CHAPTER 16 Interest Group and Collective Choice Theory
CHAPTER 17 Protecting Reliance or Avoiding Change or Effect
CHAPTER 18 Rebutting Operational and Jurisprudential Objections
Notes
Index

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