Brian G. Slocum (University of Memphis - Cecil C. Humphreys School of Law) has posted The Problematic Nature of Contractionist Statutory Interpretations (Northwestern University Law Review Colloquy, Forthcoming) on SSRN. Here is the abstract:
The main thesis of Daniel B. Rodriguez and Barry R. Weingast's recent article, The Paradox of Expansionist Statutory Interpretations, 101 NW. U. L. REV. 1207 (2007), is important: the voting decisions of legislators can be influenced by the activist statutory interpretations of courts. Specifically, the authors demonstrate that the expansionist interpretations of progressive legislation made by courts in the 1960s and 1970s undermined the legislative deals struck between ardent supporters of progressive legislation and the moderate legislators necessary for passage of the statutes. These expansionist interpretations have discouraged moderate legislators from supporting progressive legislation and are partly to blame for the current polarization of Congress and the paucity of such legislation.
Rodriguez and Weingast assert that courts in the 1960s and 1970s were able to achieve expansionist interpretations of progressive legislation by misusing legislative history to support inaccurate conclusions about the intent or purpose of Congress. While the article's insights are an important contribution to statutory interpretation scholarship, the dominant trend has been for judges to rely more on rules of interpretation to determine statutory meaning and less on pragmatic analysis or conclusions about likely congressional intent or purpose. Thus, if progressive social legislation were enacted today, courts would likely not engage in the same improper expansionist interpretations as they did in the past. They would, however, likely engage in improper narrowing interpretations. This Essay explains how the rules of statutory interpretation are currently geared towards producing narrow statutory interpretations and illustrates through a recent example how these interpretations are often inconsistent with the judiciary's role as faithful agents of Congress.
Interesting & recommended. I've provided a link (above) to Rodriguez & Weingast's important paper.
