Charles Tyler (George Washington University - Law School) has posted Interpretive Gaps and General Law on SSRN. Here is the abstract:
Every judge has her own approach to interpreting statutes. But what should a judge do when her approach is inconclusive—when her interpretive methodology fails to resolve the issue she confronts? Despite this question’s manifest significance, caselaw and legal scholarship hardly ever ask it. And when they do, they have not supplied a defensible answer. This Article does so. It argues that, when a judge’s interpretive methodology is inconclusive, she should apply legal rules that American jurisdictions generally have in common—she should apply general law. To determine, for example, whether a state official is entitled to immunity under 42 U.S.C. § 1983, a court should ask whether American courts generally extend immunity to officials accused of tortious conduct in similar circumstances. Likewise, to decide whether a business arrangement constitutes an unlawful “restraint of trade” under the Sherman Act, a judge should ask whether American jurisdictions generally consider that arrangement anticompetitive. And so forth.
The general-law model, as I call it, has two primary rivals. According to one rival, statutes that can’t conclusively be interpreted using customary interpretive techniques constitute delegations of substantially unrestrained lawmaking power to courts. Judges should therefore create new legal rules in a policy-driven manner to decide cases arising under those statutes. According to the other rival, insolubly vague statutes should be understood as incorporating historical common-law rules. Judges should therefore decide cases arising under those statutes by applying common-law rules from the past.
This Article’s proposal is superior to its rivals in several ways. It’s more faithful to the traditional role of courts in developing the common law and to the Constitution’s allocation of institutional responsibilities. It’s more responsive to democratic preferences. It’s likely to generate higher-quality legal rules. And it strikes a better balance between the law’s needs for stability and flexibility. The Article concludes by illustrating some of the model’s implications for several important federal statutes.
Highly recommended.
