Alice's Advocates, DDA, Bill & Sharon

Alice's Advocates, DDA, Bill & Sharon

Crimes Against Humanity

Saturday, August 9, 2008

Alice Krengel'sCanons of Construction via

Alice Krengel's Canons of Constuction researched by
645 - 648Statutes, Construction

Working Paper No. 28 Canons of Construction and the Elusive Quest for Neutral Reasoning ByJames J. Brudney and Corey Ditslear

Canons of Construction and the Elusive Quest for Neutral Reasoning


Federal statutes, like the lawmaking enterprise itself, are seldom models of efficiency.

Procedural complexities and practical constraints impose substantial pressure on legislators

seeking to enact new laws. This pressure may produce inadvertent drafting oversights,1 or it may

give rise to deliberate ambiguities around which a pro-enactment majority can form. 2 Whether

through inevitable laxity or conscious choice, Congress leaves a fair number of gaps in the

meaning of its complex regulatory schemes. When filling those gaps with case-specific

interpretive responses, federal courts perform an important policymaking function. 3

In recent years, such policymaking has generated increased concerns about the

politicization of the judiciary. Plausible legal contentions tendered in a courtroom often reflect

the ideological preferences of diverse interest groups.4 Scholars using social science techniques

have contributed to the image of courts as policymakers, by establishing that judges’ political

party affiliation and ideological orientation are at times significant predictors of voting

1 One recurrent example involves federal statutes that lack an explicit limitation period within which to initiate legal

action. See North Star Steel v. Thomas, 515 U.S. 29, 33 (1995) (referring to numerous specific statutes). While

there may be rare instances in which this decis ion is conscious and deliberate (see note 2 infra), it generally reflects

simply insufficient attention to detail.

2 See, e.g., Landgraf v. USI Film Prod., 511 U.S. 244, 262-63 (1994) (concluding, based on review of legislative

history, that supporters of 1991 Civil Rights Act “agreed to disagree about whether and to what extent the Act would

apply to preenactment conduct”). See generally Miriam R. Jorgensen & Kenneth A. Shepsle, A Comment on the

Positive Canons Project, 57 LAW & CONTEMP. PROBS. 43, 44-45 (Winter 1994); Nicholas Quinn Rosenkranz,

Federal Rules of Statutory Interpretation, 115 HARV. L. REV. 2085, 2155 (2002).

3 Congress also invites this gap-filling from executive branch agencies. See generally Edward Rubin, Dynamic

Statutory Interpretation in the Administrative State, (2002).

4 See, e.g., Lorillard Tobacco v. Reilly, 533 U.S. 525 (2001) (adjudicating tobacco industry’s right to engage in

certain forms of cigarette advertising); United States v. Microsoft Corp., 253 F. 3d 34 (D.C. Cir. 2001) (adjudicating

extent of government’s ability to regulate internet access). See generally John Ferejohn, Judicializing Politics,

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