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Working Paper No. 28Canons 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
1One 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.
2See, 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).
3Congress also invites this gap-filling from executive branch agencies. See generally Edward Rubin, Dynamic
Statutory Interpretation in the Administrative State, www.bepress.com/ils/iss3/art.2 (2002).
4See, 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,136 pgs.Alice Krengel mn - Google Search Address Error