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PREFERENCES, LAWS, AND DEFAULT RULES
by Elizabeth Garrett [ Full
Text ] |
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| 122 Harv. L. Rev. 2104 (2009) |
| STATUTORY DEFAULT RULES: HOW TO INTERPRET UNCLEAR LEGISLATION. By
Einer Elhauge. Cambridge: Harvard Univ. Press. 2008. Pp. 386.
$55.00. |
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| In his book Statutory Default Rules, Einer Elhauge responds
to calls to assess statutory interpretation techniques through the lens
of contract default rules. |
| Elhauge’s book is part of a trend in statutory
interpretation scholarship: several scholars who write from a public
choice perspective are working to develop theories of interpretation
that incorporate some aspect of intentionalism. Initially, scholars
influenced by public choice rejected using congressional intent as a
guide in interpretation because they argued that the notion of intent
in a collective body is incoherent and the main evidence of intent
outside the statutory text — legislative history — is
unreliable and strategically created. Their work formed the foundation
of textualism. A second, more sophisticated wave of public
choice–influenced scholarship takes a different stance, working
to determine principled methods of ascertaining the purpose that led to
statutory enactments and then using that legislative intent to help
resolve ambiguities and gaps in the text. Statutory Default Rules is
part of that project. Elhauge’s insistence that clear statutory
text must be given primacy in interpretation and cannot be varied by
evidence of different legislative intentions demonstrates the influence
of the first wave of this scholarship on his analysis (p. 65). But his
use of “enactor preferences” and “preferences of the
current legislative polity” as guides to meaning when the text is
not clear is just a different way to ascertain legislative intent,
either of the enacting legislators or the current members of Congress.
He uses the insights of public choice to shape his theory of what
legislative and other official materials interpreters should consult,
but he does not eschew any effort to construct congressional intent, or
“preferences,” to use the term he prefers. |
| This book review begins with a description of Elhauge’s
system of default rules, with particular emphasis on the rules that
relate to “current enactable preferences” (as opposed to
the preferences of enactors) and the rules that are designed to elicit
a reaction from legislators. Although Part I is largely an overview of
Elhauge’s interpretive framework, it also critiques his treatment
of the argument that the default rules are triggered only when the
textual language is unclear. [ More
] |
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