Intentionalism's Revival

30 Pages Posted: 31 Aug 2007

Abstract

This essay responds to an article by Professors Boudreau, Lupia, McCubbins, and Rodriguez (hereinafter "BLMRod") that was posted in Legislation and Statutory Interpretation Abstracts on July 26, 2007, (http://ssrn.com/abstract=997924) and that will appear in the San Diego Law Review, vol.44, no.2, 2007.

The essay situates BLMRod's article in the context of recent efforts by a number of scholars to reclaim foundational legitimacy for intentionalism as an approach to construing statutes. The essay first applauds BLMRod's use of insights from communication theory to conceptualize statutes as compressed substantive or procedural commands that cannot be adequately understood without an appreciation for the compression process that generated them. The essay explores certain implications of this thematic focus. It discusses how the authors' approach may help clarify the status of legislative history as evidence of ascribed or imputed intent. It also suggests how that approach may enhance the value of legislative history when contrasted with key interpretive resources generated by the two other branches of government - i.e., the canons of construction and agency rules or adjudications.

The essay then adopts a more critical perspective toward BLMRod's treatment of the compression (lawmaking) and expansion (law-interpreting) processes. It suggests that by viewing the compression process as essentially a majority party domain, the authors undervalue important congressional conversations involving minority party members, especially although not exclusively in the Senate. Further, the essay discusses how the architecture of congressional conversations may differ across subject matter areas more than the authors' basic model seems to contemplate. Finally, the essay addresses the process of expansion, particularly BLMRod's approach to conversations among a bill's coalition of supporting members. It suggests ways in which the authors' analysis of what motivates ardent and pivotal supporters, and how courts should treat these two key groups when elaborating the meaning of text, may be in need of some refinement.

JEL Classification: K10, K40, K49

Suggested Citation

Brudney, James Jules, Intentionalism's Revival. San Diego Law Review, Vol. 44, No. 3, 2007; Ohio State Public Law Working Paper No. 96. Available at SSRN: https://ssrn.com/abstract=1008342

James Jules Brudney (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States
212-636-7387 (Phone)

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