Ambiguous Statutes

17 Pages Posted: 27 Nov 2009 Last revised: 12 Jan 2010

See all articles by Saul Levmore

Saul Levmore

University of Chicago Law School

Date Written: November 25, 2009

Abstract

Judge Frank Easterbrook is known for insisting that legislative intent is a misconception, bordering on oxymoron. He has also advanced the idea that legislative bargains should be upheld by courts and that where a legislature leaves a “gap,” courts should be non-activist rather than eager gap-fillers. Still, there are many cases where legislation leaves ambiguities. I suggest that the cause of an ambiguity has some bearing on the best way for a judge to resolve it. Easterbrook decisions, including an Equal Pay Act case, where (unequal) wages were based on prior compensation, are used to reveal various strategies for dealing with ambiguous statutes. One conclusion is that it is almost inevitable that even a non-activist judge will occasionally resort to guess-work about legislative intent – and that such intent, while unlikely as a matter of public-choice or aggregation theory, is not quite impossible to construe correctly. I conclude with the conjecture that the inclination to attach great significance to statutory language may be something that falls out of favor because of the reality of the enactment process.

Suggested Citation

Levmore, Saul, Ambiguous Statutes (November 25, 2009). University of Chicago Law Review, Vol. 77, No. 4, 2010; U of Chicago Law & Economics, Olin Working Paper No. 500; U of Chicago, Public Law Working Paper No. 282. Available at SSRN: https://ssrn.com/abstract=1513571

Saul Levmore (Contact Author)

University of Chicago Law School ( email )

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