17 Pages Posted: 27 Nov 2009 Last revised: 12 Jan 2010
Date Written: November 25, 2009
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.
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