21 Pages Posted: 6 Oct 2010
Date Written: October 5, 2010
How can we possibly plan our lives on the basis of the law of tomorrow when we can't predict what that law will be? Are courts that are attracted to dynamic statutory interpretation teaching us that we can no longer know and rely on the rule of law in our daily lives because months or years later they can use policy considerations to make new law and apply that law retroactively to us? Doesn't dynamic statutory interpretation amount to unconstitutional ex post facto legislation? Hasn't justice become impossible to get from courts if judges insist on upsetting both sides' expectations of what law was when their case or controversy arose, and instead pull the rug out from under their feet with new law based on the judges' own idea of general social and governmental policy? Isn't this just a case of judges appropriating the rights of the parties, without compensation, in order to announce new social legislation? Isn't this the very definition of injustice?
Keywords: judicial interpretation, legislative intent, statutory interpretation, ex post facto laws, separation of powers, pushme-pullyou argument
JEL Classification: K40, K10, K30
Suggested Citation: Suggested Citation
D'Amato, Anthony, The Injustice of Dynamic Statutory Interpretation (October 5, 2010). University of Cincinnati Law Review, Vol. 64, No. 3, 1996; Northwestern Public Law Research Paper No. 10-55. Available at SSRN: https://ssrn.com/abstract=1688067