Statutory Interpretation As Contestatory Democracy

85 Pages Posted: 6 Nov 2013 Last revised: 17 Oct 2014

See all articles by Glen Staszewski

Glen Staszewski

Michigan State University College of Law

Date Written: November 5, 2013

Abstract

This Article provides a novel solution to the counter-majoritarian difficulty in statutory interpretation by applying recent insights from civic republican theory to the adjudication of statutory disputes in the modern regulatory state. From a republican perspective, freedom consists of the absence of the potential for arbitrary domination, and democracy should therefore include both electoral and contestatory dimensions. The Article argues that statutory interpretation in the modern regulatory state is best understood as a mechanism of contestatory democracy. It develops this conception of statutory interpretation by considering the distinct roles of legislatures, administrative agencies, and courts in making and implementing the law. The Article claims that this understanding of statutory interpretation is both descriptively accurate and normatively attractive, and it explores some of the most important implications of recharacterizing statutory interpretation in this fashion. Specifically, this understanding of statutory interpretation sheds new light on the most fundamental problems with textualism, and it provides reasons to give serious consideration to proposals for increased judicial candor in statutory interpretation and for judicial review of at least some types of legislation for due process of law making.

Keywords: statutory interpretation, civic republican theory, democratic theory, legislation, administrative law

Suggested Citation

Staszewski, Glen, Statutory Interpretation As Contestatory Democracy (November 5, 2013). William & Mary Law Review, Vol. 55, No. 1, 2013, MSU Legal Studies Research Paper No. 11-18, Available at SSRN: https://ssrn.com/abstract=2350213

Glen Staszewski (Contact Author)

Michigan State University College of Law ( email )

420 Law College Building
East Lansing, MI 48824-1300
United States
517-432-6888 (Phone)
517-432-6879 (Fax)

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