42 Pages Posted: 7 Oct 2016
Date Written: November 2015
In recent years, most would associate “intent skepticism” with the rise of modern textualism. In fact, however, many diverse approaches — legal realism, modern pragmatism, Dworkinian constructivism, and even Legal Process purposivism — all build on the common theme that a complex, multimember body such as Congress lacks any subjective intention about the kind of difficult issues that typically find their way into court. From that starting point, competing approaches have tended to focus on which interpretive method will promote appropriate conceptions of legislative supremacy and the role of the courts in our constitutional system. The debates, in recent years, between textualists and modern defenders of Legal Process purposivism (such as Professor Peter Strauss) nicely illustrate that emphasis.
A new generation of empirical scholarship, however, has raised questions about the intent skepticism that has long framed the interpretation debate. Most prominently, Professors Abbe Gluck and Lisa Bressman conducted an extensive survey of the understandings and practices of 137 members of the congressional staff who are engaged in legislative drafting. According to the authors, the resultant findings show, inter alia, that some interpretive approaches cannot be squared with legislative intentions while others nicely reflect such intentions. Ultimately, however, this Essay concludes that the study’s findings, although illuminating, do not alter the baseline of intent skepticism against which the statutory debate has proceeded. Indeed, the very idea of legislative intent remains unintelligible without a normative framework that structures what should count as Congress’s decision.
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