A More Modest Proposal than 'a Common Law for the Age of Statutes': Greater Reliance in Statutory Interpretation on the Concept of Interpretative Intention
24 Pages Posted: 14 Mar 2005
In A COMMON LAW FOR THE AGE OF STATUTES, Judge Calabresi observes that we are choking on obsolete statutes. Due largely to legislative inertia, these statutes have not been rewritten. To solve this problem, Judge Calabresi argues that we should grant courts a new power to update statutes. However, his proposal has been attacked on the ground that the proposal violates separation of powers; the proposal authorizes the courts to make the very type of policy judgment that the enacting legislature made in the first instance. At least in some cases, courts can solve the problem of obsolescent legislation without asserting the general updating power proposed by Judge Calabresi. The courts should rely more heavily on the concept of interpretative intention: the intention that a person would have had if he or she had anticipated a development. Part I describes the acceptance of the notion of interpretative intention in both philosophy and other legal contexts. Part II demonstrates the democratic legitimacy of employing the concept in statutory interpretation. Part III details the circumstances that should concur before a court invokes the concept of interpretative intention.
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