The Judge as a Fly on the Wall: Interpretive Lessons from the Positive Political Theory of Legislation

68 Pages Posted: 22 Apr 2005

See all articles by Cheryl Boudreau

Cheryl Boudreau

University of California, Davis

Mathew D. McCubbins

Department of Political Science and Law School, Duke University

Daniel B. Rodriguez

Northwestern University - Pritzker School of Law

Date Written: May 2005

Abstract

In the modern debate over statutory interpretation, scholars frequently talk past one another, arguing for one or another interpretive approach on the basis of competing, and frequently undertheorized, conceptions of legislative supremacy and political theory. For example, so-called new textualists insist that the plain meaning approach is compelled by the U.S. Constitution and rule of law values; by contrast, theorists counseling a more dynamic approach often reject the premise of legislative supremacy that is supposed by the textualist view. A key element missing, therefore, from the modern statutory interpretation debate is a conspicuous articulation of the positive and empirical premises underlying the normative theory of interpretation; and, in particular, an unclear portrait of the theory of lawmaking supporting the theory of interpretation.

In this paper, we consider statutory interpretation from the perspective of positive political theory (PPT) looking, first, at the best framework for understanding the relationship between duly authorized lawmakers and the judge/interpreters. We build upon the modern literature of communication theory to support the familiar view that a statute is best understood as an act of communication by the legislature to an audience. PPT helps us to draw various lessons for modern interpretation debates from this assumption. We consider several of these lessons in our paper, and we focus especially on the hoary debate over the use and utility of legislative history in construing ambiguous statutory language.

Keywords: statutory interpretation, positive political theory, political economy of legislation

Suggested Citation

Boudreau, Cheryl and McCubbins, Mathew D. and Rodriguez, Daniel B., The Judge as a Fly on the Wall: Interpretive Lessons from the Positive Political Theory of Legislation (May 2005). San Diego Legal Studies Research Paper No. 06-12. Available at SSRN: https://ssrn.com/abstract=705362 or http://dx.doi.org/10.2139/ssrn.705362

Cheryl Boudreau

University of California, Davis ( email )

One Shields Avenue
Davis, CA 95616
United States

Mathew D. McCubbins

Department of Political Science and Law School, Duke University ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

Daniel B. Rodriguez (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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