Dynamic Statutory Drafting: Calculating the Price of Legislative Imprecision

Issues in Legal Scholarship, Dynamic Statutory Interpretation, Article 13, 2002

Minnesota Legal Studies Research Paper

Posted: 1 May 2006

See all articles by James Ming Chen

James Ming Chen

Michigan State University - College of Law

Abstract

Inflation touches many areas of law, and the law's response to inflation constitutes a policymaking opportunity in its own right. Legislators have long realized that the use of specific dollar figures or economic formulas can render statutes obsolete. Yet Congress's response to the most basic type of economic change hardly reflects careful policymaking. Federal statutes specifying one price index strongly favor the Bureau of Labor Statistics' Consumer Price Index (CPI) over the implicit price deflator (IPD) derived from the Bureau of Economic Affairs' computation of the gross domestic product. The IPD, however, boasts two methodological advantages that enable it to outperform the CPI in many circumstances. The IPD not only covers a deeper range of goods and services in the economy; it also eschews the fixed-weighted market-basket approach of the CPI. Both features offset the CPI's tendency to over report the rate of price change in the U.S. economy. Adopting the superior inflation index does present a daunting legal task. Because courts cannot countermand specific legislative references to one index or the other, and because neither index suits for all legislative needs, substitution of the IPD for the CPI (or vice versa) must almost invariably be achieved through piecemeal amendment. Like statutory interpretation ex post, legislative drafting ex ante demands both an expectation of imperfection and an enduring commitment to reinvention.

A fuller version of this article, The Price of Macroeconomic Imprecision: How Should the Law Measure Inflation?, 54 Hastings L.J. 1375 (2003), is available for download at http://papers.ssrn.com/abstract=771244.

Keywords: inflation, discount rates, purchasing power parity, consumer price index, implicit price deflator, gross domestic product, CPI, GDP

JEL Classification: C10, E30, E31, L51, O47

Suggested Citation

Chen, James Ming, Dynamic Statutory Drafting: Calculating the Price of Legislative Imprecision. Issues in Legal Scholarship, Dynamic Statutory Interpretation, Article 13, 2002; Minnesota Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=899900

James Ming Chen (Contact Author)

Michigan State University - College of Law ( email )

318 Law College Building
East Lansing, MI 48824-1300
United States

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