Metademocracy: the changing structure of legitimacy in statutory interpretation
Article Abstract:
Four new metademocratic approaches have emerged to replace institutional essentialism as a theory guiding statutory construction. Institutional essentialism bases democratic legitimacy on originalism and judicial neutrality, whereas the newer metademocratic conceptions emphasize interpretive rules for resolving statutory ambiguity and advancing a specific theory of democracy. The Supreme Court in Chevron, Inc. v. Natural Resources Defense Council has taken a preservationist metademocratic approach. Scholars have proposed other methods, including reconstructionist, complementarian, and disciplinarian approaches.
Publication Name: Harvard Law Review
Subject: Law
ISSN: 0017-811X
Year: 1995
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Why Learned Hand would never consult legislative history today
Article Abstract:
Judges should reject the use of legislative histories in statutory interpretation, but not for the reasons expounded by Justice Antonin Scalia. Scalia holds that only the statute is relevant, not related thoughts on the issue. Many judges properly prefer the 'congressional agent' interpretation method identified with Judge Learned Hand. This mode encourages the judge to envision how the legislators wanted the statute to be applied. However, judges using this method should also reject the use of legislative histories, which are infamous for their politically motivated inaccuracy.
Publication Name: Harvard Law Review
Subject: Law
ISSN: 0017-811X
Year: 1992
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Erie-effects of volume 110: an essay on context in interpretive theory
Article Abstract:
Articles by Dan Cahan on Chevron deference in criminal statutory interpretation and Curtis Bradley and Jack Goldsmith on customary international law's place in US federal common law are both examples of the type of legal change unsupported by democratic authority. Both arguments involve interpretational shifts similar to the shift seen in the 1938 Supreme Court opinion in Erie Railroad Co. v. Tompkins. Theories of legal interpretation need to be able to incorporate the possibility of these types of contextual or institutional change.
Publication Name: Harvard Law Review
Subject: Law
ISSN: 0017-811X
Year: 1997
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