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EINER ELHAUGE
Statutory Default Rules
How to Interpret Unclear Legislation
HARVARD UNIVERSITY PRESS
Cambridge, Massachusetts, and London, England
2008
2ND PASS
MASTER
20509_i-x_1-390.r2Di.qxd 8/24/07 1:19 PM Page iii
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2ND PASS
MASTER
CHAPTER 1
Introduction and Overview
The Legal Dilemma
You are a conscientious judge, and you have a problem. The case before you
presents an important question of statutory interpretation. Having listened
dutifully in law school, you understand that the primary issue before you is
to determine the meaning of the statute. Unfortunately, you also know that
there is no consensus about how to do that. You try formalism on for size,
and thus at first focus only on the statutory text and a dictionary that was
published as close in time to the statutory enactment as you can find. But
you are well aware of the extensive critique that says that formalistic ap-
proaches exclude much of the evidence that is relevant to determining what
the legislature meant. Formalism also sometimes leads to results that seem
absurd or contrary to what the legislature could have possibly desired.
Moreover, even after applying the full panoply of approved formalistic tech-
niques, you are forced to admit that the statutory meaning remains unclear
in your case. You have narrowed the range of possible interpretations to a
few options, but cannot really say with any confidence that one of them is
the meaning of the statute.
So you consider turning to legislative history, as most judges do, to try to fig-
ure out the legislative intent or purpose that should help resolve the ambigu-
ity in meaning. But you are also aware of the equally extensive critique that
has been leveled against this practice. You know there is really no such thing
as a shared intent or purpose in a multimember legislatu