IMPERFECT STATUTES, IMPERFECT COURTS: UNDERSTANDING CONGRESS'S PLAN IN THE ERA OF UNORTHODOX LAWMAKING

• Published in: Harvard law review Vol. 129; no. 1; pp. 62 - 111
• Main Author: Gluck, Abbe R.
• Format: Journal Article
• Language: English
• Published: Cambridge The Harvard Law Review Association 01.11.2015; Harvard Law Review Association
• Subjects: COMMENTS; Courts; DEMOCRACY; Federal courts; Interpretation and construction; Law; Legislative process; Legislators; Legislatures; Litigation; Patient Protection & Affordable Care Act 2010-US; Politics; Presumptions (Law); RULE OF LAW; Social aspects; Statutes; STATUTORY INTERPRETATION; Subordination; United States; UNITED STATES; United States > US
• ISSN: 0017-811X; 2161-976X

Statutory interpretation often seems like a doctrinal and jurisprudential abyss. We didn't need "Obamacare" to show us that, but it sure helped. The Court's statutory cases over the past decades have had the feeling of being "one-offs": the Court seems to careen from case to case, wielding literally hundreds of interpretive presumptions that have no hierarchy among them, no link to Congress, and that seek to impose a coherence and simplicity on modern statutes that those statutes cannot bear. It is nearly impossible to predict which of these presumptions - the so-called canons of construction - will control the next case. The Court's dominant theorists, its textualists, defend these doctrines on the ground that Congress is incomprehensible and so these rules and a laser focus on text are the best that courts can do. And yet no modern court is going to read a thousand-page statute cover-to-cover. Sometimes the cases focus on a single word; it can feel like a game even though the stakes are incredibly high.