On the Bookshelves

Filling in the Gaps

From Einer Elhauge, a new approach to interpreting unclear legislation

Illustration
Hadley Hooper

Most judges, faced with the task of interpreting unclear statutes, want to do the right thing, says Harvard Law School Professor Einer Elhauge ’86. Unfortunately, it isn’t always easy.

The traditional methods that judges use—for example, relying on legislative history, or applying various canons of statutory construction—have significant flaws, Elhauge says, sometimes leading to results that the enacting legislature never intended. “It can be frustrating because it often seems like the existing material doesn’t provide a good indication” of what to do, he says. “How do you even think about what the right thing is, other than simply advancing your own views about what the right policy is?”

In interpreting ambiguous legislation, Elhauge says, the best option is to rely on “statutory default rules,” which are designed to maximize what he calls “enactable political preferences”—ideally, preferences shared by enough members of the current legislature that they would be passed into law if they were up for a vote—reflecting the will of the contemporary body politic.

In his latest book, “Statutory Default Rules: How to Interpret Unclear Legislation” (Harvard University Press, 2008), Elhauge offers up a set of such rules. The book, published in February, drew immediate interest from leading scholars and even judges, including U.S. Supreme Court Justice Stephen G. Breyer ’64, who traveled to HLS on March 3 to join 13 other experts from HLS and other schools for a conference on Elhauge’s approach.

The elements of Elhauge’s theory are manifold, subtle and sometimes even counterintuitive, but their core value is unmistakable: maximizing current political satisfaction. To that end, he argues that in the search for interpretive guidance, judges confronting ambiguous statutes should look first and foremost for relevant preferences that may have been expressed by current legislators or administrative agencies—not those who were in power when the ambiguous statute was enacted. “It turns out,” Elhauge writes, that “maximizing political satisfaction often dictates adopting statutory default rules that do not reflect the enactors’ most likely meaning or preferences.” Courts should look for the enactors’ preferences when those of the current polity cannot be inferred, he says.

Lest anyone think that Elhauge’s suggested approach is untested, he is quick to point out that many courts use such default rules already, “either under a different name, or without any name but implicitly through a pattern of practice.”

“I come at this as an outsider, in a sense, because I don’t teach legislation,” Elhauge says. “I was driven in part because of the very unsatisfactory nature of current statutory theory.”

In corporate law and contracts—subjects that Elhauge teaches—“default law reasoning is the dominant paradigm,” he says. “I noticed we had an oddity, that in these two fields, the dominant paradigm for interpreting ambiguous text was to use default rules, but in the area of statutory interpretation, that was not a dominant paradigm.”

When a contract fails to stipulate the time for payment for goods, Elhauge notes, judges are aided by a well-established default rule saying payment is due upon receipt of goods. He points to a number of similar rules judges can use in the many instances where statutes are unclear.

“There’s a nice, popular conception that judges are just umpires calling balls and strikes, and that they just have to mechanically apply the rules,” Elhauge says. “That’s a nice thing to sell, but it’s just not well-founded. There’s a lot of ambiguity that has to be resolved somewhere. Judges have to make judgment calls. My theory tries to acknowledge that, but also to be a theory that can constrain judges when they interpret, and constrain them in a good way to further the political preferences of all of us collectively. My theory is, we can acknowledge the fact that legal materials often don’t resolve the meaning of statutes but also let judges act as honest agents for us all.”

His book, he says, “provides a much more structured way of thinking about how to apply tools of statutory interpretation than we had before. It also provides a theoretical way of resolving all kinds of issues that have been viewed as simply incoherent in current statutory interpretation.”

Judges are the natural audience for the book, but Elhauge hopes it will also be useful to lawyers looking for underlying theories that might move courts in their direction. He believes it will also help law students and academics interested in political science and statutory interpretation.


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