378. Einer Elhauge, Preference-Estimating Statutory Default Rules, 07/2002; subsequently published in in Volume 102, December 2002, Columbia Law Review 2027.
Abstract: It is commonly assumed that statutory indeterminancy must be resolved by judicial judgment. This Article argues that where hermeneutics gives out, statutory indeterminancy instead can, is, and should be resolved by default rules designed to minimize the expected dissatisfaction of enactable preferences. This probabilistic goal justifies many judicial practices such as broad-ranging inquiries into legislative history even if it does not accurately reveal any shared legislative intent. It also often supports adopting moderate interpretations even when more extreme interpretations are more likely to match legislative preferences. Further, while the general default rule normally requires estimating enacting legislative preferences, the enacting legislature itself would prefer to shift to a default rule of tracking current legislative preferences when those can be reliably ascertained from official action. The basic reason is that the enacting legislature would prefer influence over the interpretation of the entire stock of statutes being interpreted while it is office rather than influence over the future interpretation (when it is out of office) of the statutory ambiguities that exist on the few topics for which it made enactments. Such a current preferences default rule explains many cases that rely on subsequent legislative action despite its hermeneutic irrelevance, and explains both the general doctrine of deference to agency interpretations and the pattern of exceptions to that deference.
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