379. Einer Elhauge, Preference-Eliciting Statutory Default Rules, 07/2002; subsequently published in Volume 102, December 2002, Columbia Law Review 2162.
Abstract: One puzzlement of statutory interpretation is that so many statutory canons run contrary to likely legislative preferences, sound policy, or even the judicial self-interest in avoiding being legislative overridden. The first conflict seems inconsistent with honest agent theories of interpretation, including theories (like mine) that counsel judges to resolve statutory uncertainty in ways that maximize the satisfaction of enactable political preferences. The second conflict seems inconsistent with traditional legal models of interpretation that assume judges should exercise their own policy judgment in resolving statutory uncertainty. The third conflict seem inconsistent with more cynical modern rational choice models that assume judges try to push their own ideological views as far as they can without being overruled. These puzzlements are deepened by the commonplace observation that judges do not consistently apply these canons but often ignore them or apply counter-canons. This article argues that the solution to these puzzlements is to understand many canons as preference-eliciting statutory default rules, which maximize the satisfaction of enactable political preferences by eliciting a legislative reaction that eliminates uncertainty about what those preferences are. Such preference-eliciting default rules will, however, enhance political satisfaction only when one interpretive default rule is sufficiently more likely to elicit a legislative response to outweigh a weak estimate that another interpretation might better match enactable preferences. The seemingly inconsistent application of these canons can then be explained because this theory indicates these canons should not be uniformly applied but rather should be (and generally are) applied only in cases where these limited conditions are satisfied. Where the preferences of neither the enacting nor current legislatures can be reliably estimated or elicited, courts should and do use default rules that track the preferences of political subunits or, where that is unavailing, that limit the variance of judicial judgment. Various alternative default rules -- like interpreting all statutory ambiguities to disfavor interest groups, protect reliance interests, or reduce the effect or change caused by the statute - should be rejected because they are not limited to cases where they satisfy the conditions for maximizing political satisfaction but rather advance one view on substantive controversies that the political process is supposed to resolve.
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