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Statutory Interpretation and the Balance of Institutional Power

Published online by Cambridge University Press:  05 August 2009

Gordon Silverstein
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Extract

Rational choice scholars argue that there is no such thing as legislative intent, and that courts should abandon futile efforts to find and enforce that intent. Faced with ambiguous statutes, these scholars suggest judges either actively interpret statutes to achieve the best public policy possible; or they advise the judges to accept a default assumption that congressional ambiguity will be read as implicit delegation of interpretive discretion to the executive branch. Both options pose problems for the American system of separated institutions. Though legislative intent may be impossible to discern, an effort to identify legislative purpose may be critical to assure the maintenance of a balance of institutional power. How that purpose is identified is a problem not only for the Court, but for the legislative institutions responsible for statutory drafting and approval.

Type
Research Article
Information
The Review of Politics , Volume 56 , Issue 3: Special Issue on Public Law , Summer 1994 , pp. 475 - 501
Copyright
Copyright © University of Notre Dame 1994

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References

The author would like to acknowledge the advice and counsel of Samuel Krislov, and the inspiration and encouragement of Judith N. Shklar.

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