Preferences, Laws, and Default Rules
Debating whether courts can and should use current enactable preferences as default rules
In his book Statutory Default Rules, Einer Elhauge responds to calls to assess statutory interpretation techniques through the lens of contract default rules.
Elhauge’s book is part of a trend in statutory interpretation scholarship: several scholars who write from a public choice perspective are working to develop theories of interpretation that incorporate some aspect of intentionalism. Initially, scholars influenced by public choice rejected using congressional intent as a guide in interpretation because they argued that the notion of intent in a collective body is incoherent and the main evidence of intent outside the statutory text – legislative history – is unreliable and strategically created. Their work formed the foundation of textualism.
A second, more sophisticated wave of public choice—influenced scholarship takes a different stance, working to determine principled methods of ascertaining the purpose that led to statutory enactments and then using that legislative intent to help resolve ambiguities and gaps in the text. Statutory Default Rules is part of that project. Elhauge’s insistence that clear statutory text must be given primacy in interpretation and cannot be varied by evidence of different legislative intentions demonstrates the influence of the first wave of this scholarship on his analysis (p. 65). But his use of “enactor preferences” and “preferences of the current legislative polity” as guides to meaning when the text is not clear is just a different way to ascertain legislative intent, either of the enacting legislators or the current members of Congress. He uses the insights of public choice to shape his theory of what legislative and other official materials interpreters should consult, but he does not eschew any effort to construct congressional intent, or “preferences,” to use the term he prefers.
This book review begins with a description of Elhauge’s system of default rules, with particular emphasis on the rules that relate to “current enactable preferences” (as opposed to the preferences of enactors) and the rules that are designed to elicit a reaction from legislators. Although Part I is largely an overview of Elhauge’s interpretive framework, it also critiques his treatment of the argument that the default rules are triggered only
when the textual language is unclear.