Legislation and Statutory Interpretation

by Eskridge, William N.

• ISBN13: 9781566627986
• ISBN10: 1566627982
• Edition: 1st
• Format: Paperback
• Copyright: 2000-01-01
• Publisher: West Group

Table of Contents

Dedication	iii
Preface	v
A Note on Citation Practice	vii
Table of Cases	xv
An Introduction to Legislation	1	(18)
Theories of Representation	19	(48)
Direct versus Representative Democracy	22	(17)
Should We Have a Representative Democracy?	23	(3)
Representative Plus Direct Democracy	26	(7)
The Role of the Courts in Policing Direct Democracy	33	(6)
Qualification and Election of Representatives	39	(16)
Who Is Eligible To Serve as a Representative?	40	(6)
The Right To Political Participation: Voting and Choice	46	(3)
Fair Aggregation of Votes and Gerrymandering	49	(6)
``Corruption'' in Representatives' Deliberations	55	(12)
Corruption the Old-Fashioned Way: Bribery	56	(1)
Other Regulation of Corrupt Conflicts of Interest	57	(3)
Money in Politics: Does It ``Corrupt''?	60	(7)
Theories of the Legislative Process	67	(48)
Proceduralist Theories	68	(13)
The Legislature as an Obstacle Path	68	(9)
Vetogates as a Method To Make Legislating Difficult and Infrequent	77	(1)
The Effect of Proceduralism on Legislative Deliberation	78	(3)
Interest Group Theories	81	(16)
Interest Group Liberalism: Pluralism as Positive Force in Politics	82	(3)
Public Choice Theory: Interest Groups as Pernicious Political Influences	85	(5)
Interest Group Theories and the Transactional Model of the Political Process: Explanation and Criticisms	90	(7)
Institutional Theories	97	(18)
The Effect of Institutions on Decisionmaking	97	(5)
Positive Political Theory: Institutionalism and Game Theory	102	(2)
The Article I, Section 7 Game	104	(1)
Interactive, Sequential Lawmaking by Interrelated Actors	104	(3)
The Proposed BTU Tax: A Case Study	107	(4)
Further Developments in the Game	111	(4)
Electoral Structures	115	(42)
Regulating Ballot Access and Campaigns	117	(14)
The Constitutional Issues Implicated by Ballot Access Laws	118	(4)
Criticisms of the Court's Permissive Approach to Ballot Access Laws	122	(3)
Ballots, Voting Cues, and the Informed Voter	125	(6)
Regulation of Political Parties and Their Selection of Candidates	131	(8)
State Regulation of Parties' Methods of Selecting Candidates	132	(3)
Judicial Involvement in Parties' Internal Decisions	135	(2)
Patronage: Corrupt Practice or Politics as Usual?	137	(2)
Campaign Finance Reform	139	(18)
The Federal Election Campaign Act	141	(4)
Current Federal Campaign Finance Reform Issues	145	(6)
State Campaign Finance Reform Laws	151	(6)
Legislative Structures	157	(54)
Legislative Immunities	159	(9)
Speech or Debate Clause: The Sole Protection for Members of Congress	159	(4)
Defining Legislative Acts: The Narrow Scope of the Speech or Debate Clause	163	(3)
Immunities Accorded to State Lawmakers	166	(2)
Structures that Shape Legislative Deliberation	168	(21)
Single-Subject Requirements	169	(6)
Due Process of Lawmaking: A Concept for Courts and Legislatures	175	(6)
The Federal Budget Process	181	(8)
The Effect of Outside Forces on the Legislative Process	189	(22)
The Regulation of Lobbying: Relying on Disclosure To Combat Corruption	189	(8)
The Line Item Veto Power	197	(6)
Congressional Interaction with the Executive Branch: The Legislative Veto and Oversight	203	(8)
Theories of Statutory Interpretation	211	(38)
Intentionalist Theories	213	(10)
Specific Intent	214	(4)
Imaginative Reconstruction	218	(2)
Purposivism	220	(3)
Textualist Theories	223	(13)
The Soft Plain Meaning Rule	223	(4)
The New Textualism	227	(3)
Critiques of the New Textualism	230	(6)
Dynamic Theories	236	(13)
Best Answer Theories	237	(3)
Pragmatic Theory	240	(3)
Critical Theories	243	(6)
The Role of Text and Precedent in Statutory Interpretation	249	(38)
Sources for Discerning Statutory ``Plain Meaning''	251	(12)
Ordinary Meaning Canons	251	(2)
Canons of Word Association (Noscitur a Sociis and Ejusdem Generis)	253	(2)
Canons of Negative Implication (e.g., Inclusio Unius)	255	(1)
Grammar and Punctuation Canons (e.g., The Rule of the Last Antecedent)	256	(3)
Exceptions to Ordinary Grammar Rules (Man Includes Woman, Singular Includes Plural)	259	(1)
Avoiding Absurd Results and Correcting Scriveners' Errors	260	(3)
Whole Act Rule and Holistic Textual Sources	263	(13)
Presumption of Statutory Consistency	264	(2)
The Rule Against Surplusage	266	(2)
Statutory Amendment and Evolution	268	(1)
Statutory Structure	269	(3)
Other Parts of the Statute: Preambles, Titles, Provisos	272	(1)
Statutory Conflicts (No Repeals by Implication; Last Enacted Rule; Specific over General)	273	(3)
Precedent and Statutory Meaning	276	(11)
The Super-Strong Presumption of Correctness for Statutory Precedents	277	(4)
The Reenactment Rule	281	(2)
Judicial Constructions of Similar Statutes	283	(4)
Extrinsic Sources for Statutory Interpretation	287	(42)
The Common Law	290	(5)
Legislative History	295	(17)
Criteria for Using Legislative History	296	(6)
Hierarchy of Legislative History Sources	302	(6)
The Relationship Between Legislative History and Plain Meaning	308	(4)
Administrative Interpretations	312	(17)
The Chevron Revolution?	313	(6)
Scope and Details of the Agency-Deference Doctrine	319	(7)
Critique of Strong Judicial Deference to Agency Interpretations	326	(3)
Substantive Canons of Statutory Interpretation	329	(46)
An Overview of the Substantive Canons	331	(16)
Liberal versus Strict Construction --- Change versus Continuity in Legal Regimes	331	(8)
Presumptions and Clear Statement Rules	339	(3)
Policies Potentially Served by Substantive Canons	342	(5)
Three Important Substantive Canons	347	(22)
Avoiding Serious Constitutional Issues	348	(6)
The Federalism Canons	354	(8)
The Rule of Lenity	362	(7)
Conclusions About the Canons --- and About Statutory Interpretation	369	(6)
Appendix. The Rehnquist Court's Canons of Statutory Construction	375	(10)
Index	385