Canon Shortfalls and the Virtues of Political Branch Interpretive Assets

21 Oct 2010 10:11am James J. Brudney 

This Essay examines Frickey’s treatment of the canons of construction, an aspect of his attentiveness to complexity. Two general themes emerge from the discussion and analysis in a number of Frickey’s articles. One is his effort to unmask: he critically assesses descriptive claims that the canons promote more predictable construction of statutes, as well as normative claims that they foster more neutral policy outcomes. The second theme is Frickey’s effort to understand and justify: he views the canons as performing a useful role for the judiciary as an institution in certain settings. Ultimately, Frickey defends the canons as an institutional resource, but in more reserved terms than those offered by canon enthusiasts.

The Essay then expands upon Frickey’s concerns by presenting two sets of observations that focus on how the canons differ from legislative history and agency guidance. Based on these observations, the Essay suggests that the canons should be subordinated to interpretive resources produced by the institutions of Congress and the executive.

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