Statutory Interpretation in Econotopia

Abstract

Much of the debate in the recent revival of interest in statutory interpretation centers on whether or not courts should use legislative history in construing statutes. The consensus in favor of this practice has come under sharp attack from public choice critics who argue that traditional models of legislative intent are positively and normatively incoherent. This paper argues that in actual practice, courts look at a fairly narrow subset of legislative history. By thinking about the power to write that legislative history as a property right and legislatures as markets, it is actually possible to use Coase's Theorem and the concept of Pareto optimality to justify current judicial practice. However, such a justification suggests that certain aspects of current practice should be changed.

Keywords: statutory interpetation, legislative history, textualism, law and public choice, law