Aaron-Andrew P. Bruhl, William & Mary Law School, has posted The Forgotten History of Legislative Interpretive Directives, which is forthcoming in the Texas Law Review:
This Article addresses an overlooked aspect of the history of legal interpretation: the early emergence of "legislative interpretive directives," enactments in which legislatures instruct courts on the rules for interpreting statutes. Although some modern courts and commentators treat such directives as constitutionally suspect, it is the objection to legislative directives that is new, not the directives themselves. As far back as the early republic, and with increasing frequency in the nineteenth-century age of codification, state legislatures enacted interpretive directives that changed the judicially developed rules. And courts applied those instructions without suggesting that they violated separation-of-powers principles. Early treatise writers sometimes raised pragmatic concerns about the directives' usefulness, concerns that originated in English decisions, but the commentators did not raise constitutional objections.
This Article reconstructs the long tradition of legislative interpretive directives and chronicles the slow emergence, in the twentieth century, of constitutional doubts about legislative authority to guide statutory interpretation. By recovering the forgotten past of interpretive directives, the Article presents an alternative vision of the division of authority over interpretation. It also provides resources for state courts that want to understand their own constitutional histories. And by tracing the intellectual history of how early receptivity to legislative involvement turned into skepticism, the project contributes to the literature on the rise of judicial power.
--Dan Ernst
