Donald Drakeman (University of Cambridge; Notre Dame Law School) has posted Charting a New Course in Statutory Interpretation: A Commentary on Richard Ekins' 'The Nature of Legislative Intent' (Cornell Journal of Law and Public Policy, Vol. 24, No. 1, 2014) on SSRN. Here is the abstract:
Jettisoned by many modern scholars, legislative intent is a critical component of statutory interpretation, according to a recent book by Richard Ekins [Ed.: The Nature of Legislative Intent (Oxford Univ. Press 2012)]. In what has been called the most philosophically sophisticated work on the subject of legislative intention, Ekins describes the well-formed legislature as a group agent that enacts laws based on coherent and reasoned plans that represent the legislature's intent. In interpreting the laws, the duty of courts is to infer that intent, which requires judges carefully to consider the chain of reasoning that led to a particular legislative choice about means and ends. Professor Ekins thus charts a new course in the debates over statutory interpretation between textualism's focus on semantic meaning and a much more open-ended purposivism. This Article sets out Ekins' discussion of the central case of the well-formed legislature, and his compelling argument for courts to interpret statutes by inferring the reasoned plan adopted by the legislature and made known in the text. It then analyzes the opportunities and challenges arising in applying Ekins' analysis to litigated cases and flesh-and-blood legislative bodies by focusing on how, and where, courts should look for evidence of that intent. It concludes that a thoughtful use of legislative history, though discarded by a great deal of contemporary scholarship, including Ekins' work, can be an essential element of the search for a statute's meaning.
We're honored that Professor Ekins (Oxford University) will be presenting a paper on interpretation and intent at the USD Originalism Works-in-Progress conference in February (A full list of the papers will be posted shortly).
Posted at 6:36 AM