Tyler B. Lindley (Brigham Young University – J. Reuben Clark Law School) has posted Interpretive Lawmaking (65 pages) on SSRN. Here is the abstract:
For nearly 100 years, prevailing American legal thought has rejected the idea that there can be unwritten bodies of law that judges ascertain and apply just as they do written law. Instead, the story goes, the only preexisting set of legal rules come from written texts; all other rules—at common law, in equity, or in filling gaps in statutory or constitutional text—are necessarily made by judges. So, when a written text fails to provide a legal rule, courts have the power to make policy decisions and create one, subject to some limitations such as the Due Process Clause.
But the Founders understood judges to be capable of resolving disputes by only finding law—a belief that persisted into the early 20th century. Not only did judges lack the authority to make law at common law or in equity, but they also lacked authority to make law in applying written text—even when traditional methods of finding and applying written law provided no answer and even if Congress intended to delegate lawmaking power. What’s more, the judicial power granted in Article III was not originally under-stood to have included a freestanding lawmaking power. And because it is possible for judges to find law, that original understanding might constrain the judiciary today. To be sure, it is often difficult to know where interpretation and application end and lawmaking begins. And the Founders’ conception of the judicial role might not be binding or might have been altered by nearly a century’s practice. But judges, especially originalist judges, should seriously confront the fact that as an original matter the Constitution granted judges no lawmaking power.
This Article also explores how several current judicial doctrines might change if courts refused to make law in applying written text. For example, Article III could offer its own prohibition against vague statutes—subject to different requirements and remedies than the conventional Due Process-based vagueness doctrine. A return to the original understanding of the judicial power would cast doubt on the judicial practices of interstitial lawmaking and of making law when applying so-called “common-law statutes.” And Erie guesses might raise Article III concerns if the relevant state court is authorized make law (in which case federal courts predicting such a state court would be impermissibly law-making). Stare decisis considerations might counsel caution in some areas. But judges should also approach the constitutional problems and doctrinal inconsistencies caused by uncritical judicial lawmaking with clear eyes.
Posted at 6:06 AM