Statutory interpretation, Kent Greenawalt, Faithful performance, Legislative intent in statutory interpretation
Law and Society | Legal History, Theory and Process | Legislation
Professor Greenawalt proposes that we look at interpretation "from the bottom up." By taking a close look at informal relationships between an authority and his or her agent, and how the agent "faithfully performs" instructions within such relationships, he hopes to gain insight into the problems surrounding the interpretation of legal directives. The analysis of "faithful performance" in informal contexts which Professor Greenawalt presents in From the Bottom Up is the first step in a larger project. His next step is to see what lessons the interpretation of instructions in informal contexts has for law. This Comment tries to contribute to that next step.
One might continue Professor Greenawalt's project in one of at least two ways (though Professor Greenawalt may have neither in mind). First, one could try to identify the insights developed in the informal context and then transpose them more or less directly onto the legal context. Second, one could try to stay roughly within the context of informal relationships of authority, but try to make them look more like the relationships of authority that typically obtain within law. I take the second of these two approaches.
In Part I, I offer some variations on one of the stories Professor Greenawalt uses to explore "bottom-up" interpretation. Professor Greenawalt does not directly enter the contemporary debate surrounding questions of statutory interpretation. Nonetheless, he does show how important a principal's subjective intent is to an agent's effort to faithfully perform, and he does hope "we can learn something about ... the possible legal relevance of the intent of those who issue directions." Accordingly, Part II closes with some general and well-known caveats about the role of intent in statutory interpretation.
Garvey, Stephen P., "Are Housekeepers Like Judges?" (1997). Cornell Law Faculty Publications. Paper 275.
Published in: Cornell Law Review, vol. 82, no. 5 (July 1997).