Posts Tagged ‘Frickey’

To work effectively with statutes, just as with cases, it is necessary to have some kind of guiding notion, either articulate or inarticulate, about what you are doing and why. These materials proceed on the assumption that a working theory which is consciously developed and articulate is better than one which is taken for granted upon unexamined premises and hence inarticulate. They try to provide the wherewithal for the development of such a theory. But in embarking upon this enterprise it is important not to be misled about the nature of it.

Do not expect anybody’s theory of statutory interpretation, whether it is your own or somebody else’s, to be an accurate statement of what courts actually do with statutes. The hard truth of the matter is that American courts have no intelligible, generally accepted, and consistently applied theory of statutory interpretation.

When an effort is made to formulate a sound and workable theory, therefore, the most that can be hoped for is that it will have some foundation in experience and in the best practice of the wisest judges, and that it will be well calculated to serve the ultimate purposes of law.

Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1169 (tent. ed. 1958), as edited by William N. Eskridge, Jr. & Phillip P. Frickey (Foundation Press 1994).


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