Interpreting Legislative Inaction
Eskridge Jr., William N.
Citation analytics
How this journal article sits in the citation network, derived from CiteLaw's graph of published opinions.
Citations by decade
Courts citing this journal article
Most recently cited by8
- 2024Steepologie, LLC Bankr. W.D. Tex.
- 2019Zucker v. Rodriguez 1st Cir.
- 2019Fry v. Lopez N.M.
- 2016Navajo Health Foundation-Sage Memorial Hospital, Inc. v. Burwell D.N.M.
- 2012Milwaukee Journal Sentinel v. City of Milwaukee Wis.
- 2004Wenke ex rel. Laufenberg v. Gehl Co. Wis.
- 2001Prostar v. Massachi 5th Cir.
- 1999Wallace v. Commerce Prop., Inc., No. Cv95 377552 (Nov. 24, 1999) Conn. Super. Ct.
Counts reflect decisions in the CiteLaw corpus and may lag very recent opinions.
Abstract
This month the Supreme Court will hear reargument in Patterson v. McLean Credit Union on the question of whether section 1981 prohibits discrimination by private parties. In this article, Professor Eskridge addresses the issue of how legislative inaction should affect statutory interpretation. He begins by constructing a detailed analysis of the Court's legislative inaction cases, arguing that the case law is much more coherent than previous analysts have suggested. Professor Eskridge then considers Justice Scalia's critique of that case law and provides support for Justice Scalia's views by distinguishing actual and presumed legislative intent, arguing that, based on a conception of actual intent, Justice Scalia's arguments have great persuasive power.
However, Professor Eskridge suggests presumed intent may be the more accurate basis for statutory interpretation, and he concludes that on such a basis the guidance provided by legislative silence in the Patterson context is compelling.