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Harvard Law Review


Discussing the judge's role in interpreting statutes, Justice Holmes wrote that "if my fellow citizens want to go to Hell I will help them. It's my job."' Critics of the view of the courts as passive agents of the legislature claim that it understates the difficulty of interpretation, the indeterminacy of both the language and the will of the citizens, and the resulting discretion of the judge. Similarly, a vigorous debate continues over the proper role of the traditional sources of statutory interpretation - the text, the legislative history, the purpose of the enacting Congress, and the structure of the statute. Professor Sunstein suggests that both the conventional understandings of interpretation and the recent critiques are seriously flawed. Because interpretation inevitably involves the application of "background norms" - often controversial, value-laden, and not found in any text - the traditional theories are incomplete. These theories, however, properly stress the democratic primacy of Congress. When congressional instructions are clear and do not create absurdity, courts should follow them. Often, however, the instructions are ambiguous, and judges must choose from a number of possible background norms. Suggesting that many disputes over statutory meaning are in fact disagreements over appropriate background norms, Professor Sunstein contends that the debate should center on whether the proposed norms express a good understanding of constitutional values; are properly responsive to contemporary institutional arrangements involving the making, monitoring, and enforcement of law; and are sensitive to the aspirations and functions as well as the shortcomings of regulatory statutes. Professor Sunstein concludes by outlining a series of norms - some based on current interpretive practices, others reflecting his own normative vision. All the norms are designed to focus disputes over statutory meaning more sharply on the underlying issues and to deepen understanding of the regulatory state.

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