Law Commons^™

Introduction To Special Issue: Determining Legislative Intent In State Courts, Selected Methods And Sources, Linda Kawaguchi

Linda Kawaguchi

Judges and legislators alike have expressed a desire for more certainty on how and when legislative history should be used, both in the interpretation of statutes and to ascertain intent. This is an evolving area of the law, and states appear to be taking the lead in experimenting with methods to provide clarity to what has traditionally been a murky issue. These changes will have an impact on researchers in the future. The articles included in this issue were selected to demonstrate a range of approaches in the areas of legislative process, the history of courts and legislatures addressing the …

Against Constitutional Mainstreaming, Bertrall L. Ross

Bertrall L Ross

Courts interpret statutes in hard cases. Statutes are frequently ambiguous, and an enacting legislature cannot foresee all future applications of a statute. The Supreme Court in these cases often chooses statutory interpretations that privilege the values that it has emphasized in its recent constitutional jurisprudence. In doing so, the Court rejects alternative interpretations that are more consistent with the values embodied in more recently enacted statutes. This is constitutional mainstreaming—an interpretive practice that molds statutes toward the Court’s own preferred values and away from values favored by legislative majorities.

In addition to providing a novel descriptive framework for what the …