Attention to Context in Statutory Interpretation: Applying the Lessons of Dynamic Statutory Interpretation to Omnibus Legislation

Elizabeth Garrett

doi:10.2202/1539-8323.1020

William Eskridge's Dynamic Statutory Interpretation provided a foundation for a second generation of scholarship, which aims to assess the empirical basis for various interpretive methodologies, including Eskridge's own dynamic statutory interpretation. Many working in this second generation of scholarship have turned to studies of government institutions so that we can understand their capabilities and limitations and develop more satisfying theories of institutional choice and institutional design. One recent trend in the federal legislative process that has institutional implications for Congress and may therefore affect statutory interpretation is the rise of omnibus legislation. This essay provides a beginning assessment of this legislative process and relates omnibus lawmaking to Eskridge's analysis in Dynamic Statutory Interpretation. First, the essay briefly discusses the rise of omnibus legislation at the federal level. Second, it assesses how an awareness of unusual aspects of omnibus lawmaking might lead us to revise our view of certain tools of statutory interpretation, particularly the canons of construction. Finally, it concludes with some thoughts about whether the challenges posed by omnibus laws put too great a burden on the institutional capacities of courts, a question analyzed in a related context in the concluding pages of Dynamic Statutory Interpretation.

Attention to Context in Statutory Interpretation: Applying the Lessons of Dynamic Statutory Interpretation to Omnibus Legislation

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