A Private Law Insight into a Public Law Problem?

D. Zachary Hudson, Interpreting the Products of Direct Democracy, 28 Yale Law & Policy Review 223 (2009). Heather Gerken For election law and statutory interpretation junkies, there's a nifty student note in the Yale Law and Policy Review by Zachary Hudson on how to construe the products of direct democracy. (In the interest of full disclosure, I should note that I played no role in supervising the paper). As I teach my students in election law, judges always face a dilemma when trying to figure out what an initiative means. Initiatives are often vaguely worded and lacking in detail. And the usual tools courts deploy to deal with vague texts in the legislative context – like legislative reports – aren't as helpful here. Even when an initiative is accompanied by a handbook or the like, there's no guarantee that the voters read it before they cast a ballot. And judges are often reluctant to look to advertisements, media coverage, or surveys as evidence of the voters' intent, as these inquiries seem pretty far afield from the usual assessments involved in judicial review. Finally, we all know it's hard to figure out Congress' intent because Congress is "a they, not an it" (when you talk about "congressional intent," you are really trying to capture the views of many legislators with vastly different motivations). Needless to say, it is even harder to figure out the intent of the multitude we call "the people." Continue reading "A Private Law Insight into a Public Law Problem?"

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