Academic

Vitarelli on the Constitutional Avoidance Canon

By Lawrence Solum

Anthony Vitarelli (Yale University - Law School) has posted Constitutional Avoidance Step Zero (Yale Law Journal, Vol. 119, 2009) on SSRN. Here is the abstract:

When construing ambiguous statutes, judges prefer interpretations that do not require the determination of a constitutional question - a long-standing practice known as ?constitutional avoidance? or the ?avoidance canon.? Contrary to the common understanding of constitutional avoidance, this Comment argues that employing the canon entails a more complicated process than merely selecting the least constitutionally problematic statutory interpretation. Rather, the avoidance canon first requires judges to engage in a preliminary factual inquiry to determine whether a litigant?s claim poses a risk of requiring constitutional adjudication at all. Drawing from the administrative law context, this Comment refers to that analysis as the Step Zero inquiry. For each of three paradigmatic statutory interpretation cases, the Comment describes how the majority employs the avoidance canon only after reaching a initial factual determination of constitutional doubt. Increased awareness of this Step Zero avoidance inquiry will reduce instrumental judicial behavior, force deliberation among the judiciary to determine the appropriate Step Zero threshold, and provide the optimal incentives for litigants and Congress. This Comment concludes by recommending additional avenues for scholarly exploration on this topic.

Very interesting student comment.

Full post as published by Legal Theory Blog on June 03, 2009 (boomark / email).