Judges test statutory reach by asking how the lawmaker would answer if consulted

Evidence

“By the equitable construction, a case not within the letter of the statute is sometimes holden to be within the meaning, because it is within the mischief for which a remedy is provided. The reason for such construction is that the law makers could not set down every case in express terms. In order to form a right judgment whether a case be within the equity of a statute, it is a good way to suppose the law-maker present, and that you have asked him this question, did you intend to comprehend this case? Then you must give yourself such answer as ou imagine he, being an upright and reasonable man, would have given. If this be that he did mean to comprehend it, you may safely hold the case to be within the equity of the statute; for while you do no more than he would have done, you do not act contrary to the statute, but in conformity thereto.” — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process, 1902

Categorization

• DEFINE: The hypothetical-upright-lawmaker test is the classic procedure for deciding whether a case falls within a statute’s equity — a technique central to one of legal education’s most famous cases.
• XREF: connects to: Plain-meaning interpretation itself presupposes a policy rule favoring literal reading — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process: Basic Problems in…, 1989; A legislature’s omission of a known exception signals deliberate intent to exclude it — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process: Basic Problems in…, 1872; Calling interpretation ‘discretion’ obscures the deciding officer’s duty to seek the right answer. — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process: Basic Problems in…, 2820 (+1 more)

Broader Connections

• Judges should use consequences to guide statutory interpretation. #corroborates (0.72) — Richard A. Posner, What Has Pragmatism to Offer Law?, 116