The Role of Purposivism in the Delegation of Rulemaking Authority to the Courts

Forthcoming: Vermont Law Review


The courts are often used by Congress as a “political lightning rod,” when Congress cannot decide how to resolve an issue. Congress relies on administrative agencies for their expertise, and it also makes sense for Congress to delegate some rulemaking authority to the courts, relying on a court’s expertise in developing caselaw in an incremental basis. However, this authority should not be lightly implied. A court can tell that Congress has delegated rulemaking authority to it when the purpose of the statute is clear and the text is broadly worded. It thus makes sense in these cases that purposivism should be used to interpret the statute. Forgotten because of the current focus on the debate between textualism and intentionalism, purposivism is the most probative tool when Congress has delegated rulemaking power to the courts. The major critiques of purposivism lose much of their force when only considered in this light. However, purposivism can be a very unreliable, and while it should be used in some narrow cases, other methods of interpretation should predominate when the statute is detailed or the purpose is unclear. With a resurgence of purposivism, judges can play a helpful role in the development of legislation.


Constitutional Law | Courts | Judges | Jurisprudence | Legal Writing and Research | Legislation

Date of this Version

March 2004