Interpreting Legislative Inaction

This month the Supreme Court will hear reargument in Patterson v. McLean Credit Union on the question of whether section 1981 prohibits discrimination by private parties. In this article, Professor Eskridge addresses the issue of how legislative inaction should affect statutory interpretation. He begins by constructing a detailed analysis of the Court’s legislative inaction cases, arguing that the case law is much more coherent than previous analysts have suggested. Professor Eskridge then considers Justice Scalia’s critique of that case law and provides support for Justice Scalia’s views by distinguishing actual and presumed legislative intent, arguing that, based on a conception of actual intent, Justice Scalia’s arguments have great persuasive power. However, Professor Eskridge suggests presumed intent may be the more accurate basis for statutory interpretation, and he concludes that on such a basis the guidance provided by legislative silence in the Patterson context is compelling.