Dynamic Interpretation of Economic Regulatory Statutes, 21 L. & Pol'y Int'l Bus. 663 (1990)
Dynamic statutory interpretation recognizes that statutes evolve as various interpreters apply them to changing circumstances over time. Hence, an interpretation rendered today may not be the same as the one that would have been rendered when the statute was originally enacted. The scholarship exploring dynamic statutory interpretation has thus far focused on statutes implicating civil and personal rights. Scholars have focused on such statutes because they raise interesting issues and because the evolution of such statutes is dramatically influenced by evolving constitutional principles. By focusing on statutes implicating civil and personal rights, however, we have neglected the ways in which other types of legislation evolve. For example, economic regulatory legislation evolves as much as, and in some ways more dramatically than, civil rights statutes. Just as civil rights statutes evolve in response to changing social patterns and new constitutional theories, regulatory legislation evolves in response to changing economic patterns and new economic theories.
This commentary applies dynamic statutory interpretation theory to Professor Richard Diamond's proposed interpretation of the countervailing duty statute. Federal law imposes a "countervailing duty" on imported merchandise for which a foreign country provides a "subsidy" with respect to its production. The countervailing duty statute does not clearly define a "subsidy," but the agency administering the statute has issued a proposed rulemaking to clarify the term. Diamond proposes that subsidy be defined as a foreign government's payment that reduces the marginal costs of a foreign firm's exports to the United States. This definition is based on economic theory that has only recently been applied to develop a more rational countervailing duty law. As such, it is not the definition Congress had envisioned when it passed the original statute in 1930, or when it substantially revised the statute in 1979, or even when the statute was amended in 1984. Yet I argue that this economics-based definition of "subsidy" is one that the agency can use as the basis for its regulations, under established doctrine and sound theory.
Date of Authorship for this Version
Eskridge, William N. Jr., "Dynamic Interpretation of Economic Regulatory Legislation" (1990). Faculty Scholarship Series. Paper 1506.