This Article first places Bond in the context of the Supreme Court’s growing reliance on interpretive presumptions to limit the effect of legislation. While some of the presumptions go back to the early days of the Republic, the current Court has expanded the roster of these devices and strengthened their effect. A review of the treatment of information-forcing defaults in contracts scholarship follows. Contract theory, or more precisely the strand of contract theory that draws on economics, seeks to identify socially optimal rules for contract formation, interpretation, and enforcement. To clarify the specific role of these rules, this Article compares information- forcing defaults to contract rules that allow parties to design mechanisms to deal with future contingencies about which no party has special knowledge. After exploring the economic analysis of contract interpretation, this Article then considers how contract theory’s insights, which illuminate the welfare effects of private ordering, might inform our understanding of the production of public law through the dynamic relationship between legislators and judges. This Article looks at several informal models of how Congress and the federal judiciary operate, and in particular at how they interact with respect to statutory interpretation. It then identifies the circumstances under each model that would support a conclusion that the Court’s current trend may contribute to the social good.
Paul B. Stephan,
Bond v. United States and Information-Forcing Defaults: The Work that Presumptions Do,
Notre Dame L. Rev.
Available at: http://scholarship.law.nd.edu/ndlr/vol90/iss4/2