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1996 Ann. Surv. Am. L. 535 (1996)


Phil Frickey qualifies as the leading explorer of the borderline between statutory interpretation and constitutional law. Frickey explores ways to mediate the borderline between statutory interpretation and constitutional adjudication in the context of direct democracy. His is an enormously helpful attempt to reconcile the constitutional issues discussed by Julian Eule and the statutory interpretation issues discussed by Jane Schacter. I agree with many of Frickey's suggestions. Indeed, I will suggest some additional devices that can perform the same role. But I wonder whether Frickey has proved more than he set out to accomplish. The problems of direct democracy are special, but they are not unique. Systemic failures in representative democracy give rise to the same kinds of constitutional and interpretive problems. My task, then, is to approach the interpretation of direct democracy in light of the constitutional concerns it often raises, and to suggest that other kinds of legislative enactments deserve the same kind of interpretive care as direct democracy-though I remain uncertain what kind of care that should be.


Reprinted with permission of the Annual Survey of American Law.



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