Super statute

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The term super statute was applied in 2001 by William Eskridge and John Ferejohn to characterize an ordinary statute whose effort "to establish a new normative or institutional framework ... 'stick[s]' in the public culture" and has "a broad effect on the law". [1] As a result, it has a "quasi-constitutional" [2] significance that exceeds its formal status as a statute with interpretive significance for other legislation. [3]

Contents

Characteristics

Super statutes have a broad effect on law due to cultural influence, affecting even interpretation of constitutional provisions. [4] The fabric of the society would be fundamentally changed by repeal. [5] In practical political terms, super-statutes are embedded in the constitutional order and changing them carries political risks. [6] When super-statutes conflict, the Supreme Court will trim the one less impaired by nonapplication. [7]

Adrian Vermeule criticized the category boundaries as opaque. [8]

Other uses

According to Eskridge and Ferejohn, previous legal commentators had used the term "super-statute" for other purposes. Some writers have used the term to describe a constitution, e.g., A. E. Dick Howard, The Road from Runnymede: Magna Carta and the Constitutionalism in America (1968, pg.122) (stating that American lawyers in the eighteenth century viewed Magna Carta and the common law it was thought to embody "as a kind of superstatute, a constitution placing fundamental liberties beyond the reach of Parliament"). Other writers believe it's simply a big statute with no force outside its four corners, e.g., Bruce A. Ackerman, "Constitutional Politics/Constitutional Law", 99 Yale Law Journal453, 522 (1989) ("Superstatutes do not seek to revise any of the deeper principles organizing our higher law; instead, they content themselves with changing one or more rules without challenging basic premises."). [1]

Examples

Eskridge and Ferejohn give these examples noting others exist. [1] :1227

References

  1. 1 2 3 Super Statutes. Eskridge and Ferejohn. 50 Duke L. J. 1215
  2. ↑ Taylor, Alice (2023-08-24). Interpreting Discrimination Law Creatively: Statutory Discrimination Law in the UK, Canada and Australia. Bloomsbury Publishing. ISBN   978-1-5099-5294-6.
  3. ↑ Wintgens, Luc J. (2017-03-02). The Theory and Practice of Legislation: Essays in Legisprudence. Routledge. ISBN   978-1-351-88126-5.
  4. ↑ Hamoudi, Haider Ala (2013-11-12). Negotiating in Civil Conflict: Constitutional Construction and Imperfect Bargaining in Iraq. University of Chicago Press. ISBN   978-0-226-06879-4.
  5. ↑ Tucker, Paul (2019-09-10). Unelected Power: The Quest for Legitimacy in Central Banking and the Regulatory State. Princeton University Press. ISBN   978-0-691-19698-5.
  6. ↑ Tushnet, Mark (2020-07-03). Taking Back the Constitution: Activist Judges and the Next Age of American Law. Yale University Press. p. 250. ISBN   978-0-300-24598-1.
  7. ↑ Board, United States National Labor Relations (2014). Decisions and Orders of the National Labor Relations Board. National Labor Relations Board. ISBN   978-0-16-094806-0.
  8. ↑ "Adrian Vermeule Reviews "A Republic of Statutes: The New American Constitution" | New Republic". perma.cc. Retrieved 2025-06-30.


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