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Unpublished Paper
The Hypocrisy of the Acquiescence Canon
ExpressO (2010)
  • Blair C Warner
The Court applies the acquiescence canon to infer that an agency or judicial statutory interpretation is correct when followed by Congressional inaction. This Article will argue that this practice is based on a number of faulty assumptions. Moreover, the canon is applied inconsistently and creates perverse incentives for the legislature. The Article will then explore the Court’s guidance to lower courts against deriving similar inferences from the denial of certiorari, a similar form of inaction. Drawing parallels between Congress and the Court, and noting the many reasons why conclusions should not be drawn from apparent inactivity, this Article will conclude that the acquiescence canon should be abandoned. Using the Supreme Court’s approach to interpreting its own inaction as a foil, the acquiescence canon appears to be more harmful and potentially misleading than it is beneficial. While in some cases the denial of certiorari or the failure to amend a statute given a statutory construction would be enlightening, this Article maintains that the danger of misinterpreting such inactivity is great enough to support a general prohibition against their consideration.
  • acquiescence canon,
  • certiorari,
  • statutory interpretation,
  • legislative history
Publication Date
March 24, 2010
Citation Information
Blair C Warner. "The Hypocrisy of the Acquiescence Canon" ExpressO (2010)
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