John F. Manning, Continuity and the Legislative Design, 79 Notre Dame L. Rev. 1863 (2004).
Abstract: In analyzing the revival of canons in statutory interpretation, Professor David Shapiro has argued that many of the Court’s most prominent canons—including expressio unius, ejusdem generis, the rule of lenity, canon requiring narrow construction of statutes in derogation of the common law, and the federalism canon—all reflect a bias against finding a statutory change in the status quo. These canons, he argues, promote a range of substantive and process values. They also reflect the reality that, in legislation, “change is news but continuity is not.” This paper argues that if the canons do, in fact, tend toward continuity, that tendency captures an important feature of the legislative process, at least at the federal level. Under the U.S. Constitution, lawmaking is cumbersome. It is that way by design. Bicameralism and presentment emphasize caution, consensus, and deliberation. In so doing, the federal legislative process privileges continuity over change. Even if that pro-continuity bias does not ultimately present a sufficient reason for embracing or retaining any given canon of construction, it surely presents a powerful answer to those who would abandon traditional rules of construction because they reflect a status quo bias.