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Publication Title

Washington University Jurisprudence Review

Abstract

In the first section of this Article, I survey a number of modern theories of legislation and test them by considering their adequacy as an explanation of a federal statute, the Family and Medical Leave Act of 1993 (“FMLA), which provides an instructive example of a modern social welfare statute. In explaining and critiquing some of the modern theories, I do not try to reinvent the wheel, but follow the explanations and critiques in the teaching materials of Eskridge and Frickey, and the excellent book by Daniel Farber and Philip Frickey, Law and Public Choice: A Critical Introduction. The contribution here is in adding Marxist theory and modern natural law theory to the mix, and exploring how each of the modern theories would explain the passage of the FMLA. In the second section, I take the most promising of these theories as an explanation of the FMLA—a natural law theory of legislation applying the insights of John Finnis—and examine whether Finnis’s methodology can be used to answer a riddle one faces in elaborating a theory of statutory interpretation: What sense can one give to the recurring explanation by judges that their role in statutory interpretation cases is to discover and implement the legislature’s intent?

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