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An Advantage No More of Legislation

One of the benefits that legislation is said to enjoy over evolved, unwritten common law is that legislation’s meaning is allegedly more clear and more concrete and, hence, more objective and more certain.  This advantage for legislation is said to spring from legislation being carefully and precisely articulated and written down.  The written text of each proposed bill is (supposedly rationally) pondered, debated, and polished before it is enacted, and that which is enacted is written down explicitly and with precision in words that can be read and understood by all (or at least by each affected party’s agent-lawyer).

If and to the extent that such explicit articulation and writing of legislation ever really gave that form of rule-making an advantage over evolved common law, the U.S. Supreme Court’s majority opinion in King v. Burwell has done much to strip legislation of this advantage.


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