Sunday, November 16, 2008
Professor Linda Jellum (Mercer) posted "Which is to be Master," The Judiciary or the Legislature? When Statutory Directives Violate Separation of Powers, forthcoming in the UCLA Law Review, on ssrn last month. Jellum, who also authored Mastering Statutory Interpretation and co-authored Modern Statutory Interpretation: Problems, Theories, and Lawyering Strategies (both by Carolina), produced a excellent review of separation of powers concerns with statutory directives and a quite useful typology of statutory directives in arguing which types of directives violate separation of powers, and which types do not. This article deserves attention: It'll propel the scholarship in this area, give guidance to legislatures, and help your students understand both separation of powers and statutory directives. I highly recommend it.
Jellum starts the piece by defining statutory directives:
As legislatures have increasingly begun to perceive judges as activitst meddlers, some legislatures have found a creative solution to the perceived control problem: statutory directives. Statutory directives, simply put, tell judges how to interpret statutes. Rather than wait for an interpretation with which they disagree, legislatures use statutory directives to control judicial interpretation.
According to Jellum, there are three types: Those that merely define terms (or "definitional directives"); those through which "Congress would be trying to control the interpretive outcome" (or "interpretive directives"); and those through which "Congress would be trying to control the interpretive process" (or "theoretical directives"). She gives an example of each:
1. For all Acts of Congress, the word "marriage" means only a legal union between one man and one woman as husband and wife.
2. All Acts of Congress shall be broadly construed with a view to promote the act's purposes and carry out the intent of the legislature; and the rule that statutes in derogation of the commmon law are to be strictly construed shall not apply. Moreover, the rule of the common law, that penal statutes are to be strictly construed, has no application. All statutes are to be construed according to the fair import of their terms, with a view to further their purposes and to promote justice.
3. The meaning of a statute shall be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining the text and such other relationships, the meaning of the text is plain and unambiguous and does not yield absurd results, the judiciary shall not consider extratextual evidence.
The first is a variation of 1 U.S.C. sec. 7; the latter two are from Jellum's imagination. But lest you think that these are over-the-top (and thus strawmen), Jellum brings in two state cases ruling on state legislative statutory directives that go so far, and more. It's not at all hard to imagine Congress passing legislation like 2. and 3., especially in the wake of controversial court rulings.
Jellum argues that definitional directives (example 1.) "are legitimate exercises of congressional involvement in the interpretive process," and that theoretical directives (example 3.) "are likely unconstitutional attempts to usurp judicial power and control the interpretive process." As to interpretive directives (example 2.):
[These] present the most challenging analysis: at bottom, interpretive directives are likely unconstitutional when enacted generally to apply to many statutes, but not when enacted to apply to just one statute. It is an odd, formalistic distinction, but one that I believe helps explain when Congress shifts from partner to master in the interpretive dialogue.
As a con law prof, there are two things I particularly like about Jellum's piece. First, her typology and conclusions help elucidate the separation-of-powers considerations in statutory directives. This is good reading for students struggling with these issues, and it'll be quite useful for those of us exploring them in scholarship. And her well defined categories even give good guidance to any legislature willing to take heed.
Second, Jellum includes a lengthy section that comprehensively reviews separation of powers doctrine. As you know, this can be, er, uneven--as Jellum notes, it has been described as "abysmal," "utterly asinine," and "appalling"--but Jellum's review helps sort it out, reviewing the historical roots of the doctrine and the contemporary formalist and functionalist approaches. This section of the paper is a necessary step in developing Jellum's argument about statutory directives, but it is also an outstanding review of separation of powers principles in general. (This is really a very accessible review. I suggest assigning it to your students as part of any lesson on separation of powers, whether you do statutory directives or not.)
Jellum's piece will advance the scholarship in this area and provide guidance to legislatures because of her useful typology and her clear conclusions. The piece will also be a wonderful addition to the con law classroom because of the excellent writing and examples. I highly recommend this.