May 16, 2007
A Simplicity Canon of Construction?
I am, I am glad to say, in the final edits of my newest book, Mastering Civil Procedure. It was by far the hardest thing I've ever done.
Along the way, and most particularly while writing the chapters on subject matter jurisdiction, it struck me how interpretations have made civil litigation more expensive than it could have been, and studying law much harder than it could be, too.
A simple example that will dredge back up awful memories from when you were a 1L: Article III's phrases "arising under" and "Citizens of different States" mean different things than the statutes that use exactly the same words. "Arising under" requires merely that federal law be an ingredient of the claim under Article III, but requires that the plaintiff's claim turn on a substantial question of federal law under the statute; "Citizens of different States" means minimal diversity under Article III, but complete diversity under the statute. The statutes, as you know, were written within a few years of the Constitution.
If a court were construing those statutes today, with no precedent except the constitutional interpretations, I cannot believe that different meanings would have been ascribed to the statutes. The plain text along with the timing of the statutes' enactment would lead to one conclusion: they extend to the limits of Article III.
Had the court done so, litigation would have been much less expensive. In diversity, for instance, if one plaintiff was a citizen of a different state from one defendant, then there would be federal jurisdiction; no need to analyze the hundreds of other parties' citizenship.
Don't misunderstand my point: I'm not saying that the interpretation given to either statute doesn't further important public policies; obviously it does. But both interpretations, from what I've read, can be justified only on that basis, and that is "activism."
Think about the social cost of learning this has created. There are books where dozens of pages are devoted to this distinction and understanding it, complete like mine with diagrams and charts.
Should there be a basic tenet of statutory interpretation that the simplest construction is always preferred over the more complex?
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