February 28, 2007
William Patry on Precedential Value of Cases Directing Interpretative Modes
William Patry has an interesting post going on whether there is any coercive power in a court to direct lower courts to use a particular method of interpretation. You can find it here.
Mr. Patry and I were e-mailing back and forth about this issue, and it seems to me that there's tension between the notion that courts can direct the means used to interpret statutes, and the fact that there are a variety of state directives out there, where states "order" courts to use certain methods (generally, they tend to direct very open-ended inquiries, telling the courts to use leg history, purpose, and so on, and not just the text in interpreting statutes). What if the state supreme court says one thing, but a state statute another? Seems to me this loops back into the "is it substantive or procedural" question we were looking at earlier, in some ways.
February 27, 2007
Three Way Split on what "And" Means
The word “and” is notoriously ambiguous and has been recognized as such since time immemorial. See, e.g., United Statesv. Fisk, 70 U.S. 445 (1865); see also Heydon’s Case, 76 Eng.Rep. 637 (Ex. 1584). It has been described as having no “single meaning, for chameleonlike, it takes its color from its surroundings.” Peacock v. Lubbock Compress Co., 252 F.2d 892, 893 (5th Cir. 1958). Depending upon syntax and context, it can have either a conjunctive or disjunctive effect. See Slodov v. United States, 436 U.S.238, 246-47 (1978). In fact, it is often held that use of the word “and” should be understood in its conjunctive sense unless context would render such an interpretation anomalous or absurd. See, e.g., Reese Bros., Inc. v. United States, 447 F.3d 229, 23536 (3d Cir. 2006).
So begins the concurring opinion in a February 27, 2007 decision from the Colorado Supreme Court in Clyncke v. Waneka, ___ P.3d ___ (Colo. 2007). At issue was whether a plaintiff injured during equine activities had to prove two, or three, elements to establish a claim. The majority held it was three; the concurrence, three but for different reasons, and the dissent, just two. It was outcome determinative, and is a great read.
February 25, 2007
New Student Piece Critical of Textualism
You can read Matthew B. Todd, Avoiding Judicial In-Activism: The Use of Legislative History to Determine Legislative Intent in Statutory Interpretation, 46 Washburn L.J. 189 (Fall 2006) on line, available here. I've only glanced at it, but there you go.