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February 2, 2008

Two Recent Articles of Possible Interest

Debra Lyn Bassett of the University of Alabama Law School has published in the George Washington Law Review Statutory Interpretation in the Context of Federal Jurisdiction, available on SSRN. Since I also teach civ pro, I plan to read this one quite closely. The abstract states:

Recently the Supreme Court has suggested that despite the distinctive nature of jurisdictional statutes, such statutes implicate only traditional notions of statutory construction. Indeed, the Court's most recent jurisdictional statutory interpretation decision, Exxon Mobil Corp. v. Allapattah Services, Inc., seemed to suggest that there was nothing special about jurisdictional statutes. But, as this Article explains, this has not been, and is not, true.

The distinctive nature of federal jurisdiction statutes demands a more constitutionally-oriented interpretive approach - traditional methods of statutory interpretation are inadequate because they fail to take this unique character into account. Jurisdictional statutes are subject to unique interpretive difficulties not encountered in the judicial construction of ordinary congressional legislation. These unique interpretive difficulties necessitate a wider range of considerations in the jurisdictional arena, including the traditional rules of statutory construction plus the Constitution itself as an interpretive document - all the while being cognizant of the potential for separation of powers and conflict of interest issues. In short, this Article proposes that in approaching their tasks of statutory construction in this area involving the reach of their own powers, federal courts should be guided by rules as understood and informed by the gravitational pull of Article III, and saving constructions are inappropriate. I explore these interpretive issues in the specific context of the interpretation of the 1988 amendment to 1332 pertaining to permanent resident aliens - an odd and interesting provision that has generated three different interpretive results from the three circuit courts that have examined it, despite the unconstitutionality of the statute's unambiguous plain language.

A piece from our Canadian colleagues, Jinyan Li and David Piccolo, Reviving the Modern Rule in the Interpretation of Tax Statutes: Baby Steps Taken in Canada Trustco, Mathew, Placer Dome and Imperial Oil, is also on ssrn. Its abstract states:

Canada Trustco, Mathew, Placer Dome and Imperial Oil are landmark decisions of the Supreme Court of Canada in terms of their illumination on the principle of statutory interpretation. In these cases, the Court stated that the Income Tax Act should be interpreted in accordance with a “textual, contextual and purposive” approach. This amounts to a revival of the “modern rule” of statutory interpretation and a move away from the “plain meaning” approach previously adopted by the Court. This article argues that the steps taken by the Court in reviving the modern rule are merely baby steps, as many key questions remain inadequately addressed. The article first discusses the rise and fall of the modern rule in Canadian tax jurisprudence. It then analyzes each of the four decisions and highlights the contribution of each case to the development of the textual, contextual and purposive interpretation. The article concludes with some thoughts on the challenges facing the courts in establishing the “purpose” of provisions of the Act and offers some suggestions for moving forward.

February 2, 2008 in Current Affairs | Permalink


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