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April 11, 2008

Two Interesting New Articles on SSRN

Brian Slocum, visiting at Memphis, has posted two quite interesting pieces.  The first is on Temporal Issues in Statutory Interpretation, and is available here on ssrn. This is an issue we touched on in our book, in the Chapter on Implied Causes of Action -- if the Court more readily implied a cause of action when a statute was adopted, rather than today, ought not the more liberal interpretative approach apply?  From the abstract:

There is an important but chronically overlooked problem in statutory interpretation. Courts frequently create and modify the rules of statutory interpretation in common law fashion. They never consider, however, whether these new or modified rules should be applied only prospectively to statutes enacted after the judicial decisions that created or modified the rules. The failure of courts to consider these temporal issues undermines the assumption, fundamental to statutory interpretation, that Congress chooses statutory language in light of established rules of interpretation and thus risks delegitimizing statutory interpretation. Indeed, as this Article illustrates, the Supreme Court's failure to consider these temporal issues has arguably resulted in erroneous statutory interpretations.

Notwithstanding the enormous attention given statutory interpretation by scholars over the past couple of decades (including the proposal and examination of various sophisticated, high-level interpretive methodologies), the temporal issues the retroactive application of new or modified rules of interpretation raises have been virtually ignored in statutory interpretation scholarship. This Article fills the void by providing a theory of when courts should apply new or modified rules only prospectively. Despite the plausibility of an argument that all new or modified rules should be applied only prospectively, the Article argues that only the most powerful rules should be considered for prospective only application and describes when it is appropriate for even these rules to be applied retroactively. The Article also argues that the judicial consideration of temporal issues will bring much needed clarity and transparency to statutory interpretation, as well as potentially causing courts to reexamine their proper role in light of legal realist insights about the nature of statutory interpretation.

The second one is in some ways related, and is entitled The Problematic Nature of Contractionist Statutory Interpretations, and is available here.  Soon available from my old law school, Northwestern, the abstract states:

The main thesis of Daniel B. Rodriguez and Barry R. Weingast's recent article, The Paradox of Expansionist Statutory Interpretations, 101 NW. U. L. REV. 1207 (2007), is important: the voting decisions of legislators can be influenced by the activist statutory interpretations of courts. Specifically, the authors demonstrate that the broad interpretations of progressive legislation made by courts in the 1960s and 1970s undermined the legislative deals struck between ardent supporters of progressive legislation and the moderate legislators necessary for passage of the statutes. Although these expansionist interpretations broadened the reach of important progressive legislation, they had the effect of discouraging moderate legislators from supporting progressive legislation and are partly to blame for the current polarization of Congress and the paucity of such legislation.

Rodriguez and Weingast explain that courts in the 1960s and 1970s were able to achieve expansionist interpretations of progressive legislation by misusing legislative history to support inaccurate conclusions about the intent or purpose of Congress. While the article's insights about expansionist interpretations and the misuse of legislative history are an important contribution to statutory interpretation scholarship, the interpretive mistakes made by courts are largely different now than in the 1960s and 1970s. For some time, the dominant trend has been for judges to rely more on rules of interpretation that typically narrow statutory meaning and less on pragmatic analysis or conclusions about likely congressional intent or purpose. This Essay criticizes the current judicial predilection for contractionist statutory interpretations. The Essay argues that while contractionist interpretations may not discourage moderate legislators from supporting legislation, they are problematic because they are inconsistent with the judiciary's role as faithful agents of Congress.

Brian's a busy guy!

April 11, 2008 in Current Affairs | Permalink

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