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September 22, 2008

New Articles of Interest

New Article by Martin Redish and Judge Murashko on Rules Enabling Act. The Rules Enabling Act and the Procedural-Substantive Tension: A Lesson in Statutory Interpretation is out on SSRN, and will be in the Minnesota Law Review in November, 2008. The abstract states:

The Rules Enabling Act vests in the Supreme Court the power to promulgate rules governing procedure in federal court litigation. The Act, moreover, prohibits the Court from promulgating rules affecting litigants' substantive rights. Courts and commentators have struggled for more than seven decades since the Act's passage to define the boundaries of what rules the Court can and cannot promulgate.

In this Article, we undertake to explain the lack of success in defining the contours of rulemaking under the Act and at the same time to glean from our analysis of the Act an important lesson in statutory interpretation. We offer two explanations, operating simultaneously, for why a definitive interpretation of the Act has eluded courts and scholars. First, and perhaps most importantly, the Act's sparse language is arguably susceptible to three alternative and textually plausible constructions. Second, previous constructions of the Act did not pay sufficient attention to statutory interpretation theories in applying one theory or another in interpreting the Act. We conclude that a proper understanding of the theory of statutory interpretation dictates adoption of only one of these constructions - what can be called the incidental effects approach. Under this interpretive model, identified most closely with the Supreme Court's often criticized decision in Burlington Northern, the Court is allowed to promulgate rules that do impact substantive rights, but do so only incidentally - in other words, when the primary goal of the rule is to regulate procedure.

We defend this interpretation of the Act by employing a theory of statutory interpretation that directs the interpreter to construe ambiguous text in light of objectively determined background purposes forming a foundation for a particular legislation. Drawing on the pioneering work of Professor Stephen Burbank, we recognize two purposes undergirding the passage of the Enabling Act. Our interpretation promotes both purposes, not elevates one at the expense of the other. In fact, this is where commentators (Professor Burbank among them) have gone astray in their suggested interpretations - they used statutory interpretation theories unmoored from the twin purposes of the Act.

In the end, the lesson for statutory interpretation theory largely parallels the lesson to be learned in construing the Rules Enabling Act. In both, when dealing with ambiguous legislation, it is common sense and an attempt to translate underlying purpose, objectively determined, into legal reality, rather than narrow, shortsighted adherence to textual literalism or legislative history, that more effectively further the goals of representative democracy.

Earmarks. Listening to Congress: Earmark Rules and Statutory Interpretation, by Rebecca M. Kysar, is also on SSRN and will soon be in the Cornell Law Review. The abstract:

In the wake of recent scandals involving lobbying and special interest spending on Capitol Hill, each of the houses of the 110th Congress adopted unprecedented legislative, procedural rules that require broad disclosure of spending earmarks and tax provisions that benefit special interests. Recognizing the strong incentives for members of Congress to hide special interest deals within complex tax and spending legislation and through ambiguous drafting, scholars have long sought to bring such deals into the open in order to promote congressional deliberation and public accountability. Although the new reforms appear designed to address that laudable goal, the efficacy of the rules is doubtful given their self-referential status; that is, they rely upon the foxes to govern administration of the henhouse.

This Article begins by describing various tactics legislators have used or will likely use to evade the new disclosure regime, as well as deficiencies in the regime's design. The piece then explores the value of enlisting a force external to Congress as a response to the inherent weakness of endogenous, procedural rules. It concludes that although direct judicial review of legislation for compliance with the rules likely raises constitutional difficulties, judicial involvement through statutory interpretation offers a potential solution. Specifically, when interpreting ambiguous legislation that falls within the ambit of the disclosure rules, judges should assume the rules have functioned correctly; in other words, if no special interest beneficiary has been disclosed, judges should assume that none was intended and interpret the ambiguous provisions accordingly. The proposal thus strengthens congressional adherence to the rules by imposing costs upon defecting lawmakers, as well as the special interests they support. It does so, however, without offending the constitutional mandate that lawmakers have purview over such rules. Hence it offers a counterpoint to the entrenched view that Congress cannot truly precommit itself through procedural rules. Furthermore, because this method of statutory interpretation is guided by Congress's own remedy to the problem of special interests, it differs in an important respect from prior scholarly proposals for narrow interpretation

Rabbinic Influence. Looking to Statutory Intertext: Toward the Use of the Rabbinic Biblical Interpretive Stance in American Statutory Interpretation, by Jeanne C. Fromer is on ssrn and was in Harvard's law review, but was updated on ssrn just a few days ago. Its abstract:

American legal texts--from contracts to statutes to patents--are rarely complete on their own terms. They may not sufficiently anticipate all future factual situations or may simply be unclear. Such incompleteness is not unique: for thousands of years, Jewish legal authorities have struggled to discern meaning from religious texts that are similarly incomplete. To determine the meaning of a particular passage, Jewish legal authorities look first to the text containing that passage and then, if necessary, to other biblical texts: the "intertext." Jewish legal authorities can look to the intertext because they treat the Bible as a perfectly harmonious unit written by one source: God. Treating various texts as a single textual unit allows for consistency in interpretation and access to additional interpretive sources--the intertext--but also risks ignoring diverse, perhaps contradictory, interpretations that the author actually intended.

Despite some qualitative differences between the Jewish and American legal systems, interpreters of American statutes can learn from the rabbinic biblical interpretive stance. This Note proposes that when the text of a statute yields no clear answers, interpreters should look to American statutory intertext: the collection of American statutes. Constitutional and jurisprudential concerns for majoritarianism and integrity provide a normative justification for an intertextual approach.

September 22, 2008 | Permalink

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