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 7, 2008
Judicial Activism, Acquiesence, and the Erie v. Tompkins Case
I was teaching Erie the other day, and it struck me what a remarkable statutory interpretation case it is. In 1841, Swift v. Tyson is decided, and holds that, although the Rules of Decision Act requires federal court to apply state "laws" in diversity cases, "laws" only covers state statutes, and so federal courts are free to ignore state common law decisions. Nearly 100 years go by, and although this interpretation has created huge and notorious problems in the judicial system (different rules apply in many federal courts and so diversity jurisdiction is manufactured to obtain the better rule, for example), Congress does nothing.
Enter the activists, and they hold that "laws" includes statutes and state common law decisions, overruling Swift and, indeed, declaring the Swift approach "unconstitutional" (though not saying, exactly, why).
It seems to me that the case is remarkable when viewed from the perspective of statutory construction: why wasn't the "right' result a declaration that the statute was unconstitutional? Instead, the court changed its meaning and announced that, as re-interpreted, the statute was no longer infirm.
In dissent, Justice Butler made this point -- though it is typically edited out of civil procedure case books, and for good reason since it belongs elsewhere -- when he wrote: "While amendments to § 34 have from time to time been suggested, the section stands as originally enacted. Evidently Congress has intended throughout the years that the rule of decision as construed should continue to govern federal courts in trials at common law. "
Anyhow, interesting statutory interpretation issue in a case seldom discussed on that point.
April 6, 2008
Tid Bits: State News
Texas Supreme Court Construes Various Statutes in Major Ethics Case. It's been a major battle that the Texas Unauthorized Practice of Law Committee had been winning, as this article notes, but the Texas Supreme Court reversed that committee's policy and authorized the use of captive firms to represent insureds. The opinion, Unauthorized Practice of Law Committee v. American Home Assurance Co., Inc., is here. It was 7-2. A lot of the opinion is founded on Texas-specific statutes, but it's quite a change from the old approach and is likely to have a significant impact on house insureds are represented in Texas.
Wisconsin Voters Oust a Judge. There's an article here that purports that it was a vote against "judicial activists." It's interesting to me because Wisconsin, Michigan, and Connecticut have wildly divergent benches when it comes to the judges' approach to statutory interpretation.
Arkansas Statute Does Not Require Identifying Self in Response to Query. A passenger in a car stopped by police cannot be prosecuted solely for failing to provide identification, so held the Eighth Circuit construing Arkansas statutes, in an opinion, Stufflebeam v. Harris, here.