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.
January 30, 2008
Supremes on Stare Decisis/Acquiesence - John R. Sand
I don't know why this just got to me from Westlaw, but on January 8, 2008 the Court issued a 7-2 decision in John R. Sand & Gravel Co. v. U.S., 128 S.Ct. 750 (2008). The case involved an interesting mix of substance and procedure.
Plaintiff sued in the Federal Claims court, alleging that the EPA had engaged in activities that constituted a "taking" of certain land. The Government timely asserted that the claims were barred by a somewhat unusual statute of limitation in 28 USC 2501, which required every claim "of which the U.S. Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues." The Government later admitted some claims were not barred, but contended others were. Later, on the merits, it prevailed.
Then the sand & gravel company appealed to the Federal Circuit. The government's brief in response, however, said nothing about how the claims were barred by Section 2501, but an amicus brief pointed it out to the CAFC, which held it could address whether the claims were barred by limitations despite the government failing to raise the issue on appeal.
The question the Court faced was whether the CAFC properly ignored the government's waiver of what, typically, is an affirmative defense.
The Court affirmed, 7-2. In doing so, the majority relied on cases from the 1880's holding that the usual requirement that limitations be pled "has no application to suits in the Court of Claims against the" US. It then cited a few other cases, one from 1957, and all the rest from the late 1800's that, the majority stated, said basically the same thing.
Because the language of Section 2501 had not been materially changed, the majority reasoned that, unless the old interpretation should be overruled, the CAFC's decision was correct. It refused to overrule the old interpretation, even though subsequently the Court had adopted a different approach to government-related statutes of limitations, giving less weight to the government's interest and treating it more like a private citizen.
The majority found nothing to warrant reversing its long-standing interpretation of this case, noting among other things that "stare decisis in respect to statutory interpretation has 'special force' for 'Congress remains free to alter what we have done" and "Congress has long acquiesced in the interpretation we have given."
Justice Stevens (joined by Ginsburg) dissented. They emphasized that the "newer" interpretive rule had been characterized as "a realistic assessment of legislative intent" and a "practically useful principle of interpretation." Thus, to them, it made sense to apply a more accurate interpretive approach to this statute rather than applying the long-standing interpretation. Interestingly to me, they argued that stare decisis had no special force where, as here, an "obscure statutory provision" was in issue and "legislation is by no means a cost-free enterprise."
Finally, Justice Ginsburg also wrote her own dissenting opinion, emphasizing that a uniform approach to statutory interpretation of this sort of statute outweighed the stare decisis benefit.
Interesting case. As noted just below, to me it makes little sense to presume Congress knew about a few cases back in 1887 and "acquiesced" in the interpretation of this odd little statute. A more pragmatic approach might be better, if you ask me.
January 28, 2008
Check out the left side-bar
Our page of resources is up and now located on the side bar. Enjoy and if you have others to suggest, please let me know of them.
January 27, 2008
Article asks: Where are all the left-wing Textualists?
It's not on line, yet, but soon will be. Paul Killebrew wrote Where are all the left-wing Textualists, 82 N.Y.U. L. Rev. 1895 (Dec. 2007). (Soon to be here.) It's an interesting piece that queries why, given that Textualism on its face neither serves conservative nor liberal ends, is nonetheless espoused principally by conservatives.
My own view, for what it's worth, is pretty basic: most of the judges are conservative now, and as a whole certainly more conservative than Congress has been over time, and so even "neutral" application will favor their views.
It's an interesting piece!