May 1, 2009
Congressional Staffers Testifying as to Legislative Intent
The taxprof blawg reports all this, but I'm summarizing: There's some dispute over a tax statute in a bankruptcy proceeding. One party in its 100+ page brief submits affidavits of Congressional staffers as to what the law means: the good stuff starts around page 52. Another brief is here.
The government's opposition is here. It includes (around page 25) a letter from Senate Legal Counsel objecting to the affidavits.
Folks, imho this is interesting, but insane. An affidavit from a staffer, 10 years after the bill was enacted as probative of meaning?? Don't get me wrong, if this were a private contract, and you had ambiguity, I could see getting it in through the parole evidence rule, but.... I don't think that's what this is. Apparently, though, there's a lot of money at stake, and so why not try.
Interpreting Earmarks: A new Article
Listening to Congress: Earmark Rules and Statutory Interpretation, by Rebecca M. Kysar and published in the Cornell Law Review is a timely piece! The SSRN 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 of special interest legislation, making it more resilient to the critique that the interpretive mode exceeds the judicial function.
Interesting New Piece on EU Recitals; Contrast with Preambles and so on
From the abstract:
Recitals, those 'whereas' clauses, appear in contracts as well as legislation, although not all legislation contains recitals; indeed, recitals are 'against' the precepts of certain styles of legislation. When, however, there are recitals, parties will argue over the way they should be interpreted in view of the operative provisions, or that they have, or don't have, other legal repercussions. The courts must then choose among a number of interpretive variants: they may choose to view recitals as subordinate to, dominant over, or even equal to operative provisions.
Recitals are also a feature of European Community (EC) legislation, so that the same variants exist.
But the matter is complicated by a feature of EC legislation which is fairly unique: recitals in EC legislation must specify the reasons the operative provisions were adopted, and if they do not, the legislation is void. This is puzzling. Why would this be so? It does not seem to emanate from the nature of recitals themselves, nor does it seem to be reflected in the general law of recitals (principally contract law).
At the same time it is claimed that while EC recitals have no legal value and cannot be the cause of derogation from an operative provision, they nevertheless create legitimate expectations (such as would defeat an operative provision). This is also strange. Recitals are supposed to be general statements. General statements are not something which ordinarily are recognized as giving rise to legitimate expectations. But also recitals in general (for instance, in contract law) are, well, recitals, not operative provisions and it is hard to fathom how they could give rise to positive obligations or defeat operative clauses.
Thus, the doctrine surrounding recitals in EC law is mystifying. It is either irrational or so complicated as to amount to the same thing.
It's published in ILSA Journal of Int’l & Comparative Law Vol. 15:1, by Tadas Klimas, Associate Professor of Law & Attorney At Law, Cavalier of the Lithuanian Order of Merit by Presidential Decree. Where is that Holy Trinity case....
April 30, 2009
When's something "off shore"?
Jones v. Frances Drilling Fluids, 2009 US DIst LEXIS 21388 (March 17, 2009) was a contract case, but one worth noting here. The insurer argued it was not bound because it was liable only for "off shore" injuries, which, it said, meant only rigs in the gulf; the injured worker, of course, had been injured on a rig, but not one that was in the gulf. The court held that the contract was ambiguous.