February 14, 2009
Holy Trinity Lives On
There's a nice report on a presentation at Marquette law school by St. John's Professor Anita Krishnakumar on Holy Trinity and her paper, “The Hidden Legacy of Holy Trinity Church: The National Narrative Canon."
February 13, 2009
Llewellyn Deconstructed by Professor Sinclair.
The abstract to Professor Sinclair's third installment (will there be a prequel?) to his analysis of Llewellyn's famous canons is on ssrn. The abstract:
This is the third installment in a series of articles examining the famous twenty eight pairs of "dueling canons" left to us in 1950 by Karl N. Llewellyn ("Remarks on the Theory of Appellate Decision and the rules or Canons of about how Statutes are to be Construed," 3 VANDERBILT L.REV. 395 (1950). In the first two installments, examining Pairs 1 through 12, Llewellyn's "fiendish deconstruction" of these twenty-four canons proved quite innocuous. This installment covers pairs 13 to 16. Once again, looking at the reasons underlying the canons in each pair and the appropriate context for their use completely dissolves the superficial contrariety, Llewellyn's oppositions appearing artificial and contrived. And once again one is often forced to query whether Llewellyn's choice of dueling thrust and parry should properly be called "canons." In this installment I have finally been forced to come to grips with the distressing problem of the provenance of the actual language Llewellyn chose for many of his formulations: they are too often reduced or paraphrased versions of Black's captions, without appropriate quotation marks, ellipses, or pin-cites.
The article, 'Only a Sith Thinks Like that': Llewellyn's 'Dueling Canons,' Pairs Thirteen to Sixteen, may be accessed here.
The prior two installments -- Llewellyn's Dueling Canons, One to Seven: A Critique -- and the first, 'Only a Sith Thinks Like That': Llewellyn's 'Dueling Canons,' Eight to Twelve, are also on ssrn.
Once again thanks to Ted McCLure at Phoenix Law for pointing me to them.
February 10, 2009
Speaking of the Wisconsin Supreme Court
They just issued County of Dane v. Labor and Industry Review Comm'n, __ N.W.2d ___ (Wis. Jan. 23, 2009), a workers comp case addressing whether a worker is "disfigured" only when the damage is visible in normal life, or if it instead covers disfigurements that are not normally visible. The case is interesting for a couple reasons, one relating to the lack of deference the court found it needed to owe to the state's workers' comp commission's interpretation, and the other for its somewhat distinct views on the plain meaning of the statute.
The court, interestingly enough, views a historical analysis of statutory language as part of the plain meaning analysis. The court explained:
"A review of statutory history is part of a plain meaning analysis" because it is part of the context in which we
interpret statutory terms. Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶22, 309 Wis. 2d 541, 749 N.W.2d 581; see also Kalal, 271 Wis. 2d 633, ¶52 n.9 (citing Cass R. Sunstein,
Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405, 430 (1989)). The materials reviewed when considering statutory history consist of "the previously enacted and repealed provisions of a statute." Richards, 309 Wis. 2d 541, ¶22. "By analyzing the changes the legislature has made over the course of several years, we may be assisted in arriving at the meaning of a statute." Id.
I find this somewhat interesting and wonder if the converse can be used: can you rely on statutory history to show that the ostensible plain meaning is ambiguous, and so allow in extrinsic sources?
There's an interesting article here about the race for election to the Wisconsin Supreme Court. That court has, for whatever reason, along with Michigan and Conneticutt (for the life of me, I can't spell it right!), have issued some of the more interesting and spirited statutory interpretation cases. (I'd guess that cases from those states comprise about 25% of our stat law book). It's interesting that their passion about statutory interpretation is, apparently, merely a small part of their overall passion!
February 9, 2009
Another Patent Statute Example
As noted below, I'm again teaching patent law and so the statutory interpretation issues are really jumping out at me.
The latest case is almost the mirror image, conceptually, from the one discussed below. In Thomson, SA v. Quixote Corp., 166 F.3d 1172 (Fed. Cir. 1999), the court recognized that the language it was interpreting, 35 USC 102(g), was not intended to apply to a particular circumstance, but, nonetheless held that it did apply. In a footnote (!) the court ignored the express statement of the "commentaries" that, in other contexts in patent practice, are given enormous weight, and instead relied on plain language (which one could easily debate) and later judicial constructions. It's way too esoteric for you non-patentees out there, but the juxtaposition of this case with the one below is fascinating.
Statutory Interpretation of Congressional Overrides
Deborah A. Widiss, a visiting assistant professor at Brooklyn law school, posted Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides, 84 Notre Dame L. Rev. 511 (2009) on SSRN. The abstract:
In both judicial decisions and critical commentary on statutory interpretation, the possibility of congressional override is generally considered a significant balance to the countermajoritarian reality that courts, through statutory interpretation, make policy. This Article demonstrates that the "check" on judicial power provided by overrides is not as robust as is typically assumed. One might assume that overridden precedents are functionally erased or reversed. But because Congress technically cannot overrule a prior decision, courts must determine whether the enactment of an override fully supersedes the prior judicial interpretation. Overrides thus raise unique, and previously largely ignored, questions of statutory interpretation. Using several examples from employment discrimination jurisprudence, an area of the law where Congress frequently overrides Supreme Court decisions, this Article demonstrates that the Supreme Court and lower courts often narrowly construe the significance of congressional overrides and instead rely on the prior judicial interpretation of statutes as expressed in overridden precedents. I call this phenomenon reliance on "shadow precedents."
The Article shows how reliance on shadow precedents threatens legislative supremacy and undermines the standard rationales offered for adherence to precedent. It argues that, in drafting overrides, Congress should strive to clarify the extent to which it disagrees with the prior judicial interpretation. It also argues that courts should adopt interpretive conventions that are more respectful of the significance of the enactment of an override: (1) a rebuttable presumption that an override supersedes the judicial interpretation of the pre-existing statutory language, thus requiring "fresh" interpretation of the original statute as well as the override, and (2) a rule that overridden interpretations are no longer binding on lower courts.
I haven't had a chance to read this yet, called to my attention by Ted McClure, librarian extraordinaire at Phoenix Law, but she seems to have spotted an interesting potential issue. On the face of the abstract, I agree that Congress cannot "erase" a precedent, but, just as clearly, if Congress changes a statute from language that had been interpreted as "you can do x" to an express statement that "you cannot do x" (to take the extreme example), any judicial effort to "keep" the precedent sounds to me like a matter of failure to abide by the judicial role...