Wednesday, May 6, 2009

Do we need "statutory interpretation for tax laws"?

There's an interesting piece on ssrn that is also published. The abstract:

This Article analyzes the meaning of probability statements in tax law and in scholarship addressing civil tax penalties. Specifically, the Article draws on economics and the philosophy of mathematics to argue that because tax law is substantively uncertain, some probability statements in tax law are best understood as a reflection of the speaker's belief, rather than as a description of the number of times a given event will occur over the long run out of the number of times that it could occur. That is, these tax probability statements are best understood using a subjectivist interpretation of probability, rather than frequentist interpretation. Prior work in tax law scholarship in particular, and law and economics in general, has glossed over or misunderstood this crucial distinction. 

Understanding that probability statements in tax law should be given a subjectivist interpretation changes both the theory and the practice of tax compliance. First, because tax probabilities represent beliefs, different parties - for example, Congress (the penalty-setter) on the one hand, and taxpayers on the other - may have different perceptions of the chances that a given transaction is permissible, and economic models should reflect these possibly disparate beliefs. Second, a subjectivist interpretation of tax probabilities provides additional support for stringent and much-criticized laws that regulate the substance of tax advisors' written opinions, as these strict rules may actually help tax advisors arrive at more accurate, less biased estimates of the chance that a tax position would be upheld by a court. And finally, a subjectivist interpretation suggests that lawmakers should be cautious of reducing tax law's uncertainty. If, as empirical work suggests, some taxpayers have an aversion to uncertainty, the uncertainty associated with whether certain questionable transactions are permitted (aside from any penalties imposed if transactions do turn out to be forbidden) may itself reduce the number of taxpayers who engage in these transactions.

Probably? Understanding Tax Law's UncertaintySarah B. Lawsky George Washington University - Law School.  Apparently it's been published in the U Penn L Rev.

Interesting. I wonder if it is sort of a contextual argument, rather than anything radical?  I don't know enough about tax laws to know (or care, I admit!).

Tip o' the hat to Ted McClure at Phoenix for spotting it.

May 6, 2009 in Sports | Permalink | Comments (0) | TrackBack (0)

Monday, May 4, 2009

If a Whistleblower reports wrong-doing to the agency he works for, is that reporting it to "any other agency" under the Kentucky Whistleblower Act?

Yes, according to the majority in Workforce Dev. Cab. v. Gaines, 276 S.W.3d 289 (Ky. 2008)

The statute provided:


No employer shall subject to reprisal, or directly or indirectly use,
or threaten to use, any official authority or influence, in any
manner whatsoever, which tends to discourage, restrain, depress,
dissuade, deter, prevent, interfere with, coerce, or discriminate
against any employee who in good faith reports, discloses,
divulges, or otherwise brings to the attention of the Kentucky
Legislative Ethics Commission, the Attorney General, the Auditor
of Public Accounts, the General Assembly of the Commonwealth of
Kentucky or any of its members or employees, the Legislative
Research Commission or any of its committees, members or
employees, the judiciary or any member or employee of the
judiciary, any law enforcement agency or its employees, or any
other appropriate body or authority, any facts or information
relative to an actual or suspected violation of any law, statute,
executive order, administrative regulation, mandate, rule, or
ordinance of the United States, the Commonwealth of Kentucky, or
any of its political subdivisions, or any facts or information relative
to actual or suspected mismanagement, waste, fraud, abuse of
authority, or , a substantial and specific danger to public health or
safety. No employer shall require any employee to give notice
prior to making such a report, disclosure, or divulgence.

KRS 61 .102(1) (emphasis added).

The state argued that ejusdem generis limited the phrase to agencies like those before it -- with investigatory powers -- and excluded others.  The majority, relying largely on general absurdity canons and policy arguments, construed the statute liberally; the dissent argued that the case foretells the tend of ejusdem generis in Kentucky...

May 4, 2009 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, 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.

May 1, 2009 | Permalink | Comments (1) | TrackBack (0)

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.

May 1, 2009 in Food and Drink | Permalink | Comments (0) | TrackBack (0)

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....


May 1, 2009 in Travel | Permalink | Comments (0) | TrackBack (0)

Thursday, 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.

Tip of the hat to, which I bet you will find of interest...

April 30, 2009 in Travel | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 22, 2009

"I will return"

Sorry I've been AWOL.  The second edition of the book turned into a massive --and interesting -- effort.  One of the things I found particularly fascinating was in those areas where, historically, text has not mattered (e.g., implied causes of action, implied preemption), the vast majority of the justices do not find it troubling; Thomas, in a long recent dissent, questioned why implied preemption should ever be found and made a strong "this is against the textual grain of our precedents" argument.  We now have a chapter entitled something like, "when purpose and intent still win" and it raises some interesting issues.

The other thing I saw that was fascinating was use by state courts of federal preemption principles, but applying them to state statutes.  Does a state statute "preempt" a local zoning ordinance, for instance.  The policies for federal preemption are, of course, largely absent in that area, and so you had a few courts saying "federal preemption the right approach" but many courts did not. 

Finally, for now, I'll note the other interesting thing: you seldom had courts talk about how statutes in derogation of the common law should be narrowly construed when they were examining preemption. That seems to be a problem, and one I found only a few cases trying to harmonize/tackle.

Anyhow, it's done, and I expect to start back up soon.  Thank you for those of you who have sent me notes and links -- I have a pile of stuff to wade through....

April 22, 2009 in Books | Permalink | Comments (0) | TrackBack (0)

Sunday, March 15, 2009

ABA Muffs Attempt to Draft Screening Rule

The ABA thought it was tackling great controversy when it debated a rule which, it thought, permitted 'screening" of lawyers who leave one firm and go to another: the new firm would not be disqualified by imputation if the lawyer was "screened off."

I saw the rule, and when I read it, I wrote (on another blog) about how it applied to lawyers while they are at a firm -- not when they come to a firm. Lo and behold, after they voted on the amendment, they apparently read it, and realized it does far more than what, they say, they were intending to do.

My co-blogger on has written it up here

Luckily, the ABA rule binds no one and so the states can avoid the same problem.

Intent over plain meaning!

March 15, 2009 | Permalink | Comments (0) | TrackBack (1)

Thursday, March 12, 2009

At work on second edition

I've been busy, but just not here. We're doing a second edition of our statutory interpretation book, and it's been hectic.

interesting things I've bumped into:

why do we have a derogation canon (statutes in derogation of the common law are strictly construed) which is seldom mentioned in preemption analysis?

why do courts emphasize text, except with implied preemption?

why are "clarifications" of ambiguous statutes deemed to be non-retroactive?

Future students, be ware!

March 12, 2009 | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 10, 2009

Can you shoot into a building you're already in?

No says the majority in Commonwealth v. McCoy, __ A.2d __ (Pa. Jan. 2009). It's a great read, with a terse dissent.

March 10, 2009 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 4, 2009

Legal Error Causes no Chevron Deference, but Court Remands: Negusie v. Holder

An alient who seeks refugee status in the US due to fear of persecution is not enttiled to that relief he he has persecuted others.  This fairly straightforward "persecutor bar" was in issue in Negusie v. Holder __ US __ (March 3, 2009).  The BIA had determined that the statutory bar applied even if the refugee had been forced into persecuting others through duress or coercion, and by regulation had so formalized its views.

The petitioner had been forced to guard people, on the basis of race, while in Ethiopia after he had been conscripted into the military and had experienced hard labor.  He forced prisoners to stay in the sun, causing the death of at least one.  Eventually he escaped on a ship to the US where he sought asylum.  He was denied asylum under the persecutor bar.

The Supreme court refused to give Chevron deference to the BIA because it had relied on distinguishable supreme court precedent in deciding what the statute meant.  It then remanded to the agency for further action.

Scalia and Alito dissented.  Boiled down, they did not believe remand was proper since the only possible interpretation was that given to the statute by the agency.

Stevens and Breyer concurred and dissented in part.  They thought remand was improper because the only possible interpretation was the opposite of the one given by the agency.

Thomas, alone, dissented, in part chastising the majority for misreading Chevron.

March 4, 2009 | Permalink | Comments (0) | TrackBack (0)

Monday, March 2, 2009

Justice Stevens on the Place of the Oath as Symbolism

Taking the oath at the White House sends the wrong message, so says Justice Stevens, here.

March 2, 2009 | Permalink | Comments (0) | TrackBack (4)

Wednesday, February 25, 2009

Supreme Court Issues Two Statutory Interpretation Opinions

The first, Carcieri v. Salazar, is a plain meaning case that resulted in splintered concurring and one dissenting opinion. The dispute arose out of the Narragansett Indian Tribe's attempt to exercise o the ability to petition the Secretary to take land into trust for the Tribe’s benefit. The Secretary’s trust authority is in 25 U. S. C. §465, which grants the Secretary power to take “in trust for [an] Indian tribe or individual Indian” “any interest in lands . . . for the purpose of providing land for Indians.” The key terms, though, limited his ability to take lands in trust to those Indian tribes "now under federal jurisdiction." That statute had been enacted in 1934, when the Narragansett tribe had not been in that group. The appellate court had relied on Chevron Deference to defer to the Secretary's interpretation that it had power; the Supreme Court reversed -- because the statute was unambiguous, Chevron deference did not apply.

The second, U.S. v. Hayes, resulted in a dissent by Scalia and Roberts. The case essentially involved whether a state battery conviction could qualify as “a misdemeanor crime of domestic violence,” in terms of 18 U. S. C. §922(g)(9). Because it was a generic battery conviction and did not, as such, require proof that it was domestic violence (which in fact it was), the defendant argued the generic battery claim did not count.

Both are interesting. As to Salazar: how can you say language is plain in a decision that reverses an appellate court decision, contradicts an agency's decision, and has a dissent?

February 25, 2009 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 24, 2009

Happy Birthday Marbury v. Madison

There's a great piece in Newsweek about the case and its impact.

February 24, 2009 | Permalink | Comments (0) | TrackBack (3)

Friday, February 20, 2009

Arizona Appellate Court Holds Metadata is not a "Public Record"

I've written extensively about metadata, the 'hidden' information that often accompanies word files. It can show when a document was created, when it was revised, who authored it, and, in some instances, show the revisions to a document.

In a case in Arizona, a litigant requested metadata associated with electronic notes about his employment because he believed they had been altered after creation or had been "back dated." He made a request for the documents under Arizona's Public Records act, but that was denied, so he sued. The court held that metadata is not a public record in terms of Arizona's statute in Lake v. City of Phoenix, ___ P.2d __ (Ariz. App. 2009).

The court applied the judicial approach to determining whether the metadata was a "public record" and did so in a seriously rigid fashion, which inspired a strong dissent.

In part, the majority relied on the presence of the word "record" in one section of the statute and "public record" in another to justify its holding:

The public records law provides in relevant part as follows:
B. All officers and public bodies shall maintain all records, including records as defined in § 41-1350, reasonably necessary or appropriate to maintain an accurate knowledge of their official activities and of any of their activities which are supported by monies from the state or any political subdivision of the state. . . . D. Subject to § 39-121.03: 1. Any person may request to examine or be furnished copies, printouts or photographs of any public record during regular office hours or may request that the custodian mail a copy of any public record not otherwise available requesting person. . . .
A.R.S. § 39-121.01(B) and (D)(1) (emphasis added).

Based on the plain language of the statute, public bodies have the duty to maintain all records. A member of the public, however, has the right to inspect or obtain a copy, printout, or
photograph of public records. The legislature has broadly defined a “record” but has chosen not to define a “public record,” notwithstanding that the public records law has been amended several times since our supreme court rendered the Mathews decision.9 Thus, to date the legislature has deferred to the courts on this issue. See Daou v. Harris, 139 Ariz. 353, 357, 678 P.2d 934, 938 (1984) (applying presumption that the legislature knows of existing laws when it enacts or modifies a statute). Prior decisions of our supreme court have unambiguously recognized that not all documents found within the custody or possession of a
public official are public records.

The dissent-in-part in contrast adopted a much more purposivitist approach, reasoning in part:

Focusing solely on the metadata, the majority reasons it is not a public record because it does not fit within any of the traditional public record formulations recognized by Arizona courts. See supra ¶ 12. Whether the metadata by itself fits within these formulations is not the question we should be asking; the question before us is whether the electronic version of Conrad’s notes, which includes the metadata, is a public record. The answer to this question is “yes.”

This is a fascinating case, since obviously when the legislature wrote the statute metadata didn't exist. (I'm guessing most legislators TODAY don't know what metadata is...). Stay tuned.

February 20, 2009 | Permalink | Comments (2) | TrackBack (0)

Wednesday, February 18, 2009

The Democracy Canon

Loyola (Los Angeles) Law School's Richard L. Hasen has written on that subject on a paper on ssrn, here. The abstract:


Beginning in the 19th century and through the 2008 presidential elections, American state courts have consistently applied a rule of thumb, which I term the "Democracy Canon," to interpret certain state election statutes. According to one early formulation, "[a]ll statutes tending to limit the citizen in the exercise of [the right of suffrage] should be liberally construed in his favor." Despite its pedigree, the canon thus far has been ignored by Legislation and Election Law scholars and appears to have no independent vitality in federal courts. Moreover, the canon has played an unrecognized role in some of the most contentious election law cases of modern times, including Bush v. Gore.
Part I briefly traces the history and longstanding use of the Democracy Canon in American courts. Part II defends the Democracy Canon. It argues that the canon serves two important purposes. First, as with some other substantive canons, the Democracy Canon can help protect an underenforced constitutional norm. In this case, the canon protects constitutional equal protection rights in voting, rights which courts for various reasons have declined to protect directly through constitutional litigation. Second, the Democracy Canon is a preference-eliciting mechanism. As a clear statement rule, the canon requires the Legislature to take affirmative steps to express its intent to limit voter enfranchisement only when justified by other important interests.
Part III explores the politicization issue arising from use of the Democracy Canon through a closer examination of the New Jersey Supreme Court's controversial opinion in New Jersey Democratic Party v. Samson, allowing Democrats to replace a U.S. Senate candidate's name on the ballot close to election time. Part III uses Samson to illustrate that the use of canons in election law cases is bound to be more controversial and high-salience than their use in garden-variety statutory interpretation cases. In the context of a hot-button election law case, a court's use of a substantive canon may appear illegitimate and result-oriented. Moreover, because of the political stakes, judges may subconsciously rely on the canon in ways consistent with their political preferences. The best way to deal with the latter problem is through ex ante clear drafting by legislatures.
Finally, Part IV examines constitutional questions arising when a federal court is asked to overturn a state court's use of the Democracy Canon. When a state court construes a state statute to a question in a federal election (as in Samson or Palm Beach County Canvassing Board) it runs the risk of violating either Article II of the U.S. Constitution (vesting in each state legislature the power to set the rules for choosing presidential electors) or Article I, section 4 (vesting in each state legislature the power to set the rules for choosing members of Congress, at least to the extent Congress has not set such rules). Contrary to the position of the Bush v. Gore concurring Justices, this Article contends that use of the Democracy Canon to construe state statutes dealing with presidential or congressional elections does not violate Article II or Article I, section 4. Instead, the long-standing nature of the Democracy Canon and the values it supports give state courts ample authority to construe state election statutes covering federal elections in light of the Canon. Only when a state court relies upon the canon in a way that counters longstanding jurisprudence or practice should a federal court consider intervening in a state court election case on constitutional due process grounds.

Thanks to Ted McClure at Phoenix Law for pointing me to it.

February 18, 2009 | Permalink | Comments (1) | TrackBack (0)

Justice Roberts on Rehnquist: What Would the Statute Say?

Chief Justice Roberts discusses Rehnquist's legacy, including the turn toward text, in an interesting article, here. A video of Roberts' entire talk is here. He spoke at the University of Arizona Law School.

On a completely unrelated note, I almost went to UA's law school -- grew up in Tucson and went to UA undergrad -- but took the bait and went to Northwestern Law School, ended up practicing in Texas, and sometimes wonder... what if...

Wildcats, Bear Down!

February 18, 2009 | Permalink | Comments (0) | TrackBack (0)

Saturday, 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 14, 2009 | Permalink | Comments (0) | TrackBack (0)

Friday, 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 13, 2009 | Permalink | Comments (0) | TrackBack (0)

Tuesday, 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?

February 10, 2009 | Permalink | Comments (0) | TrackBack (1)