Wednesday, November 7, 2007

Recent Scholarship

On SSRN, Professor Debra Lyn Bassett recently posted a draft of Statutory Interpretation in the Context of Federal Jurisdiction. The abstract follows:

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.

The article, which will appear in the George Washington Law Review, is definitely worth the read.  Prof. Bassett provides a very readable and thoughtful discussion of statutory interpretation in the jurisdictional context and of alienage jurisdiction.  I do disagree, though, with her conclusion about the proper construction of the permanent-resident-alien provision in section 1332, as I noted recently in Consistent "Deeming":  A Cohesive Construction of 28 U.S.C. s1332 in Cases Involving International Corporations and Permanent-Resident Aliens:

Two categories of alienage-jurisdiction cases have proven troublesome: cases involving permanent-resident aliens and cases involving international corporations. Jurisdiction in these categories depends upon the construction of 28 U.S.C. § 1332’s deeming provisions. The permanent-resident deeming provision and the corporate deeming provision operate uncontroversially to remove certain cases from federal jurisdiction, but controversy exists as to what extent they create jurisdiction that did not exist before the amendments that added the deeming provisions. The results and analytical approaches in these categories have varied, and the resulting confusion is unsatisfactory. The cases in this area are plagued by a structural flaw—while framing their analyses in terms of “clear” or “unambiguous” text, the courts have actually imposed no construction at all, instead jumping extra-textually to the what-would-Congress-have-wanted question. Further, courts faced with cases in each category have decided the cases without reference to the other category. My solution is a modest one but provides the consistency needed in a jurisdictional inquiry. I give the words “shall be deemed” a consistent construction in the two deeming provisions and resolve the missing-word problem that lurks in the background. Under my solution, the words “shall be deemed” perform a simple function in the deeming provisions—they confer State citizenship on certain litigants. But they do not strip a party of preexisting alien status. When construed this way and combined with the § 1332(a) jurisdiction-granting subcategories, the deeming provisions create no jurisdiction that did not exist before the deeming provisions.

This solution provides several benefits. First, it provides the consistency and coherence needed in a jurisdictional inquiry. Second, it is textually faithful and gives effect to similar language used in the deeming provisions and differing language used elsewhere in § 1332. Third, it avoids the constitutional problems that arise under alternative construction. To be sure, one might conjure up scenarios where, in the view of the conjurer, exercising jurisdiction would better serve the purposes of alienage jurisdiction. But those scenarios are rare, and desirability of results cannot distort the task—giving effect to the statute. Among permissible solutions, mine yields the best results. It simply is not accepted as an acceptable method of statutory interpretation that when no construction yields the construer’s desired result in every case, the statute need be given no construction except what Congress should have intended in each case.

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