PRINCIPLES OF STATUTORY INTERPRETATION

Comments on Mark Seidenfeld’s “Revisiting Congressional Delegation of Interpretive Primacy as Foundation for <i>Chevron</i> Deference”

Discharging Income Tax Liabilities in Bankruptcy: A Challenge to the New Theory of Strict Construction for Scriveners' Errors

Statutory Interpretation In The Roberts Court’s First Era: An Empirical and Doctrinal Analysis

Reconsidering Substantive Canons

The Warp and Woof of Statutory Interpretation: Comparing Supreme Court Approaches in Tax Law and Workplace Law

for “Liberal Justices’ Reliance on Legislative History: Principle, Strategy, and the Scalia Effect” This article conducts an in-depth examination of Supreme Court Justices’ reliance on legislative history during the Burger, Rehnquist, and early Roberts eras. In doing so, it makes two important contributions to current statutory interpretation debates. First, the article presents a powerful case against the conventional wisdom that legislative history is a “politicized” resource, invoked opportunistically by federal judges. The premise that judges regularly rely on legislative history to promote their preferred policy positions—if true—should find ample support in the majority opinions of liberal Supreme Court Justices construing liberal (pro-employee) labor and civil rights statutes. By analyzing all 320-plus majority opinions in workplace law authored by eight liberal Justices from 1969-2006, the authors establish that legislative history reliance is actually associated with a constraining set of results. When these eight liberals use legislative history as part of their majority reasoning, they do so to justify a higher proportion of their pro-employer outcomes than their pro-employee decisions. The authors then review individual majority opinions to demonstrate how this surprising pattern of reliance is based on neutral doctrinal considerations. Liberal Justices use legislative history to illuminate the existence and contours of complex statutory bargains that often favor conservative or pro-employer positions. The authors consider alternative explanations, premised on the institutional factor of who assigns majority opinions and also the instrumental possibility that liberals withhold use of legislative history in “minor” cases to enhance its value in more important decisions. They conclude, however, that Justices Brennan, Marshall, Souter, Stevens, and others are willing to follow so frequently a legislative history trail leading away from their presumed ideological preferences mainly because they have invoked this interpretive resource in principled fashion. The article’s second major contribution is to identify and analyze the Scalia Effect that has arisen with respect to liberal Justices’ use of legislative history since 1986. In the face of Justice Scalia’s fervently expressed opposition to legislative history, liberal Justices have opted not to rely on that resource in a series of pro-employer majorities that Scalia joins. One result of the liberals’ strategic restraint is to make their use of legislative history in remaining (mostly proemployee) majority opinions appear more ideological than was true before Scalia joined the Court. The authors also show that liberal justices have special reasons for acting strategically in this regard. When liberals rely on legislative history, Justice Scalia is significantly less likely to join their majority opinions even when he votes on their side; he also is significantly less likely to vote for the majority result when these liberals rely on legislative history than when they do not. Intriguingly, Justice Scalia’s strong resistance to legislative history usage does not extend to majorities authored by his conservative colleagues. Scalia seems prepared to give these conservative colleagues a free ride: he is every bit as likely to join their majorities, or vote for their results, when they rely on legislative history as when they do not.

With an admirable purpose, a celebrity endorsement from Dame Helen Mirren, and unanimous support in Congress, the Holocaust Expropriated Art Recovery Act (HEAR Act), passed in late 2016, appears to be a rare legislative success. Its congressional momentum, however, belies the pitfalls that inhere in its text. The Act’s nuanced and often ambiguous language raises many questions to be addressed in future litigation over restitution claims to Nazi-looted art. The HEAR Act was meant to address a perceived problem that legitimate claims to recover art looted by the Nazis were not being heard “on the merits” in U.S. courts, but were instead too frequently being dismissed as brought too late—in particular, blocked by courts’ application of state statutes of limitations. And, at a minimum, disputes over the timeliness of claims to Nazi-looted art rendered litigation of such claims protracted and costlier. The Act sought to relieve claimants of these obstacles by instituting a nationwide six-year limitations period running from “actual knowledge” of the relevant facts. Despite its relatively short length, the HEAR Act brings a number of interpretive difficulties that will give rise to a new set of litigation hurdles for both claimants and possessors of artworks subject to claims. This Article is meant as a guide to courts and litigants in navigating key ambiguities and uncertainties in the statute. The Article discusses the Act in three parts. First, we briefly explain the context in which the Act was enacted: the history of United States and international efforts to return art lost during the Holocaust to rightful owners. Second, we describe the Act’s consideration by Congress and its operative provisions. We finally discuss half a dozen instances in which the HEAR Act’s language is unclear, ambiguous, or raises difficult issues about the application or scope of the statute. Several of these instances are ambiguities created by the text of the statute, which is often in tension with its legislative history; others reflect an apparent mismatch between the statutory language and the practical reality of litigation. Where possible, we suggest what we believe is the most plausible and compelling reading of problematic statutory language in light of the text, history, and purposes of the Act, as well as the realities of litigation over Nazi-era art restitution claims. Our concern with the uncertainties created by the Act’s language is not theoretical. Litigants are already espousing conflicting interpretations of the Act’s language on some of the points discussed below, and courts have already reached holdings at odds with the statute’s language or legislative history (and sometimes both). All in, an Act meant to streamline claims to recover Nazi-looted art may well end up making such litigation costlier and more time-consuming for parties and courts as litigants argue for their preferred meaning of the Act’s terms.

Law, Language, and Corporatehood: Corporations and the U.S. Constitution

The Limits of Comprehensive Peace: The Example of the FLSA

The Vanishing Employee: Putting the Autonomous Dignified Union Worker Back to Work

The Supreme Court as Interstitial Actor: Justice Ginsburg's Eclectic Approach to Statutory Interpretation

On the Greatest Property Transfer that Wasn’t: How the National Labor Relations Act Chose Employee Rights and the Supreme Court Chose Property Rights

The jurisdictional reach of causes of action brought under the Alien Tort Statute 17891 (ATS) was considered by the Supreme Court of the United States in Kiobel v Royal Dutch Petroleum.2 The claimants in this decision sought to bring an action before a US District Court asserting universal civil jurisdiction over the conduct of foreign corporations performed against non-US nationals in the territory of a foreign State. Although the Supreme Court dismissed the particular claim on the basis of a domestic canon of statutory interpretation (the presumption against extraterritoriality), the narrowness of its reasoning left open the possibility for actions to continue being brought under the ATS which assert universal civil jurisdiction over the harm caused by individuals rather than corporations. Moreover, this position was specifically endorsed by a four-member minority of the Supreme Court in the Concurring Opinion of Justice Breyer. This paper argues that the reasoning of Justice Breyer is unconvincing and goes on to suggest that assertions of civil jurisdiction made under the universal principle are unlawful in international law as they fail to find a legal basis in either customary or conventional international law.

Back to the Basics of Antipollution Law

Ending Unreasonable Royalties: Why Nominal Damages are Adequate to Compensate Patent Assertion Entities for Infringement