Reconsidering Substantive Canons

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

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.

An Empirical Examination of Agency Statutory Interpretation

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

Constitutional scholars Christopher P. Banks and John C. Blakeman offer the most current and the first book-length study of the U.S. Supreme Court’s “new federalism” begun by the Rehnquist Court and now flourishing under Chief Justice John Roberts. Using descriptive and empirical methods in political science and legal scholarship, and informed by diverse approaches to judicial ideology, from historical to new institutionalist, they investigate how the U.S. Supreme Court rulings have shaped the political principle of federalism. While the Rehnquist Court reinvorgorated new federalism by protecting state sovereignty and set new constitutional limits on federal power, Banks and Blakeman show that in the Roberts Court new federalism continues to evolve in a docket increasingly attentive to statutory construction, preemption, and business litigation. In addition, they analyze areas of federalism not normally studied by scholars such as religious liberty and foreign affairs.

At the ideological center of the Supreme Court sits Anthony M. Kennedy, whose pivotal role on the Rehnquist Court is only expected to grow in importance now that he is the lone 'swing Justice' on the Roberts Court. The Ties Goes to Freedom is the first book-length analysis of Kennedy, and it challenges the conventional wisdom that his jurisprudence is inconsistent and incoherent. Using the hot-button issues of privacy rights, race, and free speech, this book demonstrates how Kennedy forcefully articulates a libertarian constitutional vision. The Tie Goes to Freedom fills two significant voids—one examining the jurisprudence of the man at the ideological center of the Supreme Court, the other demonstrating the compatibility of an expansive judicial role with libertarian political theory. At the end of Kennedy’s tenure as the most important swing justice in recent Supreme Court history, Helen Knowles provides an updated edition of her highly regarded book on Justice Kennedy and his constitutional vision.

Statutory interpretation is both a distinct body of law governing the determination of the meaning of legislation and a task that requires a set of skills. It is thus an essential area of legal practice, education and research. Modern Statutory Interpretation: Framework, Principles and Practice is an original, clear, coherent and research-based account of contemporary Australian statutory interpretation. Written by experts in the field, the book provides a comprehensive coverage of statutory interpretation law as well as examining related areas such as legislative drafting, the parliamentary process, the modern history of interpretation, sources of doubt, and interpretation techniques. The content is structured in eight parts. Parts I-III introduce foundational matters, Parts IV-VII deal with the general principles of interpretation, and Part VIII examines special interpretative issues. Modern Statutory Interpretation is an essential resource for legal professionals, legal researchers, and students undertaking advanced courses in statutory interpretation in Australia.

So far this book has shown that the widespread belief in the Supreme Court's independence can give rise to misleading expectations about its jurisprudence, especially when the justices's preferences diverge from those of majorities in the House of Representatives. Post 2004, professional commentators expected the Rehnquist Court's successor, the Court led by Chief Justice John Roberts, to move even further to the right than it had moved before. But close observers of the Roberts Court were repeatedly struck by its apparent moderation in many important cases in its first four full terms, those occurring between 2006 and 2010. This chapter looks at the Roberts Court and analyses what has happened so far. It remains to be seen whether, under the condition of continued Republican domination of the House of Representatives, the Roberts Court will continue its more aggressively conservative jurisprudence.

Preemption in the Rehnquist and Roberts Courts: An Empirical Analysis

What difference do starting points make? The question is important for decision-making in general and for law in particular, including the interpretation of statutes. Judges must begin the interpretive process somewhere. Today, Supreme Court opinions sometimes promote the idea of starting with the text of the statute at issue. But what does this mean, in practice, and does it matter to decisions? "Start with the text" could be a signal of allegiance to an interpretive school and an indication that some interpretive tools are more important than or even lexically superior to others. At present, however, the statement delivers neither of those messages well. Instead, we might think about the statement as a rule for sequencing sources. Although the mere sequence in which information is considered does not have any clear logical significance for case results, the idea of starting with statutory text can become almost unnervingly significant—and without adding lexical priority.

This research aims to explore and develop an innovative concept of criminal law interpretation in Indonesia through the Rule of Lenity (RoL) approach. The RoL principle, originating from the common law system, emphasizes that ambiguous criminal provisions must be interpreted narrowly and always in favor of the defendant. Within Indonesia’s civil law system, adopting RoL has the potential to strengthen legal certainty, safeguard defendants’ human rights, and reduce the risk of arbitrariness in law enforcement practices. The study employs normative legal research methods, focusing on theoretical foundations of the principle of legality, established doctrines of statutory interpretation, and comparative analysis of RoL application in common law jurisdictions, particularly the United States. The findings suggest that RoL in Indonesia should only serve as a last resort, applied strictly when all existing interpretative methods still leave unresolved ambiguity. This ensures that RoL does not undermine legal predictability while simultaneously upholding fairness in criminal adjudication. The conclusion highlights the necessity of explicitly regulating RoL within Indonesian positive law. Such regulation would provide judges with clearer guidance, reinforce protections for defendants, and contribute to achieving a balanced criminal justice system. Ultimately, the integration of RoL offers a pathway for Indonesia to harmonize its civil law tradition with a principle that enhances justice and prevents potential abuse of prosecutorial and judicial discretion.

In a preemption case decided over a decade ago, Justice Breyer wrote that “in today’s world, filled with legal complexity, the true test of federalist principle may lie . . . in those many statutory cases where courts interpret the mass of technical detail that is the ordinary diet of the law.” This article surveys the Roberts Court’s preemption jurisprudence, focusing on five cases decided in OT 2010. I argue that Justice Breyer was right — that is, that because current federalism jurisprudence largely eschews any effort to define exclusive spheres of state and federal regulatory jurisdiction, the most important federalism cases involve efforts to determine the preemptive scope of federal legislation. The key doctrinal tool in preemption cases is the “presumption against preemption” — a canon of statutory construction recognized by the Court in the 1947 case of Rice v. Santa Fe Elevator Corp. The Rice presumption is under nearly constant siege today from both litigants and commentators. This article explores the Roberts Court’s use (and non-use) of the presumption and defends the presumption against its academic critics. In particular, I address Caleb Nelson’s important argument that Rice’s presumption is inconsistent with the original meaning of the Supremacy Clause, concluding that Professor Nelson’s historical argument does not rule out the presumption as it is presently applied. Even if the original history did disfavor the presumption, Rice is a necessary doctrinal innovation that balances other developments in federalism doctrine, such as the contemporary Court’s unwillingness to enforce a robust enumerated powers doctrine. Nelson’s argument has a second aspect, however, which would considerably raise the bar for conflict preemption. In a series of separate opinions, Justice Thomas has adopted this approach and rejected the contemporary notion of “purposes and objects” preemption. I argue that this approach can and should coexist with Rice’s presumption against preemption in express preemption cases, and that in any event one cannot consistently cite Nelson’s historical argument to reject Rice and, at the same time, maintain broad notions of implied preemption. The article concludes with a discussion of the politics of preemption cases, which frequently find conservative and liberal justices reversing their usual stances on federalism. Although a number of factors contribute to this ironic reversal, the fact that federal preemption is generally de-regulatory in its effect. I suggest that a libertarian theory of federalism favoring widespread preemption is shortsighted, because robust state institutions remain necessary to our system of vertical checks and balances.

PRINCIPLES OF STATUTORY INTERPRETATION

Constitutional Statutory Synthesis