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QUOTATION OF THE MONTH

"Even without a patent ambiguity to seize on, some readers take an arrogant attitude toward the makers of statutes. These interpreters of statutes do not cleave to republicanism, believing instead in a government of philosopher kings, or of the elite, or of the masses. When reading words that have been made into law by the processes of representative democracy, these individuals are not gripped by the same emotional bond others of us feel. Unrepublican views affect how one thinks about legislatures, and, therefore, how one interprets legislation. For faithful interpretation, each reader of a statute must suppress authoritarian, elitist, and anarchical inclinations. Every reader should be inhibited by a respect for the legislature's inherent authority to have its way--to rule--in our system of representative democracy."

JACK DAVIES, LEGISLATIVE LAW AND PROCESS 305-06 (2d ed. 1986) (He was a Minnesota state senator from 1959-82, and later was a judge on the Minnesota Court of Appeals from 1990 to 2000. This was written after he served as a state legislator for more than two decades, and before he became a judge.)



CASE SUMMARIES

Supreme Court


Johnson v. United States (S.Ct. April 4, 2005) (Souter)

Statutes/regulations construed: The 1-year statute of limitations in 28 U. S. C. §2255, 6(4).

Conclusion: In a case of a prisoner’s collateral attack on his federal sentence on the ground that a state conviction used to enhance that sentence has since been vacated, concluding that 1-year statute of limitations period begins when a petitioner receives notice of the order vacating the prior conviction, provided that he had sought it with due diligence in state court, after entry of judgment in the federal case with the enhanced sentence.

Statutory construction tools:
• “Limits of coherence”: “There are further reasons against applying the fourth paragraph as the Government would. Congress does not appear to have adopted a policy of enhancing federal sentences regardless of the validity of state convictions relied on for the enhancement. Custis and Daniels were decided on just the contrary, and unchallenged, understanding; it would certainly push the limits of coherence for the Court now to apply the fourth paragraph in a way that would practically close the door to relief that each of those cases specifically left open.”
• “Anomalies” in proposed construction of statute: “But Johnson’s take on the statute carries anomalies of its own, one minor, one more serious.”
• Construing statute enacted prior to relevant Supreme Court precedent: “Our job here is to find a sensible way to apply paragraph four when the truth is that with Daniels not yet on the books AEDPA’s drafters probably never thought about the situation we face here.”
• “Fit” and “style”: “Of course it is peculiar to speak of ‘discovering’ the fact of the very eventuality the petitioner himself has brought about, but when that fact is necessary to the §2255 claim, and treating notice of it as the trigger produces a more reasonable scheme than the alternatives, the scheme should be reconciled with the statutory language if it can be. And here the fit is painless, if short on style.”


Rousey v. Jacoway (S.Ct. April 4, 2005) (Thomas)

Statutes/regulations construed: 11 U. S. C. §522 of the Bankruptcy Code.

Conclusion: Debtors can exempt assets in their Individual Retirement Accounts (IRAs) from the bankruptcy estate pursuant to 11 U.S.C. §522(d)(10)(E). Under the terms of the statute, there are three requirements for exemption under this provision: (1) the right to receive payment must be from “a stock bonus, pension, profitsharing, annuity, or similar plan or contract”; (2) the right to receive payment must be “on account of illness, disability, death, age, or length of service”; and (3) even then, the right to receive payment may be exempted only “to the extent” that it is “reasonably necessary to support” the accountholder or his dependents.

Statutory construction tools:
• “On account of”: “We have interpreted the phrase ‘on account of’ elsewhere within the Bankruptcy Code to mean ‘because of,’ thereby requiring a causal connection between the term that the phrase ‘on account of’ modifies and the factor specified in the statute at issue . . . This meaning comports with the common understanding of ‘on account of.’ See, e.g., Random House Dictionary of the English Language 13 (2d ed. 1987) (listing as definitions ‘by reason of,’ ‘because of’); Webster’s Third New International Dictionary 13 (1981) (hereinafter Webster’s 3d) (same).”
• Context and ordinary meaning: “The context of this provision does not suggest that Congress deviated from the term’s [“on account of”] ordinary meaning.”
• “Similar”: “To be ‘similar,’ an IRA must be like, though not identical to, the specific plans or contracts listed in §522(d)(10)(E), and consequently must share characteristics common to the listed plans or contracts. See American Heritage Dictionary of the English Language 1206 (1981) (hereinafter Am. Hert.); Webster’s 3d 2120.”
• Cold and hot porridge: “That leaves us with the question of how to implement the statutory mandate that a petitioner act with due diligence in discovering the crucial fact of the vacatur order that he himself seeks. The answer is that diligence can be shown by prompt action on the part of the petitioner as soon as he is in a position to realize that he has an interest in challenging the prior conviction with its potential to enhance the later sentence. The important thing is to identify a particular time when the course of the later federal prosecution clearly shows that diligence is in order. That might be the date the federal indictment is disclosed, the date of judgment, or the date of finality after direct appeal. Picking the first date would require the quickest response and serve finality best, but it would produce some collateral litigation that federal acquittals would prove to have been needless, and it shares the same disconnection from the existence of a §2255 claim as the Government’s view of the relevant ‘facts,’ see supra, at 8– 9. If we picked the third date, collateral litigation would be minimized, but finality would come late. This shapes up as a case for choosing the bowl of porridge between the one too hot and the one too cold, and settling on the date of judgment as the moment to activate due diligence seems best to reflect the statutory text and its underlying concerns.”

Dura Pharmaceuticals v. Broudo (S.Ct. April 19, 2005) (Breyer)

Statutes/regulations construed: The requirement that a private plaintiff who claims securities fraud prove that the defendant’s fraud caused an economic loss. 109 Stat. 747, 15 U. S. C. §78u–4(b)(4).

Conclusion: The Court rejected the 9th Circuit’s holding that a plaintiff can satisfy this requirement—a requirement that courts call ‘loss causation’—simply by alleging in the complaint and subsequently establishing that ‘the price’ of the security on the date of purchase was inflated because of the misrepresentation, and concluded that “the Ninth Circuit is wrong, both in respect to what a plaintiff must prove and in respect to what the plaintiffs’ complaint here must allege.”

Statutory construction tools:
• Common-law roots: “Given the common-law roots of the securities fraud action (and the common-law requirement that a plaintiffshow actual damages), it is not surprising that other courts of appeals have rejected the Ninth Circuit’s ‘inflated purchase price’ approach to proving causation and loss.”
• What do the Restatement and treatise writers say about it?: “Indeed, the Restatement of Torts, in setting forth the judicial consensus, says that a person who ‘misrepresents the financial condition of a corporation in order to sell its stock’ becomes liable to a relying purchaser 'for the loss' the purchaser sustains ‘when the facts . . . become generally known’ and ‘as a result’ share value ‘depreciate[s].’ §548A, Comment b, at 107. Treatise writers, too, have emphasized the need to prove proximate causation. Prosser and Keeton §110, at 767 (losses do ‘not afford any basis for recovery’ if ‘brought about by business conditions or other factors’).”
• Uniqueness of perspective of court: “We cannot reconcile the Ninth Circuit’s ‘inflated purchase price' approach with these views of other courts. And the uniqueness of its perspective argues against the validity of its approach in a case like this one where we consider the contours of a judicially implied cause of action with roots in the common law.”
[Question for discussion: Would this apply to courts other than the 9th Circuit?]


Pasquantino v. United States (S.Ct. April 26, 2005) (Thomas—Ginsburg wrote a dissent)

Statutes/regulations construed: The federal wire fraud statute, 18 U. S. C. §1343 (2000 ed., Supp. II).

Conclusion: A plot to defraud a foreign government of tax revenue violates the federal wire fraud statute, 18 U. S. C. §1343 (2000 ed., Supp. II).

Statutory construction tools:
• Common law, Blackstone, and Kent: “The common law of fraud confirms this characterization of Canada’s right to excise taxes. The right to be paidmoney has long been thought to be a species of property. See 3 W. Blackstone, Commentaries on the Laws of England 153–155 (1768) (classifying a right to sue on a debt as personal property); 2 J. Kent, Commentaries on American Law *351 (same).”
• Overlapping conduct: “Any overlap between the antismuggling statute and the wire fraud statute is beside the point. The Federal Criminal Code is replete with provisions that criminalize overlapping conduct. See Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 518, and n. 62 (2002); United States v. Wells, 519 U. S. 482, 505–509, and nn. 8–10 (1997) (STEVENS, J., dissenting). The mere fact that two federal criminal statutes criminalize similar conduct says little about the scope of either. “
• Statutes which invade the common law/nonderogation canon: “We next consider petitioners’ revenue rule argument. Petitioners argue that, to avoid reading §1343 to derogate from the common-law revenue rule, we should construe the otherwise-applicable language of the wire fraud statute to except frauds directed at evading foreign taxes. Their argument relies on the canon of construction that ‘[s]tatutes which invade the common law . . . are to be read with a presumption favoring the retention of long-established and familiar principles, except where a statutory purpose to the contrary is evident.’ This presumption is, however, no bar to a construction that conflicts with a common-law rule if the statute ‘speak[s] directly’ to the question addressed by the common law.’ (citations omitted)
• Nonderogation canon and revenue-rule principle: “Whether the wire fraud statute derogates from the common-law revenue rule depends, in turn, on whether reading §1343 to reach this prosecution conflicts with a well-established revenue rule principle. We clarified this constraint on the application of the nonderogation canon in United States v. Craft, 535 U. S. 274 (2002). The issue in Craft was whether the property interest of a tenant by the entirety was exempt from a federal tax lien. Id., at 276. We construed the federal tax lien statute to reach such a property interest, despite the tension between that construction and the common-law rule that entireties property enjoys immunity from liens, because this ‘common-law rule was not so well established with respect to the application of a federal tax lien that we must assume that Congress considered the impact of its enactment on the question now before us.'"
• State of the common law at time of enactment: “[B]efore we may conclude that Congress intended to exempt the present prosecution from the broad reach of the wire fraud statute, we must find that the common-law revenue rule clearly barred such a prosecution. We examine the state of the common law as of 1952, the year Congress enacted the wire fraud statute.”
• Inferences regarding congressional intent from foreign citations: “Drawing sure inferences regarding Congress’ intent from such foreign citations is perilous, as several of petitioners’ cases illustrate.”
• Common-law development: “Petitioners analogize the present case to early English common-law cases from which the revenue rule originally derived. Those early cases involved contract law, and they held that contracts executed with the purpose of evading the revenue laws of other nations were enforceable, notwithstanding the rule against enforcing contracts with illegal purposes. Petitioners argue that these cases demonstrate that ‘indirect’ enforcement of revenue laws is at the very core of the common-law revenue rule, rather than at its margins.
The argument is unavailing. By the mid-20th century, the revenue rule had developed into a doctrine very different from its original form. Early revenue rule cases were driven by the interest in lessening the commercial disruption caused by the high tariffs of the day. As Lord Hardwicke explained, if contracts that aimed at circumventing foreign revenue laws were unenforceable, ‘it would cut off all benefit of such trade from this kingdom, which would be of very bad consequence to the principal and most beneficial branches of our trade. By the 20th century, however, that rationale for the revenue rule had been supplanted. By then, as we have explained, courts had begun to apply the revenue rule to tax obligations on the strength of the analogy between a country’s revenue laws and its penal ones, see supra, at 8–9, superseding the original promotion-of-commerce rationale for the rule. The early English cases rest on a far different foundation from that on which the revenue rule came to rest. They thus say little about whether the wire fraud statute derogated from the revenue rule in its mid-20th century form.” (citation omitted)


Small v. United States (S.Ct. April 26, 2005) (Breyer—Thomas wrote dissent)

Statutes/regulations construed: Provision of the United States Criminal Code that makes it “unlawful for any person . . . who has been convicted in any court, of a crime punishable by imprisonment for a term exceeding one year . . . to . . . possess . . . any firearm.” 18 U. S. C. §922(g)(1).

Conclusion: The phrase “convicted in any court” encompasses only domestic, not foreign, convictions.

Statutory construction tools in majority opinion:
• Ordinary life and law: “The question before us is whether the statutory reference ‘convicted in any court’ includes a conviction entered in a foreign court. The word ‘any’ considered alone cannot answer this question. In ordinary life, a speaker who says, ‘I’ll see any film,’ may or may not mean to include films shown in another city. In law, a legislature that uses the statutory phrase ‘any person’ may or may not mean to include ‘persons’ outside ‘the jurisdiction of the state.’”
• Congress and domestic concerns/presumption against extraterritorial application: “In determining the scope of the statutory phrase we find help in the ‘commonsense notion that Congress generally legislates with domestic concerns in mind.’ That presumption would apply, for example, were we to consider whether this statute prohibits unlawful gun possession abroad as well as domestically. And, although the presumption against extraterritorial application doesnot apply directly to this case, we believe a similar assumption is appropriate when we consider the scope of the phrase ‘convicted in any court’ here.” (citations omitted)
• Ordinary assumptions: “These considerations, suggesting significant differences between foreign and domestic convictions, do not dictate our ultimate conclusion. Nor do they create a ‘clear statement’ rule, imposing upon Congress a special burden of specificity. See post, at 5 (THOMAS, J., dissenting). They simply convince us that we should apply an ordinary assumption about the reach of domestically oriented statutes here—an assumption that helps us determine Congress’ intent where Congress likely did not consider the matter and where other indicia of intent are in approximate balance. Cf. ibid. We consequently assume a congressional intent that the phrase ‘convicted in any court’ applies domestically, not extraterritorially.”
• Anomalies: “We have found no convincing indication to the contrary here. The statute’s language does not suggest any intent to reach beyond domestic convictions. Neither does it mention foreign convictions nor is its subject matter special, say, immigration or terrorism, where one could argue that foreign convictions would seem especially relevant. To the contrary, if read to include foreign convictions, the statute’s language creates anomalies.”
• Language change: “Congress did consider a Senate bill containing language that would have restricted predicate offenses to domestic offenses. And the Conference Committee ultimately rejected this version in favor of language that speaks of those ‘convicted in any court, of a crime punishable by a term of imprisonment exceeding one year.’ But the history does not suggest that this language change reflected a congressional view on the matter before us. Congress did consider a Senate bill containing language that would have restricted predicate offenses to domestic offenses. And the Conference Committee ultimately rejected this version in favor of language that speaks of those ‘convicted in any court, of a crime punishable by a term of imprisonment exceeding one year.’ But the history does not suggest that this language change reflected a congressional view on the matter before us.” (citations omitted)
• Silence in legislative history—those who use legislative history and “others”: “Thus, those who use legislative history to help discern congressional intent will see the history here as silent, hence a neutral factor, that simply confirms the obvious, namely, that Congress did not consider the issue. Others will not be tempted to use or to discuss the history at all. But cf. post, at 13 (THOMAS, J., dissenting).”
• Empirical facts and Congress: “And, as the dissent properly notes, post, at 12, one convicted of a serious crime abroad may well be as dangerous as one convicted of a similar crime in the United States. The force of this argument is weakened significantly, however, by the empirical fact that, according to the Government, since 1968, there have probably been no more than ‘10 to a dozen’ instances in which such a foreign conviction has served as a predicate for a felon-in-possession prosecution. This empirical fact reinforces the likelihood that Congress, at best, paid no attention to the matter.” (citation omitted)

Dissent:
• Plain meaning of “any”: “In concluding that ‘any’ means not what it says, but rather ‘a subset of any,’ the Court distorts the plain meaning of the statute and departs from established principles of statutory construction. I respectfully dissent.”
• “Any film”: “The Court’s observation that ‘a speaker who says, ‘I’ll see any film,’ may or may not mean to include films shown in another city,’ ante, at 2, therefore adds nothing to the analysis. The context of that statement implies that such a speaker, despite saying ‘any,’ often means only the subset of films within an accessible distance. Unlike the context of the film remark, the context of 18 U. S. C. §922(g)(1) implies no geographic restriction.”
• Reasonable human beings: “Surely a ‘reasonable human being’ drafting this language would have considered whether foreign convictions are, on average and as awhole, accurate at gauging dangerousness and culpability, not whether the worst-of-the-worst are. Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. Cal. L. Rev. 845, 854 (1992).”
• Mutant versions of canons of construction: “As with the extraterritoriality canon, the Court applies a mutant version of a recognized canon when the recognized canon is itself inapposite. Whatever the utility of canons as guides to congressional intent, they are useless when modified in ways that Congress could never have imagined in enacting §922(g)(1).”
• “Guesswork-as-interpretation”: “The Court hypothesizes ‘that Congress did not consider whether the generic phrase ‘convicted in any court’ applies to domestic as well as foreign convictions,’ ante, at 7, and takes that as license to restrict the clear breadth of the text. Whether the Court’s empirical assumption is correct is anyone’s guess. Regardless, we have properly rejected this method of guesswork-as-interpretation.”
• Reconvening the legislators: “Here, as in Beecham, ‘our task is not the hopeless one of ascertaining what the legislators who passed the law would have decided had they reconvened to consider [this] particular cas[e],’ but the eminently more manageable one of following the ordinary meaning of the text they enacted.” (citation omitted)
• Odd use of federal government resources: “It may seem an odd use of the Federal Government’s resources to prosecute a U. S. citizen for smuggling cheap liquor into Canada. But the broad language of the wire fraud statute authorizes it to do so and no canon of statutory construction permits us to read the statute more narrowly.”


Bates v. Dow Agrosciences (S.Ct. April 27, 2005) (Stevens—Breyer concurred and Thomas concurred in judgment and dissented in part)

Statutes/regulations construed: The preemption provision of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. § 136v(b), which provides: “Such State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.”

Conclusion: “In sum, under our interpretation, §136v(b) retains a narrow, but still important, role. In the main, it preempts competing state labeling standards—imagine 50 different labeling regimes prescribing the color, font size, and wording of warnings—that would create significant inefficiencies for manufacturers. The provision also preempts any statutory or common-law rule that would impose a labeling requirement that diverges from those set out in FIFRA and its implementing regulations. It does not, however, pre-empt any state rules that are fully consistent with federal requirements.”

Statutory construction tools:
• “Requirement”: “The prohibitions in §136v(b) apply only to ‘requirements.’ An occurrence that merely motivates an optional decision does not qualify as a requirement. The Court of Appeals was therefore quite wrong when it assumed that any event, such as a jury verdict, that might ‘induce’ a pesticide manufacturer to change its label should be viewed as a requirement. The Court of Appeals did, however, correctly hold that the term ‘requirements’ in §136v(b) reaches beyond positive enactments, such as statutes and regulations, to embrace common-law duties . . . In arriving at a different conclusion, the court below reasoned that a finding of liability on these claims would ‘induce Dow to alter [its] label.’ This effects-based test finds no support in the text of §136v(b), which speaks only of 'requirements.' A requirement is a rule of law that must be obeyed; an event, such as a jury verdict, that merely motivates an optional decision is not a requirement. The proper inquiry calls for an examination of the elements of the common-law duty at issue; it does not call for speculation as to whether a jury verdict will prompt the manufacturer to take any particular action (a question, in any event, that will depend on a variety of cost/benefit calculations best left to the manufacturer’s accountants).” (citations omitted)
• “Amputated version” of statute: “Conspicuously absent from the submissions by Dow and the United States is any plausible alternative interpretation of ‘in addition to or different from’ that would give that phrase meaning. Instead, they appear to favor reading those words out of the statute, which would leave the following: ‘Such State shall not impose or continue in effect any requirements for labeling or packaging.’ This amputated version of §136v(b) would no doubt have clearly and succinctly commanded the preemption of all state requirements concerning labeling. That Congress added the remainder of the provision is evidence of its intent to draw a distinction between state labeling requirements that are pre-empted and those that are not.”
• Consistency: “The notion that FIFRA contains a nonambiguous command to pre-empt the types of tort claims that parallel FIFRA’s misbranding requirements is particularly dubious given that just five years ago the United States advocated the interpretation that we adopt today.”


Pace v. DiGuglielmo (S.Ct. April 27, 2005) (The federal Antiterrorism and Effective Death Penalty Act of 1996 establishes a 1-year statute of limitations for filing a federal habeas corpus petition. That limitations period is tolled, however, while “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” The Court concluded that a state post-conviction petition rejected by the state court as untimely is not “properly filed” within the meaning of the statute.)


LAW REVIEW ARTICLE RECOMMENDATIONS
[The summaries are not mine.]

Recent postings on SSRN tend to confirm my belief that a large percentage of law-review writing on statutory construction—at least 50 percent of articles, perhaps substantially more—falls into one of three categories:

1) Legislative history is good/bad, or other analysis of use of legislative history.
2) Addressing one or two Supreme Court statutory construction opinions (most frequently Chevron/Mead/Skidmore).
3) Applying some social-science theory—public choice, or law and economics, or "positive political theory"—to statutory construction.

I would be interested in feedback on this from people who are familiar with the literature on statutory construction. Do you think I am right about this?

An example of # 1:

Michael Abramowicz & Emerson H. Tiller, Judicial Citation to Legislative History: Contextual Theory and Empirical Analysis
[This might also be an example of # 3]

Judge Leventhal famously described the invocation of legislative history as "the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one's friends." The volume of legislative history is so great and varied, some contend, that judges cite it selectively to advance their policy agendas. In this article, we employ positive political and contextual theories of judicial behavior to examine how judges use legislative history. We consider whether opinion-writing judges, as Judge Leventhal might suggest, cite legislative history from legislators who share the same political-ideological perspective as the opinion-writing judge? Or do judges make such choices in a broader context than Judge Levanthal's statement suggests. We posit that an opinion writing judge would cite legislative statements supporting an outcome preferred by the opinion-writing judge, when such statements come from legislators who share the same political-ideological perspective as the opinion-writing judge's colleagues or superiors. This should be so regardless of whether the cited legislator shares the broader perspectives of the opinion-writing judge himself. Put in Leventhal's terms, instead of looking for their own ideological friends, judges look over the heads of the guests for the legislative friends of the judge's colleagues on the bench (or superiors on higher benches). We test this approach with court opinion data gathered from LEXIS and find evidence of hierarchy (high court oversight) and panel (co-members on a court) effects in citation to legislative history, effects that appear related to the political-ideological identification of judges who review or are co-members on a panel of the authoring judge. Specifically, we find that the higher the proportion of Republicans in the reviewing court or sitting on the same three-judge panel, the higher the proportion of legislative history cites that will be to Republican legislators, independent of the political orientation of the authoring judge.


Two examples of # 2:

Peter M. Shane, Ambiguity and Policy Making: A Cognitive Approach to Reconciling Chevron and Mead

When decided, both Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984), and United States v. Mead, 533 U.S. 218 (2001) were trumpeted, whether by supporters or critics, as marking substantial changes in the law governing judicial review of agency statutory interpretation. This essay argues that what the Court actually decided in each case was entirely consistent with the fabric of the law of judicial review of administrative action as woven during earlier decades. Unfortunately, however, the Court's rhetoric in both opinions is confusing and unhelpful at key points, creating impressions of substantial changes in the law when none was being made. As a result, agencies, judges, and lawyers are better served by focusing less on what Chevron and Mead say and more on what they decided, and treating both decisions as elaborating a fairly straightforward approach based on (a) judicial reaction to the clarity of the statute and (b) whether the statute at issue is intended to create an opportunity for genuine agency policy making. In particular, a reviewing judge should first determine whether the statute in question is susceptible to more than one plausible legal reading, and, if only one plausible legal reading is available, the judge should bind the agency to it. If, however, more than one plausible reading is available, the judge should then ask whether the ambiguity in the statute signals an occasion for policy making. In other words, is the agency, in filling the statutory gap at issue, intended to balance expert judgment and relevant political values in order to accommodate the competing interests that need to be taken into account in order to further Congress's objectives in enacting the statute? If so, then, so long as the agency has rationally identified any plausible statutory reading, the judge should consider herself duty-bound to defer to it. If the statute does not contemplate significant agency policy making in its interpretation, then the court should ask itself a third question: Of the plausible readings available, does any appear to the court to be plainly more attractive than its competitors? If not, then the court should likewise defer to an agency choice of any rational interpretation because the agency is the primary policy maker, and the court has no legal ground to prefer any alternative reading to the agency's own. If, however, the court initially finds one plausible reading most compelling, then it retains the authority to impose that reading on the agency. Before doing so, however, the court should pause, open-mindedly. It should consider, if the agency has an alternative preference, whether the agency's reasoning is not in fact sufficient to make its alternative at least as attractive as the court's initial view. In such a case, notwithstanding its own initial view, the court should deem itself persuaded by the agency's statutory reading. This approach, which is guided by the judicial sense of statutory clarity and does not speak of ambiguities or certainties inherent in the statutory texts themselves, is the most straightforward reconciliation of Chevron and Mead.

Ellen P. Aprill, Linda Galler & Irving Salem, Report of the Task Force on Judicial Deference, ABA Section of Taxation

As a result of the Supreme Court's decision in United States v. Mead Corporation, 533 U.S. 218 (2001), which emphasized "the great variety of ways in which the laws invest the Government's administrative arms with discretion, and with procedures for exercising it, in giving meaning to Acts of Congress," id. at 235-36, there is a need for an agency-by-agency consideration of the extent to which courts should give deference to administrative pronouncements under the mandate of Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984). Moreover, there is a particular need to develop a clear set of deference concepts for interpretations of the tax law because of, inter alia: (1) the power and pervasiveness of the IRS, (2) the large number and variety of administrative pronouncements issued by the IRS, and, (3) the Supreme Court's continuing reliance in its tax cases on the traditional test of National Muffler Association v. United States, 440 U.S. 472 (1978), rather than on Chevron.

The authors of the Report undertake this task as well as a review of recent case law and make the following recommendations: (1) Federal courts should give Chevron deference to regulations promulgated by the Treasury and the IRS, with (i) legislative tax regulations receiving controlling deference under Chevron so long as they are not arbitrary, capricious, or manifestly contrary to the statute, and (ii) interpretive tax regulations receiving the same controlling deference if they are reasonable under the test of National Muffler, which examines such factors as the extent to which the regulation harmonizes with the plain language, origin, and purpose of the statute; the manner in which the regulation evolved; the length of time the regulation has been in effect; the reliance placed on it; the consistency of interpretation; and the degree of scrutiny Congress has devoted to the regulation; (2) Federal courts should give temporary regulations the same deference as described above, provided that the promulgation of such regulations meets the good cause standards as specified in the Administrative Procedure Act for promulgating regulations without notice and comment; (3) Federal courts should give revenue rulings, certain revenue procedures and certain notices deference under the doctrine of Skidmore v. Swift & Co., 323 U.S. 134 (1944), which directs courts to take into account the agency’s experience and its power to persuade, but to retain the ability to choose a better rule even if the agency interpretation is reasonable; and (4) Federal courts should take into account unofficial agency interpretations, such as private letter rulings, technical advice memoranda, and certain litigating positions, only to the extent to which their logic and reasoning appeal to the reviewing court.

Two examples of # 3:

Mathew D. McCubbins & Daniel B. Rodriguez, Canonical Construction and Statutory Revisionism: The Strange Case of the Appropriations Canon

In this article, we consider the impact of positive political theory on legislative interpretation and, in particular, the debate over interpretive canons. Our vehicle for this consideration is the appropriations canon. By virtue of this canon, courts construe narrowly legislative changes to statutes made through the appropriations process. We consider the underlying logic and rationale of this canon - essentially, that the appropriations process is unrepresentative and insufficiently deliberative - and use this analysis to investigate, more broadly, the processes of canonical construction in the modern statutory interpretation jurisprudence. Canonical construction, we argue, must be attentive to the equilibrium effects of judicial approaches and, moreover, it must be based upon a normatively compelling theory of lawmaking and the legislative process. The appropriations canon fails both of these tests; and, in its structure, it reveals some of the weaknesses of the contemporary reliance on canons to illuminate statutory meaning.


Cheryl Boudreau, Mathew D. Mccubbins & Daniel B. Rodriguez, The Judge as a Fly on the Wall: Interpretive Lessons from the Positive Political Theory of Legislation

In the modern debate over statutory interpretation, scholars frequently talk past one another, arguing for one or another interpretive approach on the basis of competing, and frequently undertheorized, conceptions of legislative supremacy and political theory. For example, so-called new textualists insist that the plain meaning approach is compelled by the U.S. Constitution and rule of law values; by contrast, theorists counseling a more dynamic approach often reject the premise of legislative supremacy that is supposed by the textualist view. A key element missing, therefore, from the modern statutory interpretation debate is a conspicuous articulation of the positive and empirical premises underlying the normative theory of interpretation; and, in particular, an unclear portrait of the theory of lawmaking supporting the theory of interpretation.

In this paper, we consider statutory interpretation from the perspective of positive political theory (PPT) looking, first, at the best framework for understanding the relationship between duly authorized lawmakers and the judge/interpreters. We build upon the modern literature of communication theory to support the familiar view that a statute is best understood as an act of communication by the legislature to an audience. PPT helps us to draw various lessons for modern interpretation debates from this assumption. We consider several of these lessons in our paper, and we focus especially on the hoary debate over the use and utility of legislative history in construing ambiguous statutory language.
[This might also be an example of # 1]

ENGLISH COMMON LAW TRIVIA QUESTION
[The name of the first person to answer the trivia question correctly will be posted on this weblog (unless you ask me not to). Others may get an honorable mention. Please e-mail answers to statutes@hotmail.com and put "TRIVIA QUESTION" in the subject line.]

William Blackstone is famous for writing a treatise, the Commentaries on the Laws of England. However, his career was very much connected to another type of law book, and one specific example of that type of law book. Name the type of law book, the example, and explain its connection to his career.