Suchergebnisse

Recent studies of the legislative process have questioned the rationales for many principles of statutory interpretation. One of those traditional rationales is the so-called fiction of legislative omniscience, understood to underpin many judicial approaches to statutory decisions. This Article presents the first comprehensive analysis of judicial assertions about legislative awareness and proposes a new way to understand them. The proposed perspective compares fictions of legislative omniscience with similar but more widely accepted imputations of knowledge in other areas of law; it also draws on recent findings from other disciplines regarding how we use and respond to statements about fictional states of affairs. The comparisons indicate that judges' imputations of unrealistic knowledge to legislatures are best seen not as unfair demands, but as important parts of the story judges typically tell about the law in our legal system, according to which the legislature and judiciary play complementary roles in pursuit of compatible goals. Rather than impairments of judicial legitimacy, these imputations are descriptions of the necessarily aspirational grounds of legal legitimacy.

Recently, the Green Bag issued a call for short (1,000 words) essays on Reading Law: The Interpretation of Legal Texts, by Antonin Scalia and Bryan Garner. We sought "[a]ny theoretical, empirical, or practical commentary that will help readers better understand the book." The result is this micro-symposium. Our call drew dozens of micro-essays, some thought-provoking, some chuckle-prompting, and some both. Blessed with an abundance of good work but cursed by a shortage of space, we were compelled to select a small set – representative and excellent – of those essays to publish in the Green Bag and its sibling publication, the Journal of Law. We regret that we cannot do full justice to the outpouring of first-rate commentary we received. May you enjoy reading the following excellent representatives as much as we did.

To decide many cases, courts need to characterize some of the legal rules involved, placing each one in a specific doctrinal category to identify the rule's effect on the litigation. The consequences of characterization decisions can be profound, but the grounds for making and justifying them are often left unstated. This Article offers the first systematic comparison of two important types of legal characterization: the distinction between substantive and procedural rules or statutes, a distinction federal courts make in several contexts; and the distinction between jurisdictional and nonjurisdictional rules, especially those relating to litigation filing requirements. The Article explains the reasons for the differences between the doctrines governing each type of characterization by contextualizing each as an example of the same activity: the identification of the "genre," or kind, to which particular legal texts belong. Showing that decisions in both areas do in fact involve genre classification, the Article explains how it follows that legal characterization is an aspect of legal interpretation, although courts have seldom recognized as much. This analysis further suggests new lines of development for both Erie doctrine and jurisdictional characterization. Judges making Erie decisions should characterize both the state and federal laws at issue according to their sources, as well as under the substantive-procedural rubric, and should recognize that the question of conflict, if reached, is akin to other questions of federal preemption. Judges making jurisdictional-characterization decisions should extend the existing doctrinal framework to take into account other consequences of characterization and to allow the analogous handling of federal rules. The U.S. Supreme Court already has most of the resources it needs to move down these paths. Still, courts and commentators have something to learn from contemporary theories of discourse genres, which teach that every classificatory decision changes, even if only slightly, the landscape of existing categories. For this reason, purely formalist approaches to characterization doctrine—insistence on bright-line rules for distinguishing substantive from procedural and jurisdictional from nonjurisdictional rules—are ill-advised. A functional and incremental approach to legal characterization is not just theoretically sound, but also practically necessary for stable, workable law in this area.

What should a court do when it is presented with two statutes that appear to be in conflict? If the conflict proves irreconcilable, and neither of the statutes is more specific than the other, a long-standing principle of statutory interpretation advises the court to conclude that the legislature's last word on the subject-the later-enacted statute-controls. The later enacted statute therefore "repeals" by necessary implication the earlier, contrary statute to the extent of the conflict.' This rule of thumb reflects an understanding that, occasionally, updating of the statutory scheme is desirable, either because this updating was intended (if not acknowledged) by the legislature [2] or because the legislature's most recent enactments are more likely aligned with the electorate's current political preferences than are earlier enactments to the contrary.[3]