scholarly journals Correcting Federalism Mistakes in Statutory Interpretation: The Supreme Court and the Federal Arbitration Act

2016 ◽  
Author(s):  
David S. Schwartz
Keyword(s):  
Supreme Court ◽  
Statutory Interpretation ◽  
The Supreme Court

scholarly journals How Do You Qualify as a Whistleblower Under The Dodd-Frank Act? Blowing the Whistle on a Circuit Split

2018 ◽  
Vol 36 (2) ◽  
pp. 101-130
Author(s):  
Hugo S. W. Farmer
Keyword(s):  
Supreme Court ◽  
Consumer Protection ◽  
Statutory Interpretation ◽  
Wall Street ◽  
Group V ◽  
Consumer Protection Act ◽  
The Supreme Court ◽  
Definition Of

            Recently, a circuit split has arisen with regard to the Dodd-Frank Wall Street Reform and Consumer Protection Act. The circuit split concerns the question of what it takes for an individual to qualify as a “whistleblower” under the terms of the statute. This circuit split is surprising, as the Dodd- Frank Act purports to answer this question itself by providing a definition of this term, a definition which the Fifth Circuit has treated as being conclusive. Nonetheless, the Second and the Ninth Circuits have held that with respect to some, but not all, of the Dodd-Frank Act, this statutory “whistleblower” definition does not apply. Shortly, the Supreme Court will have the opportunity to resolve the matter when it hears an appeal of the Ninth Circuit’s decision in Somers v. Digital Realty Trust Inc. This article provides three broad reasons why the Supreme Court should reject the Second and Ninth Circuits’ interpretations. First, the interpretation endorsed by the Second and Ninth Circuits is the result of a flawed exercise in statutory interpretation that incorrectly applies principles recently set down by the Supreme Court in King v. Burwell, and Utility Air Regulatory Group v. EPA. Secondly, while the Second and Ninth Circuits rejected the Fifth Circuits’ interpretation on the basis that it withholds the protection of the Dodd-Frank Act from auditors and attorneys, the Second and Ninth Circuits’ preferred interpretations also fail to protect auditors and attorneys. Finally, the policy reasons in favor of extending the Dodd-Frank Act’s whistleblower protections to auditors and attorneys are insufficiently strong to warrant departing from the natural meaning of the statutory language at issue.   

U.S. Industries v. Director: “Claim” Versus “Condition” in the Analysis of Workers' Compensation Cases

1986 ◽  
Vol 12 (2) ◽  
pp. 273-303
Author(s):  
Jordan Yospe
Keyword(s):  
Supreme Court ◽  
Social Insurance ◽  
Compensation System ◽  
Workers Compensation ◽  
Statutory Interpretation ◽  
Disability Benefits ◽  
The Supreme Court ◽  
Disability Claim ◽  
At Home

AbstractUnder most workers' compensation statutes, an injury must “arise out of” and “in the course of” employment in order to qualify as a compensable disability. In U.S. Industries v. Director, the Supreme Court held that the Longshoremen's and Harbor Workers' Compensation Act must be strictly construed to avoid transforming the compensation system into a form of social insurance. In U.S. Industries, the Court denied a disability claim based on an arthritic condition which was manifested while the worker was at home in bed. This Note contends that the Supreme Court neglected to consider pertinent medical realities when analyzing the causation question. Thus, the decision undermines the overall rationale behind workers' compensation legislation. Nonetheless, the Note argues that the case does not relax the requirement of adequately scrutinizing the causative elements underlying any reasonable claim for disability benefits. An analysis adequately accommodating both medical and legal facts, instead of relying upon the vagaries of statutory interpretation, is necessary to improve the efficiency and fairness of workers' compensation disability determinations.

scholarly journals GAARs and the Nexus between Statutory Interpretation and Legislative Drafting: Lessons for the U.S. from Canada

2016 ◽  
Vol 7 (1) ◽  
Author(s):  
Reuven S. Avi-Yonah ◽  
Amir Pichhadze
Keyword(s):  
Supreme Court ◽  
Tax Avoidance ◽  
Federal Court ◽  
Supreme Court Of Canada ◽  
Statutory Interpretation ◽  
Discretionary Power ◽  
The Supreme Court ◽  
The Us ◽  
Court Of Appeal ◽  
The U.S

Abstract Rules targeting specific known schemes are not the only tools available in the battle against tax avoidance. Legal systems also use measures that apply generally. The U.S. for example has tended to rely heavily on general doctrines. One such doctrine which is discussed in part 2 of this chapter is the “economic substance” doctrine. Yet as Xiong and Evans recently pointed out “although such judicial doctrines can be used to deal with various aspects of complicated tax abuse judges tended sometimes to limit and sometimes to enlarge the scope of jurisprudential interpretation leading to substantial uncertainty and risk.” One way to limit the discretionary power of judges and overcome the uncertainty apparent in their judgments is by formalizing the doctrines as the US has done by codifying the “economic substance” doctrine in 2010. As explained in part 2 of this chapter a limitation of the “economic substance” doctrine whether it is established judicially or codified by statute may be its focus on the taxpayer’s intentions as the basis for attacking tax avoidance. Part 3 of this chapter goes on to explain that the U.S. could overcome this limitation by adopting a statutory General Anti-Abuse Rule (“GAAR”). GAARs also impose generally applicable limits on what constitutes acceptable (reasonable) tax arrangements. But they do so based on whether the arrangements are consistent with the legislature’s intentions as they were conveyed in the tax provision which the taxpayer is relying on for achieving the tax advantage in question. As Canada’s Federal Court of Appeal (“FCA”) explained “by confining legitimate tax avoidance to schemes that are not inconsistent with the policy underlying the statutory provision invoked by the taxpayer GAAR effectively limits the scope of the principle in Commissioners of Inland Revenue v. Duke of Westminster… that ‘[e]very man is entitled if he can to order his affairs so that the tax attaching under the appropriate Acts is less than it would otherwise be’.” Based on Canada’s experience with the GAAR parts 4 and 5 identify and explain the nexus between statutory interpretation and legislative drafting and the implications of this nexus on the application of a GAAR in the U.S. should Congress choose to take this route. Part 4 identifies that while the Supreme Court of Canada (“SCC”) has recognized the need to apply a purposive interpretation of Canada’s GAAR in order to ascertain parliament’s intentions in the relevant tax provision the court has also held that it will only give effect to those intentions which were clearly conveyed by the relevant provision and will not invent a legislative intention which parliament has failed to convey. Part 5 notes that such judicial restraint has also been taken by the U.S. Supreme Court and therefore a similar approach could be expected by the U.S. courts should Congress adopt a GAAR. Therefore it would be up to Congress as it is similarly up to Canada’s Parliament to carefully and clearly draft its legislative intentions otherwise the effectiveness of a GAAR would be undermined.

scholarly journals Change, Creation, and Unpredictability in Statutory Interpretation: Interpretive Canon Use in the Roberts Court's First Decade

2018 ◽  
pp. 71
Author(s):  
Nina Mendelson
Keyword(s):  
Supreme Court ◽  
Extensive Study ◽  
Second Order ◽  
State Law ◽  
Statutory Interpretation ◽  
Future Directions ◽  
The Supreme Court ◽  
Congressional Staff ◽  
The Many ◽  
Roberts Court

In resolving questions of statutory meaning, the lion’s share of Roberts Court opinions considers and applies at least one interpretive canon, whether the rule against surplusage or the presumption against state law preemption. This is part of a decades-long turn toward textualist statutory interpretation in the Supreme Court. Commentators have debated how to justify canons, since they are judicially created rules that reside outside the statutory text. Earlier studies have cast substantial doubt on whether these canons can be justified as capturing congressional practices or preferences; commentators have accordingly turned toward second-order justifications, arguing that canons usefully make interpretation constrained and predictable, supplying Congress with a stable interpretive background. Based on an extensive study tracking the use of over 30 interpretive canons in the first 10 years of the Roberts Court, this Article attempts to contribute evidence to the debate over canons. The data raise substantial questions regarding stability and predictability. Despite a long tradition of use, some canons have essentially disappeared; meanwhile, the Court has created others out of whole cloth. In addition, application is erratic. The Roberts Court Justices have declined to apply even the most widely engaged canons 20–30% or more of the time, often for difficult-to-anticipate reasons; some well-known canons, such as the rule of lenity and the presumption against preemption, were applied roughly at a 50–50 rate. The story is worse in the many cases in which multiple canons are considered. Based on these and other findings, this Article accordingly argues that predictability and stability arguments cannot supply a firm foundation for canon use. The study also reveals troubling mismatches between canons actually in use and congressional staff acceptance of canons. The Article concludes by suggesting some future directions for investigation and reform.

Statutory Misinterpretation: Rash Holding in Brash Holdings

2017 ◽  
Vol 45 (2) ◽  
pp. 199-221
Author(s):  
Paulina Fishman
Keyword(s):  
Supreme Court ◽  
Legal Profession ◽  
Statutory Interpretation ◽  
Modern Approach ◽  
The Supreme Court ◽  
Critical Sections

The modern approach to statutory construction guides the judiciary, the legal profession, litigants, and academics in interpreting the myriad legislative provisions in Australian law. Yet what if critical sections have been construed in ways that are irreconcilable with the basic rules of modern statutory interpretation? One of the most important commercial statutes in the country is the Corporations Act 2001 (Cth). This article exposes one instance of misinterpretation in respect of that statute, contained in a decision of a unanimous Full Court of the Supreme Court of Victoria, and makes proposals for resolving such quandaries.

scholarly journals Intent-to-Benefit: Individually Enforceable Rights in International Treaties

2017 ◽  
Author(s):  
Sital Kalantry
Keyword(s):  
Supreme Court ◽  
Federal Courts ◽  
Courts Of Appeals ◽  
Vienna Convention ◽  
State Governments ◽  
Statutory Interpretation ◽  
International Treaties ◽  
Foreign Countries ◽  
The Supreme Court ◽  
History Of

Citizens of foreign countries are increasingly using international treaties to assert claims against Federal and state governments. As a result, U.S. courts are being asked to determine whether treaties provide litigants with individually enforceable rights. Although courts have no consistent approach to determining whether a treaty gives rise to individually enforceable rights, they often apply the textualist methodology derived from statutory interpretation. However, instead of using textual theories of statutory interpretation, I argue that courts should use intentionalist theories developed from contract interpretation in determining individually enforceable rights under treaties. Two positive arguments and one negative argument support my approach. First, the question of whether a non-party can enforce a treaty is structurally similar to the question of whether a non-party can enforce a contract, but structurally different from the issue of whether there is a private cause of action under a statute. Second, Supreme Court jurisprudence supports the view that treaties are contracts even though they have the effect of statutes. As such, it is appropriate to apply theories of contract interpretation to understanding treaties. Third, arguments used to justify using textualism for purposes of interpreting statutes are not relevant to interpreting treaties.I suggest that courts use a modified version of the "intent-to-benefit" test derived from contract law in determining whether a treaty is enforceable by a non-party. Under the modified "intent-to-benefit" test, a non-party will have individually enforceable rights and remedies under the treaty if the treaty identifies a class of individuals who are intended beneficiaries of the treaty and if such non-party is within that class of individuals. Applying this test suggests that courts should privilege the drafting history over the ratification history of a treaty in interpreting it.I apply the modified "intent-to-benefit " test to a case study-the Vienna Convention on Consular Relations. The Supreme Court recently decided in Sanchez-Llamas v. Oregon that the Vienna Convention on Consular Relations does not provide individuals with any remedies, but refused to decide whether the treaty provides individuals with rights. Since that decision, two Federal Courts of Appeals have come to differing conclusions on the question of whether that treaty creates individually enforceable rights. Under the modified "intent-to-benefit," the Vienna Convention on Consular Relations would be found to give rise to individually enforceable rights.Published: Intent-to-Benefit: Individually Enforceable Rights in International Treaties, 44 Stanford Journal of International Law 63 (2008).

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