Statutory Construction

Congress’s national-security legislation will often require clear and specific congressional authorization before the executive can undertake certain actions. The War Powers Resolution, for example, prohibits any law from authorizing military hostilities unless it “specifically authorizes” them. And the Foreign Intelligence Surveillance Act of 1978 required its own amendment or repeal of its "exclusive means" provision before authorizing warrantless electronic surveillance. But efforts to legislate clear-statement regimes in national-security law have failed to induce compliance. The Clinton Administration inferred congressional "authorization" for the 1999 Kosovo War from an appropriations statute that failed to specifically authorize the conflict. And the Bush Administration inferred congressional "authorization" for the NSA surveillance program from ambiguous language in the post- September 11th Authorization to Use Military Force. In both situations, executive-branch lawyers employed expansive theories of implied repeal and constitutional avoidance to evade the codified clear-statement requirements, and Congress and the courts acquiesced to the President's actions. Recent proposals to strengthen the clear-statement requirements in Congress's national security framework legislation are unlikely to be effective without institutional mechanisms, such as points of order, that can deter future legislators from enacting vague or ambiguous legislation from which the executive might claim implicit congressional" authorization," and that can induce Congress to confront Presidents who act without specific congressional authorization. Simply enacting more narrow or explicit clear-statement requirements, or adding funding restrictions to Congress's framework legislation, fails to counter the aggressive interpretive doctrines that executives of both political parties have used to concoct congressional "authorization" from vague or ambiguous statutory language.

In what follows, the legislative powers of the courts are examined and three different ways in which the courts can contribute to the regulation of the labour markets are marked. First, the courts can create new regulation through their interpretative mandate. Second, the courts can create new regulation through their remedial powers following a finding of unconstitutionality of existing rules and regulations. Third, courts can also cause further regulation by the legislature in their handling of and handling of legislation. Attention is drawn to the importance of legislation in general but also to the particular importance of labour legislation with regard to the regulation of society and the labour markets. Furthermore, the inherent law - making function of the courts is described. It is noted that certain concepts have been drafted vaguely and broadly in order to leave it to the courts to interpret the provisions of such legislation and to give substance to them. The courts are therefore important actors in the flexibility / security debate as they “create” rules and regulations through their interpretive mandate. However, it is further argued that (due to the openness of language) this phenomenon cannot be limited to those cases that can be described as vague and broad. The interpretative approaches of the Supreme Court of Appeal and the Constitutional Court, respectively, with regard to labour matters, are examined. However, the courts can also create law following a finding of unconstitutionality in terms of section 172 (1) (a) of the Constitution and can also cause further intervention by the legislature in the labour market. This phenomenon raises questions about how courts can contribute to the flexibility / security debate and the regulation of the labour markets.

The rise of legislation as the increasingly preferred means of
regulating society is considered. The rise of legislation is significant as an
increase of legislation strengthens the argument as to the importance of the
interpretation of statutes. This article considers the term "legislation". The rise of legislation is examined with an emphasis on the advantages and disadvantages
thereof. Next, the rise of legislation in the context of labour law is considered
through an examination of the purpose(s) of labour law and legislation as the
increasingly preferred way to regulate work in the context of an increase in
atypical employment relationships. It is argued that the primacy of collective
bargaining has given way to the primacy of legislation.

This article considers the rise of legislation as a means to regulate work in
South Africa, with an emphasis on the significant amount of enacted labour law
that has been adopted. The conclusion is that regulation by means of legislation
has become the dominant source of law, and that within the context of global
pressures and a re-evaluation of the purpose(s) of labour law legislation is an
indispensable source of law for the regulation of work. This conclusion necessitates an increased analysis and appraisal of the relevant interpretive methodologies, approaches and principles.

The Indian tax system suffers from an excessive incidence and pendency of tax disputes before civil courts. A certain degree of disputes are unavoidable since the tax code and policy of any jurisdiction (being the outcome of various competing factors) inevitably contains a certain degree of ambiguity. However, a significant amount of unnecessary tax litigation is caused by the development of inconsistent tax jurisprudence. The author details the permissible scope of litigation expected in a tax system that truly complies with the rule of law. Following this, the author surveys two major areas of disputes – namely, the distinction between a “tax” and “fees”, and the interpretation of exemption notifications. This demonstrates the significant likelihood of judicial activism by appellate courts in tax disputes, which contributes to a tax policy that is doctrinally incoherent. It is submitted that inconsistent tax jurisprudence contributes to a larger number of disputes since both the t...

In our opinion Section 156(3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an F.I.R. and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3)Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation. 18. It is well-settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary to its execution. 19. The reason for the rule (doctrine of implied power) is quite apparent. Many matters of minor details are omitted from legislation. As Crawford observes in his Statutory Construction (3rd edn. page 267):-If these details could not be inserted by implication, the drafting of legislation would be an indeterminable process and the legislative intent would likely be defeated by a most insignificant omission. 20. In ascertaining a necessary implication, the Court simply determines the legislative will and makes it effective. What is necessarily implied is as much part of the statute as if it were specifically written therein. 21. An express grant of statutory powers carries with it by necessary implication the authority to use all reasonable means to make such grant effective. Thus in ITO, Cannanore vs. M.K. Mohammad Kunhi, AIR 1969 SC 430, this Court held that the income tax appellate tribunal has implied powers to grant stay, although no such power has been expressly granted to it by theIncome Tax Act. Supreme Court of India Sakiri Vasu vs State Of U.P. And Others on 7

The identification of the parties to the employment relationship is a universal issue. It is therefore appropriate to explore the international experience as well as the experiences of other jurisdictions in order to clarify its South African understanding. The contribution explores how the standards of the International Labor Organization can shed light on the question of who a party to an employment relationship is. The article explores relevant issues that have arisen in other legal systems. The aspects include, among others: definitions applicable to the binary separation between employees and independent contractors; the difference between employees and independent contractors; the applicability of the employment contract and factors relevant to the identification of an employment relationship. The above issues are elucidated on the basis of the legal positions in Germany, India, Canada, Morocco, Namibia, the Netherlands, Swaziland, Tanzania, the United Kingdom and Zimbabwe.
The eight key conventions that form the basis of the International Labor Organization's decent work agenda "apply to all workers. Similarly, several other international labor standards examined apply to all workers, although some instruments apply only to workers who can be considered employees. However, the Employment Relationship Recommendation, 2006 recognizes that some workers may be denied labor protection because they belong to a certain job category. In particular, it is justified to exclude independent contractors.
The investigation into the position in other countries has shown that there are other legal and legislative responses to the issue. While the existence of the employment contract is a prerequisite for the existence of an employment relationship in several countries, there are examples where the employment relationship can exist without the conclusion of an employment contract. In some countries there is no legislative definition of an "employee", while other countries prescribe extensive definitions of it. Several countries consider certain categories of workers as employees in order to clear up any uncertainty about their status. The courts in several countries will uphold the true nature of an employment relationship despite attempts to portray an employer, or employment relationship, as something else. The authors also examined the factors used in other countries to determine the parties to the employment relationship.

A substantial academic literature considers how agencies should interpret statutes. But few studies have considered how agencies actually do interpret statutes, and none has empirically compared the methodologies of agencies and courts in practice. This Article conducts such a comparison, using a newly created dataset of all Internal Revenue Service (IRS) publications ever released, along with an existing dataset of court decisions. It applies natural language processing, machine learning, and regression analysis to map methodological trends and to test whether particular authorities have developed unique cultures of statutory interpretation.

It finds that, over time, the IRS has increasingly made rules on normative policy grounds (like fairness and efficiency) rather than merely producing rules based on the “best reading” of the relevant statute (under any interpretive theory, like purposivism or textualism). Moreover, when the IRS does focus on the statute, it has grown much more purposivist over time. In contrast, the Tax Court has not grown more normative and has followed the same trend toward textualism as most other courts. But although the Tax Court has become more broadly textualist, it prioritizes different interpretive tools than other courts, like Chevron deference and holistic-textual canons of interpretation. This suggests that each authority adopts its own flavor of textualism or purposivism.

These findings complicate the literature on tax exceptionalism and the judicial nature of the Tax Court. They also inform ongoing debates about judicial deference and the future of doctrines like Chevron and Skidmore deference. Most broadly, they provide an empirical counterpoint to the existing theoretical literature on statutory interpretation by agencies.

There is a long-standing judicial commitment to interpreting language in legal texts according to its ‘ordinary meaning’.  That is, courts have uniformly agreed that words in legal texts should be interpreted in light of accepted standards of communication.  The constituent question of what makes some meaning the ordinary one and the evidential question of how the determinants of ordinary meaning are identified and conceptualized are thus of crucial importance to the interpretation of legal texts.  Yet, beyond very general characterizations or assumptions that the answers are self-evident, neither the constituent nor the evidential question has been comprehensively examined by courts or commentators.  This book provides a theory that answers the constituent question and a general framework for how the determinants of ordinary meaning (i.e., the evidential question) should be identified and developed.
The fundamental problem with the common process used by courts for determining the ordinary meaning of texts, such as significant reliance on acontextual dictionary definitions, is that it often does not result in interpretations that reflect the ordinary meaning of the textual language, or only coincidentally does so.  One main flaw in the judiciary’s approach is a failure to properly consider context.  Certainly, there is a tension between the inherent requirement of ordinary meaning that it be generalizable across contexts and the reality that meaning is inherently contextual.  A significant aspect of framing the ordinary meaning inquiry, and considering arguments about it, therefore involves considering the contribution that context makes to meaning.  One way to capture generalizable meanings is to conceive of ordinary meaning as being primarily based on semantic meaning.  Further, a distinction between ‘narrow context’ and ‘wide context’ can be made, with ordinary meaning being determined on the basis of consideration of facts from the ‘narrow context’.  In addition, one marked feature of interpretive principles is that they often serve to restrict the domains of legal texts, thereby creating a gap between literal meaning and ordinary meaning.  Yet framing ordinary meaning as being primarily based on semantic meaning, determined from consideration of ‘narrow context’, does not eliminate interpretive discretion.  When context is considered, the assignment of meaning invariably has an ineliminable element of interpreter discretion.  This is true with respect to indexicals and quantifiers, as well as other linguistic phenomena.  Nevertheless, focusing on the systematicities of language can often narrow the range of interpretive discretion and improve the judiciary’s determination of ordinary meaning.

Constitutional interpretation, or constitutional construction, is the process by which meanings are assigned to words in a constitution, to enable legal decisions to be made that are justified by it. The Constitution is a legal document that is Sui Generis “unique” and must be construed as a special document. The interpretation of the Constitution is provided for under Art. 257 of the 1995 Constitution of Uganda (herein referred to as “the Constitution”). Courts are often alive to its peculiar nature and have over the years developed principles followed in interpretation of the Constitution and these are discussed in this paper. The emphasis is put on Ugandan cases, however some cases from other jurisdictions were also adopted.

This article considers the utility of the presumptions of statutory interpretation and the appropriate status thereof in a legal system. Thereafter, the most commonly cited South African presumptions will be compared to similar presumptions (or canons) of statutory interpretation in the US. It should be noted that although both jurisdictions contain the principles or standards inherent to these presumptions, they are often described differently in the USA: not as presumptions but as canons of statutory interpretation. Irrespective of the difference in terminology, it will be argued that all canons or presumptions of statutory interpretation are manifestations of legal standards, principles or public values in the USA and South African legal systems. It will be shown that some even perceive these standards to be akin in status to constitutional values.

Adoption of Children in Islam and the Muslim Law of Sri Lanka – An Abstract
This is a slightly modified version of an article previously published under the same title in [2008] Meezan pages 1 to 5. Meezan is an annual publication of the Law Students’ Muslim Majlis of the Sri Lanka Law College.
Islam encourages charity, and also insists that those who have the means should care for orphans and other needy children in the same way as they would care for their own children. Islam recognizes the foster parent relationship, but does not sanction adoption tin the sense in which it is used in the Sri Lankan Adoption of Children Ordinance No. 24 of 1941. This Ordinance expressly provides that “upon an adoption order being made, the adopted child shall for all purposes whatsoever be deemed in law to be the child born in lawful wedlock of the adopter.”
In a landmark decision Ghouse v Ghouse [1988] 1 SLR 25, the Supreme Court of Sri Lanka examined the implications of this provision in the context of intestate succession rights of an adopted child. This article examines in great detail, the sharia't concept of kafala (foster care) in the light of relevant statutory provisions and judicial decisions, and attempts to resolve apparent conflicts and contradictions in the legal fabric.

The study, entitled “Identification of the parties to the employment relationship: an appraisal of teleological interpretation of statutes”, is a legal-interdisciplinary doctrinal investigation situated within the fields of labour law and the interpretation of statutes. It concerns itself with the proper interpretation of labour legislation in general and the interpretive question as to who should be party to the employment relationship in particular, within the context of the advent of constitutionalism and the proliferation of and the increase in the importance of labour legislation. In law, meaning-generation is a function of statutory interpretation and every application of a text to particular circumstances entails interpretation. The protection extended by labour legislation is only extended to those persons who are defined as “employees”.
The study describes the teleological model of statutory interpretation, which aims to give effect to the purpose of a legislative provision in light of constitutional values. The study explores the five elements of (teleological) interpretation that should be considered when interpreting concepts such as “employee”: the text, the context, the telos (or values), the history and the comparative dimension. The chief findings of the study includes: that legislation has become an indispensable source of contemporary labour law; that the courts have adopted a teleological approach to the interpretation of statutes; that the courts have, in interpreting the term “employee”, adopted a teleological approach to the interpretation of statutes; and that the interpretations advanced by the courts have not had the profound effect envisaged by the Constitution on the transformation of society.

The fields of linguistic pragmatics and legal interpretation are deeply interrelated. The purpose of this paper is to show how pragmatics and the developments in argumentation theory can contribute to the debate on legal interpretation. The relation between the pragmatic maxims and the presumptions underlying the legal canons are brought to light, unveiling the principles that underlie the types of argument usually used to justify a construction. The Gricean maxims and the arguments of legal interpretation are regarded as presumptions subject to default used to justify an interpretation. This approach can allow one to trace the different legal interpretive arguments back to their basic underlying presumptions, so that they can be compared, ordered, and assessed according to their defeasibility conditions. This approach allows one to understand the difference between various types of interpretive canons, and their strength in justifying an interpretation.

In Marshall NO v Commissioner, South Africa Revenue Service (2019 6 SA 246 (CC)) the constitutional court heard an application for leave to appeal against the decision of the supreme court of appeal in Commissioner, South African Revenue Service v Marshall NO (2017 1 SA 114 (SCA)) on the proper interpretation of sections 8(5) and 11(2)(n) of the Value-Added Tax Act 89 of 1991. The interpretation of these provisions is of seminal importance in deciding the question if the South African Red Cross Air Mercy Service Trust is exempt from paying value-added tax on payments it receives for actual services it renders to provincial health departments. he question before the constitutional court was therefore if a court may consider or defer to an administrative body’s interpretation of legislation in a court’s own construction of the statutory provision and, if so, to what extent a court may do so. The interpretive note, in this instance, is seen as evidence of an interpretive custom of an administrative body. The constitutional court found that an independent interpretation of the relevant sections of the act without reference to the interpretation note led to the same conclusion that the supreme court of appeal reached and, as such, found it unnecessary to decide the point. The court nevertheless made some important, if questionable, observations about the use of custom during interpretation that warrant further scrutiny.

Internal corporate compliance programs have produced an unanticipated dilemma for many businesses: when a company responds to regulatory incentives by starting a comprehensive compliance program that promotes lawful conduct, it risks generating incriminating information that may produce criminal or civil liability. This Article argues that, in order to eliminate the dilemma posed by the potential disclosure of adverse compliance materials, a limited evidentiary privilege must be established to protect certain compliance materials from disclosure. With this in mind, Part II describes corporate compliance programs in further detail, traces their theoretical underpinnings, and explains the effect of the Sentencing Guidelines. Part III surveys the ad hoc common-law and statutory solutions to the dilemma faced by businesses considering internal compliance programs. Finally, Part IV concludes that statutory protection of compliance materials is vital to promoting compliance programs and proposes legislation shielding certain materials generated under programs that meet Sentencing Guidelines requirements.

It is widely accepted that courts may correct legislative
drafting mistakes, i.e., so-called scrivener’s errors, if and only if such
mistakes are “absolutely clear.” The rationale is that if a court were to
recognize a less clear error, it might be “rewriting” the statute rather than
correcting a technical mistake.

This Article argues that the standard is much too strict. The current
rationale ignores that courts can “rewrite,” i.e., misinterpret, a statute both
by recognizing an error and by failing to do so. Accordingly, because the
current doctrine is designed to protect against one type of mistake (false
positives) but not the other (false negatives), it systematically
underrecognizes errors and results in systematic misinterpretation of the
law.

Using the example of King v. Burwell, this Article shows that the
overly strict scrivener’s error doctrine threatens dramatic real-world harm.
In King, opponents of the Affordable Care Act exploited a likely, but less
than absolutely clear, scrivener’s error to nearly bring down the most
significant health reform legislation of the past half century. More still, the
challenge only failed because six Justices were willing to accept an
implausible textual argument. Furthermore, King is far from sui generis.
Recent challenges to ambitious executive branch action, for example, try to
take similar advantage of the current doctrine.

Karl Llewellyn's critique of the canons of statutory interpretation led to a decline in their use for several decades. His critique, however, faced sustained resistance from some corners of the academy and the judiciary. Although this resistance has had only a selective uptake, it animated a gradual revival of the canons and brought the state of scholarship to an impasse that is for the most part partisan. In this article, I examine the semantic canons from a deeper level and argue that a universal assumption about them is false. Said assumption is that, although not dispositive, the semantic canons at least offer some reasons in favour of or against a candidate interpretation. Inclinations to rely on the semantic canons are also based on this assumption, although it is an assumption that the critics of the canons also share. I argue that this assumption is false because the semantic canons are a class of rules that are by nature not reason-giving. This provides a new ground against giving the semantic canons deliberative weight in questions of statutory interpretation.

(Forthcoming in the Oxford Journal of Legal Studies. Penultimate draft).

Focused on Arkansas insurance law, with applicability to other state's misrepresentation analysis, this article treats one state's law of misrepresentation in the application for life or health insurance policies. It traces the development of the law from common law origins and through two statutory revisions and related case law. It illustrates problems of legal analysis and synthesis and provides a good model for a student note or comment in a law review or law journal.
    The article also works to clarify ambiguity in the law of representation and warranty in the insurance context. The analysis is relevant to an understanding of how pre-existing medical conditions both affect an applicant's insurability and the carrier's and policy holder's litigation positions in the event the carrier denies a claim for benefits on the grounds of misrepresentation. Health insurance applications, and the incentives that exist to answer medical history questions with answers that provide a health insurance misrepresentation, are the underlying types of case facts that are present in this synthesis.

The use of parliamentary debate in the judicial interpretation of statutes is discouraged (The Exclusionary Rule). It is done for a purpose. The judicial consideration of parliament’s internal proceedings might invite unnecessary tension between the two constitutional organs. Moreover, the parliament’s intention behind a law might not be discoverable from one or more of its members’ speeches. Considering the speech of the Ministers or sponsors of a Bill might also be dangerous. In such cases, the court might risk prioritizing the government’s intention over that of the legislature. However, a famous British case called Pepper v Hart argued the opposite. It held that ministerial or sponsor statements in parliament may be considered in certain circumstances to understand the intent of the legislature. The case is being endorsed in other commonwealth jurisdictions like Australia, Canada and India. This short piece considers the position of the Bangladesh Supreme Court and finds that there is a serious judicial (un)mindfulness about the rationales behind the Exclusionary Rule.

There is evidently uncertainty in the Superior Courts concerning the interaction between the Immigration Act 2004 and the executive power of the State to operate and regulate residency permission schemes for non-Irish nationals. This article will explore the Superior Courts treatment of S.4 and S.5 of the 2004 Act, contrasting the approach of the High Court with the Supreme Court. While the Supreme Court has not yet definitively ruled on the interaction between the s.4 and s.5 of the Immigration Act 2004 and Ministerial discretion, there have been hints in both Bode v Minister for Justice  and Sulaimon v Minister for Justice  that these sections do not delimit the extent of said discretion. It will be demonstrated below that these cases suggest that the Supreme Court has adopted the premise that the Minister for Justice has inherent power to consider and determine an application for residency, independent of any statutory scheme. In contrast it appears that the High Court, typified in the recent case of Hussein v Minister for Justice , has taken the view that the arrangements governing entitlement to remain within the State derive from ss.4 and 5 of the Immigration Ac 2004 and thus limit the Ministers discretion to refuse residency permission to non-nationals.

Legislative intent is a fiction. Courts and scholars accept this, by and large. As this Article shows, however, both are confused as to why legislative intent is a fiction and as to what this fiction entails.

This Article first argues that the standard explanation—that Congress is a “they,” not an “it”—rests on an unduly simple conception of shared agency. Drawing from contemporary scholarship in the philosophy of action, it contends that Congress has no collective intention, not because of difficulties in aggregating the intentions of individual members, but rather because Congress lacks the sort of delegatory structure that one finds in, for example, a corporation.

Second, this Article argues that—contrary to a recent, influential wave of scholarship—the fictional nature of legislative intent leaves interpreters of legislation with little reason to care about the fine details of legislative process. It is a platitude that legislative text must be interpreted in “context.” Context, however, consists of information salient to author and audience alike. This basic insight from the philosophy of language necessitates what this Article calls the “conversation” model of interpretation. Legislation is written by legislators for those tasked with administering the law—for example, courts and agencies—and those on whom the law operates—for example, citizens. AlmostMost any interpreter thus occupies the position of conversational participant, reading legislative text in a context consisting of information salient both to members of Congress and to citizens (as well as agencies, courts, etc.).

The conversation model displaces what this Article calls the “eavesdropping” model of interpretation—the prevailing paradigm among both courts and scholars. When asking what sources of information an interpreter should consider, courts and scholars have reliably privileged the epistemic position of members of Congress. The result is that legislation is erroneously treated as having been written by legislators exclusively for other legislators. This tendency is plainest in recent scholarship urging greater attention to legislative process—the nuances of which are of high salience to legislators but plainly not to citizens.

The South African legal profession is dealing with a hermeneutic turn in the way in
which meaning of legislative provisions is discovered. Meaning is no longer
discovered solely through the reading of the text of a provision, but in dealing with the
textual environment of which that provision forms part. The article explores some of
the interpretative considerations that the Constitutional Court would have to have
regard to if it were called upon to judge a case similar to that of Fuller’s “The Case of
the Speluncean Explorers” – a fictionalized judgment set in the year 4300 and
decided by the Supreme Court of Newgarth, but written by Fuller in 1949. The article
draws a comparison between the interpretative approach adopted by the
Constitutional Court and that of the five justices in the fictional case. Additionally, the
article considers the phenomenon of the “broadening of the spectre of interpreters”
which is a consequence of the approach adopted by the Constitutional Court, and
asks what role, if any, public opinion should play in the interpretation of statutes. The
article finds that these considerations should play a role in the interpretation of
statutes in addition to other interpretative factors such as the text, history, purpose,
context and values inherent to the South African legal order. The article concludes
that interpretive debate in South Africa has failed in any real way to move beyond
debates already dominant when the fictionalized judgment was written in 1949. It
also reiterates the warning to the South African judiciary in particular, and the South
African legal order in general, that allegiance to literalist and positivist traditional
canons of statutory interpretation poses the risk of impeding the contribution which
can be made by the judiciary to the transformation of South African society.

Most scholarship about textualism as it relates to statutory interpretation tends to focus on a small collection of judges at the US federal courts, and the late Justice Antonin Scalia in particular. However, textualism is properly understood as a (relatively) coherent set of core principles and core practices that has deep roots in 19 th century Anglo-American legal scholarship. While certain of the core concepts such as the " faithful agent " view of judging and the constitutional necessity of separation of powers date back to the times of Coke and Bacon, other features like the exclusionary rule that forbids recourse to legislative history are more recent. The development of these principles and practices into a coherent whole can be observed in the treatises on statutory interpretation published between 1830 and 1900 in England and the United States. The US judiciary rejected textualism early in the 20 th century, and at the same time, the institution of the treatise on statutory interpretation fell out of favour, as educators and lawyers turned to casebooks instead. However, in England textualism took hold from approximately 1906 until 1980, during which time the treatises by Craies and Maxwell persisted through multiple editions without substantial rewrites. There were numerous political, social and cultural pressures that accompanied the development of these ideas and the divergence that occurred between the US and England. Nonetheless, textualism as a real-world judicial approach to statutory interpretation presents itself as a phenomenon that is intimately tied to the treatise on statutory interpretation, and therefore to legal scholarship. The revival of textualism in the United States over the past three decades demonstrates that legal scholarship can influence the development of legal doctrines with real world impact and remarkable longevity.

The goal of this Essay is to construct an account of the American federal system organized around its structural and relational components and to develop an initial delineation of what I call the politics of sovereignty of the American constitutional order—the patterns of political behavior and discourse, the relationships, and the institutional interactions that characterize and decisively shape debates over the scope and location of government power. That account and the politics it structures, I will argue, are necessarily dynamic. An ancillary goal of this Essay is to illustrate some of the implications and requirements of the account of the federal system that I offer. That is attempted through a close analysis of the “basic principles” announced by Chief Justice Roberts in his opinion in National Federation of Independent Business v. Sebelius (NFIB).

Part I sets forth the structural components and institutional arrangements of the federal system. A review of the constitutional logic of federalism and mechanisms designed to preserve the federal bargain demonstrates that the federal system is underdeterminate, that is, that it fixes no single division of power between levels of government and instead permits a range of potential state-federal relationships within permissible constitutional bounds. In Part II, I examine the notion of “attachment” in both the The Federalist and the writings of several prominent Anti-Federalists. I argue that the attachment of the people—their connections and commitments to a government—is a crucial determinant of the configuration of state and national power, which configurations are enabled by federal underdeterminacy.

In Part III, I critically evaluate the “basic principles” of the state-federal relationship articulated by Chief Justice John Roberts in his NFIB opinion. I argue that his, and to a large extent the Court’s, understanding of the federal system entails denying both constitutional underdeterminacy and the consequences of the variability of the people’s attachment to their governments. Here I devote the most attention to the canon of constitutional avoidance, which the Court employed to uphold the Individual Mandate as a lawful exercise of Congress’s taxing power. After a sustained critique of the use of the canon in NFIB, I conclude by describing an alternative model of judicial review—which I call processual review—that is at once consonant with the understanding of the federal system offered in Parts I and II and yet distinct from the process-based theories offered by scholars like Herbert Wechsler, Jesse Choper, and Larry Kramer.

This paper, prepared for a symposium marking the thirtieth anniversary of the Supreme Court's decision in Chevron v NRDC, argues that, despite the doctrine's acquiescence in broad administrative discretion, so-called Chevron deference is reconcilable with a conventional account of what the rule of law entails in the modern administrative state. In all but the rarest of cases, however, rule of law values imply that deference should be accorded or not entirely on the basis of the legal interpretation proffered by the administrative agency that is Congress’s designated administrative decision maker, which is typically not the White House. White House involvement in persuading an agency to adopt a non-arbitrary interpretation that the agency embraces and can defend based on reasons rooted in law obviously should not count against that interpretation. But White House involvement should not be thought to earn deference for a proffered legal interpretation, whether originally preferred by an agency or not, that otherwise appears unjustified under “hard look” review. If the White House steers the agency away from an earlier preferred, but less sound interpretation of law, then the negotiated view, if non-arbitrary, may be given deference. But if the White House steers an agency away from an earlier preferred agency interpretation that would have been deference-worthy and at least as sound (in the eyes of the court) as the White House view now being offered as the agency’s own, the court should remand for agency reconsideration unless the White House-preferred interpretation can be shown to reflect exceptional problems of agency coordination.

This chapter explores the theoretical underpinnings of a constitutionally appropriate
theory of statutory interpretation. It will consider the historic use of theories of
statutory interpretation in South Africa. The theoretical underpinnings central
to theories of interpretation will consequently be explored. as well as implicit and
explicit constitutional waymarks that should inform our understanding of the
teleological model of interpretation.

How far do contemporary English and German judges go when they interpret national legislation? Where are the limits of statutory interpretation when they venture outside the constraints of the text?

Judicial Law-making in English and German Courts addresses the often neglected relationship between statutory interpretation and constitutional law. It is concerned with the limits of judicial power in a legal system. It critically analyses, reconstructs and compares judicial law-making in English and German courts from comparative, methodological and constitutional perspectives. It maps the differences and commonalities in both jurisdictions and then offers explanatory accounts for these differences and similarities based on constitutional, institutional, political, historical, cultural and international factors.

It will be shown that a fundamental unity of statutory interpretation exists in English and German judicial practice in the sphere of rights-consistent and EU-conforming judicial law-making, but not in the area of judicial law-making under conventional canons of statutory interpretation.

Judicial Law-making in English and German Courts is the first monograph in English that compares English and German legal methodology as applied in judicial practice, appealing to those interested in statutory interpretation, comparative law or legal methodology.

This article brings together debates in statutory interpretation, the rule of law, and legal interpretation. Examining theoretical accounts of the rule of law, the article incorporates a greater attention to questions of interpretivism and the historical
context of the interpreter in order to give contextual content to the rule of law. Construing rule of law in terms of fundamental questions about legal interpretation (e.g., discretion, determinacy, objectivity), the article proposes viewing rule of law as a bounded claim space in order to front the boundaries of that space as focal
points for rule of law analysis. Reviewing various presumptions of statutory interpretation in Canadian jurisprudence, the article suggests that these presumptions are proxies for the boundary conditions that define, demarcate, and delimit a distinctively Canadian rule of law tradition, thereby showcasing the
analytic heft and limited scope of rule of law analysis.