TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Friday, November 19, 2010

Kysar Presents Penalty Default Interpretative Canons Today at Brooklyn

Kysar Tax Prof Rebecca Kysar (Brooklyn) presents Penalty Default Interpretative Canons at Brooklyn today as part of the symposium on Statutory Interpretation: How Much Work Does Language Do? Here is the abstract:

A preference for a particular method of statutory interpretation over another often relates to one’s view of the legislative process.  In advancing his textualist approach to interpreting statutes, for example, Justice Scalia relies partially on a view that the legislative process malfunctions, filled with self-serving representatives who plant misleading statements into the legislative record.  Purposivists share a more benign view of the legislative process by interpreting statutes in accordance with meritorious, public-regarding aims presumably sought by lawmakers in enacting the legislation in question.  Neither of these underlying views of the legislative process satisfies,  and scholars continue to search for methods of statutory interpretation that reflect the actual functioning of the legislative process.

A scholarly focus of whether a methodology of statutory interpretation is too cynical or too optimistic of the legislative process, however, is incomplete; instead, a methodology must also be evaluated on how it affects the legislative process.  To this end, I set forth a novel categorization of a number of interpretative rules advanced by scholars and courts that contemplate a mismatch between reality and the view of the legislative process they assume.  In these examples, such a view, although distorted, eradicates an identified problem in the legislative process—for our immediate purposes, “hidden” special interest provisions, the beneficiaries of which are not transparent to other lawmakers or in the plain language of the statute.  More specifically, by assuming counterfactually that legislators disclose special interest provisions as such, courts can create incentives for lawmakers to indeed do so.  These canons also generally do no interpretive harm when the legislative process is in accord with the assumed goal of the legislative process—that is, when it is clear that statutory provisions benefit certain special interests, the canons operate to bestow such a benefit.  Thus, they may satisfy both cynics of and believers in the legislative process.  By identifying such a category, this Essay presents a more robust typology of theories and methods of statutory construction as to their relationship with the legislative process.

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