Statutory Interpretation Research Articles

Where do we belong? The plight of plaintiffs with small maritime claims

Is a claim falling within the definition of a ‘maritime claim’ in terms of s 1 of the Admiralty Jurisdiction Regulation Act 105 of 1983 and also within s 29(1) of the Magistrates’ Courts Act 32 of 1944 capable of being pursued in the magistrates’ courts? In World Net Logistics (Pty) Ltd v Donsantel 133 CC & another 2020 (3) SA 542 (KZP) the full court in KwaZulu-Natal held that such claims must be pursued within the exclusive admiralty jurisdiction of the high court. The article submits that this is incorrect and disregards the history of the Admiralty Jurisdiction Regulation Act, amounts pro tanto to an implied repeal of the relevant section of the Magistrates’ Courts Act, and is inconsistent with the principles of statutory interpretation applied by our courts. It urges the Maritime Law Association urgently to seek an opportunity to challenge the decision, which is prejudicial to claimants with small claims arising out of ship-related contracts or delicts.

Private international law in the Labour Court: Re-visiting jurisdiction and choice of law in a cross-border employment dispute

With a growth in cross-border employment, the territorial limitations placed on the adjudication of cross-border employment disputes is incongruent to the development of employment and the subsequent employment relationship. The question of adjudication in the Labour Court rests predominantly on the territorial scope of South Africa’s employment statutes. Accordingly, this article exposes the uncertainty employees, who work outside their countries of residence, face when trying to utilise the Labour Court as a channel of legal relief. Reasons for this inconsistency lies in the approach the Labour Court has taken in determining the territorial reach of South Africa’s employment statutes. Where the Labour Court has utilised methods of statutory interpretation and strictly imposed the presumption against extraterritoriality, the court has established a practice that, in light of the growing global nature of employment, deviates from the realities of the de-territorialised flow of labour. Important in this article is thus the endorsement of private international law principles and methods in establishing jurisdiction and choice of law in the adjudication of a cross-border employment dispute.

Cultural Resources, Conquest, and Courts: How State Court Approaches to Statutory Interpretation Diminish Indigenous Cultural Resources Protections in California, Hawai‘i, and Washington

Critical Race Theory identifies two of the United States’ original sins: slavery and conquest; yet, while the former is well known, the latter is simultaneously obvious and unknown, creating a disconnect between the history of violent conquest to the disparities that continue to afflict indigenous communities today. This lack of understanding and acknowledgement also permeates the federal courts—an issue extensively documented by Critical Race Theory and federal Indian law academics. Yet, limited scholarship has interrogated if and how state judicial systems may parallel the failures of federal benches. This Note examines the “hidden,” yet enduring impact of conquest by applying Critical Race Theory perspectives to cultural resources protection, as safeguarded (or hindered) by state court interpretations of both historic preservation laws and environmental review processes. Specifically, this research focuses on the state judicial systems of California, Hawai‘i, and Washington—predominantly liberal and social justice-oriented political arenas with large indigenous populations—to investigate if and how state court approaches to statutory interpretation affect the protection, preservation, and tangible and intangible rights to land of Native Americans, Alaskans, Hawaiians, and other Pacific Islanders. As the Western United States’ “liberal sisters,” do California, Hawai‘i, and Washington’s politics foster judicial interpretations favorable to indigenous communities? Or, conversely, do liberal legislative and popular appeals to civil rights and environmental protection fail to facilitate judicial respect for Native knowledge and sovereignty? By applying a Critical Race Theory lens, this Note reveals that even in liberal enclaves, state courts uphold interpretations rooted in white supremacy and settler colonialism that diminish indigenous cultural resources protections and thereby perpetuate modern day conquest.

The Restatement and the Law of Jurisdiction: A Commentary

Abstract The Restatement of the Law (Fourth): The Foreign Relations Law of the United States is a monumental work, which, just like the Restatement (Third), may prove influential abroad. This also applies to its restatement of the law of jurisdiction. The clarity of the relevant chapters on jurisdiction, including the reporters’ notes, is admirable. Comparing the Restatement (Third) to the Restatement (Fourth), it is striking that the latter places greater emphasis on US law-based jurisdictional limitations. The relevance of the customary international law of jurisdiction has correspondingly diminished, especially in regard to jurisdiction to prescribe and adjudicate. This commentary critiques this shift towards jurisdictional ‘parochialism’. It singles out (i) the drafters’ characterization of the principle of jurisdictional reasonableness as a principle of US statutory interpretation (prescriptive comity) rather than a customary international law norm limiting prescriptive jurisdiction and (ii) the drafters’ view that the exercise of adjudicative jurisdiction is not constrained by customary international law.

Statutory Interpretation: How Legal Reasoning and Linguistics Interact

The relationship between law and language has been widely discussed as early as in 1963 when Mellinkoff published the well-known book ‘The Language of the Law’ in the US. The linguistic analysis presented in this paper is an attempt to study legal interpretation from an interdisciplinary perspective. In particular, it is intended to demonstrate actual disputes (mostly US cases) that require interpreting statutes as how legal reasoning and linguistics interact. Starting with a brief account of linguistic indeterminacy and different forms of indeterminacy in legal contexts, the author will then focus on various approaches provided by legal scholars and linguists when it comes to uncertainty in construing law. Finally, a Polish case study will be presented to exemplify how linguistic analysis, along with legal argumentation, can practically contribute to the effectiveness of legal drafting and interpretation.

Extended Abstract Out of the Ordinary: Common Use Arguments in Legislative Classification

The common-law doctrine of stare decisis tasks the courts with comparing, sorting, and regulating new cases based on established standards of legality, a lineage of thought that seeks continuity between past and future rulings (Scalia 1997, 7). Regardless of this strong desire for stability and consistency, the frustrating reality is that ambiguity is often written—intentionally or accidentally—into legislation, contracts, and policy, questionable phrasing that can severely hinder a court’s ability to determine how new cases relate to previous findings. As the text of a legal document provides the normalized naming around which future cases are considered, statutory interpretation is needed to “determine an instrument’s meaning” (Baude and Sachs 2017, 1086) when subjects deviate too far from or challenge previously defined regulatory categories. This interpretation ensures that a statue is “not only internally consistent, but also compatible with previously enacted laws” (Scalia, 16). Different modalities, discourses, and theories can influence and guide judicial interpretation. Here, I will be focusing on the legal canons of “ordinary meaning,” “plain meaning,” and “common use,” flexible interpretive devices frequently evoked by scholars and judges to clarify ambiguous terminology and manage legislative classifications. Although each is unique and distinct, I argue that appeals to the plain, ordinary, and common can be unified under a singular knowledge organization (KO) theory motivated by a desire for atheoretical meaning and rooted in three unifying characteristics: obfuscation, hegemonic appeal, and autopoietic validation. Each of these attributes provides extremely valuable epistemic opportunities, yet their effective combination creates a mechanism that most readily substantiates, rather than dismantels, oppressive norms.

Institutional Values in Judicial Review of Administrative Action: Re-Reading Attorney-General (NSW) V Quin

Owing to its focus on statutory interpretation, judicial review of administrative action in Australia has been perceived to be ‘formalist’, particularly when compared with review in comparable nations such as England. This led Michael Taggart to characterise review in Australia as ‘exceptionalist’. The judgment of Brennan J in Attorney-General (NSW) v Quin, in which Brennan J emphasised the importance of courts remaining away from ‘the merits’ of administrative decision-making while exercising the supervisory jurisdiction has become closely associated with the view that review in Australia is rigid and formalist. In this article, I re-evaluate the judgment of Brennan J and place it in the context of its facts and of its time. This helps to reveal that the approach to judicial review of administrative action set out by Brennan J in Quin should not be seen as formalist. Rather, both Brennan J’s approach and the contemporary ‘statutory approach’ to judicial review can be seen as informed by values connected with what are understood to be the appropriate functions of each institution of government found within the Australian political system.

The conflict of interest in tax scholarship

Problems linked to tax injustices have gained worldwide attention recently, as the aggressive tax planning practices of multinational companies have increasingly been exposed. Legislative reforms and enhanced corporate social responsibility practices have been introduced to deter tax avoidance, yet with little enduring success. However, little attention has been paid to the role of tax scholarship or to the statutory interpretation in the problems of tax avoidance. This paper contradicts the commonplace view that tax law scholarship serves the public interest. The paper approaches tax scholarship as a social practice, and argues that conflicting interests emerge when tax scholars conduct doctrinal study of law. As many tax scholars work for the tax advisory industry alongside their scholarly jobs, they have an incentive to propose legal arguments in their scholarly work that advance their private clients’ interests. Since judges use scholarship as an interpretive aid when defining the content of tax law, tax scholarship might bias the development of legal doctrine. It is argued that scholarship may therefore change the distributive effects of tax systems, in favor of the tax advisory firms’ clients. As a result, the democratic legitimacy of tax systems may be undermined. This article illustrates the problematic aspects of tax scholars’ double roles using empirical examples from Finnish legal culture and Finnish law reviews and codes of conduct in universities. This paper develops an argument that if such problems are prevalent in a country with little corruption and strong democratic institutions, they may be widespread in jurisdictions beyond Finland.

THE QUESTION OF INTERPRETATION IN THE NICHOLSON JUDGMENT Jacob Zuma v The National Director of Public Prosecutions [2009] I AII SA 54 N

It is interesting that prior to Nicholson J’s judgment in the matter of Jacob Zuma v The National Director of Public Prosecutions, that Judge President Tshabalala stated quite categorically that he did not want the judge who was to preside over the corruption trial of Jacob Zuma to be placed under scrutiny (see “Zuma Judge Gets Legal Professional’s Approval” 31 July 2008 Business Day 3). However, since Nicholson J’s decision of the Jacob Zuma trial, both the judge and his judgment have invariably become the subject of intense scrutiny. Nicholson J’s judgment is fraught with inconsistencies, incongruities and controversy. Nevertheless, no matter what the views are regarding the findings of Nicholson J, it has to be conceded that it resulted in one of the most far reaching political decisions in South African legal history, which resulted in the ousting of the country’s president (Thabo Mbeki). While the judgment raises a plethora of both political and legal issues, it is not the intention of the author to venture into the political arena; rather an analysis ofthe approach adopted to statutory interpretation which influenced the court’s decision, is considered.

The Plain Meaning Rule: A Quibble about Nomenclature and a Lot More

Abstract In the Cayman Islands, a British Overseas Territory, the proper understanding of the plain meaning rule (or literal rule) of statutory interpretation remains unclear. In its most basic iteration, the rule states that, where a statute is clear and unambiguous, the words must be given their natural and ordinary signification; there is no room for interpretation. That notwithstanding, to this day, even the meaning of the rule, as opposed to its application, still sometimes sparks debate in the Commonwealth. In 2015, a judge of the Grand Court in Cayman held that once a provision in a statute is clear and unambiguous, a court does not need to read the provision in its broader context. In a subsequent case, in 2018, a court of coordinate jurisdiction disagreed. It ruled that, even where a provision appears to be clear and unambiguous, a court must still read the statute in its fuller context in order to decipher the legal meaning in that particular context. This article discusses the plain meaning rule with a view to elucidating its proper understanding while questioning the appropriateness of its continuing nomenclature especially in light of developments in recent decades.

Addressing Disconnection: Automated Decision-Making, Administrative Law and Regulatory Reform

Automation is transforming how government agencies make decisions. This article analyses three distinctive features of automated decision-making that are difficult to reconcile with key doctrines of administrative law developed for a human-centric decision-making context. First, the complex, multi-faceted decision-making requirements arising from statutory interpretation and administrative law principles raise questions about the feasibility of designing automated systems to cohere with these expectations. Secondly, whilst the courts have emphasised a human mental process as a criterion of a valid decision, many automated decisions are made with limited or no human input. Thirdly, the new types of bias associated with opaque automated decision-making are not easily accommodated by the bias rule, or other relevant grounds of judicial review. This article, therefore, argues that doctrinal and regulatory evolution are both needed to address these disconnections and maintain the accountability and contestability of administrative decisions in the digital age.

Criminal Law: Third Edition

This is a casebook for a first-year criminal law course at American law schools. It covers statutory interpretation, actus reus, mens rea, attempt, conspiracy, homicide, rape, and general affirmative defenses. The included material is either public domain, Creative Commons, or included with the copyright owner's permission. The book itself is released under a Creative Commons license which you can find at the beginning of the book. I encourage editing, revising, and distributing under those permissive terms.

Protection of Copyright in Foreign Works in Nigeria: An Analysis of the Decision in Voice Web International Limited v Emerging Markets Telecommunication Services Ltd & Ors

Abstract The protection for copyright in foreign works in Nigeria has been a contentious and controversial issue for over three decades. In this case analysis, through a trilogy of cases, we trace the judicial trend and jurisprudence on this issue of copyright law. We argue that although Sec. 5 and Sec. 41 of the Nigerian Copyright Act provide two methods by which foreign works can receive protection under the Act, the courts have repeatedly declined to confer such protection. The most recent case on this issue, Voice Web International Limited v Emerging Markets Telecommunication Services Ltd & Ors, provided an opportunity for the courts to lay the issue to rest; however, unfortunately, the courts again failed to do so. In this opinion, we critically examine the case and discuss the legislative history conferring protection to foreign works. We conclude that the correct statutory interpretation in determining the protection of foreign works is reciprocity, and this was satisfied in the case under review.

Pro-Constitutional Interpretation of Statutes. A Few Remarks Related to the Dispute about Judicial Activism

The article presents an opinion in the discussion on the limits of judicial activism. The active attitude of judges in the law-making process according to the so-called concept of ‘pro-constitutional interpretation of the law’ can be observed more and more often. While we may agree with the view that the role of a judge is to pronounce a fair verdict based on the applicable law and judges may give meaning to statutory provisions supplemented with an axiology of the Constitution, the problem appears with particular sharpness when such a pro-constitutional interpretation leads to a specific application of the provisions contra legem.

Vaccines in the Time of COVID-19: Using Vaccine Mandates to Teach about the Legal and Ethical Regulation of Business

This article uses the question “Can government and businesses mandate the COVID-19 vaccine?” as a starting point for an interdisciplinary discussion appropriate for a variety of business laws classes. This timely and engaging question lends itself to a class discussion on law, ethics, and behavioral economics, which will help students integrate their learning across these disciplines. This lesson is appropriate for courses on the Legal and Ethical Regulation of Business as well as Employment Law at both the undergraduate and graduate levels. In addition to currently being an extremely timely topic, mandatory vaccination will remain an important issue for years to come as many experts predict immunity will wane with time and booster vaccines will be required. One of the most important learning goals of this lesson is improving students’ understanding of the complexities surrounding the legal regulation of business in the United States. Real-world business dilemmas often have many interrelated legal issues and students will develop a true understanding of how to integrate various areas of the law. The lesson pulls together different legal concepts including federalism, statutory interpretation, administrative law, stare decisis, constitutional law, and employment discrimination. Additionally, the lesson is an excellent way to develop students’ analytical and critical thinking skills. This lesson can also be used to develop students’ ability to analyze issues from competing ethical frameworks. These mandates are a particularly interesting topic for ethical analysis since there are many hypothetical variations depending on the specific vaccine mandate at issue, and who it covers. Additionally, this article discusses how vaccine mandates can be used to introduce a class discussion on behavioral economics.

Friends of the Earth: At the Intersection of Environmental and Administrative Law?

The judgment in R (Friends of the Earth Ltd) v Heathrow Airport Ltd,1 adds to the important picture of the relationship between administrative law doctrine in general, and the application of power under specific statutory regimes. This analysis will draw out three main elements of this picture: first, the understanding of the place of policy in a legal framework; secondly, the use of administrative law principles to determine matters of statutory interpretation, and thirdly resolving cases through the use of administrative law doctrines. Ultimately, the decision of the Supreme Court in this case suggests that ‘administrative law’ still has an important place to play, independent from constitutional principle and the specific legislative regime at play. There is a range of views as to the utility, significance or coherence of an independent doctrine of administrative law. Sir Clive Lewis refers to ‘a body of...

Presumptions upon Presumptions: Problems with the Threshold of Materiality

The ‘threshold of materiality’ introduced by the High Court of Australia in Hossain v Minister for Immigration and Border Protection, and confirmed in subsequent cases, is a new presumption of statutory interpretation which universally qualifies the existing implied limitations on executive decision-making power. This article contends that the High Court did not adequately justify the presumption’s creation. It surveys several prior decisions to demonstrate the presumption’s doctrinal precariousness; criticises its lack of justification by reference to principles of statutory interpretation; and compares the Court’s creation of the presumption to other cases which, it is argued, have more persuasively justified the evolution of interpretative presumptions. Finally, the article discusses issues of pragmatism, the presumption’s reversal of the onus of proof, and the problematic residual discretion to refuse relief.

A quantitative approach to ranking corporate law precedents in the Brazilian Superior Court of Justice

This paper aims to contribute to the goal of finding influential legal precedents by quantitative methods. A lot of work has been made in this direction worldwide, especially in the context of common law jurisdictions. However, this type of work is extremely scarce in the Brazilian literature. In addition, our work also contributes to the research of network analysis and the law by applying these methods to unprecedented amount of data and narrowing our inquiry to a single law area, corporate law. Furthermore, whereas most of the literature applying network analysis to judicial decisions had access to readily available data on the citations to precedent within each ruling, our raw data was nothing but the full text of decisions. We focus on data produced by the Superior Court of Justice (STJ), the highest court in Brazil for matters of federal law, including statutory interpretation of civil, criminal and corporate law. The Court issued an astonishing 282040 opinions tagged as related to corporate law between 2008 and 2018. This amount of cases is unparalleled internationally for superior courts and for studies in network analysis and law. In our results, we rank precedents quantitatively based on the citations they receive and make. We also qualitatively analyze some of the results, especially related to groups identified in the network with the Modularity algorithm. Our findings also reveal that corporate law jurisprudence in the STJ is quantitatively dominated by a few legal issues around one single theme that is only tangentially related to corporate law. That is, a type of contract used for the expansion of telephone landlines, which also allowed the consumer to become a shareholder of the telecommunication company. This comparison is especially pertinent because the utter lack of data on the quantitative weight of STJ precedents means the national literature has been operating in a void of objective measurements, one which has been filled with cherry-picked rulings and subjective ranking criteria.

Abstractions over Text?: Groping in Daylight in Search of the Switch

Independence is a virtue one takes time to acquire. But the judiciary – entrusted with deciding cases and controversies – is allowed to posit no excuse for its precarious institutional posture. One of the ways judges compromise judicial independence – and in doing so shockingly adorn the veil of a legislator – is by interpreting statutes whimsically. This Article, therefore, seeks to shed light on textualism – a method of interpreting legal texts – and its principal tenet, context. This Article goes on to critique the traditional approaches to statutory interpretation – literalism, the golden rule, the mischief rule, and purposivism – on the primary basis that they are flawed and unworkable. They rob statutes of their textual meaning and strip them of their democratic sheath. It exposes literalism’s flaw – the plain-meaning inquiry and its tendency to constrict meaning. The author suggests an alternative test – the ‘linguistic reasonableness’ test. As regards the golden rule, this Article analyzes its tripartite exceptions laid down in the oft-cited Grey v Pearson. The author examines one of the exceptions – the absurdity doctrine – by conducting two analyses: the OPLA and SSA analyses. This Article then discusses the mischief rule and purposivism. In the author’s opinion, they bear a distinction without a difference. Next, the author offers nine hypotheticals with interpretive problems, resolving each as a textualist would. This Article concludes by expressing misgivings about the undisciplined and capricious posture of the judiciary in statutory interpretation, and warn against such improvidence.

Parliamentary Intention: Deciphering Its Role in Statutory Interpretation in the Australian Constitutional Context

Abstract Parliamentary intention is a central aspect of statutory interpretation despite the many questions that exist concerning its normative role and desirability. In Lacey v. Attorney-General (Qld) and Zheng v. Cai, the High Court of Australia sought to diminish the role of objective parliamentary intention in statutory interpretation by alluding to a need for interpretive principles to be based on an understanding of the broader constitutional framework. This article argues that parliamentary intention has an important role to play within the modern statutory interpretation approach as adopted in Australia. Particularly, it is argued that an over-reliance upon statutory interpretation presumptions as a proxy for interpreting the legal meaning of statutes as opposed to an inquiry to discern parliamentary intention as informed by text, context, and purpose, leads to questionable interpretive results. Parliamentary intention is also consistent with the broader constitutional constraints as alluded by the High Court with respect to constitutional values such as the separation of powers between the judicial and legislative branch, and statutes being a product of an exercise of legislative power by democratically elected members of Parliament.