Are principles of judicial interpretation subject to legislative control? In the news you often read about differing philosophies of judicial interpretation, especially when important cases are decided (like several recent US Supreme Court decisions). I recently browsed through a book by Antonin Scalia in which he outlines a number of specific principles he endorses and does not endorse, with citations to earlier case law. Apparently there is some debate about the merits of such principles and how (or whether) judicial interpretation of legislation comports with legislators' understanding of what they are doing. It is clear that many of these "canons" can be overridden on a per-law basis by including language in the law that explicitly goes against some judicial principle that would otherwise apply. However, my question is, are the principles themselves subject to legislative control in a broader sense? Can legislatures pass "meta-laws" which define how other laws are to be intepreted? For instance, could the US Congress pass a law saying "Wherever ambiguity arises in statutory interpretation, the statute in question shall be understood as to favor the least powerful party in a dispute"? Or "No special deference shall be given to interpretation of statute by administrative agencies" (i.e., to curtail Chevron deference)? Or more generally, can a legislature pass a law saying "The law shall be understood as X", where X is some principle of intepretation that is not specific to the law in which it is contained, but is meant to constrain interpretations of all other laws (or some subset of other laws)? Would such laws be valid? I'm interested mostly in the situation in the US, but would be interested to know how the issue could play out in different countires, or in particular US states.
Yes, legislative bodies can pass legislation that constrains the interpretation of the rest of their legislation. In the U.S., see 1 U.S.C §1-8. In Canada, see The Interpretation Act. In British Columbia, see The Interpretation Act. As an example of a back-and-forth between the courts and congress regarding a setting a standard of review, consider the passage of the Religious Freedom Restoration Act (RFRA). Summarizing from Holt v. Hobbs 574 U. S. ____ (2015): In Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), the Supreme Court held that "neutral, generally applicable laws that incidentally burden the exercise of religion usually do not violate the Free Exercise Clause of the First Amendment". Congress desired a stricter test that prohibited the burdening of religion regardless of whether the laws are neutral or generally applicable. Congress passed RFRA in 1993, which required that "[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, unless the government demonstrates that application of the burden to the person — (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest". RFRA was passed with the goal of setting the standard of review for all other legislation that burdens a person's exercise of religion. Without RFRA, the standard of review would have been that used in Smith, based solely on First Amendment protections. With RFRA, the standard of review became stronger, basically strict scrutiny. An example of Congress setting the factors to be used in a balancing test is the addition of fair use via the Copyright Act of 1976. Prior to 1976, courts had been applying a fair use exception based on common law rather than statute. The act encoded in statute the four factors that Congress wanted to be considered and listed several purposes for which fair use was explicitly applicable. In this case, Congress basically codified the fair use doctrine as it was being used at the time by the courts. It could be considered an expression of approval for the existing interpretation of the time and a desire to prevent drift in that analysis.
Shall Whenever a law or legal text uses shall there is no discretion allowed. Read it as has to when it prescribes something. If it is written in the negative (shall not), you can read it as it is forbidden or X is barred. [the] Congress of the United States [...] shall consist of a Senate and House of Representative This prescribes that the congress has to have these two parts, not more, not less. Special meetings shall be called by the president or secretary in a like manner and on like notice on the written request of three (3) Directors. Whenever 3 directors sign letters demanding a meeting, then the president or secretary has to follow the process explained before. Congress shall make no law [that does X] Note that this is a negative shall! Read it as Congress is barred from doing a law that does X. Shall obviously can have exceptions or modifiers. Such often are in modifying sentences following them. Meetings of the Board of Administration shall be open to all unit owners. Notice of all meetings shall be posted on the official bulletin board ofthe Association at least forty-eight (48) hours in advance of each scheduled meeting and directed to the attention of all unit owners. In case of an emergency, a meeting of the Board of Administration may be held without notice. There has to be a notice on the board at least 48 hours before a meeting, unless there is an emergency. May Legal texts usually use may whenever there is an option to do something. It usually marks the possibility to do something and vesting the discretion to do so in somebody. Often, they come with a minimum or maximum time an event has to occur from a deadline. The department may enter an order doing one or more of the following if the department finds that a person has violated or is operating in violation of any of the provisions of this section or the orders issued under this section: The decision if something happens is vested in the department [of Agriculture and Consumer Services]. If they decide to act, then it has to come from the list that follows the section. Special meetings of the Board may be called by the president on five(5)days notice to each Director [...] It is at the discretion of the president to call a special meeting. If they do, it has to be done with 5 (or more) days warning to the Directors. Including the other paragraph of OPs document, then it also has to be posted 48 hours before the meeting on the board, unless it is emergency.
Courts only decide disputes If the written contract says X but the parties agree they meant Y, then the court adopts Y. However, if the written contract says X but one party asserts Y and the other Z, the court takes the written contract as definitive. The parol evidence rule would prevent any evidence being introduced if X is unambiguous. Plaintiff presents contemporaneous evidence that the parties did not intend the Written Agreement to be integrated, even though the template they used contains the integration clause. The plaintiff can’t introduce that evidence in the first place unless there is some ambiguity to be resolved. If it’s plain on the face that integration (whatever that is) was intended then we’re done here counsel, move along. But what if at the same time that they signed the Written Agreement in question the parties signed another agreement covering some of the same subjects? If the documents don’t create a practical conflict then we’re in the same place as before. If they do then the court will try to resolve that within the written documents - a later document will usually prevail over an earlier one and a more detailed document over a more general one. Extrinsic evidence is almost always excluded. Or what if there is incontrovertible evidence that both parties subsequently and intentionally acted contrary to some term of the Written Agreement? That would suggest that the Written Agreement did not represent the Actual Agreement. No, that would constitute a waiver by one or both parties - you can choose not to enforce (waive) your rights under a contract. This can be one off or, if repeated often enough, a waiver for all future breaches. Alternatively, the parties are free to change the terms of their contract; maybe that’s what happened.
How should one reconcile these conflicting understandings? A holding of the U.S. Supreme Court that it has not later abandoned is, by definition, the correct interpretation of the U.S. Constitution for all purposes of U.S. law, even if a plain reading of the constitutional language might suggest otherwise.
In the vast majority of countries (both common law and civil law), statutes are interpreted in a manner that reflects the intend of the drafters of the statute a.k.a. legislative intent, when it is possible to reasonably determine what was intended. There is a canon of statutory interpretation in almost all legal systems that provides that absurd or nonsensical interpretations of legislative language are to be disregarded in favor of those that reflect the likely intent of the body passing the law, even if the literal and technical reading of the words does not state precisely what was intended. Thus, if there is a clear grammatical, punctuation, or spelling error and the intend meaning can be discerned from the language of the law, the larger context of the law, or extrinsic evidence such a legislative history and public discussion of the reasons for enacting the law in the first place, those clues will be used to interpret the legal effect of a law. Could this mean legal consequences or would I be safe as I &quot;bought nothing illegal&quot;? No. Ignorance of the law is no excuse even in cases where the interpretation of the law calls for the courts to ignore minor errors in legislative drafting. You would have an argument, but where you can state &quot;in fact 'Scolopendra gigantica' does not exist and they most likely meant 'Scolopendra gigantea'.&quot; The likelihood that you will face legal consequences is great. Also, in this particular example, keep in mind that biological species sometimes have more than one accepted Latin name, or once had a different name than the currently accepted name. For example, in this case, &quot;gigantica&quot; and &quot;gigantea&quot; are different grammatical inflections of the same Latin root word, and really are the same word in the same way that &quot;geese&quot; and &quot;goose&quot; are different tenses of the same word in English that refer to the same genus of birds. If a scientist discovers a new type of centipede and names it 'Scolopendra gigantica', would it be illegal immediately? The judges would look at all of the facts and circumstances and decide if the new species was within the scope of what the law intended to ban. But, the mere fact that the word is the same would not make the law apply to it. In the same way, suppose that a law had an exemption and didn't apply to animals in the town of Zootopia where many exotic pets are naturally common in the wild because a failed zoo released them into the area. But, given that context, the town of Euclid could not make itself exempt from the law by renaming itself Zootopia after the former town of Zootopia was disincorporated after its residents were all eaten by lions. If it was illegal to own a 'Scolopendra gigantea' due to that law and a scientist now names a new centipede 'Scolopendra gigantica' would that immediately legalize the 'Scolopendra gigantea'? No. For the same reasons discussed above. Footnote Re Similar Issues With Controlled Substances Laws This said, the issue you discuss does come up, and sometimes wins and sometimes loses, in the case of laws regulating controlled substances (i.e. illegal drugs). One of the reasons that this comes up is that the proper names of chemical substances in organic chemistry is not, as it is in biology, arbitrary. The name of an organic chemical is determined from looking at which atomic elements in which combinations with what kinds of bonds to each other are present. Given a chemical diagram of an organic chemical, every organic chemist would give it the same name, even if they've never discussed it, and likewise, you could ban an organic chemical that has never been observed or synthesized in real life and it would be illegal if it ever was synthesized. These statutes have usually been interpreted strictly to apply only to the named chemicals, but usually include an additional statutory section that either ban &quot;analog&quot; chemicals that are intended to or do have the same biochemical effect as the banned chemical, or allow an administrative agency to add new chemicals to the list without legislative action. Still, complications do come up even then because many lawyers and legislators become lawyers or politicians because they couldn't become doctors or engineers, because they flunked organic chemistry. (Joking aside, almost 50% of college students in the United States taking organic chemistry for the first time fail the course. This and first semester calculus are the most frequently failed college courses in the United States.) The Florida Cheese Ban For example, Florida recently classified a chemical present in many kinds of ordinary cheese as a controlled substance, which would in theory make every grocery store owner and millions of Floridians felons. Florida probably meant to ban high concentration synthetic extracts of that chemical administered as a drug, but didn't do anything to say so. But interpreting the statute to have that meaning was harder in that case since the same statute applies to many, many different drugs and the interpretation of the statute would make the ban on the chemical found in cheese make sense, would not make sense for the other drugs on the list. But, Florida courts may ultimately end up ignoring the addition of that chemical to the list based upon the canon against absurd interpretations, at least on an &quot;as applied&quot; case by case basis where the literal meaning of the statute would make millions of Floridian felons for violating this law. The Grand Junction Conviction For Possession Of A Legal Drug Another case came up in Grand Junction, Colorado where a woman was prosecuted by a government lawyer for possession of a controlled substance for possession of a chemical named in the indictment, and her government provided public defender had his client plead guilty to the crime. The woman tried to explain that this made no sense since its was an ordinary prescription drug, but the prosecutor, her own lawyer and the judge didn't believe her, and her public defender told her she was certain to be convicted anyway. (It isn't clear if she actually had a prescription for the drug, but even if she didn't, it wouldn't have been a crime.) So, she took a plea deal and was sent to prison to serve a medium length incarceration with work release sentence, instead of the medium length prison sentence she could have received if she went to trial, was convicted, and received a typical sentence for that conviction. The problem was that the chemical she was indicted for possessing in violation of the controlled substances act wasn't actually on the controlled substances list and wasn't an analog version of a controlled substance. There was also no reason to think that the drug he was convicted of possessing which had no pleasurable psychoactive effect was ever intended by the legislature to be banned or regulated. About a year later, in the year 2005, when this issue was ultimately discovered, a different criminal defense lawyer brought a post-conviction challenge to the conviction on the convicted woman's behalf, and the convicted woman was released with the conviction vacated, because the crime she was indicted for committing and convicted of didn't exist. Allysan Isaac, 24, was held nearly a year in work release for something that a judge said Tuesday was not even illegal. &quot;You were incarcerated for a case that was not a crime,&quot; said Mesa County District Judge Brian Flynn, who presided over the case. Flynn, the prosecutor and Isaac's defense attorney were unaware last year that the offense she was charged with was not a violation of the law. No one had noticed that a prescription drug found in Isaac's possession, an anti-anxiety medication called Buspirone, is not a controlled substance. ... District Attorney Pete Hautzinger said he had &quot;no idea&quot; why Isaac had been charged with and convicted of something that wasn't a crime. The defense attorney who represented Isaac in the first case was also baffled. &quot;I don't have an answer,&quot; assistant public defender John Burkey said. &quot;Nobody caught it. The police were saying it was a controlled substance.&quot; (Source quoting from and citing an article I read and confirmed the story from in the Rocky Mountain News, a now defunct newspaper. Corroborated here.) Incidentally, even though this woman was horribly wronged because of this wrongful conviction, the prosecutor and judge had absolute immunity from civil liability for the wrongful conviction, and criminal liability requires knowledge that you are committing a crime. The government likewise had no duty to compensate her for her wrongful incarceration because her rights weren't intentionally violated by anyone as required by civil rights statutes. She may have had a claim for legal malpractice against her own lawyer, for which negligence can be a basis of liability. Even that would have been a difficult case to win, however. This is because she would have to show that the public defender violated the standard of care of a reasonable lawyer by relying upon law enforcement's claim that a substance was a chemical banned by the controlled substances act which is a question of fact upon which expert witnesses could reasonably disagree. There is nothing in the public record to show that she pursued such a claim, but a private settlement reached before the case was filed wouldn't be revealed in that way. So, it is possible that a private settlement was reached in a legal malpractice case against her public defender that never actually resulted in a case being filed in court.
Each case is decided on its own facts I know you want a clear answer to where the bright line between illegality and legality but there simply isn’t one. The reason you feel there is a “legal grey area” is because there’s a legal gray area. The way the common law works is that there are some acts and omissions that are clearly crimes/torts/breach of contract, some that aren’t and some that live in that grey area. When someone brings a case in the grey, the court will make a ruling that will apply to similar facts and we get a little light on the subject. Then the legislature changes the law and it all goes dark again. Each of your bullet points is simply too vague and encompasses so many fact patterns that it’s impossible to say. For example, “Using a fake name/birthday”: do the ToS prohibit this? is there an intent to mislead or deceive? are there laws that prohibit this? is a benefit being received dishonesty? etc. If you come with a specific, detailed fact pattern there might be case law that is specifically relevant that will allow an answer with a high chance of being right. However, nuances matter and no two fact patterns are exactly the same and the difference might be enough to distinguish your case from the precedent. Or there might not be a relevant precedent because no one has sued/prosecuted on this fact pattern before. Then we are in virgin territory and even experts are only making educated guesses until the judge (and the appeals court(s)) hand down their decision. These are the most interesting cases to watch but the most terrifying to be part of. If you need to ask the question”where’s the legal line on this?”, there’s a decent chance you have a foot on each side.
Short Answer Yes, Supreme Court decisions apply everywhere right away. (Unless the decision says it doesn't.) No, we do not have to wait until new laws are passed. Explanation Judicial Review Marbury v. Madison (1803) established the principle of judicial review under Article III of the U.S. Constitution. This allows the court[s] to interpret laws passed by legislatures. And this is the basis for applying the ruling everywhere (in the U.S.) immediately. From Marbury at 178: if a law be in opposition to the Constitution [...] the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. [...] the Constitution of the United States confirms [...] that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument. Judicial Restraint (Nominally) courts either interpret or invalidate existing law. In the former case, the law will persist (with the new clarity added by the decision). In the latter, the law will be struck as unconstitutional and, therefore, no longer exist.
how (academically) acceptable are such discussions and proposals? Some academic somewhere has probably discussed it, and did not breach strong academic norms by doing so. Is it the academically acceptable practice to argue about such questions or is it a marginal view? It isn't taboo to argue such a position, but it is highly marginal and extreme. It is even more extreme in Eastern Europe (nominally in the civil law tradition) than it is in common law countries (which have more of a natural law tradition), and would be least marginal in the U.S. which has a strong natural law tradition, although it would marginal even in the U.S. Legal positivism (i.e. the law is what legislators and the governmental process including courts and citizen ballot issues says it is), is very strong now compared to prior eras and stronger in civil law countries than in common law countries. The battle between natural law and legal positivism was mostly won by legal positivism by the late 19th century although the debate continued indifferent to the reality on the ground. Philosophically, human rights are often viewed as an enlightened codification of natural law (which sometimes justifies its extraterritorial application), but it would be rare for someone who was a strong supporter of natural law to argue that human rights codifying natural law should be disfavored (really, that kind of reasoning is mostly seen in pre-modern Confucian legal arguments in China as part of the Eastern rule of law v. rule of man argument that tends to favor rule of man on the theory that any codification can be twisted by sneaky lawyers).