Making Arbitration More Cost-Effective

In theory, arbitration is supposed to be a less expensive, expeditious alternative to a traditional lawsuit.  Discovery in arbitration is generally limited to document production, arbitrators have the power to streamline hearings so that they move along more quickly than a trial, etc. Read the rest of this entry »

Some Fun With Statutory Construction: Trains, Tickets and Snails

I’ve been enjoying Justice Stephen Breyer’s latest book, “Making  Our Democracy Work: A Judge’s View,” which sets forth his views on a variety of subjects, including constitutional and statutory interpretation.  On the latter subject he offered an interesting not-so-hypothetical situation, which I’d like to share with you.  I think the hypothetical does a great job of distinguishing between plain meaning folk on the one hand and, on the other hand, folks who believe purpose and context are relevant in interpreting even clear statutes. Read the rest of this entry »

Statutory Construction Pet Peeve No. 1: Remedial Statutes Should Be Construed “Liberally.”

Lawyers and judges are interpreters of texts: cases, statutes, constitutions, etc.  And part of being a lawyer or a judge is knowing the canons of construction to apply to the text at issue to assist in ascertaining its meaning.

Two canons of construction are on my mind these days.  One says that “remedial statutes should be construed liberally,” and the other says “penal statutes should be construed strictly.”  How many times have we invoked one of these canons in a brief and then said something to the following effect during oral argument: “Well, judge, the statute is ambiguous, its remedial, so it should be interpreted liberally, and therefore I win!”  After reading a few decisions from the Seventh Circuit, however, I’m trying very hard to avoid relying on these  canons. Read the rest of this entry »