Comments on: The Debate over Statutory History http://law.marquette.edu/facultyblog/2009/08/05/the-debate-over-statutory-history/ Sat, 11 Feb 2012 21:08:33 +0000 hourly 1 http://wordpress.org/?v=3.3.1 By: Andrew Hitt http://law.marquette.edu/facultyblog/2009/08/05/the-debate-over-statutory-history/comment-page-1/#comment-25620 Andrew Hitt Fri, 14 Aug 2009 01:35:57 +0000 http://law.marquette.edu/facultyblog/?p=6446#comment-25620 Mr. Petrashek's insightful comments bring up an interesting question. Does a supervisory court have the authority to instruct lower courts on how to approach statutory interpretation? Given the Chief's reluctance to cite Kalal, perhaps she agrees that the scope of the Wisconsin Supreme Court's power does not entail mandating how lower courts interpret statutes. Of course, it could be that the Chief Justice just does not agree with how the majority in Kalal has instructed the lower courts. In any event, I wonder if the supreme court's supervisory powers encompasses such instruction on statutory interpretation. Has the United State's Supreme Court set forth similar instructions? I do not believe so. Moreover, in the area of constitutional law, the United States Supreme Court has taken an originalist approach in cases such as Crawford v. Washington, but certainly the Court has not stated that it will approach all constitutional questions from only an originalist understanding. Mr. Petrashek’s insightful comments bring up an interesting question. Does a supervisory court have the authority to instruct lower courts on how to approach statutory interpretation? Given the Chief’s reluctance to cite Kalal, perhaps she agrees that the scope of the Wisconsin Supreme Court’s power does not entail mandating how lower courts interpret statutes. Of course, it could be that the Chief Justice just does not agree with how the majority in Kalal has instructed the lower courts. In any event, I wonder if the supreme court’s supervisory powers encompasses such instruction on statutory interpretation. Has the United State’s Supreme Court set forth similar instructions? I do not believe so. Moreover, in the area of constitutional law, the United States Supreme Court has taken an originalist approach in cases such as Crawford v. Washington, but certainly the Court has not stated that it will approach all constitutional questions from only an originalist understanding.

]]> By: Nathan Petrashek http://law.marquette.edu/facultyblog/2009/08/05/the-debate-over-statutory-history/comment-page-1/#comment-25602 Nathan Petrashek Thu, 13 Aug 2009 02:11:58 +0000 http://law.marquette.edu/facultyblog/?p=6446#comment-25602 I wholeheartedly agree that statutory history should be considered an intrinsic aid. In fact, both sides of the debate should be able to agree on that. Statutory history uses a source that has been passed by the full legislature, and including it in the analysis permits the court to gain additional insight into the legislature's intent. One would think this would satisfy both camps. The debate has played out as it has, however, because accepting statutory history as an intrinsic source necessarily requires one to accept the statutory analysis set forth in ex rel Kalal, something that to my knowledge the Chief Justice has never done. The Chief filed a separate opinion in Kalal and has reaffirmed her position in several opinions since that time. To my knowledge, the Chief has never even cited to Kalal despite the fact that it is a significant realignment in the way statutes are interpreted. As Professor Fallone would say, she has "disagreed with the premise." I wholeheartedly agree that statutory history should be considered an intrinsic aid. In fact, both sides of the debate should be able to agree on that. Statutory history uses a source that has been passed by the full legislature, and including it in the analysis permits the court to gain additional insight into the legislature’s intent. One would think this would satisfy both camps.

The debate has played out as it has, however, because accepting statutory history as an intrinsic source necessarily requires one to accept the statutory analysis set forth in ex rel Kalal, something that to my knowledge the Chief Justice has never done. The Chief filed a separate opinion in Kalal and has reaffirmed her position in several opinions since that time. To my knowledge, the Chief has never even cited to Kalal despite the fact that it is a significant realignment in the way statutes are interpreted. As Professor Fallone would say, she has “disagreed with the premise.”

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