Legislation Commons^™

Legislative Rhetoric, Or How To Oppose Anything, Steve R. Johnson

Scholarly Publications

This installment of the column involves a change of focus. Instead of looking at the end of the legislative process – how courts interpret enacted statutes – this installment looks at the phase at which bills are enacted by or defeated in the legislature. However, the two phases have underlying similarities. As we will see, arguments used in legislative advocacy have counterparts in statutory interpretation advocacy. Our topic is particularly timely. Proposals to revise state and local tax statutes are always with us, of course, but recent budgetary stresses have increased both the number and significance of those proposals.

This …

Supertext And Consistent Meaning, Steve R. Johnson

Scholarly Publications

Opponents of textualism as an approach to statutory interpretation sometimes deride it as myopic. The textualist, those opponents contend, puts on blinders, narrowing the perhaps vast panorama of possible perspectives on meaning to a narrow slice of the whole. Modern textualists beg to differ. They view that criticism as reductionist and are often quick to distinguish textualism from mere literalism. Thus, the leading contemporary textualist jurist – U.S. Supreme Court Justice Antonin Scalia – cautions:

Textualism should not be confused with so-called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrepute .... [T]he good textualist …

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The Two Kinds Of Legislative Intent, Steve R. Johnson

Scholarly Publications

What is a court trying to do when it interprets or applies a statute? This installment of my column looks at two different answers to that question, doing so through the lens of cases involving state and local tax statutes. Both approaches sometimes use the language of “intent,” so it becomes important for the state-local tax practitioner to understand, and to accommodate his or her arguments to the kind of intent that actually controls in the particular jurisdiction.

The first part describes the two approaches: subjective intent and objectified intent. The second part describes a middle position that some courts …

Interpreting State Tax Exemptions, Deductions, And Credits, Steve R. Johnson

Scholarly Publications

Modern tax statutes serve many purposes beyond simply raising revenue, and the contours of those statutes are shaped by many (and sometimes conflicting) economic, social, and political objectives. Legislatures choose a variety of structural mechanisms – including exemptions, deductions, and credits – to advance those policy goals. Sometimes those features are drafted with less than meticulous precision. Other times, business practices have evolved since enactment of the provisions. In either event, revenue agencies and courts are frequently required to interpret those provisions.

This installment of “Interpretation Matters” concerns one such principle of interpretation: The canon that exemptions, deductions, and credits …

Pro-Taxpayer Interpretation Of State-Local Laws, Steve R. Johnson

Scholarly Publications

Sometimes, from a taxpayer’s perspective, it is better to be challenging a state or local tax determination than a federal tax determination. One reason for that is the canon that “[tax] statutes are to be construed most favorably for the taxpayer.” Scores, if not hundreds, of federal tax cases espoused that principle, especially during the 1890s to 1940s. However, the principle fell into disuse at the federal level in ensuing decades and, indeed, was replaced by prorevenue canons. A seeming attempt to revivify the canon at the federal level earlier this decade appears to have withered on the vine. In …

Ways To Change: A Reevaluation Of Article V Campaigns And Legislative Consitutionalism, Mary Ziegler

Scholarly Publications

Recent scholarship has convincingly shown that social movements shape constitutional law, and vice versa. To date, most theories study alternatives to formal constitutional amendments or consider the proper role for the courts in influencing the development of social movements. In this Article, however, I approach the question of constitutional change from the standpoint of social movements that oppose a constitutional decision. What tools are available to a movement seeking to change the meaning of a decision? What are the advantages or disadvantages of pursuing an Article V amendment, of codifying a favorable constitutional interpretation by statute, or beginning a litigation …