Overlooked Temporal Issues in Statutory Interpretation

87 Pages Posted: 3 Apr 2008

See all articles by Brian G. Slocum

Brian G. Slocum

University of the Pacific - McGeorge School of Law


There is an important but chronically overlooked problem in statutory interpretation. Courts frequently create and modify the rules of statutory interpretation in common law fashion. They never consider, however, whether these new or modified rules should be applied only prospectively to statutes enacted after the judicial decisions that created or modified the rules. The failure of courts to consider these temporal issues undermines the assumption, fundamental to statutory interpretation, that Congress chooses statutory language in light of established rules of interpretation and thus risks delegitimizing statutory interpretation. Indeed, as this Article illustrates, the Supreme Court's failure to consider these temporal issues has arguably resulted in erroneous statutory interpretations.

Notwithstanding the enormous attention given statutory interpretation by scholars over the past couple of decades (including the proposal and examination of various sophisticated, high-level interpretive methodologies), the temporal issues the retroactive application of new or modified rules of interpretation raises have been virtually ignored in statutory interpretation scholarship. This Article fills the void by providing a theory of when courts should apply new or modified rules only prospectively. Despite the plausibility of an argument that all new or modified rules should be applied only prospectively, the Article argues that only the most powerful rules should be considered for prospective only application and describes when it is appropriate for even these rules to be applied retroactively. The Article also argues that the judicial consideration of temporal issues will bring much needed clarity and transparency to statutory interpretation, as well as potentially causing courts to reexamine their proper role in light of legal realist insights about the nature of statutory interpretation.

Keywords: Statutory Interpretation, Immigration, Jurisprudence, Courts, Legislation

JEL Classification: K10, K19, K30, K39, K40, K49

Suggested Citation

Slocum, Brian G., Overlooked Temporal Issues in Statutory Interpretation. Temple Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1115890

Brian G. Slocum (Contact Author)

University of the Pacific - McGeorge School of Law ( email )

3200 Fifth Avenue
Sacramento, CA 95817
United States
(916) 739-7013 (Phone)

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