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Lifting the Blindfold from Lady Justice: Allowing Judges to See the Structure in the Judicial Code

Gregory C. Sisk

University of St. Thomas School of Law (Minnesota)

February 23, 2009

Florida Law Review, Vol. 62, 2010
U of St. Thomas Legal Studies Research Paper No. 08-21

Two centuries ago, Chief Justice John Marshall wrote that "[w]here the mind labours to discover the design of the legislature, it seizes every thing from which aid can be derived." Yet for more than half-a-century, Congress has forbidden judges to use the evidence of their own eyes when interpreting the federal Judicial Code. In what will come as a surprise to most readers, Congress has directed judges to ignore the plainly visible structure of logically organized parts and chapters with identifying headings into which statutory sections have been placed since the 1948 enactment of Title 28 of the United States Code.

In an uncodified provision, Congress instructed that "[n]o inference of a legislative construction is to be drawn" by the location of a section in a particular chapter in Title 28 nor by the "catchlines" for parts, chapters, and sections. By this little-known and half-hidden section, the brightly-lit profile of the Judicial Code is withdrawn into jurisprudential darkness.

In the sculptures and statues that ornament our courthouses, the Roman goddess Justicia often is portrayed with the sword of justice in one hand, the scales for weighing just desserts in the other hand, and a blindfold across her eyes symbolizing her lack of preferential favor for any person. While blindfolded to ward against the corruption of personal partiality, the assumption remains that Lady Justice can still see the law clearly with the eyes of the mind. But when the legal mind has been clouded by abstruse legislation, the blindfold must be raised so that the visible contours of the law come into sharper relief.

Half-a-century of legislatively-imposed blindness on the federal judiciary is more than enough. The time has long since passed to retire this mischievous provision, to introduce transparency in interpretation of the provisions collected in Title 28, and to let the light shine upon the carefully designed structure of the federal Judicial Code.

Number of Pages in PDF File: 36

Keywords: legislation, statutory interpretation, judicial code, practice and procedure, federal courts, jurisdiction

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Date posted: May 14, 2008 ; Last revised: March 23, 2010

Suggested Citation

Sisk, Gregory C., Lifting the Blindfold from Lady Justice: Allowing Judges to See the Structure in the Judicial Code (February 23, 2009). Florida Law Review, Vol. 62, 2010; U of St. Thomas Legal Studies Research Paper No. 08-21. Available at SSRN: https://ssrn.com/abstract=1131797

Contact Information

Gregory C. Sisk (Contact Author)
University of St. Thomas School of Law (Minnesota) ( email )
MSL 400, 1000 La Salle Avenue
Minneapolis, MN Minnesota 55403-2005
United States
651-962-4892 (Phone)

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