This Note addresses the interpretation of statutes creating civil and criminal liability with identical or nearly-identical language. It illustrates how, if conventional interpretive rules are applied, these “hybrid” statutes can receive a (problematic) path-dependent interpretation: the statute’s meaning will depend on whether an ambiguity first comes to light in a civil or criminal case. However, the most obvious solutions to this problem – applying lenity in all civil cases arising under hybrid statutes and dual construction of identical language – are unsatisfactory. Dual construction is seldom if ever appropriate, because of the descriptive force and normative attractiveness of the consistent usage canons. Moreover, an unthinking application of lenity in all civil cases would seriously impair the operation of many important statutes, and probably frustrate legislative expectations. Instead, this Note argues that language common to the civil and criminal portions of hybrid statutes should, presumptively, be construed both consistently and evenhandedly. In other words, glosses rendered civilly should apply criminally and vice-versa, and the mere existence of a certain level of ambiguity should not presumptively resolve the interpretive question either way.
Issue 1
Why Summary Judgment is Unconstitutional
Summary judgment is cited as a significant reason for the dramatic decline in the number of jury trials in civil cases in federal court. Judges extensively use the device to clear the federal docket of cases deemed meritless. Recent scholarship even has called for the mandatory use of summary judgment prior to settlement. While other scholars question the use of summary judgment in certain types of cases (for example, civil rights cases), all scholars and judges assume away a critical question: whether summary judgment is constitutional. The conventional wisdom is that the Supreme Court settled the issue a century ago in Fidelity & Deposit Co. v. United States. But a review of that case reveals that the conventional wisdom is wrong: the constitutionality of summary judgment has never been resolved by the Supreme Court. This Essay is the first to examine the question and takes the seemingly heretical position that summary judgment is unconstitutional. The question is governed by the Seventh Amendment which provides that “[i]n Suits at common law, . . . the right of trial by jury shall be preserved, and no fact tried by jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” The Supreme Court has held that “common law” in the Seventh Amendment refers to the English common law in 1791. This Essay demonstrates that no procedure similar to summary judgment existed under the English common law and also reveals that summary judgment violates the core principles, or “substance,” of the English common law. The Essay concludes that, despite the uniform acceptance of the device, summary judgment is unconstitutional. The Essay then responds to likely objections, including that the federal courts cannot function properly without summary judgment. By describing the burden that the procedure of summary judgment imposes upon litigants and the courts, the Essay argues that summary judgment is not necessary to the judicial system but rather, by contrast, imposes significant costs upon the system.
The Missing Interest: Restoration of the Contractual Equivalence
The analysis of contract remedies is dominated by Fuller and Perdue’s classification of the interests protected by remedies: expectation, reliance, and restitution. This Article argues that in many instances courts and legislatures award remedies that do not aim at any of these interests, but rather aim at another interest, namely, restoration of the contractual equivalence.
Restoration remedies strive to put the injured party in a position similar to the one she would have occupied had the parties made (and performed) a contract in which their obligations were adjusted to the actual performance by the breaching party, while maintaining the contractual equivalence in terms of the agreed value of performance, the chronological relation between their respective obligations, etc. Thus, for example, restoration remedies may put a buyer in a monetary position similar to the one she would have occupied had the contract referred to a smaller parcel of land, to goods of inferior quality, or to delivery at the (belated) time in which the goods were actually delivered.
The Article demonstrates that restoration of the contractual equivalence is a distinctive goal of contract remedies and explores its relations with the familiar interests. Surveying contract doctrines, it shows that various remedies for partial, defective or delayed performance are best understood as aiming at restoring the contractual equivalence. It argues that protection of the restoration interest is justified by various theories of contract law, including the will theory, corrective and distributive justice, economic efficiency, and contract as cooperative relationship. The Article proposes to make restoration remedies more systematically and generally available to the injured party.