Citation metadata

Author: Pat McDonell
Date: Feb. 2021
From: Michigan Law Review(Vol. 119, Issue 4)
Publisher: Michigan Law Review Association
Document Type: Article
Length: 15,502 words
Lexile Measure: 1790L

Document controls

Main content

Article Preview :

Clarifications are a longstanding but little-studied concept in statutory interpretation. Most courts have found that clarifying amendments to preexisting statutes bypass retroactivity limitations. Therein lies their power. Because clarifications simply restate the law, they do not implicate the presumption against retroactivity that Landgraf v. USI Film Products embedded in civil-statute interpretation. The problem that courts have yet to address is how exactly clarifying legislation can be distinguished from legislation that substantively changes the law. What exactly is a clarification? The courts' answers implicate many of the entrenched debates in statutory interpretation. This Note offers three primary contributions. First, it summarizes the existing doctrine of clarifications as it has been established in the federal circuits and highlights the important implications of their approaches. Second, it argues that clarifications are an important tool for courts and lawmaking bodies. Third, it provides a more intelligible taxonomy for courts to use, including specific factors that ought to guide their determination of whether an amendment clarifies the law.

INTRODUCTION I. THE DOCTRINE OF CLARIFICATIONS A. Navigating Retroactivity: Clarifications and Substantive Changes B. Liquilux, Landgraf, and the Beginning of Clarification Doctrine C. The Clarification Doctrine in Federal Courts II. COMPLEXITIES AND CHALLENGES IN CLARIFICATION DOCTRINE A. Functionalist and Formalist Approaches to Clarifications B. Clarifying the Interpretive Problems 815 III. TOWARD A CONSISTENT DOCTRINE OF CLARIFICATIONS A. The Purpose of Clarification Doctrine B. Clarifying the Doctrine of Clarifications CONCLUSION


Actress Ashley Judd, a central figure in the #MeToo Movement, (1) filed suit against film producer Harvey Weinstein in April 2018. (2) Judd alleged that she had been repeatedly harassed by Weinstein and passed over for a possible role in The Lord of the Rings movies because she refused his advances. (3) In her lawsuit, Judd stated that Weinstein violated California law by making a sexual quid pro quo within a professional relationship, offering to help establish Judd's Hollywood career in exchange for sex. (4) A federal judge, however, dismissed the claim on an obscure legal technicality: an amendment that expressly covered Judd and Weinstein's relationship was a substantive change to the existing law rather than a clarification. (5)

Judd's argument relied on a new bill that amended California Civil Code [section]51.9, a law that forbids harassment in certain professional relationships. (6) The new bill added "[director or producer" to the list of professions expressly covered by the law. (7) The bill's proponents cited concerns with harassment in the film industry and even named Harvey Weinstein. (8) The legislative history of the amendment stated that "this bill's explicit mention of [producer-actor] relationships is almost certainly declaratory of existing law." (9) Thus, Judd claimed, the legislature merely clarified that the law applied to cases like hers going back to its original enactment. (10)

Judd's argument is grounded in a longstanding but little-studied legal principle, the doctrine of clarifications. (11) Suits over whether an amendment clarifies or changes the law occur infrequently, but when they do, the outcomes can carry powerful consequences. The central issue of such lawsuits is...

Source Citation

Source Citation   

Gale Document Number: GALE|A653597003