GAARs and the Nexus between Statutory Interpretation and Legislative Drafting: Lessons for the U.S. from Abroad

2015 ◽  
Author(s):  
Reuven S. Avi-Yonah ◽  
Amir Pichhadze
Keyword(s):  
Statutory Interpretation ◽  
The U.S

The court as a spectrum regulator: will there be a European analogue to U.S. cases NextWave and GWI?

2003 ◽  
Vol 4 (2) ◽  
pp. 149-167 ◽  
Author(s):  
Patrick S. Ryan
Keyword(s):  
Supreme Court ◽  
Supreme Court Decision ◽  
Spectrum Management ◽  
Court Decision ◽  
Statutory Interpretation ◽  
European Context ◽  
Bankruptcy Code ◽  
A Company ◽  
The U.S

The January, 27, 2003 U.S. Supreme Court decision, FCC v. NextWave was, on the surface, nothing more than the high court's statutory interpretation of a single provision of the Bankruptcy Code. Deep down, however, NextWave tells an important spectrum management and regulatory story which is relevant in both the U.S. and European contexts. It is the story of a company which paid too much for wireless licenses at auction, and a story about a battle – political as well as legal – between government and industry for retention of the license. This same struggle is presently taking place in Europe in the wake of the 3G auctions. This Article reviews the recent NextWave decision and makes propositions about similarities in the European context.

scholarly journals GAARs and the Nexus between Statutory Interpretation and Legislative Drafting: Lessons for the U.S. from Canada

2016 ◽  
Vol 7 (1) ◽  
Author(s):  
Reuven S. Avi-Yonah ◽  
Amir Pichhadze
Keyword(s):  
Supreme Court ◽  
Tax Avoidance ◽  
Federal Court ◽  
Supreme Court Of Canada ◽  
Statutory Interpretation ◽  
Discretionary Power ◽  
The Supreme Court ◽  
The Us ◽  
Court Of Appeal ◽  
The U.S

Abstract Rules targeting specific known schemes are not the only tools available in the battle against tax avoidance. Legal systems also use measures that apply generally. The U.S. for example has tended to rely heavily on general doctrines. One such doctrine which is discussed in part 2 of this chapter is the “economic substance” doctrine. Yet as Xiong and Evans recently pointed out “although such judicial doctrines can be used to deal with various aspects of complicated tax abuse judges tended sometimes to limit and sometimes to enlarge the scope of jurisprudential interpretation leading to substantial uncertainty and risk.” One way to limit the discretionary power of judges and overcome the uncertainty apparent in their judgments is by formalizing the doctrines as the US has done by codifying the “economic substance” doctrine in 2010. As explained in part 2 of this chapter a limitation of the “economic substance” doctrine whether it is established judicially or codified by statute may be its focus on the taxpayer’s intentions as the basis for attacking tax avoidance. Part 3 of this chapter goes on to explain that the U.S. could overcome this limitation by adopting a statutory General Anti-Abuse Rule (“GAAR”). GAARs also impose generally applicable limits on what constitutes acceptable (reasonable) tax arrangements. But they do so based on whether the arrangements are consistent with the legislature’s intentions as they were conveyed in the tax provision which the taxpayer is relying on for achieving the tax advantage in question. As Canada’s Federal Court of Appeal (“FCA”) explained “by confining legitimate tax avoidance to schemes that are not inconsistent with the policy underlying the statutory provision invoked by the taxpayer GAAR effectively limits the scope of the principle in Commissioners of Inland Revenue v. Duke of Westminster… that ‘[e]very man is entitled if he can to order his affairs so that the tax attaching under the appropriate Acts is less than it would otherwise be’.” Based on Canada’s experience with the GAAR parts 4 and 5 identify and explain the nexus between statutory interpretation and legislative drafting and the implications of this nexus on the application of a GAAR in the U.S. should Congress choose to take this route. Part 4 identifies that while the Supreme Court of Canada (“SCC”) has recognized the need to apply a purposive interpretation of Canada’s GAAR in order to ascertain parliament’s intentions in the relevant tax provision the court has also held that it will only give effect to those intentions which were clearly conveyed by the relevant provision and will not invent a legislative intention which parliament has failed to convey. Part 5 notes that such judicial restraint has also been taken by the U.S. Supreme Court and therefore a similar approach could be expected by the U.S. courts should Congress adopt a GAAR. Therefore it would be up to Congress as it is similarly up to Canada’s Parliament to carefully and clearly draft its legislative intentions otherwise the effectiveness of a GAAR would be undermined.

scholarly journals Clashing Canons and the Contract Clause

2021 ◽  
pp. 147
Author(s):  
T. Leigh Anenson ◽  
Jennifer Gershberg
Keyword(s):  
Pension Reform ◽  
Legal Reasoning ◽  
Public Pension ◽  
State Court ◽  
Statutory Interpretation ◽  
State Constitutions ◽  
Government Employment ◽  
Profound Influence ◽  
The U.S

This Article is the first in-depth examination of substantive canons that judges use to interpret public pension legislation under the Contract Clause of the U.S. Constitution and state constitutions. The resolution of constitutional controversies concerning pension reform will have a profound influence on government employment. The assessment begins with a general discussion of these interpretive techniques before turning to their operation in public pension litigation. It concentrates on three clashing canons: the remedial (purpose) canon, the “no contract” canon (otherwise known as the unmistakability doctrine), and the constitutional avoidance canon. For these three canons routinely employed in pension law, there has been remarkably little research on their history, evolution, or impact. This study spotlights the methodology that underlies these diverse and complicated judgments. Illuminating actual judicial practices lets us better comprehend when, how, and why these canons function. It puts us in a position to choose the most appropriate canon(s) and to offer improvements on their operation. It also allows us to relate the role of canons to other kinds of legal reasoning. Significantly, studying these canons fills a void in state statutory interpretation as well as contributes to a better understanding of state court enforcement of the Contract Clause that has received scarcely any attention.

Historical Introduction

1977 ◽  
Vol 35 ◽  
pp. 2-5
Author(s):  
R. D. Heidenreich
Keyword(s):  
Electron Emission ◽  
Secondary Electron ◽  
Secondary Electron Emission ◽  
50Th Anniversary ◽  
Secondary Emission ◽  
Wave Nature ◽  
Nobel Prize In Physics ◽  
Primary Electrons ◽  
The U.S ◽  
Mutual Agreement

This program has been organized by the EMSA to commensurate the 50th anniversary of the experimental verification of the wave nature of the electron. Davisson and Germer in the U.S. and Thomson and Reid in Britian accomplished this at about the same time. Their findings were published in Nature in 1927 by mutual agreement since their independent efforts had led to the same conclusion at about the same time. In 1937 Davisson and Thomson shared the Nobel Prize in physics for demonstrating the wave nature of the electron deduced in 1924 by Louis de Broglie.The Davisson experiments (1921-1927) were concerned with the angular distribution of secondary electron emission from nickel surfaces produced by 150 volt primary electrons. The motivation was the effect of secondary emission on the characteristics of vacuum tubes but significant deviations from the results expected for a corpuscular electron led to a diffraction interpretation suggested by Elasser in 1925.

Variations in Surface Textures of Quartz Sand using Electron Microscopy

1970 ◽  
Vol 28 ◽  
pp. 494-495
Author(s):  
Eugene J. Amaral
Keyword(s):  
Electron Microscopy ◽  
Glass Industry ◽  
Glass Slide ◽  
Distilled Water ◽  
Early Paleozoic ◽  
Secondary Effects ◽  
Surface Textures ◽  
High Silica ◽  
Sand Deposit ◽  
The U.S

Examination of sand grain surfaces from early Paleozoic sandstones by electron microscopy reveals a variety of secondary effects caused by rock-forming processes after final deposition of the sand. Detailed studies were conducted on both coarse (≥0.71mm) and fine (=0.25mm) fractions of St. Peter Sandstone, a widespread sand deposit underlying much of the U.S. Central Interior and used in the glass industry because of its remarkably high silica purity.The very friable sandstone was disaggregated and sieved to obtain the two size fractions, and then cleaned by boiling in HCl to remove any iron impurities and rinsed in distilled water. The sand grains were then partially embedded by sprinkling them onto a glass slide coated with a thin tacky layer of latex. Direct platinum shadowed carbon replicas were made of the exposed sand grain surfaces, and were separated by dissolution of the silica in HF acid.

The Effects of Estradiol on Chronically Damaged Human Fallopian Tubes: A SEM Study

1985 ◽  
Vol 43 ◽  
pp. 648-649
Author(s):  
A. Toledo ◽  
G. Stoelk ◽  
M. Yussman ◽  
R.P. Apkarian
Keyword(s):  
Menstrual Cycle ◽  
Epithelial Cell ◽  
Secretory Cell ◽  
Estrogen Therapy ◽  
Fallopian Tubes ◽  
Cell Surfaces ◽  
Proliferative Phase ◽  
Cyclic Patterns ◽  
Sem Study ◽  
The U.S

Today it is estimated that one of every three women in the U.S. will have problems achieving pregnancy. 20-30% of these women will have some form of oviductal problems as the etiology of their infertility. Chronically damaged oviducts present problems with loss of both ciliary and microvillar epithelial cell surfaces. Estradiol is known to influence cyclic patterns in secretory cell microvilli and tubal ciliogenesis, The purpose of this study was to assess whether estrogen therapy could stimulate ciliogenesis in chronically damaged human fallopian tubes.Tissues from large hydrosalpinges were obtained from six women undergoing tuboplastic repair while in the early proliferative phase of fheir menstrual cycle. In each case the damaged tissue was rinsed in heparinized Ringers-lactate and quartered.

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