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1995 Wis. L. Rev. 772 (1995)


The Supreme Court has been creating clear statement rules faster than commentators can keep track of them. At their strongest, clear statement rules treat all statutes as maintaining the status quo unless Congress clearly states its contrary intention in the text of the statute. Because clear statement rules "foreclose inquiry into extrinsic guides of interpretation," they eliminate any need—or opportunity—to glean evidence from the structure, purpose, or history of a statute to inform a determination about congressional intent. But the Court has vacillated regarding precisely what Congress must do to satisfy clear statement rules. Sometimes broad general language suffices; sometimes only a statement targeted at a specific problem is demanded. Sometimes the Court considers the text alone; sometimes it looks at other evidence of congressional intent. The Court has not been consistent, nor has it explained its different approaches.

The Court's increased reliance on clear statement rules in statutory interpretation has received a generally unfavorable reaction. Critics of the Court's reliance on clear statement rules have questioned the Court's power to establish such rules and the Court's choice of which values to protect. Most of the academic critics of the Court's recent establishment of clear statement rules are generally dissatisfied with the Court's approach to statutory interpretation. I am especially concerned about the strongest clear statement rules that require specifically targeted statutory language and refuse to consider other indicia of legislative intent. Two originalist concerns animate my reaction: the Constitution does not entrust the judiciary with the responsibility for identifying which policy values merit greatest protection, and interpretive rules that Congress cannot satisfy when drafting a statute conflict with legislative supremacy. The recent evolution of a clear statement rule for the interpretation of waivers of federal sovereign immunity illustrates these points

The Court's embrace of a new approach to construing statutes that waive sovereign immunity affords a useful opportunity to examine the way in which and the reasons why the Court has increasingly turned toward clear statement rules to solve problems of statutory interpretation. Part II of this Article shows how the Court's latest federal sovereign immunity decisions represent a departure from the often conflicting jurisprudence that previously marked the field. Part III places the new sovereign immunity decisions in the context of other recent decisions announcing clear statement rules and the Supreme Court's general statutory interpretation decisions.

I determine that the Court's new clear statement rule for federal sovereign immunity falls short of the goals for which clear statement rules are designed.



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