THE DOCTRINE OF CLARIFICATIONS.

• Author: McDonell, Pat

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 INTRODUCTION

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 retroactivity. (12) Clarifications restate what the law has always been and are not limited by presumptions against the retroactive application of new laws. (13) Under Judd's argument, Weinstein could be held liable even though the amendment was passed years after the relevant conduct.

The judge disagreed and held that the amendment changed the law. He concluded that the 2018 California legislature was limited by the intended scope of the original enactment and that the amendment could only apply to producer-actor relationships going forward. (14) Those harassed by Weinstein and other Hollywood figures would have to seek relief on different grounds. (15)

Clarification doctrine is an increasingly relevant, but controversial, legal principle. With retroactivity in the balance, courts' interpretations have determined the validity of wrongful termination claims of corporate whistleblowers, (16) allegations of discrimination against former servicemembers, (17) and a suit about whether Rolling Stones songs infringed on copyright protections. (18) As exemplified in Judd v. Weinstein, the central question in clarification-doctrine cases is how to determine whether an amendment clarifies. But that simple question hides a complex analysis that courts have yet to fully develop. Answering it requires a two-part inquiry: First, did the enacting body intend to clarify the existing law? And second, does the amendment restate, rather than change, the original enactment? (19) Those questions in turn provide fertile ground for debates on statutory construction and the proper amount of deference to legislative bodies' interpretive rules regarding prior enactments.

By failing to adopt a uniform analysis, courts have created difficulties for legislative staff drafting new laws and for litigants trying to determine whether those laws affect their interests. The courts have also muddied our understanding of the legislature's power to direct courts and agencies as to how to interpret prior statutes. Clarity is in order.

This Note explores the clarification doctrine and proposes a framework for consistent analysis of legislative amendments. Part I explains the constitutional background for the doctrine and the varying applications that exist in federal courts. Part II highlights the major issues with the doctrine, including implications for the separation of powers and divergent approaches on what evidence should be considered when a court decides whether an amendment clarifies the law. Part III discusses why the doctrine is useful and proposes a new analytical framework for clarification analysis based on how the amendment is labeled, whether the amendment resolves or attempts to resolve a defined ambiguity, and the amendment's consistency with preenactment interpretations of prior law.

1. THE DOCTRINE OF CLARIFICATIONS

   When a legislative body or agency amends a prior enactment, the amendment serves one of two purposes. The amendment either changes the substantive content of law or amends the previous language without actually changing the law's meaning. Clarifications are part of this latter category. (20) They are a kind of interpretive directive, telling courts that an alteration in the language of a statute or rule does not indicate legislative intent to change the law. (21) Courts, as interpreters of the law, decide whether amendments are substantive changes or clarifications to the statute; (22) however, they sometimes struggle to distinguish between the two. Usually, the distinction is apparent--the statutory text expressly labels the new law as a change that only takes effect upon being signed into law or on a specified future date. (23) At the margins, however, amendments can make adjustments that seem within the bounds of the original law. (24)

   Section LA. outlines the retroactivity issues implicated by the distinction between change and clarification. Section I.B. discusses the presumption against retroactivity and the beginnings of a doctrine of clarifications being formed around it. Section I.C. explains the different approaches that federal courts have taken to distinguish clarifications from substantive changes.

   A quick note on vocabulary: This topic requires unusually careful usage of certain terms, most notably forms of "clarify" and "change." For clarity (you see the problem), this Note generally uses "clarification" to mean a nonsubstantive alteration to the text of the law. "Change" means a substantive alteration of what the law means. This Note also aims to use "amendment" as a neutral term that simply means that the text was altered, with no implication of whether the law was changed. A second issue arises from the fact that clarification doctrine applies to both statutes and regulations. (25) For the most part, this Note deals with clarifications generally and does not dwell on the differences between legislatures and agencies as lawmaking bodies. Therefore, "enacting body," "legislature," and "legislative body" are used interchangeably to refer to both actual legislatures and agencies acting in a lawmaking capacity.

   Finally, the terms "retrospective" and "retroactive laws" can cause confusion. (26) In this Note, retrospective laws are simply laws that apply to a period before their enactment. Clarifications are necessarily retrospective because they apply back to the original enactment that they clarify. Retroactive laws, however, not only apply to preenactment events but also change the legal consequences of those events. (27) "True" clarifications, therefore, are never retroactive because they are simply restatements of the law with no new legal consequences. Therefore, the doctrine of clarifications could be restated as a means of deciding whether application of an amendment is retroactive or merely retrospective.

   1. Navigating Retroactivity: Clarifications and Substantive Changes

      Retroactivity concerns lurk around the often-hazy distinction between changes and clarifications. Common law has, for good reason, historically distrusted retroactive lawmaking. (28) Constitutional limitations enshrined in the Ex Post Facto, Takings, Due Process, and Contract Clauses reflect that distrust. (29) In the criminal context, retroactive laws vitiate the deeply held belief that fair notice of the law is a prerequisite to punishment for its violation. The Ex Post Facto Clause upholds the notions that people should be given fair warning of the law in order to structure their actions and that the government should be...