The Doctrine of Clarifications

Pat McDonell*

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.

* J.D., May 2021, University of Michigan Law School. Thank you so much to my family, friends, and amazing editors: the Notes squad, the Student Scholarship Workshop, Nina Mendelson, Brian Remlinger, and the amazing team at MLR. Thank you to Maggie Mantel for help and support and to my brother, Christopher, of whom I am always so proud. I am honored to be published alongside my good friend, Hanna Rutkowski—here’s to making the second weekend.