Sunday, October 14, 2007

leges posteriores priores contrarias abrogant

Leges Posteriores Priores Contrarias Abrogant: This method of statutory construction applies to 2 statutes. The concept of this stature is the newer statute later abrogates a prior statutes only where “the two are manifestly inconsistent
with and repugnant to each other.”

The rationale for this form of construction is that the newer statute more accurately depicts the current societal mood. (Note, societal mood is crudely written, and can be replaced by what the reader believes law, or the concept of law to be). The best example of this form of statutory construction is found in the Koran where alcohol consumption is mentioned 3 times: Mohammed first states drinking alcohol is allowed; Mohammed then states alcoholic consumption should only be done in moderation, and finally; Mohammed completely forbids alcoholic consumption. The rationale for Mohammed's three different edicts can be ascribed to three different periods of exposure to the affects of alcohol on his followers, and reduces alcoholic consumption to nothing based on the negative effects of drunkeness. As such, the rule is that alcoholic consumption is prohibitted in Islam, despite the fact the Koran expressly has three different rules.

This form of statutory construction is very useful. However, its applicability is limited to how specific the two different statutes are. If the subject matter of these two statutes (or more statutes) specifically overlap, this form of statutory construction applies - (i.e. above Koranic text on alcohol consumption - can be extended to other items in the Koran as well).

However, this form can be quite tricky. It is not always clear whether the facts of a situation apply to 2 different statutes, and often require the discretion of the person applying Leges Posteriores Priores Contrarias Abrogant.

For example, in RADZANOWER v. TOUCHE ROSS & CO. ET AL. 426 U.S. 148, the United States Supreme Court was asked to determine "which venue provision controlled in the event a national banking association is sued in a federal court for allegedly violating the Securities Exchange Act of 1934: the broad venue provision of the Securities Exchange Act, which allows suits under that Act to be brought in any district where the defendant may be found, or the narrow venue provision of the National Bank Act, which allows national [426 U.S. 148, 150] banking associations to be sued only in the district where they are established."

"The petitioner, Hyman Radzanower, instituted a class action in the District Court for the Southern District of New York alleging, inter alia, that the respondent, First National Bank of Boston, a national banking association with its principal office in Boston, Mass., had violated the federal securities laws by failing to disclose to the Securities and Exchange Commission and the investing public its knowledge of certain adverse financial information about one of its customers, the TelePrompter Corporation, and of securities laws violations by that company."

At issue was whether the petitioner could sue the Bank in the SDNY under the more recently created Securities Exchange Act, or was resticted to sue in Massachussetts under the National Bank Act which restricted the scope of lawsuits against banking institutions only to the geographic jurisdiction they were formed in.

Ultimately, the court decided that the suit was limited to Massachussettes. The court reasoned that one should look at the intentions of the statutes in determining the applicability of this statute. The court states that: "The primary purpose of the Securities Exchange Act was not to regulate the activities of national banks as such but "[t]o provide fair and honest mechanisms for the pricing of securities [and] to assure that dealing in securities is fair and without undue preferences or advantages among investors . . . ." H. R. Rep. No. 94-229, p. 91 (1975)" The court further states "The 1934 Act was enacted primarily to halt securities fraud, not to regulate banks. Indeed, banks were specifically exempted from many provisions of the securities laws, and Congress almost contemporaneously enacted other specific legislation dealing with the problems arising from banks' involvement in the securities business."

As can be seen above, the USSC decided to that the two laws covered different subject matter, and that the facts of the case did not warrant the the use of Leges Posteriores Priores Contrarias Abrogant. However, it is easy to see that the court could have gone the other way, and stated that the functions of the bank were not strictly done in a banking nature, and that Leges Posteriores Priores Contrarias Abrogant would apply in this case as the Bank's functions in the Securities capacity as opposed to a banking function.