Statutory Construction Blog

Glory Days?

I've been working a bit with the patent statute, and it struck me how these statutes -- without that much detail - are probably from a bygone day. They represent, of course, an enormous delegation of authority to the courts to "flesh out" the law. The Sherman Act, perhaps is the most famous of this broad form of law-making grant.

Is it a good development? I'm not sure. Certainly, the amount of ambiguity in the law is lessened when there's a text to look at, rather than only the common law to find and/or predict. Overall, I'm sure that represents a positive in terms of social cost. On the other hand, there's a sort of, I don't know, lack of respect that micromanaging reflects: a lack of trust by Congress that the courts can get it right? Perhaps that message is not implicit, and it's only the benefit that drives Congress? I don't know.

Anyhow, my digging around in the Patent Act made me ponder this issue, again. Thoughts?

I'm on vacation next week, and so will see you all soon.

Oral Arguments in Bilski Under 35 USC 101

Does section 101 permit patenting of "Business Methods"? The Federal Circuit held oral argument over the meaning of this fundamental statute, which you can find here. An article is here.

I understand the political arguments behind restricting the coverage of the statute, but the opinion which led to the current broad understanding (or, at least which confirmed the scope of the statute) isn't that old, and Congress hasn't changed the statute, and there was an enormous hue and cry about the earlier decision, State Street Bank, so....

Your Blogger: Influencing the Law

One of the things that drives me nuts about academia (I practiced for 14 years before coming to teach) is the belief that "law" and "lawyering" are somehow beneath it. You see it in various ways - from a "why should I modernize my casebook to reflect the fact that Shelley's Case was abolished" to "I won't write things for judges and lawyers." My view is quite the opposite: I'm here to train lawyers, not law professors. Many in academia are on that side of the divide, but it's certainly a divide.

Sooo... I was happy when our book, Modern Statutory Interpretation, was just cited in a judicial opinion - the first. It's not on-line yet, but I think it will be here, and it's US v. e-Gold, by Judge Collyer. It's a small snippet, but it was quite gratifying: "see also Linda D. Jellum & David Charles Hricik, Modern Statutory Interpretation: Problems, Theories, and Lawyering Strategies 137 (2006) (stating that "[w]ords in a statute should generally be given their common, ordinary, and accepted meaning")."

I won't rant too much about that other issue -- the division -- since it probably belongs on another blog, but I can't resist: why is it that we teach future interests in property when the vast majority of lawyers won't use them, and there are certainly other topics that teach the same skill sets? Why are our civil procedure books laden with discussions about personal jurisdiction, and so little on summary judgment and discovery? Why do the tort books focus on the common law when so much of tort law has become influenced, if not controlled, by statutes?

Okay, I ranted.

Interesting New Piece ON LINE about Severability

Severability as Judicial Law Making is available here, and was published at 76 Geo. Wash. L. Rev.  639 (2008), and is by David H. Gans.  I was intrigued by this issue when we wrote our stat law book, and his introduction raises some of the issues we ponder:

What is a court doing when it severs the invalid portions of a statute? Is it merely issuing a *640 savings construction or is it rewriting the statute? If the latter, is severability compatible with separation-of-powers principles? How should a court decide whether or not to sever? Should legislative intent be the touchstone? The academic literature, for the most part, does not adequately answer these questions. The literature on the topic is surprisingly limited, with only a handful of articles addressing the doctrine.

New Article of Interest

Although not on its webpage, 32 Wm & Mary Evntl. L. & Pol'y Rev. 427 has an interesting piece on interpreting the "stealth provisions" of the Endangered Species Act by Madeleine June Kass. (Notice that I FIRST told you it wasn't on line, before noting it was interesting!)

Shark Fins and Fishing Boats

I love law.  U.S. v. 64,695 Pounds of Shark Fins reminds me why.

The Ninth Circuit had to address whether a fishing boat that had lot of shark fins on board was a "fishing vessel" under certain federal statutes. A boat used for fishing wasn't a fishing vessel, or at least it wasn't clear enough that it was a fishing vessel, the court unanimously held.

On a more serious note, how many sharks were killed just for that one boat? 

New Articles of Note

Miranda McGowan has posted "Do as I Do, not as I say: An Empirical INvestigation of Justice Scalia's Ordinary Meaning Method of Statutory Interpretation, which is on ssrn here.  The abstract:

Justice Scalia is one of the only American judges to have formulated a complete methodology of statutory interpretation. He contends that the rule of law requires "[s]tatutory construction to begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose." This article presents the results of a study that examined how Justice Scalia's practice of interpreting statutes compares with his theory. Based on a random sample of Justice Scalia's statutory interpretation dissents, this study uncovered the following. First, Justice Scalia entirely suspends textualism in about a quarter of the cases in the study's sample, because he is interpreting a statute that he believes grants the courts common law authority. Second, when Justice Scalia engages in textual analysis, more often than not his presumption that the ordinary meaning of words governs statutory meaning is overcome. He also consults an eclectic set of extrinsic materials - the same broad set of materials that other justices use, with the singular exception of legislative history. Third, purpose analysis lies at the core of Justice Scalia's method, and he considers a statute's purpose about as often as the Court as a whole does. Because Justice Scalia refuses to consult legislative materials, however, his purpose analysis frequently stems from the least formal source of all - his own sense of a statute's purpose or of absurd or anomalous results. This article concludes by observing that compared to ipse dixit purposivism, the evils of legislative history are grossly overstated.

Margaret Lemos has posted "The Other Delegate: Judicially Administered Statues and the Nondelegation Doctrine" here.  The abstract:

The nondelegation doctrine is the subject of a vast and ever-expanding body of scholarship. But nondelegation literature, like nondelegation law, focuses exclusively on delegations of power to administrative agencies. It ignores Congress's other delegate - the federal judiciary.

This Article brings courts into the delegation picture. It demonstrates that, just as agencies exercise a lawmaking function when they fill in the gaps left by broad statutory delegations of power, so too do courts. The nondelegation doctrine purports to limit the amount of lawmaking authority Congress can cede to another institution without violating the separation of powers. Although typically considered only with respect to agencies, the constitutional principles underlying the doctrine apply with full force to delegations to courts. In principle, then, the nondelegation doctrine extends equally to both of Congress's delegates. In practice, matters are more complicated. Despite judicial rhetoric to the contrary, virtually unlimited delegations to agencies long have been tolerated, even welcomed. To the extent the modern Court has enforced the nondelegation doctrine in the administrative context, it has been through narrow statutory construction rather than constitutional decree. The narrow-construction strategy does not make sense as a means of limiting courts' own discretion, however. Nor do the functional arguments that have been offered in defense of a hands-off attitude toward broad delegations to agencies work when applied to courts. Far from justifying nondelegation law's inattention to courts, considerations of institutional structure and capacity suggest the need for careful evaluation of statutes administered by unelected, generalist judges.

To be sure, the features that set courts apart from agencies also may make them particularly valuable delegates in certain areas of the law. The goal of this Article is not to condemn all delegations to courts, but rather to demonstrate that they warrant more attention than they currently receive. There has been a robust debate about the constitutional permissibility and functional desirability of delegations to agencies. We need to have a similar conversation about delegations to courts.

Gregory Sisk has posted "The Continuing Drift of Federal Sovereign Immunity Jurisprudence" here.  The abstract:

With the enduring doctrine of federal sovereign immunity, it is too late in the day to suggest that the United States should be treated as an ordinary party in the federal courts. Yet as the Supreme Court has become more comfortable with the increasingly common encounter with a statutory waiver of immunity, the rigidity of interpretive approach has eased. An early jaundiced judicial attitude has resolved into a greater respect for the legislative promise of relief to those harmed by their government. After sketching the history of statutory waivers over the past century-and-a-half and examining Supreme Court decisions across the decades, this Article maintains that a coherent and principled jurisprudence of federal sovereign immunity has been emerging. Absolute jurisdictional analysis is being reserved for verifying the existence of a statutory waiver for a general class of claims, while strict construction is more judiciously employed to preclude judicial implication of new causes of actions or remedies. By contrast, the Court is more inclined to use ordinary modes of statutory construction when examining other standards, limitations, or exceptions in statutory waivers, even presuming that procedural rules apply in government cases in the same manner as in private litigation. Unfortunately, a recent Supreme Court decision resurrected an old line of cases that translated a statute of limitations for certain claims against the United States into a jurisdictional rule. The Article suggests that the negative effect of this decision on the course of the law, although not negligible, is limited by the decision's reliance on stare decisis. The Article concludes that the Court should speak more purposively to interpretive approach in the future, if the renewed drift in its federal sovereign immunity jurisprudence is to be arrested.

Scott Keller has posted "How Courts Can Protect State Autonomy From Federal Administrative Encroachment " here.  The abstract:

Unlike the federalism cases we were used to seeing from the Rehnquist Court, modern federalism cases won't be a fight over the interpretation of the Commerce Clause or the Tenth Amendment, after Gonzales v. Raich, 545 U.S. 1 (2005), refused to expand the Commerce Clause to protect state autonomy. Instead, modern federalism cases will involve basic statutory construction. The Supreme Court is becoming increasingly interested in cases dealing with the intersection of federalism and statutory construction, as it decided two such cases during the October Term 2007 and has granted cert in two other cases for the October Term 2008. Federalism concerns in statutory construction arise most frequently in administrative law, as modern federal agencies produce an enormous amount of laws.

As a result, the hard questions about federalism now appear in administrative law cases. Courts and commentators are becoming wary of the ability of federal agencies to encroach on state autonomy, given the underenforced constitutional norms of federalism and the nondelegation doctrine. The Supreme Court recently examined the intersection of federalism and administrative law in Gonzales v. Oregon, 126 S. Ct. 904 (2006), but the Court adopted an inadequate approach (Chevron Step Zero) to protecting state autonomy from administrative encroachment.

Instead of using Chevron Step Zero to protect federalism in administrative law, courts should expand federalism-based clear statement canons of statutory construction. Specifically, courts should expand the scope of Gregory v. Ashcroft, 501 U.S. 452 (1991), in the administrative law context to adopt a clear statement canon that applies to administrative interpretations made in areas of traditional state regulation. Such a canon finds support in preexisting clear statement canons and the Supreme Court's continued reliance on the "areas of traditional state regulation" dichotomy. This canon would be a direct, effective approach to protecting state autonomy from administrative encroachment.

Tid Bits

Second Circuit Holds Vienna Convention Creates No Private Right of Action for Certain Violations.  The case, Mora v. New York, is here.  Essentially, the court affirmed dismissal of a complaint alleging that a foreign national was not told that, upon arrest, he had the right under the Geneva Convention to contact his consulate.  Very lengthy opinion that may, of course, have obvious and broader repercussions!

Efforts to Overturn Ledbetter Fail, for Now.  The Washington Post reports how the Senate fell short of overturning the Supreme Court's Ledbetter decision, which made it much more difficult for pay discrimination claims to be brought, and which is discussed below.  In addition, our law review just published a very good note on the case, which unfortunately is not yet on line!

Reader's Interesting Web Page

"Busy Klerk" sent me a link to a webpage of interest, particularly so to students searching for topics to write about, as he focuses on splits in statutory interpretation of specific statutes.  You can find the page here.

Your Blogger at Work

Every so often I get a reporter's call about something, usually to do with ethics or technology/IP, but every so often, it's statutory interpretation. I got such a call a few weeks ago, and the issue involved an Alabama statute that said that, once a city went over 12,000 in population, its mayor could no longer "sit or vote" with the city council. You can read my opinion here, and a subsequent article showing what ultimately happened, here.

It's amazing what the Internet can do - this town is fairly close to Macon, but it could have been across the globe.

Texas Supreme Court Splits on Annexation Statute

In a 5-4 opinion, the Texas Supreme Court in City of Rockwall v. Hughes, 246 S.W.3d 621 (Tex. 2008) split in an interesting case involving municipal power to annex.  A landowner objected to his inclusion in a proposed annexation, and his objection was denied. He then sought arbitration of the dispute, pursuant to the statute in issue, but the City refused to arbitrate. He then filed suit.

The statute provided that if the city "fails to take action" on a petition concerning the proposed annexation, the petitioner "may request arbitration of the dispute."  The Supreme Court split on whether, if the City denies the petition, this was a "fail[ure] to take action" that allowed for a demand for arbitration.

The majority opinion, which relied on the statutory directive in Texas on how to interpret statutes, reasoned that the statute was unambiguous and not absurd: if the City denied the petition, that was that.  There were other, quite limited, means to challenge the denial, but a demand for arbitration was not among them because the city had not "fail[ed] to take action."

The minority opinion disagreed strongly with the majority on the approach to statutory interpretation, stating that it made little sense to interpret the statute to allow for a claim for arbitration only if the City ignored the petition.  "When searching for statutory meaning, words matter -- and so does context" is one of the headings in the dissent.

So, here we have a paradigm dispute over whether one set of judges is being "literal" and the other "contextual" though both purport to apply the plain meaning and avoid absurd results.

In my view, fwiw, the majority got it wrong.  Especially compelling, I thought, was the point that the minority made that the majority's approach largely renders the arbitration provision meaningless and superflous.

Interesting case for far more than the narrow issue involved!

Very Interesting Piece

Treating Like Subdecisions Alike: The Scope of Stare Decisis as Applied to the Judicial Method, by Columbia student Jordan Wilder Connors, published at 108 Colum. L. Rev. 681 (2008). It will soon (they say!) be here. The abstract is tantalizing and relates broadly to Brian's piece, below, and the implied cause of action issue discussed below, too:

The Supreme Court has explained that stare decisis binds the Court to both its result and “those portions of the opinion necessary to [the] result.” Yet the Supreme Court does not seem to extend this principle to those “necessary portions,” herein called subdecisions, that involve methodological questions. For example, when a case rests on a subdecision about whether a Court should consult legislative history in interpreting a statute, the effect of that opinion on future cases is unclear. This Note focuses on stare decisis with respect to subdecisions about statutory interpretation to shed light on the broader issue of the scope of stare decisis. After describing the purpose and operation of stare decisis, this Note examines statutory interpretation subdecisions to determine whether the court gives them precedential effect. It finds that the Court applies stare decisis to some statutory interpretation subdecisions but not others, with no coherent principle explaining the inconsistency. Finally, this Note uses the purposes of stare decisis to argue that the Court should apply it to all statutory interpretation subdecisions.

On my list.

Twenty Thousand Hits!

I've been doing this blog for 8 months or so, and sometimes am quite regular on blogging, sometimes regular, but light on content, and at other times I manage to both blog regularly and provide, I hope, some thoughtful content.

Today, we went over 20,000 hits, which I thought was kind of cool.  I know from e-mails that I've managed to interest a small cabal of regular readers, and hope you have found -- and continue to find -- the blog of interest.

Be well.

Second Circuit with O'Connor Sitting Interprets Fee Shifting Statute

In Arbor Hill v. Albany, __ F.3d __ (2d Cir. 2008), the court in an amended opinion (amending a nearly 1-year old panel opinion!), addressed an award of fees to a successful plaintiff under the Voting Rights Act of 1965.  There's an article about the decision here.  Essentially, the issue was whether lawyers located in the Southern District of New York could base their fees on the rates they would charge in NYC, even though the case was pending in the Northern District of New York.

The case may have broader implications, since it essentially adops a "what would a reasonable client pay" approach to determining fees, abjuring strict reliance on a lodestar or "local lawyer" approach to determining fees.

Two Interesting New Articles on SSRN

Brian Slocum, visiting at Memphis, has posted two quite interesting pieces.  The first is on Temporal Issues in Statutory Interpretation, and is available here on ssrn. This is an issue we touched on in our book, in the Chapter on Implied Causes of Action -- if the Court more readily implied a cause of action when a statute was adopted, rather than today, ought not the more liberal interpretative approach apply?  From the abstract:

There is an important but chronically overlooked problem in statutory interpretation. Courts frequently create and modify the rules of statutory interpretation in common law fashion. They never consider, however, whether these new or modified rules should be applied only prospectively to statutes enacted after the judicial decisions that created or modified the rules. The failure of courts to consider these temporal issues undermines the assumption, fundamental to statutory interpretation, that Congress chooses statutory language in light of established rules of interpretation and thus risks delegitimizing statutory interpretation. Indeed, as this Article illustrates, the Supreme Court's failure to consider these temporal issues has arguably resulted in erroneous statutory interpretations.

Notwithstanding the enormous attention given statutory interpretation by scholars over the past couple of decades (including the proposal and examination of various sophisticated, high-level interpretive methodologies), the temporal issues the retroactive application of new or modified rules of interpretation raises have been virtually ignored in statutory interpretation scholarship. This Article fills the void by providing a theory of when courts should apply new or modified rules only prospectively. Despite the plausibility of an argument that all new or modified rules should be applied only prospectively, the Article argues that only the most powerful rules should be considered for prospective only application and describes when it is appropriate for even these rules to be applied retroactively. The Article also argues that the judicial consideration of temporal issues will bring much needed clarity and transparency to statutory interpretation, as well as potentially causing courts to reexamine their proper role in light of legal realist insights about the nature of statutory interpretation.

The second one is in some ways related, and is entitled The Problematic Nature of Contractionist Statutory Interpretations, and is available here.  Soon available from my old law school, Northwestern, the abstract states:

The main thesis of Daniel B. Rodriguez and Barry R. Weingast's recent article, The Paradox of Expansionist Statutory Interpretations, 101 NW. U. L. REV. 1207 (2007), is important: the voting decisions of legislators can be influenced by the activist statutory interpretations of courts. Specifically, the authors demonstrate that the broad interpretations of progressive legislation made by courts in the 1960s and 1970s undermined the legislative deals struck between ardent supporters of progressive legislation and the moderate legislators necessary for passage of the statutes. Although these expansionist interpretations broadened the reach of important progressive legislation, they had the effect of discouraging moderate legislators from supporting progressive legislation and are partly to blame for the current polarization of Congress and the paucity of such legislation.

Rodriguez and Weingast explain that courts in the 1960s and 1970s were able to achieve expansionist interpretations of progressive legislation by misusing legislative history to support inaccurate conclusions about the intent or purpose of Congress. While the article's insights about expansionist interpretations and the misuse of legislative history are an important contribution to statutory interpretation scholarship, the interpretive mistakes made by courts are largely different now than in the 1960s and 1970s. For some time, the dominant trend has been for judges to rely more on rules of interpretation that typically narrow statutory meaning and less on pragmatic analysis or conclusions about likely congressional intent or purpose. This Essay criticizes the current judicial predilection for contractionist statutory interpretations. The Essay argues that while contractionist interpretations may not discourage moderate legislators from supporting legislation, they are problematic because they are inconsistent with the judiciary's role as faithful agents of Congress.

Brian's a busy guy!