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September 1, 2006

Practitioners and Academics Caring About Interpretation

A few months ago, a criminal defense lawyer wrote a piece that gave a nice overview of statutory interpretation for practitioners, and summarized the debates over textualism, etc. John May "Statutory Construction: Not for the Timid" in the Jan/Feb 2006 Champion, which is a publication of the National Association of Criminal Defense Lawyers.

This evoked quite a response from another practitioner. In part, he wrote:

In the course of his article, May remarked that “much of the academic writing [on the topic of statutory interpretation] is so theoretical as to be useless to the practitioner and one suspects to the courts as well.”

That remark, of course, is where Mr. May crossed the line. Every American law professor has a God-given, inalienable right to publish theoretical, useless articles. If Mr. Justice Douglas were still alive, he could surely find that fundamental right somewhere in the fog-shrouded penumbra of the Bill of Rights. Seriously, though, occasionally theory is important. This is one of those occasions. It is critical for the modern criminal defense attorney to realize that this is not your grandfather’s plain meaning approach to statutory interpretation. Rather, this is textualism, a new school of statutory interpretation, which differs markedly from both the traditional plain meaning approach and the once dominant legal process approach to statutory construction.

After that point, he then gave a very interesting and informed critique of textualism as compared to the plain meaning rule. It's an interesting read, and ought to help to enforce the connection between theory and practice that many students demand. This stuff matters, not just to us eggheads, but to criminal defense lawyers. (Given their jab at us, I'll jab back and say: so, the interest covers the full spectrum of intellects! That's a joke!!!)

In additition to this debate, I thought Mr. May had a wonderful passage which may be a very useful notion (and a surprising one!) when teaching students this skill set:

By far the most exciting part of a defense lawyer's practice is parsing the words of a criminal statute to uncover its latent ambiguity. Nothing, not an impassioned plea for the life of the accused, not a cross-examination that reduces the government's lead witness to tears, comes close to the excitement that comes from demonstrating the lawfulness of a defendant's conduct from the placement of an adverb in a sentence. Few realize the spark that inspired many of the giants of our profession occurred during those sessions at the black board (def. antecedent of white boards involving the use of chalk against a slate surface) in elementary school where sentences were de-constructed under the admiring gaze of our classmates. Little did we know that our facility with parallel and vertical lines identifying the subject from the predicate and showing which clauses modified which phrases would become so valuable later in our professional lives.
Amazingly, there are still lawyers practicing who fail appreciate the beauty of the poorly drafted statute; who eschew examination of the crime charged, failing to appreciate the obfuscation that led their client astray. It is to those lawyers that this primer is directed.

Mr. May might have called his article, "In Praise of Poorly Drafted Statutes" had he known of James Agee's classic. (If you haven't read Agee's book, with its photographs by Walker Evans, you ought to.)

September 1, 2006 in Current Affairs | Permalink


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