August 26, 2006
Shakespeare on Statutory Construction
At last my life has come full circle, as the knowledge I gained as an undergrad English major at the University of Arizona finally has meaning to statutory interpretation. Justice Stevens wrote this view of the Bard on Statutory Interpretation.
9th Circuit Issues First Impression of Fair Debt Collection Act
One provision of the Fair Debt Collection Practics Act provides:
A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section ....The Ninth Circuit recently became the first appellate court to decide that this section contained an intent requirement: it was not enough for the representatin to be false, it had to be knowingly false. Clark v. Capital Credit & Collection Serv. Inc. 2006 WL 2441705 (9th Cir. 2006).
(2) The false representation of--
(A) the character, amount, or legal status of any debt; or
(B) any services rendered or compensation which may be lawfully received by any debt collector for the collection of a debt.
Without first saying that the text was ambiguous, the court relied on dictionary definitions and "holistic" methods of interpretation to reach its conclusion. It's quite a good read, in that the court ultimately relies on the purpose of the statute (though it calls it intent -- to reign in abuse by debt collectors), as well as what it deems to be a "windfall" that would accrue were intent not required as an element of this statute. It is, in the main, a conclusion, first, and and a rational search for meaning, second.
August 24, 2006
Presidential Powers and Statutory Interpretation
A provocative article by Professor Neil Kinkopf entitled, The Statutory Commander in Chief, was just published at 81 Indiana L.J. 1169 (Fall 2006) as part of a symposium on "War, Terrorism, and Torture: Limits on Presidential Power in the 21st Century." While many of the articles in the symposium looked at the issue from the perspective of constitutional law, Professor Kinkopf examined, quite thoughtfully, the role of statutory interpretation. A snippet:
Whatever purchase the case for deference might have in the context of judicial interpretation, it has little relevance to internal executive branch interpretation. Legal interpretation is not an abstract exercise; it typically involves the construction of one or more provisions of law in the context of a (more or less) specific set of facts. As with judicial interpretation, it is appropriate for executive branch lawyers to defer to the factual findings of others, including the President, within the executive branch. With respect to matters of law, however, it would be nonsensical to claim that the executive branch should defer to its own interpretation of the law.It's an interesting piece. I couldn't find the article on line, but it is on Westlaw and, I assume, Lexis.
Those who urge deference seem to be advocating judicial deference. But the distinction between executive branch interpretation and judicial interpretation is not made explicit, and this can contribute to an important problem. It may lead executive branch lawyers to view their role as making whatever argument may plausibly be available to support the assertion of power that the President wishes to make. This is one conception of how OLC operated in rendering the Torture Memo. The competing conception is that executive branch lawyers--particularly when they act as ex ante counselors rather than ex post litigators--should follow their best understanding of what the law demands and forbids. Where the executive branch follows the latter model, the case for deference to its legal interpretations is at least coherent. Where it follows the former model, claims of deference not only are incoherent--there is no actual legal determination for the judiciary to defer to--the application of deference would undermine the rule of law because the executive branch would no longer be bound by legal constraints, only by the limits of its lawyers' imaginations.
August 23, 2006
As noted below, I read John Dean's book recently, and I've read other books and articles, all of which tend to show that Congress has become a much less deliberative body: bills are brought to the floor without the ability to amend, and on short notice, much more often than in the past.
What's the cost? Obviously, we lose compromise, which seems to be simply gone for now (sigh, but for another blog). I wonder also if the cost of this is illustrated by bills like the bankruptcy act, and others, which are not given the thorough review that, seemingly, laws once received not too long ago.
Just an early morning musing.
August 22, 2006
COMPLETELY NUDE WE BARE ALL
I bet that will spike the hits for this week!
The Eighth Circuit has struck down a statute that heavily regulated billboards like that one. In Passion Video, Inc. v. Nixon, the court struck down a statute that would have prohibited billboards for adult businesses within one mile of a highway, reversing the district court's conclusion that it was a permissible regulation of commercial speech. The statute didn't simply prohibit statements that are, to say the least, awkward to explain to children, but went so far as to preclude even putting up the name of the business (though, come to think of it, sometimes even those are hard to explain to children).
For reaction, go to this story over at law.com. The state will apparently seek en banc rehearing before seeking cert., and the legislature is pondering a different tact as well.
August 21, 2006
Unconstitutional Retroactive Statute
Florida courts have twice now declared a statute relating to asbestosis unconstitutional as applied retroactively. As reported over at law.com, a Florida statute was enacted that required courts to dismiss claims of asbestosis plaintiffs who failed to provide detailed medical histories. The statute applied not just prospectively, but to already-filed lawsuits. In response to a defense motion to dismiss based upon the statute, the plaintiffs argued that retroactive application -- to cases pending on the July 2005 effective date of the act -- violated the due process clauses of the Florida and federal constitutions.
So far, two district judges have agreed, holding that it violated the plaintiffs' vested rights to do so.
I had the experience of litigating this issue under the Texas Constitution some years ago (not in the asbestosis context, but close enough), and the courts' reaction to existing cases seems to be correct. Of course, this raises the whole question of severability, and I'm sure years of litigation in Florida.