September 2, 2006
Less Debate in Congress?
I mused below about the fact that my impression was that there is in at least the US House of Representatives a growing use of closed rules, and other procedural devices to stifle debate. The Woodrow Wilson Center has a report, current through the last Congress, of some interesting statistics on bill passage, use of closed rules, and related topics. I was surprised that the statistics weren't more stark.
I won't go political on you, and no doubt there's blame enough to go around, but the tone these days which portrays disagreement with Power as unwise, unpatriotic, or immoral has as its foundation the premise that Power is unerring and all-knowing. That, I thought, was the premise of other forms of govenrment, but not democracy.
Okay, I went a little political. But we've got to get it back to the point where we can debate the merits of ideas, not their source or the motive of their proponent.
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.)
August 31, 2006
CAFA Appellate Deadline Fix?
As noted in an earlier post, one of the first Worst Statutes in the World was a provision of CAFA that literally requires litigants to wait 7 days before appealing certain rulings, but then gives them forever to do so. Professor Adam Steinman subsequently posted an article on SSRN entitled: "'Less' is 'More'? Textualism, Intentionalism, and a Better Solution to the Class Action Fairness Act's Appellate Deadline Riddle." The abstract reads:
In recent months, federal appellate judges have grappled with an interpretive puzzle that opens a new frontier in the long-running judicial and scholarly debate about statutory interpretation. The landmark but controversial Class Action Fairness Act of 2005 (CAFA) authorizes immediate appeals from certain jurisdictional decisions by district courts, provided that litigants appeal "not less than 7 days after entry of the order." Although the goal of this provision was to set a seven-day deadline for CAFA appeals, the statutory text does precisely the opposite--it imposes a seven-day waiting period and sets no outer deadline. Federal appellate judges have disagreed sharply about whether courts may rewrite CAFA to require an appeal not more than seven days after entry of the order, or whether they must instead heed the statute's text and impose no outer deadline for CAFA appeals. This puzzle upsets many of the assumptions and priorities associated with competing theories of statutory interpretation. Textualists, for example, might question whether CAFA deserves their usual skepticism toward unenacted legislative "intent," because CAFA's structure, its legislative history, and common sense confirm that Congress meant to impose a seven-day deadline rather than a seven-day waiting period. But intentionalists (who usually tolerate deviations from a statute's ordinary meaning in order to effectuate Congress's purpose) might balk at reading a statute to mean the exact opposite of what it says. I argue that the judiciary lacks the authority to override CAFA's plain text, regardless of the uniquely reliable evidence that the statute's purpose was to impose a seven-day deadline for CAFA appeals. I then propose a solution to CAFA's riddle that has eluded courts and commentators to date. Although CAFA's plain language imposes no outer deadline, I contend that the Federal Rules of Appellate Procedure require litigants to seek an appeal within 30 days.
As I understand it, he says they have to wait 7 days, but then they only get a total of 30 to appeal. Sort of makes sense except... why on earth would Congress put in a requirement that people have to wait 7 days to file the appeal? Is there anything else like that? (I've never heard of one in patent litigation, for example, but lord knows there's lots of strange things out there.) If the plain text is absurd, and legislative intent shows that the meaning wasn't intended, why not stop there? The debate continues, though the statute remains one of the Worst Statutes in the World!
August 30, 2006
A Statutory Interpretation Reading List?
Over at the Jurisdynamics blog, Professor Jim Chen of the University of Minnesota School of Law wrote up a rudimentary reading list for statutory interpretation. He reccomends several by Eskridge & Frickey, Hart & Sacks, and one I'd never heard of. I'd also add Guido Calebresi's book, A Common Law for the Age of Statutes. While now a bit dated, the historical "tipping point" analysis the book contains is invaluable to understanding why interpretation has become so important.
Of course, you should also read the statutory interpretation book I co-authored!
August 29, 2006
CRS Analysis of Statutory Interpretation
Congressional Research Service in March, 2006 published a 50-page report entitled, "Statutory Interpretation: General Principles and Recent Trends.". It's quite an interesting read and has some observations about Presidential Signing Statements that relate to an earlier post. Here is what CRS wrote:
The nature of the President’s role in vetoing or approving legislation suggests
that little interpretational weight should be given to signing statements. Article I,
section 7, clause 2 provides that, after Congress passes a bill and presents it to the
President, “if he approves he shall sign it, but if not he shall return it, with his
Objections to that House in which it shall have originated, who shall enter the
Objections at large on their Journal, and proceed to reconsider it.” Several
observations about this language are possible.
First, the President is required to set forth "objections" to a bill he vetoes, but
there is no parallel requirement that he set forth his reasons for approving a bill.
Correspondingly, there is a procedure for congressional consideration of the
President’s objections and for reconsideration of the bill following a veto, but no
procedure for congressional response following a signing. Of course, absence of a
constitutionally recognized procedure does not require that the President’s views be
discounted; after all, the Constitution is also silent about committee reports, floor
debates, and other components of legislative history. But such absence does suggest
that the President’s views should be discounted when they conflict with
congressional explanations otherwise entitled to weight. A rule for resolving
conflicts in legislative history provides guidance here. When the two Houses have
disagreed on the meaning of identical language in a bill that did not go to conference,
the explanation that was before both Houses (i.e., the explanation of the originating
House) prevails if the court relies on legislative history at all. The rationale is that
congressional intent should depend upon the actions of both Houses. “By
unanimously passing the Senate Bill without amendment, the House denied the entire
Senate an opportunity to object (or concur) to [its] interpretation.” Similarly,
because Congress has no opportunity to respond to interpretations set forth in signing
statements, courts should not use those interpretations to change meaning.
A second observation about the Constitutional text is that the President has a
choice of approving or disapproving a “bill” in its entirety, and may not disapprove
some portions while approving others. Not only does the President lack a line-item
veto, but Congress can’t grant the President such authority by statute. Giving effect to a signing statement that would negate a statutory provision can be
considered analogous to a line item veto.
The President’s signing statement explanations of bill language may be entitled
to more weight if the President or his Administration worked closely with Congress
in developing the legislation, and if the approved version incorporated the President’s
recommendations. This principle can be applied not only to bills introduced at the
Administration’s behest, but also to bills the final content of which resulted from
compromise negotiations between the Administration and Congress. In such
circumstances, of course, signing statements are used to explain rather than negate
congressional action, and are most valuable as lending support to congressional
Even if presidential signing statements should not be treated as a significant part
of legislative history, they may still affect interpretation as directives to administering
(Footnotes omitted). An interesting analysis -- no doubt, given the growing use of signing statements, we'll some day see if the court deems one president's views of what text means more influential than one legislator's.
The Pioneer Statutory Law Blawg
I'm just getting started, and am slowly looking around at resources, and so on. Many of you reading this have contacted me with information that, eventually, will get rolled into the site (a list of links, and so on, is soon to come).
The original blawg on this topic remains quite a resource. Gary O'Connor gave me a superb model of what a blawg can be.
August 27, 2006
Worst Statute in the World for August 27, 2006
Again with a nod to Keith Olbermann for the idea, this week's worst statute in the world is not one statute, but a conglomeration: statutes dealing with medical assistance payments, state and federal. Why pick these out of the many? Well, because I'm the editor, is the short answer.
But, if justify myself I must, it struck me that these statutes are supposed to be directed to (or at least provide assistance to or define how to provide assistance to) our neediest members of society. You'd think they'd be, as a result, fairly user friendly.
Cutting against that, of course, is the fact that there are lawyers involved. Lawyers come up with ways to get benefits to people that Congress really didn't want to benefit, and so Congress (and the legislatures) are constantly modifying and amending the set up in order to keep at least up with the lawyers.
The result was best described in a couple recent opinions, which I just love:
In an effort to prevent circumvention of Medicaid requirements, the Medicaid statutes are constantly evolving and have been revised repeatedly, causing consternation to providers, applicants, lawyers and judges. The following excerpt captures this sentiment:
"There can be no doubt but that the statutes and provisions in question, involving the financing of Medicare and Medicaid, are among the most completely impenetrable texts within human experience. Indeed, one approaches them at the level of specificity herein demanded with dread, for not only are they dense reading of the most tortuous kind, but Congress also revisits the area frequently, generously cutting and pruning in the process and making any solid grasp of the matters addressed merely a passing phase." Rehabilitation Ass'n of Virginia v. Kozlowski, 42 F.3d 1444 (4th Cir.1994).
Johnson v. Guhl, 91 F.Supp.2d 754, 758 (D.N.J.2000). Wisconsin Supreme Court Justice Shirley S. Abrahamson echoed this theme in her concurrence in Tannler, 211 Wis.2d at 191, 564 N.W.2d 735 (footnote omitted):
Anyone who works with medical assistance statutes begins by appreciating that the federal and state statutes are extremely complex and may fairly be described as incomprehensible. The statutes are characterized by ambivalence and ambiguity, by a confusing mix of means-tested programs and entitlements, and by uneasy compromises among different and often conflicting policies.
Estate of Gonwa ex rel Gonwa v. Wisconsin Dept. of Health & Family Serv., 668 N.W.2d 122 (Wis. App. 2003).
The state and federal medical assistance statutes: officially incomprehensible and so today's Worst Statute in the World!