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September 9, 2006

An interesting critique of Textualism

I hadn't seen this: The Immorality of Textualism by Professor Andrei Marmor. This exerpt from the abstract captures it:

Textualism is typically presented by its adherents as an interpretive practice that is motivated by respect for democracy and respect for the authority of the legislature. But in fact, textualism's preoccupation with ordinary meaning and literal application of statutes is motivated by constraining the legislature's ability to pursue broad regulatory policies. Authorities do not want to be understood literally. Authorities purport to govern, and governance requires cooperation in the spirit of its goals, not strict adherence to the letter of its directives.

Okay, I'll note criticisms of the other approaches for a while. Maybe it's just because I'm a political and social liberal, though, but the predominant view that textualism is so grand strikes me as an authoritarian view, and it bugs the heck out of me.

September 9, 2006 in Current Affairs | Permalink | Comments (0) | TrackBack

September 8, 2006

Ninth Circuit Split Proposed - Again

Apparently there will be another run at splitting the Ninth Circuit.  A group opposed to it has a fairly extensive discussion here.

A group of law professors are opposing the effort.  The text of a letter they're going to send around the middle of September is below.  I believe that if you are a law professor and want to add your name, you should e-mail Professor Zygmunt Plater at Boston College: [email protected]

Text of the letter:

September __, 2006

To Members of the United States Senate and House of Representatives:

The undersigned law professors write to urge that Congress reject current proposals that would split the boundaries of the Ninth Circuit Court of Appeals.

While our ranks include professors belonging to both major political parties, we wish to emphasize that the basis for our position is not partisan, but grounded in the belief that a circuit split would be unnecessary, costly and inefficient.

The split proposal that is being considered by the Senate Judiciary Committee this month would leave the current Ninth Circuit with just California, Hawaii, Guam and the Northern Mariana Islands, and create a new Twelfth Circuit comprised of Arizona, Nevada, Idaho, Montana, Oregon, Washington and Alaska.

Dividing the court isn't necessary.  To be sure, the Ninth Circuit bears the most cases of any federal appellate court (about 16,000 new cases were filed this year, versus 1,300 in the D.C. Circuit; the next highest is the Fifth Circuit, which includes Texas, with 9,300).  But it also has more judges than any other circuit in the country and appears to face no problem of a quality or magnitude any different than those faced by any other court.

For example, although it has a much higher caseload, the real measure of whether too much pressure harms quality is the number of cases decided and opinions written by each judge. On this score, Ninth Circuit judges appear to write opinions and dispose of cases at the average for all federal appeals court judges.  Although critics have alleged conflicts of decisional law within the Ninth Circuit, there is no serious evidence of such a conflict; indeed, the circuit's active use of its en banc review process (when the Court sits in groups larger than its standard three-judge panels) has effectively resolved precisely such conflicts.  And although supporters of a split often cite statistics involving U.S. Supreme Court reversal of the Ninth Circuit, it must be remembered that the Ninth Circuit decisions selected for Supreme Court review reflect a minuscule fraction (approximately 0.3 percent) of those cases decided by the Ninth Circuit in any given year.

Nor does a split make sense from a budgetary perspective.  Dividing the Ninth Circuit would require the creation of an additional costly bureaucracy to administer the new circuit, eliminating the economies of scale achieved by a single administration.  Furthermore, a split would require expenditures for expanded courthouses and administrative buildings. The Administrative Office of the U.S. Courts estimates start-up costs of almost $100 million and annual recurring additional costs of almost $16 million.

Finally, a split would result in judicial inefficiency.  A “new” Ninth Circuit comprised of California and Hawaii would maintain 72 percent of the caseload, but only 60 percent of the judges.  Such a circuit would yield 536 cases per judge, moreover, contrasted with 317 cases per judge in the proposed Twelfth Circuit.  These statistical disparities in fact understate the true extent of the inequity resulting from a circuit split, given that the more than 600 death penalty cases originating in California are enormously time-consuming for judges and at present can be divided amongst all Ninth Circuit judges.

In our country's history, there have been only two instances in which a circuit was divided, and both times -- unlike at present -- the division was supported by a substantial majority of the judges and attorneys who were to be affected by the division. The Ninth Circuit judges themselves believe a circuit split to be a bad idea. Only three of the active judges (out of 26) on the Ninth Circuit support the breakup.  The state bar associations that have voted on the idea – Alaska, Arizona, Hawaii, Montana, and Washington, -- all oppose it.  California's present and former governors Arnold Schwarzenegger, Gray Davis and Pete Wilson; California's senators Dianne Feinstein and Barbara Boxer; Arizona Governor Janet Napolitano and former Washington State Governor Gary Locke, and many other public officials oppose a division of the Ninth Circuit.

We thus believe that splitting the Ninth Circuit is unwise and urge you to vote against any such split.


[Titles and Schools listed for identification purposes only]

[The letter has at least 15 pages of signatories as of September 7]

September 8, 2006 in Current Affairs | Permalink | Comments (0)

September 7, 2006

Genentech v. MedImmune: The Statutory Issue

Dennis Crouch over at patently-o has posted on his great blog the briefs filed in a patent case soon to be heard in the Supreme Court.  The Court and parties believe the issue is whether there is Article III jurisdiction over a declaratory judgment action brought against the licensor of a patent by the licensee where the licensee is still paying royalties, and so on.  There were lots of amicus briefs, and I wrote one in which I argued on behalf of several law professors that Congress had simply not enacted statutes that granted this jurisdiction -- the Article III issue isn't to be reached.  He posted all the briefs, including my brief which focused principally on statutory interpretation.  Others mention the statutory issue, too.  I'm betting that my position wins 5 votes... Stay tuned!

September 7, 2006 in Current Affairs | Permalink | Comments (0) | TrackBack

September 6, 2006

Chevron, OIRA, and Rulemaking

I stumbled across a recent, interesting article on ssrn for anyone interested in Chevron deference (the deference that courts give to agency interpretations of statutes).  Professor Lisa Heinzerling of Georgetown Law Center wrote a piece entitled Statutory Interpretation in the Era of Oira.  She explains that in recent years a department of the OMB has given statutes that relate to particular agencies (e.g., the EPA), its own interpretation, and, to use her words, has "foisted" its interpretation of the statute on them.  Her point:  this is not entitled to Chevron deference, since the reason for the deference -- administrative expertise -- is not implicated when it's OIRA and not the agency itself interpreting the statute.  The article is soon to be published, and is quite an interesting read.  In some ways, it echoes the "signing statements" discussion below.

September 6, 2006 in Current Affairs | Permalink | Comments (4) | TrackBack

September 5, 2006

Worst Statute in the World for September 5, 2006

This one was easy, but obscure.  In some circumstances, a prevailing claimant who brings a claim under the Longshore and Harbor Workers' Compensation Act is entitled to recover attorneys' fees.  33 U.S.C. 921(a) & (b).  The latter wins this week's award.

That subsection states that if an employer pays benefits to an employee without an award,

and thereafter a controversy develops over the amount of additional compensation, if any, to which the employee may be entitled, the deputy commissioner or Board shall set the matter for an informal conference and following such conference the deputy commissioner or Board shall recommend in writing a disposition of the controversy.  If the employer or carrier refuse to accept such written recommendation, within fourteen days after its receipt by them, they shall pay or tender to the employee in writing the additional compensation, if any, to which they believe the employee is entitled.

33 U.S.C. §  928(b).  If the employee then does not accept the employer's offer and then relies on an attorney and comes to obtain compensation greater than that offer, an attorney-fee award is appropriate. 

Id.  Makes sense in that it encourages informal settlement and reasonable offers and acceptances, both of which are the purpose of the LWHCA.

Then the statute met the courts.  The circuit split on the meaning of this provision has turned it into a minefield for plaintiff's lawyers, has placed form well over substance, and will result in formality and expense.

In the most recent case interpreting what this provision required, for example, in a 2-1 decision a Sixth Circuit panel held that a plaintiff could not recover attorneys fees unless: "(1) an informal conference addressing the disputed additional compensation;  (2) a subsequent written recommendation suggesting a disposition of the controversy;  (3) the employer's rejection of the recommendation;  and (4) the claimant's use of an attorney to secure an award of compensation greater than the amount the employer was willing to pay."  Pittsburgh & Coneaut Dock Co. v. Director, Office of Workers' Compensation Programs, 456 F.3d 616 (6th Cir. 2006).  In that case, the written recommendation had not included a specific amount to dispose of the case -- specifically because the parties were negotiating settlement, and so any recommendation would interfere with settlement.  It was undisputed, however, that all of the other "elements" were present.  Despite that, the majority held that the plaintiff was not entitled to attorney's fees.

If you're a fan of statutory construction, you'll love it.  The majority relied on precedent from the 5th and 4th Circuits, but the dissent convincingly demonstrated those cases were, at best, inapposite and that in fact those circuits had interpreted the statute inconsistently.  But the really good part comes from the 9th Circuit.  That circuit had relied on legislative history to conclude that the statute didn't require all those steps.  But, both the majority and the dissent in Pittsburgh & Conneaut agreed that the 9th Circuit had misread the legislative history.

Why, then, did the dissent find that the majority had erred in its plain meaning interpretation?  Because it held that, not only did the plain language of the statute not support the majority's interpretation, but the majority's conflicted with the underlying purpose of the LWHCA, and so led to an absurd result.

So, where we are:  in a statute that's supposed to help informal settlement of these cases, we have judges disagreeing on the plain meaning in one circuit; we have another circuit incorrectly reasoning that the legislative history requires a certain meaning; and we have, overall, a split in the circuits.  The net result, of course, is going to be more formal proceedings and, no doubt, more litigation.

Today's Worst Statute in the World!

September 5, 2006 in Current Affairs | Permalink | Comments (0) | TrackBack

September 4, 2006


President Bush has announced the following appellate court nominations:

In addition, the financial reports of the Supreme Court Justices are in.  As reported by Tony Mauro over at law.com, the forms show:

The article I thought somewhat unfairly called them a "millionaires club."  Given that most are quite senior, these totals seemed comparatively modest.

September 4, 2006 in Current Affairs | Permalink | Comments (0) | TrackBack

September 3, 2006

Michigan Supreme Court Issues Interesting Opinion

(Sorry for the goofy margins -- I'm still new at this. Trust me, it's worth the inconvenience.).

In Cameron v. Auto Insurance Club Ass'n., __ N.W.2d __ (Mich. July 28, 2006), the
Michigan Supreme Court issued an interesting statutory interpretation
opinion with dissents. That court is probably one of the more explicit, open and (at
times) contentious courts on the question of which approach to statutory
interpretation is "best" and why.

In Cameron, the plaintiffs' 10-year old son was injured, and later
they (for themselves and him) brought suit for no-fault insurance benefits. However, to defeat recovery of some of the damages, the defendant relied upon a statute that provided
that the "claimant may not recover benefits for any portion of the loss
incurred more than 1 year before the date on which the action was

In response, the plaintiffs argued that the claim on their son's behalf had been tolled because
their son had been a minor when the incident had occurred. A tolling
provision provided:

[I]f the person first entitled to make an entry or bring an action under this act is under 18 years of age or insane at the time the claim accrues, the person or those claiming under the person shall have 1 year after the disability is removed through death or otherwise, to make the entry or bring the action although the period of limitations has run.

Sounds like a pretty simple case. And, in fact, an appellate court, in
a previous decision referred to by this court as Geiger, had held that the one year tolling provision applied, and so a minor could sue for no fault benefits so long as suit was filed within one
year of the minor's 18th birthday. Seems plain and simple.

But, not so before the Michigan Supreme Court. Despite these simple facts, fairly direct statute, and prior precedent interpreting the statute, the case resulted in an entire series of
opinions on the result and proper interpretation. The
majority opinion reversed the appellate court's holding that the tolling
provision applied, and explained:

In reaching this conclusion the Court of Appeals, looking behind the language of the statute and focusing on its understanding of the Legislature's purported intent, determined that the legislative purpose behind the minority/insanity tolling provision for periods of limitations was to preserve not only a person's cause of action during the period of disability but also the person's damage claims. It opined that to not read the statute in this fashion would "severely limit the utility" of the minority/insanity tolling provision. The Court then concluded that, "[i]n order to advance the policy of RJA § 5851," the minority/insanity tolling provision applies to prevent the capping of damages under the one-year-back rule of MCL 500.3145(1).

We believe this ruling was erroneous for the most uncomplicated reason;
namely, that we must assume that the thing the Legislature wants is best
understood by reading what it said. Because what was said in MCL
500.3145(1) and MCL 600.5851(1) is clear, no less clear is the policy.
Damages are only allowed for one year back from the date the lawsuit is
filed. We are enforcing the statutes as written. While some may question
the wisdom of the Legislature's capping damages in this fashion, it is
unquestionably a power that the Legislature has under our Constitution.
Thus, because Geiger's conclusion that the minority/insanity tolling
provision applies to extend the one-year-back rule is contrary to what
the Legislature clearly directed in MCL 500.3145(1) and MCL 600 .5851(1),
Geiger is overruled.

Because we conclude that the minority/insanity tolling provision in MCL
600.5851(1) does not apply to the one-year-back rule in MCL 500.3145(1),
we find it unnecessary in this case to reach the broader question whether
the legislative amendments in 1993 PA 78 limit the applicability of the
minority/insanity tolling provision to causes of action for which the
applicable statute of limitations is set forth in the RJA. Because the
Court of Appeals unnecessarily addressed this broader issue, its holding
in this regard is vacated.

The majority opinion was accompanied by a number of other opinions, some of which found the majority's interpretation to be absurd, since it meant that the tolling provision would never apply. On that point, one justice wrote about what "absurd" meant, and the comments are interesting:
This Court lacks the authority to alter a statute simply because it is confident that such alteration will better fulfill some supposed purpose. While I believe that this Court has an obligation to avoid genuinely "absurd results," a statute that is simply less well-crafted than a judge believes it could have been is not for that reason "absurd." Something is "absurd" as a matter of law, justifying the extraordinary remedy of judicial reformation, only if it is "utterly or obviously senseless, illogical, or untrue; contrary to all reason or common sense; laughably foolish or false." Random House Webster's College Dictionary (1991). Justice Scalia has described results as being "absurd" when they are "unthinkable," "bizarre," or "startling." Green v. Bock Laundry Machine Co., 490 U.S. 504, 527, 109 S.Ct. 1981, 104 L.Ed.2d 557 (1989) (Scalia, J., concurring); City of Columbus v. Ours Garage & Wrecker Service, Inc., 536 U.S. 424, 450 n. 4, 122 S.Ct. 2226, 153 L.Ed.2d 430 (2002) (Scalia J., dissenting). He has described a statute as "absurd" when it "cannot have been meant literally," or when it "cannot rationally ... mean" what it seems to mean. Green, supra at 528.
Then there were the dissents. I cannot do them justice here (ha ha), but the first argued that the statutes conflicted, and so needed to be harmonized. In that effort, the dissent wrote:
These definitions suggest that when a minor's or incompetent's "claim" is saved by MCL 600.5851(1), it is that person's demand for monetary relief and right to obtain it that is preserved.

It is worth noting that it would be ironic indeed for the Legislature to
have set a trap for these particular groups of people and to have
disguised the trap as a protective measure. But that is exactly what the
majority's holding implies. For when one would choose to rely on the
clear promise of the saving provision that one's claim is preserved until
one year after the disability is removed, one would come to find that, in
certain circumstances, the saving provision has actually extinguished the
claim, not saved it. See n 6 of this opinion.

Given the above, I would conclude that when the Legislature enacted the
saving provision, it indeed intended to save the whole of the disabled
person's claim, not merely a severely devitalized right to bring the
claim. Without the saving provision, those who are judicially precluded
and deemed incapable of protecting their own legal rights would be denied
access to justice, so I find this conclusion unchallenging. Insureds who
are of age and possess full mental faculties are, understandably, deemed
capable of filing suit within a time frame that would preserve their
right to recover all damages owed to them. MCL 500.3145(1). If an insured
nonetheless waits to file suit, the Legislature has seen fit to limit the
insured's ability to recover damages to the year preceding the lawsuit.
Id. This is the price that is exacted when an insured, presumably capable
of filing suit in a manner that would preserve the entirety of his
damages, does not do so.

Finally, Justice Weaver found that the plain text did nto support the
majority's interpretation, and that it created an absurd result. In his
analysis, he also saw fit to write at length about textualism. In part he

A brief review of Justice Scalia's book reveals that his views are marked by internal inconsistencies. Justice Scalia's main thesis with regard to statutory construction is that "[t]he text is the law, and it is the text that must be observed." Scalia, supra at 22. He asserts that what the legislature meant as opposed to what it actually stated in the language of a statute is immaterial. Id. at 22-23, 599 N.W.2d 102. However, Justice Scalia acknowledges that one of the "sound principles of interpretation" is the interpretative doctrine of lapsus linguae (slip of the tongue) or "scrivener's error," where from the very face of the statute "it is clear to the reader that a mistake of expression (rather than of legislative wisdom) has been made." Id. at 20, 599 N.W.2d 102.

As an example, Justice Scalia refers to a statute stating "defendant"
when only "criminal defendant" makes sense. Id. I agree that the
scrivener's error canon of construction is an appropriate tool in
determining legislative intent. But intellectual honesty requires an
acknowledgement that it involves a departure from the actual language
used by the Legislature or by Congress.

In a similar vein, Justice Scalia defends the use of traditional canons
of construction that he states are often associated with textualism,
including the canons expressio unius est exclusio alterius (expression of
one thing implies exclusion of others) and ejusdem generis (limiting
general language to items of the same sort as contemplated by specific
language). Id. at 25-27, 599 N.W.2d 102. I certainly believe that
traditional canons of construction such as these are not only
appropriate, but are often extremely helpful tools in ascertaining
legislative intent.

However, it must be acknowledged that they are not typically required by
the statutory text itself. Rather, it may be fairly understood that the
Legislature expects and intends the judiciary to employ well-established
canons of construction in construing statutes. Thus, it cannot reasonably
be concluded that using the canons of construction accords with a rigid
adherence to applying the text of a law without regard to actual
legislative intent.

In our book, we found a lot of wonderful cases where the Michigan Supreme
Court was fighting -- passionately -- about what many perceive to be
esoteric issues involving statutory interpretation. If anyone knows why
that Court is so prolific in this area, and so passionate, I'd love to

September 3, 2006 in Current Affairs | Permalink | Comments (4) | TrackBack