Statutory Construction Blog

Enrolled Version of Military Commissions Act of 2006

It is available here.  I've not yet had a chance to digest it.  Thoughts?

Here is a video of Jack Cafferty (of CNN) talking about a part of it.

Dr Seuss Please Fix the Bankruptcy Code

In re Riddle let Judge Cristal invoke Dr. Seuss in a plea to fix BAPCA (a previous winner of Worst Statute in the World).  In part, his opinion reads:

"I do not like dismissal automatic,
It seems to me to be traumatic.
"I do not like it in this case,
I do not like it any place.
"As a judge I am most keen
to understand, What does it mean?
"How can any person know
what the docket does not show?

"What is the clue on the 46th day?
"Is the case still here, or gone away?
"And if a debtor did not do
what the Code had told him to
and no concerned party knew it,
"Still the Code says the debtor blew it.
"Well that is what it seems to say:
the debtor's case is then 'Oy vey.'

"This kind of law is symptomatic
of something very problematic.
"For if the trustee does not know
then which way should the trustee go?
"Should the trustee's view prismatic
continue to search the debtor's attic
and collect debtors' assets in his fist
for distribution in a case that stands dismissed?
"After a dismissal automatic
would this not be a bit erratic?

"The poor trustee cannot know
the docket does not dismissal show.
"What's a poor trustee to do --
except perhaps to say, 'Boo hoo!'

"And if the case goes on as normal
and debtor gets a discharge formal,
what if a year later some fanatic
claims the case was dismissed automatic?

"Was there a case, or wasn't there one?
"How do you undo what's been done?

"Debtor's property is gone as if by a thief,
and debtor is stripped but gets no relief.
"I do not like dismissal automatic.
"On this point I am emphatic!
"I do not wish to be dramatic,
but I cannot endure this static.
"Something more in 521 is needed
for dismissal automatic to be heeded.

"Dismissal automatic is not understood.
"For all concerned this is not good.
"Before this problem gets too old
it would be good if we were told:

"What does automatic dismissal mean?
"And by what means can it been seen?
"Are we only left to guess?
"Oh please Congress, fix this mess!
"Until it's fixed what should I do?
"How can I explain this mess to you?

"If the Code required an old fashioned order,
that would create a legal border,
with complying debtors' cases defended
and 521 violators' cases ended,
from the unknown status of dismissal automatic,
to the certainly of a status charismatic.
"The dismissal automatic problem would be gone,
and debtors, trustees and courts could move on.

"As to this case, how should I proceed?
"Review of the record is warranted, indeed.
"A very careful record review,
tells this court what it should do.
"Was this case dismissed automatic?
"It definitely was NOT and that's emphatic.

"Based upon the court's review, the court has determined that the debtors have complied with the information requirements of 11 U.S.C. Section 521(a)(l).

"Accordingly, it is ordered:

"1. This case is not subject to automatic dismissal under 11 U.S.C. Section 521(i)(l) or (2).

"2. If any party in interest has any reason to contest the Court's finding that the debtors have filed all information required by 11 U.S.C. Section 521(a)(l), that party shall file a motion for reconsideration not later than 20 days from the date of the entry of this order, and serve such motion on the trustee, the United States Trustee, debtors and debtors' counsel, if any. The motion should specifically identify the information and document(s) required by 11 U.S.C. Section 521(a)(l) that the debtors have failed to file.

"Nothing in this order shall excuse the debtors' duty to cooperate with the United States Trustee and the trustee assigned to this case, and shall not prevent the United States Trustee or case trustee from requesting by any authorized means, including, but not limited to motion, that the debtors supply further information."

Ninth Circuit Issues First Impression of Fair Debt Collection Practices Act

In Clark v. Capital Credit & Collection Serv., Inc., 460 F.3d 1162 (9th Cir. 2006), a debtor in writing advised a debt collector not to contact him further.  Despite that, the debtor called a debt collector and asked for information; the debt collector returned the call.  That simple fact pattern led to a lengthy opinion about whether the debt collector's return phone call violated the FDCPA.

The Ninth Circuit issued an opinion of first impression interpreting 15 USC 1962c(c), which provides that if a consumer advises a debt collector in writing not to communicate with the debtor further, the debt collector "shall not communicate further with the consumer with respect to such debt."  All three judges held that a consumer could waive the act's protections, but disagreed on precisely the scope of waiver.

Worst Statute in the World for September 27, 2006

Again with a nod to Keith Olbermann...

This is one I've known about for many years, and wrote about in my first book, Law School Basics. It's a Texas penal statute (V.T.C.A., Government Code § 3101.010) that provides in full:

(a) A person commits an offense if the person causes pecans to fall from a pecan tree by any means, including by thrashing, unless the tree is located on:

(1) land owned by the person causing the pecans to fall;
(2) privately owned land, and the person causing the pecans to fall has the written consent of the owner, lessee, or authorized agent of the owner or lessee;
(3) land owned by the state or a political subdivision of the state and in the boundaries of a municipality, and the person causing the pecans to fall has written consent from an officer or agent of the agency or political subdivision controlling the land or from the mayor of the municipality; or
(4) land owned by the state or a political subdivision of the state and outside the boundaries of a municipality, and the person causing the pecans to fall has written consent from an officer or agent of the agency or political subdivision controlling the property or from the county judge of the county.

(b) An offense under this section is a misdemeanor and on conviction is punishable by:

(1) a fine of not less than $5 or more than $300;
(2) confinement in the county jail for a term not to exceed three months; or
(3) both a fine and confinement.

So, if you come on a friend's land in Texas and, with their oral consent, you knock down some pecans, it's the pen for you! It sets a trap!

Texas's anti-thrashing statute... which creates a traps for friends to snare their pecan-loving friends is today's Worst Statute in the World...

Statutes are Statutes

Raymond Lesser writes a column for a wonderful monthly newspaper I get, called The Funny Times. In his latest column (which will soon be, but is not yet, here) in the October issue, Lesser publishes a piece called "rules are rules" where he collects and discusses various regulations and statutes, as well as just "rules" that supposedly exist. Sadly, I used Westlaw and couldn't fine any of them actually codified. It'd be wonderful if we had a statute that actually did prohibit people from wearing fake mustaches to church, for example. Still, a funny column about rule.

Upcoming Supreme Court Term

On this link you'll find NPR's take on the upcoming Term.

The orders issued by the Court on September 26 are available here. They've already summarized them on scotusblog, and at least one consolidated case (petitions for cert are here and here) (involving an interpretation of the Federal Truth-in-Lending law) appears to implicate statutory interpretation.

Eskridge & Dynamic Interpretation

I've begun to read William N. Eskridge's book, Dynamic Statutory Interpretation.  In the first chapter, he does an extremely persuasive job of explaining why purposivism, imaginative reconstruction, textualism, and intentionalism fail as "archeological" methods to determine statutory meaning.  To use his phrase, none of those approaches "satisfactorily describe what courts and agencies do in statutory interpretation."  (48)

I'm about to explore the rest of the book, but had a thought to raise.  Perhaps, just perhaps, there is a sliding scale that those judges who are not anchored to one approach are using.  In other words, judges will apply text when it's clear, but if it's not or if it seems like an odd (absurd or something less than that) result, they will tend to look to other sources (intent, purpose) for meaning?  So far, that's lurking around in the back of my head as I read the book, which is quite interesting, if you haven't read it.

As an aside, I finished co-authoring our book last year. I was determined to read, almost entirely, cases rather than articles talking about cases, in order to draw my own conclusions as to what the courts were doing.  The book's full of those cases, and the interesting, and I think exciting, thing that the cases from Michigan (and other states) that I'll discuss here are that often they are cases where the judges are expressly struggling with the various theories of interpretation.  It is, I think, a most interesting and important debate.

Last Post about Torture Until we Have a Bill

This is to the side, but I'd received several e-mails on the "torture" issue, including one that pointed to an interesting article regarding ethics and the original "it's not torture" memos of a while back.  It is here

On to other things, until we get a bill to discuss.

Torture Debate: Leg History?

Here's a fun thought experiment.

According to this article in the Boston Globe, only a handful of members of the House and Senate know what the CIA is doing, and know what is, or isn't "torture" under the Geneva Convention. ``I don't know what the CIA has been doing, nor should I know," said Senator Jeff Sessions, an Alabama Republican. (There's a bumber sticker to be made.)

According to many, the language of the Convention is vague. Yet, from what I've seen of the bill, often the convention language is tracked in the bill. (More to come about that, once we don't have a moving target.)

So, how does a court interpret it? Does it rely on statements from legislative history, which (if the Globe is correct) are not based upon any understanding of the facts? If the language is vague (no plain meaning), and if there is no legislative history that means anything...? Do we just end up with a vague criminal statute, so it can't be enforced anyway? Hmmm...

Just a Sunday morning musing.