October 6, 2006
For First Time in Nearly 100 Years, Tax Statute Unconstitutional
Over at our sister TaxProfBlog, they report that the government isn't happy about the conclusion that a tax statute was unconstitutional -- apparently, the first such holding in 85 years. Hopefully, the holding indicates a trend of things to come! :-)
October 5, 2006
John Yoo's take on the Military Commissions Act of 2006
You can find an article and commentary on npr.
(To support NPR, click here.)
Interesting Recent Articles on SSRN
Bizarro Statutory Interpretation, by James Darink Prenkart:
Abstract: In Smith v. City of Jackson, the Supreme Court applied to the Age Discrimination in Employment Act one of its decisions interpreting Title VII of the 1964 Civil Rights Act, which Congress had overridden with the Civil Rights Act of 1991. It treated Wards Cove Packing Co. v. Atonio, dealing with disparate impact theory and burdens of proof, as a binding interpretation of the ADEA, despite that Congress expressed disapproval of Wards Cove. The Court relied on two interpretive approaches to arrive at this result: the presumption that identical language in the ADEA and Title VII should be interpreted consistently and the strong presumption of statutory stare decisis. This convergence of circumstances led to the odd result of duplicating the congressionally disfavored Wards Cove interpretation.
I use the comic book story of Bizarro, Superman's imperfect duplicate, as an allegory for the Smith Court's flawed invocation of statutory stare decisis to duplicate Wards Cove, labeling it Bizarro statutory stare decisis. None of the justifications for the regular presumption of statutory stare decisis supports the result in Smith. Furthermore, Bizarro statutory stare decisis interferes with the proper balance of power between Congress and the Court and implicates the countermajoritarian difficulty of elevating the Court's interpretations over Congress's expressed preferences. The paper explores other contexts in which Bizarro statutory stare decisis could wreak havoc.
Finally, I present an alternative to Bizarro statutory stare decisis. In situations like Smith, the Court should not treat an overridden interpretation as binding precedent, but should interpret the statute before it as a matter of first impression. In doing so, an overridden interpretation should not be duplicated without clear textual, purposive, or historical evidence that the overridden interpretation is more appropriate this time around. The paper concludes by applying this alternative to Smith and explaining why Wards Cove should never have been revived.
The Effects of Framing on Statutory Interpretation in Cyberlaw: A Detailed Study of Davidson v. Universal Associates, by Michael Christopher Riley:
The objective of this essay is to investigate the processes of argument and resolution in cyberlaw cases, and to analyze the growing phenomenon of framing in this context, through a close examination of one recent federal appellate case, Davidson v. Universal Associates. Framing and other features of cyberlaw transform the process of judicial resolution of cases by changing the importance of different types of argument. While I do not fully address the normative implications of this transformation, there is reason to believe that it is problematic in that it does not reach the right solution as a matter of equity and that it weakens the rule of law.
In this article, I attempt a phenonmenological analysis of Justice Antonin Scalia’s hermeneutics of textualism and originalism. The prism for the analysis is the later philosophy of Wittgenstein, as interpreted by Saul Kripke. I argue first that the objective of textualism and originalism is to constrain the parameters of interpretation. However, I argue that this is simply impossible, for several reasons. First, I argue that Kripke’s ‘skeptical paradox’ establishes rule indeterminacy, and second, even if I am wrong, Wittgenstein’s later philosophy simply rejects the notion of rule-following that is central to Justice Scalia’s hermeneutics. I conclude by sketching a pragmatic conception of what judges actually do in deciding cases, drawing on Dewey, James, and Posner.
Kelo Inspires State Statutes & Referenda
In addition to choosing their elected officials, the Christian Science Monitor has an interesting article about voter referenda seeking to create constitutional or statutory limitations on state power to take property, in reaction to the Kelo decision. The article discusses some of the existing problems or issues created by existing legislation, as well. Strange mixture of bedfellows being created by that issue.
October 4, 2006
Chief Justice Roberts, AG Gonzales on Judicial Independence
This article in the American Lawyer, and available here on law.com, is interesting. Mr. Mauro notes that during the conference at which both Justice Roberts & AG Gonzales spoke, "the House Judiciary Committee endorsed a bill that would create an inspector general to oversee disciplinary complaints against federal judges -- an idea that was bitterly criticized in corridor discussions throughout the conference."
Seventh Circuit Interprets "Membership in a Social Group" in 8 USC 1101(a)(42)(A)
"To qualify for asylum, a person must prove that he has been persecuted (or fears persecution) on one or more of the grounds listed in 8 U.S.C. § 1101(a)(42)(A). One of these grounds is 'membership in a social group.'" That phrase was what Judge Posner then addressed writing for a unanimous Seventh Circuit panel in Sepulveda v. Gonzales, which is an interesting read involving agency interpretation and a smart, analytical judge.
Andrew McCarthy on the Torture Bill
Andrew McCarthy came out supporting the torture bill (link to the final engrossed version is below) in an essay on-line here.
It's interesting to see how polarized this issue is becoming, and to see political debate about legal issues. I don't know Mr. McCarthy, at all, but he characterizes anyone who criticizes the bill as a "human rights activist." I suppose so, but some would say that's what our Founding Fathers were. "Damn activist bill of rights."
I'm obviously pointing out that reason might just be what this country needs a dose of, not rhetoric. I'm not sure that sort of stuff -- from me, you, or them -- helps further discussion of serious, serious issues. I'll only point out, again (take note that it's again, Mr. Rice), that I'm not an expert in the area of international rights, let alone the Geneva Convention, but wonder if a lot of Mr. McCarthy's defense lacks substance. For example, he argues that the detainees have a right to appeal their incarceration. From what I can tell, though, that appeal is limited to the DC Circuit and is limited to pure questions of law, and there must be deference to the legal conclusions of the military court, which bind even the Supreme Court. From what I can tell, he's wrong. From what I can tell --let me emphasize that. I lack the expertise to fully understand who's precisely right, but this discussion needs to be about the substance, not name calling.
Oral Argument in Lopez About Raising Glasses Raises Eyebrows
There's a report here on law.com that during oral argument in one of the cases yesterday, Justice Scalia made a remark that some took offense to concerning the Hispanic litigant in the case. (The oral argument was in the consolidated cases of Lopez v. Gonzales, No. 05-547 and Toldeo-Flores v. U.S., No. 05-7664, both of which analyze whether something that's a misdemeanor under federal law, but a felony under state law, is an "aggravated felony" under the Immigration and Nationality Act and thus a deportable offense.)
The transcript of the oral argument for the Lopez/Toldeo-Flores case is here.
October 3, 2006
Supremes to Interpret Patent Statute?
Dennis Crouch thinks the Supreme Court might take a look at 35 USC 271(f). I hope he's right, because as I mentioned earlier this statute has been gummed up by the Federal Circuit, big time. Maybe they'll get it fixed and eliminate some incredible uncertainty about the scope of this statute.
MedImmune Oral Argument - Wednesday
Oral argument in an appeal involving subject matter jurisdiction of the federal courts in the MedImmune v. Genentech decision is Wednesday. I wrote an amicus in the case arguing, one, that the court oughtn't reach the constitutional question raised because the pertinent statutes do not give the courts authority over the particular dispute (whether a licensee of a patent can sue for a declaration of invalidity while still paying licensing fees -- i.e., without a case or controversy, you'd think), and that even if the statutes authorize jurisdiction, for either jurisprudential or other reasons the court should decline declaratory judgment jurisdiction because it would lead to less licensing and less patenting.
I was almost a lone wolf on the statutory issue (one of the respondents wrote a bit about it, but nearly everyone else went right to the constitutional or juriprudential issues, and several law professors were, um, critical of my argument). I'm curious to see if my instincts about this Court are right and that the lack of a clear statute will make them stop.
Or, I could be completely wrong. I've been known to be that way on occasion. You can read an article about the case, where I was nicely quoted, in the National Law Journal through Law.com
October 2, 2006
The "Torture" Bill
My oh my, what an interesting bill. Let me begin by saying substantively there's probably a lot more to it than I could get, but let me highlight those portions that jumped out at me as unusual:
1. The bill has a section that basically says "judicial construction and application" of the Uniform Code of Military Justice are not binding on the Military Commissions. That seems to be quite interesting: or is it just Chevron deference upside down? I don't think I've ever seen a statute that says an agency doesn't have to follow the law, though, which essentially that clause does.
2. Another section strips away review by the DC Circuit of any factual findings made by the commission: "The Court of Appeals may act only with respect to matters of law." (See above for how that gets limited, by implication, too!) And, even in reviewing questions of law, the court is limited to considering "whether the final decision was consistent with teh standards and procedures specified in this chapter and to the extent applicable" the constitution and federal laws. So, it sounds like on pure questions of law, the court of appeals defers. Wow. (Habeas is denied by another section, in case you were thinking of that.)
3. In contrast to the limited power of the courts, get this: "Orders publishing the proceedings of military commissions under this chapter are binding upon all departments, courts, agencies, and officers of the United States, except as otherwise provided by the President." Do we have a new, higher, Supreme Court? My goodness that sounds ominous.
4. "No person may invoke the Geneva Convention... in any civil action.. to which the United States, or a current or former.. employee... or other agent... is a party as a source of rights in any court of the United States or its States or territories." So, the question of whether the Geneva Convention creates rights is no longer a question for the judiciary. Wow.
5. "As provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Convention...." So much for the judiciary there, either.
6. "Retroactive applicability." Basically, the bill "shall take effect as of November 26, 1997...." So, an action that was criminal when it occurred no longer is.
I don't want to be alarmist, or inflamatory, but this really does worry me as a substantial change in how our system of checks and balances works, and indeed our fundamental government is structured. The military trumps the courts, and in broad areas, and even including what the law means, and whether the facts found -- which, seemingly, can be found based upon evidence that a person who is put to death has never seen! -- are supported by the evidence. That sounds like something from another place and time. Is there really that much evidence that we need this? If we go here, are we no longer who we were before 9/11? Those of you who know more about the substance, I'd love to hear from you.
Time Magazine on the new Torture Bill
You can read Time's take here. My own is coming shortly. The bill is sitting there, saying "read me and write about me," but so are about fifty other things.
If what I'm reading about this bill is correct, however, then this bill represents a strange new world of statutes and, even, law.
October 1, 2006
For the Washington Post's take on the upcoming Supreme Court Term, including the case involving whether the "partial birth" statute is unconstitutional or not click here. A similar analysis, from the business perspective, is available here.
For Erwin Chemerinsky's discussion of a last-minute bill that, he argues, erodes the separation of church and state, click here. (He characterizes it as denying recovery of attorneys' fees that a plaintiff would otherwise be entitled to where the statute declared unconstitutional allows prayer in school, and so on.)
A California appellate court in Golden State Boring & Jacking, Inc. v. Orange County Water District, --- Cal.Rptr.3d ----, 2006 WL 2788379 (Cal.App. 4 Dist.), issued a first impression interpretation of a California statute entitled "Faithful performance and payment bonds of subcontractors."