October 21, 2006
Third Circuit Enters CAFA "Less is More" Debate
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. The Third Circuit issued a decision in Morgan v. Gay agreeing with the majority of the courts so far: "less" means "more." While probably correct, it sure does create a trap for those unable to deciper the Code.
The opinion was not, yet, online.
October 20, 2006
Fifth Circuit Interprets 11 USC 106(c). In In Re Supreme Beef Processors, the Fifth Circuit addressed whether a bankruptcy provision waived the USDA's sovereign immunity.
Seventh Circuit Interprets CAFA. In Santamarina v. Sears, Roebuck, the Seventh Circuit analyzed some procedural and jurisdictional issues under the Class Action Fairness Act.
Habeas Corpus RIP. Here's an editorial from the New York Times. Was this law necessary? What have we become. Sigh. I won't rant any more, but my passport proving I'm an American citizen is a pretty darn important document, even inside the United States, it seems to me.
Statutes of Limitation and Defamation on the Internet. Here's an article about a Texas case holding that limitations begins to run the day an article appears on the 'net, and stops one year later, even though the article remains posted and available. Go figure.
Kentucky Sex Offender Residency Limitations Upheld. There's an article here about enforcement of a Kentucky Statute regulating the residences of convicted sex offenders. This was a moot court problem for some of our students last year, and from what I understand, these laws are turning rural areas into "sex offender slums" and having other unintended consequences. A tough issue to regulate.
October 19, 2006
The Federal Circuit: A Look Back
I've spent a lot of years in patent litigation, and the one thing I noticed over the years is that the meaning of the statutes changed because of the advent of the Federal Circuit. It became, for example, harder to invalidate a patent as "obvious" or "anticipated" because the court tightened up what those concepts meant. Perhaps good, perhaps not, but it's an interesting microcosm of the impact of the judiciary on statutory interpretation. Maybe it's not "activisim" when the court was specifically created to bring harmony to an area of law? It may be that the CAFC is unique in that respect.
An interesting article by Marcia Coyle about the CAFC and the good and bad it has brought over the last 25 years on law.com is here.
October 18, 2006
AG Gonzales Discusses the Military Commissions Act
You can find a transcript here.
Habeas Corpus: RIP?
There's an interesting and somewhat biting observation on the Military Commissions Act here. Professor Jonathan Turley had some comments about the habeas provisions on last night's show, the transcript you will (soon) be able to find here.
As I understand Turley's comments, the way the law signed yesterday operates is this: even a US citizen can be declared an "enemy combatant" and there's no habeas right available, just the limited appeal discussed elsewhere below. Wow. Also, apparently US citizens can now be waterboarded, etc., and put in serious risk that they'll die or an internal organ will fail. Is Turley right? If so, something's quite wrong -- even during World War II, which threatened literally the freedom of the world, these freedoms we held dear, and those we took away from others (Japanese Internment, e.g.), we later regretted.
Sorry for the rant, but this law, if Turley's construction of it is correct, has created a "president" unlike any other we have ever had. Perhaps we can trust Bush, now, to exercise the rights properly, but what holds the future?
There's another article about it here.
For a video & transcript of Professor Turley's analysis, click here. US citizens who "support" terrorists apparently are "enemy combatants" and have no right to habeas... At least, that's the argument. I've not had time to run this to ground. I doubt Congress did, either!
October 17, 2006
Bush Signs Military Commissions Act
There's an article on NPR here.
Military Commissions Act: Predictions
There's an interesting article at the Christian Science Monitor on the predicted challenges to the "torture bill" discussed below. One odd thing to note if you missed it: the bill was rushed through overnight, literally, because of the pressing need for it; yet, it hasn't even as of now, nearly two weeks later, been signed into law.
October 15, 2006
Bankruptcy, Alice in Wonderland, and Textualism
BAPCA is just a fountain of fun when it comes to statutory interpretation. Below is a long exerpt from a decision not available on line (at least from what I could tell) that is a nice discussion by a federal judge of interpretation. It's from In Re Trejos, 2006 WL 2884384 (Bankr. D. Nev. Sept. 25, 2006):
The basics of how to interpret statutory text such as the hanging paragraph are not unduly complicated, but (as always) the devil is in the details. Unlike the statute examined in In re Kane, 336 B.R. 477 (Bankr.D.Nev.2006), the language of the hanging paragraph has no obvious errors of reference or sense, making inapplicable both the absurdity doctrine and those cases regarding scriveners' errors. Id., at 485-87. Moreover, its history and its purpose are both far from clear, see Whitford, supra, at 43- 45, making any construction that requires exact determination of that purpose somewhat problematical. Add to this mix the stark reality that the implications of a straightforward reading of the hanging paragraph are significant: For certain purchase-money loans, it would preclude application of an elemental and bedrock principle of bankruptcy law--Section 506's treatment of secured claims--in the narrow but historically important area of car loans in chapter 13.
a. Plain Meaning
Do the words of the hanging paragraph effect this type of change? When faced with the task of construing a statute, the presumption is that the accepted and plain meaning of the words is what Congress intended. As the Supreme Court has said:
The starting point in discerning congressional intent ... is the existing statutory text ... and not the predecessor statutes. It is well established that "when the statute's language is plain, the sole function of the courts--at least where the disposition required by the text is not absurd--is to enforce it according to its terms."
Lamie v. United States Trustee, 540 U.S. 526, 534 (2004)....
b. Textualism and Context
In determining the appropriate sense, investigation into ways in which the Bankruptcy Code uses the same or similar words is appropriate, especially when that usage comports with common usage. Rousey v. Jacoway, 544 U.S. 320, 326- 27 (2005) (looking at use of "on account of" in provisions of the Bankruptcy Code other than the one at issue). This contextual approach to interpreting federal statutes was recently summarized by a leading academic textualist, Professor John F. Manning of Harvard Law School:
In contrast with their ancestors in the "plain meaning" school of the late nineteenth and early twentieth centuries, modern textualists do not believe that it is possible to infer meaning from "within the four corners" of a statute. Rather, they assert that language is intelligible only by virtue of a community's shared conventions for understanding words in context. While rejecting the idea of subjective legislative intent, they contend that the effective communication of legislative commands is in fact possible because one can attribute to legislators the minimum intention "to say what one would be normally understood as saying, given the circumstances in which one said it." Textualists thus look for what they call " 'objectified' intent--the intent that a reasonable person would gather from the text of the law, placed alongside the remainder of the corpus juris."
*4 John F. Manning, What Divides Textualists From Purposivists?, 106 COLUM. L.REV. 70, 79-80 (2006) (footnotes omitted). [FN8]
323 F.3d 1141, 1146 (9th Cir.2003) 242 U.S. 470, 485 (1917) 489 U.S. 235, 241(1989) 530 U.S. 1, 6 (2000)
(Scalia, J.) (arguing that it is a "fundamental principle of statutory interpretation (and, indeed, of language itself) that the meaning of a word cannot be determined in isolation, but must be drawn from the context in which it is used .").
A textualist approach does not mean that statutory text must be read as if the intended reader were an unlettered schoolchild. Rather, as Professor Manning notes, a textualist approach seeks the semantic meaning of the words, id. at 91-93, a fancy designation for how to determine the meaning of a collection of words written together, such as a statute. Determining a statute's semantic meaning requires a judge to examine the context in which that statutory text is placed. Cf. Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)
("The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole."); Davis v. Michigan Dep't of Treasury, 489 U.S. 803, 809 (1989) ("[S]tatutory language cannot be construed in a vacuum. It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme."); (" 'To this end, "it is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, ... the sole function of the courts is to enforce it according to its terms." ' " San Jose Christian Coll., 360 F.3d at 1034...
That context may include dictionaries, etymologies, and guides to grammar and common usage such as the various canons of statutory construction. E.g., Bank of Am. Nat'l Trust & Sav. Ass'n v. 203 N. LaSalle St. P'ship, 526 U.S. 434, 460 (1999) (using dictionaries to determine meaning of "on account of"); Muscarello v. United States, 524 U.S. 125, 129 (1998) (using etymology of "carries" to construe reach of statute that prohibited carrying firearms); Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253(1992) ("canons of construction are no more than rules of thumb that help courts determine the meaning of legislation."); Landgraf v. USI Film Prods., 511 U.S. 244, 263- 64 & n. 16 (1994) (observing that canons may often lead to different results, citing Karl Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons about How Statutes Are to Be Construed, 3 VAND. L.REV. 395 (1950)); [FN9] San Jose Christian Coll., 360 F.3d at 1034 (" 'To determine the 'plain meaning' of a term undefined by a statute, resort to a dictionary is permissible.' "). See also George Costello, Statutory Interpretation: General Principles and Recent Trends, CONGRESSIONAL RESEARCH SERVICE, at CRS-3 ("the meaning of a specific statutory directive may be shaped, for example, by that statute's definitions of terms, by the statute's statement of findings and purposes, by the directive's relationship to other specific directives, by purposes inferred from those directives or from the statute as a whole, and by the statute's overall structure. Courts also look to the broader context of the body of law into which the enactment fits"), available at http://www.fas.org/sgp/crs/misc/97-589.pdf. These are all general aids to construction of sentences and other utterances humans make.
FN9. The Ninth Circuit Court of Appeals noted recently that it has "long held that however helpful rules of construction may be, the courts will 'construe the details of an act in conformity with its dominating general purpose, will read text in the light of context and will interpret the text so far as the meaning of the words fairly permits so as to carry out in particular cases the generally expressed legislative policy.' " Clark v. Capital Credit & Collection Serv., Inc., 2006 WL 2441705 (9th Cir., Aug. 24, 2006), quoting Matheson v. Armbrust, 284 F.2d 670, 674 (9th Cir.1960), in turn quoting S.E.C. v. C.M. Joiner Leasing Corp., 320 U.S. 344, 350-51 (1943). See also John F. Manning, Legal Realism & The Canons' Revival, 5 GREEN BAG 283 (2002).
But there is more. Because the words of a statute are meant to be law, the legal background, as well as a lawyer's understanding, of the words used are also important. "Utter," for example, has a completely different meaning in the world of commercial paper than it does in literary parlance. See Nev.Rev.Stat. § 205.110 ("Every person who, knowing the same to be forged or altered, and with intent to defraud, shall utter ... any forged writing ... shall be guilty of forgery the same as if he had forged the same."). Moreover, statutory law makes liberal use of codes, or collections of related statutes. Title 11, which contains the Bankruptcy Code, is one such code, and it contains many of the attributes that are common to all codes. The definitions of terms used throughout a code, for example, may vary from what one untutored in law would expect: in the Bankruptcy Code, a "custodian" is not a janitor or building superintendent, see 11 U.S.C. § 101(11); and in the Uniform Commercial Code, "afternoon," can mean one minute before midnight. See Unif. Comm.Code. 4-104(a)(2) ("afternoon" is any time between noon and midnight). [FN10] Further, the Supreme Court has acknowledged that within a code such as the Bankruptcy Code, similar words and phrases presumptively will receive the same construction, even if found in different parts of the code. SeeRousey v. Jacoway, 544 U.S. 320, 326-27 (2005) (looking at use of "on account of" in provisions of the Bankruptcy Code other than the one at issue). [FN11]
FN10. Although not the case with the Bankruptcy Code, some codes, such as the Uniform Commercial Code, arrive at the legislature with specific commentary drafted by the organization that prepared the statute for the legislature's consideration. The court ventures a guess that any rule that would require commercial lawyers to ignore the official comments to the Uniform Commercial Code would be viewed, at a minimum, as heresy. This is not to say, however, that the comments should control when in conflict with the statutory text; to the contrary, courts overwhelmingly favor a straightforward reading of statutory text over comments. See, e.g., Pride Hyundai, Inc. v. Chrysler Fin. Co., L.L.C., 369 F.3d 603, 613-14 (1st Cir.2004)
FN11. The practice of bankruptcy is also full of specialized argot. See Richard I. Aaron, Hooray for Gibberish! A Glossary of Bankruptcy Slang for the Occasional Practitioner or Bewildered Judge, 3 DE PAUL BUS. & COMM. L.J. 141 (2005)
There are, as can be seen, many sources of clues about what a statutory text means, and in appropriate cases, all of these sources are capable of providing assistance about the meaning of a statute. Textualists have no problem with this in appropriate cases; as Professor Manning states it, "Textualists further acknowledge that '[i]n textual interpretation, context is everything.' " John F. Manning, What Divides Textualists From Purposivists?, 106 COLUM. L.REV. 70, 80 (2006) (footnotes omitted), quoting Antonin Scalia, Common-Law Courts in a Civil Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 37 (1997). Put simply, "modern textualists urge judges to focus on what they consider the more realistic--and objective--measure of how 'a skilled, objectively-reasonable user of words' would have understood the statutory text in context." John F. Manning, supra, 106 COLUM. L.REV. at 75, quoting Frank H. Easterbrook, The Role of Original Intent in Statutory Construction, 11 HARV. J.L. & PUB. POL'Y 59, 65 (1988). [FN12]
FN12. Indeed, one recent article has stated that the difference between textualism as discussed above and other views is more "a difference in emphasis rather than a sharp disagreement over methodology." Jonathan T. Molot, The Rise and Fall of Textualism, 106 COLUM. L.REV. 1,4 (2006). But cf. Manning, supra, 106 COLUM. L.REV. at 79 ("significant practical and theoretical differences continue to separate textualism from purposivism.")
What a textualist approach does not condone, however, is the imputation of a congressional purpose based on materials that cannot or do not reflect a unitary congressional purpose, [FN13] followed by the use of that purpose to definitively construe straightforward text. This is an area without crisp boundaries. Textualists will look at background and legislative history when a fair reading of the statute does not answer the particular question at hand or, in plain English, when the statute is ambiguous.
FN13. This assumes, of course, that it makes semantic sense to impute a single intent to a multimember body such as Congress. Modern textualists tend to deny this imputation. See, e.g., Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 HARV. J.L. & PUB. POL'Y 61, 68 (1994) ("Intent is elusive for a natural person, fictive for a collective body."); Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J. 511, 517; ("[T]he quest for the 'genuine' legislative intent is probably a wild-goose chase anyway."). As Professor Manning points out, this skepticism traces back at least to the legal realist Max Radin. John F. Manning, What Divides Textualists From Purposivists?, 106 COLUM. L.REV. 70, 73-74 & n. 12 (2006).
But ambiguity tends to be in the eye of the interpreter. We know, for example, that grammatical errors do not necessarily create ambiguity. Lamie v. United States Trustee, 540 U.S. 526, 534 (2004) ("One determines ambiguity, under this contention, by relying on the grammatical soundness of the prior statute. That contention is wrong."). We also probably know that a good-faith dispute among litigants over what a statute means is not the same as ambiguity. Bank of Am. Nat'l Trust and Sav. Ass'n v. 203 N. LaSalle St. P'ship, 526 U.S. 434, 461 (1999) (Thomas, J., dissenting) ("A mere disagreement among litigants over the meaning of a statute does not prove ambiguity; it usually means that one of the litigants is simply wrong.")
The last word has yet to be written on when, and how, external sources such as legislative history, earlier statutory enactments, and even background judicial opinions can be used or are useful in statutory construction. As a result, when first presented with a tough question of statutory interpretation, almost every lawyer or judge will latch on to anything that might illuminate the meaning of the words Congress chose, much like a drowning man will grasp for anything floating that might work as a life preserver. This is not per se harmful; simply consulting potentially irrelevant materials doesn't disqualify a judge-- or anyone else for that matter--from being able ultimately to properly construe the statute.
But even after all such consultations, the statutory language may stubbornly refuse to yield a canonical meaning. Academics might be able to defer or hedge the question at this point, but judges have an obligation to apply the statute before them. There is a duty to make sense of the statute to the extent that is possible, and to give it an interpretation consistent at least with its semantic sense, if not consistent with some well-articulated purpose.