December 15, 2006
FCC Order Concerning 911 Service & VOIP Providers Upheld
The US Court of Appeals for the DC Circuit rejected a challenge to a rule that requires providers of telephone service using Voice over IP (VOIP) to ensure that customers can use 911 emergency service. You can read the opinion here. It's a typical Chevron type case in many ways, but it has the wrinkle of addressing the notion of when it's acceptable for an agency to 'change directions' in light of technological changes. Unanimous decision with a concurrence.
7th Circuit on Slave Reparations
The Seventh Circuit issued an interesting opinion which (hopefully) you can find on the 7th Circuit's site soon (it wasn't up yet). An article about it is here.
NJ Adopts Civil Union Statute
You can read an article about it here. These statutes, as noted in a post below, are going to create an awful lot of future interpretive issues, and, no doubt, will be used in unpredicted ways to achieve results that no one can yet predict.
December 14, 2006
Erie & Statutory Interpretation
The post below got me pondering this more: suppose a state enacts a statute, as many have, that codifies how courts of that state are to construe state statutes. Clearly, state courts must follow that statute (assuming it withstands a separation of powers challenge, etc.).
What about a federal court sitting in diversity? Is it procedure, or substance?
What if, instead of a statute, the state supreme court has issued opinions, as many have done, laying out the "rules" of statutory interpretation. Same or different result?
I ran some quick searches, and the issue has been examined a couple of times, but not at any length. An interesting query, it seems to me!
New Law Review Article
Anthony J. Bellia Jr., STATE COURTS AND THE INTERPRETATION OF FEDERAL STATUTES 59 Vand. L. Rev. 1501 (Oct. 2006) is an interesting piece. I have only begun to peruse it, and it's not on line as near as I can tell. One passage in particular I thought was quite intriguing in its implications: "state courts most often interpreted federal statutes according to the import of statutory language, a means understood to be geared toward the implementation of actual legislative directives. Where state courts employed less text-focused means of statutory interpretation (for example, by examining purposes or consequences), they did so either to support independent textual analyses or for the stated purpose of giving effect to congressional intent."
Are state courts, when construing a federal statute, required to follow "federal principles" (law?) of statutory interpretation? What about the converse: a federal court, let's say, is strictly textualist, but a state court is more open to intent and evidence thereof. Given that a federal court sitting in diversity is supposed to make its best guess as to what the state court would say the law is, seems like state interpretive principles should control. But what of the converse?
I'm sure someone's written about it. If not, why not you?
December 13, 2006
Homeland Security's Computerized Risk Assessment System Unlawful? There's an interesting piece here about whether the system that assesses the risk that each traveller may pose violates a spending limitation imposed by Congress.
California Election Statute Construed and Upheld. California is always a place of innovation, and their approach to the problem of representation in elections is no exception. An article reporting on how the five year old act was interpreted is available here.
Nashville Hearing on Allowing Consolidation in Broadcast Industry. Can one company own too many radio stations? Yes say many of Nashville's stars. Read about the hearing here.
The election is finally over. There was a runoff in Texas; a Democrat won. Read here. No, that isn't really an issue about statutes, but I didn't realize this was even happening. At least we won't be going to the Supreme Court again (I hope!).
December 12, 2006
My take on Lopez
I am not one of these people who follows the individual justices of the Supreme Court closely, and I don't pretend to be able to predict how most of them would vote on particular matters. But I know that these folks disagree on most everything, and so an 8-1 opinion that arose out of a circuit split tells you something interesting is afoot.
In Lopez v. Gonzales, there's less there than meets the eye, however. The immigration statutes give the Attorney General discretion to cancel deportation of a noncitizen, but not if the noncitizen has been found to have convicted of a "felony punishable under the Controlled Substances Act." 18 USC 924(c)(2). What if the noncitizen is convicted of a state law crime that is a felony but which, had it been brought in federal court, would only have been a misdemeanor. Does the AG still have discretion to let the noncitizen stay?
Justice Souter held that to be a "felony punishable under the Controlled Substances Act," the crime had to be... a felony punishable under that act. He rejected the notion that he was reading the statute to say "punishable as a felony" under that act by noting, among other things, that "we instinctively understand 'felony punishable as such under the Act' or 'felony as deined by the Act." Further, he said that a reading that would capture crimes that would cover misdemeanors under the act "would be so much trickery." He goes on, but his 'instinctive reading' approach is quite interesting.
So why was there a dissent?
Justice Thomas, alone, broke down the statute into two "elements": that there must be a felony, and that it must be punishable under the CSA. Since Lopez had been convicted of a felony (under state law) and it was punishable (as a misdemeanor) under the CSA, the AG had no discretion. Or so he argued.
It's interesting to see how parsed this interpretation is. He's no doubt right that there has to be a felony and it has to be punishable under the CSA, but he ignores the linkage that the words create in a natural sense. He even argues that the majority reads the word "federal" into the statute, which seems quite odd since it refers to the CSA, a federal statute. I'm probably not being fair, but there's a reason he got no one to join his opinion.
Sorry for the hiatus there. Sickness combined with final exams drove me to drink... kidding.
But the good news is that there's a cool new case from the District of Nevada on our favorite statute, BAPCA, In re Trejos, 352 B.R. 249 (D. Nev. 2006). This case involves what is known as the "hanging" or "starred" paragraph in section 506 of the bankruptcy code. Poor drafting, uncorrected for some time, has led to this little provision having its own nickname, which is quite an accomplishment. There's a law review article by William C. Whitford of the University of Wisconsin school of law coming out on this one, that's quite interesting in and of itself because Professor Whitford provides a valuable political and legislative discussion of this aspect of BAPCA, but laments that in these days of textualism, courts probably won't take his insights into account! Let's hope he's wrong about that.
Judge Markell collected what looks to me about 30 cases struggling with the statute. He then gave a nice explication which I note for your reading pleasure about the various forms of "textualism," including those which take into account hisotry and context, and those that do not.