December 23, 2006
Have a Good One
I doubt I'll post until after Christmas, but who knows. I got a cool opinion this morning dealing with Chevron defernce that I may want to yack about.
For those of you who celebrate Christmas, enjoy yourselves. We don't get that many of them if you really think about it, and so enjoy every one!
For those of you of other faiths, or of none at all, I guess you get a couple days off from work because of us, so enjoy that, too! :-)
December 22, 2006
Dice Loading article
Ran across an article of interest apparently wondering if courts "load the dice" of interpretation to get the result that they want. It's here. I haven't read it, but it looked interesting.
That article reminded me of another thing that bugged me when I was writing the book, there's a lot of scholars and courts who cast about very serious charges of either inadvertent or intentional intellectual dishonesty in this arena. "Legislators make statements they know aren't reflective of intent" or "judges look for only legislative history that supports his views (picks out friends among the crowd)".
In reading the various material on this point, it struck me that people who make such charges somehow assume that their alternative approaches don't allow for the same thing. Also, it just strikes me as curious that people think that others in the judicial and legislative branches act with such deceitful motives. In life, I've found that people who make such accusations often do so because they're familiar with the tactics themselves.
I don't kow if "dice loading" is of this ilk, but it sounds like it from the title. I don't mean to suggest that anything in this post is directed toward it, because I haven't read it, it just reminded me of this point. For all I know, the article concludes there is no dice loading and makes the points I've just made.
Do youu really think that judges "load dice" to get their way? Or, that legislators deceitfully make representations so that their cohorts can later use them to manipulate meaning?
The implications of that view are profound, I think.
Process v. Substance & Implied Causes of Action
In our book, we have a chapter on implied causes of action. When I wrote it, it was obvious that at one point the supreme court was much more likely to imply a cause of action into a federal statute than it is today. Language, or circumstances, that would have led the court to imply a cause of action 25 or 30 years ago no longer will.
Whether that's good or bad is one thing, but I was thinking about the Erie discussion we were having (below) and wondered if this was another aspect of this issue. There's some connection between this issue and that one.
The issue that the change in judicial attitudes toward implied causes of action creates are several, but one of them is whether a statute enacted at a time when courts were more willing to imply causes of action ought to be read in light of that precedent. You'd think so, since that judicial context gives meaning to the words chosen by the legislature. If a court doesn't do that, then it's giving a current reading to text, ignoring its actual at-the-time meaning (arguably).
That suggests, it seems to me, that this is a substantive issue: interpretation is substantive, not procedural, based on this view. Or at least that's the intimation I have this early Thursday morning.
Thoughts? When I wrote that chapter, I was very intrigued by the thoughts. I suppose I should look for a case where a federal court was analyzing a state statute for an implied cause of action, see whether it looked to state or federal law, and then see what time frame it looked to. The implications of my view are that it should look to state law, and as it was at the time of enactment....
December 20, 2006
Habeas Stripping Provisions Addressed
Over at scotusblog, they've posted the recent district court decision addressing the habeas-stripping provisions of the Military Commissions Act of 2006. You can find the decision here. Addressing the retroactivity and power-stripping provisions I wrote about earlier this year, the court wrote:
It has been clear since Ex Parte Yerger, 75 U.S. 85 (1869) (habeas petition by a prisoner facing trial by military commission), that statutory language will be interpreted as stripping courts of their habeas jurisdiction only when the intent of Congress is abundantly clear. “Implications from statutory text or legislative history are not sufficient to repeal habeas jurisdiction; instead, Congress must articulate specific and unambiguous statutory directives to effect a repeal.” INS v. St. Cyr, 533 U.S. 289, 299 (2001). In the instant case, it appears to be conceded that Congress’s intent to remove jurisdiction over future habeas petitions filed by a specified class of individuals was clear enough. Hamdan’s submission, however, is that the MCA lacks the requisite clarity to support its retroactive operation – stripping the courts of their jurisdiction over previously filed habeas cases.
Turning to the question of retroactivity, the court first quoted the pertinent language, Section 7 of the MCA :
Section 7(b) instructs that “the amendment made by subsection (a)” is effective immediately, and that it applies both retroactively and prospectively. New subsections (e)(1) and (e)(2) both amend the habeas statute and therefore together comprise “the amendment made by subsection (a).” Section 7(b), then, means that all of § 7(a), and not just the part encompassed in new subsection (e)(2), applies retroactively.
Application of the retroactivity clause in § 7(b) to new subsection (e)(1) is also compelled by the framework of the statute. The references in section 7 are to one large category of cases: those cases that relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of certain aliens. In § 7(a), Congress divided this broad category into two subcategories – (1) habeas petitions and (2) “any other action[s] against the United States ... relating to any aspect of the detention...” – and removed jurisdiction over both types of cases. “Other,” as used in this subsection, logically describes cases other than the habeas petitions referenced in the previous
In a lengthy further discussion, the court held that the MCA did not actually suspend the writ, but if it had, it would be unconstitutional. I am not expert in this area, and so commend it to your further reading and, if you care to, comment and explanation.
December 19, 2006
RICO's Long Arm Statute
I was reading a case for a book I'm writing, and came across an interesting split on RICO's service of process provision, 18 USC 1965. Turns out there's a circuit split on which sub-part to use and whether, as a result, there is in fact nationwide service of process. The Tenth Circuit recently joined that fray. Cory v. Aztec Building, Inc., 468 F.3d 1226 (10th Cir. 2006).
Muddled Thoughts and More
I was reading through some new interpretation cases, and routinely found things like this: "When interpreting a statute that is not ambiguous, this Court will apply the plain meaning of the statute. In construing a statute, the Court must seek the intention of the Legislature, and knowing it, must adopt the interpretation which will meet the real meaning of the legislature." Garrison v. State, 2006 WL 3627752 (Miss. Dec. 14, 2006) (Citations omitted.) What the heck does that mean? I mean, if a court is trying to provide guidance to lower courts as to how to approach interpretation, how should lower Mississippi courts do so? Is it intent, plain meaning, or does plain meaning give the intent, or....
December 18, 2006
Georgia Supreme Court Honors No Retroactivity Provision in Tough Case
This is an interesting case. Defendant was 17 when he consensually received oral sex from his 15 year old girlfriend. He's sentenced, properly, under then existing statutes to 10 years without the possibility of parole. Legislature then reacts by changing the statutes so that, essentially, if two people aren't that afar apart in years, the penalty isn't as great. But, when it does so, for whatever reason, it makes the amendment prospective, only, even though this case was somewhat infamous by then.
Just recently the Georgia Supreme Court denied reconsideration in the case, with a concurring opinion filed by Judge Hunstein (who was recently the subject of some pretty ridiculous attacks here when she was up for reelection). You can read it here.
December 17, 2006
A Sunday Morning Read
I was wandering aimlessly this morning and came across a neat article in the Greenbag from a while ago on rock music and law review articles. You can find it here. One of the things I do with my articles is have the title include a song by my favorite singer-songwriter (and author), John Wesley Harding (real name, Wesley Stace). Wes, who has 13 albums and one novel under his belt (the latter was quite an award-winner), has a wonderful, playful sense of humor in his songs that I found fresh, so I started using his song titles in my articles some years ago. I mail him two copies, one of which he signs and returns to me. Yes, it's odd. We finally met a few months ago after one of his shows, and, in one of those moments that tells you a lot about a person, when I introduced myself to him where he was seated signing autographs, he stood up to shake my hand.
Anyhow, that's the Sunday morning diversion for today. He's got a place on myspace and there you can hear songs for free. Tell him I sent you.