Statutory Construction Blog

Legal Malpractice Claim: Not "Core" in terms of Chapter 11

There's an interesting piece on law.com here about this opinion, addressing whether a legal malpractice claim belonged in bankruptcy, or not. I've litigated this issue, years ago, and there was no law then; apparently two courts have now come out this way. Hopefully the law will get more certain.

Family Medical Leave Act: Comments Wanted

There's an interesting piece on law.com here explaining how litigation under the FMLA is increasing, and in particular litigation over whether stress is covered, and what certain statutory terms mean. The DOL is in a notice and comment period on the statute.

7th Circuit, Easterbrook Split on Section 1981 Interpretation

Claiming the majority had applied an "atextual approach" in deciding a Section 1981 claim, Judge Frank Easterbrook in dissent wrote: "I appreciate the temptation to make every law “the best it can be,” but that is not the Supreme Court’s current mode of statutory interpretation." It's an interesting case you can read here.

Tid Bits

Who Decides? The Democrats may block funding for Bush's surge. The framer's fractured way of dealing with war powers comes up. There's an article here in the Washington Post.

And on a lighter note...

James Brown's Body, Limitations on 20-Year old Rape Claim. It's not quite Ted Williams' head in a can, but it's getting there. Read about it here.

eBay and French Law. I love the Internet and eBay. Some pursemaker doesn't. Read it here.

Supreme Court Decides MedImmune Patent Case

The opinion is here.  I blogged about it earlier and had filed an amicus in it. No one went my way, which means they're all wrong, of course! :-)

Article About Scalia

There's an article that focuses mostly on Scalia's constitutional jurisprudence, but touches on his statutory interpretation issues, just published.  Gregory Bassham, Justice Scalia's Equitable Constitution, 33 J.C. & U.L. 143 (2006).  The journal's site doesn't post full text, but has little exerpts, but doesn't yet include this issue.

Ninth Circuit Panel Splits on Fed. R. Crim. Pro. 16(a)(2)

In U.S. v. Fort, 2007 WL 39085 (9th Cir. Jan. 8, 2007), the court addressed "whether investigative reports prepared by a local police department prior to a federal prosecutor’s involvement qualify for the discovery exemption created by Rule 16(a)(2) when they are turned over to the federal prosecutor for use in the federal investigation and prosecution of the same acts by the same people.”

The rules provide:

Upon a defendant’s request, the government must permit the defendant to inspect and to copy or photograph . . . documents . . . if the item is within the government’s possession, custody, or control and:

(I) the item is material to preparing the defense;

(ii) the government intends to use the item in its case-in-chief at trial; or

(iii) the item was obtained from or belongs to the defendant.

Rule 16(a)(2) limits the scope of discoverable materials:

Except as Rule 16(a)(1) provides otherwise, this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case. Nor does this rule authorize the discovery or inspection of statements made by prospective government witnesses except as provided in 18 U.S.C. § 3500.

The majority held that the district court had erred in concluding that the reports were not exempted; the dissent disagreed. It's quite a good read.

Vermont Court: Prisons as Places of Public Accommodation

The Vermont Supreme Court held that a state correctional facility was a "place of public accommodation" in terms of the Vermont Fair Housing and Public Accommodations Act in Dept. of Corrections v. Human Rights Comm'n, 2006 WL 3821475 (Vt. Dec. 29 2006).  Over a dissent, a majority held that prisons are places of public accommodation.  There's got to be a joke in there.  The majority realized that prisons don't normally fit the definition -- which it said had been "an establishment that provided benefits or services to the general public" -- but nonetheless relied on various construction arguments to hold that prisons were such places.  The dissent vigorously disagreed, among other things pointing out:

The statute defines a "place of public accommodation" to mean:

    any school, restaurant, store, establishment or other facility at
    which services, facilities, goods, privileges, advantages,
    benefits or accommodations are offered to the general public.

9 V.S.A. § 4501(1).  Prisons do not offer "services, facilities . . . or accommodations . . . to the general public," and so are not places of public accommodation as defined by the statute.

New Article: Rigid Textualism

Just published is Brian M. Saxe, When a Rigid Textualism Fails:  Damages for ADA Employment Retaliation, 2006 Mich. St. L. Rev. 555 (Summer 2006).  It's not, yet, on the journal's site.