January 27, 2007
1964 KKK Slaying: Prosecution Barred by Limitations?
At the Bootle Inn of Court in Macon of which I'm a member, we recently had a session on the brutal murder of Lemuel Penn near Athens, Georgia. Ironically enough, that same day charges were filed in a 1964 slaying. The defense says those charges are barred by limitations. There's an article here about which one might apply.
January 25, 2007
One Senator's Statement in a Committee Report Not "Law." George Bush and a federral judge actually agree on something! I can't find the case, but the article about an attempt by the hydroelectric industry to eliminate protections for salmon in the Northwest by way of a sentence in a committee report is here.
Wiretap Showdown Still Possible. Even though AG Gonzales announced that suddenly the FISA court process was working right and the administration would stop its warrantless wiretapping of phones of US citizens, Congress is actually going to check out whether that's true or not. Here's where you can read about something called "checks and balances."
Don't Have an Affair... Especially in Michigan. There's a statute in Michigan that puts adulterers away for life. You unfaithful Michiganders better read this article and then get your passports and head to Canada and rent the room up there.
January 23, 2007
Supremes Strike Down California's Sentencing Statutes
January 22, 2007
Skidmore, Chevron and More
In A.T. Massey Coal Co. v. Holland, __F.3d __, 2006 WL 3746139 (4th Cir. Dec. 21, 2006), the majority held that an interpretation by the Commissioner of Social Security over the term "reimbursement" in the federal Coal Act was not entitled to deference under either Chevron (because there had been no express or implied delegation) or Skidmore. The Chevron point is probably right, but the interesting thing is the Skidmore discussion. Skid more deference was appropriate, the majority held, only if the agency had developed a body of experience and informed judgmetn to which courts and litigants may properly resort for guidance. It found that lacking because the agency had interpreted the statute without relying on the sources (context and legislative history) which the majority found were the right sources to use: "in twice [interpreting the statute] the Social Security Administration has, without conducting a review of the Coal Act and its contexts, developed virtually no experience..."
The dissent, however, relying on the fact that dictionary definitions disagreed on the definition and the statute had split the circuits found the statute ambiguous, rejected the contextual arguments relied on by the majority, and found that the agency's interpretation was the same one he would have reached, and so didn't have to rely on Skidmore.
So, if the dissent is correct, the agency properly didn't rely on context, and under the majority's approach Skidmore would compel deference....
My guess is the supremes will take this one. Half of America is a named party to this case, which has to win for longest caption in the world, if someone has that on their blog.
Several Case on Context versus Literalism
Coincidentally, a few cases that I'd pulled aside to read happen to address an issue we were discussing in comments below, contextual versus literal textualism. It seems to me, after reading them, that they confirm a criticism of textualism, viz., that the whole notion of plain meaning is, itself, subjective: whether the meaning is plain is itself a subjective judgment, and so ought to be explained rather than assumed by a judge.
It's hard to summarize these cases in a meaningful way, but I'll try to give you a flavor.
A.T. Massey Coal Co. v. Holland, __F.3d __, 2006 WL 3746139 (4th Cir. Dec. 21, 2006). In addition to the issues discussed in another post, the majority in a dispute involving coal benefits held that the word "reimbursement" meant the amount of money that funds received from Medicare, rather than the amount the funds actually paid out to fund recipients. Not only did the majority's position further a circuit split on this issue, it rejected (without deference) the agency's interpretation of the word. The majority emphasized that it was taking a contextual approach, noting that although the dictionary definitions could go either way, "the Coal Act is not agnostic to these varying meanings." It turned, then, to the statutory context for the term as well as legislative history. The majority viewed its interpretation as being contextual, not "abstract." The majority, based on its view, held the term was clear and ambiguous, and thus applied "plain meaning" based on context.
There's several law review articles in there, but it's interesting to note that the court used historical legislative activity to ascribe plain meaning, which is something the courts do, but it then raises the question of: if plain meaning turns on context, why not all context, including legislative history? By the way, as I noted below, I'm all for using a holistic approach to determe meaning, and don't want to be taken as criticizing the court's effort here to explain its result -- that's what normally bothers me about plain meaning opinions, as much is left in a black box called "plain meaning" -- it's just that here... the dissent concluded that because there was no definition of "reimbursement" in the statute, and dictionaries disagreed on its meaning, and appellate courts had split on its meaning, the statute was ambiguous. As a result, the dissent concluded that it was proper to look at the legislative history (relied on by the majority), but held it was unhelpful and should not have been used. So, relying on the same context as the majority but rejecting legislative history, the dissent concluded the term had the opposite meaning as the majority.
So, here we have a "plain meaning" majority using legislative history to determine meaning, and a dissent using the ambiguity analysis concluding that legislative history was unreliable.
Is contextual plain meaning less reliable than intentionalism? Is it any different?
Some other cases dealing with this point, the first one suggested by a reader:
Campbell v. Allied Van Lines, 410 F.3d 618 (9th Cir. 2005). This case is fascinating. All it deals with is whether a shipper who sues a carrier for damaging a shipment gets attorneys fees. The statute at issue seems to make it a condition precedent to recovery that the shipper first try to arbitrate the case. (The statute presents the condition as a negative, and interpreting it has split the courts.) The majority, rather than looking at arbitration as a condition, viewed it instead as an option: if arbitration works quickly, then the shipper shouldn't get attorney's fees; but nothing requires the shipper to use arbitration to get attorneys' fees. So, a shipper who sues first gets attorneys' fees; a shipper who uses arbitration first, but is forced to sue, doesn't. Doesn't exactly encourage arbitration. The dissent looked at the majority as using a literalistic form of textualism: "the majority adheres to a decontextualized literalism that even the staunchest defenders of textualism eschew." As a result, the dissent relied on the context of the phrase, noting that it was "in the midst of a statute designed to promote and to facilitate arbitration under the Carmack Amendment." Thus, the dissent, in determining "contextual plain meaning" looked to the purpose of the statute!
So, does contextual plain meaning differ from purposivism?
Finally, similar debates exists in Maryland-National Capital Park and Planning Comm'n v. Anderson, 909 A.2d 694 (Md. App. 2006) and Doe v. Kmehamha Schools, __ F.3d __, 2006 WL 3489836 (9th Cir. Dec. 5, 2006). (NOTE: I kept getting a "file damaged" error when I tried to open it.)
So, if literal textualism is bad, and if contextual textualism is good, but turns on purpose and intent... what's the difference?
In our book, we concluded that all of this was really a question of emphasis: a court that finds meaning very clear from the text won't go to secondary sources at all, but will more readily look at them when things are less clear. Alaska and some other states admit to using this sort of "sliding scale" approach, and perhaps that's what's going on, under other names, in the federal courts.