January 25, 2008
The New FRCP and Statutory Construction
I teach civil procedure, and other classes, and you may not know it but a special committee (headed by Hon. Lee Rosenthal, a Houston judge and one of the warmest and sharpest people I know) recently re-wrote the rules in "plain English." A page with links to the rules and various other material is here.
The goal and expressed intent was to not change the meaning of any rules. In looking them over, I think -- think -- they largely succeeded in that effort. I did note, in completing a book about civil procedure, a few potential issues. One relates to ejusdem generis/noscitur, the issue in Ali. Rule 8(c) used to list a bunch of specific "affirmative defenses" and ended with a broader catchall; it no longer does. It now starts with a broad introduction and then lists the specific items. I can see someone, someday, making a run at that as having a different meaning. Other than that, I didn't notice any substantive changes, or at least obvious ones.
If you haven't read them, you really should. I felt like as a teacher of civ pro, I spent about half my time converting the passive and wordy old rules into plain English, and I think Judge Rosenthal's committee has done a fantastic job of doing that.
They're not your father's Federal Rules...
Have a good weekend! I'm in Peoria, Illinois, of all places, where it is somewhere below zero.
January 24, 2008
Thinking about Ali
I was wondering why this case doesn't represent a move back toward "formalistic" textualism? In other words, the majority, arguably, discounts context and focuses in on literalism? A step backward for "new" textualism?
I can see a statute, and I'm sure they're out there, where the entire statute is about, let's say, customs officials, and somewhere in the statute it says "any police officer." Seems to me that this case suggests that the fact that the entire statute is about the narrow is irrelevant? Too myopic a view?
Interesting stuff. No doubt this one will have an impact.
January 23, 2008
Supremes Fight About When Text Supports Use of Noscitur and Ejusdem Canons
In Ali v. Fed. Bureau of Prisons, 2008 WL 169359 (Jan. 22, 2008), the court confronted a portion of a statute, the Federal Torts Claim Act that provided an exception to the waiver of sovereign immunity with respect to "claim[s] arising in respect of the assessment or collection of any tax or customs duty, or the detention ofany goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer." 28 U. S. C. § 2680(c). At issue was whether this exception applied only to "officers of customs or excise" or to "any" law enforcement officer, period. The majority, in a 5-4 opinion written by Justice Thomas, held that the phrase "any other law enforcement officer" was unamibiguously broad and rejected application of both ejusdem generis and noscitur a sociis to narrow the meaning down to law enforcement officers that are like customs officers.
It's a fascinating case. Thomas prevailed in concluding that because there were not a list of specifics followed by a more general "catch-all," that ejusdem generis did not apply; likewise, because there was only one specific item -- not several -- the meaning of "any other law enforcement officer" was not influenced by the company it kept. In short, Thomas focused on the fact that "any" law enforcement officer had to mean more than only customs officers.
In dissent, Justice Kennedy (for himself and Souter and Breyer), argued that Thomas failed to show "respect for the text." Not only did he disagree with the result, he argued that the case was "troubling... for the analysis it employs." In part, Justice Kennedy wrote:
This is not to suggest that the Court's reading is wholly impermissible or without some grammatical support. After all, detention of goods is not stated until the outsetof the second clause and at the end of the same clause the words "any other law enforcement officer" appear; so it can be argued that the first and second clauses of the provisionare so separate that all detentions by all law enforcementofficers in whatever capacity they might act are covered.Still, this ought not be the preferred reading; for betweenthe beginning of the second clause and its closing reference to "any other law enforcement officer" appears another reference to "officer[s] of customs or excise," this time in the context of property detention. This is quitesufficient, in my view, to continue the limited scope of the exception. At the very least, the Court errs by adopting arule which simply bars all consideration of the canons of ejusdem generis
In addition to joining Justice Kennedy's, Justice Breyer (with Stevens) wrote an additional dissent. He also wrote that the rejection of noscitur and ejusdem isolated the text too much. He wrote, in part:
In this case, not only the immediately surroundingwords but also every other contextual feature supports JUSTICE KENNEDY ’s conclusion. The textual context includes the location of the phrase within a provision thatotherwise exclusively concerns customs and revenue duties.
He then turned to the text's history and other indicia of meaning.
It is quite a neat case, and one that reinforces text and denies use of the interpretive canons.
January 22, 2008
Interesting New Georgia Acquiescence Case
This is pretty interesting, since I always find legislative acquiescence to be a troublesome concept.
We all know about the baseball case, Flood v. Kuhn, 407 US 258 (1972), which held that, because in 1922 and 1953 the Supreme Court had held baseball was not in interstate commerce, Congress had acquiesced in that interpretation through its "positive inaction." Okay, fine, baseball is the national pasttime, and no doubt Congress pays attention to baseball (steroids included). Perhaps it makes some sense to attribute "intent" to Congress to acquiesce in that interpretation.
Now, though, ponder RadioShack Corp. v. Cascade Broadcasting II, OOC, 653 S.E.2d 680 (Ga. 2007). The statute there made recoverability of certain attorney fees turn on whether the claim was on an "evidence of indebtedness." Long ago, a Georgia appellate court had held that commercial leases were "evidence of an indebtedness" under this statute, and several intermediate courts had done so since that time. The Georgia Supreme Court found this compelling enough evidence to state:
When the General Assembly acquiesces in the construction of a statute by the
Court of Appeals, the effect is not to bind this Court with that court’s precedents
in violation of the Constitution. To the contrary, the result is to establish the
legislative intent of the General Assembly which binds this Court, as well as all
others, in construing the statutory provision in issue.
The dissent, the Chief Judge, argued to the contrary and viewed silence as not sufficient to attribute intent. Interestingly, too, it raised other constitutional issues, perhaps limited to Georgia:
The majority opinion’s position on this point contradicts the
Georgia Constitution of 1983, which states plainly that “[t]he decisions of the
Court of Appeals . . . shall bind all courts except the Supreme Court as
precedents,”2 and that “[t]he decisions of the Supreme Court shall bind all other
courts as precedents.”3 Thus, this Court is writing on a “clean slate” where, as
here, it must decide an issue of first impression regarding statutory
interpretation, and prior interpretations by the Court of Appeals should be
considered for their persuasive value only
It's an interesting read all around.
IMHO, apart perhaps from Flood v. Kuhn and a few other "high profile" statutes, or where the legislature after the decision amends the statute but leaves intact the construed language, I think it dangerous to attribute much to silence.
January 21, 2008
Martin Luther King: 380 Statutes
At our church yesterday, we were reminded of the intellectual and social giant that we lost on April 4, 1968. No matter what you think of his politics or his persona, the man was brilliant and changed America, if not the world.
I ran a very simple search in all statutes in westlaw, and found there are 380 statutes that have his name. Most, of course, declare the holiday in his name. But many states also had "Martin Luther King, Jr. Commissions" designed to carry on his efforts at peaceful racial co-existence.
January 20, 2008
5th Circuit First Impression of BAPCA Homestead Exemption Cap
In In re Rogers, __ F.3d __ (5th Cir. Jan. 4, 2008), the court addressed 11 USC 522(p)(1), a cap on homestead exemptions enacted in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. It was the first circuit court to do so.
The statute reads, in relevant part: "[A]s a result of electing . . . to exempt property under State or local law, a debtor may not exempt any amount of interest that was acquired by the debtor during the 1215-day period preceding the date of the filing of the petition that exceeds in the aggregate [$125,000]2 in value in—real or personal property that the debtor or dependent of the debtor claims as a homestead." 11 U.S.C. § 522(p)(1)(D). The statute further states that “any amount of such interest does not include any interest transferred from a debtor’s previous principal residence (which was acquired prior to the beginning of such 1215-day period) into the debtor’s current principal residence, if the debtor’s previous and current residences are located in the same State.” Id. § 522(p)(2)(B).
The question for the court was what was an "interest" under this statute. The case recounts the enormous split in the lower courts on the question -- splits arising out of basic property law issues -- and is a good read. Stay tuned!