December 5, 2008
More Recent Articles of Note
Sydney Foster, SHOULD COURTS GIVE STARE DECISIS EFFECT TO STATUTORY INTERPRETATION METHODOLOGY?, 96 Geo. L.J. 1863 (2008). The SSRN version is here. The (another one I'm to read) abstract:
Fifty years ago, Henry Hart and Albert Sacks famously observed that the methods that courts use to interpret statutes are unpredictable and inconsistent, a conclusion that scholars and judges agree remains equally true today. While there is vehement disagreement over which doctrines of statutory interpretation are best, there is widespread consensus that increased consistency would be superior to the status quo. Scholars and judges have considered a range of ways to remedy this situation, but they have overlooked a path to consistency that is tailor-made to render the unpredictable more predictable: stare decisis doctrine. This Article argues not only that courts should give doctrines of statutory interpretation methodology stare decisis effect, but also that courts should give even stronger stare decisis effect to doctrines of statutory interpretation than they give to doctrines of substantive law. The interests that stare decisis doctrine serves in the substantive law setting are served equally well in the statutory interpretation methodology setting; moreover, stare decisis serves important rule-of-law and coordination interests in the statutory interpretation methodology setting that it does not serve in the substantive law setting. Because the case for giving stare decisis effect to doctrines of statutory interpretation is stronger than the case for giving stare decisis effect to doctrines of substantive law, courts should give doctrines of statutory interpretation stronger stare decisis effect than their substantive law counterparts.
Webster, Walbolt & Davis, Statutory Construction in Florida: In Search of a Principled Approach, 9 Fla. Coastal L. Rev. 435 (2008).
Brian G. Slocum, The Problematic Nature of Contractionist Statutory Interpretations, 102 Nw. U. L. Rev. Colloquy 307 (2008). The SSRN version is here. The abstract:
The main thesis of Daniel B. Rodriguez and Barry R. Weingast's recent article, The Paradox of Expansionist Statutory Interpretations, 101 NW. U. L. REV. 1207 (2007), is important: the voting decisions of legislators can be influenced by the activist statutory interpretations of courts. Specifically, the authors demonstrate that the broad interpretations of progressive legislation made by courts in the 1960s and 1970s undermined the legislative deals struck between ardent supporters of progressive legislation and the moderate legislators necessary for passage of the statutes. Although these expansionist interpretations broadened the reach of important progressive legislation, they had the effect of discouraging moderate legislators from supporting progressive legislation and are partly to blame for the current polarization of Congress and the paucity of such legislation.
Rodriguez and Weingast explain that courts in the 1960s and 1970s were able to achieve expansionist interpretations of progressive legislation by misusing legislative history to support inaccurate conclusions about the intent or purpose of Congress. While the article's insights about expansionist interpretations and the misuse of legislative history are an important contribution to statutory interpretation scholarship, the interpretive mistakes made by courts are largely different now than in the 1960s and 1970s. For some time, the dominant trend has been for judges to rely more on rules of interpretation that typically narrow statutory meaning and less on pragmatic analysis or conclusions about likely congressional intent or purpose. This Essay criticizes the current judicial predilection for contractionist statutory interpretations. The Essay argues that while contractionist interpretations may not discourage moderate legislators from supporting legislation, they are problematic because they are inconsistent with the judiciary's role as faithful agents of Congress
December 4, 2008
Very interesting piece from Australia (not the movie) on Statutory Interpretation
Thanks, Ted McClure for this tip, an article I'm sure to read:
Mark L Humphery von Jenner (Australian School of Business at UNSW) has posted Should Common Law Doctrines Dynamically Guide the Interpretation of Statutes? on SSRN. Here is the abstract:
Common law and statute have a complex relationship. Some literature has examined if statutory developments should influence common law doctrines; however, the literature has not examined if and how common law doctrines should influence the interpretation of statutes. Dynamic guidance is one approach to the relationship between common law and statute. Dynamic guidance has two limbs: first, it allows common law doctrines to influence the interpretation of statutes, and second, it allows courts to update interpretations if common law doctrines change. However, the normative validity of dynamic guidance is unclear. This article considers if dynamic guidance is valid. This article argues that dynamic guidance is normatively valid; and thus, that common law doctrines should dynamically guide the interpretation of statutes.
Judicial Clerk Writes an Interesting Statutory Interpretation Article
Peter R. Moyers has posted on SSRN his soon-to-be-published piece, Butchering Statutes: The Postville Raid and the Misinterpretation of Federal Law. The abstract:
On Monday, May 12, 2008, the Bureau of Immigration and Customs Enforcement led an immigration raid at the Agriprocessors, Inc. meatpacking plant in Postville, Iowa. The local U.S. Attorney's Office pursued criminal complaints against approximately 300 migrant workers. The raid at Postville remains the nation's largest criminal immigration raid. I aim to provide a detailed and accurate account of the investigation of Agriprocessors, the raid, the criminal prosecutions, the sentencings and the aftermath. In so doing, I argue that a confluence of factors explain the number of individuals arrested and the accelerated criminal proceedings.
I describe how the investigation of Agriprocessors led to the raid and criminal prosecutions. I show that the defendants, though not technically coerced, were the victims of systemic coercion. Such systemic coercion produced prompt resolutions of their cases, which propelled the guilty pleas and sentencings.
I then argue that the accelerated process was premised upon two flawed interpretations of federal law, without which the guilty pleas and removal orders could not have been achieved. First, the USAO employed section1028A(a)(1) of Title 18, aggravated identity theft, which imposes a two-year mandatory, consecutive sentence to any defendant convicted under it, to leverage expedited plea agreements. The interpretation is erroneous, because the statute was intended to cover only true identity thieves, not those who did not know whether the means of identification they used belonged to another actual person.
Second, I address section 1228(c)(5) of Title 8, judicial removal, which permits a federal district court to enter an order of removal against a criminal defendant as part of a plea agreement with the government. I argue that the district court improperly applied the statute, because the statute only applies to defendants who are lawfully admitted to the United States. The Agriprocessors employees were never lawfully admitted to the United States. Such orders of removal were invalid on their own terms.
I argue that these mistaken applications of federal law are prone to repetition, because the relevant players cannot be relied upon to insist on the proper application of the operative statutes. Finally, I argue rectifications of these misinterpretations are likely to diminish the feasibility of future raids followed by imprisonment.
December 3, 2008
What if the Statute Makes Possessing 400 grams of Meth a crime: does it include the liquid Carrying the Meth?
State v. Conway, __ S.E.2d __ (N.C. App. Dec. 2, 2008) answered the question in the negative in a very thorough case. It reminds me of that series of cases analyzing whether the weight of paper carrying LSD "counts" toward the weight of the drug, or not. An interesting case of first impression from a North Carolina appellate court.
December 2, 2008
Mens Rea Requirement in 21 USC 841(c)(2)
Here's an interesting one. This statute provides in pertinent part:
Any person who knowingly or intentionally...
(2) possesses or distributes a listed chemical knowing, or having reasonable cause to believe, that the listed chemical will be used to manufacture a controlled substance except as authorized by this title...
shall be fined in accordance with Title 18, or imprisoned...
There's a split on whether the defendant must subjectively know that the drugs he possesses will be used to make a controlled substance, or whether he has subjective knowledge or "cause to believe." See U.S. v. Khattab __ F.3d __, 2008 WL 2971808 (7th Cir. Aug. 5, 2008) (discussing split). It seems to me pretty clear that either is enough, but the 10th circuit requires "actual knowledge, or something close to" it. Am I missing something?
December 1, 2008
Interesting State and Federal Split
In Dallas v. State, __ S.E.2d __ (Fla. App. 2008), the defendant sold cocaine, and then walked away with the money. The state charged him with selling cocaine and unlawful transportation of currency. He argued on appeal that his motion for judgment on the second count should have been granted because there was no evidence that he had the cash with intent to promote unlawful activity. Noting that it had found it proper to convict someone when they were carrying cash to buy cocaine, the court nonetheless reversed this conviction, but noted that there was a split even among federal courts on the issue of whether carrying the money after a crime is done "with the intent to promote the carrying on of specified unlawful activity," as the state statute required. It reasoned:
The State argues that because no Florida case has addressed the issue of whether the statute includes transporting money to promote past crimes, this Court should look to federal cases dealing with that issue under the federal money laundering statute, from which the Florida statute was adopted. Specifically, the State cites three federal cases holding that Title 18 United States Code, Section 1956, encompasses the act of accepting and negotiating or depositing a check derived from the proceeds of
illegal activity. United States v. Valuck, 286 F.3d 221, 227 (5th Cir. 2002); United States v. Bencs, 28 F.3d 555, 562 (6th Cir. 1994); United States v. Paramo, 998 F.2d 1212, 1218 (3d Cir. 1993). For example, in Paramo, the court rejected the defendant's argument that one cannot promote an already completed illegal activity. It noted that the definition of "promote" -- to contribute to an activity's growth or prosperity -- includes not only ongoing and future activity but also prior activity. Based on this reasoning, the court upheld the defendant's money laundering convictions for cashing checks from the proceeds of past mail fraud because such actions created value out of an otherwise unremunerative enterprise. 998 F.2d at 1218.
In reply, Dallas points out two problems with the State's reliance on these federal cases. First, he correctly notes that federal law is in conflict on this issue. Not all federal circuits adhere to the position that the federal money laundering statute criminalizes transactions that promote prior criminal activity. In fact, the court in Valuck noted this split of authority, acknowledging the following cases taking a contrary position:
United States v. Jolivet, 224 F.3d 902, 909 (8th Cir. 2000) (reversing promotion conviction because subsequent activity cannot "promote the carrying on of an already completed crime"), and United States v. Heaps, 39 F.3d 479, 486 (4th Cir. 1994) (expressly rejecting broad statutory interpretation
employed by Third and Ninth Circuits as inconsistent with congressional intent). Cf. United States v. Calderon, 169 F.3d 718, 722 (11th Cir. 1999) (questioning whether the decisions of the Third, Sixth, and Ninth Circuits "were rightly decided," but not deciding the issue)