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February 22, 2008

New Article by one of my Casebook Co-authors

Linda Jellum -- my colleague at Mercer and a great friend -- just had a piece published and has put the published version on ssrn:

Chevron's Demise: A Survey of Chevron from Infancy to Senescence, 59 Admin. L. Rev. 725 (2007)

Abstract: This article explores Chevron's role in statutory interpretation. In Chevron the Supreme Court resolved the question of how much deference courts must give to an agency's interpretation of a statute: first, determine whether Congress had decided the issue; if not, then defer to any reasonable agency interpretation. But Chevron has proved to be less clear, predictable, and simple than originally envisioned. For example, exactly how searching should the inquiry be at the first step? Should a court limit its search to the text of the statute at issue, or should a court look more broadly for Congressional intent? These are different questions. And, more importantly, the answer directly impacts the distribution of lawmaking power among the three branches of government.

This article explores the Court's reformulation of Chevron's first step and ultimately concludes that Chevron's importance is fading: where Chevron's early application knew no bounds, today, Chevron applies less often and is cited by the Court far less frequently. In the end, the Court's reformulation of Chevron's first step has hastened Chevron's demise.

February 22, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack

February 21, 2008

Wednesday's Supreme Court Rulings

The court found that Congress in regulating certain medical devices intended to preempt state products liability tort law in Riegel v. Medtronic.

It also held federal statutes regulating tobacco sales to minors preempted state regulation, in Rowe v. N.H. Motor Transport Ass'n.

Finally, it also found federal preemption in a case implicating the FAA, or Federal Arbitration Act, in a case involving "Judge" Alex, Preston v. Ferrer.

In one victory for a plaintiff, though, it held that employers can be sued under ERISA for mismanagement of employee 401(k)'s in Larue v. DeWolf, Boberg & Assocs.

I'm on the road, to give a speech in Virginia, but will try to read and think on them. On the surface, federal government wins, and plaintiffs lose. Perhaps that was Congress's intent.

February 21, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack

February 20, 2008

Cracker Barrel v. Humphries Transcript

The oral argument transcript is here.  I'm about to read it.

Interesting stuff on the "which body of law applies question!"  Here's Chief Justice Roberts:

CHIEF JUSTICE ROBERTS: We do have those recent cases, but we also have the Sullivan case interpreting -- interpreting 1982, which arose under the prior approach to these questions. And my question for you is: Under principles of stare decisis, which body do we follow, the earlier case interpreting 1982 under the more freewheeling approach to statutory interpretation or this later body of law that says we're not going to do that any more?

And Justice Ginsburg:

Wouldn't Congress, when it revised 1981 in 1991 been aware of Sullivan and expect this Court to interpret those twin statutes the same way?

And Scalia on the impact of legislative reports:

MS. HYNDMAN: Well, the Court has already implied a cause of action and the question is whether -

JUSTICE KENNEDY: I understand that, and -and there certainly is a cause of action as to all the terms in the contract, but you want to add -- for me to add a new term. You can't use the existing terms to say

JUSTICE SCALIA: It could have been a teenager who wrote the report.

Justice Kennedy, questioning counsel for the plaintiff below repeatedly asked where there was language in the statute authorizing a retaliation claim, and didn't like the plaintiff's answers to his question. Scalia thought that someone who is fired in retaliation for complaining about racial harassment is not fired on the basis of race.

Finally, here's the start of the Solicitor General's argument, which continues a theme discussed in a post below, about whether the "old" approach to implied causes of action, or the new narrower one applies.  This is the Solicitor General beginning his talk:

This Court has already inferred a private cause of action under section 1981. So the question before the Court now is simply the scope of the basic guarantee in section 1981 and particularly whether it prohibits retaliation against someone who exercised their undoubted right to complain about racial discrimination in a contractual process.

JUSTICE SCALIA: It's a little more complicated than that. We inferred that cause of action in the bad old days, when we were inferring causes of action all over the place.

Now, the position the Government takes here is that we should infer this new cause of action to assist the one that's already on the books. Is the Government going to be consistent in this position? And you want us to in the future go back to our prior practice of readily inferring causes of action that are not set forth in the -- in the text of this statute?

Is the Government willing to live with that?

GENERAL CLEMENT: No, Justice Scalia, we're not asking to you to go back to the bad old days. But I think it's important to recognize that we are simply asking you to interpret the scope of the cause of action you've already inferred. And I think that's consistent

JUSTICE SCALIA: Patterson was still the bad old days. When do you think the bad old days ended?


GENERAL CLEMENT: Patterson was 1989. I don't think anybody thinks Patterson was the bad old days.

JUSTICE SCALIA: Oh, I'm sorry. I was thinking of Sullivan.

GENERAL CLEMENT: The bad old days ended when you got on the Court, Mr. Justice Scalia.


When I was writing our statutory construction book, I focused right on this issue, and so I find this fascinating as all heck. Yes, I'm a geek.

February 20, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack

More on Cracker Barrel

The briefs are collected on the ABA's Supreme Court Preview site (here)

They're interesting. The provision of the statute, 42 U.S.C. § 1981, a part of the Civil Rights Act of 1866, and later amended in the Civil Rights Act of 1991, reads:

Section 1981(a) – All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens . . . . Section 1981(b) – For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. Section 1981(c) - (c) The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.

The plaintiff claimed he was fired in retaliation for complaining about racial harassment by his supervisor. The plaintiff's apparent procedural errors left plaintiff without a claim for retaliation under Title VII, and only with a possible claim for retaliation under Section 1981, however.

Both sides argue the text doesn't allow a retaliation claim. The defendant-petitioner says, basically, it doesn't say "retaliation" and other statutes do. The respondent, who won below in a decision that also resulted in the overruling of a prior circuit decision to the contrary, has a more subtle argument, relying on the fact that the statute creates rights, and it's axiomatic that a right includes the protection for being retaliated against for exercising that right.

They go way beyond that, including a discussion about time and statutory interpretation caselaw: should the statute be interpreted in accordance with the prevailing interpretive norms of the time it was adopted? As noted below, I think the answer to that has to be yes, otherwise you clearly have judges changing the meaning of enacted text.

Oral argument is today. I'll post a link to it later on. This could result in a sea change in statutory interpretation. I'm fearful, personally, that the judicial activists we have on the court will reach the result they want regardless of the strength of either argument, but I've grown cynical in my old age.

February 20, 2008 | Permalink | Comments (0) | TrackBack

February 19, 2008

Einer Elhauge: Statutory Default Rules

In the mail today came a copy of Einer Elhauge, Statutory Default Rules: How to Interpret Unclear Legislation (Harv. Univ. Press 2008). 386 pages. It can be ordered here.  According to its copyright page, it actually doesn't get published until February 28, so I feel sort of special getting it now, and will read through it (my reading pile is growing, though) as I can.

From the publisher's web page:

February 19, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack

February 18, 2008

Interesting Short Piece on Shall and May in the Constitution

Seth Tillman has a piece on SSRN "A Fragmaent on Shall and May" that's a neat read.  It's available here.

I know less about Constitutional interpretation than most, but it seemed pretty compelling to me purely from the points it makes about language.

February 18, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack

Cracker Barrel v. Humphries

Section 1981 Case to be Argued Tuesday, February 20.  There's an interesting piece here about a case to be argued tomorrow, about whether Section 1981 claims include claims for firing for reprisal.  A neat summary of the case, each side's positions, and the cert question are here. 

It's an interesting case that raises some plain text issues, but also some about the scope of the statutory cause of action and implied rights.  We tackle a closely related issue in our casebook on statutory interpretation, and I find the issue that this case may ultimately turn on fascinating: what if a statute is adopted at a time when statutory rights are more broadly found to be implicit than today. Should that statute be interpreted in accordance with that approach, or the (admittedly) narrower approach now used by the courts in defining the boundaries of statutory rights?  Quite a neat case.  The SCOTUS wiki for it is here.

My own view is that if the goal is to give text plain meaning, the approach used by the courts at the time the statute was adopted ought to control. Any other approach, I submit, ignores the text as well as Congressional intent.

But what do I know?

February 18, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack