Statutory Construction Blog

Chevron Deference Due "No Smile" Virginia DMV Rule?

Virginia became, I think, the fourth state to adopt a "no smiling for your driver's license photo" state, doing so by DMV reg, according to this story.

One of the things I've been pondering, seriously, is how we've made everything (we being lawyers; everything being everything) so complex that it makes huge social costs.  I mean, if someone challenges the DMV rule (and no doubt someone will), then (assuming Virginia follows a Chevron-type analysis) a messy 3 step process begins (is it procedure, or substance? if substance, was it ambiguous or delegated to the agency? If so, was the decision not insane?).  

The weight of even statutory interpretation -- canons, and theories and arguments about what "counts" and what does not.  How much does this cost us?  Is it really necessary? 

Don't we need just more engineers and designers, not people making complicated social rules even more complicated and costly?

Now back to your usual programming.

The Supremes' Review of Sotomayor's Statutory Construction Cases

I ram a simple Westlaw search and found 3 cases where the Court reviewed a decision of Judge Sotomayor that involved statutory construction.

They're real snoozers, and am not sure they tell us much but...

The question in the latest was  “Whether [§ 1326(b) ] ... authorizes the [EPA] to compare costs with benefits in determining ‘the best technology available for minimizing adverse environmental impact’ at cooling water intake structures.”   Entergy Corp. v. Riverkeeper, Inc., 129 S.Ct. 1498 (2009).  Boiled down, the 2d circuit had remanded, but the supremes held the EPA had discretion to do cost/benefit analyses under the particular statute.

Knight v. IRS, 128 S.Ct. 782 (2008) affirmed her decision involving a thrilling tax statute.  The opening paragraph says it all:

Under the Internal Revenue Code, individuals may subtract from their taxable income certain itemized deductions, but only to the extent the deductions exceed 2% of adjusted gross income. A trust may also claim those deductions, also subject to the 2% floor, except that costs incurred in the administration of the trust, which would not have been incurred if the trust property were not held by a trust, may be deducted without regard to the floor. In the case of individuals, investment advisory fees are subject to the 2% floor; the question presented is whether such fees are also subject to the floor when incurred by a trust. We hold that they are and therefore affirm the judgment below, albeit for different reasons than those given by the Court of Appeals.

Third, in Merrill Lynch, Pierce Fenner & Smith, Inc. v. Dabit, 547 U.S. 71 (2006), the 2d circuit got reversed and the seventh affirmed:

Title I of the Securities Litigation Uniform Standards Act of 1998 (SLUSA) provides that “[n]o covered class action” based on state law and alleging “a misrepresentation or omission of a material fact in connection with the purchase or sale of a covered security” “may be maintained in any State or Federal court by any private party.” § 101(b), 112 Stat. 3230 (codified at 15 U.S.C. § 78bb(f)(1)(A)). In this case the Second Circuit held that SLUSA only pre-empts state-law class-action claims brought by plaintiffs who have a private remedy under federal law. 395 F.3d 25 (2005). A few months later, the Seventh Circuit ruled to the contrary, holding that the statute also pre-empts state-law class-action claims for which federal law provides no private remedy. Kircher v. Putnam Funds Trust, 403 F.3d 478 (C.A.7 2005). The background, the text, and the purpose of SLUSA's pre-emption provision all support the broader interpretation adopted by the Seventh Circuit.

Not sure these cases will be the subject of blazing cross-examination at the confirmation hearing...

Empathy, Strict Construction, and Sotomayor

I don't normally make this a focus on SCOTUS, for the obvious reason that about 9,000 other blogs focus on what it does, but I do feel the need to say a word about the nomination and this hubub over "empathy" and courts making "policy."

It seems to me utter stupidity to suggest that judges do not experience empathy, or make policy, every day when interpreting statutes. Indeed, the choice of what approach to interpretation to take (textualism, etc.) is itself a policy choice that furthers certain policies while frustrating others.  Words must be read in context, and context is influenced by our upbringing and backgrounds -- empathy, as I understand how the word is being tossed around. I personally might feel more empathy toward a criminal with a horrible childhood than someone else might, and that might cause me to read a statute more narrowly than someone else might. To pretend that these things do not occur, however, is idiotic.

Anyhow, maybe we can just come up with word processors for Justices, and they can just examine the text based on some boolean search strings, and decide meaning, and we'll be done. Who needs a judge if that's all it is.

More on "the law of interpretation of tax laws"

They're blogging seriously about this here... my own view has become that statutory interpretation has grown way too complex already, and the last thing we need, apart from taking the context of tax laws into account, is a separate body of law about interpreting statutes. My goodness.

Interesting Split on Plain Meaning under BAPCA

Section 707(b)(2)(A)(iii)(I) (no, I am not making that up) of the bankruptcy statutes, which creates a "means test" for when a case can be dismissed for abuse of the bankruptcy system has created an interesting split, addressed in In re Stewart. __ F. Supp.2d __ (Bankr. D. Or. March 16, 2009).  That court wrote in part: "Although most courts on either side of the split agree that interpretation of § 707(b)(2)(A)(iii)(I) is governed by the plain language of the statute, their interpretations differ."

Although the case presents, I am sure, an interesting question for bankruptcy lawyers, it also raises to me the interesting question of ambiguity: how can any court, once there is a split in meaning, say that plain meaning controls, and that the statute is unambiguous?