February 6, 2009
Statutory Interpretation, Curricular Reform, and Other Ramblings
One of the big things in academia right now is reforming legal curriculum. No doubt it needs it. But, what has happened is that a bunch of buzz words are being thrown out, and some tweaks here and there made, but, with few exceptions (Washington & Lee being a prime one), little major is being changed.
We're in the midst of this at Mercer. I've taught for 6 years now, after practicing for 14 full-time and 6 now here and there. For what it's worth (and there WILL be something about statlaw, so hold on), here's my thoughts:
First, there's a dire need of subject matter reform. Why on earth do we teach fee tail, for example, in many property courses? I ran a westlaw search, and the phrase has been used in 35 cases -- in the entire US -- since 1995, and almost all of them noted that fee tails had been abolished by statute. Why is contract formation so emphasized? Why is writing mostly about appellate briefs (I wrote maybe 20 appellate briefs in my career, and probably 300 trial oriented briefs, and I did a "lot" of appellate work.) Why is most time spent reading appellate, rather than trial court, decisions?
You get the drift.
Then there's statutes. Because of the focus on the old cases, there's a unrealistic de-emphasis of statutes. They matter far more than first year case books would suggest. Tort reform, reform of future interests, the UCC -- these all are less present in most casebooks than they are in most practices, I'd suggest.
Now, the tail of casebooks can't wag the dog of law school professors. They love teaching this old stuff because it's wonderfully familiar. "My gosh," they can say, "what if the 80 year old woman gets impregnated by the five year old. That would violate the rule against perpetuities!" It's easy, known, and "we did it so why shouldn't they." (It's also, to a degree, still on the bar, and that is another problem - the bar tests students for a world that does not exist, but that important point I'll leave for now.)
So, more statutes more often is one "reform" I'd vote for.
Related to that, a class that brought together the different skill sets that common law reasoning requires than statutory law. It can't be in the first year, though -- too much too soon - but something to give the students the forest from the trees..
Anyhow, back to your regular programming soon...
February 4, 2009
Interesting Blog About a West Virginia Zoning case.
The post on the law of the land blog begins:
In a case hinging on statutory interpretation, the West Virginia Supreme Court traces the legislative history of the planning and zoning enabling acts in the State from the initial enactment in 1931 with changes made in 1959, 1969, 1973 and 2004 with respect to the requirements related to the comprehensive plan and zoning.
Patent Statutes and the Denial of Literalism: The Way It's Always Been
I'm teaching patent law again after a year or two away, and it's fascinating to be reading the cases after having spent so much time dealing with statutory interpretation (I co-wrote a book on statutory interpretation, a teachers' manual, and of course this blog). My sensitivity about the issue is no doubt honed.
What is fascinating to me is that the courts, including the supreme court, routinely and expressly reject literal textual approaches. One example is Chief Justice Taney's opinion in Gayler v. Wilder, 51 US 477 (1850), in which he wrote that read literally,the statute called for a clear result, but that "we do not think this construction woudl carry into effec the intention of the legislature." The Court went further and engrafted additional requirements onto the statute that, frankly, its plain text could not support.
I write only because it was refreshing to see a court actually trying to accomplish the social good of efficiency, rather than throwing up its hands and abdicating to a "well, that's what the text says and it's up to Congress to fix it" approach that textualism can lead to.
The other interesting analog between patents and statutes is, of course, claim interpretation. That's for another day.
Changes Coming to the Supreme Court?
Will justices retire? Will the new SG change things? Who will President Obama nominate? You can find the answers here, which obviously could radically affect the Court's approach to statutory interpretation (and other issues, maybe!):
Study about when Supreme Court Justices retire reaches surprising conclusion. How's that for a tease about this article.
Will the new solicitor general lead to a shift to the left? You can learn the answer to that question -- about which reasonable minds could disagree, here.
I need a hero... a bomb-throwing hero.. to nominate for the Supreme Court. So argues Dahlia Lithwick, in an opinion piece, here.
February 3, 2009
More Crucial Cases Pending
The Texas Hold'em Case: a Follow up. Okay, I knew the case was important when I saw it, but Ted McClure pointed out to me that it even made the Volokh Conspiracy, here. This made me realize how crucial this was, so I thought I'd follow up... Volokh even points out that there's even a whole group dedicated to proving that poker is not a crime (I am not making this up, as you can see here).
The statute at issue reads:
If any person shall play at any tavern, inn, store for the retailing of spirituous liquors or in any house used as a place of gaming, barn, kitchen, stable or other outhouse, street, highway, open wood, race field or open place at (a) any game with cards or dice, (b) any gaming table, commonly called A, B, C, or E, O, or any gaming table known or distinguished by any other letters or by any figures, (c) any roley-poley table, (d) rouge et noir, (e) any faro bank (f) any other table or bank of the same or the like kind under any denomination whatsoever or (g) any machine or device licensed pursuant to Section 12-21-2720 and used for gambling purposes, except the games of billiards, bowls, backgammon, chess, draughts, or whist when there is no betting on any such game of billiards, bowls, backgammon, chess, draughts, or whist or shall bet on the sides or hands of such as do game, upon being convicted thereof, before any magistrate, shall be imprisoned for a period of not over thirty days or fined not over one hundred dollars, and every person so keeping such tavern, inn, retail store, public place, or house used as a place for gaming or such other house shall, upon being convicted thereof, upon indictment, be imprisoned for a period not exceeding twelve months and forfeit a sum not exceeding two thousand dollars, for each and every offense.
The statute is, um, a mess. Although the 92 odd comments at Volokh suggest the importance of this statute to America, I have way better things to do with my time than figure this out, but my instincts tell me this thing's been amended many times since its enactment some 206 years ago.
Why do I say it's a mess? The way it's written, if I play a game with cards AND dice, I can play anywhere and bet away, for example. Also, I think that read literally the statute precludes about any game known to man, if played in a bar, inn, or store, field, outhouse (clearly, it must refer to some other form of "outhouse" other than what I'm thinking of), or pretty much any other place or building, and if there's betting involved.
The article I posted below points out, however, that historically the statute had been construed by the South Carolina AG to permit games which were more skill than luck. Hence the question the judge thinks she faces: is poker more skill than luck?
So, what's the answer? With no dog in this hunt (since I suck at poker and so don't play, don't live in South Carolina, etc.), I'd start with the text: any game of cards or dice, with a bet, is outlawed. Add to that the assumption that the legislature has acquiesced in this skill/luck dichotomy. So, no betting on games that are more luck than skill in various buildings and places in South Carolina. The issue then becomes a question of fact.
Is there a stopping point along the way?
To ban poker with bets in various places: I suppose you could argue that the text doesn't support the AG's limitation on it, and so his luck/skill dichotomy is simply error, and so we'd want to look very hard at acquiescence. If the AG's approach fails... then you're left with a statute that bans card games with bets, and, while that's not necessarily a statute I'd adopt, you're then left with the ban.
To keep poker with bets in various places: One "out" you have is to find the AG's approach valid, and that poker is more skill than luck. If you pull both of those out of the hat, poker bets can be placed in outhouses and bars throughout South Carolina. If you take away the AG's interpretation, though, I think poker's in trouble. I see no way to avoid the plain text other than by adopting a very "activist" purposive approach that, frankly, I don't think you could attribute to the legislature of 1802 in South Carolina: that a game of betting, on cards is legal. I don't think the text gets you there.
If I was a betting man (which I am, but blackjack, and only in Vegas and Iowa), I'd bet against poker in South Carolina.
The Ringling Bros. Elephant Walk: Animal Abuse Masquerading as Entertainment? I don't want to in any way diminish the harm of animal abuse (my dog, Jenny, is a rescue), but eight years of litigation over a circus seems to be... a bit of a circus. Read about the forthcoming bench trial, relating to a question of first impression under the Endangered Species Act, here.
February 2, 2009
Wrongful Death and Survivor Statutes Construed in Kansas
Polson v. Farmers Ins. Co. (Ks. 2009) is one of those cases that bugs me, since I have a really really really hard time justifying the literalistic result of the case with... common sense. A couple is killed in a car wreck. No proof that one survived the other, and I assume such proof was impossible given they died nearly instantly. They have a policy that requires payment of funeral expenses to a "survivor."
It addresses the "specific/general" canon, and other issues. Ultimately, it seems to me odd that there must be proof that one person did not, even momentarily, survive the other. My intuition tells me it is probably impossible that one did not, in fact, "survive," the other; what are the odds of truly simultaneous death?
Anyhow, it's an interesting case. Legislators, if you're reading...