June 06, 2009
"Perceived poor drafting should not be regarded as a licence to invalidate plaintext readings in the name of fixing a statute that some believe is broken."
So said the Fifth Circuit in an interesting BAPCA case, interpreting the "hanging paragraph" at some length. I'm not a bankruptcy person (nor do I want to be one!), but it is an interesting case, Miller v. DaimlerChrysler Financial Serv., ___ F.3d __ (5th Cir. Jun. 5, 2009).
May 04, 2009
If a Whistleblower reports wrong-doing to the agency he works for, is that reporting it to "any other agency" under the Kentucky Whistleblower Act?
Yes, according to the majority in Workforce Dev. Cab. v. Gaines, 276 S.W.3d 289 (Ky. 2008).
No employer shall subject to reprisal, or directly or indirectly use,
or threaten to use, any official authority or influence, in any
manner whatsoever, which tends to discourage, restrain, depress,
dissuade, deter, prevent, interfere with, coerce, or discriminate
against any employee who in good faith reports, discloses,
divulges, or otherwise brings to the attention of the Kentucky
Legislative Ethics Commission, the Attorney General, the Auditor
of Public Accounts, the General Assembly of the Commonwealth of
Kentucky or any of its members or employees, the Legislative
Research Commission or any of its committees, members or
employees, the judiciary or any member or employee of the
judiciary, any law enforcement agency or its employees, or any
other appropriate body or authority, any facts or information
relative to an actual or suspected violation of any law, statute,
executive order, administrative regulation, mandate, rule, or
ordinance of the United States, the Commonwealth of Kentucky, or
any of its political subdivisions, or any facts or information relative
to actual or suspected mismanagement, waste, fraud, abuse of
authority, or , a substantial and specific danger to public health or
safety. No employer shall require any employee to give notice
prior to making such a report, disclosure, or divulgence.
KRS 61 .102(1) (emphasis added).
The state argued that ejusdem generis limited the phrase to agencies like those before it -- with investigatory powers -- and excluded others. The majority, relying largely on general absurdity canons and policy arguments, construed the statute liberally; the dissent argued that the case foretells the tend of ejusdem generis in Kentucky...
March 10, 2009
Can you shoot into a building you're already in?
February 10, 2009
There's an interesting article here about the race for election to the Wisconsin Supreme Court. That court has, for whatever reason, along with Michigan and Conneticutt (for the life of me, I can't spell it right!), have issued some of the more interesting and spirited statutory interpretation cases. (I'd guess that cases from those states comprise about 25% of our stat law book). It's interesting that their passion about statutory interpretation is, apparently, merely a small part of their overall passion!
February 09, 2009
Another Patent Statute Example
As noted below, I'm again teaching patent law and so the statutory interpretation issues are really jumping out at me.
The latest case is almost the mirror image, conceptually, from the one discussed below. In Thomson, SA v. Quixote Corp., 166 F.3d 1172 (Fed. Cir. 1999), the court recognized that the language it was interpreting, 35 USC 102(g), was not intended to apply to a particular circumstance, but, nonetheless held that it did apply. In a footnote (!) the court ignored the express statement of the "commentaries" that, in other contexts in patent practice, are given enormous weight, and instead relied on plain language (which one could easily debate) and later judicial constructions. It's way too esoteric for you non-patentees out there, but the juxtaposition of this case with the one below is fascinating.
Statutory Interpretation of Congressional Overrides
Deborah A. Widiss, a visiting assistant professor at Brooklyn law school, posted Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides, 84 Notre Dame L. Rev. 511 (2009) on SSRN. The abstract:
In both judicial decisions and critical commentary on statutory interpretation, the possibility of congressional override is generally considered a significant balance to the countermajoritarian reality that courts, through statutory interpretation, make policy. This Article demonstrates that the "check" on judicial power provided by overrides is not as robust as is typically assumed. One might assume that overridden precedents are functionally erased or reversed. But because Congress technically cannot overrule a prior decision, courts must determine whether the enactment of an override fully supersedes the prior judicial interpretation. Overrides thus raise unique, and previously largely ignored, questions of statutory interpretation. Using several examples from employment discrimination jurisprudence, an area of the law where Congress frequently overrides Supreme Court decisions, this Article demonstrates that the Supreme Court and lower courts often narrowly construe the significance of congressional overrides and instead rely on the prior judicial interpretation of statutes as expressed in overridden precedents. I call this phenomenon reliance on "shadow precedents."
The Article shows how reliance on shadow precedents threatens legislative supremacy and undermines the standard rationales offered for adherence to precedent. It argues that, in drafting overrides, Congress should strive to clarify the extent to which it disagrees with the prior judicial interpretation. It also argues that courts should adopt interpretive conventions that are more respectful of the significance of the enactment of an override: (1) a rebuttable presumption that an override supersedes the judicial interpretation of the pre-existing statutory language, thus requiring "fresh" interpretation of the original statute as well as the override, and (2) a rule that overridden interpretations are no longer binding on lower courts.
I haven't had a chance to read this yet, called to my attention by Ted McClure, librarian extraordinaire at Phoenix Law, but she seems to have spotted an interesting potential issue. On the face of the abstract, I agree that Congress cannot "erase" a precedent, but, just as clearly, if Congress changes a statute from language that had been interpreted as "you can do x" to an express statement that "you cannot do x" (to take the extreme example), any judicial effort to "keep" the precedent sounds to me like a matter of failure to abide by the judicial role...
February 04, 2009
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.
January 29, 2009
Interesting Charge of "Judicial Activism" In Mississippi
The dissent sets up his dissen this way:
[U]pon second reading, I was disturbed that the majority included no citation of statutory authority for the “fair-market-value” requirement imposed upon foreclosing creditors. The absence of authority, of course, pricked my curiosity. How, why, and when did the obligation to establish the fair market value of foreclosed property creep into our law? Surely, I thought, the strict constructionists with whom I serve on this Court – justices who
frequently eschew judicial activism and proudly proclaim that we “apply statutes as they are written” – didn’t just make it up.
Unfortunately, the evidence conclusively demonstrates that, although my colleagues were not directly involved, justices on this Court in previous years did just that, that is, they simply “made it up.” I do not make this charge lightly. Indeed, I have great respect for the venerable justices who have served this State and its citizens over the decades, and I shall in this opinion endeavor to document and support my views.
It's an interesting read. The case, Hartman v. McInnis, __ So.2d __ (Miss. 2008), is here.
January 05, 2009
New Article on Chevron
It's not yet on the Duke Law Journal Home Page but presumably soon will be: Lisa Schultz Bressman, Chevron's Mistake, 58 Duke L.J. 549 (Jan. 2009). I've only studied Chevron in fits and starts, but it seems to me that the categories it sets up are false, or at least incomplete and/or overlapping, which creates the problems about which she writes...
December 09, 2008
Supreme Court Clerks' Politics Affect Outcome. The study is here.
Texas Supreme Court Justice Fined for Illegal Contribution. The article is here. I remember when I first got to Texas and learned they elected their judges, including allowing contributions from lawyers who appeared before them. I thought, "what the...". I still think that.
December 07, 2008
Split Circuits... and so Nationwide Injunction Improper?
Now here's a cool one: messy interpretations of a regulation about allowing wheelchair access to stadium style theaters. Fifth Circuit goes one way; ninth goes another, but district court in the 9th enters a nationwide injunction requiring a theater owner to comply with its interpretation. One judge dissents from the interpretation, but two judges reverse the district court for failing to grant inter-circuit comity to the more lenient Fifth Circuit interpretation. Interesting case, US v. AMC Entertainment, __ F.3d __ (9th Cir. Dec. 5, 2008). I'd never thought about the issues that a nationwide injunction could result in when you have different interpretations. I bet that issue has been overlooked, too, in litigation!
December 05, 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 04, 2008
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.
November 14, 2008
Where's the Text, Counselor?
There's a nice bit here about Scalia criticizing counsel for not printing the statutory text in his brief, and apologizing when counsel in fact had done so.
Fifth Circuit Addresses Split on Charging Full Rates for Travel Time under 11 USC 330
In In re Babcock & Wilson, 526 F.3d 824 (5th Cir. 2008), the court addressed whether the district court had erred in awarding a firm only 50% of its usual hourly rates for time its lawyers spent traveling, but not working, in a bankruptcy proceeding. The statute, 11 USC 330, gives broad discretion to district courts, the Fifth Circuit ultimately held, and so it affirmed the trial court's award of only 50% of the rate for time spent traveling. It suggests, in my view, that any firm seeking compensation for such time be sure to make the record clear that firms in the locality charge for travel time at full rates. Interesting split.
October 31, 2008
Fascinating New Article on Interpretive Directives and Separation of Powers
You'll enjoy this: Linda Jellum (my colleague at Mercer University School of Law, and co-author of our book on statutory interpretation): 'Which is to Be Master,' the Judiciary or the Legislature? When Statutory Directives Violate Separation of Powers, __ UCLA L. Rev. ___ (2008).
The abstract pretty much explains her provocative view (I'm not yet sure I agree, and I know she takes issues with others):
Statutory interpretation is at the cutting edge of legal scholarship and, now, legislative activity. As legislatures have increasingly begun to perceive judges as activist meddlers, some legislatures have found a creative solution to the perceived control problem: statutory directives. Statutory directives, simply put, tell judges how to interpret statutes. Rather than wait for an interpretation with which they disagree, legislatures use statutory directives to control judicial interpretation.
Legislatures are constitutionally empowered to draft statutes. In doing so, legislatures expect to control the meaning of the words they choose. Moreover, they prefer to do so early in the process, not after a judge has interpreted the statute in a way they did not expect or intend. Judges are constitutionally empowered to interpret statutes without legislative-micromanagement. The question then is how to balance these valid, but competing, constitutional roles. This article explores when statutory directives violate separation of powers and concludes that when the legislature tries to control the process of interpretation, as opposed to trying to influence the outcome of interpretation to promote specific policy objectives, the legislature aggrandizes itself, oversteps constitutional boundaries, impermissibly intrudes into the judicial sphere, and becomes master of the interpretive process.
The article is forthcoming in the UCLA Law Review, and is on ssrn now, here.
October 25, 2008
Pennsylvania Suit at Core Challenges Legislative Process
Here's an interesting case, Common Cause of Philadelphia v. Pennsylvania, and an article about it. The dispute arose out of a 2005 pay raise to Pennsylvania legislators and judges. Common Cause challenged it, claiming that the former CJ of Pennsylvania had conspired with the legislators to pass the bill "in secret" without hearings, etc.
Standing has been raised as the principal challenge by the defendants, as reported in the article, so we may never know "how much, if any, process is due" in the legislative process to citizens. interesting case.
October 23, 2008
The Statute of Frauds: What is a "writing"?
I teach property, and of course one topic we cover is the statute of frauds. Generally, a state will require contracts for the sale of land to be "in writing." What is interesting to me is the split on what "writing" means. Some courts interpret "writing," for example, to require that the writing must clearly describe the land, without reference to any extrinsic evidence; others hold that so long as there's some writing, extrinsic evidence is almost always admissible to firm up which land is in issue; finally, others adopt a middle interpretation, holding that the description has to be reasonably clear (an amorphous test), and if so it's a "key" that opens the door to extrinsic evidence.
It's interesting that even at this very basic, ancient level, we have splits. I wonder if anyone's ever traced them back to the sources -- policy, purpose, (can't be textual), or what...
Civ Pro: Last Served Defendant Split Continues
The Eleventh Circuit joined the "does time run from the first-served, or last-served" defendant for purposes of the removal statute, adopting the last served rule. The case, Bailey v. Janssen Pharma., __ F.3d __ (11th Cir. 2008), was decided by a unanimous panel.
October 20, 2008
Tidbits about Law & The Election
Texas: Contributions Flow, Candidates Divided. There's an article here about my old home state of Texas and how the Democrats are trying to unseat conservative Republicans who have taken control of the state, dramatically reducing (properly or not, I don't know) consumer protection by decreasing liability.
If Obama Wins, Stevens Resigns? There's an article here about the impact on the Court of the potential Obama presidency.
Speaking of Texas Judges.... I know some of the judges involved in this one.