Statutory Construction Blog

Does "Collision" Require More than a Car Collide with the Road?

"Yes, according to a fun Hawaii Supreme Court case, State v. Bayly, 185 P.3d 186 (Haw. 2008), available here, which begins:

Because the evidence adduced regarding the alleged "collision" is not in dispute, the question whether a "collision" occurred is a pure question of law. Specifically, at issue in this case is whether contact between the bottom of a truck and the surface on which the vehicle sits -- be it a road or a parking lot -- constitutes a "collision." More broadly, the basic issue is whether a "collision" occurs when some part of a vehicle contacts only the road itself.

The court reversed the appellate court's holding that evidence of a collision between the bottom of Bayly's truck and the concrete parking lot surface was enough.

A nice fun case.

Citing Hamdan, Federal Circuit Heavily Relies on Leg History

This is an obscure issue-- whether the Contract Disputes Act abrogated claim preclusion doctrine. In Phillips/May Corporation v. U.S., 524 F.3d 1264 (Fed. Cir. 2008). The court's analysis begins:

Phillips argues that claim preclusion does not apply here because the Contract Disputes Act of 1978, Pub. L. No. 95-563, 92 Stat. 2383 (“CDA”), specifically permits a claimant to split claims arising from the same contract between an agency board of contract appeals and the Court of Federal Claims. The CDA allows contractors a choice of forum for their appeals:

[I]n lieu of appealing the decision of the contracting officer . . . to an agency board, a contractor may bring an action directly on the claim in the United States Court of Federal Claims, notwithstanding any contract provision, regulation, or rule of law to the contrary.

41 U.S.C. § 609(a)(1). Phillips argues that section 609(a)(1) allows a contractor to choose the appellate forum for each of its claims, and that a court may not interfere with the contractor’s choice. In support of this view, Phillips urges that section 609(d) of the act specifically contemplates the splitting of claims between the Court of Federal Claims and the agency boards because it provides for, but does not require, consolidation of such separate proceedings. Section 609(d) provides

:

If two or more suits arising from one contract are filed in the United States Court of Federal Claims and one or more agency boards, for the convenience of parties or witnesses or in the interest of justice, the United States Court of Federal Claims may order the consolidation of such suits in that court or transfer any suits to or among the agency boards involved.

Id. § 609(d). Admittedly, the statute is somewhat ambiguous as to whether it permits (1) the filing of all claims arising from a single contract in separate fora, or (2) only claims that do not arise from the same transactional facts. We have not previously addressed this question. However, the history of the CDA makes clear that the statute is not designed to alter the usual rules of res judicata.

Federal Interpretation Impact on State Law

The language of Iowa‟s civil rights act for the 180 day period to raise a violation is modeled after the federal statute, which requires that a charge be filed within 180 days “after the alleged unlawful employment practice occurred.” 42 U.S.C. 2000e-5(e)(1) (2000). Iowa Code section 216.15(12) requires that a complaint be filed within 180 days “after the alleged discriminatory or unfair practice occurred.” Suppose an employee is told that a renewable contract won't be renewed; does the 180 days run from the day she's told that, or the day the contract is not renewed?

It's the earlier, according to Woomert v. Iowa Civil Rights Comm'n, available here. It discusses the impact of federal interpretations on state law, and adopts the federal approach, and so held her claim time-barred.

It's interesting when these modeling statutes are given the same interpretation as later decisions of the federal courts, as opposed to earlier ones. Not sure I'd agree that it automatically follows that a legislature in 1980 had in mind an interpretation adopted in 1990, in other words...

Slaughtering Hogs; Slaughtering Statutes?

There's an interesting decision, not yet posted on the judge's web page, styled In re Knudsen, 2008 WL 2413155 (N.D. Iowa 2008). It presents a question of first impression under BAPCPA, and specifically the meaning of the 2005 amendment to 11 U.S.C. § 1222(a)(2)(A). The opinion begins:

Can family farmers, who liquidated their slaughter hogs to convert their farming operation from a farrow-to-finish hog operation to a custom hog-raising operation, obtain the benefits of an amendment to 11 U.S.C. § 1222(a)(2) under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”), Pub.L. No. 109-8, 119 Stat. 23, that would allow the taxes generated by the sale of their slaughter hogs to be treated as an unsecured claim against their bankruptcy estate subject to discharge? This and other questions are raised on cross-appeals by the family farmers and the United States, on behalf of the Internal Revenue Service, from an order of the bankruptcy court denying confirmation of the family farmers' Chapter 12 plan for reorganization. Few-or no-courts have passed on the questions presented here, so that the court finds itself writing on a nearly clean slate, guided by statutory language, legislative history, and bankruptcy policy.

A Tax Statute Construed by Supremes in Split

As a matter of policy, I don't have the faintest idea what this case is about: Florida Dept. of Rev. v. Piccadilly Cafeterias, Inc., 2008 WL 2404077 (June 16, 2008). But the statutory interpretation issues are cool. I'll write more about it later, below...

Tid Bits and Follow-ups

Florida Supreme Court Balancing Whistle Blower Rights and Religious Freedoms. Interesting oral argument just took place Thursday in a case involving the alleged firing of a secretary from a Catholic school for complaining that her supervisor assaulted her. An article on it is here.

The CAFA "not less than 7 days" Appellate Rule Split Continues. Section 1453(c)(1) provides that “a court of appeals may accept an appeal from an order of a district court granting or denying a motion to remand a class action to the State court from which it was removed if application is made to the court of appeals not less than 7 days after entry of the order.” As written, it requires appellants to wait 7 days, then gives them forever to appeal. The courts split with some holding "less" is "more" while others saying "less" means "less." The Seventh Circuit noted the split but in Spivey v. Vertrue is here, held "less" means "less." Easterbrook wrote in part:

That Congress has written a deadline imprecisely, or even perversely, is not a sufficient reason to disregard the enacted language. So the Supreme Court held in Dodd v. United States, 545 U.S. 353 (2005), and United States v. Locke, 471 U.S. 84 (1985). See also, e.g., Lamie v. United States Trustee, 540 U.S. 526, 533–39 (2004). Turning “less” into “more” would be a feat more closely associated with the mutating commandments on the barn’s wall in Animal Farm than with sincere interpretation. (Ludwig Mies van der Rohe, the architect who designed the courthouse in which the Seventh Circuit sits, adopted “less is more” as his motto, but this credo of Bauhaus design did no violence to any enacted text.)

Gitmo - In Case You're Living in a Cave

The Boumediene case is here. An article about its possible impact on other areas is here.

Tidbits

Technology and Constitutions. Related to a post below, a New York court addressed whether state use of GPS data violated a motorist's constitutional right to privacy. According to this article, two to one, the majority held it didn't, with the majority reasoning that the information -- location of the car -- was no different than the information that could have been obtained by simply watching. The dissent pointed out the difference in quality of the information. Stay tuned.

Law Jobs in Decline. For 3 months in a row now, according to this article. Perhaps that's actually good news. Maybe we can redirect some bright talent to doing, rather than arguing? Not meaning to wax political, but I am so hopeful we get someone elected who puts in place an "Apollo Program" to get us away from petroleum. I'm not holding my breath; I am crossing my fingers.

Virginia Anti-Spam Statute Under Constitutional Attack. After affirming his conviction, the Virginia Supreme Court has allowed additional briefing on an over-breadth challenge. The article is here.

Legislative Reforms Slow Oklahoma Supreme Court Caseload. An interesting piece here about the impact of various legislative reforms, as well as the rise of ADR, on the court's caseload.

Impact of Statutory Interpretation on Innovation

This is an extremely interesting piece, and I found it on line: D. Gordon Smith & Masako Ueda, Law & Entrepreneurship: Do Courts Matter, published in an Ohio States Law School journal, and on-line in pdf here. It is quite interesting, even though the statutory interpretation part is about 2/3 the way in, I suggest reading from the start.

It raises an issue I hadn't focused too much on, but I've been asked about and thought about now and again: should statutes be interpreted in light of technological change? For example, if a statute talks about "intercepting" an electronic communication, should we read that in light of technology as it was, or as it is? A common law example would be conversion: courts still struggle with whether the "old" rule that there had to be tangible property taken, and the fact that most value today is intangible. In that area, you see courts taking a "textualist" approach, if you will, to common law cases and limiting the law to tangible property, while others take a much more "purposive" view, and expand the tort to even purely intangible property.

Interesting read. It would be interesting to compare those conversion cases with the cases they are talking about, as they're parallel in many ways.

Tid Bits: Supreme Court News

Judge Thomas's Story About Yale Called into Doubt. There's a fascinating piece here about how some question Thomas's story that he could not get a job upon graduating from Yale due to its affirmative action program. It does seem hard to believe, but I wasn't much aware of what was happening in 1974, as I was about 12.

Supremes Interpret Money Laundering Statute. There's an article here, and a unanimous case is here, and a 5-4 case is here. The 5-4 decision made strange bedfellows and adversaries, and is somewhat interesting.

Supremes interpret Equal Access to Justice Act. The case is here.

Supremes Split on Retaliation Claims in Cracker Barrel v. Humphries

CBOCS West, Inc. v. Humphries, 2008 WL 2167860, ___ U.S. __ (May 27, 2008), came out in favor of the plaintiff, relying extensively on stare decisis rather than plain text, which, of course, sparked a strong dissent by Thomas and Scalia.

That debate to me is quite interesting, and I strongly disagree with the dissent, which to me shows disrespect for Congress and would continue the social inefficiencies that the past back and forth on what the statute at issue means has already caused. (Read the case - each time the Supremes gave the statute a narrow construction, Congress overruled them.)

Thoughts?

Glory Days?

I've been working a bit with the patent statute, and it struck me how these statutes -- without that much detail - are probably from a bygone day. They represent, of course, an enormous delegation of authority to the courts to "flesh out" the law. The Sherman Act, perhaps is the most famous of this broad form of law-making grant.

Is it a good development? I'm not sure. Certainly, the amount of ambiguity in the law is lessened when there's a text to look at, rather than only the common law to find and/or predict. Overall, I'm sure that represents a positive in terms of social cost. On the other hand, there's a sort of, I don't know, lack of respect that micromanaging reflects: a lack of trust by Congress that the courts can get it right? Perhaps that message is not implicit, and it's only the benefit that drives Congress? I don't know.

Anyhow, my digging around in the Patent Act made me ponder this issue, again. Thoughts?

I'm on vacation next week, and so will see you all soon.

Oral Arguments in Bilski Under 35 USC 101

Does section 101 permit patenting of "Business Methods"? The Federal Circuit held oral argument over the meaning of this fundamental statute, which you can find here. An article is here.

I understand the political arguments behind restricting the coverage of the statute, but the opinion which led to the current broad understanding (or, at least which confirmed the scope of the statute) isn't that old, and Congress hasn't changed the statute, and there was an enormous hue and cry about the earlier decision, State Street Bank, so....

Your Blogger: Influencing the Law

One of the things that drives me nuts about academia (I practiced for 14 years before coming to teach) is the belief that "law" and "lawyering" are somehow beneath it. You see it in various ways - from a "why should I modernize my casebook to reflect the fact that Shelley's Case was abolished" to "I won't write things for judges and lawyers." My view is quite the opposite: I'm here to train lawyers, not law professors. Many in academia are on that side of the divide, but it's certainly a divide.

Sooo... I was happy when our book, Modern Statutory Interpretation, was just cited in a judicial opinion - the first. It's not on-line yet, but I think it will be here, and it's US v. e-Gold, by Judge Collyer. It's a small snippet, but it was quite gratifying: "see also Linda D. Jellum & David Charles Hricik, Modern Statutory Interpretation: Problems, Theories, and Lawyering Strategies 137 (2006) (stating that "[w]ords in a statute should generally be given their common, ordinary, and accepted meaning")."

I won't rant too much about that other issue -- the division -- since it probably belongs on another blog, but I can't resist: why is it that we teach future interests in property when the vast majority of lawyers won't use them, and there are certainly other topics that teach the same skill sets? Why are our civil procedure books laden with discussions about personal jurisdiction, and so little on summary judgment and discovery? Why do the tort books focus on the common law when so much of tort law has become influenced, if not controlled, by statutes?

Okay, I ranted.

Interesting New Piece ON LINE about Severability

Severability as Judicial Law Making is available here, and was published at 76 Geo. Wash. L. Rev.  639 (2008), and is by David H. Gans.  I was intrigued by this issue when we wrote our stat law book, and his introduction raises some of the issues we ponder:

What is a court doing when it severs the invalid portions of a statute? Is it merely issuing a *640 savings construction or is it rewriting the statute? If the latter, is severability compatible with separation-of-powers principles? How should a court decide whether or not to sever? Should legislative intent be the touchstone? The academic literature, for the most part, does not adequately answer these questions. The literature on the topic is surprisingly limited, with only a handful of articles addressing the doctrine.

New Article of Interest

Although not on its webpage, 32 Wm & Mary Evntl. L. & Pol'y Rev. 427 has an interesting piece on interpreting the "stealth provisions" of the Endangered Species Act by Madeleine June Kass. (Notice that I FIRST told you it wasn't on line, before noting it was interesting!)

Shark Fins and Fishing Boats

I love law.  U.S. v. 64,695 Pounds of Shark Fins reminds me why.

The Ninth Circuit had to address whether a fishing boat that had lot of shark fins on board was a "fishing vessel" under certain federal statutes. A boat used for fishing wasn't a fishing vessel, or at least it wasn't clear enough that it was a fishing vessel, the court unanimously held.

On a more serious note, how many sharks were killed just for that one boat? 

New Articles of Note

Miranda McGowan has posted "Do as I Do, not as I say: An Empirical INvestigation of Justice Scalia's Ordinary Meaning Method of Statutory Interpretation, which is on ssrn here.  The abstract:

Justice Scalia is one of the only American judges to have formulated a complete methodology of statutory interpretation. He contends that the rule of law requires "[s]tatutory construction to begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose." This article presents the results of a study that examined how Justice Scalia's practice of interpreting statutes compares with his theory. Based on a random sample of Justice Scalia's statutory interpretation dissents, this study uncovered the following. First, Justice Scalia entirely suspends textualism in about a quarter of the cases in the study's sample, because he is interpreting a statute that he believes grants the courts common law authority. Second, when Justice Scalia engages in textual analysis, more often than not his presumption that the ordinary meaning of words governs statutory meaning is overcome. He also consults an eclectic set of extrinsic materials - the same broad set of materials that other justices use, with the singular exception of legislative history. Third, purpose analysis lies at the core of Justice Scalia's method, and he considers a statute's purpose about as often as the Court as a whole does. Because Justice Scalia refuses to consult legislative materials, however, his purpose analysis frequently stems from the least formal source of all - his own sense of a statute's purpose or of absurd or anomalous results. This article concludes by observing that compared to ipse dixit purposivism, the evils of legislative history are grossly overstated.

Margaret Lemos has posted "The Other Delegate: Judicially Administered Statues and the Nondelegation Doctrine" here.  The abstract:

The nondelegation doctrine is the subject of a vast and ever-expanding body of scholarship. But nondelegation literature, like nondelegation law, focuses exclusively on delegations of power to administrative agencies. It ignores Congress's other delegate - the federal judiciary.

This Article brings courts into the delegation picture. It demonstrates that, just as agencies exercise a lawmaking function when they fill in the gaps left by broad statutory delegations of power, so too do courts. The nondelegation doctrine purports to limit the amount of lawmaking authority Congress can cede to another institution without violating the separation of powers. Although typically considered only with respect to agencies, the constitutional principles underlying the doctrine apply with full force to delegations to courts. In principle, then, the nondelegation doctrine extends equally to both of Congress's delegates. In practice, matters are more complicated. Despite judicial rhetoric to the contrary, virtually unlimited delegations to agencies long have been tolerated, even welcomed. To the extent the modern Court has enforced the nondelegation doctrine in the administrative context, it has been through narrow statutory construction rather than constitutional decree. The narrow-construction strategy does not make sense as a means of limiting courts' own discretion, however. Nor do the functional arguments that have been offered in defense of a hands-off attitude toward broad delegations to agencies work when applied to courts. Far from justifying nondelegation law's inattention to courts, considerations of institutional structure and capacity suggest the need for careful evaluation of statutes administered by unelected, generalist judges.

To be sure, the features that set courts apart from agencies also may make them particularly valuable delegates in certain areas of the law. The goal of this Article is not to condemn all delegations to courts, but rather to demonstrate that they warrant more attention than they currently receive. There has been a robust debate about the constitutional permissibility and functional desirability of delegations to agencies. We need to have a similar conversation about delegations to courts.

Gregory Sisk has posted "The Continuing Drift of Federal Sovereign Immunity Jurisprudence" here.  The abstract:

With the enduring doctrine of federal sovereign immunity, it is too late in the day to suggest that the United States should be treated as an ordinary party in the federal courts. Yet as the Supreme Court has become more comfortable with the increasingly common encounter with a statutory waiver of immunity, the rigidity of interpretive approach has eased. An early jaundiced judicial attitude has resolved into a greater respect for the legislative promise of relief to those harmed by their government. After sketching the history of statutory waivers over the past century-and-a-half and examining Supreme Court decisions across the decades, this Article maintains that a coherent and principled jurisprudence of federal sovereign immunity has been emerging. Absolute jurisdictional analysis is being reserved for verifying the existence of a statutory waiver for a general class of claims, while strict construction is more judiciously employed to preclude judicial implication of new causes of actions or remedies. By contrast, the Court is more inclined to use ordinary modes of statutory construction when examining other standards, limitations, or exceptions in statutory waivers, even presuming that procedural rules apply in government cases in the same manner as in private litigation. Unfortunately, a recent Supreme Court decision resurrected an old line of cases that translated a statute of limitations for certain claims against the United States into a jurisdictional rule. The Article suggests that the negative effect of this decision on the course of the law, although not negligible, is limited by the decision's reliance on stare decisis. The Article concludes that the Court should speak more purposively to interpretive approach in the future, if the renewed drift in its federal sovereign immunity jurisprudence is to be arrested.

Scott Keller has posted "How Courts Can Protect State Autonomy From Federal Administrative Encroachment " here.  The abstract:

Unlike the federalism cases we were used to seeing from the Rehnquist Court, modern federalism cases won't be a fight over the interpretation of the Commerce Clause or the Tenth Amendment, after Gonzales v. Raich, 545 U.S. 1 (2005), refused to expand the Commerce Clause to protect state autonomy. Instead, modern federalism cases will involve basic statutory construction. The Supreme Court is becoming increasingly interested in cases dealing with the intersection of federalism and statutory construction, as it decided two such cases during the October Term 2007 and has granted cert in two other cases for the October Term 2008. Federalism concerns in statutory construction arise most frequently in administrative law, as modern federal agencies produce an enormous amount of laws.

As a result, the hard questions about federalism now appear in administrative law cases. Courts and commentators are becoming wary of the ability of federal agencies to encroach on state autonomy, given the underenforced constitutional norms of federalism and the nondelegation doctrine. The Supreme Court recently examined the intersection of federalism and administrative law in Gonzales v. Oregon, 126 S. Ct. 904 (2006), but the Court adopted an inadequate approach (Chevron Step Zero) to protecting state autonomy from administrative encroachment.

Instead of using Chevron Step Zero to protect federalism in administrative law, courts should expand federalism-based clear statement canons of statutory construction. Specifically, courts should expand the scope of Gregory v. Ashcroft, 501 U.S. 452 (1991), in the administrative law context to adopt a clear statement canon that applies to administrative interpretations made in areas of traditional state regulation. Such a canon finds support in preexisting clear statement canons and the Supreme Court's continued reliance on the "areas of traditional state regulation" dichotomy. This canon would be a direct, effective approach to protecting state autonomy from administrative encroachment.

Tid Bits

Second Circuit Holds Vienna Convention Creates No Private Right of Action for Certain Violations.  The case, Mora v. New York, is here.  Essentially, the court affirmed dismissal of a complaint alleging that a foreign national was not told that, upon arrest, he had the right under the Geneva Convention to contact his consulate.  Very lengthy opinion that may, of course, have obvious and broader repercussions!

Efforts to Overturn Ledbetter Fail, for Now.  The Washington Post reports how the Senate fell short of overturning the Supreme Court's Ledbetter decision, which made it much more difficult for pay discrimination claims to be brought, and which is discussed below.  In addition, our law review just published a very good note on the case, which unfortunately is not yet on line!

Reader's Interesting Web Page

"Busy Klerk" sent me a link to a webpage of interest, particularly so to students searching for topics to write about, as he focuses on splits in statutory interpretation of specific statutes.  You can find the page here.

Your Blogger at Work

Every so often I get a reporter's call about something, usually to do with ethics or technology/IP, but every so often, it's statutory interpretation. I got such a call a few weeks ago, and the issue involved an Alabama statute that said that, once a city went over 12,000 in population, its mayor could no longer "sit or vote" with the city council. You can read my opinion here, and a subsequent article showing what ultimately happened, here.

It's amazing what the Internet can do - this town is fairly close to Macon, but it could have been across the globe.

Texas Supreme Court Splits on Annexation Statute

In a 5-4 opinion, the Texas Supreme Court in City of Rockwall v. Hughes, 246 S.W.3d 621 (Tex. 2008) split in an interesting case involving municipal power to annex.  A landowner objected to his inclusion in a proposed annexation, and his objection was denied. He then sought arbitration of the dispute, pursuant to the statute in issue, but the City refused to arbitrate. He then filed suit.

The statute provided that if the city "fails to take action" on a petition concerning the proposed annexation, the petitioner "may request arbitration of the dispute."  The Supreme Court split on whether, if the City denies the petition, this was a "fail[ure] to take action" that allowed for a demand for arbitration.

The majority opinion, which relied on the statutory directive in Texas on how to interpret statutes, reasoned that the statute was unambiguous and not absurd: if the City denied the petition, that was that.  There were other, quite limited, means to challenge the denial, but a demand for arbitration was not among them because the city had not "fail[ed] to take action."

The minority opinion disagreed strongly with the majority on the approach to statutory interpretation, stating that it made little sense to interpret the statute to allow for a claim for arbitration only if the City ignored the petition.  "When searching for statutory meaning, words matter -- and so does context" is one of the headings in the dissent.

So, here we have a paradigm dispute over whether one set of judges is being "literal" and the other "contextual" though both purport to apply the plain meaning and avoid absurd results.

In my view, fwiw, the majority got it wrong.  Especially compelling, I thought, was the point that the minority made that the majority's approach largely renders the arbitration provision meaningless and superflous.

Interesting case for far more than the narrow issue involved!

Very Interesting Piece

Treating Like Subdecisions Alike: The Scope of Stare Decisis as Applied to the Judicial Method, by Columbia student Jordan Wilder Connors, published at 108 Colum. L. Rev. 681 (2008). It will soon (they say!) be here. The abstract is tantalizing and relates broadly to Brian's piece, below, and the implied cause of action issue discussed below, too:

The Supreme Court has explained that stare decisis binds the Court to both its result and “those portions of the opinion necessary to [the] result.” Yet the Supreme Court does not seem to extend this principle to those “necessary portions,” herein called subdecisions, that involve methodological questions. For example, when a case rests on a subdecision about whether a Court should consult legislative history in interpreting a statute, the effect of that opinion on future cases is unclear. This Note focuses on stare decisis with respect to subdecisions about statutory interpretation to shed light on the broader issue of the scope of stare decisis. After describing the purpose and operation of stare decisis, this Note examines statutory interpretation subdecisions to determine whether the court gives them precedential effect. It finds that the Court applies stare decisis to some statutory interpretation subdecisions but not others, with no coherent principle explaining the inconsistency. Finally, this Note uses the purposes of stare decisis to argue that the Court should apply it to all statutory interpretation subdecisions.

On my list.

Twenty Thousand Hits!

I've been doing this blog for 8 months or so, and sometimes am quite regular on blogging, sometimes regular, but light on content, and at other times I manage to both blog regularly and provide, I hope, some thoughtful content.

Today, we went over 20,000 hits, which I thought was kind of cool.  I know from e-mails that I've managed to interest a small cabal of regular readers, and hope you have found -- and continue to find -- the blog of interest.

Be well.

Second Circuit with O'Connor Sitting Interprets Fee Shifting Statute

In Arbor Hill v. Albany, __ F.3d __ (2d Cir. 2008), the court in an amended opinion (amending a nearly 1-year old panel opinion!), addressed an award of fees to a successful plaintiff under the Voting Rights Act of 1965.  There's an article about the decision here.  Essentially, the issue was whether lawyers located in the Southern District of New York could base their fees on the rates they would charge in NYC, even though the case was pending in the Northern District of New York.

The case may have broader implications, since it essentially adops a "what would a reasonable client pay" approach to determining fees, abjuring strict reliance on a lodestar or "local lawyer" approach to determining fees.

Two Interesting New Articles on SSRN

Brian Slocum, visiting at Memphis, has posted two quite interesting pieces.  The first is on Temporal Issues in Statutory Interpretation, and is available here on ssrn. This is an issue we touched on in our book, in the Chapter on Implied Causes of Action -- if the Court more readily implied a cause of action when a statute was adopted, rather than today, ought not the more liberal interpretative approach apply?  From the abstract:

There is an important but chronically overlooked problem in statutory interpretation. Courts frequently create and modify the rules of statutory interpretation in common law fashion. They never consider, however, whether these new or modified rules should be applied only prospectively to statutes enacted after the judicial decisions that created or modified the rules. The failure of courts to consider these temporal issues undermines the assumption, fundamental to statutory interpretation, that Congress chooses statutory language in light of established rules of interpretation and thus risks delegitimizing statutory interpretation. Indeed, as this Article illustrates, the Supreme Court's failure to consider these temporal issues has arguably resulted in erroneous statutory interpretations.

Notwithstanding the enormous attention given statutory interpretation by scholars over the past couple of decades (including the proposal and examination of various sophisticated, high-level interpretive methodologies), the temporal issues the retroactive application of new or modified rules of interpretation raises have been virtually ignored in statutory interpretation scholarship. This Article fills the void by providing a theory of when courts should apply new or modified rules only prospectively. Despite the plausibility of an argument that all new or modified rules should be applied only prospectively, the Article argues that only the most powerful rules should be considered for prospective only application and describes when it is appropriate for even these rules to be applied retroactively. The Article also argues that the judicial consideration of temporal issues will bring much needed clarity and transparency to statutory interpretation, as well as potentially causing courts to reexamine their proper role in light of legal realist insights about the nature of statutory interpretation.

The second one is in some ways related, and is entitled The Problematic Nature of Contractionist Statutory Interpretations, and is available here.  Soon available from my old law school, Northwestern, the abstract states:

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.

Brian's a busy guy!

Tid Bits: State News

Texas Supreme Court Construes Various Statutes in Major Ethics Case. It's been a major battle that the Texas Unauthorized Practice of Law Committee had been winning, as this article notes, but the Texas Supreme Court reversed that committee's policy and authorized the use of captive firms to represent insureds. The opinion, Unauthorized Practice of Law Committee v. American Home Assurance Co., Inc., is here. It was 7-2. A lot of the opinion is founded on Texas-specific statutes, but it's quite a change from the old approach and is likely to have a significant impact on house insureds are represented in Texas.

Wisconsin Voters Oust a Judge. There's an article here that purports that it was a vote against "judicial activists." It's interesting to me because Wisconsin, Michigan, and Connecticut have wildly divergent benches when it comes to the judges' approach to statutory interpretation.

Arkansas Statute Does Not Require Identifying Self in Response to Query. A passenger in a car stopped by police cannot be prosecuted solely for failing to provide identification, so held the Eighth Circuit construing Arkansas statutes, in an opinion, Stufflebeam v. Harris, here.

District Court Enjoins New Patent Rules in Light of Interpretation of PTO Rulemaking Authority

The Eastern District of Virginia has issued a summary judgment ruling permanently enjoining the US Patent Office from putting its proposed new limitations on the number of claims, requests for continued examinations, and continuations in effect.  Dennis Crouch has posted the opinion in Tafas v. Dudas, here.

In the patent world, the PTO's proposed new rules -- which would have limited applicants in various ways that had not been done before -- had caused a firestorm of criticism.  I won't bore you with those details, but the statutory interpretation issues in the case are more broadly interesting, I would think.

The first issue.  The first issue the court faced was whether 35 USC 2(b)(2) vested the PTO with substantive rulemaking power.  That statute empowers the PTO to "establish regulations, not inconsistent with law" to "govern the conduct of proceedings in the office."  The court followed Federal Circuit case law and held that this granted only procedural, not substantive, rulemaking power, and, more interestingly, held that despite the fact that the PTO was required to follow 5 USC 553's notice and comment provision -- which applies only to substantive rulemaking did not mean the power was substantive; rather, it required the PTO to publish for notice and comment its procedural rule changes and enactments.  The court, finally, found support for its reading of this section in the fact that Congress has debated giving the PTO substantive rulemaking power.

Once the court reached that conclusion, the rest was fairly easy, I think, and noncontroversial:  because the PTO lacked substantive rulemaking power, it could not make substantive declarations about the scope of the Patent Act, only procedural ones.  Thus, if the proposed rules were substantive, they were invalid.

The court then analyzed each of the changes and found they clearly fell on the "substantive" side of this dichotomy.  Now, each of these is very patent-specific, and though interesting to me, I doubt of much import to most of you. Read the opinion, above, if you're a patent jock. 

Dennis Crouch reports rumors that the PTO is planning to appeal, so stay tuned.

Revised: Interpretation of Section 1332 and Removal Statutes

As I've mentioned elsewhere, I also teach civil procedure and have authored a "hornbook" on that subject, as well as statutory interpretation. So, I love it when the two issues collide.

And that they are doing, and a recent case in my view provides a very good vehicle for the Supreme Court to resolve the problems.  The case is Picciotto v. Continental Cas. Co., 512 F3.d 9 (1st Cir. 2008).  It raises a very fundamental question about statutory interpretation and federal subject matter jurisdiction:  is subject matter jurisdiction determined on a claim-by-claim basis, or not, when diversity is the basis for federal court subject matter jurisdiction?  The Picciotto court held that it was not - that diversity is determined on a "case" basis.  I think that the case is quite wrong, though the result was can be rationalized on the basis of dictum in numerous supreme court decisions.

Let me explain why.

It's best to start with what is undisputed: even this panel agreed that jurisdiction over federal question claims is determined on a claim-by-claim basis.  The statute that authorizes such jurisdiction gives federal courts power over "all civil actions arising under" federal law.  Thus, "civil action" means "claim," at least in 28 USC 1331. That seems settled.

Section 1332 gives federal court diversity jurisdiction over "civil actions" that meet the diversity requirements.  It thus uses the same phrase -- "civil actions" -- that 1331 does.

Does it mean something different?

Enter Picciotto.  The case stemmed from the alleged botched settlement of a toxic tort case, and makes Bleak House seem tame.  In this particular aspect of the litigation, the Picciottos filed a suit against various insurance companies, alleging conspiracy to violate state insurance law, fraud, and various other state claims.  Subject matter jurisdiction was founded on 1332, diversity.  The party the person not named as a defendant, however, was the lawyer (Casher) who had allegedly botched the settlement in the first place, and Casher was a citizen of the same state as the plaintiff.

Now, the way I look at this, the existence of jurisdiction is unquestioned: the court had subject matter jurisdiction over the claim against the insurance companies -- it was over $75,000 and between citizens of different states -- and the question would be whether Casher was indispensable under Rule 19; if so, the court should dismiss the case under Rule 19(b) if he could not be joined without destroying subject matter jurisdiction.  But, there is no doubt the court had subject matter jurisdiction, in my view. 

BUT, and this is where I disagree, because Casher would be joined as a defendant, if at all, under Rule 19, if the claim against Casher arose out of the same case or controversy, and so was within 28 USC 1367(a), while there would not be original jurisdiction under 1332 over that claim (citizens from the same state on both sides of the claim), there would be supplemental subject matter jurisdiction under 1367(b) because claims by plaintiffs against parties joined under Rule 19 are NOT excluded.  So, the court would have original jurisdiction over the claims by the plaintiffs against the insurance companies and supplemental jurisdiction over the claim against Casher. (Of course, the court could always decline supplemental jurisdiction under 1367(c).)

The Picciotto court rejected that approach, though.  In rejecting the argument that joinder of Casher was so long as the plaintiff did not assert a claim against Casher (put to the side how that can be), the court reasoned that "[w]ithout Casher... there is no viable civil action over which the district court may assert 'original jurisdiction...."  Relying on case law decided before the adoption of 1367, the court held that 'original jurisdiction' required a "viable lawsuit," and, without joinder of Casher, there was no "viable lawsuit."  That part to me is what's wrong, the more I think on it.  Viable lawsuits are not the condition of subject matter jurisdiction under 1332; a claim between citizens of different states in an amount exceeding $75,000 is.

The court, in addition, then explained how, in its view, the Supreme Court's decision in Exxon Mobil Corp. v. Allapatah Serv., Inc., 545 US 546 (2005) supported interpreting Section 1367 to be consistent with reading original jurisdiction to turn on a "viable lawsuit," and so not even permit examination of whether supplemental jurisdiction was available over the claim.  Explained the panel:

By definition, the Rule 19(b) indispensability determination means that there is no viable lawsuit without the missing party. Where jurisdiction depends solely on diversity of citizenship, the absence of a nondiverse, indispensable party is not a mere procedural defect. Rather, it destroys the district court's original subject matter jurisdiction. Calcote v. Texas Pac. Coal & Oil Co., 157 F.2d 216, 219, 221 (5th Cir. 1946) ("[W]here jurisdiction depends solely upon diversity of citizenship . . . the absence of indispensable parties absolutely defeats federal jurisdiction."). Thus, ancillary jurisdiction was not available to cure the jurisdictional defect in a diversity case when the absence of an indispensable party meant that there was no case over which the district court could exercise original jurisdiction.

The plain language of the supplemental jurisdiction statute incorporates this well established requirement that there be a viable action over which the district court has "original jurisdiction" before supplemental jurisdiction may be considered. Section 1367(a) grants supplemental jurisdiction over related claims in "any civil action of which the district courts have original jurisdiction," and § 1332 defines the requirements for "original jurisdiction" in diversity cases. In Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546 (2005), the Court explained how these two jurisdictional provisions interact: "Incomplete diversity destroys original jurisdiction with respect to all claims, so there is nothing to which supplemental jurisdiction can adhere." Id. at 554. The complete diversity requirement is consistently imposed on a case-by-case, rather than a claim-by-claim, basis: "In a case with multiple plaintiffs and multiple defendants, the presence in the action of a single plaintiff from the same State as a single defendant deprives the district court of original diversity jurisdiction over the entire action." Id. at 553 (citing Strawbridge, 7 U.S. 267; Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 375 (1978)).

The Court in Allapattah dubbed this view of complete diversity the "contamination theory" because the inclusion of a nondiverse party "contaminates every other claim in the complaint, depriving the court of original jurisdiction over any of these claims." Id. at 560. The "contamination theory" makes sense in the context of the complete diversity requirement, the Court said, because "the presence of nondiverse parties on both sides of a lawsuit eliminates the justification for providing a federal forum." Id. at 562.

     The justification for diversity jurisdiction cited by the Court "is to provide a federal forum for important disputes where state courts might favor, or be perceived as favoring, home-state litigants." 545 U.S. at 553-54. Although the Allapattah majority rejected the "contamination theory" with regard to the amount-in-controversy requirement, the Court distinguished that requirement from the diversity requirement where the "contamination theory"remains applicable. Id. at 562. The four dissenting justices inAllapattah agreed with the majority that the supplemental jurisdiction statute did not alter the "contamination theory"approach to complete diversity:

"'[O]riginal jurisdiction' in § 1367(a) hasthe same meaning in every case: [An]underlying statutory grant of originaljurisdiction must be satisfied. . . . Section1332 . . . predicates original jurisdiction onthe identity of the parties (i.e., [their]complete diversity) . . . .'"

Id. at 592-93 (Ginsburg, J., dissenting) (quoting Rosario Ortega v.Star-Kist Foods, Inc., 370 F.3d 124, 139-40 (1st Cir. 2004)).

Additionally, the "contamination theory" prevents plaintiffs from creating diversity jurisdiction "simply by omitting [the nondiverse party] from the original complaint and then waiting for [that party] to be joined under Rule 19." Acton, 668 F.2d at 79-80; accord Allapattah, 545 U.S. at 565 ("The contamination theory . . . means this ruse would fail. . . .").

Given the continuing vitality of the "contamination theory," the Picciotos' argument fails at the § 1367(a) threshold. Casher must be joined because she is both necessary and indispensable. The conclusion that she is indispensable means that there is no viable suit without her presence, and thus no suit over which the district court has original jurisdiction. Yet, if she were joined, her presence would destroy the district court's original jurisdiction under § 1332. Thus no suit over which the district court has original jurisdiction exists here without Casher – because the district court ruled that her presence was indispensable – and no suit exists with Casher – because her presence will destroy diversity.

     We note that the inquiry into indispensability is an equitable, not a jurisdictional, inquiry. See Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, 7 Federal Practice & Procedure: Civil 3d § 1611, at 169. However, in the context of a suit wherejurisdiction is founded solely on diversity of citizenship and where the indispensable party is nondiverse, the indispensability conclusion has the effect of destroying diversity and, thus, eliminating any basis for original jurisdiction.

    Thus, the supplemental jurisdiction statute does not apply because there is no civil action to which any additional claims may attach.

So, I think the analysis would be: so long as joinder of a plaintiff is not required by Rule 19, there would be a "viable lawsuit" and so supplemental jurisdiction could attach.  That makes some sense, I suppose, because the net effect is that if a plaintiff is trying to sue in federal court and leaves off a plaintiff who MUST be joined, then the federal court should dismiss the case, since the court can't adjudicate the claim without joinder of the additional plaintiff.  Okay.  But, that result is not, I believe, what the statutes require (see below). Further, I have a very, very hard time making the Exxon dictum work with the plain text of 1332 and 1367:  neither statute says anything about how citizenship is more fundamental than money, one, and 1367 does not remotely hint that it applies if the amount in controversy is not met, but citizenship is not.  You have to ignore the text -- completely -- to get where the Supreme Court wants the system to be.  (Of course, they could do that!)

Where does this leave me?  I think it leaves me here: 1367 means what it says, and its text allows joinder, not just of a plaintiff whose claim fails to meet the $75,000 threshhold, but also of a plaintiff who is a citizen of the same state as a defendant (so long as the claim arises out of the same case or controversy as the diverse plaintiff's claims).  (But, 1367 would not allow a plaintiff to assert a claim against a nondiverse defendant, since the defendant would likely be joined under Rule 19 or 20.)  This leaves 1367 constitutional -- complete diversity is only a requirement of 1332, not the constitution -- but it is a strange, awkward result.

But I'm not the first person to think 1367 to be strange, awkward, and worse!  And it is not irrational for Congress to conclude that this awkward system, constitutional but awkward, makes sense.

Now, in defense of the court, the Supreme Court in Exxon used some powerful dicta to suggest that citizenship "contaminated" claims, but its holding was much different and, in fact, is inconsistent with the result reached in Picciota: a claim by a diverse party that does not meet the amount in controversy requirement can be joined with a claim by a diverse party that does.

There is so much muddled in this argument that I frankly don't know where to begin.  First off, 1367 doesn't use the phrase "viable lawsuit" or talk about "pendent" or "ancillary" jurisdiction.  Those old common law concepts are no more:  there's a statute now, and the text of the statute controls.  Secondly, if it is true, as the court says, that if an indispensable party's nonjoinder defeats original jurisdiction, why is some of Section 1367(b) there?  There's no need to exclude claims by plaintiffs joined under Rule 19, since there will never be a "viable lawsuit" without them.  The court's approach renders 1367(b) in some ways superfluous.  Third, construing diversity jurisdiction to turn on "viable lawsuits" flies in the face of the fact that 1332 uses the same language as 1331 ("civil action"), and the fact that the claim is the building block of all of litigation:  personal jurisdiction, venue, federal question jurisdiction, judgment as a matter of law, summary judgment -- even the scope of discovery turn on adjudication of "claims." 

Use of Committee Reports in Statutory Interpretation

Interesting article, unfortunately not on the web page for the Arkansas Law Review, by a student, entitled Michael L. Culotta, The Use of Committee Reports in Statutory Interpretation: A Suggested Framework for the Federal Judiciary, 60 Ark. L. Rev. 687 (2007).  Interestingly, the author breaks down the various possible sources of non-textual legislative input (as well as the related form of "signing statements"), and provides a reasoned (if light-handed) approach as to why some, but not all, of it should "matter" to interpretive problems. 

Essentially, he concludes that committee reports are the "most reliable" forms of meaning, with conference reports coming in a close second -- but that nothing else should be consulted, whether in the form of statements of single legislators or statements made at public hearings.

On the surface, of course, he's right: it may be that a single legislator says something that isn't reflective of Congressional intent.  But, what if 10 legislators, all of the bill's sponsors, spoke and ascribed to the bill the same meaning?  What if all 435 members of the House said the exact same thing about what the bill meant?  I think the tougher issues lay behind this article, but it is an interesting introduction to the obvious issues created by legislative history.

Now For Something Completely Different

US News ranks law schools, other professional schools, and undergraduate universities. The ranking system is, rightly or wrongly, taken by students -- customers -- to be important. Thus, rightly or wrongly (and many, including Brian Leiter think wrongly), it affects what those institutions do: there is a famous story, for example, of Nancy Rapoport's deanship at University of Houston Law Center ending in large part because of UH's "fall" in the rankings.

Mercer, my institution, has hovered between 100 and 90 for the past five years. I obviously think we deserve a better place in the system, but what I want to point out is the critical distortion that the rankings system creates at the 100th place: the top 100 schools are ranked one to one hundred by "score," but after 100... they get ranked in two groups in "tiers" by name only, without a score. So, a school that falls only from 100 to 101 may fall 50 "places."

So, you know that schools just "below" 100 are doing everything they can to affect their score upward, while those in the 90's are doing everything they can to distort their score, too. No one wants to fall from the top, ranked tier to the bottom, unranked, two tiers.

Anyhow, the whole thing is odd to me, since I don't believe that a school can be distilled down to a number, but the distortion that the system causes -- what US News includes that a school can affect will matter more than it perhaps should to the school -- is particularly amplified by the 1-100 then "two tier" system.

And now we return to your regularly scheduled broadcast...

Tid Bits

Justice Thomas's Own View of his Approach to Constitutional Interpretation.  There's an interesting Wall Street Journal piece here, and a subsequent response in the New Republic by Cass Sunstein here. Interesting reading.

California Sex-Offender Law ("Jessica's Law") Under Attack and Being Expanded. Interesting article here.

Articles to be Read.  For those of you who've sent me articles to read, I'm getting there!  I promise!

Tid Bits

Supreme Court to Address FCC Policy on "Fleeting Expletives."  The FCC fines broadcasters if a live, fleeting swear word is used; the Supremes have granted cert to consider the regulation's constitutionality.  Read about it here.

Supremes to Hold Oral Argument over Paralegal Fees under Equal Access to Justice Act.  The statutes, 5 U.S.C. § 504; 28 U.S.C. § 2412, are here.  An article about the case, and the stakes, by Marcia Coyle is here.

Lobbying Revenue a $50B Business (Holy Cow!).  You can read the report here.

New Article on Lessons Learned from Interpretation

I need to read this more fully, but it sounds promising: Cheryl Boudrea, Arthur Lupia, Mathew Cubbins, and Daniel Rodriguez, What Statutes Mean: Interpretive Lessons from Positive Theories of Communication and Legislation, 44 San Diego L. Rev. 957 (2007). It's not on line, yet, but will be here.

Fourth Circuit Narrowly Interprets Identity Theft Statute

Defendant uses the name "Marcus Jackson," a fake ID in the form of a driver's license, and some fake checks to buy stuff and then turn it in for refunds. Identity theft?

No says the Fourth Circuit in U.S. v. Mitchell, __ F.3d __ (4th Cir. 2008). The problem? There was no "Marcus Jackson" at the address specified on the checks or license, and the only "Marcus Jacksons" in Georgia had different middle names than the license indicated. The Fourth Circuit held that 18 USC 1028 did not apply because he had not stolen the identity of a specific individual, and reversed a 40 month sentence.

Sounds wrong, but when you read the case, the language of the statute suggests it's the right result, in my opinion. I never wold have guessed it, though! Interesting, thoughtful unanimous opinion by Judge Michael.

Tid Bits about Judges

DC Gun Statute Before Supreme Court. There's an interesting article in the Washington Post here on the various amicus briefs in the D.C. v. Heller case which will, perhaps, settle the scope of the Second Amendment. You can find a link to the briefs here.

The Coming Vacancies on the Supreme Court. It looks like McCain, Clinton or Obama will get to pick several Supreme Court justices. You can read about how one pundit thinks an Obama-inspired court would lookhere.

New Judicial Code of Conduct. There's a new proposal about federal judicial conduct being put out for comment. The announcement and request for comment is here; the clean version of the proposed code here, and the mark-up, here.

Sad, Interesting Case Construing Damages Statute

Your neighbor asks you if he can cut down some gorgeous mature oak trees so he can see the ocean better from his house; you say "no" but he then hires someone to chop them down anyway. Mass. General Laws c. 242, § 7, provides that one who willfully and without license cuts the trees of another shall be liable in tort "for three times the amount of the damages assessed therefor." What are the damages?

In a recent case, where a "neighbor" chopped down the trees, the court held that the usual measures of damages -- the value of the timber or the diminution of value caused by the cutting -- were not the only measures, and restoration costs were permissible. In reaching its conclusion, the court stated:

"The statute does not prescribe how the damages shall be measured." Larabee, supra at 643. While the most common measures of damages are (1) the value of timber wrongfully cut, or (2) the diminution in value of the property as a result of the cutting, see ibid., we discern no limitation in the statute to these measures of damages. Indeed, to limit damages to these measures would encourage, rather than deter, wrongdoers from engaging in self-help in circumstances such as when an ocean or other view is desired. The timber wrongfully removed may amount to no more than a single tree; and its removal may even improve, not diminish, the market value of the property. Yet the wrongful cutting may represent a significant loss to the property owner and a significant gain to the wrongdoer even where the value of the timber cut is negligible, or the diminution in value of the property owing to the cutting is minimal or nonexistent. So to limit the damages would permit a wrongdoer to rest assured that the cost of his improved view would be no more than treble the value of the timber cut even where the change wrought to his neighbor's property by the wrongful cutting, as here, is significant. The statute does not so confine a property owner's redress for the wrongdoing of an overreaching neighbor.

Although diminution in market value is one way of measuring damages, "market value does not in all cases afford a correct measure of indemnity, and therefore is not therefore 'a universal test.' " Trinity Church v. John Hancock Mut. Life Ins. Co., 399 Mass. 43, 48 (1987), quoting from Wall v. Platt, 169 Mass. 398, 405-406 (1897). Accordingly, "[r]eplacement or restoration costs have also been allowed as a measure of damages ... where diminution in market value is unavailable or unsatisfactory as a measure of damages." Trinity Church, supra at 49. See Heninger v. Dunn, 101 Cal.App.3d 858, 864-865 (1980) (applying restoration cost measure in damage to trees). This is but another way of recognizing "that more complex and resourceful methods of ascertaining value must be used where the property is unusual ... and where ordinary methods will produce a miscarriage of justice." See Trinity Church, supra at 49, quoting from Newton Girl Scout Council, Inc. v. Massachusetts Turnpike Authy., 335 Mass. 189, 195 (1956).

The judge, as gatekeeper, has broad discretion to determine whether evidence other than fair market value is relevant to the question of damages. See Massachusetts Port Authy. v. Sciaba Constr. Corp., 54 Mass.App.Ct. 509, 514 (2002). Here, the judge did not abuse that discretion in concluding that diminution in market value was not a fair and adequate measure of the damages that Glavin suffered by the wrongful cutting of his trees. See id. at 515. Glavin had no desire to sell the property. Indeed, his plan was to hold on to the lot and utilize its mature oak trees to provide shade for a pond he planned to create from the existing wetlands, and as a backdrop to a tranquil view from his house lot.

Glavin v. Eckman, (Mass. App. 2008) (not yet online, but it will be here.)

It's not a significant statutory interpretation case, but I love trees, and we have far too little neighborly behavior than we once had. The court was right, imho!