Monday, July 13, 2009

I'll see you elsewhere soon

The lawprofs blog is consolidating its blogs, and I've been cut, so I'll be moving to, but I've got to go to China and do a few other things first.

See you somewhere else, relatively soon.

July 13, 2009 | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 7, 2009

When May a Judge Do Something that's Required?

Love this one.  The Wisconsin statute provides:

If a person complains to a judge that he or she has reason to believe that a crime has been committed within his or her jurisdiction, the judge shall examine the complainant under oath and any witnesses produced by him or her and may, and at the request of the district attorney shall, subpoena and examine other witnesses to ascertain whether a crime has been committed and by whom committed. The extent to which the judge may proceed in the examination is within the judge's discretion. . . .

Does the judge HAVE to examine all the witnesses?  No, says the Wisconsin Supreme Court in a case decided here, Wisconsin v. Madden, __ N.W.2d __ (Wis. June 2009).

July 7, 2009 | Permalink | Comments (0) | TrackBack (0)

Monday, July 6, 2009

Interesting Teaching Methodology

Two states interpret a similar statute in different ways; write a letter to the client.  That's the subject of one assignment which I stumbled across.  The article by Lisa T. McElroy of Drexel is here.

July 6, 2009 | Permalink | Comments (0) | TrackBack (0)

Holy Trinity Wise but Would be Ignored Today?

The DC Circuit of course is the King of APA and Chevron deference cases, and it wrote a beautiful opinion about cable operations (that's sad that I can call an opinion on cable operations beautiful after having majored in English and read Chaucer, and so on, but I digress).  The opinion in Nat'l Cable Telecomm. Ass'n v. FCC, __ F.3d __ (Fed. Cir. May 2009), is too complex to summarize, but fascinating.  Be sure to read the concurrence.

July 6, 2009 | Permalink | Comments (0) | TrackBack (1)

Monday, June 29, 2009

Nevada Supreme Court: Self Insured Employers are not "Insurers"

From the sound of the facts, it could be an important holding in dire economic times for insurance companies. MGM Mirage v. Nevada Insurance Guaranty Association, __ P.3d __ (Nev. June 25, 2009). 

MGM is a self-insured workers' comp employer, but it was required to obtain excess coverage through insurance companies. It did so, but that insurance company went insolvent.  So, by statute, that put the NIGA agency on the hook for certain "covered claims."  But, NIGA took the position that MGM was an "insurer" in terms of the applicable statute, and so it didn't have to cover the excess claims, even though MGM clearly was not an "insurer" under definitions in the various related statutes.  It's the right result, it seems, but boy do they have to spend the ink to get there.

One thing that will relate to an upcoming post was the court's statement that it follows plain meaning unless it wold violate the "spirit" of the statute.

June 29, 2009 in Games | Permalink | Comments (0) | TrackBack (0)

Saturday, June 27, 2009

Michael Jackson's Impact on Statutory Interpretation

There isn't any.  But, from watching the news shows,  you would think his death is the end of society as we know it.  Do we really need this, at a time when we're fighting two wars, in an economic crisis... etc.


June 27, 2009 | Permalink | Comments (2) | TrackBack (0)

Friday, June 26, 2009

Statutory Interpretation "rules" as Substantive Law Under Erie

It is interesting to me that federal courts, when interpreting state statutes in diversity cases, apply the statutory interpretation rules of the state whose statute is being interpreted.  A recent decision (not online) illustrates this where the court without analysis stated, "the court must determine how Illinois courts address a statutory interpretation issue of first impression."  Carlson v. Bukovic, 2009 WL 1575548 (N.D. Ill. June 4, 2009).  (I wrote about this a long time ago, too).

My instincts tell me that is right:  it would contravene the basic principle of Erie for a statute to be interpreted differently simply because the parties are citizens of different states and the minimum amount in controversy is present.

But what does it tell us about the "rules" of interpretation?  In Carlson, the court applied the Illinois state courts approach to interpretation (to give effect to intent, but if the text is unambiguous, to end there, but taking a contextual approach to textualism).  Again, no doubt that's right under Erie.  But does that also tell us that, at least in terms of Erie, this is substantive law, not procedural law.  What impact does that have for separation of powers at the state level?  It would seem that the legislature should be able to craft directives to interpretation (as many do) without violating separation of powers principles.  That is, a state legislature could adopt a statute saying "when you interpret our statutes, use a purposive approach."

Anyhow, it continues to be an issue I'm pondering, even though I am not sure I can fully articulate all the possible ramifications, yet.

June 26, 2009 | Permalink | Comments (4) | TrackBack (0)

Tuesday, June 23, 2009

Colorado Supreme Court Utilizes Rule of Lenity in Case involving Retroactivity of Effective Date

The court's summary captures it, but it's an interesting analytical read:

In this original proceeding, the Supreme Court was asked to determine what statute of limitations applied to the crimes with which defendant was charged. The statute contains two contradictory limitations provisions, each compelling a different result in this case. Because of the conflicting statutory language, and because the Court was unable to discern the legislative intent behind the statute, the Court could not determine which limitations period applied. As a result, the Court applied the rule of lenity and held that the charges against defendant were barred by the ten-year statute of limitations in effect when the crimes allegedly were committed. The Court overruled the Court of Appeals’ recent decision in People v. Boston, ___ P.3d ___, No. 07CR2186, 2009 WL 400073 (Colo.App. Feb. 19, 2009), in which the Court of Appeals reached the opposite result the Supreme Court reached in this case. The rule to show cause was made absolute and the case was remanded for proceedings consistent with this opinion.

People v. Summers, __ P.3d __ (Colo. May 26, 2009).

June 23, 2009 | Permalink | Comments (0) | TrackBack (0)

Monday, June 22, 2009

Can X predominate something that contains only X?

In Value Vinyls, Inc. v. U.S., __ F.3d __ (Fed. Cir. June 2009) the court had to face the question of w"hether the Court of International Trade correctly concluded that the imported product, whose textile component is made entirely of man-made fibers, is a 'product with textile components in which man-made fibers predominate by weight over any other single textile fiber' and hence is classified under subheading 3921.90.11 of the Harmonized Tariff Schedule of the United States (HTSUS), or whether, as the government argues, this category does not include product made entirely of man-made fibers." The court concluded, 2-1, that "the Court of International Trade correctly classified the subject goods." It is an interesting case where the majority relied heavily on extra-textual sources, and the minority took it to task for doing so. It would be an interesting case for the Supremes since it seems to me that the text leads one way, the extra-textual evidence, the other. It was on approach to interpretation that the court split, as well as ultimate resolution. It directly relates to the post below since the majority clearly took a more purposive approach to the tariff regulation than the dissent.

June 22, 2009 | Permalink | Comments (0) | TrackBack (0)

More on "Statutory Interpretation of Tax Statutes"

Someone else has now written about the special nature of tax statutes. Shannon Weeks McCormack, Tax Shelters and Statutory Interpretation: A Much Needed Purposive Approach, 2009 U. Ill. L. Rev. 697 (2009.  Here is the abstract:

Few are unaware that the federal Tax Code and the accompanying Treasury Regulations provide a detailed, complex (and lengthy) set of rules. It is hardly surprising (or new) that taxpayers attempt to avoid these rules to lower their taxes. Courts and lawmakers have long grappled to identify abusive transactions and strip taxpayers of the associated tax savings. The transactions have, however, changed dramatically over the last decade, making the task much more challenging. The rapid proliferation of aggressive and diverse tax shelters has created what many refer to as a “tax shelter war.” In general, tax shelters refer to transactions carefully designed to fit within the letter of the law to derive benefits unintended by those sections. Courts, however, do not inquire directly into purpose when analyzing tax shelters. They instead rely on traditional anti-abuse tests. These tests are outdated and insufficient to curb current tax shelters. Even those that defend these tests admit that they supply neither a necessary nor sufficient basis for denying tax benefits. Scholars defend the usage of these tests believing a viable alternative to be lacking. This Article attempts to fill this gap and develops an alternative test, which inquires directly into the purposes of the tax laws to address abuse directly. After developing this test along with an extensive set of guidelines for analyzing tax provisions, the test is applied to three recent tax shelters to illustrate its advantages. Such a test is an essential weapon to compete in current and future tax shelter wars.

June 22, 2009 | Permalink | Comments (0) | TrackBack (0)

Saturday, June 6, 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).

It emphasizes the Supreme Court's holdings that, even with an ungrammatical, awkward, and sometimes incomplete statute, plain language controls over "equity" and, I would argue, common sense.  I wonder about the efficiencies served by the rigid textual plain language approach the court adopts with a statute like BAPCA, that is cobbled together and known to have problems...

June 6, 2009 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 2, 2009

Supremes Grant Cert in Bilski - Supremely Important Patent Statutory Interpretation Case

Recently, the Federal Circuit in Bilski held that business methods were not patentable unless they satisfy the machine-or-transformation test:  the business methods must either: 1) transform matter into a different state or thing, or 2) be tied to particular machine.  Bilski rejected its own 1998 ruling in State Street Bank, which had reasoned that business methods were patentable if they produced a “useful, concrete, and tangible result”. 

The questions presented in the petition for Supreme Court review are:

1. Whether the Federal Circuit erred by holding that a “process” must be tied to a particular machine or apparatus, or transform a particular article into a different state or thing (“machine-or-transformation” test), to be eligible for patenting under 35 U.S.C. § 101, despite this Court’s precedent declining to limit the broad statutory grant of patent eligibility for “any” new and useful process beyond excluding patents for “laws of nature, physical phenomena, and abstract ideas.”

2. Whether the Federal Circuit’s “machine-or-transformation” test for patent eligibility, which effectively forecloses meaningful patent protection to many business methods, contradicts the clear Congressional intent that patents protect “method[s] of doing or conducting business.” 35 U.S.C. § 273.

What is interesting to me is the fact that this presents the "old" style of patent statute -- a broad grant, not the detailed style we see today.  There is much policy development left to the courts by the statute, as a result, and it will be interesting to see how this one comes out.  Bilski was viewed, by my friends at least, as the death knell of many areas of innovation.

June 2, 2009 | Permalink | Comments (0) | TrackBack (0)

Sunday, May 31, 2009

Interesting, Important Split on Admissibility of Expert Testimony about Science of Eyewitness Testimony

This is not so much a statutory interpretation case, but it is really interesting.  The judge notes that it is settled that there is a "vast lacuna" between how much weight jurors give eyewitness testimony, and how much science shows it is entitled too but, even so, courts split on admitting expert testimony on its unreliability.  US v. Smith is the case, available here.  The judge notes that older case law often excluded it, but "as the body of evidence has grown" showing it is unreliable, some judges are coming out the other way, and a split exists.

(Among other things, it demonstrates-- aghast -- that judges do make policy and law.  Even in Alabama, Senator Sessions, even in Alabama!  Perhaps we should get these wild liberal Alabama activist judges impeached forthwith!  Yes, I'm sick of this "judges don't make law" thing. Judges make law every day -- every day -- and they must.  Let's stop the charade!)

May 31, 2009 | Permalink | Comments (0) | TrackBack (0)

Thursday, May 28, 2009

Chevron Deference Due "No Smile" Virginia DMV Rule?

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

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

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

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

Now back to your usual programming.

May 28, 2009 | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 26, 2009

The Supremes' Review of Sotomayor's Statutory Construction Cases

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

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

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

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

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

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

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

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

May 26, 2009 in Television | Permalink | Comments (0) | TrackBack (0)

Empathy, Strict Construction, and Sotomayor

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

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

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

May 26, 2009 in Games | Permalink | Comments (0) | TrackBack (0)

More on "the law of interpretation of tax laws"

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

May 26, 2009 | Permalink | Comments (0) | TrackBack (0)

Interesting Split on Plain Meaning under BAPCA

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

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

May 26, 2009 in Food and Drink | Permalink | Comments (2) | TrackBack (0)

Thursday, May 21, 2009

A reader asks...

Max Radin famously wrote in the Harvard Law Review that the statutory canon “expressio unius est exclusio alterius” represents a fallacy of the illicit major. But how exactly does that canon commit this fallacy? Could someone please put in the categorical syllogistic form exactly how that canon commits the fallacy?


Here's an answer from my co-author, which I think nails it (though, of course, the counter-argument is also obvious):

Bottom line, the canon is “wrong” because one cannot think of everything to include in a list.  The canon assumes the author thinks of everything and chooses to not include those things excluded.  It simply does not reflect reality.

May 21, 2009 | Permalink | Comments (2) | TrackBack (0)

Wednesday, May 13, 2009

Purpose Loses: Federal Subject Matter Jurisdiction to Compel Arbitration Limited by Congressional Use of "Arising Under" to well-pleaded complaint

Not a surprise, but a brief and unanimous case that might have escaped you:  court holds that power to compel arbitration in federal court is limited to well-plead claims.  The party who wanted to rely on a counterclaim to support jurisdiction tried arguing policy and purpose, but the court relied on Congressional use of "arising under" to require the well-pleaded complaint rule apply.  the case, Vaden v. Discover Bank, is here.

May 13, 2009 | Permalink | Comments (0) | TrackBack (0)