Tuesday, February 10, 2009

Wisconsin Judges

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 10, 2009 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, February 9, 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.

February 9, 2009 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

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 9, 2009 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, February 6, 2009

Statutory Interpretation, Curricular Reform, and Other Ramblings

One of the big things in academia right now is reforming legal curriculum. No doubt it needs it. But, what has happened is that a bunch of buzz words are being thrown out, and some tweaks here and there made, but, with few exceptions (Washington & Lee being a prime one), little major is being changed.

We're in the midst of this at Mercer. I've taught for 6 years now, after practicing for 14 full-time and 6 now here and there. For what it's worth (and there WILL be something about statlaw, so hold on), here's my thoughts:

First, there's a dire need of subject matter reform. Why on earth do we teach fee tail, for example, in many property courses? I ran a westlaw search, and the phrase has been used in 35 cases -- in the entire US -- since 1995, and almost all of them noted that fee tails had been abolished by statute. Why is contract formation so emphasized? Why is writing mostly about appellate briefs (I wrote maybe 20 appellate briefs in my career, and probably 300 trial oriented briefs, and I did a "lot" of appellate work.) Why is most time spent reading appellate, rather than trial court, decisions?

You get the drift.

Then there's statutes. Because of the focus on the old cases, there's a unrealistic de-emphasis of statutes. They matter far more than first year case books would suggest. Tort reform, reform of future interests, the UCC -- these all are less present in most casebooks than they are in most practices, I'd suggest.

Now, the tail of casebooks can't wag the dog of law school professors. They love teaching this old stuff because it's wonderfully familiar. "My gosh," they can say, "what if the 80 year old woman gets impregnated by the five year old. That would violate the rule against perpetuities!" It's easy, known, and "we did it so why shouldn't they." (It's also, to a degree, still on the bar, and that is another problem - the bar tests students for a world that does not exist, but that important point I'll leave for now.)

So, more statutes more often is one "reform" I'd vote for.

Related to that, a class that brought together the different skill sets that common law reasoning requires than statutory law. It can't be in the first year, though -- too much too soon - but something to give the students the forest from the trees..

Anyhow, back to your regular programming soon...

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

Wednesday, February 4, 2009

Interesting Blog About a West Virginia Zoning case.

The post on the law of the land blog begins:

In a case hinging on statutory interpretation, the West Virginia Supreme Court traces the legislative history of the planning and zoning enabling acts in the State from the initial enactment in 1931 with changes made in 1959, 1969, 1973 and 2004 with respect to the requirements related to the comprehensive plan and zoning.

It is here. Thanks to Ted McClure at Phoenix School of Law for the tip.

February 4, 2009 | Permalink | Comments (0) | TrackBack (0)

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.

February 4, 2009 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Changes Coming to the Supreme Court?

Will justices retire? Will the new SG change things? Who will President Obama nominate? You can find the answers here, which obviously could radically affect the Court's approach to statutory interpretation (and other issues, maybe!):

Study about when Supreme Court Justices retire reaches surprising conclusion. How's that for a tease about this article.

Will the new solicitor general lead to a shift to the left? You can learn the answer to that question -- about which reasonable minds could disagree, here.

I need a hero... a bomb-throwing hero.. to nominate for the Supreme Court. So argues Dahlia Lithwick, in an opinion piece, here.

February 4, 2009 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 3, 2009

More Crucial Cases Pending

The Texas Hold'em Case: a Follow up. Okay, I knew the case was important when I saw it, but Ted McClure pointed out to me that it even made the Volokh Conspiracy, here. This made me realize how crucial this was, so I thought I'd follow up... Volokh even points out that there's even a whole group dedicated to proving that poker is not a crime (I am not making this up, as you can see here).

The statute at issue reads:

If any person shall play at any tavern, inn, store for the retailing of spirituous liquors or in any house used as a place of gaming, barn, kitchen, stable or other outhouse, street, highway, open wood, race field or open place at (a) any game with cards or dice, (b) any gaming table, commonly called A, B, C, or E, O, or any gaming table known or distinguished by any other letters or by any figures, (c) any roley-poley table, (d) rouge et noir, (e) any faro bank (f) any other table or bank of the same or the like kind under any denomination whatsoever or (g) any machine or device licensed pursuant to Section 12-21-2720 and used for gambling purposes, except the games of billiards, bowls, backgammon, chess, draughts, or whist when there is no betting on any such game of billiards, bowls, backgammon, chess, draughts, or whist or shall bet on the sides or hands of such as do game, upon being convicted thereof, before any magistrate, shall be imprisoned for a period of not over thirty days or fined not over one hundred dollars, and every person so keeping such tavern, inn, retail store, public place, or house used as a place for gaming or such other house shall, upon being convicted thereof, upon indictment, be imprisoned for a period not exceeding twelve months and forfeit a sum not exceeding two thousand dollars, for each and every offense.

The statute is, um, a mess. Although the 92 odd comments at Volokh suggest the importance of this statute to America, I have way better things to do with my time than figure this out, but my instincts tell me this thing's been amended many times since its enactment some 206 years ago.

Why do I say it's a mess? The way it's written, if I play a game with cards AND dice, I can play anywhere and bet away, for example. Also, I think that read literally the statute precludes about any game known to man, if played in a bar, inn, or store, field, outhouse (clearly, it must refer to some other form of "outhouse" other than what I'm thinking of), or pretty much any other place or building, and if there's betting involved.

The article I posted below points out, however, that historically the statute had been construed by the South Carolina AG to permit games which were more skill than luck. Hence the question the judge thinks she faces: is poker more skill than luck?

So, what's the answer? With no dog in this hunt (since I suck at poker and so don't play, don't live in South Carolina, etc.), I'd start with the text: any game of cards or dice, with a bet, is outlawed. Add to that the assumption that the legislature has acquiesced in this skill/luck dichotomy. So, no betting on games that are more luck than skill in various buildings and places in South Carolina. The issue then becomes a question of fact.

Is there a stopping point along the way?

To ban poker with bets in various places: I suppose you could argue that the text doesn't support the AG's limitation on it, and so his luck/skill dichotomy is simply error, and so we'd want to look very hard at acquiescence. If the AG's approach fails... then you're left with a statute that bans card games with bets, and, while that's not necessarily a statute I'd adopt, you're then left with the ban.

To keep poker with bets in various places: One "out" you have is to find the AG's approach valid, and that poker is more skill than luck. If you pull both of those out of the hat, poker bets can be placed in outhouses and bars throughout South Carolina. If you take away the AG's interpretation, though, I think poker's in trouble. I see no way to avoid the plain text other than by adopting a very "activist" purposive approach that, frankly, I don't think you could attribute to the legislature of 1802 in South Carolina: that a game of betting, on cards is legal. I don't think the text gets you there.

If I was a betting man (which I am, but blackjack, and only in Vegas and Iowa), I'd bet against poker in South Carolina.

The Ringling Bros. Elephant Walk: Animal Abuse Masquerading as Entertainment? I don't want to in any way diminish the harm of animal abuse (my dog, Jenny, is a rescue), but eight years of litigation over a circus seems to be... a bit of a circus. Read about the forthcoming bench trial, relating to a question of first impression under the Endangered Species Act, here.

February 3, 2009 | Permalink | Comments (0) | TrackBack (0)

Monday, February 2, 2009

Wrongful Death and Survivor Statutes Construed in Kansas

Polson v. Farmers Ins. Co. (Ks. 2009) is one of those cases that bugs me, since I have a really really really hard time justifying the literalistic result of the case with... common sense. A couple is killed in a car wreck. No proof that one survived the other, and I assume such proof was impossible given they died nearly instantly. They have a policy that requires payment of funeral expenses to a "survivor."

It addresses the "specific/general" canon, and other issues. Ultimately, it seems to me odd that there must be proof that one person did not, even momentarily, survive the other. My intuition tells me it is probably impossible that one did not, in fact, "survive," the other; what are the odds of truly simultaneous death?

Anyhow, it's an interesting case. Legislators, if you're reading...

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

Saturday, January 31, 2009

Interesting BAPCA Split on "Defalcation" in Context of Fiduciary Capacity

From the District Court for New Jersey in In re Tamis, 398 BR 124 (Bankr. D.N.J. 2008), comes this:

Like the phrase “fiduciary capacity,” the meaning of the term “defalcation” is a matter of federal law. Carlisle Cashway, Inc. v. Johnson (In re Johnson), 691 F.2d 249, 254 (6th Cir.1982)(“Federal, not state law controls our determination because it is the intent of Congress in using the word ‘defalcation’ that we seek to discover.”) Unfortunately, ascertaining the meaning of defalcation in § 523(a)(4) is hampered by the fact that the term is not defined in the Bankruptcy Code and there is no legislative history that illuminates its intended meaning. As a result of this lack of statutory guidance, the courts, including the Circuit Courts of Appeal, are split on the mental state required to establish defalcation or whether wrongful conduct is a necessary element.

The Third Circuit Court of Appeals has not yet spoken on how to define defalcation. A number of other circuits have considered the issue and the decisions can be roughly grouped into three approaches. The Fourth, Eighth and Ninth Circuits hold that an innocent default or negligence which results in misappropriation or default is sufficient. Rwanda v. Uwimana (In re Uwimana), 274 F.3d 806, 811 (4th Cir.2001) citing Pahlavi v. Ansari (In re Ansari), 113 F.3d 17, 20 (4th Cir.1997); Tudor Oaks Limited Partnership v. Cochrane, (In re Cochrane), 124 F.3d 978, 984 (8th Cir.1997); Lewis v. Scott (In re Lewis), 97 F.3d 1182, 1186 (9th Cir.1996). The court in Lewis stated that:

Defalcation is defined as the “misappropriation of trust funds or money held in any fiduciary capacity; [the] failure to properly account for such funds.” Under section 523(a)(4), defalcation “includes the innocent default of a fiduciary who fails to account fully for money received.” ... An individual may be liable for defalcation without having the intent to defraud.

Lewis, 97 F.3d at 1186-87. Unsurprisingly, Chase asserts that we should follow this line of authority.

The Fifth and Seventh Circuits hold that at least reckless conduct is required for a finding of defalcation. The Fifth Circuit finds that a “willful neglect” of a fiduciary duty constitutes a defalcation and characterizes this conduct as “essentially a recklessness standard.” *131 Schwager v. Fallas (Matter of Schwager), 121 F.3d 177, 185 (5th Cir.1997). Recognizing a split among the circuits as to whether defalcation may result from negligence and that objections to discharge are strictly construed against the creditor and in favor of the debtor, the Seventh Circuit concludes that “we cannot say that Congress intended for a debt arising from a mere negligent breach of fiduciary duty to be excepted from discharge under section 523(a)(11).” Meyer v. Rigdon, 36 F.3d 1375, 1385 (7th Cir.1994).

The Sixth Circuit Court of Appeals seems to occupy a midpoint between the Fourth, Eighth and Ninth Circuits on the one hand, and the Fifth and Seventh Circuits on the other. In Johnson, the Sixth Circuit interpreted § 17(a)(4) of the 1898 Bankruptcy Act, the predecessor statute to § 523(a)(4). The court found that no intent or actual knowledge was needed for defalcation, but that the conduct must be more than “mere negligence.” 691 F.2d at 254-57. The Sixth Circuit announced that defalcation must be measured by an objective standard, stating that “[t]he character of the liability imposed upon a fiduciary for appropriating property held by him in trust is the same whether he has actual knowledge that the law imposes a duty or is merely charged with such knowledge.” Id. at 257. Thus, in In re Bucci, 493 F.3d 635, 639 (6th Cir.2007) it stated that a defalcation encompasses not only embezzlement and misappropriation by a fiduciary, but also the failure to account for funds.

The First Circuit imposes a higher threshold, requiring a showing of extreme recklessness, “akin to the level of recklessness required for scienter.” In re Baylis, 313 F.3d 9, 20 (1st Cir.2002). The Second Circuit recently announced its agreement with Baylis, stating that “defalcation under § 523(a)(4) requires a showing of conscious misbehavior or extreme recklessness-a showing akin to the showing required for scienter in the securities law context.” In re Hyman, 502 F.3d 61, 68 (2d Cir.2007). Both courts relied in part on statutory analysis, finding that requiring conscious misbehavior is consistent with the other intentional misconduct (fraud, embezzlement, larceny) identified in § 523(a)(4). Baylis, 313 F.3d at 20; Hyman, 502 F.3d at 68.

This court is persuaded that Baylis and Hyman state a standard for defalcation that is most in harmony with the Bankruptcy Code generally, and § 523(a)(4) in particular. Baylis takes note of the structure of § 523, pointing out that the exceptions to discharge basically fall into two categories. 313 F.3d at 19. One category encompasses debts for which an individual, as a matter of public policy, should remain liable. Id. These obligations include such debts as those for certain taxes or custom duties (§ 523(a)(1)), alimony and child support (§ 523(a)(5)), and orders of restitution (§ 523(a)(13)). Id. “The level of fault of the debtor has no bearing on these exceptions; the exception turns on the type of debt.” Id. Baylis infers that the second category of exceptions is premised on fault and “[t]hese exceptions define not the type of debt itself, but the type of fault that caused the debt.” Id. These exceptions include debts arising from money, goods or services obtained by fraud, false pretenses or false representations (§ 523(a)(2)), willful and malicious injury (§ 523(a)(6)); death or injury caused by driving under the influence of alcohol or drugs (§ 523(a)(9)) and fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny (§ 523(a)(4)). Id. From this review of the structure of § 523, the court in Baylis concluded that an act of defalcation by a fiduciary must be a serious one, and some fault must be involved. Id.

The court confirmed its interpretation by looking at the specific language of § 523(a)(4). Based on its analysis, it concluded that conduct constituting defalcation must be of a similar gravity as conduct that gives rises to a discharge exception for fraud, embezzlement or larceny. Id. But, recognizing that defalcation must mean something different from the other terms, it found that proof of specific intent is not required. Rather, “a creditor must be able to show that a debtor's actions were so egregious that they came close to the level that would be required to prove fraud, embezzlement or larceny.... The mental state required for defalcation is akin to the level of recklessness required for scienter. It is more than the mere conscious taking of risk associated with the usual torts standard of recklessness.... Instead, defalcation requires something close to a showing of extreme recklessness.” Id. at 20. ( citation omitted ).

The court in Hyman was also persuaded that a showing of extreme recklessness is a proper measure of defalcation because it “ensures that the term ‘defalcation’ complements but does not dilute the other terms of the provision-‘fraud’, ‘embezzlement’, and ‘larceny’-all of which require a showing of actual wrongful intent.” 502 F.3d at 68. Hyman stated that such a standard for defalcation means that “the harsh sanction of dischargeability is reserved for those who exhibit ‘some portion of misconduct.’ ” Id. at 68-69 ( quoting Cen. Hanover Bank & Trust Co. v. Herbst, 93 F.2d 510, 512 (2d Cir.1937)). Moreover, it observed that use of this standard would not “reach fiduciaries who may have failed to account for funds or property for which they were responsible only as a consequence of negligence, inadvertence or similar conduct not shown to be sufficiently culpable.” Id. at 69. Finally, the Second Circuit also concluded that using the standard of extreme recklessness to define defalcation “has the virtue of ease of application since the courts and litigants have reference to a robust body of securities law examining what these terms mean.” Id.

This court agrees with both Baylis and Hyman that an extreme recklessness standard for measuring defalcation is the standard most consistent with the long held view that exceptions to discharge should be narrowly construed in favor of the Bankruptcy Code's “fresh start” policy. Baylis, 313 F.3d at 17 (quoting Century 21 Balfour Real Estate v. Menna (In re Menna), 16 F.3d 7, 9 (1st Cir.1994)). The Third Circuit has likewise stated that a strict construction furthers the purpose of the Bankruptcy Code “to relieve debtors from the weight of oppressive indebtedness and provide them with a fresh start.” Ins. Co. of Am. v. Cohn (In re Cohn), 54 F.3d 1108, 1113 (3d Cir.1995).

[5] If a lesser or more broadly defined standard for defalcation is employed, it runs the risk of encompassing ordinary mistakes of judgment. For example, the standard followed by the Fourth, Eighth and Ninth Circuits captures poor record-keeping, a common failure of many individuals and businesses that file for bankruptcy relief. Thus, this court further agrees with the court in Zohlman v. Zoldan (In re Zoldan), 226 B.R. 767, 777 (S.D.N.Y.1998) that a broad reading of defalcation should be avoided because of the ever-expanding definition of the term “fiduciary.” Zoldan explains that:

When state courts and legislatures create express or technical trusts in a plethora of areas, from corporate officers, to joint ventures, attorneys, building contractors, real estate agents, insurance brokers, and executors, often without considering the substantial ramifications*133 such expansion could have in the bankruptcy context, each of these individuals becomes a “fiduciary” for purposes of the Bankruptcy Code. Given the ever expanding definition of what constitutes a “fiduciary,” to couple this expansion with an equally expansive view of defalcation would defeat the fresh start objective of the bankruptcy law. (citation omitted)


The Third Circuit has long held that scienter is a “mental state embracing intent to deceive, manipulate or defraud.” U.S. S.E.C. v. Infinity Group Co., et al, 212 F.3d 180, 192 (3d Cir.2000) quoting McLean v. Alexander, 599 F.2d 1190, 1196-97 (3d Cir.1979); Ernst & Ernst v. Hochfelder, 425 U.S. 185, 195 n. 12, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976). See also, Coleco Industries, Inc. v. Berman, 567 F.2d 569, 574 (3d Cir.1977). Further, it agrees with the Seventh Circuit that the scienter required for securities fraud includes recklessness and finds recklessness to include:

[H]ighly unreasonable (conduct), involving not merely simple, or even inexcusable negligence, but an extreme departure from the standards of ordinary care, ... which presents a danger of misleading buyers or sellers that is either known to the defendant or is so obvious that the actor must have been aware of it.

McLean, 599 F.2d at 1197 (citing Sundstrand Corp. v. Sun Chemical Corp., 553 F.2d 1033, 1045 (7th Cir.1977)).

However, the Third Circuit has also cautioned that “good faith, without more, does not necessarily preclude a finding of recklessness.” Infinity Group Co., 212 F.3d. at 192. In Infinity, the SEC filed a civil securities fraud action against an investment trust and its principals. The individual defendants raised the defense that the SEC failed to establish scienter. The individuals claimed that they acted in good faith in that they believed the representations in Infinity Group's promotional literature to be true. 212 F.3d at 192. Among the representations made was the statement that investors were guaranteed to receive an annual rate of return ranging from 138% to 181% depending on the amount of the principal investment. Id. at 184-85. The Third Circuit's survey of the factual record before the district court led it to conclude that the district court had properly rejected the good faith argument advanced by the defendants. Id. at 193.FN4 It specifically pointed out that even if it assumed that the individuals actually believed the promotional representations, “[a] good faith belief is not a ‘get out of jail free card.’ ” Id. A good faith belief “will not insulate the defendants from liability it is the result of reckless conduct.” Id.

Accordingly, if Chase demonstrates an extreme departure from the standards of ordinary care, the defendants' claim of good faith does not save them. However, as set forth below, it is apparent that Chase has completely failed to prove its case. As the party objecting to dischargeability of the debt owed to it, Chase must establish its entitlement to such relief by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 287-88, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). When preponderance of evidence is the standard of proof, “the plaintiff's burden is to convince [the fact finder] upon all the evidence before [it] that the facts asserted *134 by the plaintiff are more probably true than false.” Applebaum v. Henderson (In re Henderson), 134 B.R. 147, 156 (Bankr.E.D.Pa.1991)(quoting Burch v. Reading Co., 240 F.2d 574, 579 (3d Cir.1957)).

I sometimes wonder if our fight over the meaning of words effects that many cases (at the margins, no doubt, but in the main?) and, more significantly given our economic downturn, whether the benefits of splits like this outweigh the social cost....

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

Friday, January 30, 2009

Most Crucial Statutory Interpretation Issue of the Century

Is Texas Hold'em legal, or not? That's the issue in South Carolina, in a decision pending, and discussed in this article. The question -- which we will soon know the answer to -- is whether the game is more luck, or more skill.

I'm horrible at poker -- my game consists of folding or betting extremely high, which tends to flag my hand to my opponents -- but many Mercer law school grads live in South Carolina, and, I'm sure, are critically aware of this issue!

January 30, 2009 | Permalink | Comments (0) | TrackBack (0)

Thursday, 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 29, 2009 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, January 16, 2009

Interesting federal-state split

As you know, many states pattern their statutes after federal law. So, when there's a federal interpretation often, but not always, the states follow suit. There's an interesting example of this discussed in Woomert v. Iowa Civil Rights Commission, (Iowa App. 2008), available here. There's so much underlying this issue that I don't think has been explored: is it proper, for example, for this court to simply say that because the Iowa statute is "modeled after" a federal statute, that Iowa courts should "consistently employ[] federal analysis" when interpreting it? That seems to suggest that by adopting a federal statute, a legislature is presumed to adopt federal "law" regarding interpretation of a statute... which doesn't necessarily mirror state law.

Anyhow, this particular case notes that state courts split on whether the "Ricks/Chardon" rule applies to state analogs, which suggests that some states don't blindly follow federal interpretations. I think there's a law review article here, or at least some additions to the second edition of our book, which we're working on!

January 16, 2009 | Permalink | Comments (0) | TrackBack (0)

Thursday, January 15, 2009

30,000 hits...

I just noticed that over the break we managed to go over 30,000 hits. That's pretty amazing. Enjoy.

January 15, 2009 | Permalink | Comments (0) | TrackBack (0)

Sex Between Teachers and 18 Year Old Students A-Okay in Washington

There's an article here, and the opinion, State v. Hirschfelder (Wash. App. 1/13/09) is here. Among other things, the court relied on grammatical rules concerning nonrestrictive phrases, as well as legislative history. It was a unanimous holding and, after reading the opinion, I think they got it right. Now, whether it's wise policy....

Thanks to Professor Spencer Clough for the tip!

January 15, 2009 | Permalink | Comments (0) | TrackBack (0)

Assessing CAFA's Stated Jurisdictional Policy

This is the title of a new article by Professor Richard L. Marcus, published in the University of Pennsylvania Law Review, and available here. I post it because interpreting CAFA has been the subject of several posts here. The article appears as part of a symposium on CAFA, and you can find the table of contents here.

January 15, 2009 | Permalink | Comments (0) | TrackBack (0)

Thursday, January 8, 2009

Ejusdem Generis Splits Connecticut Supreme Court

Is a veterinary clinic a medical or dental center? Depends on who you ask on the Connecticut Supreme Court. I love this case. Helm v. Zoning Bd of Town of New Canaan, 2008 WL 5220568 (Conn. 2008). Majority opinion here, one dissent here, and the other, here.

January 8, 2009 | Permalink | Comments (0) | TrackBack (0)

Monday, January 5, 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...

January 5, 2009 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Saturday, December 27, 2008

Tobacco Preemption Case from SCOTUS

The Supreme Court decided Altria Group, Inc. v. Good on December 15, 2008. Here is the Syllabus:

Respondents, smokers of petitioners’ “light” cigarettes, filed suit, alleging that petitioners violated the Maine Unfair Trade Practices Act (MUTPA) by fraudulently advertising that their “light” cigarettes delivered less tar and nicotine than regular brands. The District Court granted summary judgment for petitioners, finding the state-law claim pre-empted by the Federal Cigarette Labeling and Advertising Act (Labeling Act). The First Circuit reversed, holding that the Labeling Act neither expressly nor impliedly pre-empts respondents’ fraud claim.

Held: Neither the Labeling Act’s pre-emption provision nor the Federal Trade Commission’s actions in this field pre-empt respondents’ state-law fraud claim. Pp. 5–20.

(a) Congress may indicate pre-emptive intent through a statute’s express language or through its structure and purpose. See Jones v. Rath Packing Co., 430 U. S. 519 . When the text of an express pre-emption clause is susceptible of more than one plausible reading, courts ordinarily “accept the reading that disfavors pre-emption.” Bates v. Dow Agrosciences LLC, 544 U. S. 431 . The Labeling Act’s stated purposes are to inform the public of the health risks of smoking while protecting commerce and the economy from the ill effects of nonuniform requirements to the extent consistent with the first goal. Although fidelity to these purposes does not demand the pre-emption of state fraud rules, the principal question here is whether that result is nevertheless required by 15 U. S. C. §1334(b), which provides that “[n]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter.” Pp. 5–9.

(b) Respondents’ claim is not expressly pre-empted by §1334(b). As determined in Cipollone v. Liggett Group, Inc., 505 U. S. 504 , and Lorillard Tobacco Co. v. Reilly, 533 U. S. 525 , the phrase “based on smoking and health” modifies the state-law rule at issue rather than a particular application of that rule. The Cipollone plurality concluded that “the phrase ‘based on smoking and health’ fairly but narrowly construed” did not pre-empt the Cipollone plaintiff’s common-law claim that cigarette manufacturers had fraudulently misrepresented and concealed a material fact, because the claim alleged a violation of a duty not to deceive—a duty that is not “based on” smoking and health. 505 U. S., at 528–529. Respondents here also allege a violation of the duty not to deceive as codified in the MUTPA, which, like the common-law duty in Cipollone, has nothing to do with smoking and health. Respondents’ claim is not analogous to the “warning neutralization” claim found to be pre-empted in Cipollone. Reilly is consistent with Cipollone’s analysis. This Court disagrees with petitioners’ alternative argument that the express pre-emption framework of Cipollone and Reilly should be rejected. American Airlines, Inc. v. Wolens, 513 U. S. 219 , and Riegel v. Medtronic, Inc., 552 U. S. ___, are distinguished. Pp. 9–16.

(c) Various Federal Trade Commission decisions with respect to statements of tar and nicotine content do not impliedly pre-empt state deceptive practices rules like the MUTPA. Pp. 17–20.

501 F. 3d 29, affirmed and remanded.

Stevens, J., delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed a dissenting opinion, in which Roberts, C. J., and Scalia and Alito, JJ., joined.

December 27, 2008 | Permalink | Comments (0)

Wednesday, December 17, 2008

Should Statutory Interpretation be Taught in the First Year?

There's an article analyzing the issue, Ethan J. Leib, ADDING LEGISLATION COURSES TO THE FIRST-YEAR CURRICULUM, 58 JLEGED 166 (June, 2008). At Mercer, we've had it as a required first year course, and now it's a required third semester course, and we're looking at moving it back to the first semester. We've had it for a decade.... Unfortunately, it's not (yet) on ssrn, but several of his other pieces are, a few of which relate to statutes.

Posts will obviously be lighter over the break...

December 17, 2008 | Permalink | Comments (2) | TrackBack (0)