Monday, July 6, 2020
Almost three years ago, I posted about a statutory interpretation case out of the Washington Supreme Court that addressed the thorny question of whether a riding lawn mower is a vehicle. It seems that Washington State is at it again with this fascinating case out of the Ninth Circuit. The question--Does "and" mean "and" or does it mean "or?" At issue--who exercises jurisdiction over non-Indians who commit crimes on the Yakima Nation's reservation.
The history of the case is rather complicated, but the key provision is quite simple. At the request of the Yakima Nation, Washington Governor Jay Inslee issued a Proclamation in 2014 that "retroceeded" to the federal government jurisdiction over certain civil and criminal matters that occurred on the Yakima Nation Reservation. Paragraph two of the Proclamation stated (my emphasis):
Within the exterior boundaries of the Yakama Reservation, the State shall retrocede, in part, civil and criminal jurisdiction in Operation of Motor Vehicles on Public Streets, Alleys, Roads, and Highways cases in the following manner: Pursuant to RCW 37.12.010(8), the State shall retain jurisdiction over civil causes of action involving non-Indian plaintiffs, non-Indian defendants, and non-Indian victims; the State shall retain jurisdiction over criminal offenses involving non-Indian defendants and non-Indian victims.
In an accompanying letter, Governor Inslee explained that the "and" in that last sentence meant "and/or," and, according to the opinion asked the Interior Department to make that clear when it accepted the Proclamation. It didn't. Over the intervening years, there were several interpretations of the language by different parts of the federal government and the court system. The most lasting interpretation appears to be a memorandum from the Office of Legal Counsel, which sided with team "and/or," resting heavily on the usage of "in part" in the first line.
In September 2018, the events giving rise to this case occurred. The Yakima Nation brought this particular claim seeking a preliminary injunction for team "and." Unfortunately for them, the Ninth Circuit didn't agree.
There is some delightful language in the Ninth Circuit opinion. Judge Ryan Nelson, writing for the majority, explained that while the "most common meaning" of and is "together" or a conjunctive usage, it isn't always used that way. It can, he says, mean "or":
Examples of “and” used to mean “or” abound. For example, a child who says she enjoys playing with “cats and dogs” typically means that she enjoys playing with “cats or dogs”—not that cats and dogs must both be present for her to find any enjoyment. Similarly, a statement that “the Ninth Circuit hears criminal and civil appeals,” does not suggest that an appeal must have a criminal and civil component for it to be properly before us. Nor would a guest who tells a host that he prefers “beer and wine” expect to receive “a glass of beer mixed with wine.” OfficeMax, Inc. v. United States, 428 F.3d 583, 600 (6th Cir. 2005) (Rogers, J., dissenting). In each instance, the common understanding is that “and,” as used in the sentence, should be construed as the disjunctive “or.”
Seems pretty logical to me, but I would naturally use "or" in that last example (although I dislike beer so I wouldn't even say that last example). Judge Nelson goes on to explain,
The same is true here when we examine “the broader context” of the Proclamation, Robinson, 519 U.S. at 341, in particular the Proclamation’s use of the term “in part” in Paragraphs 2 and 3. In both Paragraphs 2 and 3, the State “retrocede[s]” criminal jurisdiction “in part,” but retains “criminal jurisdiction” over “offenses involving non-Indian defendants and non-Indian victims.” If “and” in those sentences is interpreted to mean “or,” the retrocession “in part” makes sense. Under that interpretation, the State has given back a portion of its Public Law 280 jurisdiction— jurisdiction over crimes involving only Indians—but has kept Public Law 280 criminal jurisdiction if a non-Indian is involved.
Interpreting “and” in those Paragraphs as conjunctive, however, does not give “in part” meaning. Under that interpretation, the State has retroceded all jurisdiction that it received under Public Law 280—that is, criminal jurisdiction over all cases involving Indians. If that is the case, Paragraphs 2 and 3 are no different than Paragraph 1, which retroceded “full civil and criminal jurisdiction” over certain subject matters. But that cannot be right, because Paragraph 1 uses the phrase “full,” whereas Paragraphs 2 and 3 use the phrase “in part.”
Looking at the Proclamation, this does seem like a logical reading of it, although I wonder why "and/or" wasn't used in the original drafting of the Proclamation. It seems like that would have saved everyone a lot of trouble.
Regardless, let this be a lesson for drafters of statutes and Proclamations. Have a happy Monday AND (and I do mean AND) a good week.
Monday, April 8, 2019
While many people may be swearing on April 15 because they forgot to do their taxes, the Supreme Court will have swearing on its mind for another reason. Iancu v. Brunetti poses the very interesting question of whether, under the First Amendment, the government may refuse to register trademarks it deems "immoral" or "scandalous." Mr. Brunetti was denied a trademark for his clothing brand FUCT (Friends U Can't Trust). The Federal Circuit ruled in Brunetti's favor, and now the Supreme Court will hear the case.
Just two years ago, the Supreme Court ruled in Matal v. Tam, that the "disparagement clause" in the Latham Act is incompatible with the First Amendment. I think that is likely that Brunetti will succeed too in his trademark quest.
But, the merits of the case isn't want I wanted to blog about. What is quite interesting in the case are the numerous examples in Brunetti's brief of trademarked and rejected words that could be deemed "immoral" or "scandalous." National Law Journal, in its Supreme Court Brief email, noted that the briefs are "most assuredly not suitable for minors." According to NLJ, the brief lists "34 words that might sound scandalous, only three of which have been handled consistently. [The trademark office] has allowed FCUK, FWORD, and WTF IS UP WITH MY LOVE LIFE? Again, those are mild compared to other unmentionable words and phrases in the brief." If you would like to read all of the bad words in Brunetti's brief, you can find it here. The juicy part starts on p. 11.
Despite the bad words in the brief, Brunetti's attorney told the Court in a footnote that he didn't expect it would be "necessary to refer to vulgar terms during argument. If it should be necessary, the discussion will be purely clinical, analogous to when medical terms are discussed." That decision was probably for the best. The NLJ article mentions Carter Phillips, who was called twice by the Court and advised not to use bad words in oral argument when he argued the FCC v. Fox case.
I think that the subject of how litigants and the Court use profane language is fascinating. Should the word be spelled out? Should one use asterisks? And, if you dare spell it out, can you then say it out loud at argument? Dare the justices say the word when announcing the opinion? According to a 2012 New York Times article, when Justice Harlan announced the opinion of the Court in the Cohen case, he was instructed by Chief Justice Burger not to "'use that word' because 'it would be the end of the court' if he did." You may recall from constitutional law that Mr. Cohen was prosecuted for wearing a jacket that contained words that, according to his attorney attorney, were "'not actually advocating sexual intercourse with the Selective Service.'" Despite the Court's reticence to hear the word out loud, in many cases, especially in a case like Brunetti's, it is important to see the word in context.
I plan on listening to Brunetti's attorney's argument if I get a chance to see if he holds true to his word.
Wednesday, March 20, 2019
I've blogged here about laughter at the Supreme Court. And I've blogged about the fascinating empirical work of Tonja Jacobi and Matthew Sag. So I'm thrilled that Professors Jacobi and Sag have trained their analytical lens on laughter in oral arguments at the United States Supreme Court.
Their new piece is Taking Laughter Seriously at the Supreme Court, forthcoming in the Vanderbilt Law Review; they summarize it in two recent posts (here and here) on their must-read blog, SCOTUS OA. This is not the first scholarly effort to track laughter at the Supreme Court: Jay Wexler, for funsies, has been cataloging SCOTUS laughter since 2005, and rhetoric researcher Ryan Malphurs has dug into the communicative function of humor at oral argument (pdf). But Professors Jacobi and Sag take the scholarship of laughter at SCOTUS—and, more generally, the scholarship of oral argument—to entirely new, deeply serious places. They leverage a remarkable dataset: a database of every SCOTUS oral argument transcript from the 1955 through 2017 terms. In the 1.7 million speech events by justices and advocates in 6,864 cases, 9,378 triggered a [laughter] notation in the transcript; about two-thirds of the laughter events were prompted by something a justice said. Jacobi and Sag supplement their text-mining quantitative analysis with old-school qualitative analysis: they read and cataloged all 1,061 episodes of justice-induced laughter from 2010 to 2017.
Their conclusion: laughter at SCOTUS isn't much about fun and frivolity; it's mostly about the modern blood sport of judicial advocacy.
The piece builds on and reinforces Jacobi and Sag's prior work about shifts in the dynamics of SCOTUS oral argument. In an era of sharpening division and partisanship, justices have increasingly used oral argument to advocate rather than inquire. And the justices' use of humor at oral argument is of a piece. Just as justices' use of oral argument time to comment and advocate has increased dramatically in the modern era, so too has the [laughter]. In the 1950s and 60s, laughs were few and far between, and they were prompted nearly as often by advocates as by the justices. This mostly continued into the 1980s. But then, in the late 1980s and again in the mid-1990s, the pace of justice-triggered laughter escalated sharply. And it has stayed high.
There's more: at the same time, the patterns of justice-provoked laughter shifted significantly. Justices tend to draw more laughter during arguments with which they ultimately disagree. Put bluntly, they make jokes at the expense of advocates they oppose. This has mostly been true for most justices since 1955. But the "laughter gap" increased significantly in the mid-1980s and again in the mid-1990s. This too is consistent with the broader trends Jacobi and Sag have identified regarding the rise of judicial advocacy in SCOTUS oral argument. The justices also increasingly use humor as a signal of an advocate's weakness: they direct humor at advocates who are losing. This pattern too deepened in the mid-1980s and again in the mid-1990s. And the justices' use of humor reinforces hierarchy on another dimension: it is directly most often at novice advocates, particularly ones on the losing side. And when one looks at the quips that inspire laughter, the data make sense: a massive share of SCOTUS jokes involve putting advocates in their place. One example, from United States v. Kebodeaux:
So humor in the contemporary Supreme Court is a sharp and serious tool. And Profs Jacobi and Sag have done sharp and serious work.
Wednesday, November 29, 2017
I'm no Orin Kerr, but I've been pretty obsessed lately with United States v. Carpenter, this term's blockbuster Fourth Amendment-meets-technology case. It's a fascinating case, and it features outstanding advocates addressing important issues (and it makes for a nifty moot court problem). So I figured today I'd get the transcript, pore over it, and identify some great moments that let me say useful things about advocates doing advocacy.
There definitely are such moments. Interesting exchanges. Justice Gorsuch sharply pursuing a property-interest line of reasoning. And, most of all, the remarkable Michael Dreeben spinning out elegant prose on the fly.
But what struck me first was the laugher. Or, in SCOTUS, the [laughter]. Apparently, cell phones bring out the funny in the justices.
I shouldn't be surprised by this. Talking about Cell Site Location Information allows the justices to mine rich veins of I'm-a-wizened-person-with-life-tenure-and-I-don't-know-how-these-gizmos-work humor. And that's what Justice Kennedy did with the day's first [laughter]:
And Justice Sotomayor:
OK, so these are not the funniest jokes in the world. But they are, like, legit jokes. And that is not the norm for Justices Kennedy and Sotomayor. They are not humorless folk, but they never rank highly in Jay Wexler's groundbreaking studies of SCOTUS humor. Today's yuk fest means that Justice Sotomayor finally opened up a gap between herself and Justice Thomas in this term's [laughter] count. Justice Kennedy gets in the occasional self-deprecating quip, but his funniest SCOTUS moment before today was when he played straight man for Justice Scalia in the great "What's a footman?" routine of '07. These justices are not Justice Breyer, who can bring down the house with a well-timed utterance of "Limburger cheese."
Maybe [laughter] will unite the justices. And all of us, every one.
Thursday, November 16, 2017
This week the Senate held confirmation hearings on two nominees to the U.S. Court of Appeals for the Fifth Circuit, Justice Don Willett, a judge on the Texas Supreme Court, and James Ho, a private attorney. Ho fielded few questions compared to Willett's questioning, most likely due to Willett's more high profile media presence - he is known as the Tweeter Laureate of Texas. While Willett exhibits a lighthearted style and does not specifically make political tweets in his twitter feed, his social media presence does raise questions of how the public should view the judiciary. There are several pros and cons to the issue of judges having a social media presence, likely with the general public and the lawyer community having some different ideas.
The benefits to judges having a social media presence is certainly to make the judicial system less mysterious and to promote civic awareness of how government works. It would make the system less intimidating, since people would be able to see that judges are human. It would allow lawyers to get a feel for the personality of a judge before whom they may appear or to whom they may submit a brief. Understanding your audience as a lawyer is an important skill to persuading your listener.
On the other hand, judges having a social media presence may undermine the respect we want people to have for the judicial system. Judges inhabit power positions, and if they are seen as mixing it up on Twitter or other social platforms, it could bring disrespect to the judiciary and reflect on all judges. Perhaps some of the mystery of the courts is necessary to maintain the dignity of the courts. If judges stray from nonpolitical discourse, this could also be quite damaging to the fair and impartial image we expect from the judiciary.
It's not just Justice Willett, many judges are on social media (and now even courts!), so reversing this trend is unlikely. (Tessa wrote here about getting Justice Willett back on Twitter since he went on hiatus once his nomination was released - he got his own hashtag #FreeWillet). But Justice Willett does provide some guidelines for how to approach social media as a judge. In an interview last year with Texas Lawyer he said this:
Texas Lawyer: As the unofficial “Tweeter Laureate of Texas,” you’ve become one of the most public members of the state judiciary. At 22,500 tweets and counting, the world knows a lot about your sense of humor, family life, sports team allegiances and political leanings. You’ve provided a rare look into the life of a judge. But by revealing so much about yourself, do you think you’ve compromised a judge’s mandate to appear neutral in all matters that may come before the court?
Justice Don Willett: A 2013 ethics opinion from the American Bar Association gives judges a thumbs-up to engage voters via social media, calling it “a valuable tool for public outreach,” but urging caution, as with anything, judges must always be judicious, whether crafting a 140-footnote opinion or a 140-character tweet. I diligently self-censor and aim for carefulness. A few cardinal rules: No discussing cases that could appear before me, and no partisan bomb-throwing. I try to keep things witty and light, regaling people with my random musings on sports, culture, parenthood, law, stuff like that. Judges on social media must be juris-prudent, always honoring our distinctive constitutional role. I take my job seriously, if not myself. The law is a majestic thing, and when citizens confer the title “Justice” on someone, they place in human hands that profound majesty.
In his confirmation hearings this week, Willett was asked whether he would give up tweeting should he be confirmed. He acknowledged that his wife would like him to stop, but that he would take it under advisement.
Sen. John Cornyn, R-Texas, asked if Willett would keep tweeting if confirmed.
“The short answer is, I don’t know if I’ll continue tweeting,” Willett said. “I haven’t thought a lot about it, but if I do, certainly the frequency and the content would change.”
Willett said if he did tweet as a Fifth Circuit judge, he would focus on “civic education” and improving “our collective national civics IQ.”
Later, Sen. John Kennedy, R-Louisiana, asked the same question, and Willett gave a similar answer. But Kennedy expressed concern and asked that Willett consider not tweeting if confirmed. Willett promised the senator that if he did tweet, he would “post nothing that could be remotely construed as political.”
“Don’t you think the wiser course would be to just not do it?” Kennedy said. Willett said his wife agreed, and that he would think about it and get back to the senator.
It is not known when Justice Willett's nomination will be voted on, but it will be interesting to watch his reaction on Twitter!