Author Archive for anita-krishnakumar
Book Review: Cross’s The Theory and Practice of Statutory Interpretation
posted by Anita Krishnakumar
Frank B. Cross, The Theory and Practice of Statutory Interpretation, Stanford University Press, 2009.
True to its title, Frank Cross’s ambitious book seeks to bridge the gap that long has existed between scholarly theorizing about statutory interpretation and the actual, on-the-ground judicial practice of construing statutes. The book’s first few chapters engage in excellent analyses of four competing theories of statutory interpretation—textualism, legislative intent, interpretive canons, and pragmatism. Cross examines each of the theories in detail, reviewing and critiquing the most prominent arguments made in favor of and against each approach. These chapters are extremely well-done; they not only provide a virtual primer on the most prominent works in the field of statutory interpretation, but are infused with Cross’s own incisive take on the standard debates.
The second half of the book turns to reporting the results of an empirical study that Cross conducted analyzing a sample of 120 cases from the Supreme Court’s 1994 through 2002 terms. Cross’s study was designed, inter alia, (i) to measure the Court’s and individual Justices’ patterns of canon use for consistency with the different theoretical approaches; (ii) to test the various interpretive methodologies’ ability to constrain ideological decision-making; and, to a lesser extent, (iii) to assess the interpretive methodologies’ relative ability to command consensus on the Court. To this end, Cross coded for judicial reliance on several specific canons and interpretive tools and then grouped these canons and tools into four categories corresponding to the interpretive theories—i.e., textualism, intentionalism, canons, and pragmatism. He then measured the Court’s rates of reliance on each category of interpretive tools, the correlation between individual Justices’ ideological preferences and the ideological outcomes of cases in which the Justices referenced interpretive tools within each category, and the relationship between the interpretive tools used and the level of consensus reached by the Court in particular cases. Cross’s empirical findings can be summed up as follows:
June 14, 2010 at 6:11 pm
Posted in: Book Reviews, Jurisprudence, Legal Theory
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The Importance of Other Statutes in Statutory Interpretation
posted by Anita Krishnakumar
In one of the few decisions it has handed down thus far this term, Union Pacific Railroad Co. v. Locomotive Engineers and Trainmen, the Supreme Court relies heavily on a statutory interpretation technique that tends to confound students, but that forms a staple in its interpretive methodology: References to/extrapolation from other statutes and prior Supreme Court cases interpreting them. Union Pacific raises the question whether, under the Railway Labor Act (RLA), a party’s alleged failure to exhaust certain grievance procedures before proceeding to arbitration in front of a panel of National Railroad Adjustment Board (NRAB) members is a jurisdictional claim that may be raised sua sponte by the arbitration panel or an ordinary claim that must be raised by the parties in their papers.
The RLA requires employees and railroads to exhaust the grievance procedures specified in their collective bargaining agreement before resorting to arbitration. As the final pre-arbitration grievance procedure, the Act directs parties to attempt settlement “in conference” between designated representatives of the railroad and the employee. In Union Pacific, the parties engaged in at least two pre-arbitration conferences; however, the employees neglected to include proof that conferencing had taken place in the materials ultimately submitted to the arbitrators. The railroad did not raise this lack of record evidence, but one of the industry representatives on the panel did — and despite the employees’ after-the-fact submission of evidence that the conferences did occur, the arbitration panel dismissed the employees’ arbitration petitions, concluding that it lacked authority to assume jurisdiction over the employees’ claims given the employees’ failure to submit proof-of-conferencing prior to the closing of the record. Read the rest of this post »
December 18, 2009 at 5:30 pm
Posted in: Supreme Court
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CRS Lobbying Report
posted by Anita Krishnakumar
Last week, the Congressional Research Service issued a report titled, Lobbying the Executive Branch: Current Practices and Options for Change. The report summarizes how lobbyist registration requirements have evolved since 1995, when the Lobbying and Disclosure Act (“LDA”) was passed. It also examines steps taken by the Obama Administration to limit and monitor lobbying of the executive branch, particularly in connection with the American Recovery and Reinvestment Act of 2009 and the Emergency Economic Stabilization Act (“EESA”).
The report has received some flack for its statement that the Administration’s restrictions on lobbyist access to executive branch departments and agencies “has already changed the relationship between lobbyists and covered executive branch officials.” But amidst all the uproar over whether there is any real evidence of such change and continuing criticism of the Administration’s unprecedented directives barring lobbyists from talking about specific projects (stimulus funds) and preventing lobbyists from serving on agency advisory boards and commissions, I am most struck by a section of the report that no one seems to be talking about: the recommendations for future action. That section discusses three suggestions or “options for change” that “might further clarify lobbyists’ relationships with executive branch officials.”
The suggested changes are:
1. Amend the LDA’s disclosure requirements to cover program-specific disbursement information — such as lobbying in connection with the Recovery and Reinvestment Act or the EESA.
2. Create a central database to collect all Recovery Act projects and contacts by federally registered lobbyists in a single, searchable location.
3. Take no immediate action, on the theory that the current lobbying registration and disclosure procedures combined with executive orders and executive branch rules on Recovery Act lobbying are effective.
Notice what is missing: Any mention of requiring elected officials who are the targets of lobbyist activity, and who get to decide just how much access lobbyists receive, to disclose their contacts with lobbyists. It seems to me that both the CRS Report and the Obama Administration are missing something very basic here: The public’s concerns about lobbying do not begin with lobbyists themselves, but with the amount of access and influence that lobbyists exert vis-à-vis elected officials. Elected officials are, after all, the ones with whom the public has a direct (voting) connection and who the public expects to act on its behalf. Thus, it is just backwards for lobbying regulations to require disclosure after disclosure from lobbyists and nothing whatsoever from elected officials.
December 9, 2009 at 9:51 pm
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“Practical Consequences” in Hertz Corp. v. Melinda Friend
posted by Anita Krishnakumar
Two weeks ago, the Supreme Court heard oral arguments in a case called The Hertz Corporation v. Melinda Friend, et al. At issue in the case is the appropriate test for determining which State constitutes a corporation’s “principal place of business” for diversity jurisdiction purposes. In September 2007, Melinda Friend et al. filed a class action lawsuit against Hertz Corporation in California state court; shortly thereafter Hertz sought to remove the lawsuit to federal court, arguing that it is incorporated in Delaware and that its principal place of business is New Jersey, where its corporate headquarters are located. Friend countered that California should be considered Hertz’s principal place of business because Hertz conducts more business in California than in any other state.
The California district court and the Ninth Circuit agreed with Friend, applying the so-called “total activity” or “substantial predominance” test, which holds that if a corporation’s “business activity [in one State] ‘is significantly larger than any other state in which the corporation conducts business,’” that State “‘is the corporation’s principal place of business.’” The Ninth Circuit’s approach is consistent with the “total activity” test adopted by the Fifth, Sixth, Eighth, Tenth, and Eleventh Circuits; only one Circuit, the Seventh, has adopted the headquarters test advocated by Hertz. Based on the November 10 oral argument transcripts, the Supreme Court appears poised to reverse the Ninth Circuit (and the prevailing approach in the Fifth, Sixth, Eighth, Tenth, and Eleventh Circuits) and to adopt a rebuttable presumption that a corporation’s “principal place of business” is the State in which its corporate headquarters are located.
The briefs and oral argument in the case provide a tour de force of statutory interpretation arguments, from references to (1) the ordinary meaning of “place” to (2) dictionary definitions to (3) the meaning given to “principal place of business” in the Bankruptcy Code and other statutes to (4) statutory purpose to (5) legislative history, including the rejected proposal rule, to (6) arguments about Congress’s intent. But what I find most striking in reading the oral argument transcript (and Hertz’s brief) is the emphasis placed on the simplicity and ease of administration of the “headquarters” test, as opposed to other tests for “principal place of business.” Read the rest of this post »
November 23, 2009 at 9:18 am
Posted in: Supreme Court
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The Roberts Court (Thus Far) and the Rule of Lenity
posted by Anita Krishnakumar
In their Legislation casebook, William Eskridge, Philip Frickey, and Elizabeth Garrett observe that between 1984 and 2006, the Supreme Court cited the rule of lenity in just over one-fourth of its cases interpreting criminal statutes and agreed with the government’s interpretation in over 60% of those cases. I thought it would be interesting to see how those figures compare to the still-nascent Roberts Court’s cases interpreting criminal statutes.
Here is what I found:
Between February 2006 (when Justice Alito joined the Court) and the end of June 2009 (Justice Souter’s last day on the Court), the Roberts Court decided twenty-five cases that involved at least some interpretation of a criminal statute. In fourteen of those twenty-five cases (56%), the Court interpreted the statute in a manner that favored the defendant. In only six of the cases did the Court reference the Rule of Lenity—four times in dissent, one time in both the plurality opinion and the concurring opinion providing the fifth vote, and one time in a concurring opinion alone.
The two justices most likely to reference the rule of lenity (i.e., who exhibited the highest rates of reference to the rule over the relevant time period) were Justices Scalia and Stevens, each of whom referenced or joined an opinion referencing the rule in four1 of the twenty-five cases. Justice Ginsburg exhibited the next-highest rate of reference to the rule, invoking it or joining an opinion that invoked it in three2 of the cases; Justice Souter invoked or joined an opinion invoking the rule in two3 of the cases, while Justices Breyer, Roberts, and Thomas did so only once.4 Justices Alito and Kennedy did not reference or join an opinion referencing the rule of lenity in a single case during this time period.
Upshot: Eskridge’s, Frickey’s, and Garrett’s finding that the rule of lenity plays a role in just over one-fourth of the Court’s criminal statutory cases seems to be holding steady in the Roberts Court. The Court may be shifting ever-so-slightly to a more equal rate of interpretations that favor the government versus the defendant, though it is too early and the sample size is too small to tell. Perhaps most interestingly, the rule of lenity seems to be losing steam as an interpretive aid: In the past several Supreme Court terms, it almost always has been cited by justices in dissent—even in the fourteen cases in which the Roberts Court interpreted the statute to favor the defendant, it rarely (one time) relied on the rule of lenity to reach its result. In light of this trend, it may be worth asking whether this longstanding rule of statutory construction is nearing its deathbed?
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1. See James v. United States (Scalia and Stevens, dissenting); United States v. Santos (Scalia plurality opinion, Stevens concurring opinion); Begay v. United States (Scalia concurring opinion); United States v. Rodriquez (Stevens joining Souter dissenting opinion); United States v. Hayes (Scalia joining Roberts dissent); Dean v. United States (Stevens dissent).
2. See James (joined dissent), Santos (joined plurality), Rodriquez (joined dissent).
3. See Santos (joined plurality), Rodriquez (authored dissent).
4. Justice Breyer authored a dissenting opinion citing the rule in Dean v. United States; Justice Roberts authored a dissenting opinion invoking the rule in Rodriquez; and Justice Thomas joined the relevant portionf of the plurality opinion in Santos.
November 15, 2009 at 1:37 pm
Posted in: Supreme Court, Uncategorized
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Can There Be An “Undeclared” Canon of Statutory Interpretation?
posted by Anita Krishnakumar
How do canons of statutory interpretation come into being? What qualifies a court’s method of reasoning in a statutory case as a rule or canon of construction? Last week, I wrote about the Supreme Court’s use of the passive voice as an interpretive guide in two somewhat recent criminal cases. Does this mean that we now have a “passive voice” canon of statutory interpretation, at least in criminal cases?
In a recent article, The Hidden Legacy of Holy Trinity Church: The Unique National Institution Canon (forthcoming, 51 William & Mary Law Review __ (2009))—in which I argue that the Supreme Court quietly has employed a “unique national institution canon” to give preferential legal treatment to certain special/unique American entities (Christian churches, baseball, railroads, tobacco, Native Americans)—I touch on this question of how different interpretive methodologies become canons or rules of statutory construction.
One position might be that any time the Supreme Court, as the highest court in the land, uses an interpretive methodology, that methodology becomes a rule or canon of statutory construction. This seems to be the view taken by William Eskridge, Philip Frickey, and Elizabeth Garrett in their Legislation casebook, which contains an appendix compiling “The Supreme Court’s Canons of Statutory Interpretation.” More generally, I would suggest that interpretive methodologies rise to the level of canons of statutory construction when they can lay claim to one or more of the following: (1) frequent use by the Supreme Court; (2) longevity, as when the methodology originated in English courts or long has been listed in Sutherland’s definitive treatise on Statutes and Statutory Construction;(3) grounding in some fundamental tenet of the American legal system (e.g., the Constitution); or (4) fostering consistency with longstanding judicial treatment of particular words or subject matters.
The expressio unius maxim, for example, gained its canonical status primarily through longevity—it is a Latin maxim used often by the English courts and is prominent in Sutherland’s—and also has been used frequently by the Supreme Court. The Rule of Lenity similarly derives its authority from its longevity (Justice Scalia has defended the canon on the grounds that it “is almost as old as the common law itself”) and from its basis in the fundamental constitutional due process principle that criminal laws should give fair notice of the behavior that is outlawed. Interpretive techniques with a shorter historical pedigree, such as the whole act and whole code rules, have achieved canonical status because they promote the consistent treatment of statutory words, phrases, sections, and subject matter. And one of the newest additions to the statutory interpretation canon, the federalism clear statement rule, earned its stature through frequent Supreme Court use coupled with a grounding in the fundamental constitutional principle of federalism. Read the rest of this post »
November 11, 2009 at 5:26 pm
Posted in: Supreme Court, Uncategorized
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The Passive Voice in Statutory Interpretation
posted by Anita Krishnakumar
Thanks to Dan et al. for the opportunity to guest-blog this month. For my first guest post, I want to highlight a little-noticed tool of statutory construction that has reared its head in a handful of recent Supreme Court decisions: inferences based on Congress’s use of the passive voice in criminal statutes. I first noticed Supreme Court reliance on the passive voice to construe a criminal statute in Justice Kennedy’s dissenting opinion in Jones v. United States (1999). Jones involved construction of the federal carjacking statute, 18 U.S.C. §2119, which then read as follows:
“Whoever, possessing a firearm as defined in section 921 of this title, takes a motor vehicle . . . from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall—
(1) be fined under this title or imprisoned not more than 15 years, or both,
(2) if serious bodily injury (as defined in section 1365 of this title) results, be fined under this title or imprisoned not more than 25 years, or both, and
(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both.”
Defendant Jones had participated in a carjacking with two other men. While Jones and one of the other men held up the victims, a third man had stuck his gun in one of the victims’ ears and later struck that victim on the head. The issue in the case was whether clauses (1), (2) and (3) of §2119 are sentencing provisions, specifying punishment/sentencing possibilities for the offense set forth in the first paragraph, or whether they are three different offenses (one being a carjacking offense, two being carjacking + serious bodily injury, and three being carjacking + serious bodily injury resulting in death). The classification mattered because the indictment did not charge any of the facts relating to bodily injury mentioned in clauses (2) or (3) and the jury instructions defined the elements of the government’s burden of proof with reference only to the first paragraph of §2119. If clauses (2) and (3) were deemed sentencing provisions, this would not matter, and Jones could be sentenced to 25 years based on the serious bodily injury caused to one of the victims; if clause (2) and (3) were read as separate offense provisions containing new elements, then the government’s failure to plead these elements in the indictment and prove them before the jury would preclude it from seeking the 25-year penalty against Jones.
In a 5-4 opinion, the Supreme Court concluded that “the fairest reading of §2119” was to treat the serious bodily harm provision as an element of a separate offense, rather than as a mere sentencing enhancement. Justice Kennedy, joined by three other dissenters, disagreed—relying in part on the fact that the statute “uses the active voice in the main paragraph and the passive voice in clauses (2) and (3).” While recognizing that the rule was not an absolute one, Justice Kennedy argued that “[i]n the more common practice, criminal statutes use the active voice to define prohibited conduct”— and the passive voice when listing sentencing factors. This inference based on the statute’s use of the “passive voice” certainly did not do all, or even the bulk, of the work in leading Justice Kennedy (or the other dissenters) to the conclusion that clauses (2) and (3) should be read as sentencing enhancements, but the dissenters did emphasize it to bolster/corroborate their reading of the statute.
November 2, 2009 at 1:38 pm
Posted in: Criminal Law, Supreme Court
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Confusion in United States v. Santos
posted by Anita Krishnakumar
The Supreme Court this past Monday handed down its decision in United States v. Santos, a case that turns on whether the phrase “proceeds of some form of unlawful activity” in the federal money-laundering statute, 18 U.S.C. §1956(a)(1), means “profits” (net income) from the unlawful activity or simply any “receipts” (payments) from the unlawful activity. (The unlawful activity at issue in the case was illegal gambling). In a closely divided ruling, the Court opted for the “profits” construction. But discerning the precedential effect of the Court’s ruling is a little like trying to make sense of Alice in Wonderland. The Justice’s opinions in the case are of the by-now-familiar fractured variety: Justice Scalia authored the plurality opinion, joined by Justices Souter, Ginsburg, and Thomas — except for Part IV, in which Justice Thomas did not join; Justice Stevens concurred in the outcome reached by the plurality, but not in its reasoning; Justice Alito authored a dissenting opinion joined by Chief Justice Roberts, Justice Kennedy, and Justice Breyer; and Justice Breyer issued a separate dissent joined by no one else.
Significantly, Part IV of the plurality opinion, which Justice Thomas refused to join, focuses entirely on the plurality’s differences with Justice Stevens and ends by seeking to characterize “the stare decisis effect of Justice Stevens’ opinion” — given that his vote is necessary to the outcome of the case. Justice Stevens’ opinion parts company with the plurality because Stevens refuses to construe the word “proceeds” in the federal money laundering statute always to mean “profits” from the underlying predicate crime. Rather, he argues that “proceeds” can mean either “profits” or “receipts,” depending on the unlawful activity at issue. Characteristically for Justice Stevens, the determinative factor is Congress’ intent regarding the particular unlawful activity at issue. In the case of illegal gambling, however, Justice Stevens is unable to discover any specific legislative intent about whether “proceeds” was meant to cover merely “profits” or also “receipts.” So, faced with (1) “a lack of legislative history speaking to the definition of ‘proceeds’ when operating a gambling business is the ‘specified unlawful activity’” and (2) his “conviction” that “Congress could not have intended” the four-fold sentence enhancement (from 5 to 20 years) that would result from treating the use of gambling receipts to pay the expenses of operating an illegal gambling business as a separate offense (money laundering) from the operation of the gambling business itself (underlying offense), Justice Stevens agrees with the plurality that the Rule of Lenity should tip the scales in favor of interpreting “proceeds” to mean “profits” in this case. Got that?
June 6, 2008 at 9:36 am
Posted in: Supreme Court
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The “Mischief Rule” Rule and the VRA in Riley v. Kennedy
posted by Anita Krishnakumar
Election law experts have been quick to speculate about what the Supreme Court’s decision in Riley v. Kennedy, handed down this past Tuesday, means for the future of Section 5 (the preclearance provision) of the Voting Rights Act (VRA). Rick Pildes argues that the decision reflects a trend, which began in the 1990s, of “greater skepticism from the Court” “regarding the boundaries of the special coverage regime under Section 5 of the Act.” Rick Hasen worries that the decision bodes ill for the Court’s upcoming review of the constitutionality of the recently-renewed Section 5 in the NAMUDNO case. But what is most interesting to me, as a matter both of statutory interpretation and of election law, is Part IV of Justice Stevens’ dissenting opinion, which employs a classic Hart & Sacks Legal Process approach —the “Mischief Rule”— to argue that Section 5 preclearance should be required in a case such as this.
Before delving into this most interesting argument by Justice Stevens, a little background: VRA §5, of course, subjects certain “covered jurisdictions” (which earned that designation through a history of suppressing minority voting rights) to a presumption of bad faith behavior in election administration. It operates by freezing in place the election administration procedures in such covered jurisdictions, and requiring that such jurisdictions obtain “preclearance” from either the Justice Department (DOJ) or the District Court for the District of Columbia before they may make any changes to voting/election procedure. The typical preclearance lawsuit thus tends to involve a proposal by a state entity to implement some new change to election procedure in a covered jurisdiction, and a challenge by a minority group arguing that the proposed change will have the effect of disenfranchising minority voters. Riley turns that classic procedural posture on its head: In 1985, Alabama passed a law adopting a new election practice (changing the procedure for filling midterm vacancies on the Mobile County Commission from gubernatorial appointment to special election), obtained the preclearance required by Section 5, and held an election (in 1987). Soon thereafter, the Alabama Supreme Court invalidated the law under which the election took place on the ground that it violated the Alabama Constitution. When the next midterm vacancy arose (in 2005), the governor sought to fill it by appointment, prompting litigation. The question presented before the Supreme Court = Whether Alabama must obtain fresh preclearance in order to reinstate the election practice —i.e., gubernatorial appointment— that was in place before the special election procedure, ultimately struck down by the Alabama Supreme Court, was enacted? Does reinstatement of the gubernatorial appointment procedure constitute a change/abandonment of the special election procedure used in 1987, and thus require Section 5 preclearance?
May 30, 2008 at 1:01 am
Posted in: Supreme Court
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A Reverse Clear Statement Rule?
posted by Anita Krishnakumar
Last week the Supreme Court issued an opinion in a seemingly straightforward statutory interpretation case, Gonzalez v. United States. At issue was whether the Federal Magistrates Act (FMA) permits magistrate judges (rather than Article III district court judges) to preside over voir dire and jury selection in a felony criminal trial if defense counsel consents to the arrangement, but absent express consent from the defendant himself. Section 636(b)(3) of the FMA states that: “A magistrate judge may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States.” The Court concluded that the statutory language and relevant precedents (Gomez v. United States and Peretz v. United States) did not bar delegation of felony jury selection and voir dire to a magistrate. But more interesting, in my view, than the outcome reached by the Court is the argument it brushed aside with little fanfare in getting there: constitutional avoidance.
It is a well-worn if not-exactly-well-loved canon of statutory construction that when a statute is susceptible of two interpretations, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, the Court’s duty is to adopt the interpretation that steers clear of constitutional difficulties. The petitioner in this case argued that the decision to have a magistrate judge rather than an Article III judge preside at jury selection is a fundamental choice, involving a defendant’s fundamental rights, and that interpreting the FMA to authorize waiver of this choice without the express consent of the defendant raised a question of constitutional significance. Given the canon of constitutional avoidance, he pressed the Court to require an explicit personal statement of consent before a magistrate judge may be permitted to preside over felony jury selection. The Court, however, quickly waived away this argument, insisting that no serious constitutional is raised by such a delegation of authority to a magistrate, absent a defendant’s express consent, because: (1) as petitioner conceded, a magistrate judge is capable of competent and impartial performance of the judicial tasks involved in jury examination and selection; (2) the Article III district judge, insulated by life tenure and irreducible salary, is waiting in the wings, fully able to correct errors; (3) requiring the defendant to consent to a magistrate judge by way of an on-the-record personal statement is not dictated by precedent; and (4) such a requirement would burden the trial process. In other words, the Court relied on policy arguments to trump petitioner’s claim that felony defendants have a constitutional right to have an Article III judge preside over their trials, waivable only by the defendant personally.
May 20, 2008 at 11:42 am
Posted in: Supreme Court
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Rehnquist Parody Uncovered
posted by Anita Krishnakumar
More on the statutory interpretation front to come soon, but in the meantime, I want to direct readers’ attention to an entertaining article by my colleague, John Barrett, titled, A Rehnquist Ode on the Vinson Court (Circa Summer 1953). The article, which is soon to be published in a forthcoming issue of Green Bag, features a recently-uncovered parody of a song from Gilbert & Sullivan’s “Mikado,” penned by William Rehnquist around the time he served as a law clerk to Justice Robert Jackson on the Vinson Court. Barrett, a well-known Jackson scholar, uncovered the parody in Jackson’s papers at the Library of Congress. As Barrett explains at the outset of the article:
The late William H. Rehnquist had an active, sometimes irreverent sense of humor, a love of music and strong, if often carefully guarded, opinions on many topics, including Supreme Court justices. This article publishes for the first time a Rehnquist composition that dates back to his seventeen-month Supreme Court clerkship with Justice Robert H. Jackson during 1952 and 1953. The document is a typewritten spoof of Gilbert and Sullivan lyrics. Rehnquist, who was in his late twenties when he banged out this ditty, gave it to Jackson. The Justice filed it without written comment, and it has been sitting in his [Jackson’s] files for more than fifty years.
The Rehnquist lyrics demonstrate his skill as a writer and a parodist. They also document his knowledge of 1950s Supreme Court justices’ gripes about and low regard for some of their judicial brethren. Rehnquist’s Gilbert and Sullivan parody focuses on the plethora of separate opinions that the 1950s Supreme Court Justices habitually produced, and on one subject that was, to Justice Jackson, particularly galling: Chief Justice Fred M. Vinson’s preoccupation, includingduring his working hours at the Supreme Court, with baseball.
Barrett’s article, which provides valuable annotations and historical context illuminating the subtext of Rehnquist’s parody, is a highly recommended read!
May 15, 2008 at 3:42 pm
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Predictions for United States v. Rodriguez
posted by Anita Krishnakumar
Many thanks to Doug Berman over at Sentencing Law and Policy for his kind words about my last post discussing Begay v. United States. Doug ended his post by noting that “the only thing missing” from my analysis was an assessment of what the Court’s ruling in Begay might mean for the soon-to-be-decided United States v. Rodgriguez. Taking up Doug’s gently-placed gauntlet, here are my thoughts on the likely outcome of Rodriguez, as informed by the Justices’ voting/reasoning in Begay:
First, a little Background: Rodriguez involves clause (i) of the same Armed Career Criminals Act (“ACCA”) sentencing enhancement that was at issue in Begay (and in James). 18 U.S.C. §924(e)(2)(B). Whereas clause (ii) of that section imposes the enhancement if the defendant previously has been convicted of three “violent felonies,” clause (i) triggers the enhancement if a defendant previously has been convicted of a “serious drug offense” — defined as “a state drug trafficking offense for which a maximum term of imprisonment of 10 years or more is prescribed by law.” 18 U.S.C. §924(e)(2)(B)(i). At the time when he committed his latest offense, Rodriguez had three prior convictions in Washington State for delivery of a controlled substance. Under Washington State law, the maximum term of imprisonment for this offense is 5 years for first-time offenders, and 10 years for those committing the offense for a second time (or third, or fourth, etc. time). The statutory interpretation question thus becomes: Whether a state drug trafficking offense qualifies as a “serious drug offense” triggering the §924(e)(2)(B)(i) enhancement if the maximum term of imprisonment starts out at 5 years for first-time offenders, but rises to 10 years for repeat offenders.
Based on their votes in Begay (and James) construing clause (ii) of §924(e)(2)(B), and on their questions at oral argument, here are my speculations (and I want to emphasize that these are just speculations) as to how the Justices are likely to vote in Rodriguez:
May 8, 2008 at 3:55 pm
Posted in: Supreme Court
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Dejá-Vu in Begay v. United States
posted by Anita Krishnakumar
Last month, the Supreme Court issued an opinion in a little-discussed but methodologically intriguing statutory interpretation case called Begay v. United States. Begay addresses the range of predicate convictions that qualify a defendant for sentence enhancement under the Armed Career Criminal Act of 1984 (the “ACCA”), 18 U.S.C. §924(e). The sentencing enhancement provision is one which the Court addressed last term (2006-2007) in the context of a different predicate offense, in a case called James v. United States. Taken in tandem, the two cases intrigue because despite involving the same statutory provision and being decided by the same nine justices (no retirements or replacements in the interim), they produced different outcomes, different voting coalitions, and even different reasoning by some Justices.
At issue in both cases is a provision of the ACCA that imposes a mandatory 15-year minimum sentence on an offender who possesses a firearm while committing a felony IF the offender previously was convicted of three “violent felonies” or “serious drug offenses.” The Act defines “violent felony” to include any adult crime punishable by at least one year’s imprisonment that “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. §924(e)(2)(B)(ii). This last clause is referred to as the “otherwise” or “residual” clause and is the provision subject to interpretation in both Begay and James. In James, the question presented was whether a conviction for “attempted burglary” falls within the residual clause; in Begay it was whether a conviction for driving under the influence of alcohol (DUI) does. (Under New Mexico law, DUI becomes a felony punishable by a prison term of more than one year the fourth time an individual commits it; by the time of his federal offense, Begay had twelve DUI convictions, nine of which counted as felonies under New Mexico law.)
The Court, in two fractured opinions, answered the presented questions “yes” in James (attempted burglary counts) and “no” in Begay (a DUI does not count). Only three Justices were in the majority in both cases. Only one Justice dissented in both. So, what is going on with Justices’ reasoning? The following roadmap attempts to explain:
May 5, 2008 at 1:09 pm
Posted in: Supreme Court
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Trust Law Meets Statutory Interpretation
posted by Anita Krishnakumar
For my final guest post, I want to talk about a case argued before the Supreme Court on Monday (November 26): LaRue v. DeWolff, Boberg, & Assoc. The case involves the appropriate interpretation of ERISA provisions governing individual pension plan participants’ right to sue the fiduciaries who administer their plans. While the subject might bore the average lawyer, as one who teaches courses both on statutory interpretation and on trusts, I find it intriguing. So, here goes: LaRue is a participant in an ERISA-covered Section 401(k) pension plan that is sponsored by his employer, DeWolff. DeWolff administers the plan and so qualifies as an ERISA fiduciary. Under the plan, participants may choose among several investment options and may direct DeWolff, as plan administrator, to invest the amounts allocated to their individual accounts in specified percentages. LaRue claims that DeWolff breached its fiduciary duties to him by failing to follow his investment allocation instructions, resulting in a loss of approximately $150,000.
Enter ERISA Sections 502(a)(2) & (a)(3), 29 U.S.C. 1132(a)(2) & (a)(3), under which LaRue seeks to have the plan reimbursed for that alleged $150,000 loss (after which the plan would allocate the funds to his individual account). ERISA Section 502(a)(2) authorizes a participant and others to sue a fiduciary (like DeWolff) to recover “losses to the plan” resulting from a breach of fiduciary duty. Section 502(a)(3) is a catch-all provision that authorizes a plan participant and others to sue for, among other things, “appropriate equitable relief . . . to redress” “any act or practice which violates” ERISA.
The issues thus become: (1) Does Section (a)(2) authorize a plan participant to sue for recovery that would inure to his individual account rather than to the benefit of the plan as a whole?; and (2) Does LaRue’s claim to recover the alleged $150,000 loss constitute a claim for equitable relief (as opposed to a legal claim for compensatory damages), as required under (a)(3)?
November 30, 2007 at 7:24 pm
Posted in: Supreme Court
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An Overlooked Legacy of Lochner v. New York
posted by Anita Krishnakumar
I recently came across an article by David Bernstein called Lochner v. New York: A Centennial Retrospective. The article, which has been blogged about both on Legal Theory and on the Volokh Conspiracy (albeit some time ago, but archives have a way of keeping this stuff alive), discusses the history and legacy of Lochner and tracks how the case came to be part of the “anti-canon.” Bernstein’s central arguments are: (1) that the law challenged in Lochner was the product of special interest pressure by unionized bakers seeking to restrict competition from recent immigrant bakers who were willing to work longer hours, not the result of a benevolent social movement to aid workers and the poor; and (2) that the Lochner majority opinion did not become a leading case in the “anti-canon” until the 1960s, when the Supreme Court began to debate Lochner’s legacy in Griswold v. Connecticut.
Bernstein’s article is interesting and informative, but I write here to highlight an important aspect of the story to which it gives short shrift. The point to which I wish to draw attention is the significance of the Lochner dissent. Bernstein mentions in passing that judges and scholars initially paid attention only to Justice Holmes’s famous dissent (rather than to the majority opinion) — but in so doing, he glosses over one critically important legacy of the case: It is the foundational, precedent-setting Canonical Dissent, the case that paved the way for the canonization of dissenting opinions as a form of legal authority. As I have argued elsewhere (see On the Evolution of the Canonical Dissent), before Lochner and the New Deal, the concept of admitting judicial error, let alone calling attention to a dissenting opinion, was anathema to the American legal system. In fact it was believed that such an acknowledgemnt of error would threaten the (somewhat shaky) legs upon which judicial legitimacy stood.
November 19, 2007 at 1:33 pm
Posted in: Constitutional Law
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Impending Budget Battle Reminiscent of 1995-96 Budget Showdown?
posted by Anita Krishnakumar
The Washington Post ran an interesting piece yesterday, November 14, by Peter Baker titled, Bush Veto Sets Up Clash on Budget, Democrats Make War-Funds Threat. The article begins:
A budget dispute erupted into a full-scale battle Tuesday as President Bush vetoed the Democrats’ top-priority domestic spending bill and the party’s Senate leader threatened to withhold war funding if the president does not agree to pull out of Iraq.
The long-anticipated clash came to a head as Bush rejected a $606 billion bill to fund education, health and labor programs, complaining that it is too expensive and is larded with pork. Within hours, Senate Majority Leader Harry M. Reid (D-Nev.) declared that Bush will not get more money to pay for the wars in Iraq and Afghanistan this year unless he accepts a plan to complete troop withdrawals by the end of next year.
The Washington Post article goes on to compare the impending budget showdown between President Bush and the Democratic Congress to the infamous 1995-96 budget battle between President Clinton and a then-Republican Congress — a battle which resulted in several government shutdowns and widely is considered to have ended in a political victory for President Clinton. In fact, the article notes that “[a] politically weakened Clinton used that episode to redefine himself, just as an unpopular Bush wants to wage a veto fight to demonstrate strength with 14 months left in office and to play off a Congress with as little public support as that led by Newt Gingrich a dozen years ago.”
Having written about the 1995-96 budget showdown in some detail (see article), and having given some thought to separation of powers issues in the budget context, I offer these observations in response to the comparison invited by the Washington Post article:
1. The 1995-96 budget battle undoubtedly taught that the President has the political and procedural leverage in a head-to-head showdown with Congress. Among other things, the Chief Executive has a built-in media advantage because he can fly around the country making speeches that vilify Congress and explaining why he simply had to veto the atrocious budget Congress sent him. Moreover, he has the ability to speak as one voice for his Administration, whereas Congressional leaders must struggle to keep various legislative factions together and to represent the will of a multi-member body.
November 15, 2007 at 1:44 pm
Posted in: Politics
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Statutory Stare Decisis in John R. Sand & Gravel Co. v. United States
posted by Anita Krishnakumar
This past Tuesday, November 6, the Supreme Court heard head-spinningly complicated but (perhaps for this reason) thoroughly entertaining oral arguments in a case called John R. Sand & Gravel Co. v. United States. The case evolved as follows: John R. Sand & Gravel Co. owns a long-term lease on 158 acres of land in Lapeer County, Michigan. A pre-existing landfill located on this land is contaminated with illegally-accepted industrial waste. In 1992-1993, the United States Environmental Protection Agency (EPA) erected a chain link fence around roughly 60% of John R. Sand’s leasehold land and began excavating the contaminated waste from the site. Since 1992, EPA has at various times removed and relocated the fence to different parts of John R. Sand’s leased land and at one point obtained an injunction preventing John R. Sand from interfering with its remedial efforts. In 2002, John R. Sand filed a complaint seeking just compensation for the EPA’s “permanent physical taking” of portions of its leasehold land.
John R. Sand’s lawsuit is authorized under the Tucker Act, 28 U.S.C. §1491(a), which waives the United States’ sovereign immunity for claims “founded upon the Constitution” and confers jurisdiction on the Court of Federal Claims (CFC) to hear such claims. The government initially moved for judgment on the pleadings on the grounds that John R. Sand’s suit was time-barred under 28 U.S.C. §2501. Section 2501 provides that:
Every claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.
The CFC denied the government’s motion, finding that John R. Sand’s takings claims based on EPA’s construction of the chain link fence did not accrue until 1998. In subsequent pre-trial briefing, the government took the position that the fence-based claims accrued in 1998. Following a bench trial, the CFC ruled against John R. Sand on the merits. On appeal, the government did not argue that John R. Sand’s complaint was time-barred. An amicus brief, however, raised the timeliness issue, and the Court of Appeals sua sponte addressed it on review, concluding that John R. Sand’s fence-based takings claims had accrued in 1994 rather than 1998 and that his 2002 complaint thus was time-barred under 28 U.S.C. §2501.
Here’s where the case gets complicated(!) Ordinarily, an argument that a plaintiff’s claim is time-barred under the applicable statute of limitations is an affirmative defense, which must be raised and preserved by the defendant in order to avoid being waived. Which would mean that where, as here, the defendant conceded that the accrual date was 1998 and dropped the statute of limitations argument altogether on appeal, the Court of Appeals could not resurrect that argument as a basis for its ruling. BUT, the United States is no ordinary defendant. It is a defendant who ordinarily cannot be sued, except when it consents to do so by statute. If that statutory consent comes attached to a time limitation for filing claims against the United States, then the failure to comply with the limitations period no longer is an ordinary affirmative defense, but a condition of the sovereign immunity waiver. So the question becomes: Is the six-year limitations period in 28 U.S.C. §2501 meant to be part and parcel of the United States’ consent to be sued under 28 U.S.C. §1491(a), or is it merely an ordinary limitations period subject to waiver? Or, put more technically, is the statute of limitations set forth in 28 U.S.C. §2501 jurisdictional (meaning that it establishes a condition that the plaintiff must meet in order to have a right to sue the government in the first place) or is it merely procedural (meaning that it does not speak to plaintiffs’ right to sue, but only to whether or not a remedy can be granted for a violation of those rights)?
November 13, 2007 at 9:41 am
Posted in: Supreme Court
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Interlocking Statutes, Statutory Anomalies and Legislative Purpose
posted by Anita Krishnakumar
More on the statutory interpretation front: The Supreme Court last week heard oral arguments in Logan v. United States, a case involving the interplay between multiple federal criminal statutes, state law treatment of convicted offenders, and interpretive chestnuts such as the Absurd Results canon.
Federal laws: (1) Under 18 U.S.C. § 922(g)(1), it is unlawful for a person who has been convicted of a crime punishable by more than one year’s imprisonment to possess firearms. (2) Under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), convicted persons who violate §922(g)(1), and whose prior convictions include at least three violent felonies or serious drug offenses, face a mandatory minimum fifteen-year sentence. (3) 18 U.S.C. §924(e)(2)(B) defines “violent felony” as a violent crime that is “punishable by imprisonment for a term exceeding one year.” (4) But, under the amended version of 18 U.S.C. § 921(a)(20), enacted as part of the Firearms Owners Protection Act (FOPA), any conviction that “has been expunged, or set aside or for which a person has been pardoned or has had [his] civil rights restored” does not count as a predicate offense “unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.” To complicate matters, 18 U.S.C. §921(a)(20)(B) specifies that offenses classified by a State as misdemeanors may qualify as a “violent felony” (and thus as a predicate for a felon-in-possession conviction under § 922(g)(1)) if the misdemeanor is punishable by more than two years’ imprisonment.
State law: Wisconsin law classifies simple battery (causing bodily harm, as opposed to substantial or great bodily harm) as a misdemeanor offense, punishable by a maximum sentence of three years’ imprisonment. Wis. Stat §§ 940.19(1) (2003); 939.62(1)(a) (2000). Wisconsin law does not deprive persons convicted of a misdemeanor of any civil rights or of the right to possess a firearm. Wis. Stat. §§ 6.03(1)(b) (2006); 756.02 (1997); 973.176(1) (2006).
In 2005, Petitioner James D. Logan pleaded guilty to possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). A Wisconsin district court sentenced him, under the ACCA, to 15 years’ imprisonment because he had three prior state misdemeanor battery convictions punishable by a maximum of three years’ imprisonment. Logan challenged that conviction, arguing that his Wisconsin misdemeanor convictions should be disregarded under §921(a)(20) because they did not result in the loss of his civil rights, thus leaving him in the same position as a felon whose civil rights have been restored. (Civil rights commonly are understood to include the rights to vote, to serve on a jury, and to hold public office). The question before the Court is: Does the “civil rights restored” exemption under §921(a)(20) apply to defendants whose civil rights never were taken away by the State in the first place?
November 9, 2007 at 11:07 am
Posted in: Supreme Court
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Early Reflections on the Roberts Court and Legislative History
posted by Anita Krishnakumar
The Roberts Court undoubtedly still is in its infancy when it comes to matters of statutory interpretation. Despite this shortage of extrapolation-material, I think it possible to hazard a few speculations about emerging trends in the fledgling Court’s statutory interpretation methodology. At least as concerns legislative history —an ever-fertile ground for debate amongst judges and academics— I note three emerging camps among the Justices:
1.Stevens, Breyer, Ginsburg: Legislative History is relevant to help clarify statutory meaning in the first instance, because it provides context and can illuminate Congress’ intent and purpose in enacting the words at issue.
Evidence: In Hamdan v. Rumsfeld , a case that involved §1005(e)(1) of the Detainee Treatment Act (DTA), these three Justices were willing to rely in part on the fact that when Congress passed the DTA, it specifically considered and rejected a proposal to bar Supreme Court review of habeas applications from aliens detained at Guantanamo Bay that were pending at the time the statute was enacted. (The DTA clearly bars Supreme Court review of habeas applications filed after the date the statute takes effect, and the key question was whether that bar applied to an application filed by Hamdan before the statute was enacted).
Similarly, in Zuni Public School District No. 89 v. Dep’t of Education, these three Justices looked to and relied on the facts that (1) the Secretary of Education drafted the statutory language at issue and promulgated the challenged regulations (and calculation method for per-pupil expenditures) immediately thereafter; and (2) the challenged regulations had been in effect for 30 years prior to this challenge, during which time Congress never objected to the Secretary’s regulations or calculation method. (In other words, the Justices relied on the identity of the drafter and on post-enactment congressional silence).
November 6, 2007 at 9:15 am
Posted in: Supreme Court
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Missing Canons of Construction in Ali v. Federal Bureau of Prisons?
posted by Anita Krishnakumar
This past Monday, October 29, the Supreme Court heard oral arguments in a little-noticed case that raises fascinating questions of statutory interpretation: Ali v. Federal Bureau of Prisons . Ali is a prisoner in the custody of the United States Bureau of Prisons. During a transfer between prisons, he handed over his property to Bureau of Prisons officials for transportation to his new prison. Ali alleges that when his property was handed back to him at the new prison, several religious and personal items, including (as Justice Ginsburg noted during oral argument) a Koran and prayer rug, were missing. After exhausting his administrative remedies, Ali filed suit in federal district court against the United States, the Bureau of Prisons, and three Bureau of Prisons officials for the value of his lost property.
Enter the Federal Tort Claims Act (FTCA), 28 U.S.C. §1346(b), 2671-2680, which waives the United States government’s sovereign immunity for lawsuits in which the petitioner alleges “injury or loss of property” that was “caused by the negligence or wrongful act or omission” of employees of the federal government — except for thirteen specified categories of governmental activity. One of the thirteen excepted categories is for “[a]ny claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer.” (Emphasis added).
So the $64,000 Question is: Does the phrase “any other law enforcement” officer include Bureau of Prisons officials, or is it limited, as Ali argues, to law enforcement officers who are acting in a customs or tax capacity?
The parties’ briefs, and the Justices’ questions at oral argument, offer a juicy exegesis into numerous textual canons of statutory construction. It’s the kind of romp through the canons that can make statutory interpretation professors like myself positively giddy: Is the statute’s reference to “customs or excise” officers an Example, or a List? Does the hoary (if unpronounceable to law students) ejusdem generis canon of construction apply here, or not? Does Congress’ use of the broad, encompassing word “any” before “other law enforcement officer” make the statute’s meaning plain and eliminate the need for (or the appropriateness of) further inquiry? Does Congress’ subsequent passage of an “exception to the exception” that circles back and waives sovereign immunity for civil forfeitures made by “law enforcement officers” shed light on the meaning of the original exception set forth in §2680(c)?
November 1, 2007 at 10:09 am
Posted in: Supreme Court
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