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Wooden Statutory Interpretation

Critics of the D.C. Circuit’s panel decision in Halbig v. Burwell are condemning the decision for its wooden interpretation of the Affordable Care Act.  This got me to wondering how and when that phrase entered the lexicon.

The first reference I can find in the United States comes from the Indiana Supreme Court in 1906.  State v. Lowry stated that courts should “avoid a wooden interpretation of the words and become able to apprehend the spirit of the statute.”  Perhaps there was some earlier British usage (the phrase certainly sounds British), but I don’t know.

This raises a related point that has always puzzled me.  Lawyers of a certain age like to say when giving credit to someone that they took “the laboring oar” on a case or a project.  I had never heard anyway say this until I went into practice, and I haven’t heard it since I left practice.  Where does that one come from?

 

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Ace Greenberg, RIP

Ace GAlan C. (“Ace”) Greenberg has died at 86 (e.g., Crain’s NY Business, Money, Bloomberg, WSJ, USA Today).  A force behind the rise to prominence of Bear Stearns (which he headed from 1978 to 1993), Ace was a friend to me. He gave generously to Cardozo Law School, from which his wife Kathy graduated (in 1982), and contributed intellectually to programming I conducted there while directing the Samuel and Ronnie Heyman Center on Corporate Governance

Ace’s delightful little book, Memos from the Chairman, contains profound and pithy insight into business management, drawn from his famous memos to staff, that I’ll relish forever.  His book about the downfall of his beloved firm is also a nice contribution to our understanding of the financial crisis of 2008.

Ace kindly wrote a blurb for one of my early books on investing, How to Think Like Benjamin Graham and Invest Like Warren Buffett.  He said that the book “puts the ABCs of common sense valuation back into the business of investing” and was “the place to look for insight and guidance in the age of volatile markets and colliding ideas.”

Ace epitomized common sense and was a practical, generous, funny, and clever man.  He was also scrappy, tough, shrewd, and frugal.  Best of all, he was a champion of the underdog, just like me.   We’ll miss Ace.

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Ending Supreme Court Life Tenure

There are many critics of the Constitution’s guarantee of life tenure for federal judges and especially for the Justices.  They point out that most nations with an independent judiciary give their judges long but defined terms.  So do most of our states.  The current system, by contrast, allows the Justices to time their retirements in a political way, subject only to the unwritten rule that they not retire in a presidential election year.  Moreover, life tenure gives both parties a strong incentive to nominate young judges who will be on the Court forever.

How can this be changed?  Short of a constitutional amendment (which will not happen), the only realistic answer is that a norm would have to emerge among the Justices that they should retire after a certain term.  (There is a complex proposal for a statute that would impose term limits on the Justices while preserving their life tenure as judges, but that isn’t going anywhere either.)  After all, George Washington could have won a third term in 1796, but he chose not to and thereby established a powerful custom for a two-term limit.

Why would the Justices adopt such a practice?  I can think of one reason.  The next time different parties control the Senate and the White House, getting a Justice confirmed is going to be really challenging.  Imagine in that situation that a nominee sits before the Senate Judiciary Committee and says “I pledge to the American People that I will retire in ten years.”  That might allow the nominee to be confirmed, and it would be most difficult for that Justice to repudiate that pledge ten years later.   Once that precedent is established, the next nominee would find it hard not to make a similar pledge.

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New & Forthcoming Books on Supreme Court

Erwin Chemerinsky's forthcoming book

coming in September

Over at SCOTUSblog I have a post re new and forthcoming books on the Supreme Court. One of those books is a work by Dean Erwin Chemerinsky, The Case Against the Supreme Court (Viking, September 25, 2014).  Here is a description of the book:

Most Americans share the perception that the Supreme Court is objective, but Erwin Chemerinsky, one of the country’s leading constitutional lawyers, shows that this is nonsense and always has been. The Court is made up of fallible individuals who base decisions on their own biases. Today, the Roberts Court is promoting a conservative agenda under the guise of following a neutral methodology, but notorious decisions, such as Bush vs. Gore and Citizens United, are hardly recent exceptions. This devastating book details, case by case, how the Court has largely failed throughout American history at its most important tasks and at the most important times.

I hope to have more on this book and perhaps even an interview with the author.  Stay tuned.

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American Founding Son

Amazon has temporarily run out of copies.  (No wonder they lost money last quarter.)  I’m sure, though, that those of you still interested in buying one can find them for sale elsewhere.

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Evolving Contract Schemas

A Meeting of the Minds

A Meeting of the Minds?

With co-authors, I’ve been working on a series of experimental papers about contract law that appear to be converging on a theme: what individuals think “contract” means has purchase in the real-world, and that contractual schema is evolving.

A schema is nothing more than a mental model – a framework – to help us organize and process information. A contract schema is the set of background assumptions that we fill in when we think about a legally operative bargain. For those of us who grew up in a largely off-line world, our contract schema involve “doing the paperwork,” “getting it in writing,” and “signing on the dotted line.” (See this article for details). Indeed although most contracts law professors make fun of the metaphor of the meeting of the minds, it captures a real heuristic for a certain segment of society. That so even though form contracts have been part of modern life since the 50s, and almost none of us ever actually negotiate contracts that could end up in court. Indeed, when I started teaching in 2004, students routinely would say “she signed it, she must be bound to it,” even in cases like Specht.  Since this mental model is quite a ways from the reality of online contract, consumers may think they are in contracts when they aren’t, and visa versa.

But what happens when contracts widely explored in pop culture – and presented to you in your formative years – were never signed, never reduced to writing, never negotiated.  The cheerios arbitration debacle, facebook’s demystified terms, your cellphone contract, your cable company’s impossible-to-escape relationship.  What happens when every time you think “contract,” you don’t call up the mental image of a “signature on vellum” but instead “loki on steroids.”  And when companies, realizing this, increasingly pushed “no contract” plans that were actually contracts, just without penalty clauses attached.

Perhaps citizens born after 1980 will have dramatically different attitudes toward contract than those born before. If that’s true, we’ll increasingly find cohort effects in contracting behavior online, as lay intuitions about how to respond to “contract” increasingly turn on the age of the promisee. For those coming of age offline, “click to agree” calls up memories of signature, and consequently infuses bargains with personal honor; for those born digital, “click to agree” means “nothing good is about to happen to me.” Those attitudes toward contract will play out in behavior – in likelihood to breach, to shirk, and to behave opportunistically.

At some point we expect to have direct evidence worth sharing in support of this argument! For now, I thought start discussion by fast forwarding fifteen years, when many judges born in the digital age will have assumed the bench. What changes in contract doctrine follow from changes in contract’s schema? Then again, will there be any contract cases left to decide, or will they all been sucked into arbitration’s black hole?

 

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FAN 24 (First Amendment News) — Stephen Barnett: The Little-Known Man Behind the Well-Known Words

We live by falsehoods. They feed the myths of the great figures whose words are etched in our collective memory as if they were tablets from on High. We know those words; we are moved by those words; and those words define who we are or yearn to be.

Words fitly selected and artfully strung together can change minds and even alter the arc of history. Take, for example, the following words:

Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. 

Of course, they are the words of Justice William Brennan — the famous words from his celebrated opinion in New York Times Co. v. Sullivan.

Stephen Barnett

Stephen Barnett

Those words have had a profound impact on the direction of American law and culture. Their importance transcends the mere holding of the case and all the black-letter law that followed them. Talk about doctrine as much as you will; stress the importance of this or that theory of constitutional interpretation as you like; and laud or condemn either judicial activism or judicial restraint as you see fit; but in the end, nothing really matches a tantalizing metaphor or an alluring string of words.

This brings me to my point: For all the kudos that have been and continue to be bestowed on him, the naked fact is that Justice Brennan did not author the words that further enhanced his First Amendment reputation. Let me repeat: he did not write the words that made him yet more famous in free speech circles. One of his law clerks did.

His name? Stephen R. Barnett (1935-2009). Before venturing further, let me say this: I know, this is not news. Seth Stern and Stephen Wermiel flagged this historical point on page 224 of their comprehensive biography of Justice Brennan. Though Tony Lewis did not mention this particular fact in his Make No Law: The Sullivan Case and the First Amendment (1991), he did, nonetheless, mention young Barnett and his recollections of the internal history of the case.

While it is certainly true that Stern and Wermiel shed light on the Barnett authorship, the fact is that Professor Barnett’s great contribution to First Amendment history is otherwise ignored in virtually all academic literature, including casebooks.

→» So, here is the news part, if I may take the liberty: Let’s stop the charade — if judges insist on having their law clerks write their opinions, then credit for those opinions or for notable passages within them must be allowed, if only after a designated period of time not to exceed twenty years after the termination of the clerkship. Though I might be open to reconsidering the matter, for now I am inclined to say that confidentiality agreements should be deemed contrary to public policy if they deny that possibility. I say this as a former law clerk who continues to respect fair norms of confidentiality. (Of course, in my case it was easy since Justice Hans Linde, not his law clerks, wrote all of his opinions.)

Justice Brennan was a great jurist even if he did not write the famous passage from Sullivan or even if he did not author NAACP v. Button (his clerk Richard Posner did). That said, let’s raise a glass to Steve Barnett and let’s credit him whenever we quote that “robust” language from Sullivan.  

» One more thing, by way of a related point — You know these words: “whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” The author? Justice Oliver Wendell Holmes, of course, writing in Schenck v. United States (March 3, 1919).

But hold on. As Professor Lucas Powe has observed, in “the summer of 1918, Benjamin W. Shaw, defending (unsuccessfully until appeal) an Espionage Act case, uttered the following during his closing argument to the jury”:

‘Under all of the facts and circumstances disclosed by the evidence in this case, how can it be said that he wilfully [sic] said and did the things alleged? How can the words used under the circumstances detailed in the evidence have the tendency to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent?” 

John Fontana, “12 American State Trials 897, 932 (John D. Lawson, editor) (F.H. Thomas Book Co., 1920) (emphasis added), quoted in L. A. Powe, “Searching for the False Shout of ‘Fire,’” 19 Constitutional Commentary 345, 352, n. 61 (2002), discussed in Ronald Collins, The Fundamental Holmes  (2010), p. 234.

California Voters asked to weigh in on Citizens United Read More

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The World Dan Markel Created

dan markelThere have been such moving tributes to Dan Markel posted online that I wondered what I could add that hasn’t already been said about him. I didn’t know Dan as closely as many others, but I was fortunate to get to know him back in 2005. He was, as so many have said, one with a genuine passion for ideas.  Within the first few minutes of meeting him, Dan had already invited me to write some guest posts on his new blog, PrawfsBlawg.  I  barely knew him, but he was already cajoling me to blog as if he had known me for years.

I took him up on his offer.  As I began blogging on his site, he kept on encouraging me and sharing ideas with me.  “What do you think about this?”  “What do you think about that?” “You should write about this.”  Dan never eased in to anything, he didn’t gradually build speed.  You met him, and you’d find yourself instantly on a moving train.

I really loved blogging and stuck around PrawfsBlawg for quite a while before moving here to Concurring Opinions.  I thus owe my entry into the blogosphere to Dan.  Through Dan, and the people he brought to PrawfsBlawg, I met quite a lot of friends along the way.  When I think of the great people that Dan brought into my life — either directly or indirectly — it is quite an amazing list.

Dan had an intensity about nearly everything, especially ideas.  Typically, such intensity can push others away, but Dan’s intensity was paired with an exuberance and warmth.  I was not as closely in touch with Dan in recent years.  But whenever I saw Dan, he had a way of making me feel like we had been friends forever without any gaps.  And it was genuine — Dan really cared about people.

One of the refrains from the tributes to Dan is that he worked tirelessly to build a community.  His achievement here is something that is worth underscoring because it is so extraordinary.  The community Dan fostered was not merely a gathering of people.  It existed not just in meetings but in cyberspace too.  It encompassed junior law professors and senior ones.  It extended to scholars in a multitude of fields.  Dan’s community was one of friendship as well as one of ideas.   He was serious about academic engagement.

And what he created grew exponentially.  Our blog spun off of PrawfsBlawg, and other blogs have spun off of our blog.  Many blogs about law owe their origin in some way to Dan.   Many people were brought together because of Dan, spawning numerous co-authored works and lasting friendships.

The amount of friendships, collaborations, discussions, ideas,  and events that Dan played a role in creating is staggering.   Dan created more than just a community — he created a world.

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Absurd Statutes

I have a question for folks who focus on statutory interpretation.  One of the canons for a court is that unambiguous text will not be applied if it would lead to an absurd result.  Are there any cases that actually refuse to apply clear text because of absurdity?  It strikes me that if a court actually thought the result would be absurd, then they would just find a way to say that the language is ambiguous.

UPDATE:  Thanks for sending examples!