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SUMMARY OF OPINIONS ISSUED NOVEMBER 15-30, 2003


QUOTATION OF THE WEEK:

“A judge’s approach to interpreting statutes is often based on how she or he views the court’s role in government, particularly vis-a-vis the legislature.”

RONALD BENTON BROWN & SHARON JACOBS BROWN, STATUTORY INTERPRETATION: THE SEARCH FOR LEGISLATIVE INTENT 36 (2002)


CASE SUMMARIES:


First Circuit

Thames Shipyard v. United States (1st Cir. Nov. 26, 2003) (Campbell—Torruella concurred in part and dissented in part)

Statutes/regulations construed: 14 U.S.C. § 88, which provides that the Coast Guard may perform "any and all acts necessary to rescue and aid persons and protect and save property."

Conclusion: The statute permits the Coast Guard, when it deems such action necessary to protect lives, to compel an unwilling master to evacuate his vessel.

Statutory construction tools:
• State law authority in construing a federal statute: “Given the dearth of federal authority, we turn to state law and practice in analogous rescue situations for guidance.”
• Congressional intent--analogy to state officials:”Under the circumstances, we think it reasonable to assume that Congress, in granting the Coast Guard the broad authority to undertake "any and all acts necessary to rescue and aid persons and protect and save property," intended to confer powers analogous to those commonly possessed by state public safety officials, namely, the power to rescue a person even against his will in life-threatening circumstances.”

Bon mot in dissent: “The problem with judicial legislation is that it often conflicts with the wording and intent of the statute. Such is the present case. The majority's creation conflicts with the very purpose of the discretionary function exception. The ‘basis of the discretionary function exception was Congress' desire to prevent judicial second guessing.’”


CALLED, BUT NOT CHOSEN:

United States v. Donaby (7th Cir. Nov. 21, 2003) (district court did not err in awarding restitution under the Mandatory Victims Restitution Act for damage to a police car involved in a chase that followed a bank robbery)

Lemus-Rodriguez v. Ashcroft (7th Cir. Nov. 26, 2003) (The Immigration and Nationality Act provides that an alien who has been convicted of violating any federal or state law that makes it a crime to attempt to use any weapon “which is a firearm or destructive device” is ineligible for cancellation of removal. The court concluded that shooting rifles in the air to celebrate a holiday did not come within the Act’s exception for “a rifle which the owner intends to use solely for sporting, recreational or cultural purposes.”)


LAW REVIEW ARTICLE RECOMMENDATIONS:

The first recommendation is a bit biased, since I wrote it:

Restatement (First) of Statutory Interpretation (arguing that the American Law Institute should promulgate a Restatement of Statutory Interpretation and that such a Restatement could help bring much-needed guidance in the area of statutory interpretation)

The last update mentioned Duncan Kennedy’s “The Structure of Blackstone’s Commentaries” article. For a persuasive response that is much shorter than the original article (170 pages vs. 26 pages), I recommend Alan Watson, The Structure of Blackstone’s Commentaries, 97 Yale Law Journal 795 (1988).

ENGLISH COMMON-LAW TRIVIA QUESTIONS:
[Name of first person to answer correctly will be posted on this weblog. Please e-mail answers to statutes@hotmail.com.]

The following questions are related:
1) Name a famous rule of property law associate with Edward Coke.
2) How did this rule become associated with Edward Coke?
3) Name a Chief Justice of the King’s Bench who tried (unsuccessfully) to change the rule.
4) Name the case in which he tried to change the rule.
5) Who was one of the judges who reversed his decision?
6) How many times was that Chief Justice of the King’s Bench reversed?


Hint: for readers of a certain entertaining journal of law, these questions should be relatively easy.


Congratulations to Alan Robinson, who provided the following correct answers to the first two questions:


1.) I hope you are referring to the rule in Shelley's case. Wolfe v. Shelley, 76 Eng. Rep. 206 (K.B. 1581). The rule is technical, but in general terms it says that if A conveys a fee to B "for B's life, and then to B's heirs," then, A's intention notwithstanding, B actually gets a fee simple, can sell it, give it away, or will it to Anna Nicole Smith, and B's heirs have no claim to the fee.

2.) Coke was one of six counsel for the defendant, Henry Shelley. Later Coke reported the rule as settled law, I Reports 93b.

I will leave the rest of the questions for someone lucky enough soon to be receiving a John Paul Stevens bobblehead.


READER COMMENTS:

A reader e-mailed this suggestion:

I scan your statutory construction blog from time to time and would like to offer a suggestion. In addition to organizing your content in chronological order, consider arranging the material by Circuit and/or by federal statute. For example, if I wanted to view only 8th Circuit cases, I could simply click on "8th Circuit." If I wanted to view all cases interpreting the FMLA, I could click on "FMLA."

This may make your content more accessible and useful to practitioners and jurists.

My response:


Thanks for your suggestion. I already organize the case summaries by circuit, in the following order: Supreme Court, DC, Federal, 1st, 2d, 3d, 4th, 5th, 7th. However, I have been putting the "called but not chosen ones" in chronological order. Based on your suggestion, I may start putting them in circuit order.

As far as organizing them by statute, that is a great idea. However, it is not really practical for the individual two-week summaries. Eventually, I would like for this blog to lead to an annual "The Year in Statutory Construction" or a treatise on "Federal Statutory Construction." Organizing by statute would probably be most helpful for the "Year in Statutory Construction" idea.

His response:

When I mentioned organizing by Circuit, I was envisioning a menu on the right side of the screen with hyperlinks to summarized decisions for each Circuit. I think it would be a great research tool. For example, visitors could click on "D.C. Circuit" to view all cases you've reviewed from the D.C. Circuit. From there, they could view the cases in chronological order.

Imagine if attorneys, clerks or judges could hop on your cite, click on the "1st Circuit" and scan your archives for cases re: the SSA or a particular canon of construction. Alternatively, they could hop on and scan all circuit activity for a particular statute. It would be quite useful, but quite time consuming for you unfortunately!


READER QUESTIONS:

A reader e-mailed me with this question:

I was wondering if you know of any well-known cases that stand for the proposition that if you are going to rely on the legislative history, you have to look at the history as a whole. I've done a westlaw search for "leglislative history as a whole" and found a few things, but not a case where it is really made an issue. And, I'm aware of the famed comment that looking at legislative history is like going to a cocktail party.

My response:

I suggest that you look for "bits" or "snippets" in the same sentence as "legislative history." Courts often use those terms to describe unrepresentative, unpersuasive legislative history arguments.

I don’t think my response was all that helpful. If you have a better answer to this question, please e-mail me at statutes@hotmail.com.