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QUOTATION OF THE MONTH


“On occasion, Mansfield was prepared to endorse almost a ‘work to rule’ approach—a meticulous, literal construction requiring stringent proof—when he concluded that a statute or collection of statutes worked fundamental injustice. The clearest example was his manipulation of the statutes against Catholics saying mass in public. Indeed, in that remarkable instance, all twelve judges met and agreed upon a strict construction of the statutes, yielding in short order the cessation of attempts at conviction.”


JAMES OLDHAM, ENGLISH COMMON LAW IN THE AGE OF MANSFIELD 32 (2004)

He is, of course, referring to Lord Mansfield, Chief Justice of the Court of King’s Bench, 1756-88.



CASE SUMMARIES

Full Summaries

Supreme Court

Whitfield v. United States (S.Ct. Jan. 11, 2005) (O’Connor)

Statutes/regulations construed: 18 U. S. C. §1956(h), a federal money laundering conspiracy statute.

Conclusion: A conviction for conspiracy to commit money laundering, in violation of 18 U. S. C. §1956(h), does not requires proof of an overt act in furtherance of the conspiracy.

Statutory construction tools:
• Common law definition: “[A]bsent contrary indications, Congress intends to adopt the common law definition of statutory terms.”

• “If Congress had intended . . .”: “Second, petitioners apparently read §1956(h) to supply an enhanced penalty for violation of §371 in cases where the object of the conspiracy is to violate the substantive money laundering offenses in §§1956(a) and 1957. But the text of §1956(h) fails to provide any cross-reference to §371. Mere use of the word ‘conspires’ surely is not enough to establish the necessary link between these two separate statutes. In short, if Congress had intended to create the scheme petitioners envision, it would have done so in clearer terms.”

• Silence in the legislative history: “Given the clarity of the text, mere silence in the legislative history cannot justify reading an overt act requirement, or a cross-reference to §371, into §1956(h). See, e.g., United States v. Wells, 519 U. S. 482, 496–497 (1997) (refusing to read a materiality element into the statute at issue based on silence in the legislative history); Harrison v. PPG Industries, Inc., 446 U. S. 578, 592 (1980) (‘[I]t would be a strange canon of statutory construction that would require Congress to state in committee reports or elsewhere in its deliberations that which is obvious on the face of a statute.’). Nor do we find it significant that Congress chose to label §1956(h) a ‘penalty’ rather than an ‘offense’ provision. See Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S. 206, 212 (1998) (‘[t]he title of a statute . . . cannot limit the plain meaning of the text’); Castillo v. United States, 530 U. S. 120, 125 (2000) (although ‘[t]he title of the entirety of §924 is ‘Penalties’. . . at least some portion of §924 . . . creates, not penalty enhancements, but entirely new crimes’).”

• “Congress knows how to . . .”: “As the Government points out, Congress has included an express overt-act requirement in at least 22 other current conspiracy statutes, clearly demonstrating that it knows how to impose such a requirement when it wishes to do so. Where Congress has chosen not to do so, we will not override that choice based on vague and ambiguous signals from legislative history.” (citation omitted)


Jama v. Immigration & Customs Enforcement (S.Ct. Jan. 12, 2005) (Scalia)

Statutes/regulations construed: 8 U. S. C. §1231(b)(2) (when an alien is found ineligible to remain in the United States, the process for selecting the country to which he will be removed is prescribed by that statute).

Conclusion: The statute does not prohibit removing an alien to a country without the explicit, advance consent of that country’s government.

Statutory construction tools:
• Congressional omission: “We do not lightly assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply, and our reluctance is even greater when Congress has shown elsewhere in the same statute that it knows how to make such a requirement manifest.”

• Rule of the last antecedent: “Just last Term, we rejected an argument much like petitioner’s, noting that it ran contrary to ‘the grammatical ‘rule of the last antecedent,’ according to which a limiting clause or phrase . . . should ordinarily be read as modifying only the noun or phrase that it immediately follows.’’

• Periods: “Each clause is distinct and ends with a period, strongly suggesting that each may be understood completely without reading any further.”

• Words of differentiation vs. words of connection: “Indeed, both ‘other’ and ‘another’ are just as likely to be words of differentiation as they are to be words of connection. Here the word 'another' serves simply to rule out the countries already tried at the third step and referred to in the conditional prologue of clause (vii) (‘If impracticable, inadvisable, or impossible to remove the alien to each country described in a previous clause of this subparagraph, another country . . .’). It is the fact of that close earlier reference that makes it natural to say ‘another country’ here, whereas ‘A country’ is used at the outset of §1231(b)(1)(C)(iv), in which the reference to ‘each country described in a previous clause of this subparagraph’ comes later and hence cannot serve as an antecedent for an ‘Another.’ The dissent makes a mountain of this molehill, see post, at 5–6.”
• Changes based on stylistic preference: “The dissent also finds profound meaning in the fact that Congress changed the text from ‘any country” in the 1996 legislation to ‘another Country’ in the current version. ‘The Court cannot be right,’ it says, ‘in reducing the 1996 amendment to this level of whimsy.’ Post, at 7. But if one lays the pre-1996 version of the statute beside the current version, he will find numerous changes that are attributable to nothing more than stylistic preference.”

• A word and its fellows: “We do not dispute that a word is known by its fellows, but here the structure refutes the premise of fellowship.”

• Congressional ratification, prerequisites: “Neither of the two requirements for congressional ratification is met here: Congress did not simply re-enact §1231(b)(2) without change, nor was the supposed judicial consensus so broad and unquestioned that we must presume Congress knew of and endorsed it.”


Clark v. Martinez (S.Ct. Jan. 12, 2005) (Scalia)

Statutes/regulations construed: 8 U. S. C. §1231(a)(6), regarding the detaining and removal of aliens.

Conclusion: Under §1231(a)(6), the Secretary of Homeland Security may detain inadmissible aliens beyond the 90-day removal period, but only for so long as is reasonably necessary to achieve removal.

Statutory construction tools:
• Statutory categories, inventing a statute: “The operative language of §1231(a)(6), ‘may be detained beyond the removal period,’ applies without differentiation to all three categories of aliens that are its subject. To give these same words a different meaning for each category would be to invent a statute rather than interpret one.”

• Limiting construction: “It is not at all unusual to give a statute’s ambiguous language a limiting construction called for by one of the statute’s applications, even though other of the statute’s applications, standing alone, would not support the same limitation. The lowest common denominator, as it were, must govern.”

• Avoiding constitutional problems: “In other words, when deciding which of two plausible statutory constructions to adopt, a court must consider the necessary consequences of its choice. If one of them would raise a multitude of constitutional problems, the other should prevail—whether or not those constitutional problems pertain to the particular litigant before the Court.”

• Avoidance canon: “The dissent takes issue with this maxim of statutory construction on the ground that it allows litigants to ‘attack statutes as constitutionally invalid based on constitutional doubts concerning other litigants or factual circumstances’ and thereby to effect an ‘end run around blackletter constitutional doctrine governing facial and as applied constitutional challenges.’ This accusation misconceives—and fundamentally so—the role played by the canon of constitutional avoidance in statutory interpretation. The canon is not a method of adjudicating constitutional questions by other means. Indeed, one of the canon’s chief justifications is that it allows courts to avoid the decision of constitutional questions. It is a tool for choosing between competing plausible interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts. The canon is thus a means of giving effect to congressional intent, not of subverting it. And when a litigant invokes the canon of avoidance, he is not attempting to vindicate the constitutional rights of others, as the dissent believes; he seeks to vindicate his own statutory rights. We find little to recommend the novel interpretive approach advocated by the dissent, which would render every statute a chameleon, its meaning subject to change depending on the presence or absence of constitutional concerns in each individual case.” (citations omitted)

• Avoidance canon: “If we were, as the Government seems to believe, free to ‘interpret’ statutes as becoming inoperative when they ‘approach constitutional limits,’ we would be able to spare ourselves the necessity of ever finding a statute unconstitutional as applied. And the doctrine that statutes should be construed to contain substantive dispositions that do not raise constitutional difficulty would be a thing of the past; no need for such caution, since—whatever the substantive dispositions are—they become inoperative when constitutional limits are ‘approached.’ That is not the legal world we live in. The canon of constitutional avoidance comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction; and the canon functions as a means of choosing between them.”


[Congratulations to Adrian Vermeule, of the University of Chicago, whose article was cited in this opinion: “see also Vermeule, Saving Constructions, 85 Geo. L. J. 1945, 1960–1961 (1997) (providing examples of cases where the Court construed a statute narrowly to avoid a constitutional question ultimately resolved in favor of the broader reading).”]

Stewart v. Dutra Construction Company (S.Ct. Feb. 22, 2005) (Thomas)

Statutes/regulations construed: Longshore and Harbor Workers’ Compensation Act, 33 U. S. C. §902(3)(G).

Conclusion: A dredge is a “vessel” under the Longshore and Harbor Workers’ Compensation Act (LHWCA). [To see a picture of a dredge, click here.]


Statutory construction tools:
• Statutory term defined in another statute: “Just as Congress did not define the term ‘seaman’ in the Jones Act, it did not define the term ‘vessel’ in the LHWCA itself. However, Congress provided a definition elsewhere.” (footnotes omitted)

• “Seeming incongruity”: “Despite the seeming incongruity of grouping dredges alongside more traditional seafaring vessels under the maritime statutes, Congress and the courts have long done precisely that . . .”



Called, but not chosen

Commissioner of Internal Revenue v. Banks (S.Ct. Jan. 24, 2005) (Kennedy) (As a general rule, when a litigant’s recovery constitutes income under the Internal Revenue Code, the litigant’s income includes the portion of the recovery paid to the attorney as a contingent fee)


LAW REVIEW ARTICLE RECOMMENDATIONS
[With the exception of the Harvard Law Review article, the summaries are not mine.]

Thanks to Professor Volokh, of the Volokh Conspiracy, for pointing out that recent issues of the Duke Law Journal and the Virginia Law Review are available online. This is a GREAT idea. I hope that more law reviews will start doing it.

Other law reviews are online, such as the NYU Journal of Legislation & Public Policy. The most recent issue online includes an article by a certain blogger who focuses on statutory construction.

Already-published articles:

There is no shortage of law review articles discussing Chevron. If you do a LEXIS or Westlaw search for articles with "Chevron" in the title, you will probably get a list of more than 100 articles. This has led one author to comment, in discussing a different issue: "The ‘legislative history is good/no, legislative history is bad’ debate has produced many a law review article. It might even rank up there with ‘Marbury v. Madison, what did it really mean?’ and ‘Chevron, does anyone know what it means?’ as a font of law review writing." A recent Harvard Law Review note, and an article posted on the Social Science Research Network, add to this body of literature.

Note, "How Clear Is Clear" in Chevron's Step One?, 118 Harvard Law Review 1687 (March 2005)

At Chevron step one, a court asks whether the statutory language is clear. This Note argues that courts should demand more clarity for some statutes, and for other statutes, not so much. But which statutes would fall in the "some" category and which statutes would fall in the "other" category? According to this Note, it would depend on analyzing factors such as:
1) political accountability (independent agencies would get less deference than executive-branch agencies);
2) agency expertise (an EEOC interpretation of an antidiscrimination statute would get less deference than an EPA interpretation of a "complex environmental statute");
3) "whether the statute involves common law or constitutional law, or alternatively, matters of agency administration";
4) "whether the legal question is important"; and
5) "whether the agency can be trusted to give a properly balanced answer."


Not-yet-published articles:

Daniel A. Farber, Earthquakes and Tremors in Statutory Interpretation: An Empirical Study of the Dynamics of Interpretation

Using citation data from the Supreme Court's 1984 and 1990 Terms, this study tests three models of judicial dynamics. The first model posits that the extent of an opinion's importance to the law, as measured by how frequently it is cited by courts and commentators, is determined by a host of relatively small factors. This model predicts a normal, bell-shaped curve of citation frequencies. The second model posits that judges have bounded rationality and strong attachments to existing rules, leading them to practice normal science most of the time with occasional paradigm shifts. In empirical studies by various social scientists, this kind of model has been found to produce frequency distributions that are roughly bell-shaped but have a characteristic known as leptokurtosis. The third model stems from complexity theory (also known as chaos theory or fractal geometry. This type of model predicts a power curve that is characteristic of many social and natural processes, such as earthquake severity. Because earthquakes provide such a vivid metaphor for legal change, this can be called the tectonic model of legal dynamics.

As it turns out, the first model is clearly wrong, and the second model is also at odds with the data. On the other hand, the tectonic model provides a good statistical fit for the data. Thus, at least in terms of this preliminary empirical investigation, complexity theory may provide important insights into judicial dynamics.

Caleb Nelson, What Is Textualism?

In discussions of statutory interpretation, people often suggest that textualists and intentionalists have fundamentally different goals: intentionalists try to identify the subjective intent of the enacting legislature, while textualists care only about the objective meaning of the statutory text. This distinction, however, is far less helpful than the rhetoric on both sides suggests. To begin with, the distinction itself is exaggerated; judges whom we think of as textualists construct their sense of objective meaning from what the evidence that they are willing to consider tells them about the subjective intent of the enacting legislature. Many textualists do impose more restrictions than the typical intentionalist on the evidence of intent that they are willing to consider, but those restrictions need not reflect any fundamental disagreement about the goals of interpretation. In any event, whatever disagreements may exist on this score do not account for the most significant differences between textualism and intentionalism. Thus, even when there is no useful legislative history on some question of interpretation (and hence no intrinsic reason for the objective meaning sought by textualists to diverge from the subjective intent sought by intentionalists), one can still expect to observe systematic differences between the results reached by textualists and the results reached by intentionalists.

For people seeking to describe how textualism and intentionalism really differ, the familiar distinction between rules and standards is a more productive starting point than the distinction between objective meaning and subjective intent. Within certain constraints, all mainstream interpreters seek the meaning intended by the enacting legislature. As a methodological matter, however, textualists seem to believe that a relatively rule-based approach to interpretation is likely to bring judges closer to that goal than the more holistic techniques favored by intentionalists. As a normative matter, moreover, textualists are more likely than intentionalists to resolve uncertainties in favor of ruleness; when the meaning intended by the enacting legislature is concededly unclear, it is unusual for intentionalists to settle upon a more rule-like interpretation than textualists. Without regard to any purported disagreement about the goals of interpretation, these twin differences are capable of generating most of the divide that we currently observe.


John H. Reese, Bursting the Chevron Bubble: Clarifying the Scope of Judicial Review in Troubled Times

The article challenges the conventional wisdom that the U.S. Supreme Court's 1984 Chevron case caused a sea change in the doctrine of scope of judicial review of administrative agency legal determinations. Interpretations of Chevron by lower courts and commentators have been so varied that the doctrine of scope of judicial review is in a state of disarray. The Court attempted to clarify the situation in its 1999 and 2000 Terms. The result, however, was more confused commentary and complaints that the Court had made matters worse. It is important that the doctrine be clear. A prime example of why is found in implementation of the anti-terrorist legislation enacted hurriedly after 9/11. Administrative agencies, not the federal courts, enforce much of that legislation. However, the courts generally are available for judicial review of such agency enforcement actions. With personal rights at stake in many administrative enforcement contexts, it is essential to clarify the appropriate scope of review for both lawyers and courts engaged in judicial review of those decisions. Resolution of this issue would promote both an appropriate balance between national security and individual rights, and consistency among federal court decisions.

First, the article assesses the Court's opinions in the major pre-Chevron cases and demonstrates that, contrary to the conventional wisdom, they contained consistent themes. Second, it presents an analysis of Chevron indicating that it is, in fact, a decision in the tradition of the earlier cases. Third, it addresses the major post-Chevron cases and shows that, not only are they consistent with this analysis of Chevron, but also they are consistent with the pre-Chevron cases. Indeed, the analysis indicates the Court's Christensen and Mead cases clarified Chevron and brought scope of review doctrine back in line with the pre-Chevron tradition. As clarified, the Court's case law doctrine on scope of review is now generally consistent. Fourth, the article presents a basic model for scope of judicial review based on the clarified principles.

A reader in Argentina provided an English translation of the abstract of an article he wrote about Chevron (the article is in Spanish):

In the first part of the paper, I outline the core of the “Chevron” doctrine that the Supreme Court issued in the landmark 1984 case concerning congressional delegation to an administrative agency. I will pay particular attention to the reasons that can justify the deference and to the practical effects of the Chevron ruling, reporting some criticisms and praises that the administrative law literature had dedicated to the decision. Besides, I will stress the linking between the deference doctrine and the Chevron progeny, showing the consistency of the deference principle with its exceptions.

This essay also deals with the problem of constructing Chevron, stating that the “step one” could be resumed in the restricting canon of in claris non fit interpretatio pro delegatur, (if no doubt arises then it is not suitable to defer to the delegate person) a principle that in turn poses the difficult issue of discerning when the statute is such a claris (not ambiguous) one. The essay reviews then three different (forking) paths that the Supreme Court has set for that purpose –the “textualist” approach, the “contextualist” approach and the “legislative history” approach, through cases such as INS v. Cardoza-Fonseca (1987), Smiley v. Citibank (1996), AT&T v. Iowa Utilities Board (1999), FDA v. Brown & Williamson Tobacco Co. (2000), Whitman v. American Trucking Association (2001) and many others.

Being an introductory essay written mostly for comparatist purposes, I will not go for definitive conclusions about Chevron, though I will assert that the “administrative law´s self-restraint” imputation is not sound in sight of the full picture of the Chevron instalments. Moreover, I will argue that it is plausible to point out that in the long term a sort of deference is required in order to make regulation workable -and “enactable” by the Congress. I will finally consider the possibility of an asymmetry in the Chevron outcomes, since the “passive voice” of Chevron (i.e., the use of Chevron deference in order to dismantle or to lower a regulatory scheme) seems to be more powerful than Chevron´s “active voice” (i.e., the agency´s resort to the Chevron deference for upgrading or constraining regulations based on existing statutes).


STATUTORY CONSTRUCTION ON OTHER WEBSITES:

While doing a Google search for "statutory construction" I came across this hilarious quiz: Which canon of statutory construction are you?

Also found with the same search: Statutory Construction in Missouri (aka "Show me" how to construe a statute)

ALSO found, did you know that there is a Legislative Intent Service? Have any readers of this blog used it?

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

Lord Mansfield kept detailed records of his work as a judge. However, during his lifetime, many of his records were lost in a short period of time. Please explain when this happened, how it happened, and why it happened. For extra credit, give two reasons for why it happened—one that is Mansfield-specific, and one that is more generic.

Congratulations to Allen Boyer, who provided this answer:

Lord Mansfield lost many or most of his papers in the destruction of his house by rioters during the Gordon Riots, in June 1780. The riots had been started by Lord George Gordon, who led a demonstration demanding the repeal of the Catholic Relief Act, a law which had broadened toleration of Roman Catholicism in Britain. The demonstration collapsed into a riot. It is said that among the reasons for the mob's targeting Mansfield's London house -- aside from a general attack on an unpopular judge -- was that he had delivered a charge to the jury which resulted in a Catholic priest being acquitted on charges of saying Mass.

Honorable mention goes to "Centrist" at JAG Central, who provided this answer:

Most of Lord Mansfield's records were lost on one day sometime between 2-8 June, 1780, during the Gordon Riots. The general reason why the house was burned was general Protestant discontent against the presiding Whig government's decision to pass the Catholic Relief Act, which allowed Catholics to enter conscriptive military service without taking a religious oath. Although it helped boost the size of the British Army, it also raised fears of "popery" on the rise in Britain. The Whigs, as opposed to most governments in Britain in the time, were very tolerant of Catholics.

The Mansfield specific reason was that while Lord Mansfield was publicly viewed as impartial, his opinions were also very unpopular at times. In addition, Lord Mansfield had been an advocate of the legislation in question.


Congratulations to Anne Barnes, who gave the correct answer to a question that went unanswered for a long time. The question was: “In a famous case early in his career, Edward Coke won by arguing that the opposing counsel misquoted the Latin text of the relevant statute. What was the name of the case (extra credit if you give the year)?”

The correct answer, submitted by Anne Barnes, is: “Lord Coke's first case was the defense of Lord Henry Cromwell's libel suit against ‘an obscure country parson named Denny’ in 1578.”

To read more about the case, see ALLEN D. BOYER, SIR EDWARD COKE AND THE ELIZABETHAN AGE 36 (2003) or CATHERINE DRINKER BOWEN, THE LION AND THE THRONE: THE LIFE AND TIMES OF SIR EDWARD COKE 69 (1985). Boyer refers to it as “a classic case of a squire against a parson.” Bowen indicates that his opponent wrote “nuncia” (Latin for messages) rather than “mendacia” (lies).

If you want to look up the case, here’s the citation: Lord Cromwell’s Case, 4 Co. Rep. [Coke’s Reports] 12b (1581).

ENGLISH COMMON LAW ON OTHER WEBSITES

Orin Kerr, one of the Volokh conspirators, points out that Blackstone’s Commentaries are available online.

Other blogs have linked to Professor Kerr's post, including Intel Dump (with the heading "Links for Law Geeks") and A Bama Blog.

Blackstone's Commentaries are also available through Yale’s Avalon Project. The disadvantage of the Yale website is that it uses the archaic spelling--i.e. the letter "s" is often replaced by "f"--which can be a bit annoying.

MISCELLANEOUS

Thanks to the Volokh Conspiracy and Professor Bainbridge, I was able find an answer to the question: how readable is this blog? The answer: somewhere between the Wall Street Journal and The Times.


Readability Results for http://www.statconblog.blogspot.com

Readability Results
Summary Value
Total sentences 257
Total words 3,454
Average words per Sentence 13.44
Words with 1 Syllable 1,992
Words with 2 Syllables 720
Words with 3 Syllables 457
Words with 4 or more Syllables 285
Percentage of word with three or more syllables 21.48%
Average Syllables per Word 1.72
Gunning Fog Index 13.97
Flesch Reading Ease 47.63
Flesch-Kincaid Grade 9.95

Interpreting the Results

Philip Chalmers of Benefit from IT provided the following typical Fog Index scores, to help ascertain the readability of documents.

Typical Fog Index Scores

Fog Index Resources

6 (TV guides, The Bible, Mark Twain)
8 (Reader's Digest)
8 - 10 (Most popular novels)
10 (Time, Newsweek)
11 (Wall Street Journal)
14 (The Times, The Guardian)
15 - 20 (Academic papers)
Over 20 (Only government sites can get away with this, because
you can't ignore them.)
Over 30 (The government is covering something up.)

The following section describes the Gunning-Fog, Flesch Reading Ease, and Flesch-Kincaid algorithms for readability.

Gunning-Fog Index

The result is your Gunning-Fog index, which is a rough measure of how many years of schooling it would take someone to understand the content. The lower the number, the more understandable the content will be to your visitors. Results over seventeen are reported as seventeen, where seventeen is considered post-graduate level.

Flesch Reading Ease

The result is an index number that rates the text on a 100-point scale. The higher the score, the easier it is to understand the document. Authors are encouraged to aim for a score of approximately 60 to 70.

Flesch-Kincaid grade level

Like the Gunning-Fog index, it is a rough measure of how many years of schooling it would take someone to understand the content. Negative results are reported as zero, and numbers over twelve are reported as twelve.

Haloscan commenting and trackback have been added to this blog.