Statutory Construction Zone

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SUMMARY OF OPINIONS ISSUED OCTOBER 1-15, 2003

QUOTATION OF THE WEEK:

“Who shall be the Law’s interpreter? A question this that opens into a large field of inquiry . . . A Law, be what it will, to be observed, must have a meaning put upon it.”

JEREMY BENTHAM, A COMMENT ON THE COMMENTARIES 100-01 (written between 1774 and 1776, published in 1928, and reprinted in 1976)


CASE SUMMARIES:

D.C. Circuit

Williams Companies v. Federal Energy Regulatory Commission (D.C. Cir. Oct. 10, 2003) (Williams)

Statutes/regulations construed: The Outer Continental Shelf Lands Act (OCSLA) and regulations affecting companies providing natural gas transportation service--including ‘‘gathering’’ service--in the Outer Continental Shelf. The regulations “required the companies to periodically file information with FERC concerning their pricing and service structures, thereby implementing FERC’s view that the resulting transparency would enhance competitive and open access to gas transportation.”

Conclusion: Sections 5(e) and (f) of the OCSLA “do not grant FERC general powers to create and enforce open access rules on the [Outer Continental Shelf], but merely assign it a few well-defined tasks.”

Statutory construction tools:
• Paraphrasing statute: “In a rhetorical device that it also uses with respect to § 1334(f), FERC likes to paraphrase subsection (e) in a way that completely omits the means selected by Congress to achieve non-discrimination on the Outer Continental Shelf.”
• Narrow grant of power:“Such a narrow (and reactive) grant of power cannot be read as creating general enforcement authority.”
• “Miraculous synergy” and narrow grant of power:“FERC cites two items [of legislative history] that are clearly inadequate to the task. First, it points to a House Report stating that § 1334(f) ‘is a reaffirmation and strengthening’ of § 1334(e). So? FERC lacks the authority under either section to constitute itself a general regulator of open access for oil and gas on the OCS, regardless of whether the sections are read together or individually; there is no miraculous synergy here that can spin a sweeping power out of the narrow ones provided.” (citation omitted).
• Legislative history:”What we said in an earlier case where a litigant invoked ‘bits and pieces of legislative history surrounding the 1978 Amendments to OCSLA’ is equally true today: ‘[S]nippets of legislative history do not a law make.’”

Scrivener’s errors: The court concluded that there were two scrivener’s errors in the statute (see footnotes 1 and 2).


CALLED, BUT NOT CHOSEN:


Mason v. American Tobacco Company (2d Cir. Oct. 2, 2003) (concluding that defendant tobacco companies were not a “primary plan” within the meaning of the “Medicare as Secondary Payer” statute)

Jensen v. Weeks Marine (2d Cir. Oct. 6, 2003) (under Longshore and Harbor Workers’ Compensation Act, a party seeking modification of a previously entered decision is not required, as a threshold matter, to proffer evidence of a change in conditions or newly-discovered evidence)

Maroni v. Pemi-Baker Regional School District (1st Cir. Oct. 9, 2003) (concluding that parents are "parties aggrieved" within the meaning of the Individuals with Disabilities Education Act, and thus may sue pro se)

United States v. Hartsock (1st Cir. Oct. 10, 2003) (18 U.S.C. § 922(g)(9)-- which makes it unlawful for any person who has been convicted in any court of a "misdemeanor crime of domestic violence" to carry a firearm in or affecting interstate commerce--does not apply if the defendant was convicted for the prior misdemeanor crime of domestic violence without counsel and without having knowingly and intelligently waived counsel. The court concluded that the exception is an affirmative defense and not an element of the crime, that the government need only prove the prior conviction, and that the defendant bears the burden of proving he or she is within the exception.)

Rann v. Chao (D.C. Cir. Oct. 14, 2003) (construing an EEOC statute that requires the filing of a notice of intent to sue with the EEOC itself, and rejecting the argument that the requirement can be met with a complaint filed with the employing agency’s EEO office)

United States v. Lucien (2d Cir. Oct. 14, 2003) (concluding that a federal health care fraud statute “applies to defendants' participation as passengers in staged automobile accidents designed to profit from New York's no-fault automobile insurance regime”)

Allegheny Ludlum Corp. v. United States (Fed. Cir. Oct. 15, 2003) (construing antidumping statute, and upholding the Department of Commerce’s regulatory policy of rescinding annual administrative reviews where there are no entries during the period of review and where all in-period sales can be linked to pre-period-of-review entries)


LAW REVIEW ARTICLE RECOMMENDATION: [If you come across an interesting statutory-construction related article, please e-mail me the citation or link.]

Cass R. Sunstein & Adrian Vermeule, Interpretation and Institutions, 101 Michigan Law Review 885 (Feb. 2003)

In my opinion, the most interesting two paragraphs in this article are these two:

“General lessons cannot be drawn from the practice of interpretation under fascism, but for our purposes, some illumination can be found from the disparate practices of Italian and German courts. The Italian judiciary, faced with a totalitarian regime, engaged in a strategy of resistance based on the idea of ‘plain meaning.’ They prohibited the government from acting in a way that did violence to the apparent meaning of statutory texts. This was a self-conscious method for limiting fascist government, by requiring genuine statutory authorization for its goals. By contrast, German judges rejected formalism and construed statutes hospitably and in accordance with their ‘purposes,’ as defined by reference to the public values of the Nazi regime. They thought that courts could carry out their interpretive task ‘only if they do not remain glued to the letter of the law, but rather penetrate its inner core in their interpretations and do their part to see that the aims of the lawmaker are realized.’ Thus, for example, the German Supreme Court concluded that a law forbidding ‘sexual intercourse’ between Germans and Jews ‘is ... not limited to coition . . . . A broad interpretation is ... appropriate in view of the fact that the provisions of the law are meant to protect not only German blood but also German honor.’ A lower court went so far as to conclude that kissing could take ‘the place of normal sexual intercourse’ and therefore violate the statute in such a way as to justify a two-year jail sentence.

Of course we do not suggest that purposive interpretation is an ally of fascism, or that it is always illegitimate or unacceptable. Our only claim is that the evaluation of purposive interpretation must depend, in large part, on an assessment of the relevant institutions and of the effects of that approach over time. It is ludicrous to suggest that purposive interpretation is best in the abstract, for the simple reason that no approach to interpretation is best in the abstract. Here, as elsewhere, Hart and Sacks's elaborate talk about institutional competence is undercut by their stylized, nonempirical treatment of actual institutions and their capacities.”

Id. at 901-02 (the omitted footnotes cite to Guido Calabresi, Two Functions of Formalism, 67 University of Chicago Law Review 479 (2000) and INGO MULLER, HITLER'S JUSTICE: THE COURTS OF THE THIRD REICH (Deborah Lucas Schneider trans., 1991)).

At first, this seems to imply that a purposive interpretation is bad because it helps fascists, while textualism/formalism is good because it does not help fascists (obviously this is an oversimplification/exaggeration).

But why does one approach help fascists, while the other approach does not? Isn’t it because (these paragraphs seem to imply) it is easier for textualists to resist or undermine or sabotage the lawmaker’s efforts or goals? If what the lawmaker wants to do is evil (which may often be the case with fascist lawmakers), then judicial resistance would be a good thing. But what if what the lawmaker is not fascist and does not want to do evil? Is making it easier for judges to resist or undermine or sabotage the lawmaker’s efforts a good thing? Doesn’t this argument sound similar to the following excerpt from a dissent by Justice Stevens?

“This case illustrates the wisdom of an observation made by Justice Aharon Barak of the Supreme Court of Israel. He has perceptively noted that the ‘minimalist’ judge ‘who holds that the purpose of the statute may be learned only from its language’ has more discretion than the judge ‘who will seek guidance from every reliable source.’ Judicial Discretion 62 (Y. Kaufmann transl. 1989). A method of statutory interpretation that is deliberately uninformed, and hence unconstrained, may produce a result that is consistent with a court's own views of how things should be, but it may also defeat the very purpose for which a provision was enacted.”

Circuit City Stores v. Adams, 532 U.S. 105, 133 (2000) (Stevens, J., dissenting)

Isn’t the argument usually the opposite—that purposive interpretation is bad because it allows judges to resist doing what Congress wants?

Feel free to e-mail me with responses/reactions to these questions. I may post some of the responses.


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.]

Jeremy Bentham's critique of Blackstone is cited above. Name a frequently-cited critique of Blackstone written in the late 1970s.