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SUMMARY OF OPINIONS ISSUED JUNE 1-30, 2004
QUOTATION OF THE MONTH:
“We remind the reader also of the absolutely central importance of statute law in modern legal systems; and thus of the equal importance of statutory interpretation . . . In our view, scholars have traditionally underestimated the demands of the subject.”
D. NEIL MCCORMACK & ROBERT S. SUMMERS, INTERPRETING STATUTES: A COMPARATIVE STUDY 1-4 (1991)
CASE SUMMARIES:
Supreme Court
Central Laborers’ Pension Fund v. Heinz (S.Ct. June 7, 2004) (Stevens—Breyer concurred)
Statutes/regulations construed: The “anti-cutback” rule of the Employee Retirement Income Security Act of 1974 (ERISA), which generally prohibits any amendment of a pension plan that would reduce a participant’s “accrued benefit.”
Conclusion: The “anti-cutback” rule prohibits an amendment expanding the categories of postretirement employment that triggers suspension of payment of early retirement benefits already accrued.
Statutory construction tools:
•“Textual force majeure”: “Under the Plan’s reading, §204(g) would have nothing to say about an amendment that resulted even in a permanent suspension of payments. But for us to give the anticutback rule a reading that constricted would take textual force majeure, and certainly something closer to irresistible than the provision quoted in the Plan’s observation that accrued benefits are ordinarily ‘expressed in the form of an annual benefit commencing at normal retirement age,’ 29 U. S. C. §1002(23)(A).”
• Agency manual: “And the United States as amicus curiae says that the IRS has routinely approved amendments to plan definitions of disqualifying employment, even when they apply retroactively to accrued benefits. But neither an unreasoned statement in the manual nor allegedly longstanding agency practice can trump a formal regulation with the procedural history necessary to take on the force of law. See generally Note, Taxpayers’ Bill of Rights Act: Taxpayers’ Remedy or Political Placebo?, 86 Mich. L. Rev. 1787, 1799.1801 (1988) (discussing legal status of the Internal Revenue Manual). Speaking in its most authoritative voice, the IRS has long since approved the interpretation of §204(g) that we adopt today.”
[Congratulations to Creighton R. Meland, Jr., author of the Note that the Supreme Court cited without mentioning his name.]
Norton v. Southern Utah Wilderness Alliance (S.Ct. June 14, 2004) (Scalia)
Statutes/regulations construed: The Administrative Procedure Act, which gives courts the power to “compel agency action unlawfully withheld or unreasonably delayed.”
Conclusion: That power did not extend to the review of the United States Bureau of Land Management’s stewardship of public lands under certain statutory provisions and its own planning documents.
Statutory construction tools:
• Ejusdem generis: “The final term in the definition, ‘failure to act,’ is in our view properly understood as a failure to take an agency action—that is, a failure to take one of the agency actions (including their equivalents) earlier defined in §551(13). Moreover, even without this equation of ‘act’ with ‘agency action’ the interpretive canon of ejusdem generis would attribute to the last item (‘failure to act’) the same characteristic of discreteness shared by all the preceding items.”
• Attorney General’s Manual on APA: “As described in the Attorney General’s Manual on the APA, a document whose reasoning we have often found persuasive . . . §706(1) empowers a court only to compel an agency ‘to perform a ministerial or non-discretionary act,’ or ‘to take action upon a matter, without directing how it shall act.’”
Hibbs v. Winn (S.Ct. June 14, 2004) (Ginsburg—Stevens concurred and Kennedy dissented)
Statutes/regulations construed: The Tax Injunction Act, 28 U. S. C. §1341, which prohibits a lower federal court from restraining “the assessment, levy or collection of any tax under State law.”
Conclusion: The Act did not bar suit that challenged, on Establishment Clause grounds, state income-tax credits for payments to organizations that award educational scholarships and tuition grants to children attending private schools. The Court concluded that the suit “implicates neither §1341’s conception of assessment nor any of the statute’s underlying purposes . . .”
Statutory construction tools:
• Context: “We do not focus on the word ‘assessment’ in isolation, however. Instead, we follow ‘the cardinal rule that statutory language must be read in context [since] a phrase gathers meaning from the words around it.’”
• Superfluities: “The rule against superfluities complements the principle that courts are to interpret the words of a statute in context. See 2A N. Singer, Statutes and Statutory Construction §46.06, pp. 181.186 (rev. 6th ed. 2000) (‘A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant . . . .’ (footnotes omitted)).”
• Prolonged congressional silence: “It merits emphasis, however, that prolonged congressional silence in response to a settled interpretation of a federal statute provides powerful support for maintaining the status quo. In statutory matters, judicial restraint strongly counsels waiting for Congress to take the initiative in modifying rules on which judges and litigants have relied.” (Stevens, J., concurring)
• Dictionary vs. Stare Decisis: “In a contest between the dictionary and the doctrine of stare decisis, the latter clearly wins.” (Stevens, J., concurring)
Intel Corporation v. Advanced Micro Devices (S.Ct. June 21, 2004) (Ginsburg—Scalia concurred and Breyer dissented)
Statutes/regulations construed: 28 U. S. C. §1782(a), which provides that a federal district court “may order” a person “resid[ing]” or “found” in the district to give testimony or produce documents “for use in a proceeding in a foreign or international tribunal . . . upon the application of any interested person.”
Conclusion: The statute authorizes, but does not require, a federal district court to provide assistance to a complainant in a European Commission proceeding that leads to a dispositive ruling, i.e., a final administrative action both responsive to the complaint and reviewable in court.
Statutory construction tools:
• Caption: “The caption of a statute, this Court has cautioned, ‘cannot undo or limit that which the [statute’s] text makes plain.’”
• Amendment: “When Congress acts to amend a statute, we presume it intends its amendment to have real and substantial effect.”
• “If Congress had intended . . .”: “If Congress had intended to impose such a sweeping restriction on the district court’s discretion, at a time when it was enacting liberalizing amendments to the statute, it would have included statutory language to that effect.”
Federal Motor Carrier Safety Administration (FMCSA) to evaluate the environmental effects of crossborder operations of Mexican-domiciled motor carriers, where FMCSA’s promulgation of certain regulations would allow such cross-border operations to occur. The FMCSA lacks discretion to prevent these cross-border operations.)
Norton v. Southern Utah Wilderness Alliance (S.Ct. June 14, 2004) (Scalia)
Statutes/regulations construed: The Administrative Procedure Act, which gives courts the power to “compel agency action unlawfully withheld or unreasonably delayed.”
Conclusion: That power did not extend to the review of the United States Bureau of Land Management’s stewardship of public lands under certain statutory provisions and its own planning documents.
Statutory construction tools:
• Ejusdem generis: “The final term in the definition, ‘failure to act,’ is in our view properly understood as a failure to take an agency action—that is, a failure to take one of the agency actions (including their equivalents) earlier defined in §551(13). Moreover, even without this equation of ‘act’ with ‘agency action’ the interpretive canon of ejusdem generis would attribute to the last item (‘failure to act’) the same characteristic of discreteness shared by all the preceding items.”
• Attorney General’s Manual on APA: “As described in the Attorney General’s Manual on the APA, a document whose reasoning we have often found persuasive . . . §706(1) empowers a court only to compel an agency ‘to perform a ministerial or non-discretionary act,’ or ‘to take action upon a matter, without directing how it shall act.’”
Hibbs v. Winn (S.Ct. June 14, 2004) (Ginsburg—Stevens concurred and Kennedy dissented)
Statutes/regulations construed: The Tax Injunction Act, 28 U. S. C. §1341, which prohibits a lower federal court from restraining “the assessment, levy or collection of any tax under State law.”
Conclusion: The Act did not bar suit that challenged, on Establishment Clause grounds, state income-tax credits for payments to organizations that award educational scholarships and tuition grants to children attending private schools. The Court concluded that the suit “implicates neither §1341’s conception of assessment nor any of the statute’s underlying purposes . . .”
Statutory construction tools:
• Context: “We do not focus on the word ‘assessment’ in isolation, however. Instead, we follow ‘the cardinal rule that statutory language must be read in context [since] a phrase gathers meaning from the words around it.’”
• Superfluities: “The rule against superfluities complements the principle that courts are to interpret the words of a statute in context. See 2A N. Singer, Statutes and Statutory Construction §46.06, pp. 181.186 (rev. 6th ed. 2000) (‘A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant . . . .’ (footnotes omitted)).”
• Prolonged congressional silence: “It merits emphasis, however, that prolonged congressional silence in response to a settled interpretation of a federal statute provides powerful support for maintaining the status quo. In statutory matters, judicial restraint strongly counsels waiting for Congress to take the initiative in modifying rules on which judges and litigants have relied.” (Stevens, J., concurring)
• Dictionary vs. Stare Decisis: “In a contest between the dictionary and the doctrine of stare decisis, the latter clearly wins.” (Stevens, J., concurring)
Intel Corporation v. Advanced Micro Devices (S.Ct. June 21, 2004) (Ginsburg—Scalia concurred and Breyer dissented)
Statutes/regulations construed: 28 U. S. C. §1782(a), which provides that a federal district court “may order” a person “resid[ing]” or “found” in the district to give testimony or produce documents “for use in a proceeding in a foreign or international tribunal . . . upon the application of any interested person.”
Conclusion: The statute authorizes, but does not require, a federal district court to provide assistance to a complainant in a European Commission proceeding that leads to a dispositive ruling, i.e., a final administrative action both responsive to the complaint and reviewable in court.
Statutory construction tools:
• Caption: “The caption of a statute, this Court has cautioned, ‘cannot undo or limit that which the [statute’s] text makes plain.’”
• Amendment: “When Congress acts to amend a statute, we presume it intends its amendment to have real and substantial effect.”
• “If Congress had intended . . .”: “If Congress had intended to impose such a sweeping restriction on the district court’s discretion, at a time when it was enacting liberalizing amendments to the statute, it would have included statutory language to that effect.”
Federal Motor Carrier Safety Administration (FMCSA) to evaluate the environmental effects of crossborder operations of Mexican-domiciled motor carriers, where FMCSA’s promulgation of certain regulations would allow such cross-border operations to occur. The FMCSA lacks discretion to prevent these cross-border operations.)
Pennsylvania State Police v. Suders (S.Ct. June 14, 2004) (To establish “constructive discharge” under Title VII of the Civil Rights Act of 1964, a plaintiff alleging sexual harassment must show that the abusive working environment became so intolerable that her resignation qualified as a fitting response)
Aetna Health v. Davila (S.Ct. June 21, 2004) (Respondents’ state causes of action fall within section 502(a)(1)(B) of the Employee Retirement Income Security Act of 1974 and were therefore completely pre-empted by the Act and removable to federal court)
LAW REVIEW ARTICLE RECOMMENDATION:
Phillip A. Talmadge, A New Approach to Statutory Interpretation in Washington, 25 Seattle U. L. Rev. 179 (2001). Mr. Talmadge is a former state senator and state supreme court justice.
He provides the following summary of his article: “In this article, I will first explore Washington's existing law, both statutory and judicial, on statutory interpretation. I will then evaluate the mechanisms for construing statutes derived from common law and legislative sources. Finally, I will recommend a new paradigm for statutory construction so that legislative intent may be more accurately conveyed to the courts, abandoning many of the time-encrusted canons in favor of principles of interpretation adhering more specifically to the legislature's actual statutory language.”
He provides the following summary of his article: “In this article, I will first explore Washington's existing law, both statutory and judicial, on statutory interpretation. I will then evaluate the mechanisms for construing statutes derived from common law and legislative sources. Finally, I will recommend a new paradigm for statutory construction so that legislative intent may be more accurately conveyed to the courts, abandoning many of the time-encrusted canons in favor of principles of interpretation adhering more specifically to the legislature's actual statutory language.”
STATUTORY CONSTRUCTION ON OTHER WEBLOGS:
Marty Lederman, of SCOTUSBlog, sent me a link to the following interesting statutory-construction-related post:
The Importance of Handwriting Analysis in Discerning Congressional Intent
The Court's decision in Sosa last week contains what might be a first: the use of handwriting analysis -- and ancient analysis, at that -- in construing an ambiguous congressional enactment.
In section III of his majority opinion in Sosa -- a section of the opinion that was joined by the entire Court -- Justice Souter argues that the Alien Tort Statute, enacted as part of the Judiciary Act of 1789, must have been intended to have a "practical effect" by providing jurisdiction for certain forms of congressionally approved common-law suits based on customary international law. In support of this conclusion, Justice Souter turns first (p.24) to the fact that the principal draftsman of the provision was Senator Oliver Ellsworth (who would later become the Third Chief Justice, just before the tenure of John Marshall). Ellsworth had been a member both of the Continental Congress that had, in 1781, urged states to vindicate rights under the law of nations and also of the only state legislature (that of Connecticut) that had (sometime between 1781 and 1784) responded to the Continental Congress's plea. "It would have been passing strange," Justice Souter reasons (at 25), "for Ellsworth and this very Congress to vest federal courts expressly with jurisdiction to entertain civil causes brought by aliens alleging violations of the law of nations, but to no effect whatever until the Congress should take further action."
Now, Ellsworth's prior service in two legislatures does not, of course, in and of itself demonstrate that he favored recognition of a federal common-law tort for violation of international law. But even if it did -- or, in any event, even if the Court is correct, as it likely is, that Ellsworth favored congressional recognition of such a common-law tort -- how does the Court know that Ellsworth drafted the ATS? "The ATS appears in Ellsworth's handwriting in the original version of the bill in the National Archives," Justice Souter informs us in footnote 13. In support of this statement, Justice Souter cites footnote 169 of a 1986 article written by Texas Tech Law Professor and Ellsworth scholar William Casto, The Federal Courts' Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, 18 Conn. L. Rev. 467, 498 n.169 (1986). In that footnote, Professor Casto does not indicate how he discovered the identity of the author of the handwriting in question. But interestingly, an amicus brief filed in Sosa on behalf of Professor Casto and other Professors of Federal Jurisdiction and Legal History as Amici Curiae credits Professor Charles Warren's seminal 1923 article as the source of the handwriting identification. In that article, Professor Warren notes that the identification of the handwriting from documents in the National Archives was made for Professor Warren, back in the 1920's, by Mr. J.C. Fitzpatrick, Chief Assistant in the Manuscript Division of the Library of Congress, "through the courtesy of Mr. Charles Moore, Chief of the Manuscript Division." New Light on the History of the Federal Judiciary Act of 1789, 37 Harv. L. Rev. 49, 50 n.4 (1923).
The Court's logic, then, appears to be:
1. Eighty years ago, the Chief Assistant in the Manuscript Division of the Library of Congress apparently reviewed the original version of the ATS in the National Archives, and concluded that it was written in Oliver Ellsworth's hand.
2. Professor Warren trusted Mr. Fitzpatrick's handwriting analysis, and Professor Casto in turn trusted Professor Warren's report.
3. Ergo, it's good enough for the Court: "The ATS appears in Ellsworth's handwriting."
4. Implicit in the Court's reasoning is that because Ellsworth was the "principal draftsman of the ATS" in quite a literal sense -- not that it was his idea, or even that he approved it, but only that he wrote it down -- his understanding of the bill can be attributed to the Congress that later enacted it.
5. Because Ellsworth had been a member both of the Continental Congress and of the Connecticut legislature in the decade preceding enactment of the ATS, he must have favored congressional recognition of a federal common-law tort for violation of the law of nations.
6. Thus, "[i]t would have been passing strange for Ellsworth and this very Congress to vest federal courts expressly with jurisdiction to entertain civil causes brought by aliens alleging violations of the law of nations, but to no effect whatever until the Congress should take further action."
I do not mean to suggest that Justice Souter's conclusion is incorrect; to the contrary, from what little I know, it is not. And, to be fair, the Ellsworth "draftsman[ship]" point is only one part of a much more elaborate exegesis on the 1789 legislative intent in Justice Souter's opinion. But it is a fairly unusual, if not unprecedented, use by the Court of a particular form of "legislative history." And what's the most remarkable thing about this novel use of tea leaves in the service of discerning legislative intent? That it was joined by Justice Scalia, of course.
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.]
Still (PARTIALLY) unanswered from the last update: 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)? What was the statute?
Congratulations to Anne Barnes, who correctly identified Scandalum Magnatum as the statute. But, so far, nobody has answered the questions about the name of the case and the year.
ENGLISH COMMON LAW IN COURT OPINIONS:
Kennedy’s dissent in Republic of Austria v. Altman:
"Parties in 1948 would have expected courts to apply this general law of foreign sovereign immunity in the future, and so also to apply whatever rules the courts 'discovered' (if one subscribes to Blackstone’s view of common law) or 'created' (if one subscribes to Holmes’) in the intervening time between the party’s conduct and its being subject to suit. Compare 1 W. Blackstone, Commentaries *68 ('[T]he only method of proving, that this or that maxim is a rule of the common law, is by shewing that it hath been always the custom to observe it'), with Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 466 (1897) ('Behind the logical form [of common law decision making] lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding')."
ENGLISH COMMON LAW ON OTHER WEBLOGS:
From Southern Appeal:
ENGLISH COMMON LAW IN COURT OPINIONS:
Kennedy’s dissent in Republic of Austria v. Altman:
"Parties in 1948 would have expected courts to apply this general law of foreign sovereign immunity in the future, and so also to apply whatever rules the courts 'discovered' (if one subscribes to Blackstone’s view of common law) or 'created' (if one subscribes to Holmes’) in the intervening time between the party’s conduct and its being subject to suit. Compare 1 W. Blackstone, Commentaries *68 ('[T]he only method of proving, that this or that maxim is a rule of the common law, is by shewing that it hath been always the custom to observe it'), with Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 466 (1897) ('Behind the logical form [of common law decision making] lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding')."
ENGLISH COMMON LAW ON OTHER WEBLOGS:
From Southern Appeal:
"Happy birthday, William Blackstone: Born this day, 1723. Blackstone was the first professor of English law was the first professor of English law, occupying the Vinerian Chair at Oxford from 1758. His landmark treatise, Commentaries on the Laws of England, played a key role in the development of American law.
From the Foreward to Daniel Boorstin's The Mysterious Science of the Law: An Essay on Blackstone's Commentaries (1941, 1996 ed.):
'Though created for the sophisticated audience of Oxford University, England, it was providentially suited to the needs of ambitious young Americans seeking to make a living from the law on this side of the ocean without the aid of ancient monopolies. According to Edmund Burke, by 1790 it had sold nearly as many copies in the American colonies as in England. Even without Blackstone, the Americans surely would have fought their Revolution and doubtless would have preserved English institutions in America. But the convenient appearance of the Commentaries within the decade before the Declaration of Independence made it much easier for Americans to see what they were preserving, and made it feasible to perpetuate those institutions in remote villages without trained lawyers or law libraries. From Blackstone we can learn even more about what the American colonists were defending than we can by reading the violent tracts of Thomas Paine.'"
ENGLISH COMMON LAW BOOK RECOMMENDATION:
James Oldham, English Common Law In The Age of Mansfield (2004)
"Mansfield" in the book's title refers of course, refers to Lord Mansfield (also known as William Murray). He served as the Chief Justice of the Court of King's Bench from 1756 to 1788, when he retired due to ill health at the age of 80. If you are interested in the 18th century legal background of American law, you should get this book.
From the Foreward to Daniel Boorstin's The Mysterious Science of the Law: An Essay on Blackstone's Commentaries (1941, 1996 ed.):
'Though created for the sophisticated audience of Oxford University, England, it was providentially suited to the needs of ambitious young Americans seeking to make a living from the law on this side of the ocean without the aid of ancient monopolies. According to Edmund Burke, by 1790 it had sold nearly as many copies in the American colonies as in England. Even without Blackstone, the Americans surely would have fought their Revolution and doubtless would have preserved English institutions in America. But the convenient appearance of the Commentaries within the decade before the Declaration of Independence made it much easier for Americans to see what they were preserving, and made it feasible to perpetuate those institutions in remote villages without trained lawyers or law libraries. From Blackstone we can learn even more about what the American colonists were defending than we can by reading the violent tracts of Thomas Paine.'"
ENGLISH COMMON LAW BOOK RECOMMENDATION:
James Oldham, English Common Law In The Age of Mansfield (2004)
"Mansfield" in the book's title refers of course, refers to Lord Mansfield (also known as William Murray). He served as the Chief Justice of the Court of King's Bench from 1756 to 1788, when he retired due to ill health at the age of 80. If you are interested in the 18th century legal background of American law, you should get this book.
