The Hobgoblin of Little Minds

I know it's difficult to maintain methodological consistency over many years of cases, but one might expect to see some basic level of consistency over, say, a month. But even that can be tough.

In today's opinions, Justice Thomas joins a concurrence by Justice Scalia, which chides the Court for relying on the Advisory Committee Notes to a Federal Rule of Criminal Procedure. The Notes are not authoritative, Justice Scalia complains -- only the text of the rule matters. But it wasn't even a month ago that Justice Thomas joined, without comment, a Court opinion that relied on Advisory Committee Notes to a Federal Rule of Civil Procedure, even though Justice Scalia concurred separately, raising the same point. (As I said at the time, Justice Scalia is extending his anti-legislative history campaign somewhat unthinkingly here, but that's another story.)

Are the Criminal Rules so different from the Civil Rules? I don't think so. It looks more like Justices don't sweat every detail of the opinions they join. In today's case, Justice Thomas may have joined Justice Scalia's opinion primarily for its bigger difference with the Court's decision (Justice Scalia thought part of the statute at issue was unconstitutional), and he may not have cared so much about this interpretive methodological detail. The big issue wasn't present earlier this month when Justice Thomas went along with consulting Advisory Committee Notes -- again, perhaps without really intending to commit himself on that particular point.

I know a foolish consistency is the hobgoblin of little minds, but these methodological issues do matter, and a little consistency on them would be welcome.

Not Nuanced Enough

Another interesting tidbit in yesterday's Supreme Court opinion was Justice Scalia's concurrence in Krupski v. Costa Crociere S.P.A. The case involved the interpretation of Federal Rule of Civil Procedure 15. Passing over the details of what the case was actually about, the interesting part is that Justice Scalia objected to the Court's reliance on the Advisory Committee Notes that accompanied the promulgation of the rule.

Now, one might say that this is only to be expected -- after all, Justice Scalia has waged a long-standing war against reliance on legislative history. But really, the Advisory Committee Notes seem quite different from the kind of legislative history to which Justice Scalia typically objects. Typically, legislative history consists of a report drafted by one committee of one house of Congress, or words spoken in debate by a single legislator on the floor of one house of Congress. Justice Scalia rightly points out that such history might not reflect the views of the full Congress, which is the body that can give the law authoritative force (although, as I have explained at length, the legislative history may be understood as "incorporated by reference" into the resulting laws).

But the Advisory Committee Notes are different. They're more like the "official comments" that accompany sections of the U.C.C. They are prepared by the single, non-bicameral body that prepares the text of the rule. The Supreme Court is aware of them as it puts its official imprimatur on the rule and gives the rule force. The process is quite different from the legislative process. The difference in the processes by which laws become laws and by which the Federal Rules become rules should give rise to different attitudes regarding the value of the history in interpreting the resulting texts. I think Justice Scalia is being inappropriately mechanical in carrying over his legislative history fight into this different arena.

Fire -- Good or Bad?

Today is the 175th anniversary of the Great Fire of 1834, which destroyed most of the British Parliament buildings. A vivid audio description, by the Parliament’s current Clerk of the Records, can be found here.

The hazardous state of the Parliament buildings, which were made of plaster-covered timber, was noted in the eighteenth century. In 1789, a report signed by fourteen architechts complained of the danger of great damage in case of fire. But few precautions were taken.

In October, 1834, the Clerk of the Works had to dispose of two cartloads of wooden “tally sticks” — remnants of an obsolete accounting system used by the Exchequer, a government finance department. On October 16, 1834, the Clerk had a couple of workmen burn the tally sticks in furnaces that were part of the heating system of the House of Lords. About 4 pm that afternoon, the deputy Housekeeper, Mrs. Wright, was conducting some visitors through the Lords chamber, and the visitors noticed that the floor was hot and had smoke seeping through it so thickly that they couldn’t see their hands in front of them. But she did nothing.

By 6 pm, the House of Lords was on fire. Through the night, the fire spread to the House of Commons chamber, the Commons Library, and other Parliament buildings. Heroic firefighting action by fireman, soldiers, and private citizens saved Westminster Hall.

Obviously the fire was a terrible, devastating event. But it did have consequences that some might regard as beneficial. Even as the fire occurred, Augustus Charles Pugin, an architecht, rejoiced that later additions to the Parliament buildings, which he regarded as ruining the original medieval structure, were finally gone.

And there is something else too. I became familiar with the 1834 fire when researching my forthcoming article, Law and Longitude. The article is a legal analysis of the controversy occasioned by the Longitude Act of 1714, which established a public prize for the discovery of a method of finding longitude at sea. (If you’ve read Dava Sobel’s delightful book, Longitude, you know all about it.)

Much of the controversy concerned the proper interpretation of the Longitude Act, and, in accordance with modern interpretive practices, I wanted to research the Act’s legislative history. But I couldn’t! The history was destroyed in the fire, except for such small portions as were preserved in the official Journals of the House of Commons.

Today there is, of course, a lively controversy about the use of legislative history in statutory interpretation. But one thing is certain: courts couldn’t use legislative history if the history were destroyed. Then we would be compelled to live in the textualists’ ideal world, in which we could only look at the text of the statute and try to determine what it means.

If you had the choice, would you put all legislative history to the fire?

Grammarian's Delight

Oh what a tangled web we weave when we try to specify the mental element of crimes.

Criminal law has since time immemorial required that a defendant commit an actus reus ("bad act") with a mens rea ("guilty mind"). Most crimes are not crimes if you do them unwittingly or accidentally -- if someone unexpectedly falls off a bicycle in front of your car and despite your best effort to stop you run them over and kill them, it is a terrible thing, but you have not committed murder. You committed the actus reus of killing them, but you did not have the mens rea of intending to do so. Mens rea is no mere detail but part of the heart and soul of criminal law.

That's why it's so important for legislatures to be clear about specifying the mental element of crimes. Congress did the usual almost-adequate job in banning "aggravated identity theft." It imposed a sentence enhancement on anyone who, in the commission of certain other crimes, "
"knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person."

So at least Congress made clear that the crime occurs only when the criminal acts knowingly. But how much has to be done knowingly? Does the defendant have to have knowingly transferred, possessed, or used something, without having to know that that the thing is a means of identification of another person? (The thing might be in a sealed package that the defendant knows he is transferring, but without knowing the contents.) Does the defendant also have to know that the is a means of identification, but not that it belongs to another person? (The defendant might have made up a fake Social Security Number, without knowing that it actually belongs to another person.) Or must the defendant know all the elements in the rest of the sentence?

The second hypo was the actual case at the Supreme Court yesterday. The defendant used a fake Social Security card, but the evidence didn't prove that he knew the SSN belonged to a real person -- and he had previously used a fake card with a number that didn't belong to anybody. In a plausible opinion, the Court held that the usual import of the word "knowingly" is that it applies to everything that follows. The Court supported its conclusion mainly through application of ordinary principles of grammar.

Fair enough, but the tough question is, suppose you wanted to prohibit knowingly tranferring, possessing, or using a means of identification that belongs to another person, and you wanted the "knowing" requirement to apply to everything except knowing that there's a real person involved -- so that it is a crime to use a fake ID that in fact belongs to another person, provided you know it's a fake ID, whether or not you know that it belongs to another real person. What would you say?

It's not so easy to express this idea. And this point comes up all the time -- "knowingly" is a common mens rea, but it is frequently unclear how much it covers.

I think legislative drafters have to give up on trying to do it all in one sentence. It really requires two. There should be one sentence that uses the term "knowingly" as in the statute above, and then a second sentence that says, "the 'knowingly' requirement applies to the following elements: . . . " Awkward, but it would get the job done more precisely.

P.G. Wodehouse, Tax Evader

Everyone loves P.G. Wodehouse -- his books were so good that Punch once remarked that he was "exhausting the superlatives of the critics." Even as you read this, I am enjoying Right Ho, Jeeves, which I received on CD as a present.

But did you know that Wodehouse had a big dispute over payment of U.S. taxes that went all the way to the Supreme Court? It's true. I'm editing a case from volume 337 of the U.S. Reports, and, flipping through it to get to the case I'm interested in, I happened across Commissioner v. Wodehouse, 337 U.S. 369 (1949).

Wodehouse sold the U.S. serial and book rights to some of his works. He claimed that the resulting income was from the sale of property, and that the U.S. did not, at the time, tax nonresident aliens on such income. The IRS claimed that the income was from royalties on a U.S. copyright, which was taxed.

Wodehouse lost, 5-3 (with one Justice recused). Frankly, he had a pretty decent argument. Without going into all the details, prior to 1936 U.S. law clearly would have taxed Wodehouse's income, but in that year Congress changed the law to relieve aliens of tax on slaes of property, but to increase the tax imposed on aliens for "dividends, rents, salaries, wages, premiums, annuities, compensations, remunerations, emoluments, or other fixed or determinable annual or periodical gains, profits, and income" from sources within the U.S. and required that the tax be withheld at the source.

The Court majority relied less on the new statutory language and more on its understanding of Congress's overall goal, which, in the Court's view, was to limit the tax on nonresident aliens to that which was readily collectible, while increasing the rate to make the change roughly revenue neutral. Money given for the use of copyrights, the Court thought, was readily accessible and a long-established source of revenue, and the Court discerned no congressional intent to change its taxablility.

Nothing ever changes in statutory interpretation. There are always disputes between those who want to parse each word Congress enacts and those who would rather enforce Congress's overall gestalt. Sorry, P.G., but Bertie and Uncle Fred will just have to pony up some of the ready.

Interpretive Puzzle

Interesting decision from the Supreme Court today in Corley v. United States. Corley was arrested for allegedly robbing a bank and held in custody for over nine hours following which he confessed. The question was the admissibility of his confession.

Under the "McNabb-Mallory doctrine," which has been around for over 60 years, confessions to federal police are inadmissible if made after the unreasonable failure of the police to present an arrested suspect to a magistrate promptly. But in 1968, Congress enacted a statute that said that "a confession made . . . by . . . a defendant therein, while such person was under arrest . . . , shall not be inadmissible solely because of delay in bringing such person before amagistrate judge . . . if such confession is found by thetrial judge to have been made voluntarily . . . and if suchconfession was made . . . within six hours [of arrest]."

No problem, you would think; Corely was held for more than nine hours before confessing, so the statute doesn't apply and the McNabb-Mallory doctrine does. But there's a complication. The same statute also said that "a confession . . . shall be admissible in evidence if it is voluntarily given."

Now what? The five-Justice Court majority says that the general rule of admissibility doesn't apply to confessions made more than six hours after arrest. The four-Justice minority says that it does.

The Court majority has the better of this one. The general rule of admissibility of voluntary confessions seems very broad, but if it really is so broad, what is the 6-hour window provision doing there? It's totally redundant to say that voluntary confessions made within six hours of arrest are admissible if all voluntary confessions are admissible.

As the Court held, a better understanding is that the general provision was designed to overturn the Miranda decision (a design that the Court thwarted, incidentally), and the other provision is specifically directed at limiting the McNabb-Mallory doctrine. Therefore, the provision specifically directed at the situation of unnnecessarily elongated questioning applies, and it limits, but does not eliminate, the McNabb-Mallory doctrine.

That New Yorker Cover

As everyone knows by now, the New Yorker published a controverisal cartoon on the cover of its latest issue, which depicts Barack Obama in Muslim garb, doing a fist bump with his wife Michelle, who is carrying a machine gun. Oy!

What's interesting to me about the cartoon controversy is what it shows about the importance of context in interpretation. As I look at the cartoon, in its context as the cover of the New Yorker, I see an unsuccessful attempt at humor. I can see, as the New Yorker's editor, David Remnick claims in defense of the cover, the attempt to satirize right-wing attacks on the Obama's patriotism. But it's too complicated to be really funny. You have to first get over your shock at what the cover depicts, then think about what it means, and finally get to the point of recognizing it as a satire of what it depicts. It's not nearly as funny as the cover from a few months ago that depicted Obama and Hilary Clinton in bed together, both reaching for a ringing red phone at 3 a.m. That one also satirized an attack on Obama, but in a playful, instantly funny way. This one doesn't work for me, but I do see it as attempted humor.

But what if the National Review or the Weekly Standard had published the exact same thing? I would be outraged! I wouldn't see it as funny at all. I wouldn't even see it as an attempt to be funny. I would see it as an outrageous, totally unwarranted attack on Obama's patriotism, not as a satire on such attacks.

It all goes to show you how challenging interpretation is, and how delicate humor is. The exact same thing can have different meanings, depending on who says it.

Supreme Complacency

A few years ago, in the case of Clark v. Martinez, the Supreme Court, speaking through Justice Scalia, proclaimed that a single term in a statute cannot have different meanings in different cases. Thus, if a statute says, "if facts A or B apply, result C must follow," then C must have the same meaning in cases involving A as in cases involving B. Anything else, the Supreme Court said, would be "novel" and "dangerous."

In response, I wrote an article showing that giving a single statutory term different meaning in different contexts (a practice I called "polymorphic" interpretation) is certainly not novel -- I gave about a dozen concrete examples where courts, including the Supreme Court, had done exactly that -- and I also suggested that it isn't dangerous either, but rather, in certain cases, it is the best and most appropriate approach to statutory interpretation.

A decision today by the Supreme Court shows that my article has had the impact that most scholarship has on the Court's decisions -- which is to say, none. Today the Supreme Court had to interpret a statute that forbids engaging in certain financial transactions involving the "proceeds" of certain unlawful activity. The question was whether "proceeds" means only the profits of the unlawful activity, or whether it could include the gross receipts.

Four Justices said it meant "profits," four said it meant "gross receipts" and one (Justice Stevens, noted for often being the odd man out throughout his long career on the Court) said that it could mean "profits" for some kinds of unlawful activity and "gross receipts" for others, depending on the nature of the activity. This last suggestion was criticized in the main opinion (by Justice Scalia, naturally) as inconsistent with the Clark v. Martinez prohibition against such interpretation.

Hmmm . . . it's almost as though Justice Scalia and those who joined him today don't know that Clark's suggestion that there is something "novel" about polymorphic interpretation has been thoroughly debunked. Well, probably, they don't. They're busy people and can't review everything that's happening in the scholarly journals.

I did get one thing right, though. In today's opinion, Justice Scalia points out that Justice Stevens joined Clark v. Martinez. But as I observed in my article, the Justices don't seem to regard themselves as bound by the interpretive methodology. I pointed out that Justice Stevens had previously joined polymorphic opinions and I doubted that he would stick to the "unitary" rule of Clark. And he didn't. And trust me, the others won't either, when they get to a case where polymorphism will suit them better.

More Tiresome Textualism

Imagine that you're a judge deciding a case brought by a federal prisoner. The prisoner complains that, while he was being transferred from one prison to another, the prison system lost some of his property. He claims $177 as the value of the lost property.

Seems reasonable enough, and, fortunately, Congress, over 60 years ago, passed the Federal Tort Claims Act to make the United States as liable as any private party for torts such as losing someone's property.

But wait! The government (probably spending $50,000 to avoid paying this $177) points out that an exception to the FTCA provides that the United States is not liable for:

"Any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer."

Here's the key question: does this statute have anything to do with the case?

If you said, "Gee, this exception seems to be all about customs and excise matters. It doesn't seem to have anything to do with property getting lost in the Bureau of Prisons. It's hard to imagine that Congress would write a statute covering the Bureau of Prisons in this roundabout way," give yourself four points out of a possible nine.

If you said, "The exception covers 'any claim arising in respect of . . . the detention of any . . . property by . . . any other law enforcement officer,' so the clear text of the statute covers the case and that's the end of the matter," you get five points and win.

That is, five out of nine Supreme Court Justices ruled against the prisoner on Tuesday.

Once again, our illustrious Supreme Court gets itself so caught up in parsing text finely that it loses sight of what interpretation is all about.

I don't want to be unfair to the Justices. If you look at the full opinion, you'll see that they gave this one a pretty good try -- recognizing that there were some arguments cutting in the prisoner's favor. And, again, to be fair, there is one more thing I haven't mentioned that makes this a tough case: the statute includes an exception to the exception (passed much more recently) that seems broader in scope.

But the critical point, best expressed in Justice Breyer's dissenting opinion, is that "Congress does not hide elephants in mouseholes." If Congress meant to cover all losses of property by any government law enforcement officer doing anything, that's a pretty big category -- probably bigger by far than the category of officers engaging in customs and excise tasks. It's just not plausible to think that Congress would express its desire in a way that's so focused on customs and excise. The tail would be wagging the dog.

This is not the easiest case. The language does permit the Court's broad interpretation. I'm not saying it's a slam dunk the other way. But the Court should give more consideration to which is the better interpretation, and which interpretation better comports with the evident function that the statute is supposed to play.

In the meantime, hang on to your property when the feds come around. Apparently, if some FBI officer takes a liking to your laptop, there's nothing you can do about it.

Does Text Matter?

OK, enough golf frivolities, back to stuff where I can actually add some value.

Our illustrious Supreme Court never seems to stop fighting over the most basic questions of statutory interpretation, including the fundamental question of whether text matters. Sometimes the Court says that it is Congress's helpless slave, bound to follow statutory text mindlessly; other times, it discovers power to depart from statutory text in the name of some other goal. And sometimes it does both on the same day!

The Court followed text slavishly in yesterday's decision in Powerex Corp. v. Reliant Energy Services. In this rather complex case (which is simplified here), plaintiffs sued various power companies in state court for allegedly conspiring to fix energy prices in California. The defendants removed to federal court on the ground that some of them were foreign sovereigns -- they were power companies owned by foreign governments (e.g., Canada). The federal district court decided that one of them wasn't a foreign sovereign and remanded the case to state court.

Now the defendant appealed to the Ninth Circuit on the question of whether it was a foreign sovereign. Unfortunately for the defendant, 28 U.S.C. 1447(d) provides that "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise."

You might think that would be it. And you would be right. The Supreme Court said, look, 1447(d) makes these matters not appealable. We have to follow the text of the statute -- even though, as the Court acknowledged, in other cases the Court hasn't followed the text of this statute; it has, by its own admission, "interpreted §1447(d) to cover less than its words alone suggest." In other cases, the Court found that certain appeals weren't within the policy of §1447(d), even if they were within its text. But not this time. Although acknowledging that denying potential foreign sovereigns appeals on the issue of whether they are foreign sovereigns has undesirable policy consequences, the Court said that "what the text of §1447(d) indisputably does prevails over what it ought to have done." The end.

Meanwhile, on the same day, the Court faced the question of whether the securities laws so thoroughly regulate the behavior of investment banks that underwrite IPOs that they implicitly preclude application of the antitrust laws to the same conduct. When this question arose in a case called Credit Suisse Securities, Justice Thomas pointed out that the text of the securities laws provides a clear answer: no. The securities laws say, "the rights and remedies provided by this subchapter shall be in addition to any and all other rights and remedies that may exist in law or in equity." That seems pretty clear, doesn't it? It says that the securities laws provide extra remedies, in addition to any and all other remedies that other law provides.

You might think that our text-obsessed Supreme Court would follow this statutory text as mindlessly as the text involved in the Powerex case, but no. The Court noted that in some prior cases, it had departed from the literal meaning of the text (also true in Powerex, as we saw a moment ago), and it therefore felt licensed to reconcile the securities laws with the antitrust laws on a policy basis. The Court decided that it wasn't a good idea to have both antitrust regulation and SEC regulation of the same underwriting conduct, so it held antitrust suits implicitly prohibited.

So does text matter or not? This problem just keeps cropping up again and again. Just last week, the Court threw out an appeal filed a couple of days late -- because the district judge specified the wrong deadline! The district judge granted the appellant an extension of time to appeal until February 27, not realizing that it only had power to grant an extension until February 24. The Supreme Court read the appeal deadline strictly and said it was the appellant's tough luck that the district court had made such a mistake. But when it wants to, as in the securities case, it treats statutory text as merely advisory and considers itself empowered to make policy decisions contradicting the text.

My own scholarly writings suggest that a firm policy of slavishly following text is a mistake. It seems appealing to think that courts should just do what statutes say without exercising policy judgment, and one might imagine that Congress would write better statutes if it really understood that courts would not rescue it from its drafting errors. But these hopes are illusory. Poorly drafted statutes are inherent in the hurly-burly of the legislative process, and courts have the advantage of seeing the problem at the moment the statute is applied, whereas Congress has to look at things only in advance. That's why courts have to have (and always have had) some power to ameliorate statutory errors. The great trick is knowing when it's appropriate to deviate a little from statutory text and when courts should just follow the text. Even I think deviations should be rare. For the full theory, read my articles -- the short version is that courts should be guided by background principles of law. When a statute startlingly deviates from the way things are usually done without apparent justification, the time may be right for the court to deviate from the statute.