Author: Anita Krishnakumar


Book Review: Cross’s The Theory and Practice of Statutory Interpretation

Frank B. Cross, The Theory and Practice of Statutory Interpretation, Stanford University Press, 2009.

True to its title, Frank Cross’s ambitious book seeks to bridge the gap that long has existed between scholarly theorizing about statutory interpretation and the actual, on-the-ground judicial practice of construing statutes.  The book’s first few chapters engage in excellent analyses of four competing theories of statutory interpretation—textualism, legislative intent, interpretive canons, and pragmatism.  Cross examines each of the theories in detail, reviewing and critiquing the most prominent arguments made in favor of and against each approach.  These chapters are extremely well-done; they not only provide a virtual primer on the most prominent works in the field of statutory interpretation, but are infused with Cross’s own incisive take on the standard debates.

The second half of the book turns to reporting the results of an empirical study that Cross conducted analyzing a sample of 120 cases from the Supreme Court’s 1994 through 2002 terms.  Cross’s study was designed, inter alia, (i) to measure the Court’s and individual Justices’ patterns of canon use for consistency with the different theoretical approaches; (ii) to test the various interpretive methodologies’ ability to constrain ideological decision-making; and, to a lesser extent, (iii) to assess the interpretive methodologies’ relative ability to command consensus on the Court.  To this end, Cross coded for judicial reliance on several specific canons and interpretive tools and then grouped these canons and tools into four categories corresponding to the interpretive theories—i.e., textualism, intentionalism, canons, and pragmatism.  He then measured the Court’s rates of reliance on each category of interpretive tools, the correlation between individual Justices’ ideological preferences and the ideological outcomes of cases in which the Justices referenced interpretive tools within each category, and the relationship between the interpretive tools used and the level of consensus reached by the Court in particular cases.  Cross’s empirical findings can be summed up as follows:

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The Importance of Other Statutes in Statutory Interpretation

In one of the few decisions it has handed down thus far this term, Union Pacific Railroad Co. v. Locomotive Engineers and Trainmen, the Supreme Court relies heavily on a statutory interpretation technique that tends to confound students, but that forms a staple in its interpretive methodology:  References to/extrapolation from other statutes and prior Supreme Court cases interpreting them.  Union Pacific raises the question whether, under the Railway Labor Act (RLA), a party’s alleged failure to exhaust certain grievance procedures before proceeding to arbitration in front of a panel of National Railroad Adjustment Board (NRAB) members is a jurisdictional claim that may be raised sua sponte by the arbitration panel or an ordinary claim that must be raised by the parties in their papers.

The RLA requires employees and railroads to exhaust the grievance procedures specified in their collective bargaining agreement before resorting to arbitration. As the final pre-arbitration grievance procedure, the Act directs parties to attempt settlement “in conference” between designated representatives of the railroad and the employee. In Union Pacific, the parties engaged in at least two pre-arbitration conferences; however, the employees neglected to include proof that conferencing had taken place in the materials ultimately submitted to the arbitrators. The railroad did not raise this lack of record evidence, but one of the industry representatives on the panel did — and despite the employees’  after-the-fact submission of evidence that the conferences did occur, the arbitration panel dismissed the employees’ arbitration petitions, concluding that it lacked authority to assume jurisdiction over the employees’ claims given the employees’ failure to submit proof-of-conferencing prior to the closing of the record. Read More


CRS Lobbying Report

Last week, the Congressional Research Service issued a report titled, Lobbying the Executive Branch: Current Practices and Options for Change. The report summarizes how lobbyist registration requirements have evolved since 1995, when the Lobbying and Disclosure Act (“LDA”) was passed. It also examines steps taken by the Obama Administration to limit and monitor lobbying of the executive branch, particularly in connection with the American Recovery and Reinvestment Act of 2009 and the Emergency Economic Stabilization Act (“EESA”).

The report has received some flack for its statement that the Administration’s restrictions on lobbyist access to executive branch departments and agencies “has already changed the relationship between lobbyists and covered executive branch officials.” But amidst all the uproar over whether there is any real evidence of such change and continuing criticism of the Administration’s unprecedented directives barring lobbyists from talking about specific projects (stimulus funds) and preventing lobbyists from serving on agency advisory boards and commissions, I am most struck by a section of the report that no one seems to be talking about: the  recommendations for future action. That section discusses three suggestions or “options for change” that “might further clarify lobbyists’ relationships with executive branch officials.”

The suggested changes are:

1. Amend the LDA’s disclosure requirements to cover program-specific disbursement information — such as lobbying in connection with the Recovery and Reinvestment Act or the EESA.

2. Create a central database to collect all Recovery Act projects and contacts by federally registered lobbyists in a single, searchable location.

3. Take no immediate action, on the theory that the current lobbying registration and disclosure procedures combined with executive orders and executive branch rules on Recovery Act lobbying are effective.

Notice what is missing:  Any mention of requiring elected officials who are the targets of lobbyist activity, and who get to decide just how much access lobbyists receive, to disclose their contacts with lobbyists. It seems to me that both the CRS Report and the Obama Administration are missing something very basic here: The public’s concerns about lobbying do not begin with lobbyists themselves, but with the amount of access and influence that lobbyists exert vis-à-vis elected officials. Elected officials are, after all, the ones with whom the public has a direct (voting) connection and who the public expects to act on its behalf. Thus, it is just backwards for lobbying regulations to require disclosure after disclosure from lobbyists and nothing whatsoever from elected officials.

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“Practical Consequences” in Hertz Corp. v. Melinda Friend

Two weeks ago, the Supreme Court heard oral arguments in a case called The Hertz Corporation v. Melinda Friend, et al. At issue in the case is the appropriate test for determining which State constitutes a corporation’s “principal place of business” for diversity jurisdiction purposes. In September 2007, Melinda Friend et al. filed a class action lawsuit against Hertz Corporation in California state court; shortly thereafter Hertz sought to remove the lawsuit to federal court, arguing that it is incorporated in Delaware and that its principal place of business is New Jersey, where its corporate headquarters are located. Friend countered that California should be considered Hertz’s principal place of business because Hertz conducts more business in California than in any other state.

The California district court and the Ninth Circuit agreed with Friend, applying the so-called “total activity” or “substantial predominance” test, which holds that if a corporation’s “business activity [in one State] ‘is significantly larger than any other state in which the corporation conducts business,’” that State “‘is the corporation’s principal place of business.’” The Ninth Circuit’s approach is consistent with the “total activity” test adopted by the Fifth, Sixth, Eighth, Tenth, and Eleventh Circuits; only one Circuit, the Seventh, has adopted the headquarters test advocated by Hertz. Based on the November 10 oral argument transcripts, the Supreme Court appears poised to reverse the Ninth Circuit (and the prevailing approach in the Fifth, Sixth, Eighth, Tenth, and Eleventh Circuits) and to adopt a rebuttable presumption that a corporation’s “principal place of business” is the State in which its corporate headquarters are located.

The briefs and oral argument in the case provide a tour de force of statutory interpretation arguments, from references to (1) the ordinary meaning of “place” to (2) dictionary definitions to (3) the meaning given to “principal place of business” in the Bankruptcy Code and other statutes to (4) statutory purpose to (5) legislative history, including the rejected proposal rule, to (6) arguments about Congress’s intent. But what I find most striking in reading the oral argument transcript (and Hertz’s brief) is the emphasis placed on the simplicity and ease of administration of the “headquarters” test, as opposed to other tests for “principal place of business.” Read More


The Roberts Court (Thus Far) and the Rule of Lenity

In their Legislation casebook, William Eskridge, Philip Frickey, and Elizabeth Garrett observe that between 1984 and 2006, the Supreme Court cited the rule of lenity in just over one-fourth of its cases interpreting criminal statutes and agreed with the government’s interpretation in over 60% of those cases. I thought it would be interesting to see how those figures compare to the still-nascent Roberts Court’s cases interpreting criminal statutes. 

Here is what I found:

Between February 2006 (when Justice Alito joined the Court) and the end of June 2009 (Justice Souter’s last day on the Court), the Roberts Court decided twenty-five cases that involved at least some interpretation of a criminal statute. In fourteen of those twenty-five cases (56%), the Court interpreted the statute in a manner that favored the defendant. In only six of the cases did the Court reference the Rule of Lenity—four times in dissent, one time in both the plurality opinion and the concurring opinion providing the fifth vote, and one time in a concurring opinion alone.

The two justices most likely to reference the rule of lenity (i.e., who exhibited the highest rates of reference to the rule over the relevant time period) were Justices Scalia and Stevens, each of whom referenced or joined an opinion referencing the rule in four1 of the twenty-five cases. Justice Ginsburg exhibited the next-highest rate of reference to the rule, invoking it or joining an opinion that invoked it in three2 of the cases; Justice Souter invoked or joined an opinion invoking the rule in two3 of the cases, while Justices Breyer, Roberts, and Thomas did so only once.4 Justices Alito and Kennedy did not reference or join an opinion referencing the rule of lenity in a single case during this time period.

Upshot:  Eskridge’s, Frickey’s, and Garrett’s finding that the rule of lenity plays a role in just over one-fourth of the Court’s criminal statutory cases seems to be holding steady in the Roberts Court. The Court may be shifting ever-so-slightly to a more equal rate of interpretations that favor the government versus the defendant, though it is too early and the sample size is too small to tell. Perhaps most interestingly, the rule of lenity seems to be losing steam as an interpretive aid: In the past several Supreme Court terms, it almost always has been cited by justices in dissent—even in the fourteen cases in which the Roberts Court interpreted the statute to favor the defendant, it rarely (one time) relied on the rule of lenity to reach its result. In light of this trend, it may be worth asking whether this longstanding rule of statutory construction is nearing its deathbed?


1.  See James v. United States (Scalia and Stevens, dissenting); United States v. Santos (Scalia plurality opinion, Stevens concurring opinion); Begay v. United States (Scalia concurring opinion); United States v. Rodriquez (Stevens joining Souter dissenting opinion); United States v. Hayes (Scalia joining Roberts dissent); Dean v. United States (Stevens dissent).

2.  See James (joined dissent), Santos (joined plurality), Rodriquez (joined dissent).

3.  See Santos (joined plurality), Rodriquez (authored dissent).

4.  Justice Breyer authored a dissenting opinion citing the rule in Dean v. United States; Justice Roberts authored a dissenting opinion invoking the rule in Rodriquez; and Justice Thomas joined the relevant portionf of the plurality opinion in Santos.


Can There Be An “Undeclared” Canon of Statutory Interpretation?

How do canons of statutory interpretation come into being? What qualifies a court’s method of reasoning in a statutory case as a rule or canon of construction? Last week, I wrote about the Supreme Court’s use of the passive voice as an interpretive guide in two somewhat recent criminal cases. Does this mean that we now have a “passive voice” canon of statutory interpretation, at least in criminal cases?

In a recent article, The Hidden Legacy of Holy Trinity Church:  The Unique National Institution Canon (forthcoming, 51 William & Mary Law Review __ (2009))—in which I argue that the Supreme Court quietly has employed a “unique national institution canon” to give preferential legal treatment to certain special/unique American entities (Christian churches, baseball, railroads, tobacco, Native Americans)—I touch on this question of how different interpretive methodologies become canons or rules of statutory construction.

One position might be that any time the Supreme Court, as the highest court in the land, uses an interpretive methodology, that methodology becomes a rule or canon of statutory construction. This seems to be the view taken by William Eskridge, Philip Frickey, and Elizabeth Garrett in their Legislation casebook, which contains an appendix compiling “The Supreme Court’s Canons of Statutory Interpretation.” More generally, I would suggest that interpretive methodologies rise to the level of canons of statutory construction when they can lay claim to one or more of the following: (1) frequent use by the Supreme Court; (2) longevity, as when the methodology originated in English courts or long has been listed in Sutherland’s definitive treatise on Statutes and Statutory Construction;(3) grounding in some fundamental tenet of the American legal system (e.g., the Constitution); or (4) fostering consistency with longstanding judicial treatment of particular words or subject matters.

The expressio unius maxim, for example, gained its canonical status primarily through longevity—it is a Latin maxim used often by the English courts and is prominent in Sutherland’s—and also has been used frequently by the Supreme Court. The Rule of Lenity similarly derives its authority from its longevity (Justice Scalia has defended the canon on the grounds that it “is almost as old as the common law itself”) and from its basis in the fundamental constitutional due process principle that criminal laws should give fair notice of the behavior that is outlawed.  Interpretive techniques with a shorter historical pedigree, such as the whole act and whole code rules, have achieved canonical status because they promote the consistent treatment of statutory words, phrases, sections, and subject matter.  And one of the newest additions to the statutory interpretation canon, the federalism clear statement rule, earned its stature through frequent Supreme Court use coupled with a grounding in the fundamental constitutional principle of federalism. Read More


The Passive Voice in Statutory Interpretation

Thanks to Dan et al. for the opportunity to guest-blog this month.  For my first guest post, I want to highlight a little-noticed tool of statutory construction that has reared its head in a handful of recent Supreme Court decisions: inferences based on Congress’s use of the passive voice in criminal statutes. I first noticed Supreme Court reliance on the passive voice to construe a criminal statute in Justice Kennedy’s dissenting opinion in Jones v. United States (1999).  Jones involved construction of the federal carjacking statute, 18 U.S.C. §2119, which then read as follows:

“Whoever, possessing a firearm as defined in section 921 of this title, takes a motor vehicle . . . from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall—

(1) be fined under this title or imprisoned not more than 15 years, or both,

(2) if serious bodily injury (as defined in section 1365 of this title) results, be fined under this title or imprisoned not more than 25 years, or both, and

(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both.”

Defendant Jones had participated in a carjacking with two other men.  While Jones and one of the other men held up the victims, a third man had stuck his gun in one of the victims’ ears and later struck that victim on the head.   The issue in the case was whether clauses (1), (2) and (3) of §2119 are sentencing provisions, specifying punishment/sentencing possibilities for the offense set forth in the first paragraph, or whether they are three different offenses (one being a carjacking offense, two being carjacking + serious bodily injury, and three being carjacking + serious bodily injury resulting in death).  The classification mattered because the indictment did not charge any of the facts relating to bodily injury mentioned in clauses (2) or (3) and the jury instructions defined the elements of the government’s burden of proof with reference only to the first paragraph of §2119.  If clauses (2) and (3) were deemed sentencing provisions, this would not matter, and Jones could be sentenced to 25 years based on the serious bodily injury caused to one of the victims; if clause (2) and (3) were read as separate offense provisions containing new elements, then the government’s failure to plead these elements in the indictment and prove them before the jury would preclude it from seeking the 25-year penalty against Jones.

In a 5-4 opinion, the Supreme Court concluded that “the fairest reading of §2119” was to treat the serious bodily harm provision as an element of a separate offense, rather than as a mere sentencing enhancement. Justice Kennedy, joined by three other dissenters, disagreed—relying in part on the fact that the statute “uses the active voice in the main paragraph and the passive voice in clauses (2) and (3).”  While recognizing that the rule was not an absolute one, Justice Kennedy argued that “[i]n the more common practice, criminal statutes use the active voice to define prohibited conduct”— and the passive voice when listing sentencing factors.   This inference based on the statute’s use of the “passive voice” certainly did not do all, or even the bulk, of the work in leading Justice Kennedy (or the other dissenters) to the conclusion that clauses (2) and (3) should be read as sentencing enhancements, but the dissenters did emphasize it to bolster/corroborate their reading of the statute.

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Confusion in United States v. Santos

The Supreme Court this past Monday handed down its decision in United States v. Santos, a case that turns on whether the phrase “proceeds of some form of unlawful activity” in the federal money-laundering statute, 18 U.S.C. §1956(a)(1), means “profits” (net income) from the unlawful activity or simply any “receipts” (payments) from the unlawful activity. (The unlawful activity at issue in the case was illegal gambling). In a closely divided ruling, the Court opted for the “profits” construction. But discerning the precedential effect of the Court’s ruling is a little like trying to make sense of Alice in Wonderland. The Justice’s opinions in the case are of the by-now-familiar fractured variety: Justice Scalia authored the plurality opinion, joined by Justices Souter, Ginsburg, and Thomas — except for Part IV, in which Justice Thomas did not join; Justice Stevens concurred in the outcome reached by the plurality, but not in its reasoning; Justice Alito authored a dissenting opinion joined by Chief Justice Roberts, Justice Kennedy, and Justice Breyer; and Justice Breyer issued a separate dissent joined by no one else.

Significantly, Part IV of the plurality opinion, which Justice Thomas refused to join, focuses entirely on the plurality’s differences with Justice Stevens and ends by seeking to characterize “the stare decisis effect of Justice Stevens’ opinion” — given that his vote is necessary to the outcome of the case. Justice Stevens’ opinion parts company with the plurality because Stevens refuses to construe the word “proceeds” in the federal money laundering statute always to mean “profits” from the underlying predicate crime. Rather, he argues that “proceeds” can mean either “profits” or “receipts,” depending on the unlawful activity at issue. Characteristically for Justice Stevens, the determinative factor is Congress’ intent regarding the particular unlawful activity at issue. In the case of illegal gambling, however, Justice Stevens is unable to discover any specific legislative intent about whether “proceeds” was meant to cover merely “profits” or also “receipts.” So, faced with (1) “a lack of legislative history speaking to the definition of ‘proceeds’ when operating a gambling business is the ‘specified unlawful activity’” and (2) his “conviction” that “Congress could not have intended” the four-fold sentence enhancement (from 5 to 20 years) that would result from treating the use of gambling receipts to pay the expenses of operating an illegal gambling business as a separate offense (money laundering) from the operation of the gambling business itself (underlying offense), Justice Stevens agrees with the plurality that the Rule of Lenity should tip the scales in favor of interpreting “proceeds” to mean “profits” in this case. Got that?

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The “Mischief Rule” Rule and the VRA in Riley v. Kennedy

Election law experts have been quick to speculate about what the Supreme Court’s decision in Riley v. Kennedy, handed down this past Tuesday, means for the future of Section 5 (the preclearance provision) of the Voting Rights Act (VRA). Rick Pildes argues that the decision reflects a trend, which began in the 1990s, of “greater skepticism from the Court” “regarding the boundaries of the special coverage regime under Section 5 of the Act.” Rick Hasen worries that the decision bodes ill for the Court’s upcoming review of the constitutionality of the recently-renewed Section 5 in the NAMUDNO case. But what is most interesting to me, as a matter both of statutory interpretation and of election law, is Part IV of Justice Stevens’ dissenting opinion, which employs a classic Hart & Sacks Legal Process approach —the “Mischief Rule”— to argue that Section 5 preclearance should be required in a case such as this.

Before delving into this most interesting argument by Justice Stevens, a little background: VRA §5, of course, subjects certain “covered jurisdictions” (which earned that designation through a history of suppressing minority voting rights) to a presumption of bad faith behavior in election administration. It operates by freezing in place the election administration procedures in such covered jurisdictions, and requiring that such jurisdictions obtain “preclearance” from either the Justice Department (DOJ) or the District Court for the District of Columbia before they may make any changes to voting/election procedure. The typical preclearance lawsuit thus tends to involve a proposal by a state entity to implement some new change to election procedure in a covered jurisdiction, and a challenge by a minority group arguing that the proposed change will have the effect of disenfranchising minority voters. Riley turns that classic procedural posture on its head: In 1985, Alabama passed a law adopting a new election practice (changing the procedure for filling midterm vacancies on the Mobile County Commission from gubernatorial appointment to special election), obtained the preclearance required by Section 5, and held an election (in 1987). Soon thereafter, the Alabama Supreme Court invalidated the law under which the election took place on the ground that it violated the Alabama Constitution. When the next midterm vacancy arose (in 2005), the governor sought to fill it by appointment, prompting litigation. The question presented before the Supreme Court = Whether Alabama must obtain fresh preclearance in order to reinstate the election practice —i.e., gubernatorial appointment— that was in place before the special election procedure, ultimately struck down by the Alabama Supreme Court, was enacted? Does reinstatement of the gubernatorial appointment procedure constitute a change/abandonment of the special election procedure used in 1987, and thus require Section 5 preclearance?

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A Reverse Clear Statement Rule?

Last week the Supreme Court issued an opinion in a seemingly straightforward statutory interpretation case, Gonzalez v. United States. At issue was whether the Federal Magistrates Act (FMA) permits magistrate judges (rather than Article III district court judges) to preside over voir dire and jury selection in a felony criminal trial if defense counsel consents to the arrangement, but absent express consent from the defendant himself. Section 636(b)(3) of the FMA states that: “A magistrate judge may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States.” The Court concluded that the statutory language and relevant precedents (Gomez v. United States and Peretz v. United States) did not bar delegation of felony jury selection and voir dire to a magistrate. But more interesting, in my view, than the outcome reached by the Court is the argument it brushed aside with little fanfare in getting there: constitutional avoidance.

It is a well-worn if not-exactly-well-loved canon of statutory construction that when a statute is susceptible of two interpretations, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, the Court’s duty is to adopt the interpretation that steers clear of constitutional difficulties. The petitioner in this case argued that the decision to have a magistrate judge rather than an Article III judge preside at jury selection is a fundamental choice, involving a defendant’s fundamental rights, and that interpreting the FMA to authorize waiver of this choice without the express consent of the defendant raised a question of constitutional significance. Given the canon of constitutional avoidance, he pressed the Court to require an explicit personal statement of consent before a magistrate judge may be permitted to preside over felony jury selection. The Court, however, quickly waived away this argument, insisting that no serious constitutional is raised by such a delegation of authority to a magistrate, absent a defendant’s express consent, because: (1) as petitioner conceded, a magistrate judge is capable of competent and impartial performance of the judicial tasks involved in jury examination and selection; (2) the Article III district judge, insulated by life tenure and irreducible salary, is waiting in the wings, fully able to correct errors; (3) requiring the defendant to consent to a magistrate judge by way of an on-the-record personal statement is not dictated by precedent; and (4) such a requirement would burden the trial process. In other words, the Court relied on policy arguments to trump petitioner’s claim that felony defendants have a constitutional right to have an Article III judge preside over their trials, waivable only by the defendant personally.

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