Author: Anita Krishnakumar


Rehnquist Parody Uncovered

More on the statutory interpretation front to come soon, but in the meantime, I want to direct readers’ attention to an entertaining article by my colleague, John Barrett, titled, A Rehnquist Ode on the Vinson Court (Circa Summer 1953). The article, which is soon to be published in a forthcoming issue of Green Bag, features a recently-uncovered parody of a song from Gilbert & Sullivan’s “Mikado,” penned by William Rehnquist around the time he served as a law clerk to Justice Robert Jackson on the Vinson Court. Barrett, a well-known Jackson scholar, uncovered the parody in Jackson’s papers at the Library of Congress. As Barrett explains at the outset of the article:

The late William H. Rehnquist had an active, sometimes irreverent sense of humor, a love of music and strong, if often carefully guarded, opinions on many topics, including Supreme Court justices. This article publishes for the first time a Rehnquist composition that dates back to his seventeen-month Supreme Court clerkship with Justice Robert H. Jackson during 1952 and 1953. The document is a typewritten spoof of Gilbert and Sullivan lyrics. Rehnquist, who was in his late twenties when he banged out this ditty, gave it to Jackson. The Justice filed it without written comment, and it has been sitting in his [Jackson’s] files for more than fifty years.

The Rehnquist lyrics demonstrate his skill as a writer and a parodist. They also document his knowledge of 1950s Supreme Court justices’ gripes about and low regard for some of their judicial brethren. Rehnquist’s Gilbert and Sullivan parody focuses on the plethora of separate opinions that the 1950s Supreme Court Justices habitually produced, and on one subject that was, to Justice Jackson, particularly galling: Chief Justice Fred M. Vinson’s preoccupation, includingduring his working hours at the Supreme Court, with baseball.

Barrett’s article, which provides valuable annotations and historical context illuminating the subtext of Rehnquist’s parody, is a highly recommended read!


Predictions for United States v. Rodriguez

Many thanks to Doug Berman over at Sentencing Law and Policy for his kind words about my last post discussing Begay v. United States. Doug ended his post by noting that “the only thing missing” from my analysis was an assessment of what the Court’s ruling in Begay might mean for the soon-to-be-decided United States v. Rodgriguez. Taking up Doug’s gently-placed gauntlet, here are my thoughts on the likely outcome of Rodriguez, as informed by the Justices’ voting/reasoning in Begay:

First, a little Background: Rodriguez involves clause (i) of the same Armed Career Criminals Act (“ACCA”) sentencing enhancement that was at issue in Begay (and in James). 18 U.S.C. §924(e)(2)(B). Whereas clause (ii) of that section imposes the enhancement if the defendant previously has been convicted of three “violent felonies,” clause (i) triggers the enhancement if a defendant previously has been convicted of a “serious drug offense” — defined as “a state drug trafficking offense for which a maximum term of imprisonment of 10 years or more is prescribed by law.” 18 U.S.C. §924(e)(2)(B)(i). At the time when he committed his latest offense, Rodriguez had three prior convictions in Washington State for delivery of a controlled substance. Under Washington State law, the maximum term of imprisonment for this offense is 5 years for first-time offenders, and 10 years for those committing the offense for a second time (or third, or fourth, etc. time). The statutory interpretation question thus becomes: Whether a state drug trafficking offense qualifies as a “serious drug offense” triggering the §924(e)(2)(B)(i) enhancement if the maximum term of imprisonment starts out at 5 years for first-time offenders, but rises to 10 years for repeat offenders.

Based on their votes in Begay (and James) construing clause (ii) of §924(e)(2)(B), and on their questions at oral argument, here are my speculations (and I want to emphasize that these are just speculations) as to how the Justices are likely to vote in Rodriguez:

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Dejá-Vu in Begay v. United States

Last month, the Supreme Court issued an opinion in a little-discussed but methodologically intriguing statutory interpretation case called Begay v. United States. Begay addresses the range of predicate convictions that qualify a defendant for sentence enhancement under the Armed Career Criminal Act of 1984 (the “ACCA”), 18 U.S.C. §924(e). The sentencing enhancement provision is one which the Court addressed last term (2006-2007) in the context of a different predicate offense, in a case called James v. United States. Taken in tandem, the two cases intrigue because despite involving the same statutory provision and being decided by the same nine justices (no retirements or replacements in the interim), they produced different outcomes, different voting coalitions, and even different reasoning by some Justices.

At issue in both cases is a provision of the ACCA that imposes a mandatory 15-year minimum sentence on an offender who possesses a firearm while committing a felony IF the offender previously was convicted of three “violent felonies” or “serious drug offenses.” The Act defines “violent felony” to include any adult crime punishable by at least one year’s imprisonment that “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. §924(e)(2)(B)(ii). This last clause is referred to as the “otherwise” or “residual” clause and is the provision subject to interpretation in both Begay and James. In James, the question presented was whether a conviction for “attempted burglary” falls within the residual clause; in Begay it was whether a conviction for driving under the influence of alcohol (DUI) does. (Under New Mexico law, DUI becomes a felony punishable by a prison term of more than one year the fourth time an individual commits it; by the time of his federal offense, Begay had twelve DUI convictions, nine of which counted as felonies under New Mexico law.)

The Court, in two fractured opinions, answered the presented questions “yes” in James (attempted burglary counts) and “no” in Begay (a DUI does not count). Only three Justices were in the majority in both cases. Only one Justice dissented in both. So, what is going on with Justices’ reasoning? The following roadmap attempts to explain:

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Trust Law Meets Statutory Interpretation

For my final guest post, I want to talk about a case argued before the Supreme Court on Monday (November 26): LaRue v. DeWolff, Boberg, & Assoc. The case involves the appropriate interpretation of ERISA provisions governing individual pension plan participants’ right to sue the fiduciaries who administer their plans. While the subject might bore the average lawyer, as one who teaches courses both on statutory interpretation and on trusts, I find it intriguing. So, here goes: LaRue is a participant in an ERISA-covered Section 401(k) pension plan that is sponsored by his employer, DeWolff. DeWolff administers the plan and so qualifies as an ERISA fiduciary. Under the plan, participants may choose among several investment options and may direct DeWolff, as plan administrator, to invest the amounts allocated to their individual accounts in specified percentages. LaRue claims that DeWolff breached its fiduciary duties to him by failing to follow his investment allocation instructions, resulting in a loss of approximately $150,000.

Enter ERISA Sections 502(a)(2) & (a)(3), 29 U.S.C. 1132(a)(2) & (a)(3), under which LaRue seeks to have the plan reimbursed for that alleged $150,000 loss (after which the plan would allocate the funds to his individual account). ERISA Section 502(a)(2) authorizes a participant and others to sue a fiduciary (like DeWolff) to recover “losses to the plan” resulting from a breach of fiduciary duty. Section 502(a)(3) is a catch-all provision that authorizes a plan participant and others to sue for, among other things, “appropriate equitable relief . . . to redress” “any act or practice which violates” ERISA.

The issues thus become: (1) Does Section (a)(2) authorize a plan participant to sue for recovery that would inure to his individual account rather than to the benefit of the plan as a whole?; and (2) Does LaRue’s claim to recover the alleged $150,000 loss constitute a claim for equitable relief (as opposed to a legal claim for compensatory damages), as required under (a)(3)?

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An Overlooked Legacy of Lochner v. New York

I recently came across an article by David Bernstein called Lochner v. New York: A Centennial Retrospective. The article, which has been blogged about both on Legal Theory and on the Volokh Conspiracy (albeit some time ago, but archives have a way of keeping this stuff alive), discusses the history and legacy of Lochner and tracks how the case came to be part of the “anti-canon.” Bernstein’s central arguments are: (1) that the law challenged in Lochner was the product of special interest pressure by unionized bakers seeking to restrict competition from recent immigrant bakers who were willing to work longer hours, not the result of a benevolent social movement to aid workers and the poor; and (2) that the Lochner majority opinion did not become a leading case in the “anti-canon” until the 1960s, when the Supreme Court began to debate Lochner’s legacy in Griswold v. Connecticut.

Bernstein’s article is interesting and informative, but I write here to highlight an important aspect of the story to which it gives short shrift. The point to which I wish to draw attention is the significance of the Lochner dissent. Bernstein mentions in passing that judges and scholars initially paid attention only to Justice Holmes’s famous dissent (rather than to the majority opinion) — but in so doing, he glosses over one critically important legacy of the case: It is the foundational, precedent-setting Canonical Dissent, the case that paved the way for the canonization of dissenting opinions as a form of legal authority. As I have argued elsewhere (see On the Evolution of the Canonical Dissent), before Lochner and the New Deal, the concept of admitting judicial error, let alone calling attention to a dissenting opinion, was anathema to the American legal system. In fact it was believed that such an acknowledgemnt of error would threaten the (somewhat shaky) legs upon which judicial legitimacy stood.

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Impending Budget Battle Reminiscent of 1995-96 Budget Showdown?

The Washington Post ran an interesting piece yesterday, November 14, by Peter Baker titled, Bush Veto Sets Up Clash on Budget, Democrats Make War-Funds Threat. The article begins:

A budget dispute erupted into a full-scale battle Tuesday as President Bush vetoed the Democrats’ top-priority domestic spending bill and the party’s Senate leader threatened to withhold war funding if the president does not agree to pull out of Iraq.

The long-anticipated clash came to a head as Bush rejected a $606 billion bill to fund education, health and labor programs, complaining that it is too expensive and is larded with pork. Within hours, Senate Majority Leader Harry M. Reid (D-Nev.) declared that Bush will not get more money to pay for the wars in Iraq and Afghanistan this year unless he accepts a plan to complete troop withdrawals by the end of next year.

The Washington Post article goes on to compare the impending budget showdown between President Bush and the Democratic Congress to the infamous 1995-96 budget battle between President Clinton and a then-Republican Congress — a battle which resulted in several government shutdowns and widely is considered to have ended in a political victory for President Clinton. In fact, the article notes that “[a] politically weakened Clinton used that episode to redefine himself, just as an unpopular Bush wants to wage a veto fight to demonstrate strength with 14 months left in office and to play off a Congress with as little public support as that led by Newt Gingrich a dozen years ago.”

Having written about the 1995-96 budget showdown in some detail (see article), and having given some thought to separation of powers issues in the budget context, I offer these observations in response to the comparison invited by the Washington Post article:

1. The 1995-96 budget battle undoubtedly taught that the President has the political and procedural leverage in a head-to-head showdown with Congress. Among other things, the Chief Executive has a built-in media advantage because he can fly around the country making speeches that vilify Congress and explaining why he simply had to veto the atrocious budget Congress sent him. Moreover, he has the ability to speak as one voice for his Administration, whereas Congressional leaders must struggle to keep various legislative factions together and to represent the will of a multi-member body.

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Statutory Stare Decisis in John R. Sand & Gravel Co. v. United States

This past Tuesday, November 6, the Supreme Court heard head-spinningly complicated but (perhaps for this reason) thoroughly entertaining oral arguments in a case called John R. Sand & Gravel Co. v. United States. The case evolved as follows: John R. Sand & Gravel Co. owns a long-term lease on 158 acres of land in Lapeer County, Michigan. A pre-existing landfill located on this land is contaminated with illegally-accepted industrial waste. In 1992-1993, the United States Environmental Protection Agency (EPA) erected a chain link fence around roughly 60% of John R. Sand’s leasehold land and began excavating the contaminated waste from the site. Since 1992, EPA has at various times removed and relocated the fence to different parts of John R. Sand’s leased land and at one point obtained an injunction preventing John R. Sand from interfering with its remedial efforts. In 2002, John R. Sand filed a complaint seeking just compensation for the EPA’s “permanent physical taking” of portions of its leasehold land.

John R. Sand’s lawsuit is authorized under the Tucker Act, 28 U.S.C. §1491(a), which waives the United States’ sovereign immunity for claims “founded upon the Constitution” and confers jurisdiction on the Court of Federal Claims (CFC) to hear such claims. The government initially moved for judgment on the pleadings on the grounds that John R. Sand’s suit was time-barred under 28 U.S.C. §2501. Section 2501 provides that:

Every claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.

The CFC denied the government’s motion, finding that John R. Sand’s takings claims based on EPA’s construction of the chain link fence did not accrue until 1998. In subsequent pre-trial briefing, the government took the position that the fence-based claims accrued in 1998. Following a bench trial, the CFC ruled against John R. Sand on the merits. On appeal, the government did not argue that John R. Sand’s complaint was time-barred. An amicus brief, however, raised the timeliness issue, and the Court of Appeals sua sponte addressed it on review, concluding that John R. Sand’s fence-based takings claims had accrued in 1994 rather than 1998 and that his 2002 complaint thus was time-barred under 28 U.S.C. §2501.

Here’s where the case gets complicated(!) Ordinarily, an argument that a plaintiff’s claim is time-barred under the applicable statute of limitations is an affirmative defense, which must be raised and preserved by the defendant in order to avoid being waived. Which would mean that where, as here, the defendant conceded that the accrual date was 1998 and dropped the statute of limitations argument altogether on appeal, the Court of Appeals could not resurrect that argument as a basis for its ruling. BUT, the United States is no ordinary defendant. It is a defendant who ordinarily cannot be sued, except when it consents to do so by statute. If that statutory consent comes attached to a time limitation for filing claims against the United States, then the failure to comply with the limitations period no longer is an ordinary affirmative defense, but a condition of the sovereign immunity waiver. So the question becomes: Is the six-year limitations period in 28 U.S.C. §2501 meant to be part and parcel of the United States’ consent to be sued under 28 U.S.C. §1491(a), or is it merely an ordinary limitations period subject to waiver? Or, put more technically, is the statute of limitations set forth in 28 U.S.C. §2501 jurisdictional (meaning that it establishes a condition that the plaintiff must meet in order to have a right to sue the government in the first place) or is it merely procedural (meaning that it does not speak to plaintiffs’ right to sue, but only to whether or not a remedy can be granted for a violation of those rights)?

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Interlocking Statutes, Statutory Anomalies and Legislative Purpose

More on the statutory interpretation front: The Supreme Court last week heard oral arguments in Logan v. United States, a case involving the interplay between multiple federal criminal statutes, state law treatment of convicted offenders, and interpretive chestnuts such as the Absurd Results canon.

Federal laws: (1) Under 18 U.S.C. § 922(g)(1), it is unlawful for a person who has been convicted of a crime punishable by more than one year’s imprisonment to possess firearms. (2) Under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), convicted persons who violate §922(g)(1), and whose prior convictions include at least three violent felonies or serious drug offenses, face a mandatory minimum fifteen-year sentence. (3) 18 U.S.C. §924(e)(2)(B) defines “violent felony” as a violent crime that is “punishable by imprisonment for a term exceeding one year.” (4) But, under the amended version of 18 U.S.C. § 921(a)(20), enacted as part of the Firearms Owners Protection Act (FOPA), any conviction that “has been expunged, or set aside or for which a person has been pardoned or has had [his] civil rights restored” does not count as a predicate offense “unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.” To complicate matters, 18 U.S.C. §921(a)(20)(B) specifies that offenses classified by a State as misdemeanors may qualify as a “violent felony” (and thus as a predicate for a felon-in-possession conviction under § 922(g)(1)) if the misdemeanor is punishable by more than two years’ imprisonment.

State law: Wisconsin law classifies simple battery (causing bodily harm, as opposed to substantial or great bodily harm) as a misdemeanor offense, punishable by a maximum sentence of three years’ imprisonment. Wis. Stat §§ 940.19(1) (2003); 939.62(1)(a) (2000). Wisconsin law does not deprive persons convicted of a misdemeanor of any civil rights or of the right to possess a firearm. Wis. Stat. §§ 6.03(1)(b) (2006); 756.02 (1997); 973.176(1) (2006).

In 2005, Petitioner James D. Logan pleaded guilty to possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). A Wisconsin district court sentenced him, under the ACCA, to 15 years’ imprisonment because he had three prior state misdemeanor battery convictions punishable by a maximum of three years’ imprisonment. Logan challenged that conviction, arguing that his Wisconsin misdemeanor convictions should be disregarded under §921(a)(20) because they did not result in the loss of his civil rights, thus leaving him in the same position as a felon whose civil rights have been restored. (Civil rights commonly are understood to include the rights to vote, to serve on a jury, and to hold public office). The question before the Court is: Does the “civil rights restored” exemption under §921(a)(20) apply to defendants whose civil rights never were taken away by the State in the first place?

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Early Reflections on the Roberts Court and Legislative History

The Roberts Court undoubtedly still is in its infancy when it comes to matters of statutory interpretation. Despite this shortage of extrapolation-material, I think it possible to hazard a few speculations about emerging trends in the fledgling Court’s statutory interpretation methodology. At least as concerns legislative history —an ever-fertile ground for debate amongst judges and academics— I note three emerging camps among the Justices:

1.Stevens, Breyer, Ginsburg: Legislative History is relevant to help clarify statutory meaning in the first instance, because it provides context and can illuminate Congress’ intent and purpose in enacting the words at issue.

Evidence: In Hamdan v. Rumsfeld , a case that involved §1005(e)(1) of the Detainee Treatment Act (DTA), these three Justices were willing to rely in part on the fact that when Congress passed the DTA, it specifically considered and rejected a proposal to bar Supreme Court review of habeas applications from aliens detained at Guantanamo Bay that were pending at the time the statute was enacted. (The DTA clearly bars Supreme Court review of habeas applications filed after the date the statute takes effect, and the key question was whether that bar applied to an application filed by Hamdan before the statute was enacted).

Similarly, in Zuni Public School District No. 89 v. Dep’t of Education, these three Justices looked to and relied on the facts that (1) the Secretary of Education drafted the statutory language at issue and promulgated the challenged regulations (and calculation method for per-pupil expenditures) immediately thereafter; and (2) the challenged regulations had been in effect for 30 years prior to this challenge, during which time Congress never objected to the Secretary’s regulations or calculation method. (In other words, the Justices relied on the identity of the drafter and on post-enactment congressional silence).

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Missing Canons of Construction in Ali v. Federal Bureau of Prisons?

This past Monday, October 29, the Supreme Court heard oral arguments in a little-noticed case that raises fascinating questions of statutory interpretation: Ali v. Federal Bureau of Prisons . Ali is a prisoner in the custody of the United States Bureau of Prisons. During a transfer between prisons, he handed over his property to Bureau of Prisons officials for transportation to his new prison. Ali alleges that when his property was handed back to him at the new prison, several religious and personal items, including (as Justice Ginsburg noted during oral argument) a Koran and prayer rug, were missing. After exhausting his administrative remedies, Ali filed suit in federal district court against the United States, the Bureau of Prisons, and three Bureau of Prisons officials for the value of his lost property.

Enter the Federal Tort Claims Act (FTCA), 28 U.S.C. §1346(b), 2671-2680, which waives the United States government’s sovereign immunity for lawsuits in which the petitioner alleges “injury or loss of property” that was “caused by the negligence or wrongful act or omission” of employees of the federal government — except for thirteen specified categories of governmental activity. One of the thirteen excepted categories is for “[a]ny 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.” (Emphasis added).

So the $64,000 Question is: Does the phrase “any other law enforcement” officer include Bureau of Prisons officials, or is it limited, as Ali argues, to law enforcement officers who are acting in a customs or tax capacity?

The parties’ briefs, and the Justices’ questions at oral argument, offer a juicy exegesis into numerous textual canons of statutory construction. It’s the kind of romp through the canons that can make statutory interpretation professors like myself positively giddy: Is the statute’s reference to “customs or excise” officers an Example, or a List? Does the hoary (if unpronounceable to law students) ejusdem generis canon of construction apply here, or not? Does Congress’ use of the broad, encompassing word “any” before “other law enforcement officer” make the statute’s meaning plain and eliminate the need for (or the appropriateness of) further inquiry? Does Congress’ subsequent passage of an “exception to the exception” that circles back and waives sovereign immunity for civil forfeitures made by “law enforcement officers” shed light on the meaning of the original exception set forth in §2680(c)?

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