Author: Bruce Boyden


When Do Judges Get to Use Judgement in Interpreting a Statute?

Via How Appealing comes an interesting statutory interpretation issue: in reading a statute, what does a court do with outcomes that are required by the plain language of the statute, but that Congress may not have intended? According to Judge Boudin on behalf of a unanimous First Circuit panel ten years ago, the answer is that the court should intervene when it “is patent that Congress as a whole did not appreciate the great variety and complexity of state provisions that would have to be meshed with the new federal statute or the odd results that would follow.” But according to a decision written by Judge Easterbrook and issued yesterday by a unanimous Seventh Circuit panel, the answer is that the court should intervene only when the “statute is … absurd as written;” that is, if its text does not “parse[ ]” or there is “linguistic garble.” “The canon [of absurdity] is limited to solving problems in exposition, as opposed to the harshness that a well-written but poorly conceived statute may produce.”

The statute at issue in both cases is the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1).

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NY Court of Appeals Decides Same-Sex Marriage Case

New York’s highest court handed down its eagerly anticipated decision in Hernandez v. Robles this morning. The court first decided that New York statutes did in fact limit marriage to opposite-sex couples, then proceeded to analyze that restriction under a rational basis test, defining the relevant right as not the right to marry a person of one’s choosing, but “[t]he right to marry someone of the same sex.” It found that the New York legislature could have had rational bases for drawing a line between opposite-sex and same-sex couples:

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Our Founding Fruitcakes?

Trumbull, The Declaration of IndependenceHello! I’m excited to try this whole blogging thing from the other side of the comment line. Thanks to everyone at Concurring Opinions (Co-Op? Con-Op?) for letting me visit for a bit.

My research at the moment focuses on copyright and content protection (a/k/a DRM), but I thought I’d start off with one of my other loves, history. (If academics are divided between hedgehogs and foxes — “The fox knows many things, but the hedgehog knows one big thing” — I’m definitely more of a fox.) And what more appropriate topic, given the recent July 4th holiday, than the Founding and what it means for constitutional interpretation.

Lawyers tend to revere the Founding as a magical moment of almost perfect democracy. Obviously, most are aware that many of the Founders owned slaves, and that suffrage was limited to white male property holders. But the Founders created a democratic nation that has lasted and thrived for over two centuries, and it seems reasonable to attribute to them some special wisdom and foresight in establishing a political culture and a government that would withstand the whips and scorns of time.

I’m not saying that’s wrong, exactly. But it is interesting to go back and look at what was actually motivating the revolutionaries in that “magical moment,” and to discover them saying some things that make them look positively bonkers. What does that mean about the significance we should attach to what the Founders thought about anything? For example, should we continue to take the Founders’ fear of executive power seriously?

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