Monthly Archives: November 2009

Major Punitive Damages News in California

A bit off the topic from election law, but on an issue I follow closely in my Torts and Remedies courses: The California Supreme Court issued an important punitive damages opinion today, which seems to endorse a 1:1 ratio in cases of significant punitive damages. My friends at Horvitz & Levy analyze the case and note the curiosity of the CA Supreme Court’s failure to cite the Exxon Shipping case on this question. This ruling could reverberate for years in CA tort cases.

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“Statutory Interpretation In The Roberts Court’s First Era: An Empirical and Doctrinal Analysis”

Anita Krishnakumar has posted this draft on SSRN. Here is the abstract:

    Empirical studies of the Supreme Court’s statutory interpretation cases are few and far between. Those that do exist tend to focus on a sampling of cases over time, cases interpreting statutes in one area of the law, or on one specific aspect of the Court’s interpretive practice, such as its reliance on legislative history. This Article takes a different approach, examining all of the Roberts Court’s statutory cases from its 2005-2008 Terms, beginning with cases decided after January 31, 2006, when Justice Alito joined the Court, and concluding with cases decided on June 29, 2009, when Justice Souter retired. The Article’s approach is both empirical and doctrinal, in that it presents descriptive statistics illustrating the Court’s and individual Justice’s rates of reliance on fourteen different tools of statutory construction, as well as engages in doctrinal analysis of the Court’s statutory cases, highlighting discernable patterns in the individual Justices’ interpretive approaches. The Article makes two significant contributions to the field of statutory interpretation: First, it identifies an interpretive divide between the Justices on the Roberts Court over what I call “legal landscape coherence” versus “statute-specific policy coherence.” In brief, the legal landscape coherence Justices focus on the legal framework surrounding the statute at issue and seek the interpretation that fits most coherently into the existing legal structure; while the statute-specific policy coherence Justices focus on the individual statute at issue and preference the interpretation that creates a consistent and coherent policy across like situations and across time. The Article maps out the Justices’ theoretical divide in detail and shows how the divide translates into stark empirical differences in the Justices’ individual rates of reliance on particular interpretive canons and tools. Second, prior empirical studies have shown that Supreme Court Justices frequently reference the practical consequences likely to result from an interpretation when deciding statutory cases. This Article breaks new ground by uncovering an important difference in the form of practical consequences to which the different Justices tend to give weight, pointing out that the landscape coherence Justices tend to focus on the administrability of the interpretation — e.g., its effect on judicial resources, the difficulty of implementing it, and the clarity and predictability of the rule created; while the statute-specific Justices focus on the policy effected by the interpretation — e.g., whether it fosters a consistent application of the statute over time, the arbitrariness of the policy created, and the justness of the interpretation. The Article concludes with three case studies illustrating how the Roberts Court’s interpretive divide works in practice.

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Paying ACORN, And Constitutional Avoidance by the Executive Branch

Here’s a post likely only of interest to hard-core Legislation geeks.
Over the weekend, the NY Times issued a report which begins: The Justice Department has concluded that the Obama administration can lawfully pay the community group Acorn for services provided under contracts signed before Congress banned the government from providing money to the group.” The article links to this five-page opinion on the question written by David Barron of the Office of Legal Counsel.
This paragraph in the Times story caught my eye: “Moreover, [Barron] argued, requiring the government to cancel contracts with a specifically named entity — “including even in cases where performance has already been completed but payment has not been rendered” — would raise constitutional concerns best avoided by interpreting the law differently.”
Here is the constitutional avoidance paragraph in the opinion letter itself:

    Reading section 163 to prohibit payments to ACORN or its affiliates, subsidiaries, or allied organizations to satisfy a binding contractual obligation undertaken before enactment of section 163 would “undo a binding governmental contractual promise.” Cherokee Nation, 543 U.S. at 646. In accord with Cherokee Nation, the better reading of the section is therefore that it does not prohibit such payments. This reading of “provided to” is especially appropriate here because, consistent with the canon of constitutional avoidance, see, e.g., Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 483 U.S. 568, 575 (1988), it not only avoids abrogating binding governmental contractual promises but also avoids the particular constitutional concerns that may be presented by reading the statute, which applies to specific named entities, to abrogate such contracts, including even in cases where performance has already been completed but payment has not been rendered.

Barron probably reached the right result here, but I was struck by the reliance on the doctrine of constitutional avoidance (and not only because I’ve been doing some writing on the subject). Trevor Morrison, in his very important Columbia Law Review article, “Constitutional Avoidance and the Executive Branch,” uses the Bush Administration’s OLC opinions to make the case against the executive branch relying upon the doctrine of constitutional avoidance.
I’d love to know what Trevor thinks about this Obama Administration use of the avoidance doctrine, but I can’t ask him. He’s an associate White House counsel (though working on national security affairs).
I wonder if there are other Obama Administration uses of the avoidance doctrine.
UPDATE: To be clear (following a reader comment), the issue is not whether the executive branch makes avoidance arguments in briefs to the Supreme Court. It is whether the executive branch makes avoidance arguments in defense of its own actions. As Morrison explains in his abstract: “Executive branch actors regularly use the avoidance canon. Indeed, some of the most hotly debated episodes of executive branch statutory interpretation in recent years – including the initial torture memorandum issued by the Justice Department’s Office of Legal Counsel, the President’s signing statement regarding the McCain Amendment’s ban on the mistreatment of detainees, and the Justice Department’s defense of the National Security Agency’s warrantless wiretapping program – feature prominent reliance on the avoidance canon. Typically, such reliance is supported by citation to one or more Supreme Court cases. Yet those citations are rarely accompanied by any discussion of the values courts try to serve when they employ avoidance. Are those values specific to the federal judiciary – for example, facilitating judicial deference to legislative majorities – or do they reflect substantive commitments extending beyond the courts? Equally lacking is any sustained consideration of interpretive context: Does their particular institutional location and function enable executive actors to call upon sources of statutory meaning that are unavailable to courts, rendering rough tools like the avoidance canon unnecessary?”

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When Will We See an Opinion in Citizens United?

This weekend AP moved a story beginning: “For the first time under Chief Justice John Roberts, the Supreme Court failed to issue opinions before Thanksgiving in any of the cases that were argued in recent months.”
The article also noted that Citizens United, reargued in early September after no decision was reached last term, also has not yet been decided.
I had predicted an opinion in CU by mid-November, by looking at how much time it took to decide the 2003 McConnell case. That case was argued in early September as well, and an opinion issued in early December. McConnell, however, was a much more complicated case (measured by the number of issues the Court had to decide), so I figured I could shave a few weeks off the last timetable. I also expected the Court to move quickly because the statute vesting the Supreme Court with appellate jurisdiction of these appeals requires expedition of decision, and I thought the Court would want to decide things that could affect the 2010 election quickly.
Now we are into December, and unless an opinion issues by Dec. 9 (the last day of arguments in December), we might not see the opinion until 2010. [Correction: The Court will issue orders on Dec. 14, and it could issue an opinion or more on that day as well.]
What’s taking so long? I have no inside information, and I don’t think that the fact that it is taking so long necessarily indicates that the case will be a blockbuster. That’s one possibility—a decision overturning Austin, with bitter dissents–but there are other possibilities as well. The Chief could write a narrow opinion as in WRTL or NAMUDNO, and Justice Scalia could be crafting another “faux judicial restraint” concurrence. Justice Sotomayor could be writing a dissenting opinion arguing that the Court took a wrong turn a century ago in recognizing constitutional rights of corporations (something she mused about at oral argument). There are many possibilities. We’ll just have to wait and see.
And I think it is really too early to say what a post-CU world might look like, and what might be constitutional post CU (such as the FAIR Elections Now Act). There will be plenty of time to parse the decision….once we have an opinion to parse.

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