In Praise of Statutes (and Statues)

Today is the first day of winter quarter (or Winter Quarter, depending on how you feel about it) here at the University of Washington School of Law. For my 1L Legal Analysis, Research, and Writing class, that means we turn from common law (which we covered in the fall) to statutes. I really like this quarter, and I start the class with a general lecture on how to think about statutes. I figured some of that might be interesting to y’all out there on the interwebs, so here goes….

I think it’s easy to underestimate the difference between (1) reading and understanding case law and (2) reading and understanding statutes, especially for first-year students. During the entire fall quarter, my class discusses common law doctrines, reads cases, argues about holdings, makes predictions based on dicta, etc. When reading a case, determining the holding is partially based on what the court says, but much of it is based on the reader’s own reading between the lines. Sure, the court said any family member could recover, but that case involved a biological father-daughter relationship. Same result for a great-grandmother? What if they lived together? What about a step-father? What if they are estranged? You know the game. Testing a holding—narrowing it down to the relevant facts—is a huge part of the first quarter. And it takes a long time for many students to get into that mode of thinking.

And then—record scratch—we introduce statutes. The familiar “Okay, but what does that really mean?” method of analysis doesn’t quite work on statutes. Students comfortable divining and then applying abstract principles from a series of cases are in for a rude awakening when attempting to apply that divination skill to a statute. “Yes, the statute says ‘prevailing party,’ but what that really means is….” Nope. It means “prevailing party.” Words matter for statutes in a way they don’t for cases.

I like to illustrate the point with two different statues (yes, statues, not statutes). Here’s a familiar one:

https://commons.wikimedia.org/wiki/File:Cudrefin-justice.jpg

Fontaine de la Justice via Wikimedia Commons

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The Chief Justice’s Brand of Textualism

If you’re reading this, you already know that the Supreme Court issued King v. Burwell today and that it was a 6-3 win for the government, with Chief Justice Roberts writing for the majority. The Chief’s opinion focused on the text, context, structure, and “scheme” of the statute in concluding that the phrase “established by the State under section 1311” includes exchanges established by the federal government under section 1321. Rick Hasen writes that this aspect of the Court’s opinion “rehabilitates a focus on the law’s purpose as a touchstone to interpretation, over a rigid and formalistic textualism that ignores real-world consequences.”

I agree generally with this sentiment. King shows that textualism can be flexible. But I want to use this post to put a bit of a finer point on it. Continue reading

ICYMI: King v. Burwell Panel at UW School of Law

The “upcoming” King v. Burwell event at UW School of Law is no longer upcoming. But if you missed it, here’s a brief write-up and a YouTube video of the event. It starts off with Prof. Sallie Sanford giving a practical overview of what we’re talking about when we talk about an “exchange.” Then I provide a quick summary of the relevant legal issues. Then Profs. Scott Schumacher and Kathryn Watts provide some perspective from the tax law and administrative law perspectives, respectively.

The event was meant for a general audience, so the discussion is not as in-depth as other King v. Burwell “debates” you might have seen. And it’s pretty quick; we wanted to save plenty of time for Q&A (which is not posted). But it was a fun and informative event, so give it a watch! Tell your friends! It’s better than Cats!

 

Justice Kennedy and a Functioning Congress

Earlier this week Justice Kennedy and Justice Breyer testified before a House Committee. I’m sure they made a lot of news with their statements, but obviously the news that caught my eye was related to King v. Burwell—the now-pending case involving the Affordable Care Act.

For example, Josh Blackman thinks that this portion of Justice Kennedy’s testimony might offer a clue into the Justice’s thinking on King:

We routinely decide cases involving federal statutes and we say, well, if this is wrong, the Congress will fix it. But then we hear that Congress can’t pass a bill one way or the other. That there is gridlock. Some people say that should affect the way we interpret the statutes. That seems to me a wrong proposition. We have to assume that we have three fully functioning branches of the government.

Why is this relevant? Well, according to Prof. Blackman this statement “bears on the issue of King v. Burwell” at least in part because Kennedy is saying “that ‘gridlock’ should not impact whether the Court invalidates statutes.” As Prof. Blackman notes, during the King argument the Solicitor General “told the Court that ‘this Congress’ would not fix the ACA if the Court” ruled against the government. Moreover, Prof. Blackman draws a comparison between the potential “gridlock” point in King v. Burwell and a somewhat similar point that arose following Shelby County, which is that “the Court can give Congress a task they know they won’t do.”

I’m not in the business of reading tea leaves, so I’m not going to discuss whether Justice Kennedy’s statements actually have any predictive value for the decision in King v. Burwell. I am, however, in the business of writing about King v. Burwell, so I have two responses to Prof. Blackman’s post. Continue reading

King v. Burwell Oral Argument: Instant Reaction to Third-Hand Rumors

Unfortunately, the Supreme Court does not live-stream its arguments, so those of us not fortunate enough to be in attendance have to base our initial thoughts on reporting from folks at SCOTUSblog who scribble notes and run in and out of the courtroom. But it’s better than nothing! Some quick thoughts:

Doge v. Burwell

1. Context vs. Isolationism — It’s difficult (impossible?) to get a holistic sense of the argument from just following the live-blog reporting, but most of the questioning seemed to focus on the context and structure of the statute as a whole. Obviously, both sides rely on context, but framing the case as a question of context—as opposed to a question about an isolated phrase which is then tested against context—is likely good news for the government. Continue reading

Textualism Is Nothing Either Good or Bad, But Thinking Makes It So

In advance of the King v. Burwell oral argument, Jonathan Adler has an interesting post today on the fight over textualism in the case. Both sides claim the mantle of textualism; Prof. Adler argues that the challengers are the good guys in that fight. I disagree, but that’s not really the point of this post. Instead of arguing about who is better at textualism, I think the more relevant disagreement between the parties is the framing of the case: What is the question that textualism (or statutory interpretation more generally) is meant to answer in this case?

Maybe if Yorick had better health coverage . . . .

Maybe if Yorick had better health coverage . . . .

The challengers, Prof. Adler included, want to focus on the meaning of the phrase “established by the State.” It’s not hard to see why. Arguing “State means State!” has an obvious rhetorical appeal. And who could claim that “State” doesn’t mean state? Continue reading

The Variousness of Federal Law, Part II (Updated)

In response to my post yesterday about a state court’s freedom in filling “gaps” in federal law, Prof. Dorf made a kind and interesting comment on his own blog:

I think that the forum court does not ultimately have the latitude to apply its own law about how to ascertain the foreign state’s law, although in many cases that won’t be a constraint because the foreign state won’t have law on how to ascertain its own law.

Let me illustrate with a further twist. Suppose that in your hypo WA had a state constitutional rule that said that “authoritative advisory opinions of the State Attorney General on the meaning of civil rights laws shall be treated as binding on the courts unless unreasonable.” Now suppose that the NY courts, if applying their own approach, would not give any deference to the WA AG’s construction of WA law but instead would predict what the WA SCt would do based on its past precedents. Shouldn’t it nonetheless treat the AG’s advisory opinions as conclusive if reasonable? And if so, isn’t that because the foreign state’s methods of interpretation are bound up in the foreign state’s laws?

If I’m right about that, then maybe you’re right that I don’t need the Supremacy Clause for the parallel conclusion in the state/federal case.

A few thoughts in response to Prof. Dorf’s new hypothetical: Continue reading