BROOKLYN
LAW REVIEW
VOLUME 76
SPRING 2011
NUMBER 3
TABLE OF CONTENTS
SYMPOSIUM: STATUTORY INTERPRETATION:
HOW MUCH WORK DOES LANGUAGE DO?
Confirmatory Legislative History
James J. Brudney
901
Linda D. Jellum
917
Anita S. Krishnakumar
941
But That Is Absurd!: Why Specific
Absurdity Undermines Textualism
Passive-Voice References in
Statutory Interpretation
Penalty Default Interpretive Canons
The Real Politik of Writing and
Reading Statutes
Statutory Meanings: Deriving
Interpretive Principles from a
Theory of Communication and
Lawmaking
Two Kinds of Plain Meaning
Text or Consequences?
Rebecca M. Kysar
953
Eric Lane
967
Mathew D. McCubbins
Daniel B. Rodriguez
979
Victoria F. Nourse
997
Jane S. Schacter 1007
Naïve Textualism in Patent Law
Jonathan R. Siegel 1019
Statutory Interpretation, Morality,
and the Text
Lawrence M. Solan 1033
NOTES
The Rules of Consumption: The
Promise and Peril of Federal
Emulation of the Big Apple’s
Food Laws
Victoria Bettina Browne 1049
The International Trade Commission
and Changes to United States
Patent Law
Robert E. Bugg 1093
More Gore: Video Game Violence and
the Technology of the Future
Eric T. Gerson 1121
Debt Settlement: A Beast of Burden
Without Any Reins
Andrew T. Schwenk 1165
Gubernatorial Discretion Not Advised:
The Case for Special Elections to Fill
Senate Vacancies
Ari L. Tran 1201
ARTICLES
Confirmatory Legislative History
*
James J. Brudney†
INTRODUCTION
Textualists and intentionalists regularly lock horns over
the proper approach to construing statutory language regarded
as inconclusive. The interpretive debate seems less contentious,
however, when the words of the law are deemed clear. There
may be reasonable disagreement as to whether the text at issue
in a particular controversy has a plain meaning, but if it does
then that meaning arguably preempts further inquiry. Since
1990, Supreme Court majority opinions are replete with
declarations such as: “Given [a] straightforward statutory
command, there is no reason to resort to legislative history”; 1 or
“we do not resort to legislative history to cloud a statutory text
that is clear”;2 or “[w]hen the words of a statute are
unambiguous . . . this first canon is also the last: ‘judicial
inquiry is complete.’”3
Yet despite these ringing statements, the Court in fact
often departs from its “first canon” by relying on legislative
history to confirm or reinforce what it already has concluded is
the plain meaning of statutory text. On numerous occasions
*
© 2011 James J. Brudney. All rights reserved.
Newton D. Baker-Baker & Hostetler Chair in Law, The Ohio State
University Moritz College of Law, and Visiting Professor of Law, Fordham University
School of Law, Fall 2010. I am grateful to Larry Baum and Larry Solan for thoughtful
comments on this draft, to Jimmie Friday, Randy Hart, and Karin Johnsrud for
valuable research assistance, and to Jen Pursell for fine secretarial support.
1
United States v. Gonzalez, 520 U.S. 1, 6 (1997).
2
Ratzlaf v. United States, 510 U.S. 135, 147-48 (1994); see also Circuit City
Stores, Inc. v. Adams, 532 U.S. 105, 119 (2001) (quoting Ratzlaf with approval).
3
Conn. Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992) (quoting Rubin v.
United States, 449 U.S. 424, 430 (1981)).
†
901
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since 2006, the Roberts Court has invoked legislative history as
a confirmatory asset. Six of these majorities, including four
cases decided during the 2009 term, have drawn sharp rebukes
from Justice Scalia.4 Beyond expressing his general hostility
toward legislative history, Justice Scalia has criticized the
confirmatory use of legislative record evidence as incentivizing
wasteful research by lawyers.5 He discounts such reliance as a
misleading makeweight that, although never the real reason
for a court’s decision, has disturbingly antidemocratic
implications with respect to the role of judges.6
This essay takes issue with Justice Scalia’s view of
confirmatory legislative history. It maintains that persistent
judicial reliance on such history reflects important shortcomings
in the textualist approach. When courts move beyond the
presumptively clear meaning of statutory language, they
recognize—even if implicitly—that assertions of clarity can too
often serve as either a mirage or a refuge. Clarity may be a
mirage because apparently precise words or phrases often give
rise to conflicting “plain meanings,” and also because apparently
assured readers of those words or phrases are conditioned to
perceive clarity based on their own specialized training,
background, and level of self-confidence. Assertions of clarity
may serve as a refuge in that they obviate the need for judges to
provide more complete explanations for their decisions. This
aspiration for completeness, although not embraced by Justice
Scalia, is important to many other judges as they seek to explain
adjudicative resolutions before the diverse audiences to whom
they are responsive and responsible.
4
See, e.g., Samantar v. Yousuf, 130 S. Ct. 2278, 2287, 2289 (2010) (Stevens,
J.); id. at 2293-94 (Scalia, J., concurring); Carr v. United States, 130 S. Ct. 2229, 224142 (2010) (Sotomayor, J.); id. at 2242 (Scalia, J., concurring); Jerman v. Carlisle,
McNellie, Rini, Kramer & Ulrich LPA, 130 S. Ct. 1605, 1615-17 (2010) (Sotomayor, J.);
id. at 1626-28 (Scalia, J., concurring); Milavetz, Gallop & Milavetz, P.A. v. United
States, 130 S. Ct. 1324, 1332 (2010) (Sotomayor, J.); id. at 1341-42 (Scalia, J.,
concurring); United States v. Ressam, 553 U.S. 272, 275-77 (2008) (Stevens, J.); id. at
277 (Thomas & Scalia, JJ., concurring); Zedner v. United States, 547 U.S. 489, 500-01
(2006) (Alito, J.); id. at 509-11 (Scalia, J., concurring). For additional recent majority
opinions relying on legislative history to confirm or reinforce textual plain meaning, see
Harbison v. Bell, 129 S. Ct. 1481, 1485-90 (2009); Scheidler v. Nat’l Org. for Women,
Inc., 547 U.S. 9, 16-20 (2006); and Small v. United States, 544 U.S. 385, 388-93 (2005).
5
See, e.g., Jerman, 130 S. Ct. at 1629 (Scalia, J., concurring); Milavetz, 130
S. Ct. at 1342 (Scalia, J., concurring); Zedner, 547 U.S. at 510 (Scalia, J, concurring).
6
See, e.g., Samantar, 130 S. Ct. at 2293 (Scalia, J., concurring); Carr, 130 S.
Ct. at 2242 (Scalia, J., concurring); Jerman, 130 S. Ct. at 1628 (Scalia, J., concurring);
Milavetz, 130 S. Ct. at 1342 (Scalia, J., concurring); United States v. Taylor, 487 U.S.
326, 344-45 (1988) (Scalia, J., concurring); INS v. Cardoza-Fonseca, 480 U.S. 421, 45253 (1987) (Scalia, J., concurring).
2011]
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903
Part I reviews the use of confirmatory legislative history
and identifies Justice Scalia’s objections. Part II explains why
judges continue to rely on such history, and how that reliance
relates to the inadequacies of an overly language-based
approach to statutory interpretation.
I.
CRITICIZING CONFIRMATORY HISTORY
The Court’s use of legislative history to corroborate that
statutory text means what it appears to say is not a recent
development. Writing in the early 1980s, Judge Patricia Wald
cited numerous decisions from the 1981 term in which the
majority analyzed legislative record materials for confirmatory
purposes.7 As far back as the 1920s, Justice Holmes opined that
the so-called plain meaning rule was subject to the gloss of
congressional intent.8 In the late 1970s and early 1980s, some
judges and legal academics expressed concern that legislative
history might be surpassing statutory language as the
foundational interpretive asset.9 The rise of textualism,
consistently championed by Justice Scalia during his twentyfive years on the Court, has curtailed that trend and restored
the primacy of enacted text.
Primacy, however, need not entail exclusivity. Justice
Scalia’s initial barrage of separate opinions challenging the
Court’s reliance on legislative history10 included an insistence
that legislative materials ought to never be invoked to reinforce
7
See Patricia M. Wald, Some Observations on the Use of Legislative History
in the 1981 Supreme Court Term, 68 IOWA L. REV. 195, 197-99 (1983) (discussing nine
examples from a single term).
8
Bos. Sand & Gravel Co. v. United States, 278 U.S. 41, 48 (1928) (“It is said
that when the meaning of language is plain we are not to resort to evidence in order to
raise doubts. That is rather an axiom of experience than a rule of law. . . . If Congress
has been accustomed to use a certain phrase with a more limited meaning than might
be attributed to it by common practice it would be arbitrary to refuse to consider that
fact when we come to interpret a statute.”).
9
See Wald, supra note 7, at 200-05 (discussing reservations about the
reliability, relevance, and thoroughness of various legislative materials); see also REED
DICKERSON, THE INTERPRETATION AND APPLICATION OF STATUTES 164 (1975) (referring
to “the Canadian gibe that in the United States whenever the legislative history is
ambiguous it is permissible to refer to the statute”).
10
See James J. Brudney & Corey Ditslear, Liberal Justices’ Reliance on
Legislative History: Principle, Strategy, and the Scalia Effect, 29 BERKELEY J. EMP. &
LAB. L. 117, 161 (2008) (discussing twelve Scalia concurrences and dissents written in
his first three terms).
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the plain meaning of text.11 Scalia continued to object to
confirmatory history during the Rehnquist Court years.12 His
rhetorical intensity—directed at a wide range of colleagues—
remains unabated in the Roberts era.13
From Justice Scalia’s vantage point, reliance on
legislative history to confirm plain meaning is unacceptable for
a number of reasons. Some of these reasons might fairly be
viewed as deriving from his core position that legislative
history should be altogether inadmissible as an interpretive
resource. Thus, Scalia criticizes confirmatory usage as a form of
“intellectual piling-on [that] has addictive consequences”
because it acculturates judges to believing that legislative
history is intrinsically reliable.14 Relatedly, he insists that such
usage gives rise to a slippery slope: once legislative history is
deemed relevant to confirm the clear meaning of text, it may be
considered relevant to question or even contradict that clear
meaning, “thus rendering what is plain ambiguous.”15 Scalia
also condemns reliance on confirmatory references, as he does
reliance in general, for more pragmatic reasons: it effectively
prescribes “wasteful over-lawyering” at clients’ expense “merely
for the sake of completeness.”16
Of particular interest are two other Scalia criticisms
that identify potentially distinctive problems with the
confirmatory approach. One involves its allegedly superfluous
nature. If the text is clear on its face, then confirmatory
legislative history is by definition duplicative and hence
entirely unnecessary.17 This redundant role exemplifies how
“legislative history is almost never the real reason for the
11
See, e.g., United States v. Stuart, 489 U.S. 353, 371-77 (1989) (Scalia, J.,
concurring); Taylor, 487 U.S. at 344-45 (Scalia, J., concurring); Cardoza-Fonseca, 480
U.S. at 452-53 (Scalia, J., concurring).
12
See, e.g., Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 267
(2004) (Scalia, J., concurring); Bank One Chi. v. Midwest Bank & Trust Co., 516 U.S.
264, 279-83 (1996) (Scalia, J., concurring).
13
The six Roberts-era decisions cited supra note 4 were authored by Justices
Alito, Stevens, and Sotomayor. The five earlier decisions cited supra notes 11-12 were
authored by Justices Brennan, Blackmun, Stevens, and Ginsburg.
14
Zedner v. United States, 547 U.S. 489, 510 (2006) (Scalia, J., concurring).
15
Id. at 510-11; see also Taylor, 487 U.S. at 344 (Scalia, J., concurring).
16
Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, LPA, 130 S. Ct. 1605,
1627 (2010) (Scalia, J., concurring); see also Milavetz, Gallop & Milavetz, P.A. v. United
States, 130 S. Ct. 1324, 1342 (2010) (Scalia, J., concurring).
17
See, e.g., Intel Corp., 524 U.S. at 267 (Scalia, J., concurring); Bank One, 516
U.S. at 282-83 (Scalia, J., concurring).
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CONFIRMATORY LEGISLATIVE HISTORY
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Court’s decision—and make-weights do not deserve a lot of the
Court’s time.”18
The second notable criticism involves the allegedly
antidemocratic aspects of using confirmatory history. Scalia
expressed this concern early in his tenure on the Court.
Emphasizing that the role of judges is to “interpret laws rather
than reconstruct legislators’ intentions,” he reasoned that
where the language of the laws is clear, courts are not free to
consider unenacted intent as a possible supplement or
replacement.19 If courts allow for the possibility that legislative
history is capable of altering plain meaning, they foster a
lawmaking culture in which members of Congress understand
that they can avoid the arduous work of negotiating and
enacting a floor amendment for the simpler task of
promulgating a floor colloquy.20 To encourage such efforts by
blessing them as potentially probative undermines our
constitutional democracy. Judges who denigrate or discount the
challenge of securing approval for statutory language from both
chambers and the President are effectively promoting a lack of
political accountability for our elected officials.21
Each of these two criticisms is rooted in Justice Scalia’s
commitment to a semantic approach when interpreting
statutes. His view that ordinary meaning, supplemented by
structural and language canons, constitutes “the real reason”
for judicial decisions reflects his confidence that there is a
single solution to interpretive controversies and that languagebased analysis is all conscientious judges need in order to
discover it.22 Likewise, Scalia’s objection to the possibility that
legislative history is available to confirm ordinary meaning
reflects his conviction that judges undermine their neutral,
apolitical responsibility as interpreters of Congress’s textual
18
Samantar v. Yousuf, 130 S. Ct. 2278, 2294 (2010) (Scalia, J., concurring)
(emphasis added); see also Jerman, 130 S. Ct. at 1628 (Scalia, J., concurring) (“It is
almost invariably the case that our opinions benefit not at all from the make-weight
use of legislative history.”).
19
INS v. Cardoza-Fonseca, 480 U.S. 452, 452-53 (1987) (Scalia, J., concurring).
20
See Taylor, 487 U.S. at 345 (Scalia, J., concurring); see generally Zedner v.
United States, 547 U.S. 489, 509-11 (2006) (Scalia, J., concurring).
21
See Hon. Alex Kozinski, Should Reading Legislative History be an
Impeachable Offense?, 31 SUFFOLK U. L. REV. 807, 808 (1998).
22
Samantar, 130 S. Ct. at 2294 (Scalia, J., concurring); see also Chisom v.
Roemer, 501 U.S. 380, 404 (1991) (Scalia, J., dissenting) (describing his approach to
construing statutes: “first, find the ordinary meaning of the language in its textual
context; and second, using established canons of construction, ask whether there is any
clear indication that some permissible meaning other than the ordinary one applies”).
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work product by consulting the politically generated record of
Congress’s enactment process.
II.
JUSTIFYING CONFIRMATORY HISTORY
A core premise of Justice Scalia’s textualist philosophy
is that there is almost invariably a single plain meaning for
disputed statutory language. He does not expect that this one
exact meaning will necessarily be obvious or readily perceived,
but he is prepared to work hard to avoid ambiguity. Toward
that end, Scalia employs a diverse semantic toolkit for his
statutory opinions—dictionary definitions, identical words or
phrases as previously applied in other laws, and multiple
canons related to the grammar and structure of statutory text.
He invokes these tools to identify a reading that is sufficiently
clear so as to disqualify other plausible interpretations.23 An
implicit assumption in Justice Scalia’s “hard textualist”
approach is that when these semantic tools establish lack of
ambiguity, the resultant construction is correct—not simply
preferred on the basis of shrewd inferences or educated
guesses.24 The correct construction in turn precludes reference
to the nonsemantic contextual source of legislative history.
There are sound reasons why so many judges and scholars do
not share Justice Scalia’s semantically based confidence, as
discussed in the sections that follow.
A.
Concerns Regarding the Conclusiveness of Plain Meaning
Many judges and scholars are not convinced that
statutory meaning can be regularly rendered singularly correct
based only on language-related considerations.25 There are, of
course, the proverbial easy cases, but the majority of those are
not litigated to the circuit court level, much less accorded
discretionary review by the Supreme Court. When statutory
23
See, e.g., MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 224-34 (1994);
Mertens v. Hewitt Assocs., 508 U.S. 248, 251-63 (1993); W. Va. Univ. Hosps., Inc. v.
Casey, 499 U.S. 83, 86-92, 97-99 (1991).
24
Cf. Dewsnup v. Timm, 502 U.S. 410, 435 (1992) (Scalia, J., dissenting)
(criticizing the majority for disregarding well-settled principles of statutory
construction by pronouncing “a seemingly clear provision . . . ‘ambiguous’ sans textual
and structural analysis”).
25
See generally JOHN F. MANNING & MATTHEW C. STEPHENSON, LEGISLATION
AND REGULATION 111-12, 232-33 (2010) (discussing lack of agreement among judges
and scholars regarding what exactly qualifies as unambiguous text and which
ambiguity-resolving tools ought to be given priority).
2011]
CONFIRMATORY LEGISLATIVE HISTORY
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disputes reach the Court, the justices often regard the
contested text as allowing for two distinct yet plausible plain
meanings. Some justices may insist that the language is so
clear it can only be read one way, while others point to a
comparably tenable alternative reading of the same language—
adding that their assertion of plain meaning is supported or
confirmed by accompanying legislative history.26
The existence of more than one plausible plain meaning
for contested text is a function of several factors. On a semantic
level, Lawrence Solan has pointed to the tension between a
word’s ordinary usage, which is what it prototypically signifies,
and a word’s definitional usage, which includes a broader range
of options.27 Because members of Congress may well have both
prototypical and definitional aspects in mind, judges cannot
readily “assume that any instance of a statutory word that
strays from the prototype is necessarily outside a statute’s
scope.”28 Prior to 1980, the justices often relied on
straightforward introspection to discover ordinary meaning.29
Since Justice Scalia’s arrival, however, the Court tends to
identify ordinary meaning by invoking multiple specific
resources, including dictionaries as well as similar language
from the same or other statutes.30 This expansion of sources has
led to increased divisiveness, particularly when the justices
26
See, e.g., Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 111-19, 133-40
(2001) (Justices Kennedy and Souter advance competing semantic readings of “engaged
in interstate commerce,” and Souter invokes legislative history for additional support);
Sutton v. United Air Lines, Inc., 527 U.S. 471, 482-87, 495-501 (1999) (Justices
O’Connor and Stevens advance competing semantic readings of “physical or mental
impairment,” and Stevens invokes legislative history for additional support); Mertens,
508 U.S. at 255-59, 263-73 (Justices Scalia and White advance competing semantic
readings of “equitable relief,” and White invokes legislative history for additional
support); FBI v. Abramson, 456 U.S. 615, 623-29, 633-39 (1982) (Justices White and
O’Connor advance competing semantic readings of “records compiled for law
enforcement purposes,” and White invokes legislative history for additional support).
27
See Lawrence M. Solan, The New Textualists’ New Text, 38 LOY. L.A. L.
REV. 2027, 2042-46 (2005). Justice Scalia has shown sensitivity to this distinction at
times as well. See, e.g., Smith v. United States, 508 U.S. 223, 242 (1993) (“The Court
does not appear to grasp the distinction between how a word can be used and how it
ordinarily is used.”) (Scalia, J., dissenting).
28
Solan, supra note 27, at 2046. See, e.g., Smith, 508 U.S. at 228-33, 241-44
(presenting disagreement over prototypical versus definitional meaning of “use”);
Chisom v. Roemer, 501 U.S. 380, 395-402, 410-13 (1991) (presenting disagreement over
prototypical versus definitional meaning of “representative”).
29
See, e.g., Greyhound Corp. v. Mount Hood Stages, Inc., 437 U.S. 322, 33031 (1978); Tenn. Valley Auth. v. Hill, 437 U.S. 153, 172-74 (1978); Burns v. Alcala, 420
U.S. 575, 580-81 (1975).
30
See Solan, supra note 27, at 2054-55 (reporting on 122 cases since 1817
that relied on the ordinary meaning rule, including forty-seven decided since 1980).
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engage in recurrent dictionary wars over what constitutes
ordinary meaning.31
Another source of disagreement about plain meaning stems
from the indefinite nature of important statutory terms. Congress’s
use of words like “reasonable,” “recognized,” “interfere,” “restrain,”
or “modify”32 reflects its interest in flexibility, anticipating that
citizens, agencies, and courts will adapt a statute’s application in
light of altered or novel circumstances. This in turn raises the
possibility that a prototypical or definitional meaning may give rise
to plausible conflicting applications when the word is considered in
its statutory setting. To take one example, the Federal
Communications Commission Act authorizes the Federal
Communications Commission (FCC) to “modify” any tariff-filing
requirement; the issue in MCI Telecommunications Corp. v. AT &
T Co.33 was whether the commission’s decision to make tariff filing
optional for nondominant long distance carriers was a valid
exercise of this authority. Assuming that the plain meaning of
“modify” is minor or incremental change, as opposed to change that
is more basic or important,34 a court still must decide whether the
FCC’s detariffing initiative reflects a minor or major shift in its
requirements. This choice in turn implicates two competing
readings of the policies underlying Congress’s rate-filing
requirement.35
Apart from divergent understandings as to what
constitutes the plain meaning of a statutory term or phrase,
31
See, e.g., Muscarello v. United States, 524 U.S. 125 (1998); MCI Telecomms.
Corp. v. AT&T Co., 512 U.S. 218 (1994). See generally Samuel A. Thumma & Jeffrey L.
Kirchmeier, The Lexicon Has Become a Fortress: The United States Supreme Court’s Use
of Dictionaries, 47 BUFF. L. REV. 227 (1999) (demonstrating subjective and highly
variable use of dictionaries); see also William W. Buzbee, The One-Congress Fiction in
Statutory Interpretation, 149 U. PA. L. REV. 171, 234-40 (2000) (contending that reliance
on use of same term in other statutes is prone to judicial manipulation).
32
See, e.g., 42 U.S.C. § 1988 (2006) (authorizing award of reasonable
attorney’s fees to prevailing plaintiffs in civil rights cases); 29 U.S.C. § 654(a)(1) (2006)
(requiring employers to provide a place of employment “free from recognized hazards”
that are likely to result in death or serious physical harm); 29 U.S.C. § 158(a)(1) (2006)
(prohibiting employers from interfering with or restraining employees in the exercise of
rights to engage in concerted activities such as organizing and collective bargaining);
47 U.S.C. § 203(b) (2006) (authorizing Federal Communications Commission to modify
tariff-filing requirements for communications common carriers).
33
512 U.S. 218 (1994).
34
But cf. id. at 225-28, 240-42 (presenting disagreement between Justices
Scalia and Stevens as to whether definition of “modify” covers only minor shift from
status quo ante or also applies to more substantial adjustment).
35
See id. at 229-34, 242-45 (presenting disagreement between Justices Scalia
and Stevens over whether change in rate-filing requirement should be considered
against backdrop of carriers’ obligations to file (a major shift) or against backdrop of
policies behind rate-filing requirements (a minor shift)).
2011]
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909
based on semantic or policy considerations, judges also differ in
doctrinal terms about how to construct plain meaning as a
predicate for judicial review. These differences—often framed
as disagreements over identifying and weighing the factors
that contribute to ambiguity—further complicate the task of
determining a single plain meaning. Thus, for instance, when
the Court considers the correct application of the Rule of Lenity
to criminal statutes, some justices contend that a statutory
term or phrase is not clear unless the government uses “text,
structure, and history . . . to establish that [its] position is
unambiguously correct.”36 Others maintain that a text is clear
for Lenity purposes unless it suffers from “grievous ambiguity
or uncertainty,” meaning that—based on text, structure, and
history—the Court can make “no more than a guess as to what
Congress intended.”37 Similarly, when deciding whether
Congress has directly and clearly addressed an issue for
purposes of applying stage one of the Chevron test, the justices
disagree as to whether legislative history may be considered
along with text and structure in order to ascertain clarity.38
Finally, those who interpret or apply statutory text
bring to the interpretive enterprise both individual specialized
backgrounds and distinctive degrees of self-assurance.
Government bureaucrats who receive formal training or
extensive ad hoc instruction in the intricacies of a complex
statutory scheme may believe they have little discretion
because the meaning of key terms or phrases seems entirely
clear to them, even if ordinary citizens might not perceive the
same clarity.39 Similarly, judges rely on a range of “objective”
interpretive assets as part of their effort to avoid charges of
subjective decision making; framing judicial decisions as
“inevitable” promotes the vision of a coherent and continuous
36
Muscarello, 524 U.S. at 148 (Ginsburg, J., dissenting); see also United
States v. Granderson, 511 U.S. 39, 54 (1994) (Ginsburg, J.); United States v. Bass, 404
U.S. 336, 347-49 (1971) (Marshall, J.).
37
Muscarello, 524 U.S. at 138-39 (Breyer, J.) (internal citations omitted); see
also United States v. Wells, 519 U.S. 482, 499 (1997) (internal citations omitted).
38
INS v. Cardoza-Fonseca, 480 U.S. 421, 432-37, 441-49 (1987) (Stevens, J.);
id. at 452-54 (Scalia, J., concurring).
39
See Edward L. Rubin, Discretion and Its Discontents, 72 CHI.-KENT L. REV.
1299, 1328-33 (1997) (discussing different mechanisms used by German and American
bank regulators and the inclination of many regulators to deny that they are exercising
discretion when applying statutory text).
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body of law.40 Although some judges candidly acknowledge that
interpreting statutes involves an irreducible element of
discretion or even intuition,41 they express varying degrees of
confidence in the inevitable correctness of justifications
accompanying their holdings. Thus, Justice Scalia is famously
bullish about being able to find the single right answer in text
alone.42 By contrast, Justice Ginsburg looks to legislative
history to help complete her interpretive task, albeit with an
attitude of “hopeful skepticism.”43 And Justice Breyer, whose
background includes experience as a Senate committee counsel,
believes courts must never abandon the effort of seeking to
identify legislative intent even though that effort can be at
times quite arduous.44
Underlying these divergent perspectives about statutory
language—and the possible impact of policy considerations and
interpreter backgrounds with respect to such language—is the
reality that statutes are not disembodied textual products but
rather are part of a purposive communicative process. Like
other forms of purposive communication, their meaning is a
function of participants’ intentions as well as dictionary
definitions and the semantic properties of sentences.45 Even
Justice Scalia has been known to invoke the concept of
congressional intent in some judicial opinions, notwithstanding
the dismissive approach he adopts in extrajudicial settings.46
40
See generally Dan Simon, A Psychological Model of Judicial Decision
Making, 30 RUTGERS L.J. 1, 14-17 (1998); William N. Eskridge Jr. & Philip P. Frickey,
Statutory Interpretation as Practical Reasoning, 42 STAN. L. REV. 321, 378-79 (1990).
41
See, e.g., RICHARD A. POSNER, HOW JUDGES THINK 107-08 (2008); Judith S.
Kaye, The Human Dimension in Appellate Judging: A Brief Reflection on a Timeless
Concern, 73 CORNELL L. REV. 1004, 1006-07 (1988); Patricia Wald, Thoughts on
Decisionmaking, 87 W. VA. L. REV. 1, 12 (1984).
42
See Antonin Scalia, Judicial Deference to Administrative Interpretations of
Law, 1989 DUKE L.J. 511, 521 (1989) (“One who finds more often (as I do) that the
meaning of a statute is apparent from its text and from its relationship with other
laws, thereby finds less often that the triggering requirement for Chevron deference
exists. It is thus relatively rare that Chevron will require me to accept an
interpretation which, though reasonable, I would not personally adopt.”).
43
See Nomination of Ruth Bader Ginsburg, To Be Associate Justice of the
Supreme Court of the United States, Hearings Before the S. Comm. on the Judiciary,
103d Cong. 224 (1993).
44
STEPHEN BREYER, MAKING OUR DEMOCRACY WORK: A JUDGE’S VIEW 100 (2010).
45
See Cheryl Boudreau et al., What Statutes Mean: Interpretive Lessons from
Positive Theories of Communication and Legislation, 44 SAN DIEGO L. REV. 957, 961-71 (2007).
46
Compare ANTONIN SCALIA, A MATTER OF INTERPRETATION 16-17 (Amy
Gutmann ed., 1997) (rejecting as incompatible with fair or democratic government “to
have the meaning of a law determined by what the lawgiver meant, rather than by
what the lawgiver promulgated”), with Sullivan v. Everhart, 494 U.S. 83, 90 (1990)
(Scalia, J.) (invoking what “Congress had in mind”), Green v. Bock Laundry Mach. Co.,
2011]
CONFIRMATORY LEGISLATIVE HISTORY
911
In contrast to Justice Scalia, however, judges who
instinctively look beyond plain meaning for reassurance or
confirmation believe they are engaged in a more complete task
as interpreters. The search for completeness reflects a sense of
what many if not most judges regard as a properly responsive
and responsible role.
B.
Concerns Regarding the Responsible Role of Judges
From the early days of the Supreme Court, justices have
observed that when “labour[ing] to discover the design of the
legislature, [a judge] seizes every thing from which aid can be
derived.”47 More recently, the Court has explained that in a
confirmatory setting “common sense suggests that inquiry
benefits from reviewing additional information rather than
ignoring it.”48 This judicial instinct to explore all potentially
relevant information is cross-cultural if not universal. In
Britain, even when the House of Lords prohibited courts from
consulting legislative history at all to aid in construing enacted
laws, there were distinguished jurists who confessed—in their
opinions and on the floor of Parliament—to peeking at the
legislative record evidence in search of further enlightenment.49
The quest for completeness when interpreting
presumptively clear text is in part a search for reassurance.
There is a lingering fear that in exceptional circumstances, “the
literal application of a statute will produce a result
demonstrably at odds with the intentions of its drafters . . . . [or
will] thwart the obvious purpose of the statute.”50 Judges are
prepared to examine and evaluate all available resources in an
effort to avoid error or injustice.
490 U.S. 504, 528 (1989) (Scalia, J., concurring) (same), and Holloway v. United States,
526 U.S. 1, 20 (1999) (Scalia, J., dissenting) (critical of majority decision as promoting a
result “so arbitrary that it is difficult to believe Congress intended it”). See generally
LAWRENCE M. SOLAN, THE LANGUAGE OF STATUTES: LAWS AND THEIR INTERPRETATION
102-04 (2010) (discussing Justice Scalia’s use of intentionalist talk in his opinions).
47
United States v. Fisher, 6 U.S. (2 Cranch) 358, 386 (1805) (Marshall, C.J.).
48
Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 611-12 n.4 (1991) (White,
J.,), cited with approval in Samantar v. Yousuf, 130 S. Ct. 2278, 2287 n.9 (2010).
49
See James J. Brudney, The Story of Pepper v. Hart: Examining Legislative
History Across the Pond, in STATUTORY INTERPRETATION STORIES 258, 262-63 (William
N. Eskridge Jr. et al., eds., 2011) (reporting remarks by Lord Denning in a 1979 Court
of Appeal opinion and by Lord Templeman during a 1989 debate in the House of
Lords). The House of Lords overruled its precedent in 1992 and has allowed courts to
consult legislative history since that time. See id. at 271-77.
50
Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982) (Rehnquist,
J.) (internal citations and quotation marks omitted).
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But the judicial pursuit of confirmatory evidence involves
more than concern over possible error. Judges are trained and
socialized to believe in the value of interpreting the law in a
skillful and impartial manner.51 Bracketing for present purposes
whether judges also derive satisfaction as interpreters from
promoting their own policy goals, it seems evident that “judges
who want the respect of practicing lawyers, legal academics, and
other judges have an incentive to be perceived as committed to
the law and skilled in its interpretation.”52
Invoking legislative history in a confirmatory setting is
likely to enhance a judge’s stature with numerous audiences.
To begin with, confirmatory discussion may be viewed as an
aspect of judicial accountability. The parties and their
attorneys—who may not agree with one another on the clarity
of text—present legislative-history arguments in an effort to
inform and persuade the court. When courts consider these
arguments as part of the written decision-making process, they
exhibit respect for attorneys’ efforts and in doing so attest to
the procedural neutrality of our judicial system. Judges who
cite legislative history in confirmatory contexts also express—
at least implicitly—that the parties’ arguments appropriately
contribute to the truth-seeking approach underlying our
competitive advocacy process.
In addition, consideration of confirmatory legislative
record evidence promotes transparency by making it clear to
fellow judges and other attorneys that the court has not ignored
or suppressed assertedly relevant interpretive factors. Without a
willingness to engage legislative history arguments, even in the
face of apparently clear text, judges risk sliding into more
conclusory and less deliberative thinking on appropriately
contested statutory matters.53 Justice Scalia belittles this quest
for completeness,54 but others embrace it to signal that judges
are acting responsibly by illuminating all plausible arguments
as an essential aspect of their reasoned decision making.
Further, the courts’ commitment to addressing
legislative history as a confirmatory asset provides guidance to
repeat litigants, notably the executive branch and interest
51
See LAWRENCE BAUM, JUDGES AND THEIR AUDIENCES 54 (2006).
Id. at 106.
53
See generally Ethan J. Lieb & Michael Serota, The Costs of Consensus in
Statutory Construction, 120 YALE L.J. ONLINE 47 (2010), http://www.yalelawjournal.org/
images/pdfs/900.pdf.
54
See supra text accompanying note 16.
52
2011]
CONFIRMATORY LEGISLATIVE HISTORY
913
groups that pursue or resist diverse regulatory agendas. It does
so by more fully integrating legislative history as a resource in
ongoing interpretive conversations between courts and these
repeat players. This kind of methodological completeness has
special value when one recognizes that legislative history may
serve distinct functions with respect to different subject areas
addressed by Congress. The executive branch must construe
and apply statutes that feature, inter alia, varying degrees of
semantic detail, technical complexity, ideological compromise,
and potential for constitutional controversy.55 Courts’ review
and evaluation of confirmatory history in these settings reflect
a willingness to help agencies and other regular litigants
navigate the diverse challenges they face when implementing
Congress’s instructions.
Finally, the courts’ use of legislative-record evidence for
confirmatory purposes respects the role of Congress in the
lawmaking process. Justice Scalia’s fear that this practice
incentivizes legislators to avoid the hard work of passing clear
text rests on a key misunderstanding of why legislative history
matters. Reports from permanent standing committees and
published verbatim records of floor debates are the result of
innovations in legislative design that were authorized under
Article I of our Constitution.56 From the early nineteenth
century onward, Congress has expanded its record-keeping
requirements as it developed more detailed procedures for
keeping itself informed during the lengthy and complex
processes by which bills are introduced, discussed, modified,
and approved.57 Members’ reliance on legislative history in
helping them understand the meaning of the text on which
they will vote remains robust today.58
55
See James J. Brudney & Corey Ditslear, The Warp and Woof of Statutory
Interpretation: Comparing Supreme Court Approaches in Tax Law and Workplace Law,
58 DUKE L.J. 1231, 1260-65, 1276-90 (2009) (differentiating between how legislative
history educates and persuades members of Congress in tax legislation versus
workplace laws, and how the Supreme Court has grasped and applied the distinctions);
Lieb & Serota, supra note 53, at 54-55 (discussing more restricted role for imputed
intent with respect to criminal law legislative history).
56
See James J. Brudney, Canon Shortfalls and the Virtues of Political
Branch Interpretive Assets, 98 CAL. L. REV. 1199, 1217-22 (2010) (discussing early
congressional commitment to publication over secrecy, and to organizing legislative
production through standing committees rather than select committees).
57
See id. (describing move to daily official publication of full floor proceedings
and regular internal distribution of standing committee reports, and explaining that
documents were produced for benefit of members themselves as well as broader public).
58
See Brudney & Ditslear, supra note 55, at 1292 & n.249 (referring to
multiple statements from republican and democratic legislators since the late 1980s).
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Given this constitutionally and historically grounded
tradition, courts’ consultation of legislative history to confirm
textual meaning signifies their readiness to invoke the same
materials that legislators have long used to inform and
persuade one another. Members and their staffs know the
difference between enacted text and explanatory colloquies;
further, they generally can be expected to know when these
colloquies exist primarily to clarify or amplify meaning rather
than to paper over disagreements. While there will be
anecdotal instances of legislative history being planted in an
effort to assuage wavering legislators or to sway gullible
judges, such instances are anecdotal and also readily
detectable.59 Justice Scalia’s belief that invoking confirmatory
legislative history will effectively invite members to excuse or
conceal failures to reach a textual bargain reflects insufficient
appreciation for how Congress operates and has operated for
nearly two centuries.60
CONCLUSION
This essay has explored the link between judges’ use of
legislative history for confirmatory purposes and certain limits
on how much work language alone can do in statutory
interpretation. Over the past quarter century, Justice Scalia
has played a formidable role in elevating discourse on the
importance of close textual analysis and the related utility of
language and structural canons. His contributions and
thinking have greatly enriched our understanding of the
interpretive enterprise, from a pragmatic and constitutional as
well as a semantic standpoint. At the same time, by framing
the debate over legislative history in terms of admissibility
rather than weight, Scalia and other textualists have shaped
59
See, e.g., Landgraf v. USI Film Prods., 511 U.S. 244, 262-63 (1994); see also
James J. Brudney, Congressional Commentary on Judicial Interpretations of Statutes:
Idle Chatter or Telling Response?, 93 MICH. L. REV. 1, 47-56 (1994) (rejecting arguments
for systemically discounting legislative history based on asserted manipulation by
committee staff or unrepresentative character of standing committees).
60
Relatedly, this argument also undervalues the role of purposive or
intentionalist readings of statutes in allowing voters to understand and respond at the
ballot box to the lawmaking results Congress meant to put in place. As Justice Breyer
has recently explained, when courts use canons, dictionaries, and grammar arguments
alone to determine a statute’s scope, meaning, or enforcement impact, it is far more
likely that voters will be responding to (and passing judgment on) meanings that
Congress never dreamed it was enacting—one result being a more flawed operation of
democratic accountability. See BREYER, supra note 44, at 94-96.
2011]
CONFIRMATORY LEGISLATIVE HISTORY
915
an interpretive conversation that too often has been
impoverished in its nature and focus.
During the mid 1980s, then-Judge Scalia invoked the
British “exclusionary rule” to help justify his emergent position
of rejecting any role for legislative history.61 The British courts,
however, have long abandoned the exclusionary approach;
instead, they recognize that legislative history statements are
at times useful as an interpretive resource, “perhaps especially
as a confirmatory aid.”62 British judges and legal academics now
grapple with the extent to which their legislative history may
illuminate the meaning of enacted text in particular types of
complex statutory settings.63 Similar challenging questions of
retail application rather than wholesale exclusion remain to be
explored in the U.S. context as well.64 Recognizing why judges
so often turn to legislative history for reinforcement and
assurance may encourage us to move beyond debates over
admissibility, and to address these types of interpretive
challenges at both judicial and academic levels.
61
See Judge Antonin Scalia, Speech on Use of Legislative History 1-2 (delivered
between fall 1985 and spring 1986 at various law schools) (transcript on file with author).
62
Harding v. Wealands, [2006] UKHL 32, [2006] 4 All. E.R. 1, 25 (Lord
Carswell). For discussion of other recent confirmatory uses by Britain’s highest court,
see Brudney, supra note 49, at 284.
63
See, e.g., Wilson v. First Cnty. Trust Ltd., [2003] UKHL 40, [2003] 4 All
E.R. 97 (discussing consultation of Hansard materials to help determine a statute’s
compatibility with European Convention of Human Rights); Regina v. Sec’y of State for
the Env’t ex parte Spath Holme Ltd., [2001] 1 All E.R. 195 (discussing relevance of
Hansard materials when considering scope of government’s discretionary powers
conferred by statute).
64
In addition to the differential role played by legislative history in different
subject area settings, discussed supra note 55 and accompanying text, courts and
scholars might consider (a) whether legislative history accompanying omnibus bills is
less suitable for judicial use because congressional deals on such a grand scale are far
more likely to be indecipherable; (b) whether legislative history should be presumed to
carry less weight where the law is administered primarily by a federal agency rather
than private parties; and (c) whether legislative history should be regarded as
presumptively more valuable for controversies involving apparent lack of foresight as
opposed to those arising from demonstrable failure to reach congressional consensus.
But That Is Absurd!
WHY SPECIFIC ABSURDITY UNDERMINES
TEXTUALISM
*
Linda D. Jellum†
INTRODUCTION
With 2010 being the twenty-fifth year since Justice
Scalia joined the Supreme Court and revived textualism,1 I
could not resist exploring and critiquing the absurdity
doctrine,2 a doctrine used by Justice Scalia and other
*
© 2011 Linda D. Jellum. All rights reserved.
Associate Professor of Law, Mercer University School of Law. I would like to
thank Lawrence Solan, Rebecca Kysar, and the Brooklyn Law Review for inviting me to
contribute to this symposium. I would also like to thank Shelia Scheuerman, Charleston
Law School, and the participants in Southeastern Law Scholars Conference for offering
me an opportunity to present this article while it was still a work in progress. Finally,
David Ritchie and Suzianne Painter-Thorne provided valuable suggestions. Invaluable
research assistance was provided by Courtney Ferrell, J.D. expected 2011, and John Nick
Phillips, J.D. expected 2012. Any remaining errors are mine alone.
1
Adherents of textualism, a theory of statutory interpretation, look for the
objective meaning of statutory language primarily in the text of the statute. Andrew S.
Gold, Absurd Results, Scrivener’s Errors, and Statutory Interpretation, 75 U. CIN. L. REV.
25, 31 (2006). In contrast, adherents of intentionalism look for the subjective intent of the
legislature when it enacted the statute. Id. at 32. “To be sure, the border between
textualism and intentionalism is not always obvious. By and large, however,
intentionalists are interested in the meaning a statute actually had to its authors, while
textualists are interested in the meaning it would have to a competent reader.” Id. at 3233. As some have posited, the justices do not always do what theory suggests they should.
See generally Thomas J. Miles & Cass R. Sunstein, Do Judges Make Regulatory Policy?
An Empirical Investigation of Chevron, 73 U. CHI. L. REV. 823, 826 (2006) (finding a
strong relationship between a justice’s political views and his or her Chevron rulings).
2
When the ordinary meaning of a statute would lead to absurd results, courts
will seek an alternative reading of the statutory text pursuant to the absurdity doctrine.
Relatedly, when a statute contains a drafting error, courts will correct the statute
pursuant to the scrivener’s error doctrine. While related, these doctrines are distinct. For
a more thorough discussion of the absurdity doctrine, see Veronica M. Dougherty,
Absurdity and the Limits of Literalism: Defining the Absurd Result Principle in Statutory
Interpretation, 44 AM. U. L. REV. 127 (1994); John F. Manning, The Absurdity Doctrine,
116 HARV. L. REV. 2387 (2003). For a more thorough discussion of the scrivener’s error
doctrine, see Jonathan R. Siegel, What Statutory Drafting Errors Teach Us About
Statutory Interpretation, 69 GEO. WASH. L. REV. 309 (2001).
†
917
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textualists3 to counter the sometimes harsh results of applying
clear statutory language. In this article, I explore an aspect of
the absurdity doctrine not yet explored in legal scholarship:4
namely, the difference between specific and general absurdity.5
Statutes that are specifically absurd are those statutes that are
absurd as applied to the facts of a particular case, but not
absurd as applied generally. For example, a statute that
penalizes individuals from escaping from prison is absurd as
applied to an individual who escaped from a prison that was on
fire, but is not absurd in general.6 In contrast, statutes that are
generally absurd are those statutes that are patently absurd as
written and, thus, as applied generally, to a group of
individuals. For example, a statute that creates a waiting
period rather than a deadline for a litigant to file an appeal is
absurd in all cases, not just one isolated case.7
This distinction has not been noticed in either the
jurisprudence or scholarship; however, the difference matters.
Accepting for the moment that the absurdity doctrine has force
when the legislature drafts a statute that as written “would
lead to patently absurd consequences that Congress could not
possibly have intended,”8 the question is whether the absurdity
doctrine should have force when Congress drafts a statute that
Congress intended but that has unintended consequences in
only one particular case. Arguably no, as I explain below.
Textualists should be particularly loath to apply the doctrine in
cases of specific absurdity because specific absurdity, unlike
general absurdity, is not readily apparent from the text of the
3
See Manning, supra note 2, at 2420 n.123 (cataloguing opinions by noted
textualists Justice Scalia and Judge Easterbrook that rely on the absurdity doctrine);
see, e.g., City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424, 449 n.4
(2002) (Scalia, J., dissenting) (“A possibility so startling (and unlikely to occur) is well
enough precluded by the rule that a statute should not be interpreted to produce
absurd results.”); INS v. Cardoza-Fonseca, 480 U.S. 421, 452 (1987) (Scalia, J.,
concurring); Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir. 1998) (Easterbrook, J.)
(stating that “a court should implement the language actually enacted—provided the
statute is not internally inconsistent or otherwise absurd”).
4
While the absurdity doctrine has come under fire recently from some noted
textualist scholars, none have addressed the specific versus general distinction. See,
e.g., Manning, supra note 2.
5
The definitions that follow are my definitions. I explain both definitions in
more detail infra text accompanying notes 72-101.
6
See, e.g., United States v. Kirby, 74 U.S. (7 Wall.) 482, 487 (1868)
(discussing this medieval case).
7
See, e.g., Amalgamated Transit Union Local 1309 v. Laidlaw Transit
Servs., Inc., 448 F.3d 1092, 1096 (9th Cir. 2006).
8
Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 470 (1989) (Kennedy, J.,
concurring) (quotations omitted).
2011]
BUT THAT IS ABSURD!
919
statute alone and the statute, as written and generally applied,
was exactly what Congress intended. Yet it is precisely when
statutes are specifically absurd that judicial intervention is
most essential. In my view, absurdity and textualism are
simply incompatible; indeed, the absurdity doctrine
undermines the very foundation of textualism.9
In Parts I and II of this article, I briefly describe first
textualism and then absurdity. In Part III, I discuss the
development of the absurdity doctrine. Then, in Part IV, I
create and explore the differences between specific and general
absurdity, an aspect currently unidentified in the literature.
Finally, in Part V, I explain why absurdity, and most notably
specific absurdity, undermines textualism.
I.
TEXTUALISM: A BRIEF PRIMER
To understand the role that absurdity plays in
interpretation, you must first understand textualism.
Textualism is a method of statutory interpretation that focuses
almost exclusively on the text of the statute and other intrinsic
sources of meaning.10 Textualists “look for the public meaning
of the words used in the statute as of the time the statute was
drafted.”11 They are deeply skeptical of non-text-focused
methods of interpretation—particularly those methods that
seek the enacting legislature’s intent—for three principal
reasons.12 First, textualists doubt that only one such intent
9
See Manning, supra note 2, at 2391 (arguing that “[i]f one accepts the
textualist critique of strong intentionalism, it is difficult to sustain the absurdity
doctrine on alternative grounds as some have attempted to do”).
10
Intrinsic sources include materials that are part of the official text being
interpreted. The statute’s words are the most important intrinsic source. John M.
Kernochan, Statutory Interpretation: An Outline of Method, 3 DALHOUSIE L.J. 333, 338
(1976) (stating that the first step in the interpretation process is always “Read the
statute. Read the Statute. Read the Statute.”). For a discussion of the types of sources,
see LINDA D. JELLUM, MASTERING STATUTORY INTERPRETATION 13-15 (2008).
In contrast to textualism, intentionalist-based theories are based on the
notion that the legislature’s intent or purpose should guide the court’s interpretive
process. Hence, intentionalists seek out the specific intent of the enacting legislature,
while purposivists seek out the general purpose of the statute. Id. at 22, 27.
11
JELLUM, supra note 10, at 17. For a general discussion of textualism, see
John F. Manning, What Divides Textualists from Purposivists, 106 COLUM. L. REV. 70
(2006); Jonathan R. Siegel, The Use of Legislative History in a System of Separated
Powers, 53 VAND. L. REV. 1457 (2000).
12
These reasons are typically characterized as institutional, constitutional,
and pragmatic reasons. See, e.g., Glen Staszewski, Avoiding Absurdity, 81 IND. L.J.
1001, 1027-28 (2006).
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exists.13 And even if it did, textualists doubt that judges can
correctly identify that intent.14 Second, textualists are
concerned about two aspects of the federal Constitution.15 They
are concerned about separation of powers, as the Constitution
grants the legislature the power to create laws16 and the
judiciary the power to interpret laws.17 Textualists argue both
that non-text-focused approaches to interpretation allow the
judiciary to invade the legislature’s power and that they allow
the legislature to invade the judiciary’s power.18 Additionally,
textualists are anxious that the constitutionally prescribed
legislative process—bicameralism and presentment—be
followed.19 Because nontext sources, such as legislative history,
do not go through this process, determining meaning from
sources other than the text would be unconstitutional.20 Third,
and finally, textualists suggest that textualism best
13
Frank H. Easterbrook, Text, History, and Structure in Statutory
Interpretation, 17 HARV. J.L. & PUB. POL’Y 61, 68 (1994) (“Intent is elusive for a natural
person, fictive for a collective body.” (citation omitted)) [hereinafter Easterbrook, Text,
History, and Structure]; Manning, supra note 2, at 2410-13; Kenneth A. Shepsle,
Congress Is a “They,” Not an “It”: Legislative Intent as Oxymoron, 12 INT’L REV. L. &
ECON. 239, 244 (1992).
Textualists accept public choice theory, which cautions that legislation is
the product of many different interest groups working in a chaotic environment to work
out deals. Statutes generally reflect the compromises of this complex bargaining
process. Frank H. Easterbrook, The Role of Original Intent in Statutory Construction,
11 HARV. J.L. & PUB. POL’Y 59, 63 (1988); Gold, supra note 1, at 34-35; John F.
Manning, Textualism and the Equity of the Statute, 101 COLUM. L. REV. 1, 18 (2001);
see Barnhart v. Sigmon Coal Co., 534 U.S. 438, 461 (2002) (“[N]egotiations surrounding
enactment of this bill tell a typical story of legislative battle among interest groups,
Congress, and the President. . . . [A] change in any individual provision could have
unraveled the whole.”).
14
Gold, supra note 1, at 37.
15
Easterbrook, Text, History, and Structure, supra note 13, at 68 (“[T]he
structure of our Constitution . . . requires agreement on a text by two Houses of
Congress and one President.”); Gold, supra note 1, at 38-39; Jonathan T. Molot, The
Rise and Fall of Textualism, 106 COLUM. L. REV. 1, 27 (2006).
16
U.S. CONST. art. I, § 1.
17
Id. art. III, § 1.
18
Gold, supra note 1, at 38 (“[T]he concern with intentionalism is that the
legislature would be encroaching on the judicial branch. . . . [and that judges are]
abdicating their responsibility to interpret the text if they defer to the manner in which
individual legislators interpret it.”).
19
See U.S. CONST. art. I, § 7.
20
Jerry L. Mashaw, Textualism, Constitutionalism and the Interpretation of
Federal Statutes, 32 WM. & MARY L. REV. 827, 843-44 (1991) (arguing that legislative
history should not be used because “continuous and constant referral to legislative
history tends to engage the Court in the interpretation of texts—committee reports or
the utterances of various senators and representatives—that have never been enacted
by both Houses of Congress or presented to the President”).
2011]
BUT THAT IS ABSURD!
921
discourages judicial activism.21 For all these reasons, when
interpreting statutes, textualists focus on intrinsic sources of
meaning and avoid nontextual sources of meaning. But
legislatures can be imperfect and text imprecise; thus,
textualists have safety valves, doctrines that allow them to
avoid the meaning of statutory text even when that text is very
clear. One such safety value is the absurdity doctrine.22
II.
THE ABSURDITY DOCTRINE: A BRIEF PRIMER
The plain meaning canon of statutory interpretation
directs that statutes should be interpreted according to the
ordinary meaning of their words.23 The absurdity doctrine, also
known as the Golden Rule doctrine,24 is an exception to the
plain meaning canon. The absurdity doctrine allows judges to
ignore the ordinary meaning of statutory text when that
ordinary meaning would lead to absurd outcomes.25
21
One famous quote from Judge Leventhal notes that using legislative
history is like “looking over a crowd and picking out your friends.” Exxon Mobil Corp. v.
Allapattah Servs., Inc., 545 U.S. 546, 568 (2005) (quoting Patricia Wald, Some
Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68
IOWA L. REV. 195, 214 (1983)).
22
See supra note 2.
23
This article will use the term “plain meaning canon” to refer to the canon of
interpretation and “ordinary meaning” to refer to the meaning of the text as
determined after the plain meaning canon is applied. These terms are used
interchangeably in the case law and by scholars.
24
Neil Duxbury, Golden Rule Reasoning, Moral Judgment, and the Law, 84
NOTRE DAME L. REV. 1529, 1530-31 (2009) (explaining why the absurdity doctrine is
also known as the Golden Rule doctrine).
25
Absurdity is not consistently defined in the jurisprudence. Dougherty,
supra note 2, at 133. But see Manning, supra note 2, at 2390 (“[S]tandard interpretive
doctrine (perhaps tautologically) defines an ‘absurd result’ as an outcome so contrary to
perceived social values that Congress could not have ‘intended’ it.”). Rather, judges
often attempt to define absurdity by simply identifying, without explaining, other cases
in which absurdity has been found. Dougherty, supra note 2, at 139-40; see, e.g., Pub.
Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 470-71 (1989) (Kennedy, J., concurring).
Even in the case that spawned this exception, Holy Trinity Church v.
United States, 143 U.S. 457 (1892), the Supreme Court never explicitly defined
absurdity. Instead, the Court merely suggested that a meaning that conflicted with
congressional intent would be absurd. Id. at 459-61. Typically, the Court equates
absurd with “odd” and “in conflict with Congressional intent.” See, e.g., Green v. Bock
Laundry Mach. Co., 490 U.S. 504, 509 (1989) (identifying the result as “odd”). Other
courts identify absurdity as requiring a higher standard. Gold, supra note 1, at 78
(“[N]o principled distinction separates grossly absurd applications from merely odd
results.”). For example, in Robbins v. Chronister, the majority adopted Holy Trinity
Church’s broad definition of absurdity, contrary to congressional intent, 402 F.3d 1047,
1050 (10th Cir. 2005), rev’d en banc, 435 F.3d 1238 (10th Cir. 2006), while the dissent
adopted a much narrower definition—“lead[ing] to results so gross as to shock the
general moral or common sense.” Id. at 1055. Which opinion in Robbins had a more
accurate definition of absurdity? The majority’s definition of absurdity was so broad
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Absurdity arises for a number of reasons, stemming
from the difficulty of drafting precisely during a nonlineal
legislative process. Thus, legislators draft generally applicable
statutes that tend to be over- or underinclusive. That reality
can produce odd outcomes that are seemingly inconsistent with
legislative intent.26 Moreover, language is inherently imperfect
and imprecise; hence, unintended errors may result.27 Finally,
the legislative process is full of compromises and legislative
jockeying, which can also lead to unanticipated results.28 In
response, the absurdity doctrine recognizes and adjusts for the
fact that sometimes the ordinary meaning of a statute is not
what the enacting legislature intended.
Proponents of the doctrine justify its use by arguing
that Congress would never intend to enact a statute that has
absurd consequences.29 Thus, when a statute would be absurd if
implemented according to its ordinary meaning, a judge can
legitimately refuse to follow the plain meaning canon simply by
noting that applying the statute as written would be absurd.
The absurdity doctrine then allows that judge to look to
that it would essentially open the door for consideration of extratextual evidence in
almost every case. This broad definition might be appealing to less strict textualists
and nontextualist judges willing to look to extratextual sources relatively readily, but
less appealing to others. But the dissent’s definition of absurdity is not much better. It
sets such a high standard—a result that “shock[s] the general moral or common
sense”—that it will be rarely, if ever, met. Id. The correct definition of absurdity must
lie between these two extremes. Just where is not clear, and the jurisprudence is of
little help. Most commonly, instead of defining absurdity, judges simply list other cases
that have found absurdity, an “I know it when I sees it” analysis.
26
Manning, supra note 2, at 2394; see, e.g., Holy Trinity Church, 143 U.S. at
459 (“[F]requently words of general meaning are used in a statute, words broad enough to
include an act in question, and yet a consideration of . . . the absurd results which follow
from giving such broad meaning to the words, makes it unreasonable to believe that the
legislator intended to include the particular act.”).
27
See Manning, supra note 2, at 2400 (noting that “[l]egislators not only
enact statutes within the constraints of limited time and bounded foresight, but also
must rely on the imprecise medium of human language to express their intentions”).
28
For example, a statute may be:
deliberately imprecise to accommodate political interests. . . . [C]areful
draftsmanship is all too often absent; perhaps it is impossible in the crush of
competing interests and activities that occur in the final moments of legislative
enactments. Mistakes are made. In addition, a case that comes before the
court . . . may present an issue that was not in the minds of . . . the legislators.
John M. Walker, Jr., Judicial Tendencies in Statutory Construction: Differing Views on
the Role of the Judge, 58 N.Y.U. ANN. SURV. AM. L. 203, 204 (2001); accord Manning,
supra note 2, at 2395 (“[B]ecause a statute’s apparently odd contours may reflect
unknowable compromises or legislators’ behind-the-scenes strategic maneuvers, judges
can rarely, if ever, tell if a law’s specific wording is unintentionally imprecise or was
instead crafted to navigate the complex legislative process.”).
29
Manning, supra note 2, at 2400.
2011]
BUT THAT IS ABSURD!
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extratextual sources both to confirm that the absurd meaning
was not intended and to identify the intended meaning.30 If,
after reviewing the extratextual sources, a judge determines
that the legislature did indeed intend the absurd result, then
that result should control. But if the judge determines that
absurdity was not intended, the judge can ignore the plain
meaning canon. In essence, when a statute is absurd, a
textualist judge has a choice: interpret the statute as written,
which will force the legislature to correct any intended or
unintended absurdity, or interpret the statute in a way that
eliminates (or at least diminishes) that absurdity.31
Absurdity is attractive to textualists precisely because it
allows them to avoid the harsh results of their chosen theory.
“The currently dominant version of textualism seems relatively
attractive precisely because the absurdity doctrine provides an
all-purpose backstop to the principle that judges must follow a
clear text wherever it takes them.”32 Yet “[i]f modern textualists
perceive their methodology to be workable only because of the
availability of the absurdity doctrine, then one must question
the conceptual foundations of textualism itself.”33 Viewed from
this lens, the absurdity doctrine is merely a way for textualists
to cheat.
30
But see Green v. Bock Laundry Mach. Co., 490 U.S. 504, 527-28 (1989)
(Scalia, J., dissenting) (arguing that it is appropriate for judges to look to extratextualist sources to determine whether the absurd result was intended, but not to
identify an alternative interpretation).
31
As noted by Professor John Manning:
The absurdity doctrine thus rests on a judicial judgment that a particular
statutory outcome, although prescribed by the text, would sharply contradict
society’s “common sense” of morality, fairness, or some other deeply held value.
As Chief Justice Marshall once put it, the doctrine authorizes judges to avoid
results that “all mankind would, without hesitation, unite in rejecting.” Thus,
despite being reserved only for exceptional cases, the absurdity doctrine serves
an important legitimating function, making textualism more palatable by
offering reassurance that the problem of statutory generality will not compel
the acceptance of deeply troubling outcomes. The doctrine achieves that end,
moreover, through seemingly benign presumptions about the legislative
process: Why would legislators ever intentionally enact laws that apparently
contradict commonly held values? Or, more accurately, why would judges ever
presume that legislators intended such results, given the fact that legislators
sometimes, perhaps often, express themselves imprecisely? Based on these
assumptions, the Court has insisted that correcting apparent infelicities in
statutory wording to avoid absurdity does not “substitut[e] . . . the will of the
judge for that of the legislator.”
Manning, supra note 2, at 2405-08 (alteration in original) (citations omitted).
32
Id. at 2392.
33
Id.
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III.
THE DEVELOPMENT OF THE ABSURDITY DOCTRINE
The absurdity doctrine was first adopted in this country
in 1868. In United States v. Kirby,34 the Supreme Court
dismissed an indictment charging members of the local sheriff’s
office with violating a statute that prohibited anyone from
“knowingly and willfully obstruct[ing] or retard[ing] the
passage of the mail, or of any driver or carrier.”35 The
defendants had arrested a mail carrier who was wanted for
murder while that mail carrier was delivering mail.36 Although
the defendants had violated the clear terms of the statute, the
Court dismissed the indictment. In doing so, the Court adopted
the absurdity doctrine, explaining:
All laws should receive a sensible construction. General terms
should be so limited in their application as not to lead to injustice,
oppression, or an absurd consequence. It will always, therefore, be
presumed that the legislature intended exceptions to its language,
which would avoid results of this character. The reason of the law in
such cases should prevail over its letter.37
In support of its decision to reject the clear text, the
Court referenced two early decisions from Europe, both of
which had rejected the ordinary meaning of a statute.38 First, a
medieval Italian court had refused to punish a surgeon “who
opened the vein of a person that fell down in the street in a fit”
for violating a law punishing anyone “who[] drew blood in the
streets.”39 Second, an English court had refused to punish a
prisoner who had escaped from a prison that was on fire under
a statute prohibiting prison escapes.40 In these two cases, the
34
74 U.S. (7 Wall.) 482 (1868).
Id. at 483-84.
36
Id. at 484.
37
Id. at 486-87.
38
It is not entirely clear whether the cases are real or hypothetical, but that
is irrelevant for purposes of this article.
39
Kirby, 74 U.S. at 487 (“The common sense of man approves the judgment
mentioned by Puffendorf, that the Bolognian law which enacted, ‘that whoever drew
blood in the streets should be punished with the utmost severity,’ did not extend to the
surgeon who opened the vein of a person that fell down in the street in a fit.”). But note
that drawing blood likely had different connotations. Specifically, one can draw blood
during a fight or one can draw blood as a medical professional might do. Following the
former meaning, as opposed to the latter, is consistent with textualism and does not
require a finding of absurdity. Accord Gold, supra note 1, at 69 (indicating that words
may have an established “social nuance” or “meaning”).
40
Kirby, 74 U.S. at 487 (“The same common sense accepts the ruling, cited by
Plowden, that the statute of 1st Edward II, which enacts that a prisoner who breaks
35
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BUT THAT IS ABSURD!
925
courts deviated from the ordinary meaning of the statutes
because application of the statute to the particular facts of each
case led to a result not intended by the legislature. “[T]he
absurdity doctrine therefore rests on the premise that if
legislators had foreseen the problems raised by a specific
statutory application, ‘they could and would have revised the
legislation to avoid such absurd results.’”41 Relying on the
rationale in these prior cases, the Supreme Court in Kirby
rejected the clear statutory text and adopted the absurdity
doctrine.42 In all three cases, the courts’ decisions to reject the
clear text led to a result that seems just and fair.43
In 1892, in its “most influential absurdity decision,”44
Holy Trinity Church v. United States,45 the Supreme Court
broadened the absurdity doctrine in two ways. First, the Court
applied the doctrine to a case involving general absurdity.
Second, the Court made clear the rationale for absurdity: to
avoid a result that was contrary to legislative intent. The Alien
Contract Labor Act prohibited businesses from bringing anyone
into the country “to perform labor or service of any kind.”46 The
defendant contracted with an individual from England to
immigrate to the United States to serve as a pastor in its
church.47 In response and pursuant to the ordinary meaning of
the Act, the federal government sued the church to recover a
statutory penalty.48 The Supreme Court rejected the
government’s argument that “labor . . . of any kind” covered
pastoral services.49 Stating that “[i]t is a familiar rule, that a
thing may be within the letter of the statute and yet not within
the statute, because not within its spirit, nor within the
intention of its makers,” the Court found the statute to be
absurd and looked to the legislative history of the Act.50
According to the Court, the legislative history was relatively
prison shall be guilty of felony, does not extend to a prisoner who breaks out when the
prison is on fire—‘for he is not to be hanged because he would not stay to be burnt.’”).
41
Staszewski, supra note 12, at 1007 (quoting Manning, supra note 2, at 2394).
42
Kirby, 74 U.S. at 486-87.
43
Manning, supra note 2, at 2402 (“These examples are powerful precisely
because the imaginative reconstruction of legislative intent in each requires so little
imagination.”).
44
Id. at 2403.
45
143 U.S. 457 (1892).
46
Id. at 458.
47
Id.
48
Id.
49
Id. at 458-59.
50
Id. at 459.
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clear that the legislature intended the word labor to mean
manual labor.51 Thus, the Court in Holy Trinity Church expanded
Kirby’s narrow absurdity doctrine such that the ordinary
meaning of statutory text could henceforth be ignored whenever
that meaning contradicted the intent of the legislature, as
gleaned from nontextual sources.52 Moreover, the Court, for the
first time, applied the doctrine to invalidate the general
application of a statute—exempting all “brain toilers,” as the
Court called them53—rather than exempting one specific case.
The absurdity doctrine was commonly used up until the
1940s as a way to temper the sometimes harsh effects of the
plain meaning canon in its literalist formulation.54 With the rise
of intentionalism, the plain meaning cannon fell from favor;
and thus, the absurdity doctrine faded briefly into obscurity.55
Then, in 1986, Justice Scalia joined the Court. Part of his
judicial mission has been to return statutory interpretation to a
text-focused analysis. His approach has been dubbed “new
textualism”56 and “modern textualism.”57 With this more textfocused approach, the absurdity doctrine was revived. “A
textualism that lacked this safety valve is unpalatable when
courts are confronted with cases of true absurdity.”58
Yet the revival has been limited. In recent years, the
Supreme Court has explicitly relied on the absurdity doctrine
only five times.59 Moreover, the Court has suggested that the
51
Id. at 463.
See Lau Ow Bew v. United States, 144 U.S. 47 (1892) (applying the
absurdity doctrine to narrowly interpret the United States Chinese Restriction Act).
53
Holy Trinity Church, 143 U.S. at 464.
54
Unlike modern textualism, which allows consideration of textual context to
discern ordinary meaning, literalism is a relatively rigid approach that rejects any
source other than the words at issue. For a more thorough discussion, see Manning,
supra note 2, at 2395-96, 2456-58. Cf. Staszewski, supra note 12, at 1003-04 (2006)
(arguing that “the absurdity doctrine has identifiable constitutional underpinnings
that justify its thoughtful use by the judiciary to avoid arbitrary or inequitable
applications of facially valid rules in exceptional circumstances that were not
anticipated by the legislature”).
55
JELLUM, supra note 10, at 74.
56
William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621, 623
(1990) (coining the phrase “new textualism”).
57
Molot, supra note 15, at 2 (identifying Justice Scalia’s version of textualism
as “modern textualism”).
58
Gold, supra note 1, at 62.
59
Clinton v. City of N.Y., 524 U.S. 417, 428-29 (1998) (invoking doctrine to
expand the meaning of “individuals” to include corporations as those who could seek
expedited review under Line Item Veto Act); United States v. X-Citement Video, Inc.,
513 U.S. 64, 69 (1994) (holding it would be absurd to apply the term “knowingly” only
to relevant verbs in criminal statute and not to elements of the crime concerning minor
age of participant and sexually explicit nature of material); Burns v. United States, 501
52
2011]
BUT THAT IS ABSURD!
927
doctrine is one of last resort, “rarely invoke[d] . . . to override
unambiguous legislation.”60 As Justice Kennedy noted, “the
potential of this doctrine to allow judges to substitute their
personal predilections for the will of the Congress is so selfevident from the case which spawned it [Holy Trinity Church] as
to require no further discussion of its susceptibility to abuse.”61
While the justices of the Supreme Court turn to the doctrine
increasingly rarely, to date, they have never rejected the
doctrine outright. Indeed, in rejecting the application of the
doctrine in particular cases, the justices have reaffirmed the
doctrine’s continued vitality.62 Furthermore, the doctrine, despite
its flaws, is alive and well in the lower federal63 and state
courts.64
IV.
TYPES OF ABSURDITY
One area that has not yet been explored in legal
scholarship is whether the type of absurdity, general or
U.S. 129, 135-37 (1991) (relying on absurdity to hold that district courts may not
depart upward from sentencing range established by Sentencing Guidelines without
first notifying parties of court’s intent to depart); Pub. Citizen v. U.S. Dep’t of Justice,
491 U.S. 440, 451, 454-55 (1989) (relying on absurdity, in part, to narrowly interpret
“advisory committee” in the Federal Advisory Committee Act); Green v. Bock Laundry
Mach. Co., 490 U.S. 504, 509-11 (1989) (some justices reasoned that it would be absurd
not to apply Federal Rule of Evidence 609(a)(1) to civil as well as criminal defendants).
60
Barnhart v. Sigmon Coal Co., 534 U.S. 438, 441 (2002).
61
Pub. Citizen, 491 U.S. at 474 (Kennedy, J., concurring).
62
See, e.g., Inter-Modal Rail Emps. Ass’n v. Atchison, Topeka & Santa Fe Ry.
Co., 520 U.S. 510, 516 (1997); Ingalls Shipbuilding, Inc. v. Office of Workers’ Comp.
Programs, 519 U.S. 248, 261 (1997); Rowland v. Cal. Men’s Colony, 506 U.S. 194, 200
(1993); Chapman v. United States, 500 U.S. 453, 463-64 (1991); EEOC v. Commercial
Office Prods. Co., 486 U.S. 108, 120 (1988).
63
See, e.g., Pritchett v. Office Depot, Inc., 420 F.3d 1090, 1093 n.2 (10th Cir.
2005) (holding that “less” should be read to say “more”); accord Amalgamated Transit
Union Local 1309 v. Laidlaw Transit Servs., Inc., 435 F.3d 1140, 1146 (9th Cir. 2006)
(same). But see Amalgamated Transit Union Local 1309 v. Laidlaw Transit Servs., Inc.,
448 F.3d 1092, 1099 (9th Cir. 2006) (Bybee, J., dissenting) (disagreeing with the court’s
holding and arguing that the majority “ignored the deference we must give to the
supremacy of the legislature”).
64
See, e.g., Newman v. Planning & Zoning Comm’n, 976 A.2d 698, 702 (Conn.
2009) (“When more than one construction is possible, we adopt the one that renders the
enactment effective and workable and reject any that might lead to unreasonable or
bizarre results.” (quoting Graff v. Zoning Bd. of Appeals, 894 A.2d 285 (Conn. 2006));
Fla. Dep’t of Envtl. Prot. v. ContractPoint Fla. Parks, LLC, 986 So. 2d 1260, 1270 (Fla.
2008) (“We have long held that the Court should not interpret a statute in a manner
resulting in unreasonable, harsh, or absurd consequences.”); Staley v. State, 672 S.E.2d
615, 616 (Ga. 2009) (applying the absurdity doctrine to hold that a statute
criminalizing child molestation did not apply just to molestation of lineal descendents
of the molester), cert. denied, 129 S. Ct. 2737 (2009). See generally 73 AM. JUR. 2D
Statutes § 172 (2009) (collecting cases).
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specific, should impact the analysis. While the cases and
literature generally do not distinguish between these two types
of absurdity, they are different. Specific absurdity refers to a
statute that is absurd only in the particular situation. General
absurdity refers to a statute that is absurd regardless of the
particular situation.
Let me begin with examples of specific absurdity. Ohio
Division of Wildlife v. Clifton,65 involved a case of specific
absurdity. The defendant in that case had rescued a squirrel
and kept it for a pet.66 The squirrel, Angele Daniel Nicole, had
run of the house. All would have been well, except that the
defendant entered the squirrel in a parade and won first prize
for most unusual pet.67 After the squirrel’s picture appeared in
the newspaper, two officers from the Wildlife Division appeared
and told the defendant that the squirrel had to be released to
the wild.68 She refused and was fined pursuant to a statute
prohibiting individuals from owning “fur-bearing animals”
without a license.69 Despite the clear language of the text, the
trial court dismissed the case and chastised the state for fining
her, saying, “[t]his makes no sense. Even a child could see that
there is no justice or right in the position of the state.”70 The
trial court reasoned that the purpose of the specific statute—
and criminal justice generally—would not be furthered by
incarcerating or fining the humanitarian defendant.71
A statute that prohibits people from keeping wild
animals as pets might be absurd as applied to a person who
65
89 Ohio Misc. 2d 1 (Mun. Ct. 1997).
Id. at 2.
67
Id.
68
Id. at 2-3. For additional background information on this case, see The State of
Ohio Persecuted a Squirrel—and It’s [sic] Rescuer!, GODDESSCHESS BLOG (Feb. 8, 2008),
http://goddesschess.blogspot.com/2008/02/state-of-ohio-persecuted-squirrel-and.html.
69
Clifton, 89 Ohio Misc. 2d at 3.
70
Id. at 8, 9.
71
The court included the following gem:
66
The court hereby announces a pearl,
It’s sometimes OK to have a squirrel.
The legislature did a statute create,
The Wildlife Division obviously did not equate.
The necessity to be kind, thorough and specific,
The lack of these is legally terrific.
The result is this very short epistle,
The defendant/squirrel is granted a dismissal.
Id. at 9.
2011]
BUT THAT IS ABSURD!
929
rescued an injured squirrel.72 But the statute, as generally
applied, would not be absurd: for health and safety reasons, we
do not want people keeping wild animals, including squirrels,
in their homes. Thus, this statute might be absurd in its
specific application to the rescued squirrel, but would not be
absurd in general.
Many of the Supreme Court’s absurdity cases involve
specific absurdity, as we saw with the earliest cases identified
above, including the surgeon who drew blood, the prisoner who
escaped from a burning prison, and the sheriff who arrested
the mail carrier who was wanted for murder. There are more
recent examples as well. For example, in Public Citizen v.
United States Department of Justice,73 the Court relied on the
absurdity doctrine to avoid the ordinary meaning of the
Federal Advisory Committee Act, which imposed detailed
registration and open-meeting requirements on federal
“advisory committees.”74 “Advisory committee” was defined in
the statute as any committee “utilized by the President . . . in
the interest of obtaining advice or recommendations.”75 At issue
in the case was whether a subcommittee of the American Bar
Association (ABA) was an “advisory committee.”76 Pursuant to
the ordinary meaning of the Act, the ABA subcommittee was
an advisory committee because the President routinely sought
its recommendations on judicial nominees.77
But the majority refused to adopt the ordinary meaning
of the Act, citing Holy Trinity Church.78 Because the Court
found it “difficult to fathom” that Congress would have
intended an interpretation of the statute that “compel[led] an
odd result,” the Court searched “for other evidence of
congressional intent to lend the term its proper scope.”79
According to the majority, the statute was enacted to cure
specific ills—namely the wasteful expenditure of public funds
for worthless committee meetings and biased proposals by
special interest groups.80 The Court concluded that it was thus
72
See, e.g., id. at 3, 8.
491 U.S. 440 (1989).
74
Id. at 446-47.
75
Id. at 451 (citing 5 U.S.C. app. § 3(2) (1982)).
76
Id. at 447.
77
Id. at 470 (Kennedy, J., concurring).
78
Id. at 454 (majority opinion) (citing Holy Trinity Church v. United States, 143
U.S. 457, 459 (1892)).
79
Id. at 454-55.
80
Id. at 453.
73
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unlikely that Congress intended the statute to cover every
formal and informal meeting between the President and a
group rendering advice.81 Ultimately, the Court held that the
statute did not apply to this specific ABA subcommittee.82
Now let me turn to examples of general absurdity. A
statute is generally absurd when that statute is absurd
regardless of the particular situation before the court. The facts
of a particular case do not matter. Thus, a statute that unduly
burdens a civil plaintiff’s ability to present his or her case but
not a civil defendant’s is generally absurd because it would
affect all civil plaintiffs and defendants. These are the facts of
Green v. Bock Laundry Machine Co.,83 in which the Court
rejected the ordinary meaning of the word “defendant” in Rule
609(a)(1) of the Federal Rules of Evidence.84 When admitting
evidence that a witness had been convicted of a felony, that
Rule, as then in effect, required a court to balance “the
probative value of admitting th[e] evidence [with] the
prejudicial effect to the defendant.”85 While the ordinary
meaning of “defendant” includes both civil and criminal
defendants, the majority held that that meaning would be
“odd” because such an interpretation would deny a civil
plaintiff the same right to impeach a witness that a civil
defendant would have.86 Thus, this interpretation would raise
due process concerns.87 Reviewing the legislative history, the
Court concluded that the legislature more likely intended
“defendant” to mean “criminal defendant.”88 Thus, Bock
involved general absurdity because the facts of the particular
case before the Court were irrelevant and the statute was
interpreted to exclude an entire class of litigants.
Similarly, Holy Trinity Church—the case that
broadened the absurdity exception—also involved general
absurdity. The Supreme Court held that it was not absurd for
81
82
Id. at 467.
Id. (noting that the constitutional avoidance doctrine also supported this
holding).
83
490 U.S. 504 (1989).
Id. at 527.
85
Id. at 509 (emphasis added) (quoting FED. R. EVID. 609(a)(1) (1988))
(internal quotation marks omitted).
86
Id.
87
For this reason, Justice Scalia has indicated that the case would have been
better resolved under the constitutional avoidance doctrine. Gold supra note 1, at 59 (citing
United States v. X-Citement Video, Inc., 513 U.S. 64, 82 (1994) (Scalia, J., dissenting)).
88
Bock, 490 U.S. at 511-24.
84
2011]
BUT THAT IS ABSURD!
931
Congress to prohibit the importation of any specific individual
so much as it was absurd for Congress to prohibit the
importation of all “brain toilers.”89 A more recent case, Robbins
v. Chronister,90 also involved general absurdity. In Robbins, the
Tenth Circuit reviewed a prisoner’s request for attorney’s fees
under the Prison Litigation Reform Act (PLRA).91 After
entering prison, the prisoner filed a civil rights action for
injuries he sustained during his arrest, and won only nominal
damages.92 The PLRA capped attorney’s fees at 150% of
awarded damages “[i]n any action brought by a prisoner.”93
Thus, according to the clear text of the PLRA, the plaintiff was
entitled to only $1.50 in attorney’s fees because he was a
prisoner when he filed his case and because he only won one
dollar in damages.94 The majority found the statute absurd as
generally applied because the majority believed that Congress
intended to cap damages only for prison-condition litigation,
not for prisoner-filed litigation.95 The statute was absurd,
therefore, as applied to all claims filed by prisoners that related
to issues other than prison conditions.96 Thus, the statute was
generally absurd because the facts of the specific case were not
relevant to the disposition of the case and because the court
interpreted the statute to exclude an entire class of litigants.
Finally, in Amalgamated Transit Union Local 1309 v.
Laidlaw Transit Services, Inc., the Ninth Circuit used general
absurdity to hold that “less” actually means “more.”97 In that
case, the court rejected the plain meaning of the text of the
Class Action Fairness Act. That Act provided that “a court of
appeals may accept an appeal . . . [in certain cases] if
application is made to the court of appeals not less than 7 days
89
Holy Trinity Church v. United States, 143 U.S. 457, 463-64 (1892).
402 F.3d 1047 (10th Cir. 2005), rev’d en banc 435 F.3d 1238 (10th Cir. 2006).
91
Id. at 1049; 42 U.S.C. § 1997e(d) (2000).
92
Robbins, 402 F.3d at 1049.
93
Id. (emphasis added) (quoting 42 U.S.C. § 1997e(d)).
94
Id. at 1050.
95
Id. at 1054-55. The majority and dissent sparred over whether this result
was absurd. The majority acknowledged that the language of the statute was clear, but
concluded that the statute was absurd because it would produce “an illogical result” at
odds with congressional intent. Id. at 1050, 1054. “[I]t would be absurd to limit [a
plaintiff’s] attorney’s fees merely because he happened to file his pre-existing
constitutional claim while he was in prison.” Id. at 1054-55. In contrast, the dissent
argued that a statute is absurd only when an interpretation “leads to ‘results so gross
as to shock the general moral or common sense.’” Id. at 1055 (Hartz, J., dissenting)
(quoting United States v. Newsome, 898 F.2d 119, 121 n.3 (10th Cir. 1990)).
96
Id. at 1054 (majority opinion).
97
435 F.3d 1140 (9th Cir. 2006).
90
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after entry of the order.”98 The ordinary meaning of the text of
the statute imposed a seven day waiting period to appeal and
contained no upper limit on that waiting period.99 The Ninth
Circuit found this interpretation “illogical” and turned to the
purpose of the Act.100 The court concluded that Congress had
intended the Act to impose a time limit for appealing rather
than a waiting period.101
V.
WHY SPECIFIC ABSURDITY UNDERMINES TEXTUALISM
To be sure, the difference between general and specific
absurdity is not bright lined. One could ask: At what point do
the specific facts become relevant to an absurdity finding? It is
easy in some cases to see that the absurdity is apparent only
when the facts of the case are considered. For instance, a statute
that prohibits individuals from interfering with the delivery of
mail only becomes absurd when it is applied to a sheriff
arresting a mail carrier wanted for murder. A statute that
prohibits anyone from drawing blood in the street only becomes
absurd when applied to a doctor offering medical treatment. A
statute that prohibits anyone from owning a fur-bearing animal
only becomes absurd when applied to a person who rescued a
squirrel that would otherwise die. A statute that prohibits
prisoners from escaping from prison only becomes absurd when
applied to a prisoner who escaped from a prison that was on fire.
In each of these cases, the applicable statutes are perfectly
logical in the abstract, but when the statute is applied to the
specific facts of the case before the court, the “results [are] ‘so
98
Id. at 1142 (emphasis added) (quoting 28 U.S.C. § 1453(c)(1) (2000)).
Id. at 1145.
100
Id. at 1146. Notably, the majority found this purpose relying on a senate
report that “was not submitted until eighteen days after the Senate had passed the bill,
eleven days after the House had passed the bill, and ten days after the President
signed the bill into law.” Amalgamated Transit Union Local 1309 v. Laidlaw Transit
Servs., Inc., 448 F.3d 1092, 1096 (9th Cir. 2006).
101
Laidlaw Transit Servs., Inc., 435 F.3d at 1146. Judge Bybee sua sponte
called for an en banc rehearing, which was denied. Laidlaw Transit Servs., Inc., 448
F.3d at 1094 (Bybee, J., dissenting). He then wrote a dissent from the order denying
rehearing, an unusual occurrence. Id. In his dissent, Judge Bybee chastised the
majority for rejecting the plain meaning of the statute when the text was so clear.
According to the dissent, none of the reasons for avoiding the plain meaning canon
applied; hence, Congress, not the courts, should correct the statute. Id. at 1096-98. He
was particularly concerned that the majority relied on legislative history that no
member of Congress or the President ever saw to interpret the statute to mean the
exact opposite of what it said. Id.
99
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BUT THAT IS ABSURD!
933
gross as to shock the general moral or common sense.’”102 In other
words, as applied to the specific situation before the court, a
situation unlikely to repeat itself, the statute is absurd. In these
cases, the absurdity is downright shocking.
In contrast, statutes that are generally absurd are
absurd not because they are shocking, but because they are
simply contrary to congressional intent. Thus, a statute that
prohibits the importation of brain toilers is not shocking, just
unintended. A statute that imposes a waiting period for filing
an appeal rather than a deadline is not shocking, just sloppy. A
statute that purports to treat civil defendants and civil
plaintiffs differently is not shocking, just poorly considered.
Another important distinction between general and
specific absurdity is that general absurdity is often readily
apparent from the text of the statute itself. The specific facts of
the case will play little, if any, role. While the facts of the case
may bring the absurdity to light—a cap on attorney’s fees for
prisoner-filed litigation does not seem absurd until that cap
limits recovery of fees to $1.50—the facts are not essential to
either the absurdity finding or a court’s interpretation. In other
words, the PLRA was not absurd because it limited fees to
$1.50; rather, the statute was absurd because it limited fees in
all cases in which the person filing a claim was a prisoner,
regardless of whether the claim related to prison-condition
litigation. Also, a statute that prohibits the importation of
anyone performing labor or service of any kind is absurd, if at
all, only when applied to all brain toilers, not just pastors. A
statute that allows a judge to weigh the probative versus
prejudicial effect of a witness’s prior conviction is absurd when
applied to all civil plaintiffs, not just a plaintiff who has lost his
arm. A statute that imposes a waiting period for filing an
appeal rather than a time limit in which to file is absurd in all
cases. In each of these examples, the applicable statute is
illogical as written and as generally applied. It is not absurd as
applied to just the specific individual before the court. You
might think of the difference in this way: when a statute is
generally absurd, Congress did not intend to draft the statute
as written and likely, if given a chance, would redraft. The
facts of the case merely bring this point to light. In contrast,
when a statute is specifically absurd, Congress intended to
102
Robbins v. Chronister, 402 F.3d 1047, 1055 (10th Cir. 2005) (Hartz, J.,
dissenting) (quoting United States v. Newsome, 898 F.2d 119, 121 n.3 (10th Cir. 1990),
rev’d en banc, 435 F.3d 1238 (10th Cir. 2006)).
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draft the statute as written and likely, if given a chance, would
not redraft, other than to except the isolated situation before
the court. In short, in one case, Congress did its job poorly,
while in the other case, Congress did its job well.
With statutes that are generally absurd, the absurdity
is often caused by drafting error103 or the hubbub of the
legislative process.104 For this reason, cases of general absurdity
are rarer than cases of specific absurdity precisely because it is
unusual for Congress to get it so wrong. Importantly, even
when Congress does err in its drafting, judges have other
doctrines they can rely on to avoid the absurd result. For
example, a judge could apply the constitutional avoidance
doctrine,105 as the majority should have done in Green, or could
apply the scrivener’s error exception,106 as the majority should
have done in Amalgamated Transit. Like the absurdity
doctrine, both of these doctrines allow textualists to avoid the
ordinary meaning of a clear statute.
For purposes of this article, general absurdity is often
apparent and resolvable with intrinsic sources, including the
textual context. Illustratively, when I misspeak, my listener
often knows what I meant from the rest of the words. Similarly,
when a statute provides that litigants have a seven day waiting
period to appeal, the absurdity and fix are both readily
apparent from the textual context. Because general absurdity
can be resolved using intrinsic sources, turning to absurdity to
avoid clear language in cases of general absurdity does not
undermine textualism, at least not to the same extent that
specific absurdity does.
In contrast, specific absurdity is neither facially
apparent nor resolvable with intrinsic sources. Again
103
See, e.g., Green v. Bock Laundry Mach. Co., 490 U.S. 504 (1989).
See, e.g., In re Butler, 186 B.R. 371, 372 (Bankr. D. Vt. 1995) (“It has been
said that one should never watch laws or sausage being made.”); Adrian Vermeule,
Legislative History and the Limits of Judicial Competence: The Untold Story of Holy
Trinity Church, 50 STAN. L. REV. 1833, 1844-50 (1998) (debunking the myth that
legislative time pressure created the ambiguity in the Alien Contract Labor Act at
issue in Holy Trinity Church).
105
The constitutional avoidance doctrine directs that when there are two
reasonable interpretations of statutory language, one of which raises constitutional
issues and one of which does not, the statute should be interpreted in a way that does
not raise the constitutional issue. Murray v. Schooner Charming Betsy, 6 U.S. (2
Cranch) 64, 118 (1804). See generally JELLUM, supra note 10, at 77-78, 235-37.
106
The scrivener’s error exception to the plain meaning rule allows judges to
correct obvious clerical or typographical errors. U.S. Nat’l Bank of Or. v. Indep. Ins.
Agents of Am., Inc., 508 U.S. 439, 462 (1993). See generally JELLUM, supra note 10, at
75-77.
104
2011]
BUT THAT IS ABSURD!
935
illustratively, when I speak more broadly or narrowly than I
intended, my listener is unlikely to know my boundaries, and
my other words are less likely to make those boundaries clear.
Similarly, when a statute provides that prisoners should not
escape from prison, there is no apparent absurdity. Yet when
the statute is applied to a specific case in which a prisoner
escaped to save his life, the boundaries become uncertain, and
the application clearly absurd. Thus, specific absurdity comes
to light only when the facts of a specific case come into play.107
Resolving specific absurdity often requires a judge to determine
whether excepting the situation before the court will further
the purpose of the statute or otherwise be consistent with the
legislature’s intent. For example, a statute that prohibits
individuals from drawing blood in the streets is not absurd
until applied to a doctor offering medical care. But in deciding
whether to except the doctor from the statute’s reach, a judge
should consider the purpose of the statute. If the purpose of the
statute was to prohibit individuals from fighting in the streets,
then excepting the doctor would be consistent with that
purpose. If the purpose of the statute was to protect public
health by keeping blood—which is unsanitary—off the street,
then excepting the doctor would be inconsistent with that
purpose. Hence, specific absurdity often must be resolved
through nontextual sources such as legislative history and
unexpressed purpose. Because specific absurdity requires
judges to resort to nontextual sources to determine statutory
meaning, specific absurdity undermines textualism.
Assuming this analysis to be correct, it results in an
oddity: textualist judges can intervene only when judicial
intervention is less necessary. Let me explain. When a statute
is specifically absurd, Congress is unlikely to amend that
statute to correct the absurdity because it is unlikely to recur.
Although the absurdity did manifest in one isolated case, the
exact circumstances are unlikely to ever occur again; hence,
Congress has little incentive to act. Moreover, Congress has a
good reason not to act; the statute as generally applied does
exactly what Congress intended the statute to do. Why mess
with a perfectly good statute? No statutory language can ever
be perfect. Thus, there will always be cases that may fit within
the ordinary meaning of the text of a statute and to which the
107
While it is legitimate for all judges to examine the facts of the case before
them, textualists assert that people should be able to understand a statute as written
without resort to other sources.
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statute should not apply. Consequently, it is precisely in these
cases that a court should step in and correct the resulting
injustice even though stepping in to resolve cases of specific
absurdity violates textualist principles.
Moreover, suggesting that, in cases of specific absurdity,
judges do not have the power to intervene and prevent injustice
is, in a word, absurd! The U.S. Constitution grants the
legislature the power to draft and enact laws.108 It also grants
the judiciary the power to interpret those laws:109
It is emphatically the province and duty of the judicial department to
say what the law is. Those who apply the rule to particular cases,
must of necessity expound and interpret that rule. . . . This is of the
very essence of judicial duty.110
The judiciary interprets laws passed by the legislature only in
the course of adjudicating a case.111 There is little reason to
have a sophisticated judiciary as a coequal branch of
government if all that the judiciary is allowed to do is apply
statutes blindly without considering the justice of the
application. Without a check by the judiciary, those convicted of
laws that were not intended to apply to their circumstance will
have no recourse. But “[n]o right of the victim is advanced, and
no interest of the state served, by incarcerating the innocent.”112
Rather, a court’s fundamental power is “to decide cases
according to [its] own legal interpretations and factual
findings”113 and “to render dispositive judgments.”114 To remove
this power from judges would elevate the role of the legislature
at the expense of the judiciary.
In contrast, when a statute is generally absurd,
Congress is more likely to amend that statute to correct the
absurdity because it is almost certain to recur. The absurdity
108
U.S. CONST. art. I, § 1.
Id. art. III, § 1.
110
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177-78 (1803).
111
“A fundamental precept of the federal constitutional structure . . . is the
distinction between a legislature’s power to enact laws and a court’s authority to
interpret them in the course of adjudicating a case.” William D. Araiza, The Trouble
with Robertson: Equal Protection, The Separation of Powers, and the Line Between
Statutory Amendment and Statutory Interpretation, 48 CATH. U. L. REV. 1055, 1055
(1999) (criticizing the Court’s holding in Robertson v. Seattle Audubon Society, 503 U.S.
429 (1992), for failing to check legislative usurpation of judicial power).
112
Ohio Div. of Wildlife v. Clifton, 89 Ohio Misc. 2d 1, 7 (Mun. Ct. 1997)
(quoting State v. Aldridge, 697 N.E.2d 228, 249 (Ohio Ct. App. 1997)).
113
Araiza, supra note 111, at 1073.
114
Frank H. Easterbrook, Presidential Review, 40 CASE W. RES. L. REV. 905,
926 (1990).
109
2011]
BUT THAT IS ABSURD!
937
will manifest in every case, or at least in a large number of
cases, because Congress crafted a statute it never intended to
draft. The statute, as generally applied, does not do what
Congress intended the statute to do. The language is not just
imperfect or imprecise, it is wrong; thus, Congress has a good
reason to act. Hence, it is less important that a court intervene
in cases of general absurdity because Congress has more
incentive to fix such a statute. Indeed, that is exactly what
happened after the Fifth Circuit’s decision in Mississippi
Poultry Ass’n v. Madigan.115 At issue in that case were the 1985
amendments to § 466(d) of the Poultry Products Inspection
Act.116 That Act specifically required that all imported poultry
products “be subject to the same . . . standards applied . . . in
the United States.”117 The relevant agency had promulgated a
regulation interpreting this Act to require that the foreign
system requirements be “at least equal to” U.S. standards.118 A
lawsuit ensued, and a three judge panel heard the case.119 The
majority found the language “the same” clear—it meant
identical—and rejected the agency’s interpretation.120 Yet the
majority’s interpretation imposed an unintended trade barrier.
No foreign country’s poultry could enter the United States
because the foreign country’s inspection system could never be
“identical” to the U.S. system.121 It is unlikely that Congress
115
992 F.2d 1359 (5th Cir. 1993), aff’d en banc, 31 F.3d 293 (5th Cir. 1994).
Id. at 1361; 21 U.S.C. § 466(d)(1)(A) (1995).
117
21 U.S.C. § 466(d)(1)(A).
118
Requirements for Imported Poultry Products, 52 Fed. Reg. 15,963 (May 1,
1987) (codified at 9 C.F.R. § 381.196) (emphasis added).
119
Miss. Poultry Ass’n v. Madigan, 790 F. Supp. 1283 (S.D. Miss. 1992); Miss.
Poultry Ass’n v. Madigan, 992 F.2d 1359 (5th Cir. 1993). Later, the court on its own
motion ordered a rehearing. Miss. Poultry Ass’n v. Madigan, 9 F.3d 1116 (5th Cir. 1993).
120
Miss. Poultry Ass’n, 31 F.3d at 310. To determine whether the language
was clear, the majority in the initial hearing looked first to a dictionary and concluded
that “any fair reading of the dictionary definition of ‘the same’ overwhelmingly
demonstrate[d] that ‘the same’ [was] congruent with ‘identical.’” Miss. Poultry Ass’n,
992 F.2d at 1364. While the majority acknowledged that secondary dictionary
definitions included synonyms of “equivalent,” such as “closely similar” and
“comparable,” the majority reasoned that substituting “at least equal to” for “the same
as” made no sense in this case because Congress used “at least equal to” to mean
equivalent in other sections of the Act. Id. For example, Congress required states and
territories to have poultry processes “at least equal to” the federal system. Id. at 1364
n.28 (citing 21 U.S.C. § 466(d) (1988)). Additionally, Congress had used “the same” in
other parts of the Act. Id. at 1363 n.26. Because Congress had used both “the same”
and “at least equal to” in other parts of the Act, the majority reasoned that when
Congress wanted to use an equivalency standard, it knew how to do so. Id. at 1364.
121
See Miss. Poultry Ass’n, 992 F.2d. at 1378 (Reavley, J., dissenting)
(commenting on how “[t]he facts of [the] case provide no basis on which to hold that
Congress ‘directly spoke[] to the precise question’ of whether section 466(d) mandates
116
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intended to enact such a trade barrier when it amended this
Act.122 Simply put, the statute was generally absurd when
interpreted according to its ordinary meaning. Yet despite a
rehearing before the full panel, the Fifth Circuit clung to its
textualist interpretation.123 Not surprisingly, shortly after the
case was decided, Congress immediately amended the Act to
replace “the same” with “equivalent to,” thereby removing the
judicially imposed trade barrier.124 Thus, when Congress crafts
a generally absurd statute, Congress can and does correct its
mistake.
In light of the distinction between specific and general
absurdity, textualists should rethink the absurdity safety
valve. As demonstrated, they should be especially loath to
apply the doctrine in cases of specific, as opposed to general,
absurdity because specific absurdity is neither apparent nor
resolvable from the text. Yet it is precisely in cases of specific
absurdity that judicial intervention is needed most. Textualists
neither recognize this distinction nor appreciate how it
undermines textualism’s underpinnings.
CONCLUSION
Absurdity is a textualist’s fail-safe doctrine; it provides
an out when they are faced with the reality that their approach
simply will not work in a given case. Whereas purposivists and
intentionalists do not need such a doctrine to reject clear text,
textualists do. But the need for this doctrine proves the
shortcomings of textualism: judges should apply the clear text,
except when they should not.
Because the absurdity doctrine allows judges to avoid
the ordinary meaning of the text and rewrite the statute to
conform to the intent of Congress, textualists should approach
the doctrine with caution and use it sparingly, if at all. Many
textualists do advocate a narrow application of the absurdity
and scrivener’s error doctrines. But as noted elsewhere:
identicality” (quoting Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837, 841 (1984))).
122
The dissent found it inconceivable that Congress would enact a statute with
such major trade implications without talking about “why a barrier was justified, what it
was supposed to accomplish, or how its effectiveness would be monitored.” Id. at 1364.
123
Miss. Poultry Ass’n, 31 F.3d at 310.
124
Poultry Products Inspection Act § 431(k)(1), 21 U.S.C. § 466(d)(1) (1994).
2011]
BUT THAT IS ABSURD!
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Even narrow versions of these doctrines undercut textualist
principles to the extent courts are permitted to consider policy or
legislative intent that runs contrary to unambiguous statutory
language. . . . Potentially, the benefits from having these doctrines as
an option do not counterbalance the effects of courts and litigators
that read them broadly.125
Because it is neither apparent nor resolvable from text alone,
specific absurdity, in particular, is problematic for textualists.
At bottom, specific absurdity and textualism are simply
incompatible.126 Yet it is precisely when statutes are specifically
absurd that judges should be willing to consider nontextualist
sources and craft appropriate exceptions because Congress will
not do so. Hence, the absurdity doctrine demonstrates the
failings of textualism.
125
Gold, supra note 1, at 60-61 (citing Siegel, supra note 2, at 325 n.73 for
examples of British cases rejecting the absurdity doctrine and Michael S. Fried, A
Theory of Scrivener’s Error, 52 RUTGERS L. REV. 589, 596 (2000) for examples of British
cases rejecting the scrivener’s error doctrine).
126
But see id. at 61 n.207 (citing JOHN COPELAND NAGLE, Textualism’s
Exceptions, in ISSUES IN LEGAL SCHOLARSHIP (2002)) (disagreeing with those who
argue that the absurdity and scrivener’s error doctrines contradict textualism). Gold
proposes a theory of absurdity that supports textualism:
This article proposes a different solution for absurd results: a clear statutory
text is not actually disregarded when the absurdity doctrine is applied. Instead,
the absurdity doctrine is triggered by those highly unusual situations in which
a presumed legislative intent is in conflict with a “literal” application of
statutory language. In those instances, the objective meaning of the statute to a
competent user of the language is distinct from its otherwise literal meaning.
Id. at 64. He suggests further that the proper treatment of scrivener’s errors requires
that “when a drafting error is sufficiently obvious from a reasonable reading of a
statute that it could not represent what Congress intended to write, the court should
read the statute as if the error had been corrected.” Id. at 74-75.
So understood, neither the absurdity doctrine nor the scrivener’s error doctrine
is an exception to textualism. They simply provide additional evidence that
textualism diverges from literalism. Textualism’s purported exceptions fit
nicely with the idea that courts “do not inquire what the legislature meant,” but
“ask only what the statute means.”
Id. at 84-85.
Passive-Voice References in Statutory
Interpretation
*
Anita S. Krishnakumar†
INTRODUCTION
The Supreme Court regularly references grammar rules
when interpreting statutory language. And yet grammar
references play a peculiar role in the Court’s statutory cases—
often lurking in the background and performing corroborative
work to support a construction arrived at primarily through
other interpretive tools. The inevitable legisprudential1
question triggered by such references is, why does the Court
bother? If grammar rules provide merely a second, third, or
fourth justification for an interpretation reached through other
interpretive canons, then what does the Court gain—or think it
gains—by including such rules in its statutory analysis?
This essay examines these questions through the lens of
a little-noticed grammar reference that has reared its head in a
handful of Supreme Court cases: inferences based on a
statute’s use of the passive voice. The essay argues that the
Supreme Court’s framing of passive-voice arguments suggests
both legitimating and harmonizing roles for grammar
references in statutory interpretation. Larry Solan has argued
that judges employ linguistic analysis in statutory
interpretation because they are under pressure to write
decisively and to limit what they say to certain acceptable
argument forms.2 Linguistic arguments, Solan theorizes, lend a
(false) sense of neutrality and inevitability to a court’s
*
© 2011 Anita S. Krishnakumar. All rights reserved.
Associate Professor, St. John’s University School of Law. J.D., Yale Law
School, 1999; A.B., with distinction, Stanford University, 1996.
1
The term “legisprudence” refers to “the jurisprudence of legislation,” as
described by Bill Eskridge. See William N. Eskridge, Jr., The New Textualism, 37 UCLA
L. REV. 621, 624 (1990); John L. Flynn, Mixed-Motive Causation Under the ADA: Linked
Statutes, Fuzzy Thinking, and Clear Statements, 83 GEO. L.J. 2009, 2012 (1995); Abbe R.
Gluck, The States as Laboratories of Statutory Interpretation: Methodological Consensus
and the New Modified Textualism, 119 YALE L.J. 1750, 1762 n.32 (2010).
2
LAWRENCE M. SOLAN, THE LANGUAGE OF JUDGES 9, 174 (1993).
†
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statutory reading—making it seem as if the court had no choice
but to construe the statute in the selected manner.3 The Court’s
passive-voice-based linguistic arguments provide some support
for Solan’s theory. But I submit that there is more to the
Court’s articulation of passive-voice-based interpretive
inferences than the legitimation of its statutory constructions.
This essay argues that the Court also uses passive-voice
references to promote horizontal coherence across the United
States Code. That is, when the Court announces particular
interpretive inferences that flow from a statute’s use of the
passive voice and other grammar devices, it not only justifies
its interpretation of the statute at issue but also constructs
consistency of meaning across federal statutes.
Elsewhere, I have posited that several members of the
Court are motivated by a methodological preference for
ensuring coherence across the legal landscape when construing
statutes.4 In line with this preference, when the Court derives
specific consequences from a statute’s grammatical choices, it
does not merely apply well-worn rules to the statute at hand; it
also engages in a subtle project of constructing coherence
across the legal landscape⎯creating, in effect, a judicially
prescribed federal code of grammatical meaning.
I.
THE PASSIVE-VOICE CASES
To date, six Supreme Court cases, decided between 1977
and 2009, have referenced a statute’s use of the passive voice to
determine the statute’s meaning.5 Most of these cases have
involved criminal statutes,6 and four have referenced the
passive voice only to observe that it leaves the statute’s
meaning indeterminate.7 Opinions in two of the cases have read
3
Id. at 4, 45.
See generally Anita S. Krishnakumar, Statutory Interpretation in the Roberts
Court’s First Era: An Empirical and Doctrinal Analysis, 62 HASTINGS L.J. 221 (2010).
5
See Dean v. United States, 129 S. Ct. 1849, 1853 (2009); Watson v. United
States, 552 U.S. 74, 81 (2007); Jones v. United States, 526 U.S. 227, 259 (1999)
(Kennedy, J., dissenting); United States v. Wilson, 503 U.S. 329, 332-33 (1992); id. at
341, 343 (Stevens, J., dissenting); Gladstone, Realtors v. Vill. of Bellwood, 441 U.S. 91,
102-03 (1979); E. I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 128-29 (1977).
6
See Dean, 129 S. Ct. at 1853; Watson, 552 U.S. at 81; Jones, 526 U.S. at
259 (Kennedy, J., dissenting); Wilson, 503 U.S. at 332-33; id. at 341, 343 (Stevens, J.,
dissenting).
7
See Watson, 552 U.S. at 81; Wilson, 503 U.S. at 332-33; id. at 341, 343
(Stevens, J., dissenting); Gladstone, Realtors, 441 U.S. at 102-03; E. I. du Pont de
Nemours, 430 U.S. at 128-29.
4
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943
something significant into Congress’s decision to employ the
passive voice in a statutory phrase.8 This part reviews all six
cases, focusing on the latter two in which the Court placed
noteworthy weight on a statute’s use of the passive voice.
A.
The Passive Voice as Indeterminate
There is nothing remarkable about the Court’s passivevoice references in the first four cases. In each case, the Court
merely acknowledged that the passive voice obscured the
identity of the statutory actor who was authorized or deemed to
take the action described in the provision. In Watson v. United
States, for example, the Court noted that the statute’s use of
the passive voice made it unclear whether a person who trades
drugs for a gun “uses” a gun within the meaning of the statute.9
The passive voice played a similar role in Gladstone, Realtors v.
Village of Bellwood, where the Court held that because Title
VIII used the passive voice in authorizing civil actions for
violations of the statute, the statute placed “no particular
statutory restrictions on potential plaintiffs” entitled to bring
enforcement suits.10 Likewise, in E. I. du Pont de Nemours &
Co. v. Train, the Court found that a section of the Federal
Water Pollution Control Act, which used the passive voice in
describing effluent limitations, was unclear as to whether the
administrator or the permit issuer⎯that is, which actor⎯was
supposed to establish the limitations.11 Last, in United States v.
Wilson, both the majority and dissenting opinions observed
that a Sentencing Reform Act provision written in the passive
voice “created doubt”12 and “failed to identify” which decision
maker⎯the attorney general or the judge⎯was to effectuate
the sentencing credit in the provision.13
8
See Dean, 129 S. Ct. at 1853; Jones, 526 U.S. at 259 (Kennedy, J.,
dissenting).
9
Watson, 552 U.S. at 81. The statute at issue provided a mandatory minimum
sentence for a defendant “who, during and in relation to any crime of violence or drug
trafficking crime . . . , uses or caries a firearm.” 18 U.S.C. § 924(c)(1)(A) (2006).
10
Gladstone, Realtors, 441 U.S. at 103.
11
E. I. du Pont de Nemours, 430 U.S. at 128-29. Based on the language in the
statute’s other sections, the Court ultimately concluded that it was the administrator
who was to do so, but it declared the section written in the passive voice indeterminate
on this question. Id.
12
Wilson, 503 U.S. at 332.
13
Id. at 341-42 (Stevens, J., dissenting). The majority and dissent both
concluded, based on other considerations, that one actor should nevertheless be
preferred over the other. Id. at 333 (majority opinion); id. at 343 (Stevens, J.,
dissenting).
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Each of these passive-voice references comports with
traditional grammatical understandings of the passive voice as
a linguistic construction that focuses on the object of the
relevant action rather than the person performing the action.14
Taken together, these four cases stand for the uncontroversial
presumption that a statute written in the passive voice leaves
the identity of the relevant statutory actor indeterminate. The
Court seems neither to do much with nor to gain much from
this form of passive-voice reference. Rather, it simply notes
that the passive voice creates interpretive ambiguity.
B.
The Passive Voice and Culpability
In Dean v. United States, by contrast, the Court drew
significant inferences from the fact that the statute was
written in the passive voice. Specifically, the Court pointed to
the statute’s use of the passive voice to bolster its argument
that a firearms-enhancement provision did not require
intentional action by the defendant.15 The statute at issue
provided that any person who “uses,” “carries,” or “possesses” a
firearm while committing a violent crime is subject to a
sentencing enhancement of at least five years and at least ten
years “if the firearm is discharged.”16 Defendant Dean carried a
gun while robbing a bank; as he was collecting money from a
teller’s drawer, the gun accidentally discharged.17 The statutory
dispute was over whether the enhancement provision’s “is
discharged” language contains a requirement that the
defendant intend to discharge the firearm.18
In a 7-2 opinion, the Court held that the “is discharged”
clause does not contain an intent requirement.19 Justice
Roberts’s opinion for the Court began with a nod to the
statutory text, noting that the text “does not require that the
discharge be done knowingly or intentionally, or otherwise
contain words of limitation.”20 The opinion then launched into a
nuanced argument about the meaning of the passive voice in
criminal statutes:
14
15
16
17
18
19
20
See BRYAN A. GARNER, A DICTIONARY OF MODERN AMERICAN USAGE 483 (1998).
See Dean v. United States, 129 S. Ct. 1849, 1853 (2009).
18 U.S.C. § 924(c)(1)(A) (2006).
Dean, 129 S. Ct. at 1852.
Id. at 1852-53.
Id.
Id. at 1853.
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Congress’s use of the passive voice further indicates that subsection
(iii) does not require proof of intent. The passive voice focuses on an
event that occurs without respect to a specific actor, and therefore
without respect to any actor’s intent or culpability. It is whether
something happened—not how or why it happened—that matters.21
Several interpretive moves are at work in this paragraph. First
the Court made the uncontroversial statement that the passive
voice focuses on the action that takes place rather than on its
performer. From there, the Court leapt to the conclusion that a
statute written in the passive voice is triggered any time the
action it describes occurs—without regard to the intent or
culpability of any actor, and without regard to whether any
actor actually has committed the described action.
As support for this leap, the Court wove a thread
connecting the grammatical form of the “is discharged”
language in Dean with the grammatical form of the “to be
used” language in the firearms-enhancement provision in
Watson⎯claiming that Watson established that the passive
voice in the phrase “to be used” reflects “agnosticism . . . about
who does the using.”22 This statement, of course, was a slight
recharacterization of Watson, which held merely that the
passive voice in the phrase “to be used” left unclear whether
the statute applied to a person who trades drugs for a gun.23
Thus, the Dean Court did not simply apply an established
grammar rule to a statute; it (re)defined the statutory
consequences of the legislature’s use of the passive voice based
on its own prior construction of that grammatical device.
Why did the Court bother with this less-thanstraightforward argument about the passive voice? One can
only speculate, but the Court’s passive-voice reference in Dean
appears to have accomplished two things. First, it acted as a
linguistic trump card, corroborating and lending an air of
neutrality to the Court’s reading of the statute. Second, it
promoted horizontal, landscape coherence by articulating a
conventional statutory meaning for passive-voice usage across
statutes and cases. That is, it created a sort of common-law,
judicially prescribed rule about what a statute’s use of the
21
Id. (emphasis added) (citations omitted).
Id. (emphasis added).
23
Watson v. United States, 552 U.S. 74, 81 (2007) (“[T]he utility of
§ 924(d)(1) is limited by its generality and its passive voice; it tells us a gun can be
‘used’ in a receipt crime, but not whether both parties to a transfer use the gun, or only
one, or which one.”).
22
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passive voice means. Going forward, the Court’s decisions in
Dean and Watson establish a linguistic presumption that a
statute that uses the passive voice contains no intent or
culpability requirement⎯at least in the case of firearmsenhancement provisions24 and perhaps in the case of all
criminal statutes. This is so despite the fact that the passivevoice argument performed only corroborative work in Dean and
Watson; because the Court’s statements about the interpretive
consequences of the passive voice are not statute-specific,
subsequent courts will be hard-pressed to give a contrary
meaning to other criminal statutes written in the passive voice.
C.
The Passive Voice and Sentencing Factors
In Jones v. United States, Justice Kennedy’s dissenting
opinion similarly relied on a statute’s use of the passive voice to
draw definitive inferences about the statute’s meaning.25 Jones
involved the construction of the federal carjacking statute, 18
U.S.C. § 2119, which reads 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.26
Defendant Jones had participated in a carjacking with two
other men.27 While Jones and one of the other men held up the
victims, the third man stuck his gun in one of the victims’ ears
and later struck that victim on the head, causing serious
injury.28 The issue was whether the statute’s numbered
24
See, e.g., United States v. Lora-Pena, 375 F. App’x 242, 246-47 (3d Cir.
2010) (citing Dean, 129 S. Ct. at 1853, to conclude that a Sentencing Guideline
requiring “a five-level increase in offense level if ‘a firearm was discharged’ . . . does not
distinguish between accidental and purposeful discharges, and does not require a
finding that defendant pulled the trigger”).
25
Jones v. United States, 526 U.S. 227, 259 (1999) (Kennedy, J., dissenting).
26
18 U.S.C. § 2119 (1988) (amended 1994 & 1996).
27
Jones, 526 U.S. at 229-31.
28
Id.
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subclauses were sentencing provisions—specifying escalating
punishments for the offense set forth in the first paragraph—or
whether they instead constituted three separate offenses.29
In a 5-4 opinion, the Court concluded that “the fairest
reading” of the statute was to treat the serious-bodily-harm
provision as an element of a separate offense rather than as a
mere sentencing enhancement.30 Justice Kennedy, joined by
three other dissenters, disagreed. The dissenting opinion relied
significantly on the structure of the statute31 but also
emphasized the statute’s use of the passive voice:
[T]here is some significance in the use of the active voice in the main
paragraph and the passive voice in clauses (2) and (3) of § 2119. In
the more common practice, criminal statutes use the active voice to
define prohibited conduct. See, e.g., 18 U.S.C. § 1116 (1994 ed., Supp.
III) (“[w]hoever kills or attempts to kill”); § 2114 (“assaults,” “robs or
attempts to rob,” “receives, possesses, conceals, or disposes”); Tex.
Penal Code Ann. §§ 29.03(a)(1), (2) (1994) (aggravated robbery;
“causes serious bodily injury,” or “uses or exhibits a deadly weapon”);
cf. 18 U.S.C. § 248(b) (setting forth, as sentencing factors, “if bodily
injury results,” and “if death results”); United States Sentencing
Commission, Guidelines Manual § 2B3.1(b)(3) (Nov. 1998) (robbery
guideline; “[i]f any victim sustained bodily injury”).32
Again, several interpretive moves are at work in this grammarbased argument. First, the dissent made the authoritative
linguistic-drafting-convention statement that “[i]n the more
common practice, criminal statutes use the active voice to
define prohibited conduct.”33 It then referenced several federal
statutes, a state statute, and the United States Sentencing
Commission Guidelines Manual to establish this drafting
convention.34 The dissent’s passive-voice argument thus
involved very little linguistic analysis and quite a lot of judicial
synthesis, or landscape coherence-construction. As far as one
29
Id. at 230-32. The distinction was crucial because the indictment had not
charged any of the facts relating to bodily injury, and the jury instructions had defined
the elements of the government’s burden of proof with reference only to the first
paragraph of the statute. If the second and third subclauses were deemed to be
sentencing provisions, this would not matter, and Jones could be sentenced to twenty-five
years based on the serious bodily injury caused to one of the victims. If, however, the
subclauses 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 twenty-five-year penalty against Jones.
30
Id. at 239.
31
Id. at 256 (Kennedy, J., dissenting).
32
Id. at 258-59.
33
Id. at 258 (emphasis added).
34
Id. at 258-59.
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can tell, there was no established rule⎯linguistic, legislative,
judicial, or otherwise⎯behind the dissent’s pronouncement.
The dissenters seem to have constructed this drafting
convention out of their own assessment of the other criminal
statutes and guidelines they discovered in the surrounding
legal landscape.
Again, the lingering legisprudential question is, why
bother? And again, the answer appears to be twofold:
legitimation and horizontal coherence. Although the passivevoice drafting convention announced by the dissent was not
necessary to its construction of the statute, the grammar-based
argument lent an element of detached tie-breaking to that
construction. Faced with the close question of whether to treat
§ 2119’s clauses as sentencing enhancements or elements of the
offense, the grammar reference cloaked the dissent’s
interpretation with the imprimatur of neutrality⎯presenting it
as the product of drafting custom rather than ideological
sympathies or a desire to reach a particular result. This is
Larry Solan’s theory in action. But there is more than
legitimation going on here, particularly since the dissent
undermined the force of its drafting-convention argument by
acknowledging, in the following paragraph, that the passiveversus-active-voice distinctions “are not absolute rules.”35
In addition, the dissent’s passive-voice argument also
harmonized (or attempted to harmonize) meaning across
criminal statutes. Like the Court’s opinion in Dean, the Jones
dissent did not merely apply grammar rules to the carjacking
statute as set forth in a grammar handbook. Instead, it used
the statute’s grammatical structure as a means for threading
various parts of the statutory framework together into a
coherent whole.36 This brought coherence to the legal landscape
in two ways. First, it established a presumption (and pattern)
across existing criminal statutes that the active voice describes
elements of an offense while the passive voice reflects
sentencing factors.37 Second, it announced a drafting
35
Id. at 259.
See id. at 258-59; see also Dean v. United States, 129 S. Ct. 1849, 1853
(2009) (citing comments in Watson v. United States, 552 U.S. 74, 81 (2007), regarding
the meaning associated with a statute’s use of the passive voice).
37
Of course, as a practical matter, this presumption has limited force since it
appeared in the dissent rather than the majority opinion. But I would not be surprised if
it is invoked in the future: the Jones majority opinion relied heavily on the constitutional
avoidance doctrine to reject reading the statute’s subclauses as additional sentencing
factors that the prosecution was not required to plead or prove. Jones, 526 U.S. at 239-40.
36
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949
convention, going forward, about the interpretive consequences
of composing criminal statutes in the passive, as opposed to the
active, voice.
The Jones dissent illustrates that judges are drawn to
grammar-based—or at least passive-voice-based—arguments
even when those arguments are neither necessary to the
statute’s construction nor particularly definitive. Part of the
reason for this appeal is the false aura of detached decision
making associated with linguistic analysis. But part of the
appeal also lies in the fact that linguistic analysis provides a
natural tool through which judges can impose external
coherence across statutes, and can reason from statute to
statute and from case to case.
II.
GRAMMAR REFERENCES AND HORIZONTAL COHERENCE
This legitimation-plus-harmonization use of grammatical
analysis is similar to the two-in-one approach that the Court
uses when invoking the whole-act rule38 or its own prior
interpretation of a particular word to interpret a statute.39 On
the one hand, when the Court relies on the whole-act rule or its
own prior interpretations, it engages in a sort of legal fiction,
Perhaps the Jones dissent’s presumption will resurface in a case that distinguishes the
Jones majority’s contrary construction on constitutional grounds.
38
The whole-act rule presumes internal statutory coherence—that the
legislature drafts each statute as a structurally consistent document, both “in its use of
language and in the way [the statute’s] provisions work together.” See WILLIAM N.
ESKRIDGE, JR., PHILIP P. FRICKEY & ELIZABETH GARRETT, CASES AND MATERIALS ON
LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 862 (4th ed. 2007).
Consistent with this underlying assumption, the whole-act rule instructs courts to
interpret statutory provisions in a way that does not render the statute’s other
provisions redundant or superfluous, and presumes that identical words used in
different parts of the same statute have the same meaning. The rule also counsels that
when the legislature includes particular language in one section of a statute but omits
it in another, it acts deliberately and intends different meanings by the disparate
wording. See, e.g., Keene Corp. v. United States, 508 U.S. 200, 208 (1993) (disparate
wording); Sullivan v. Stroop, 496 U.S. 478, 484 (1990) (presumption of consistent
meaning for identical words); Kungys v. United States, 485 U.S. 759, 778 (1988)
(presumption against redundancy).
39
The Court presumes that Congress legislates against the backdrop of prior
judicial interpretations of other statutes. Through this presumption, the Court justifies
its reference to its own prior interpretations when giving meaning to similar words or
phrases in a new statute. See, e.g., Antonin Scalia, Common-Law Courts in a Civil-Law
System: The Role of United States Federal Courts in Interpreting the Constitution and
Laws, in ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE
LAW 16-17 (Amy Gutmann ed., 1997) (“Another accepted rule of construction is that
ambiguities in a newly enacted statute are to be resolved in such fashion as to make
the statute, not only internally consistent, but also compatible with previously enacted
laws. We simply assume, for purposes of our search for ‘intent,’ that the enacting
legislature was aware of all those other laws. . . . [O]f course that is a fiction . . . .”).
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presuming that the construction it has chosen likely is the one
Congress intended because it makes the most sense given the
statute’s structure or the judiciary’s prior interpretation of a
word. On the other hand, the Court is also saying that even if it
sets aside the legal fiction that Congress is internally consistent
and deliberate in structuring a statute or that Congress
legislates with an awareness of the Court’s previous
interpretations of particular words, it nevertheless is
appropriate to employ the whole-act rule and its own prior
interpretations to construe statutes because these interpretive
rules help make sense of the overarching, interconnected legal
landscape of which the statute is a part. In other words,
irrespective of what we know about how Congress behaves when
drafting statutes, the Court considers it part of its role as
interpreter to bring coherence to the law and to harmonize
various legal rules into a sensible whole—much as it would
synthesize common-law precedents if it were working with
common-law rules rather than with statutes. The same thing is
happening, I think, with the Court’s passive-voice references. In
Jones, the dissenting opinion both (1) engaged in the legal fiction
that Congress deliberately uses the passive voice to articulate
sentencing factors and the active voice to articulate offense
elements; and (2) at the same time, announced that even if
Congress did not deliberately employ this passive-versus-activevoice distinction, the distinction is a good one—providing a
drafting rule that makes sense of the existing legal framework—
and thus should be applied in construing the statute at issue.
The same legal fiction plus drafting-convention announcement
were at work in the Court’s opinion in Dean.
In my view, then, the Court’s passive-voice-based
grammar arguments are a little less corroborative and a little
more constructive than they might appear at first glance. That
is, the Court references a statute’s grammatical structure not
because it is convinced that that grammatical structure reveals
Congress’s true intent or that Congress focused on the particular
meaning conveyed by its grammatical choices when drafting the
statute. In other words, I do not think that the Court uses
grammar references to lead it to—or to check itself against—
Congress’s actual intent. Rather, in citing the statute’s use of the
passive voice, Justice Kennedy’s dissent in Jones seems to be
saying that, because its statutory reading is consistent with the
way Congress and state legislatures have drafted other criminal
statutes, its construction should be preferred—irrespective of
whether Congress deliberately intended that construction when
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it chose to use the passive voice. The Court’s passive-voice
argument in Dean is to similar effect: the Court seems to be
stating that because its construction of the “is discharged”
provision is consistent with its own prior construction of other
statutory provisions using the passive voice, this construction is
the correct one—regardless of whether Congress was aware of,
or agreed with, the prior interpretation. The Court’s passivevoice references, then, are about promoting continuity, external
consistency, and drafting rules that Congress will have to follow
in the future or will be presumed to have followed in the
future—almost as if the Court were creating a judicial code of
grammatical meaning.
Finally, it is worth noting that this “aggressive” use of
the passive voice—aggressive both in the sense that the Court
is assigning particular meanings to a statute’s use of the
passive voice and in the sense that the Court is using the
passive voice to formulate a drafting convention that cuts
across statutes—seems to be a relatively recent development in
the Court’s jurisprudence. The Jones case was decided in 1999,
and Dean was decided in 2009. As explained in Part I, in its
earlier cases, the Court confined its passive-voice references to
the unassuming recognition that a statute written in the
passive voice left unclear the identity of the relevant statutory
actor. Only recently has the Court sought to give more
interpretive weight to a statute’s use of the passive voice, let
alone to announce a particular, consistent meaning to be
associated with the passive voice across statutes.
CONCLUSION
This essay seeks to shed new light on the role that
grammar-based linguistic arguments play in the Supreme
Court’s statutory cases, in partial answer to the question posed
by this symposium, How much work—and what kind—does
language do in statutory interpretation? Using the Court’s
passive-voice-based linguistic arguments as a case study,40 the
40
Although this article focuses on the Court’s passive-voice references, a
similar coherence-driven approach using the adjective “any” appears to exist across
statutes. See Boyle v. United States, 129 S. Ct. 2237, 2243 (2009) (“The term ‘any’
ensures that the definition has a wide reach . . . .” (citing Ali v. Fed. Bureau of Prisons,
552 U.S. 214, 219 (2008))); Republic of Iraq v. Beaty, 129 S. Ct. 2183, 2189 (2009)
(“[T]he word ‘any’ . . . has an ‘expansive meaning.’” (quoting United States v. Gonzales,
520 U.S. 1, 5 (1997))); United States v. Clintwood Elkhorn Mining Co., 553 U.S. 1, 7
(2008) (“Five ‘any’s’ in one sentence and it begins to seem that Congress meant the
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essay suggests that grammar references perform two
significant roles in the Court’s construction of statutes. First,
as Larry Solan has previously observed, grammar arguments
seem to lend an imprimatur of neutrality to the Court’s
interpretations. Second, like the whole-act-rule presumption
about consistent meaning within a single statute and the
Court’s reliance on its own prior constructions of similar words,
grammar-based arguments provide the Court with a toolset for
constructing consistent meaning across the federal code.
Grammatical analysis thus appears to play an important role
in constructing conventional statutory meaning as much as in
corroborating it.
statute to have expansive reach.”); LaRue v. DeWolff, Boberg & Assocs., 552 U.S. 248,
261 (2008) (Thomas, J., concurring) (arguing that “any” is indiscriminate and
provisions applying to “any losses” mean “all” losses are included (citing Ali, 552 U.S.
at 219)); Ali, 552 U.S. at 219 (“Read naturally, the word ‘any’ has an expansive
meaning, that is, ‘one or some indiscriminately of whatever kind.’” (quoting Gonzales,
520 U.S. at 5)); Massachusetts v. EPA, 549 U.S. 497, 528-29 (2007) (holding that “any”
in statutory text “embraces all airborne compounds of whatever stripe”); Lopez v.
Gonzales, 549 U.S. 47, 61-62 (2006) (Thomas, J., dissenting) (“[T]he word ‘any’ . . . has
an ‘expansive meaning.’” (quoting Gonzales, 520 U.S. at 5)); Small v. United States, 544
U.S. 385, 397 (2005) (Thomas, J., dissenting) (arguing that “any court” is a “broad
phrase”). So the Court’s use of linguistic analysis to foster coherence does not appear
limited to the passive-voice grammatical device.
Penalty Default Interpretive Canons
*
Rebecca M. Kysar†
INTRODUCTION
A preference for a particular method of statutory
interpretation over another often relates to one’s view of the
legislative process. In advancing his textualist approach, for
example, Justice Scalia relies in part on a conception that the
legislative process, filled with self-serving representatives who
plant misleading statements into the legislative record,
malfunctions.1 Purposivists, on the other hand, share a more
benign opinion of the legislative process—interpreting statutes
in accordance with meritorious, public-regarding aims that
were presumably sought by lawmakers in enacting the
legislation in question. Neither understanding of the legislative
process satisfies,2 and scholars continue to search for methods
of statutory interpretation that reflect the actual functioning of
the legislative process.
A scholarly focus on whether a methodology of statutory
interpretation is too cynical or too optimistic of the legislative
process, however, is incomplete; in evaluating a methodology,
scholarship must also explore how it affects the legislative
process. Whether courts should remedy defects in the
legislative process through the interpretive endeavor—or even
whether they can—have been enduring questions in the
*
© 2011 Rebecca M. Kysar. All rights reserved.
Assistant Professor of Law, Brooklyn Law School. For extremely valuable
comments, I am grateful to Kelly Dunbar, Anita Krishnakumar, Minor Myers, Larry
Solan, and the participants of this symposium, as well as those of the 2011 panel for
the AALS Section on Legislation and the Law of the Political Process.
1
ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND
THE LAW 34 (1997).
2
Even modern public-choice theory—a school of political science rooted in
cynicism of representatives’ incentives—accepts a view of lawmakers that encompasses
their pursuit of ideological preferences, in addition to campaign contributions and other
rents. At times, however, the legal academy has not embraced such an expansive view
of the theory. Daniel Shaviro, Beyond Public Choice and Public Interest: A Study of the
Legislative Process as Illustrated by Tax Legislation in the 1980s, 139 U. PA. L. REV. 1,
66-68, 77 (1990).
†
953
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academy,3 although one rarely visited in recent years. In this
short essay, I conclude that such a curative function is indeed
possible and desirable when Congress itself wishes it.
Congress, for instance, has internal rules designed to cure
collective-action problems yet often has no means of enforcing
them, even when it so desires. I propose, however, that courts
can sometimes aid Congress by assuming that those rules
function correctly even when they do not.
This interpretive approach falls within my novel
categorization of several methodologies that contemplate a
mismatch between reality and the view of the legislative
process they assume. It is precisely this distorted view that
eradicates identified problems in the legislative process. The
problem I focus upon in this essay is that of “hidden” specialinterest provisions, the beneficiaries of which are not
transparent to other lawmakers or in the statute’s plain
language. More specifically, by assuming counterfactually that
legislators actually disclose special-interest provisions, courts
can create incentives for lawmakers to indeed do so.
Collectively, I label these methodologies “penalty
default interpretive canons”4 because they are analogous to the
famous Ayres-Gertner thesis recommending that courts employ
“penalty default” rules to specify outcomes that the contracting
parties do not wish and, in turn, create incentives for the
parties to reveal efficiency-enhancing information.5 Penalty
default interpretive canons punish individual lawmakers who
obscurely dole out special-interest benefits by refusing to give
those deals effect. These canons accordingly motivate
lawmakers to make special-interest benefits manifest—and
3
See, e.g., RONALD DWORKIN, LAW’S EMPIRE 319 (1986); Jonathan R. Macey,
Promoting Public-Regarding Legislation Through Statutory Interpretation: An Interest
Group Model, 86 COLUM. L. REV. 223 (1986); William D. Popkin, Foreword: Nonjudicial
Statutory Interpretation, 66 CHI.-KENT L. REV. 301, 315 (1990); Jane S. Schacter,
Metademocracy: The Changing Structure of Legitimacy in Statutory Interpretation, 108
HARV. L. REV. 593, 607-11 (1995); Cass R. Sunstein, Beyond the Republican Revival, 97
YALE L.J. 1539, 1584-85 (1988); Cass R. Sunstein, Interpreting Statutes in the
Regulatory State, 103 HARV. L. REV. 405, 457 (1989) [hereinafter Sunstein, Interpreting
Statutes]; Cass R. Sunstein, Law and Administration After Chevron, 90 COLUM. L. REV.
2071, 2114-15 (1990).
4
Two scholars have labeled their proposal, by which courts would hold
unconstitutional “statutes whose incompleteness is designed to shift responsibility
from the legislature onto other governmental branches,” as “the penalty default canon.”
Scott Baker & Kimberly D. Krawiec, The Penalty Default Canon, 72 GEO. WASH. L.
REV. 663, 667 (2004). My labeling differs in that it applies to canons of statutory
interpretation rather than constitutionality.
5
Ian Ayres & Robert Gertner, Filling Gaps in Incomplete Contracts: An
Economic Theory of Default Rules, 99 YALE L.J. 87, 91 (1989).
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955
thus subject to congressional and public scrutiny—during the
legislative process.
These canons generally do no interpretive harm when
the legislative process accords with its assumed goal; that is,
when it is clear that statutory provisions benefit certain special
interests, the canons operate to bestow those benefits. Thus,
penalty default interpretive canons may satisfy both cynics of
and believers in the legislative process. By identifying such a
category, this essay presents a more robust typology of theories
and methods of statutory construction vis-à-vis the legislative
process.
This essay starts from the premise that hidden interestgroup deals are problematic—a foundational assumption supported
by pluralist and republican theories alike.6 When one’s view of the
legislative process’s proper aims expands from transparency in
lawmaking, one will accept other interpretive methods as properly
invoked—even when they rest upon unrealistic conjectures about
the legislative process—so long as the conjecture is curative of the
assumed “ills” that befall Congress.
In Part I of this essay, I discuss typical critiques of two
dominant
interpretive
methodologies—textualism
and
purposivism—that focus on their unrealistic depictions of the
legislative process. In Part II, I then set forth the category of
penalty default canons. Specifically, I discuss the several
theories and methodologies that comprise this category and
argue that their improbable account of the legislative process
counterintuitively improves upon it. I also identify aspects of
textualism and purposivism that may function as penalty
default interpretive canons depending on one’s conception of
the ideal legislative process. I conclude, however, that the
subset of penalty default interpretive canons deriving from
Congress’s own rules intrudes less on Congress’s lawmaking
function than other interpretive canons and methodologies.
I.
THE TRADITIONAL TYPOLOGY
One could argue that interpretive methodologies are
improperly invoked when their underlying view of the
6
See Rebecca M. Kysar, Listening to Congress: Earmark Rules and Statutory
Interpretation, 94 CORNELL L. REV. 519, 575-78 (2009) (arguing that pluralists
generally would not seek to enforce interest-group deals that are hidden from
congressional members while republicans would generally prefer exposure of interestgroup deals to further deliberation).
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legislative process deviates from that process’s actual
functioning. I refer to this perspective as the “traditional” way
of understanding statutory interpretation, and in this part,
apply it to both textualism and purposivism.
A.
Textualism
I begin with textualism. Textualists rely, in part, on
hypothesized dysfunctions in the legislative process to justify
rejecting a statute’s legislative history in favor of the statutory
text. They argue, for example, that members of Congress do not
use legislative history to enrich debate or to convince their
colleagues of a statute’s proper meaning; instead, Congress uses
legislative history strategically to influence later judicial
constructions of the legislation. Owing to the massive increase in
statutory proposals, textualists argue that legislators rarely
even have the chance to read an act’s legislative history. For this
reason, textualists insist that there are ample opportunities for
legislators to inject a pet agenda into the legislative history
without fear of retaliation from competing interests.7 In this
manner, committee reports and floor statements do not record
genuine legislative debate. And legislative materials thus do not
reflect Congress’s actual intent.
Moreover, it is a costly endeavor to cement interestgroup deals in the actual language of a statute—which must
pass through the two houses of Congress and be signed by the
President.8 The insertion of legislative-history language
favorable to the interest group is a much cheaper deal to
strike.9 Because committee members’ views are often in line
with interest groups rather than their fellow lawmakers, this
phenomenon may be quite prevalent.10 Textualists argue that
7
See John F. Manning, Textualism as a Nondelegation Doctrine, 97 COLUM.
L. REV. 673, 686 nn.56-58 (1997) (citing sources concluding that members of Congress
seldom see legislative history before casting their votes). But see William N. Eskridge,
Jr., Legislative History Values, 66 CHI.-KENT L. REV. 365, 377 n.44 (1990) (citing
studies that show legislators are more likely to read a committee report than a bill).
8
Thus, interest groups and lawmakers attempt to smuggle in their deals
under the guise of public-interest legislation. Macey, supra note 3, at 232.
9
See Edward P. Schwartz et al., A Positive Theory of Legislative Intent, 57
LAW & CONTEMP. PROBS. 51, 54-55 (1994) (“While the generation of supplementary
legislative materials is costly, it is not nearly so costly as writing more specific statutes.
In addition to the time and manpower necessary to produce the statutory language, it
must be agreed upon by the Congress, a process that becomes more precarious as
legislation becomes more specific.”).
10
Einer R. Elhauge, Does Interest Group Theory Justify More Intrusive
Judicial Review?, 101 YALE L.J. 31, 42 (1991) (“Committee membership rarely
2011]
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judicial consultation of legislative history increases the
likelihood that these hidden deals will be enforced—thus
making them more valuable and prevalent.11 In light of these
features of the legislative process, textualists firmly believe
that the surest guide to the legislature’s intent is the actual
text of the statute voted upon by members of Congress.
Finally, some textualists rely on insights from publicchoice theory that indicate the legislative process’s inability to
aggregate lawmakers’ individual preferences into a single
collective choice, a contention made famous by Kenneth Arrow.12
One could describe this phenomenon as another dysfunction of
the legislative process. Taking these dysfunctions together,
although the Court lacks a textualist majority, it “now seems to
accept that the uncertainties of the legislative process make it
safer simply to respect the language that Congress selects, at
least when that language is clear in context.”13
To be sure, textualism, as a comprehensive theory of
statutory interpretation, relies on more than an assumption of
the “dysfunctional” legislative process; it also assumes that the
statute’s words rather than legislative intent govern from a
constitutional perspective and that judges simply lack the
institutional capability to make sense of the fragments of
statutory meaning embedded in the legislative record.14 But
imagine a judge who is committed to textualism solely because
she views the legislative process as dysfunctional. She will be
employing a correct methodology when her assumption
matches reality—for example, when she ignores a member’s
statement in the Congressional Record that favored an
interest-group position but was not accepted by his colleagues.
represents a cross-section of the legislature. Instead, legislators tend to self-select into
those committees in which their supporters have the greatest stakes.”).
11
Manning, supra note 7, at 688 (“‘[T]o the degree that judges are perceived
as grasping at any fragment of legislative history for insights into congressional intent,
to that degree will legislators be encouraged to salt the legislative record with
unilateral interpretations of statutory provisions they were unable to persuade their
colleagues to accept.’”) (quoting Int’l Bd. of Elec. Workers, Local No. 474 v. NLRB, 814
F.2d 697, 717 (D.C. Cir. 1987) (Buckley, J., concurring)); see also, e.g., Exxon Mobil
Corp. v. Allapattah Servs., 545 U.S. 546, 568, 570 (2005) (recognizing that, in some
circumstances, “unrepresentative committee members—or, worse yet, unelected
staffers and lobbyists” manipulate legislative history to obtain results that they could
not achieve on the face of the statute).
12
Frank H. Easterbrook, Statutes’ Domain, 50 U. CHI. L. REV. 533, 547 (1983)
(citing Arrow’s paradox, which posits that the order in which decisions are made—
rather than majority preferences—dictates the outcome of majority voting).
13
John F. Manning, The Absurdity Doctrine, 116 HARV. L. REV. 2387, 2419 (2003).
14
SCALIA, supra note 1, at 29-37.
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When her assumption does not match reality, however, she will
overlook potentially valuable insight into congressional intent.
Perhaps, for instance, lawmakers voted for the statute with full
knowledge that the legislative history would be used as a gapfilling device.15 The difficulty for the judge, of course, is
distinguishing between these two scenarios—a nearly
impossible task. Inevitably, then, judges at times will invoke
textualism improperly, depending on their own interpretive
theory.16
B.
Purposivism
The second theoretical approach to statutory
interpretation that I will address is purposivism. Purposivism
instructs courts to interpret statutes in a manner that will best
effectuate the statute’s purpose. This approach was made
dominant by the legal-process school, founded by Henry Hart
and Albert Sacks. Hart and Sacks argued that “every statute
must be conclusively presumed to be a purposive act” because
“a statute without an intelligible purpose is foreign to the idea
of law and inadmissible.”17 To determine the statute’s purpose,
Hart and Sacks prescribed three assumptions the judge must
make: (1) statutes are the work of reasonable lawmakers
pursuing reasonable purposes; (2) the statute must not be read
to mandate irrational patterns of outcomes; and (3) what
constitutes an irrational pattern of outcomes must be “judged
in the light of the overriding and organizing purpose.”18
One might argue that purposivism rests upon a rosy
view of the legislative process: there is no consensus among
lawmakers on a statute’s rational purpose, lawmakers are not
rational, and/or there is no enacted logical purpose.19 To the
15
See generally William N. Eskridge, Jr. & John Ferejohn, Politics,
Interpretation, and the Rule of Law, in NOMOS XXXVI: THE RULE OF LAW 265, 273 (Ian
Shapiro ed., 1994) (discussing the influence of rules of construction on legislative
behavior).
16
Some textualists would, of course, have responses to this conundrum that
do not rely on dysfunctions in the legislative process. For instance, Scalia would surely
respond that judges should keep to the text of the statute precisely because they are
institutionally ill-equipped to weed out genuine from strategic legislative history.
17
See generally HENRY M. HART & ALBERT M. SACKS, THE LEGAL PROCESS:
BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW 1124-25 (William Eskridge,
Jr. & Philip Frickey eds., 1994).
18
Id.
19
On the other hand, it may be that Hart and Sacks thought of their theory
as primarily normative rather than descriptive. WILLIAM N. ESKRIDGE ET AL., CASES
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extent purposivists rely on an optimistic view of the legislative
process, they also seem to suffer from the critique that their
methodologies are improperly invoked when the legislative
process does not function in accordance with this view.
Consider a judge who finds an intelligible purpose behind a
statute and applies it to a set of facts because she assumes the
legislative process produces that purpose. The judge will be
invoking a correct methodology if her hypothesis bears true.
But when her assumption does not match reality, the judge
may be imputing a purpose never contemplated by Congress.20
II.
PENALTY DEFAULT INTERPRETIVE CANONS: A NEW
TYPOLOGY
So far, we have seen interpretive methodologies that are
arguably improperly invoked when there is a mismatch
between assumptions about the legislative process and its
actual functioning. In this part, I argue that this categorization
is too narrow—that methodologies sometimes utilize the
tension between their underlying assumptions and reality to
further the functionality of the legislative process.
In the 1980s, legal scholars began to suggest
interpretive methods to combat both the oversupply of privateregarding legislation and an undersupply of public-regarding
legislation. This distortion, according to public-choice theory,
occurs because special interests seek rents from lawmakers at
the expense of a disinterested public. To combat this perceived
inefficiency, some scholars have argued that courts should
interpret statutes narrowly against interest groups.21 Critics
maintain that this approach demands that judges exceed their
AND MATERIALS ON LEGISLATION, STATUTES AND THE CREATION OF PUBLIC POLICY 750
(4th ed. 2007).
20
Of course, some purposivists would argue that, even where there is no
ascertainable purpose, a judge should impart one to develop an organized, principled
statutory regime. This alternative view demonstrates that errors produced by a
particular interpretive methodology will appear or disappear depending on one’s ideal
view of the legislative process and the courts’ role in effectuating that view, which I
discuss below.
21
Sunstein, Interpreting Statutes, supra note 3, at 486-87; see also Frank H.
Easterbrook, The Supreme Court, 1982 Term—Foreword: The Court and the Economic
System, 98 HARV. L. REV. 4, 14-15 (1984) (suggesting that courts should narrowly
interpret statutes that transfer rents to special interests); Carlos E. Gonzalez,
Reinterpreting Statutory Interpretation, 74 N.C. L. REV. 585, 663-64 (1996) (arguing
that courts must interpret legislation “along public-regarding lines”); cf. Jerry L.
Mashaw, The Economics of Politics and the Understanding of Public Law, 65 CHI.KENT L. REV. 123, 134-35 (1989) (predicting that judges who embrace public-choice
theory will construe legislation against special-interest groups).
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interpretive role because public-choice theory does not indicate
the appropriate level of interest-group influence.22 Arguably,
these methods are objectionable when the political process
produces an acceptable level of interest-group activity.
Other interpretive methods, however, simply combat
“hidden” interest-group deals and therefore do not as readily
shift power to the judiciary in an objectionable way. In short,
these methods direct the judge to elevate or ignore certain
aspects of the political process in the hierarchy of
interpretative aids. Jonathan Macey has argued that
interpreting statutes according to their stated purpose will
limit interest-group activity.23 To justify this approach, Macey
contends that interest groups and lawmakers hide their deals
in “hidden-implicit” statutes because “open-explicit” statutes
are more politically costly. By refusing to uncover deals in
hidden-implicit statutes, judges following Macey’s approach
can create incentives for more transparent legislation. Richard
Posner similarly seeks to limit hidden interest-group deals by
simply ignoring them, although he rejects purposivism
precisely because public-choice theory predicts fewer statutes
with public-regarding purposes.24 In Posner’s view, judges
should not conjecture about interest-group activity that is not
publicly available.25
Both Macey’s and Posner’s approaches rest on the
relatively noncontroversial premise that interest-group activity
should be exposed, as opposed to the more controversial
premise that it should be limited.26 To effectuate this goal, both
approaches also rely on a counterfactual vision of the
22
See Elhauge, supra note 10, at 34 (“[A]ny defects in the political process
identified by interest group theory depend on implicit normative baselines and thus do
not stand independent of substantive conclusions about the merits of particular
political outcomes. Accordingly, expansions of judicial review cannot meaningfully be
limited by requiring threshold findings of excessive interest group influence. Further,
the use of interest group theory to condemn the political process reflects normative
views that are contestable and may not reflect the views of the polity.”).
23
Macey, supra note 3, at 227, 238, 250-56.
24
RICHARD POSNER, THE FEDERAL COURTS: CRISIS AND REFORM 286-93 (1985).
25
Richard Posner, Economics, Politics, and the Reading of Statutes and the
Constitution, 49 U. CHI. L. REV. 263, 286 (1982). In pairing different interpretive
techniques with different classes of statutes, William Eskridge essentially adopts this
approach for statutes with concentrated benefits and distributed costs. William N.
Eskridge, Jr., Politics Without Romance: Implications of Public Choice Theory for
Statutory Interpretation, 74 VA. L. REV. 275, 296-97 (1988).
26
Elhauge, supra note 10, at 45 n.72 (carving out from his critique of publicchoice-driven interpretive theories those theories that “rel[y] only on the proposition that
such interpretation alleviates the information cost problems of politics by forcing interest
groups and politicians to publicize any nefarious purpose a ‘captured’ statute has”).
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legislative process. By assuming that the publicly stated
purpose on the face of legislation is correct or by ignoring
nonpublic evidence of interest-group deals, judges counter
hidden special-interest legislation.
Elsewhere, I have recommended a statutory
interpretation methodology that also possesses these
characteristics. My proposal increases the costs of hiddenimplicit special-interest deals by assuming—at times
counterfactually—that the legislature discloses certain specialinterest earmarks in accordance with its own legislative rules.27
This proposal is perhaps less controversial than Macey’s or
Posner’s because it assists the legislature in curing the ills it
perceives of itself. Otherwise, the legislative rules are
effectively unenforceable, either through litigation28 or within
Congress itself.29 Although the methodology assumes the
functionality of the legislative process, it is appropriately
invoked even when reality differs—that is, unless one does not
support the goal of unearthing hidden interest-group deals.
Additionally, when the legislature abides by its own rules and
discloses
special-interest
legislation
accordingly,
the
methodology upholds those deals.
Courts have also developed penalty default interpretive
canons. In attempts to reduce logrolling and nontransparent
lawmaking, the U.S. House and Senate have internal rules
that typically forbid members from adding riders to
appropriations bills without deliberation in the ordinary
committee process. Although these rules are routinely ignored
or waived,30 courts effectively bolster them by employing an
interpretive canon that presumes the legislature does not
substantively amend through appropriations measures, even
though this legislative practice often occurs.
Perhaps the leading case in this area is Tennessee
Valley Authority v. Hill (TVA), where the Court held that the
Endangered Species Act of 1973 prohibited completion of a dam
27
Kysar, supra note 6, at 562-67.
Courts have ruled that legislative rules are nonjusticiable under the
Rulemaking Clause of the Constitution, except in a few rare cases involving other
constitutional rights or clauses. Id. at 560-61; see also Rebecca M. Kysar, Lasting
Legislation, 159 U. PA. L. REV. 1007, 1021-25 (2011).
29
The purpose of the rules, after all, is to require congressional members to
disclose “earmarks” that would otherwise remain hidden. Enforcement by fellow
congressional members would be paradoxical, then, since it would require identifying
hidden earmarks.
30
Sandra Beth Zellman, Sacrificing Legislative Integrity at the Altar of
Appropriations Riders: A Constitutional Crisis, 21 HARV. ENVTL. L. REV. 457, 506 (1997).
28
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that would threaten the existence of a rare fish.31 The Court
concluded that continued appropriations for the project did not
repeal substantive law, reasoning that an opposite holding
would “[n]ot only . . . lead to the absurd result of requiring
Members to review exhaustively the background of every
authorization before voting on an appropriation, but it would
flout the very rules the Congress carefully adopted to avoid this
need.”32 The Court then cited an internal House rule that
provided a point of order against substantive amendments in
appropriations.33 This approach is similar to my own in that it
assists the legislature in enforcing rules intended to address
problems Congress sees of itself—the tendency to engage in
legislative subterfuge rather than deliberation. It also
implicitly recognizes Congress’s inability to police rules that
combat legislative subterfuge.
Similarly, the so-called elephant-in-mousehole doctrine,
applied by the Supreme Court34 and the courts of appeals,35
holds that “Congress . . . does not alter the fundamental details
of a regulatory scheme in vague terms or ancillary provisions—
it does not, one might say, hide elephants in mouseholes.”36 The
elephant-in-mousehole doctrine has its origins in FDA v. Brown
31
437 U.S. 153, 172 (1978).
Id. at 190-91.
33
Id. at 191.
34
The Court employed the canon again in Gonzales v. Oregon, when it held
that the attorney general did not have authority under the Controlled Substance Act to
prohibit physicians from prescribing drugs for use in assisted suicides. The Court
rejected “[t]he idea that Congress gave the Attorney General such broad and unusual
authority through an implicit delegation in the CSA’s registration provision.” 546 U.S.
243, 267 (2006) (citing Whitman v. Am. Trucking Ass’n, 531 U.S. 457, 468 (2001); FDA
v. Brown & Williamson Co., 529 U.S. 120, 160 (2000)).
35
Am. Fed’n of Gov’t Emps. v. Gates, 486 F.3d 1316, 1325 (D.C. Cir. 2007)
(citing the elephant-in-mousehole doctrine in holding that the Department of Defense
did not have authority under the National Defense Authorization Act to curtail civilian
employees’ collective-bargaining rights); Am. Bar Ass’n v. FTC, 430 F.3d 457, 469 (D.C.
Cir. 2005) (holding that Congress did not grant the Federal Trade Commission
authority to regulate attorneys under the Gramm-Leach-Bliley Act because to hold
otherwise would require the conclusion “that Congress not only had hidden a rather
large elephant in a rather obscure mousehole, but had buried the ambiguity in which
the pachyderm lurks beneath an incredibly deep mound of specificity”); NISH v.
Rumsfeld, 348 F.3d 1263, 1269 (10th Cir. 2003) (“We simply do not see the elephant in
the mousehole” where the military claimed that the Randolph-Sheppard Act gave blind
vendors priority in awarding mess hall contracts.).
36
Whitman, 531 U.S. at 468. But see Harrison v. PPG Indus., Inc., 446 U.S.
578, 592 (1980) (“[I]t would be a strange canon of statutory construction that would
require Congress to state in committee reports or elsewhere in its deliberations that
which is obvious on the face of a statute. In ascertaining the meaning of a statute, a
court cannot, in the manner of Sherlock Holmes, pursue the theory of the dog that did
not bark.”).
32
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PENALTY DEFAULT INTERPRETIVE CANONS
963
& Williamson Tobacco Corp., where the Supreme Court held
that nicotine was not regulated by the FDA because it did not
constitute a drug under the Federal Food, Drug and Cosmetic
Act. Although nicotine arguably fell within the statute’s broad
definition of “drug,” the Court held that “Congress could not
have intended to delegate a decision of such economic and
political significance to an agency in so cryptic a fashion.”37
Related to this approach is the “dog-doesn’t-bark” canon.
Under this canon, if a statutory interpretation would
significantly change the existing legal landscape, a lack of
congressional debate on the issue is evidence that Congress did
not intend that interpretation.38 These two canons are striking
in that they defy the insights of public-choice theory—that
interest groups and lawmakers sometimes employ vague terms
or ancillary provisions (or, to use Macey’s language, hiddenimplicit statutes) to convey important benefits. When hiddenimplicit deals occur, these canons work to deny such benefits.
To be sure, the elephant-in-mousehole doctrine and the
dog-doesn’t-bark canon sometimes—if not the majority of
times—simply fulfill congressional intent, as was most likely
the case in FDA v. Brown. In these instances, the canons will
accurately reflect congressional intent by refusing to alter the
legal scheme based on innocuous provisions (rather than by
thwarting a hidden legislative agenda). Still, when members of
Congress deploy obscure lawmaking techniques to reward
interest groups, these canons will frustrate that effort. These
two canons, then, along with the presumption against
substantive lawmaking through appropriations riders, appear
to function—or have the potential to function—as penalty
default interpretive canons. They require the judiciary to
assume the legislative process is working correctly (i.e.,
lawmakers are not engaging in legislative subterfuge) even
37
529 U.S. 120, 160 (2000).
Zuni Pub. Sch. Dist. No. 89 v. Dep’t of Educ., 550 U.S. 81, 90 (2007)
(holding that New Mexico’s local-aid program qualified as “equalized expenditures”
under the Federal Impact Aid Program since, at the time of its enactment, legislative
history indicated no intention to alter the Department of Education’s method of
calculating expenditures); Chisom v. Roemer, 501 U.S. 380, 396 n.23 (1991) (rejecting a
particular statutory construction because, in light of extensive legislative history,
“Congress’ silence [on the matter] . . . can be likened to the dog that did not bark”);
Mont. Wilderness Ass’n v. U.S. Forest Serv., 655 F.2d 951 (9th Cir. 1981) (opinion
withdrawn based on enactment of new statute) (concluding that the Alaska Lands Act
did not apply to non-Alaska land, despite rather clear statutory text to the contrary,
because the legislative history did not indicate “a change in current laws of access of
the magnitude of the . . . proposed interpretation”).
38
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when it malfunctions—resulting in a refusal to convey hidden
special-interest-group benefits.
This exploration of penalty default interpretive canons
generates a rethinking of the errors produced by two of the
archetypal schools of interpretive theory—textualism and
purposivism—which can also be employed as penalty default
interpretive canons. Indeed, Macey’s proposal identifies
purposivism as the means to achieve transparent legislation—
holding the legislature to its stated public-regarding purpose, no
matter its disingenuousness.39 Similarly, textualism, by ignoring
legislative history despite congressional practice to bury low-cost
interest-group deals precisely there, incentivizes legislatures to
elevate special-interest deals to the text of the statute.
Of course, the range of errors produced by these theories
will be minimized or maximized as one accepts more or fewer
types of legislative dysfunctions as proper targets of judicial
incentives. For instance, if one agrees that interest-group
activity should be curtailed, one may not be troubled by a court
casting a public-regarding gloss to a statute, even though the
legislature intended no such purpose.
A second-order question arises, however, after one
accepts that an occurrence in the legislative process is
problematic: whether and to what extent the judiciary should
suppress it. My own view, as I have explored elsewhere, is that
canons assuming the correct functioning of rules that the
legislature sets for itself are less vulnerable to the attack that
the judiciary has exceeded its interpretive function.40 My
approach to the earmark-disclosure rules and the approach
articulated by the TVA Court fall within this subcategory of
penalty default interpretive canons. Legislative rules can be
thought of as indications of congressional intent regarding the
process and content of lawmaking. Recognizing both the
congressional willingness to abide by these rules and the
collective-action problems in doing so, these interpretive
methodologies may assist the legislature in achieving its goal of
enacting legislation in accordance with its rules, even when
individual defections from those rules occur.
39
See Macey, supra note 3.
See Kysar, supra note 6, at 568-78 (citing support for the proposal in
accordance with precedent, separation-of-powers theory, textualism, intentionalism,
republicanism, and pluralism). These canons should not apply, however, when the
legislature has collectively waived the rules.
40
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As to my proposal, one might argue that a court’s
bestowal of special-interest benefits when Congress has not, by
its own rules, disclosed them presents greater separation-ofpowers concerns. Indeed, because of those concerns, courts
routinely assume that Congress has followed its own rules in
other contexts.41 This proposal thus dovetails with this case law
by refusing to question Congress’s internal rules of procedure
in accordance with its rulemaking authority granted by the
Constitution.42 In so doing, it recognizes that there is indeed no
legislative bargain when Congress’s own bargaining rules are
not met.
CONCLUSION
This essay starts from the premise that hidden interestgroup deals in the legislative process should be discouraged.
This assumption is useful for identifying penalty default
interpretive canons as tools to discourage those deals. It also
effectuates the primary goal of this essay—to discard the view
that an interpretive theory is improperly invoked when it
paints an unrealistic picture of the legislative process. The
scope and occurrence of such interpretive errors will, of course,
depend on one’s theory of the legislative process and the role of
the judiciary. I therefore do not seek to definitively answer the
question posed by this symposium, “How much work does
language do?” But I hope to reframe our view, as statutory
interpretation scholars, of the interaction between judicial
construction of statutory language and the legislative process.
41
See, e.g., Metzenbaum v. Fed. Energy Regulatory Comm’n, 675 F.2d 1282,
1288 (D.C. Cir. 1982) (holding that the question of whether Congress has followed its own
rules is nonjusticiable and thus courts, out of “deference,” must assume that Congress
acted in accordance with its rules); see also Marshall Field & Co. v. Clark, 143 U.S. 649,
672 (1892) (refusing to question the presiding officer’s certification that a bill presented to
and signed by the President was the same as the one enacted by the House).
42
The Rulemaking Clause of the Constitution states that “Each House may
determine the Rules of its Proceedings.” U.S. CONST. art. 1, § 5, cl. 2. Courts interpret this
Clause to stand for the proposition that legislative rules are beyond judicial review. See
John C. Roberts & Erwin Chemerinsky, Entrenchment of Ordinary Legislation: A Reply to
Professors Posner and Vermeule, 91 CAL. L. REV. 1773, 1790-92 (2003).
The Real Politik of Writing and
Reading Statutes
Eric Lane†
INTRODUCTION
How much work does language do in the interpretation
of statutes? This symposium question returns me1 to the
persistent argument of Justice Antonin Scalia, now entering
his twenty-fifth year on the Supreme Court, that statutory
language should and can do almost all of the work for courts in
statutory interpretation cases. I agree, constitutionally, with
the “should.” But with respect to the “can”—as Part II of this
article explores through the voices of selected judges—in most
appellate court cases statutory language cannot provide the
ergs needed to answer the litigated question, although courts
often wish that it would provide further guidance.
I.
THE SCALIA DOCTRINE OF LIMITING CONGRESSIONAL
REACH
Justice Scalia ascended to the Court under the banner
of textualism—an interpretive theory that demands that judges
follow the law as it is written. This alone should have been no
head-turner. The Constitution commands such loyalty from its
judges. If the language of a statute provides a clear answer to a
question or questions presented in a case, “the sole function of
the courts is to enforce it according to its terms.”2 And in the
†
Eric J. Schmertz Professor of Public Law and Public Service at Hofstra
Law School and Senior Fellow at the Brennan Center of Justice at NYU. Thanks to
Lindsay Greene for her exploration and analysis of the statutory opinions of Justice
Antonin Scalia from the Court’s 2009 term. Thanks also to the Brooklyn Law Review
for the opportunity to think again about statutory interpretation in the company of
such distinguished colleagues.
1
See Abner J. Mikva & Eric Lane, The Muzak of Justice Scalia’s
Revolutionary Call to Read Unclear Statutes Narrowly, 53 SMU L. REV. 121 (2000).
2
Caminetti v. United States, 242 U.S. 470, 485 (1917); see also RICHARD A.
POSNER, THE PROBLEMS OF JURISPRUDENCE 265 (1990) (a statute is “a command issued
by a superior body (the legislature) to a subordinate body (the judiciary)”).
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overwhelming number of cases in which the meaning of the
questioned statute is clear, the courts do apply the statutes as
written. But the appellate courts’ commitment to the
application of a statute’s clear meaning (the “clear” or “plain
meaning” rule) is more of a rhetorical starting point than a
reality. Cases that reach the Supreme Court or the states’
highest courts typically involve complex questions of statutory
interpretation that courts cannot always resolve by examining
a statute’s plain meaning.
Sometimes, even when a statute’s language is clear,
judges will ignore it. The primary reason for judges’ dismissal
of plain statutory language is almost always their distaste for
the consequences of applying a statute as it was written. Often,
a court is sympathetic (or unsympathetic) to the plight of a
particular party or to the particular policy expressed in a
statute. But for the most part, courts do not nakedly announce
their disobedience to the law.3 They do not want to confess their
constitutional sins. Rather, they dress up their decision in
language intended to convince the public that, despite the
particular law’s clear command, the legislature never intended
its application in this particular case.
Of course, this is a construct. If the language of a
statute is clear, a court should never find that extratextual
evidence is sufficient to support a contrary statutory meaning.
But the Court has not always remained faithful to this
principle. Holy Trinity Church v. United States4 is an
archetypal example of judicial disregard for clear statutory
language. In Holy Trinity Church, the Court decided whether a
church that imported a foreign minister violated a statute that
3
Sometimes a judge will actually acknowledge that his refusal to apply the
clear language of a statute is based on his or her own view of what is right. For
example, in dissent in United States v. Marshall, Judge Richard Posner anchored his
view in “natural law” or judicial authority “to enrich positive law with the moral values
and practical concerns of civilized society.” 908 F.2d 1312, 1335 (7th Cir. 1990) (Posner,
J., dissenting). In Marshall the question was whether a statute establishing penalties
for the distribution of “10 grams or more of a mixture or a substance containing a
detectable amount of . . . LSD” really meant what it said. See 21 U.S.C.
§ 841(b)(1)(A)(v)-(B)(v) (2006). The problem for Posner was that the manner by which
LSD was retailed might result in retailers being punished more seriously than
suppliers or wholesalers. To Posner, this result was so unfair that he could not
attribute it to any rational congressional intent, apparently never even imagining that
Congress may have in fact wanted to strategically punish the lower, and more visible,
end of the LSD marketing chain to reduce demand. What makes this case also very
interesting is that only a year earlier in United States v. Rose, 881 F.2d 386, 387 (7th
Cir. 1989), Judge Posner had applied the plain meaning of the same statute.
4
143 U.S. 457 (1891).
2011] THE REAL POLITIK OF WRITING AND READING STATUTES 969
prohibited U.S. employers from paying for or assisting in the
importation of foreigners “to perform labor or service of any
kind” in U.S. territory.5 Although the clear language of the
statute indicated that Holy Trinity Church was liable for
importing the English minister, the Court could not bring itself
to find that Congress had meant to include a minister within
the definition of foreigners imported “to perform . . . service of
any kind.” Reading the statute through the screen of its own
Christian vision of America, the Court found this outcome
distasteful and absurd, and rationalized its disregard of the
statute’s clear language under the guise of preserving the
statute’s legislative intent: “It is a familiar rule that a thing
may be within the letter of the statute and yet not within the
statute, because not within its spirit nor within the intention of
its makers.”6 The Court did not even consider the possibility
that, although Congress clearly did not intend to restrict
Christianity in the United States, it explicitly intended to
provide an incentive for the employment of American citizens,
including American ministers. Justice Scalia rightly
characterizes this decision as “nothing but an invitation to
judicial lawmaking.”7
Despite notable cases like Holy Trinity Church, courts
have generally honored their duty to apply clear statutory
language as it was written, even prior to Scalia’s appointment
to the bench. Yet, at the time of Scalia’s first judicial post in
1982, public perception, fueled by Ronald Reagan’s first
presidential campaign in 1980, fomented the belief that judicial
activism was a widespread problem.8 These exaggerated claims
of pervasive judicial lawmaking were, to a large extent,
referring to the Court’s 1979 decision in United Steelworkers of
America, AFL-CIO-CLC v. Weber (United Steelworkers).9 In
United Steelworkers, the Court held that the Civil Rights Act of
1964 allowed a racially based job preference against a white
person. The majority claimed that the antidiscriminatory
5
Id. at 458.
Id. at 459.
7
ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND
THE LAW 21 (1998).
8
See Sondra Hemeryck et al., Comment, Reconstruction, Deconstruction and
Legislative Response: The 1988 Supreme Court Term, 25 HARV. C.R.-C.L. L. REV. 475,
501-02 (1990); Emmanuel O. Iheukwumere & Philip C. Aka, Title VII, Affirmative
Action, and the March Toward Color-Blind Jurisprudence, 11 TEMP. POL. & CIV. RTS.
L. REV. 1, 8-10 (2001).
9
443 U.S. 193, 197 (1979).
6
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purpose of the Civil Rights Act was limited to protecting
minorities, and that this perceived limitation trumped the
statute’s broad, inclusive, and clear anti-discriminatory
language, because the complainant in United Steelworkers was
white.10 The Court also disregarded the legislative record of the
Civil Rights Act of 1964, which evidenced a strong legislative
commitment against affirmative action.11 This decision
undermined the fundamental compromises that undergirded
the passage of the Civil Rights Act and partially fueled the
explosion of social opposition to affirmative action that helped
blast Reagan into office in 1980.12
For the type of judicial overreaching exemplified by
United Steelworkers, Scalia’s commitment to textualism was
and is a corrective approach. And over the years, it has had the
positive effect of limiting courts’ occasional desire to reach
beyond clear statutory text.13 But it is not Scalia’s textualism
that has made him unique. Rather, it is his persistent refusal
to use legislative history as a source for statutory meaning in
situations where the statute itself does not provide a clear
answer to the question before the Court. The litany of
disavowals is familiar to even casual readers of the Court’s
opinions: “I join the opinion of the Court [or the dissent],
excluding, of course, its resort . . . to what was said by
individual legislators and committees of legislators . . . .”14 Or,
as he declared in his concurrence in Graham County Soil &
Water Conservation District v. United States ex rel. Wilson, “[i]t
is utterly impossible to discern what the Members of Congress
intended except to the extent that intent is manifested in the
only remnant of ‘history’ that bears the unanimous
endorsement of the majority in each House: the text of the
enrolled bill that became law.”15
Scalia’s stated objection to legislative history is not the
product of the entire legislature, but rather the product of a
lesser body within the legislature (committees) or even of
10
Id. at 201-04.
See id. at 238 (Rehnquist, J., dissenting) (quoting 110 CONG. REC. 6564
(1964)) (“Senator Kuchel emphasized[,] . . . ‘Employers and labor organizations could
not discriminate in favor of or against a person because of his race, his religion, or his
national origin. In such matters . . . the bill now before us . . . is color blind.’”).
12
See Hemeryck et al., supra note 8, at 501-02; Iheukwumere, supra note 8, at 8-10.
13
See, e.g., Charles Tiefer, The Reconceptualization of Legislative History in
the Supreme Court, 2000 WIS. L. REV. 205.
14
Dep’t of Commerce v. U.S. House of Representatives, 525 U.S. 316, 344
(1999) (Scalia, J., concurring) (emphasis added).
15
130 S. Ct. 1396, 1411 (2010) (Scalia, J., concurring).
11
2011] THE REAL POLITIK OF WRITING AND READING STATUTES 971
individual members of Congress.16 First, this reliance on
committee reports offends his view of the Constitution’s
Presentment Clause and of Article I generally.17 Second, Scalia
complains that committee reports, overall the most probative
evidence of legislative meaning short of statutory language, are
unread by members of Congress and are the products of their
unsupervised staff.18 His basis for this determination is hard to
find. In fact, rather than even look for empirical support, he
effectively takes judicial notice of the verity of his own
conclusion:
As anyone familiar with modern-day drafting of congressional
committee reports is well aware, the references to the cases [in this
particular example] were inserted, at best by a committee staff
member on his or her own initiative, and at worst . . . at the
suggestion of a lawyer-lobbyist; and the purpose of those references
was not primarily to inform Members of Congress . . . but rather to
influence judicial construction.19
Both criticisms are wrong. Constitutionally, Article I is
not a barrier to the use of legislative history in cases of
statutory interpretation. As Professor James Brudney has
rightly written,
Article I of the Constitution authorizes Congress to organize itself in
fulfillment of its legislative mission and requires Congress to publish
a record of its legislative proceedings. . . . [D]ating from the earliest
Congresses, were the determination to favor detailed public
reporting of floor debates and the decision to create permanent
standing committees that produced oral and then written committee
reports. Taken together, these innovations led to the development of
legislative history as a means of informing and persuading members
of Congress regarding the bills on which they were to vote.20
Scalia’s second criticism of committee reports is strange,
particularly given the absence of any evidence that it is true.
While statistically it must be assumed that there are instances
in which legislative staffers insert unauthorized material into
legislative committee reports, as both Professors Victoria
Nourse and James Brudney (both Senate staff alumni)
reported at this symposium, such conduct is rare and would
16
See SCALIA, supra note 7, at 35.
See id.
18
Blanchard v. Bergeron, 489 U.S. 87, 98-99 (1989) (Scalia, J., concurring).
19
Id.
20
James J. Brudney, Canon Shortfalls and the Virtues of Political Branch
Interpretive Assets, 98 CAL. L. REV. 1199, 1200-01 (2010) (footnotes omitted).
17
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most likely end in the offender’s termination. On this front,
perhaps we would all be better served by Justice Scalia’s
reaction to Judge Posner’s informed observation about judges
delegating too much authority to law clerks.21
The use of probative legislative history—legislative
history on which Congress relies to establish meaning22—is
both constitutional and, in Justice Stephen Breyer’s words,
“natural.” “Legislative history helps a court understand the
context and purpose of a statute.”23
Legislative history also limits judicial law making
(although Justice Scalia would disagree). Courts use legislative
history to inform their understanding of statutes’ intended
legislative meanings—a process that enhances, rather than
inhibits, judicial deference to Congress’s law-making authority.
The choice before courts in such cases is not between clear text
and probative legislative history. Rather, the choice is almost
always between probative legislative history and “whatever.”
For Scalia, the “whatever” is either selected canons of statutory
construction (including one principle that Abner Mikva and I
characterized some years ago as “ambiguous statutes should be
read narrowly”), or a form of the “reasonable man test,”
through which he hopes to find a meaning that is “reasonable,
consistent, and faithful to [the statute’s] apparent purpose.”24
Of course, legislative history cannot be employed in this effort.
Scalia characterizes this approach as a theory of statutory
construction that gives meaning to the phrase “a government of
laws.”25 But, in practice, this characterization is false.
Rather, Justice Scalia’s aversion to the use of legislative
history is, to paraphrase Judge Posner, more political than
epistemological, more about freedom from “the fetters of text
and legislative intent in applying statutes”26 than about finding
the meaning of a statue. His goal is not merely to find the
meaning of a statute in a particular case; more broadly, it is to
systematically limit the legislative reach of statutes. It is the
latter that necessitates Scalia’s canon of reading statutes
narrowly. The review of cases that Mikva and I published in
21
RICHARD A. POSNER, THE FEDERAL COURTS 225 (1985).
See generally Tiefer, supra note 13; Mikva & Lane, supra note 1, at 848.
23
Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes,
65 S. CAL. L. REV. 845, 848 (1992).
24
Blanchard v. Bergeron, 489 U.S. 87, 99 (1989).
25
SCALIA, supra note 7, at 17.
26
RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 271 (1990).
22
2011] THE REAL POLITIK OF WRITING AND READING STATUTES 973
1999 evidence this point,27 and my review of cases from the
Court’s last term, for the most part, confirms this perspective.
II.
THE REAL WORK OF READING STATUTES
Most judges do not think that their work is so
revolutionary. Years ago, I had the opportunity to explore this
observation. The occasion was a panel that I was asked to plan
and moderate for the U.S. Judicial Conference for the District
of New Jersey.28 Among the panelists were former (then
current) governor of New Jersey and former member of
Congress, James Florio; circuit court Judge Robert Cowen; U.S.
District Court judges for the District New Jersey Nicholas
Politan and Stephen Orlofsky; prominent practitioners Fred
Becker and Michael Cole; and finally, former member of
Congress, former chief judge of the U.S. Court of Appeals for
the D.C. Circuit, and former counsel to the President of the
United States, Abner J. Mikva.
I recount below much of the relevant exchange to show
the inapplicability of Scalia’s theory of interpretation to unclear
statutes, and to show what judges actually do to interpret
statutes in the context of a particular case.
The topic for the panel was the drafting and application
of unclear statutes. For this topic, I chose section 703 of Title
VII of the Civil Rights Act of 1964 and the problem of
determining which party has the burden of persuasion in
disparate impact cases in which defendants assert the defense
of business justification. The statute was silent on this point,
and that silence created a serious litigation problem for
potential plaintiffs. As Mr. Cole noted, “if you place the burden
on the plaintiff we might as well not have adopted this statute
because nothing will change. It is an impossible burden.”29 In
fact, this concern was so prevalent that the Supreme Court
addressed it twice. The first time, in Griggs v. Duke Power
Co.,30 the Court placed the burden on employers. But eighteen
years later, in Wards Cove Packing Co. v. Atonio,31 a far more
27
See generally Mikva & Lane, supra note 1.
The Twenty-First Annual United States Judicial Conference for the
District of New Jersey, Mar. 13, 1997 [hereinafter Conference Transcript].
29
Id. at 42.
30
401 U.S. 424 (1971).
31
490 U.S. 642 (1989). This decision was almost immediately reversed by the
Congress through the Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071.
28
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conservative Court reversed Griggs by placing the burden of
proof on the plaintiff employees.
Just the mention of these two cases to the panel elicited
an interesting exchange between Judges Mikva and Cowen
regarding the role of the Supreme Court. Mikva saw the
reversal as “cardinal sin” of statutory interpretation—judicial
“policymaking in the worse sense of the word.”32 But Judge
Cowen, for better or worse, believed that the role of the
Supreme Court was fundamentally different, which was
evidenced when he replied, “I want to slightly disagree with
you Abner. . . . We have to recognize that the Supreme Court is
really not a court. . . . It is a policy and social institution . . . .
They are not, like a District Court or a Court of Appeals, bound
by what they conceive to be the law.”33
At the panel, the first question asked was why Congress
would fail to address such an important issue. Florio responded
that, while sometimes omissions were a matter of oversight, in
this case it was more likely “a conscious policy by the
legislature to make sure that something is ambiguous, because
failure to have that ambiguity would result in no legislative
outcome.”34 Mikva was blunter. He believed that for Congress,
“[t]he easiest answer was to punt.”35 He later added a basic
principle of legislative logic to his analysis—“a half a loaf is
always better than nothing.”36
Judges, at least those in this group, do not appreciate
this logic. Ambiguity shifts the work of policy making to the
courts, no matter how much they try to gussy up that fact. It is
now up to the judge to decide the breadth of the statute in a
particular case. And there are of course consequences for the
losing party. Reflecting on that point, Judge Politan argued the
following in response to the explanation provided by Florio and
Mikva:
[I] think they should not punt. This is not a game of punting. It is not
a game of positioning. It is a game of discharging your legislative
responsibility no matter how hard it may be. You have to respond to
the people who vote for you. And don’t do that and switch it around,
32
33
34
35
36
Conference Transcript, supra note 28, at 44.
Id. at 45.
Id. at 27.
Id. at 28.
Id. at 61.
2011] THE REAL POLITIK OF WRITING AND READING STATUTES 975
punt it, throw it to the judiciary and then get up in Congress and say,
they are legislating in the judiciary, they shouldn’t be doing that.37
Judge Politan’s frustration perhaps could be eased if he had a
better understanding of the legislative process. As was well
established in Professor Nourse and Schacter’s article, The
Politics of Legislative Drafting: A Congressional Case Study,38
legislators and their staff have different missions, and operate
under far different pressures and circumstances than judges.
The most obvious difference is that, for a bill to become a law,
it must have the support of at least a majority of members of
each house—often a supermajority in the Senate—and the
support of the President. As a result, the last thing that
legislators and legislative staffers are worried about as they try
to build supportive coalitions is whether a court will have a
hard time applying the statute in the future. It is unknown
whether Congress omitted specific regulation of the burden of
proof for the business justification defense due to lack of
foresight or as part of a legislative compromise. But from a
legislative perspective, it was the enactment of the Civil Rights
Act of 1964 that mattered, regardless of the potential problems
that the courts or Congress may have later confronted.
But judicial annoyance over legislative drafting does not
remove a court’s duty to resolve the issue. The court has to
make a decision. It cannot remand the case to the legislature
or, as Judge Easterbrook has suggested, simply ignore the
unclear statute.39 And to provide such answers, legislative
history was the first place that at least two judicial members of
the panel said they would look. In particular, Judge Orlofsky
stated,
I think that you have [to] sift through the history, and there is . . .
good legislative and bad legislative history. The bad history is the
kind . . . that you see on C-Span where someone is speaking to an
empty chamber and has carte blanche to revise his or her remarks to
say anything at all. Good legislative history or better legislative
37
Id. at 48.
Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting:
A Congressional Case Study, 77 N.Y.U. L. REV. 575, 575-76 (2002).
39
Frank H. Easterbrook, Statutes Domain, 50 U. CHI. L. REV. 533 (1983). As
Judge Politan aptly noted at the conference, “you can’t do that because you have
litigators in front of you, you have people who want [and have a right to] answers to
their problem.” Conference Transcript, supra note 28, at 34.
38
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history . . . is to look at the sponsor of a bill, or some of the major
players who are involved in passing a particular bill . . . .40
For Politan, the task was similar: “to sift through it, determine
what is hot stuff, what is good stuff, what is bad stuff . . . and
then make a judgment.”41
Without legislative history, the judges saw the job for
what it is: policy making cabined by the alternative choices
presented in the cases. Judge Orlofsky did make reference to
those nasty little judicial constructs of legislative intent known
as “canons of statutory construction,” but quickly labeled them
as a “dangerous approach,” because each side in the battle
usually can find an equal number of canons to support its
position.42 But ultimately Judge Orlofsky concluded that his role
was to make a “judgment call.”43 Judge Politan had a broader
view of the role of legislative history in the process of statutory
interpretation: “You bring to that decision your own background,
your own thoughts about the matter, and in essence perhaps you
do put yourselves in the position of being the super legislators.
Somebody had to do it. The buck stops with the judiciary.”44 And
as for Judge Cowan, the senior judge on the panel, he reflected
that Scalia’s textualism had informed his own decision-making
process: “In most legislative interpretation [cases] I’m pretty
much a follower of Justice Scalia . . . . You look at the text and
decide what to do.”45 But Judge Cowan noted that, in some cases,
judges are forced into the role of “playing God.”46 And by “playing
God,” Judge Cowan meant that a judge’s primary objective
should be to reach a just decision:
I think I have to be brutally honest with you and say the
unspeakable, that I would decide the case based on what I perceive
to be the most just manner of resolving the matter before me, and
that all of these tools of legislative history, canons and so forth,
would merely be techniques that I would employ to write a
decision. . . . I think that’s what Courts do and I think we have to say
it as it is, and that’s how I would resolve the matter.47
40
41
42
43
44
45
46
47
Conference Transcript, supra note 28, at 37.
Id. at 35.
Id. at 38.
Id. at 38.
Id. at 35.
Id. at 59.
Id. at 59-60.
Id. at 43-44.
2011] THE REAL POLITIK OF WRITING AND READING STATUTES 977
The conversation then turned to the Civil Rights Act of 1991,
through which Congress explicitly overruled the Ward’s Cove
decision and placed the burden of persuasion for the business
defense on employers.
The 1991 provision led almost immediately to litigation
over whether the new law would apply retroactively to
plaintiffs with pending claims. On this point, the statute was
silent. The Senate had discussed the retroactivity of the law,
but it could not reach an agreement.48 Ultimately, the Senate
reached an impasse over the legislation on this timing issue
and agreed to punt.49 As a Senate staff member remarked, “We
didn’t have the votes on the left [for retroactivity]. . . . The deal
was cut to . . . leave it to the courts to pound out the issue.”50
And that is exactly what the courts did, until the matter finally
reached the Supreme Court in Landgraf v. USI Film Products,51
in which the Court decided against retroactivity on the basis of
a canon that required explicit statutory language for
retroactive application.
I asked each of the judges at the conference how they
would have decided this case. Politan and Cowen voted against
retroactivity; Orlofsky favored it.
CONCLUSION
What I think we can learn from the above exchanges is
that it is impossible to establish a law-based rule, in the way
Scalia suggests, for the interpretation of unclear statutes. While
clear language should always govern, in most cases, the language
of the statute is not clear. Unclear statutes inevitably place a
policy decision on the judiciary. Probative legislative history
reduces that burden and, most importantly, reflects legislative
meaning. Without legislative history, it is always a judgment call.
The “intelligible theory” that Scalia champions just doesn’t cut it.
That is what each of the judges above tells us in describing their
personal experiences with statutory interpretation.
48
Id. at 50.
Id.
50
Dispute over Retroactivity of Civil Rights Act Stems from Legislative
History, Hill Staffer Says, DAILY LAB. REP. (BNA) NO. 14, Jan. 22, 1992, at A-13.
51
511 U.S. 244, 286 (1994).
49
Statutory Meanings
DERIVING INTERPRETIVE PRINCIPLES FROM A
THEORY OF COMMUNICATION AND LAWMAKING
Mathew D. McCubbins†
Daniel B. Rodriguez‡
Statutes are best understood as a form of communication.
Communicating messages requires a sender and receiver. The
sender encodes her message in the form of communication, and
the receiver’s task is to decode this message so that she can
understand what it means. In all forms of communication that
include commands, the challenge is to make sure that the
commands can be effectively decoded and thus implemented as
appropriate.1 In short, we view statutory interpretation’s
essential purpose as producing “a constitutionally legitimate
decoding of [ambiguous] statutory commands.”2 Although
legislation is admittedly a very stylized rendering of a
multifaceted, complex structure of law, politics, and institutional
performance, we see value in reducing the far-flung objective of
interpreting legislation to a core purpose. With this core purpose
in mind, we can proceed to the critical task of evaluating
competing approaches to discerning statutory meaning.
The focus of this essay is to advance the conversation.
Part I recapitulates the basic elements of communication
theory and positive political theory, and their potent
applications to statutory interpretation. Part II explains how a
nuanced understanding of the lawmaking structure in
†
Provost Professor of Business, Law, and Political Economy, University of
Southern California, Marshall School of Business, Gould School of Law, and
Department of Political Science.
‡
Minerva House Drysdale Regents Chair in Law, Professor of Government
(by courtesy), University of Texas.
1
See Cheryl Boudreau et al., What Statutes Mean: Interpretive Lessons from
Positive Theories of Communication and Legislation, 44 SAN DIEGO L. REV. 957 (2007)
[hereinafter Boudreau et al., What Statutes Mean]; Cheryl Boudreau et al., Statutory
Interpretation and the Intentional(ist) Stance, 38 LOY. L.A. L. REV. 2131 (2005)
[hereinafter Boudreau et al., The Intentional(ist) Stance].
2
Boudreau et al., What Statutes Mean, supra note 1, at 959.
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Congress has valuable implications for understanding
statutory meaning. Finally, in Part III, we sketch some
thoughts about how the bridge between communication theory
and positive political theory can illuminate debates about the
use and misuse of extrinsic aids in interpretation, especially
the so-called canons of statutory interpretation.
While the normative question at the heart of the
enduring statutory-interpretation debate is whether and to
what
extent
legislative
communications
should
be
authoritative,3 we give that question a rest in this essay.
Rather, we are interested here in developing a model of
statutory meaning and looking hard at whether this model can
yield useful techniques for decoding statutes. Nor does this
essay focus on the central matter of statutory authority and the
dynamic relationship between legislatures and courts.
Although this issue has been prominent in other work we have
done separately and collaboratively,4 we assume here that
statutes are constitutionally pedigreed commands and that the
objective of interpreting a statute is to recover its meaning
using a theory of both communication and lawmaking.
I.
THE SCIENCE OF COMMUNICATION
While much of communication theory is motivated by
algorithms derived for compressing and then expanding messages
from one computer to another, the theory is quite general and has
been applied to viruses, bacteria, and other infectious agents, as
well as to speech and writing.5 The act of writing a statute, when
reduced to its essentials, begins with an idea about what should
be policy. Second, this idea about policy information is compressed
into a written document. While great pains may be taken to
accurately compress ideas into language, this process is not
always perfect. Interpretive difficulties frequently arise; indeed,
they are perhaps inevitable given cognitive deficiencies, as well as
3
See generally WILLIAM N. ESKRIDGE, JR., PHILIP P. FRICKEY & ELIZABETH
GARRETT, LEGISLATION AND STATUTORY INTERPRETATION (3d ed. 2006).
4
See sources cited supra note 1; see also Daniel B. Rodriguez & Barry R.
Weingast, The Paradox of Expansionist Statutory Interpretations, 101 NW. U. L. REV.
1207 (2007); Daniel B. Rodriguez & Barry R. Weingast, The Positive Political Theory of
Legislative History: New Perspectives on the 1964 Civil Rights Act and Its
Interpretation, 151 U. PA. L. REV. 1417 (2003).
5
See generally DAVID J.C. MACKAY, INFORMATION THEORY, INFERENCE, AND
LEARNING ALGORITHMS 3-5 (2003); J. R. PIERCE, SYMBOLS, SIGNALS AND NOISE: THE
NATURE AND PROCESS OF COMMUNICATION 8-9 (James R. Newman ed., 1961).
2011]
STATUTORY MEANINGS
981
the limits of language and the difficulty of constructing
institutions capable of successful compression.
Moreover, compression is done with an eye toward the
transmission, reception, and, ultimately, the expansion of the
document into meaning by the receiver. This is perhaps the key
takeaway point of communication theory: those who do the
compressing are necessarily aware of the need for the message
to be later expanded. Of course, it is well known that error and
biases can be introduced into the transmission and expansion,
causing the meaning to be distorted. These problems may or
may not be intentional; in any event, they are ubiquitous
problems and hence increase difficulties for communicators in
compressing the communication and for recipients in
expanding it. Third, the ideas about policy are transmitted over
a channel or channels. Fourth, the messages are received, and
the ideas that were compressed into written language are
expanded into meaning. This is the key: in perfectly operating
communication, not only is the transmission lossless (i.e., there
is no error) but the expansion is the inverse (or mirror image)
of the compression. The authors of messages often send other
messages in conjunction with the original (such as parity bits
in electronic communication) in order to reduce transmission
and expansion errors.
At an abstract level, our argument is based upon
overlapping common-sense views about the nature of
communication. By definition, communication requires a
sharing in common. Not only is this part of the etymology of the
term (the word “communication” derives from the Latin root
comm-nis6) but it also makes good sense that one person’s efforts
to communicate with another suppose that they have shared
purposes with respect to that communication.7 Two individuals
who do not speak one another’s language will find it rather
difficult, without further aids, to make sense of what the other
says. Although we offer no particularly sophisticated view about
how “sharing in common” is accomplished,8 we make the simple
point that an assessment of a communication’s meaning
requires, at the very least, a sharing in common.
6
WEBSTER’S NEW UNIVERSAL UNABRIDGED DICTIONARY 367 (2d ed. 1983).
See Boudreau et al., The Intentional(ist) Stance, supra note 1, at 2140-42.
8
The sharing-in-common phenomenon has been examined in several fields
of study. Disciplines ranging from communication theory to linguistics to anthropology
continue to advance our understanding of these vital questions.
7
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A
few
scientific
propositions
about
human
communication can aid those who seek to determine what a
statute’s authors meant when they chose to include (or to not
include) particular words in a piece of legislation. To this end,
we build from well-known communication theories. The key
insight of these theories is that successful inference about
meaning requires that the manner in which a communication
is decoded (i.e., the expansion of the signal into information)
relate to aspects of its manufacture (i.e., the compression of
information into a signal) in particular ways.9 What this insight
suggests for scholars of statutory interpretation (and for judges
interpreting statutes) is that discerning the meaning of any
piece of legislation requires an understanding of how it was
manufactured throughout the legislative process.10
Communication involves both a sender and a receiver,
both of whom must usually make costly efforts to ensure that a
message is faithfully received. Basic tenets of information
theory suggest that communication can be viewed as a series of
processes (represented in Figure 1 below) where an idea borne
in the sender’s mind (1) is transcribed in a message that, (2)
with some distortion, is transmitted to the receiver, with error,
and (3) received and decoded by the receiver.
Figure 1. The Process of Communication
Message
Source
Compression
Signal
Signal
Channel
with Noise
Message
Expansion
Receiver
The process of communication and the requirements for
accurate interpretation are the same for statutes as they are
for all other forms of communication. Indeed, the literature on
communication theory and cognitive science suggests that the
communication process is ubiquitous; that is, whether we are
communicating written words, electrical signals, spoken
9
Boudreau et al., What Statutes Mean, supra note 1, at 959.
PIERCE, supra note 5, at 118; Boudreau et al., What Statutes Mean, supra
note 1, at 959.
10
2011]
STATUTORY MEANINGS
983
language, gestures, or viruses, all communication involves the
processes of compression and expansion.11 In general,
compression takes a large domain of information and
transforms it flexibly so that the compression can be carried
forward for future expansion. Ideas and concepts are
compressed into language and transmitted by actions such as
speaking, writing, and gesturing; this is analogous to the
process by which our voices are compressed into electrical
signals, transmitted, and then expanded back into sound waves
when we talk on the phone.
In the communication process, the signal begins as a
message that the sender transmits through a channel. In the
channel, the message is compressed into a signal, which then
passes through a transmitter. The transmitter then sends the
signal along one or more channels to the receiver, who expands
the signal back into a message. At the end of the process, the
receiver discerns from the message the information that was
successfully transmitted.
Crucially, successful communication depends both on
the sender’s ability to properly compress the message being
sent and on the receiver’s ability to correctly perceive the
message and to apply the correct expansion algorithm to
reverse the compression process.12 In an ideal world, the
expansion algorithm would precisely match the compression
algorithm used to send the original message. As communication
in the real world departs from this ideal, the receiver’s ability
to faithfully decode the original message deteriorates.
To this point, our depiction of the compressionexpansion process has neglected the identity of the sender and
the recipient. In the context of statutory lawmaking, the sender
is the legislature, and the recipient is anyone who needs to
understand the statute’s meaning. To sharpen this matter, we
focus on judicial statutory interpretation. While courts are
certainly not the only—and perhaps not even the primary—
intended recipients of the communication, they do, at the very
least, play a key role in interpreting statutory meaning and, to
that end, frame the process as a communication in which the
11
See generally GILLES FAUCONNIER & MARK TURNER, THE WAY WE THINK:
CONCEPTUAL BLENDING AND THE MIND’S HIDDEN COMPLEXITIES (2002); RAY JACKENDOFF,
PATTERNS IN THE MIND: LANGUAGE AND HUMAN NATURE (1993); C. E. Shannon, A
Mathematical Theory of Communication, 27 BELL SYS. TECHNICAL J. 379 (1948).
12
See generally ARTHUR LUPIA & MATHEW D. MCCUBBINS, THE DEMOCRATIC
DILEMMA: CAN CITIZENS LEARN WHAT THEY NEED TO KNOW? (1998).
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structure of compression and expansion help the interpreter
better illuminate the task at hand.
II.
LEGISLATIVE INTENT, AUTHORITY, AND PROCESS
Who, after all, is doing the communicating? As Larry
Alexander and James Brudney have rightly noted in their
response to our recent article,13 a key puzzle in an account of
statutory meaning that looks squarely to communication theory
is how to best view the 535 federal legislators (perhaps adding
the President to this mix as well). Can we overcome the
objection that Congress, being a “they” not an “it,” is hard to
perceive as any sort of communicator?14 While this observation is
particularly potent in connection with our description, it is not a
new critique. Many prominent scholars have raised various
objections to the notion of collective meaning in connection with
“intentionalist” theories of statutory interpretation more
generally. The critiques are powerful, if somewhat far-flung—
sometimes raising social-choice-related critiques to legislative
intent, other times questioning the metaphysical properties of
(to use William Buzbee’s felicitous phrase) the “one Congress
fiction” of statutory interpretation,15 and generally questioning
the idea that legislative will is reduced to an act of
communication from a body with a singular will.
Though appreciating the dilemma of drawing
conclusions about legislative intent from evidence produced
within a collective body, our basic responses track two large
themes. First, we insist that the act of communication manifest
through legislative action is that established by a distinct
public act (i.e., a statute) whose pedigree is established by
constitutional rules of enactment—namely, the final vote on
passage. Whatever we might say about the greater political
stature of a law enacted by, say, 500 legislators than one
enacted by a slim majority, we would never say that the former
is a statute and the latter is not. Article I, Section 7, of the U.S.
13
Larry Alexander, How to Understand Legislatures: A Comment on
Boudreau, Lupia, McCubbins, and Rodriguez, 44 SAN DIEGO L. REV. 993 (2007); James
J. Brudney, Intentionalism’s Revival, 44 SAN DIEGO L. REV. 1001 (2007).
14
See Kenneth A. Shepsle, Congress Is a “They,” Not an “It”: Legislative
Intent as Oxymoron, 12 INT’L REV. L. & ECON. 239, 239 (1992). For a rejoinder, see
Arthur Lupia & Mathew D. McCubbins, Lost in Translation: Social Choice Theory Is
Misapplied Against Legislative Intent, 14 J. CONTEMP. LEGAL ISSUES 585 (2005).
15
William W. Buzbee, The One-Congress Fiction in Statutory Interpretation,
149 U. PA. L. REV. 171 (2000).
2011]
STATUTORY MEANINGS
985
Constitution gives the legislature the authority to convert its
myriad individual preferences (or hopes, dreams, etc.) into a
statute, and it does so by the requirement of majority assent.16
The realities of the legislative process are, of course,
considerably more complicated than this simple resort to an
Article I provision would suggest. But our point here is that
constitutional rules of procedure solve what would be an
insurmountable problem of aggregating heterogeneous
individual intentions into a collective intent. Meaningful
communication is not the extrinsically derived aggregation of
intent but the statute that is enacted. We have called this
understanding—with a hat tip to philosopher Daniel Dennett—
the “intentional(ist) stance,”17 a phrase capturing the use of
intent as a heuristic device to understand communication
rather than an admittedly intractable inquiry into the
epistemology of multiple intentions.
Second, we see legislative intent in the details of
legislative procedure—this time focusing on the practical
dimensions of legislative procedure, rather than specific
constitutional constructions, to support the idea that statutes
are meaningful communications.18 Some scholars have taken
the view that legislative intent is meaningless, concluding that
statutes do not accurately track the democratic will of
disagreeing legislators.19 However, the constitution of
legislative procedure that enables diverse lawmakers to
collaborate on legislative initiatives and pass (with some
frequency) statutes in a polarized environment belies the
contention that legislative processes are simply too chaotic or
incoherent to warrant authority and respect. To be sure, we
have not offered any response to the democratic objection. Our
16
See U.S. CONST. art. I, § 7.
Boudreau et al., The Intentional(ist) Stance, supra note 1, at 2131-32, 2138-43.
18
Professor Lawrence Solan has written extensively—and, to us,
persuasively—about legislatures’ capacity to implement through its statutory text a
publicly available legislative intent. See, e.g., Lawrence M. Solan, Private Language,
Public Laws: The Central Role of Legislative Intent in Statutory Interpretation, 93 GEO.
L.J. 427 (2005). Although Solan is interested squarely in the insight of cognitive
psychology (particularly, “theories of mind”) and its application to collective intent, he
focuses fruitfully on the construction of the legislative process as a mechanism for
synthesizing and articulating collective intent through rationally constructed
procedures and instruments. Id. at 444-49. In referring to Congress’s delegation of
lawmaking prerogatives to legislative committees, for example, Professor Solan notes
succinctly that “not only does the legislature form its plans through the work of a small
number of its members, but it is structured to do things just that way.” Id. at 446.
19
See generally JEREMY WALDRON, LAW AND DISAGREEMENT (1999); Lupia &
McCubbins, supra note 14, at 594-98; Shepsle, supra note 14.
17
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burden here, however, is more modest: to (at least) support the
argument that statutes are meaningful communications and,
moreover, that legislative processes facilitate these
communications by enabling legislators to negotiate
discernible, enactable outcomes.
We cannot answer the question, “what do statutes
mean?,” without first considering the question, “how are
statutes made?” The legislative process defines the
compression
algorithm
with
which
congressional
communications are transmitted. Thus, efforts to interpret
law—to essentially construct an expansion process that most
closely resembles the compression process—must begin with a
coherent theory of lawmaking. While we present one such
theory elsewhere,20 any model of the legislative process must
define how multiple legislators successfully coordinate to
collectively adopt a single statute (the communication) and the
internal legislative process through which law is made.
III.
COMMUNICATION AND INTERPRETATION
In our view, statutes are compressed policy instructions
or procedural guidelines, chosen by the legislators who pass
them (specifically, members of the majority party); subsequent
actors (such as judges, agencies, or citizens) are left to expand a
statute’s meaning when applying or interpreting it. Because
discerning the meaning of these communications requires
corresponding compression and expansion schemes, the
interpretation of federal statutes must begin with an
examination of the congressional legislative process. If we ignore
the process by which members of the majority party compress
meaning when writing statutes, how are we to develop an
expansion scheme that accurately discerns such meaning? We
cannot develop a proper expansion scheme without an
understanding of the legislative process. For this reason, we now
briefly discuss the various stages of the legislative process with
an eye toward developing a corresponding expansion scheme
that jurists can use when interpreting statutes.
Federal legislators in the United States must go through a
number of stages to pass statutes, and crucially, the majority
party in each chamber has a veto (or vetoes) over what gets
20
See Boudreau et al., What Statutes Mean, supra note 1, at 971-81.
2011]
STATUTORY MEANINGS
987
passed.21 Indeed, legislators typically delegate the legislature’s
agenda-setting authority and the task of allocating the
legislature’s scarce resources to the majority-party leadership.
Given this delegation of authority, the issue becomes how
members assure that the people to whom agenda-setting power
has been delegated do not take advantage of this authority and
use it for their own personal gain. In general, legislators use
checks and balances to solve this dilemma. They provide others
with a veto over the actions of agenda setters, and give others an
opportunity and incentive to act as checks. These checks and
balances may be very subtle. In the U.S. House of
Representatives, for example, backbenchers may check their
leaders’ actions through the committee process and must give
their approval to their leaders’ actions on the floor of the chamber.
For our purposes, it is important to note the numerous
places where a statute may be discussed, revised, or amended by
legislators in the majority party. For example, in the initial
stages of the congressional lawmaking process, the majorityparty members of substantive committees in each chamber have
significant agenda control within their jurisdiction. It is at this
stage where the drafting of statutes begins, where the writing of
committee reports takes place, and where conversations between
committee chairs and majority-party committee members are
held. Additionally, because the majority party in Congress
always holds a majority of seats on each substantive committee,
members of the minority party are largely shut out, even at this
early stage of the legislative process.
As a given proposal approaches the floor, the majority
party’s influence continues to grow. Indeed, the majority
party’s members delegate to their leadership a broad variety of
matters. The Rules Committee and the Speaker, the Senate
majority leader (and, in many cases, the Senate minority
leader)—as well as the Budget and Appropriations Committees
if any funding is required to implement the proposal—check
21
See generally GARY W. COX & MATHEW D. MCCUBBINS, LEGISLATIVE
LEVIATHAN: PARTY GOVERNMENT IN THE HOUSE (1993); GARY W. COX & MATHEW D.
MCCUBBINS, SETTING THE AGENDA: RESPONSIBLE PARTY GOVERNMENT IN THE U.S.
HOUSE OF REPRESENTATIVES 42 (2005); D. RODERICK KIEWIET & MATHEW D.
MCCUBBINS, THE LOGIC OF DELEGATION: CONGRESSIONAL PARTIES AND THE
APPROPRIATIONS PROCESS 34 (1991); Gerald Gamm & Steven S. Smith, Policy
Leadership and the Development of the Modern Senate, in PARTY, PROCESS, AND
POLITICAL CHANGE IN CONGRESS: NEW PERSPECTIVES ON THE HISTORY OF CONGRESS
287 (David Brady & Mathew D. McCubbins eds., 2002); Charles O. Jones, Joseph G.
Cannon & Howard W. Smith: An Essay on the Limits of Leadership in the House of
Representatives, 30 J. POL. 617, 617-18 (1968).
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committee members’ ability to propose legislation, for these two
central coordinating bodies control access to plenary time. If a
substantive committee’s proposal is not representative of the
majority party’s collective interests, and if it is an issue of
importance to the majority party, then either the Speaker or
the Rules Committee is likely to kill the proposal.
Before a proposal leaves the chamber, there are floor
debates, floor amendments, and the votes themselves. During
floor debates, the bill manager for the majority party controls
the time devoted to debate and to particular amendments,
determining which members speak and for how long. It is not
unusual for a number of amendments to be added to a proposal
during this stage unless, as in the House, the majority-partycontrolled Rules Committee grants a special rule that limits
the number and nature of amendments (in the Senate, bills are
often considered under Unanimous Consent Agreements, or the
majority leader can “fill the agenda tree,” leaving no room for
other amendments to be offered). And given the majority
party’s influence at nearly every stage of the legislative
process, by the time the proposed legislation reaches a finalpassage vote on the floor, the majority party has typically
ensured its own victory (although there are occasionally
instances where the majority party and its leaders must corral
a few additional votes on the floor).
The congressional process is, in essence, a running
conversation in which some members—specifically those to
whom the majority party has delegated authority to set the
agenda and write statutes—use the tools required by their
principals (e.g., committee reports, statements by the bill
manager, communications by the party whips, etc.) to signal the
meaning of their actions (i.e., the statutes they have written) to
the remaining members of the majority party. As we discuss
below, checks and balances within the legislative process serve
to make these communications trustworthy. The system may not
be transparent to members of the minority party—who are often
even left out of committee meetings and hearings, and have
limited influence in the choice of statutory language both in
committee and on the floor. However, the system is transparent
for members of the majority party, as the discussion above
demonstrates. Throughout the legislative process, the
compression of legislative meaning occurs in several ways and at
a variety of stages, beginning with the drafting of statutes,
proceeding to the writing of committee reports and the debating
of statutes on the floor, and ending with the bill manager’s
2011]
STATUTORY MEANINGS
989
statements and floor amendments. Because each stage involves
the compression of meaning on the part of legislators in the
majority party, a proper expansion scheme must correspond to
these stages. In other words, to properly expand the compressed
communication, the interpreter must understand the processes
by which the communication has worked its way through the
legislative process.
Identifying these key actors and paying particular
attention to the pivotal role of some legislators (or some small
body of legislators) in the legislative process can often help
judges adjudicate between competing candidate interpretations
of the same statute.22 To be sure, minority-party legislators, as
Professor Brudney helpfully reminds us, are important players
in the legislative process.23 Minority-party legislators are
particularly influential in the Senate, where traditional norms
of Senate process impact in various ways the ability of pure
majorities to implement their will.24 But this point depicts
statutes as the revealed will of majority-party preferences, a
depiction to which we do not subscribe. We see statutes as the
products of complex bargaining processes; they are instruments
of a diverse set of legislators and will entail judgments,
compromises, and tradeoffs involving members of both parties.
And we certainly agree that “the architecture of legislative
conversations culminating in enactment may also vary based
on the subject matter area being addressed by Congress.”25 The
generalization we draw from the large literature on
congressional process and performance is three-fold: First,
legislators develop and use internal lawmaking processes to
facilitate their discrete aims. Second, they collaborate,
cooperate, and occasionally compete with others on these
agendas. And third, the outcome of these processes is statutes
that communicate meaningful information about what a
majority of Congress enacted into law. Furthermore, whatever
we can learn about how legislators forged these deals will help
us better understand the meaning of what they enacted.
22
See generally Rodriguez & Weingast, The Positive Political Theory of
Legislative History, supra note 4; McNollgast, Legislative Intent: The Use of Positive
Political Theory in Statutory Interpretation, 57 LAW & CONTEMP. PROBS., Winter &
Spring 1994, at 3; McNollgast, Positive Canons: The Role of Legislative Bargains in
Statutory Interpretation, 80 GEO. L.J. 705 (1992).
23
Brudney, supra note 13, at 1013-16.
24
Id.
25
Id. at 1016.
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IV.
POSITIVE POLITICAL THEORY OF LAWMAKING AND
STATUTORY INTERPRETATION
Communication theory and a theory of lawmaking
based on positive political theory (PPT) can help illuminate
some of the key issues in statutory interpretation.26 Moreover,
we will say more ambitiously (if still tentatively) that these
twin theories can support particular interpretive techniques—
for instance, an informed use of legislative history to resolve
disagreements over statutory meaning. To generate further
conversation along these lines, we offer some thoughts about
the canons of statutory interpretation. In general, we suggest
that these canons’ suitability to resolving interpretive issues be
judged by how informative they are in addressing the
compression-expansion structure and, as well, how accurately
they track the PPT of the lawmaking process.
Communication theory and PPT share in common the
recognition that the legislative process reflects a “conversation”
among legislators. Indeed, at each stage of the legislative
process, legislators communicate with each other and compress
meaning by drafting statutes, writing committee reports,
participating in floor debates, offering amendments, and
engaging in various other legislative tasks.27 In interpreting
statutes, judges must “listen to” and interpret these
“conversations.” Judges must not assume that legislators were
speaking to them in their conversations; nor should judges
treat legislators’ conversations as though legislators were
either naïvely listening to everything said in the conversation
or being lied to about everything. Instead, judges must
passively listen to legislators’ conversations so that their
expansions (i.e., interpretations) correspond to the way that
statutory meaning was compressed.
Because judges are not flies on the wall during the
processes of legislative deliberation, they must orient their
interpretations of these conversations around plausible
accounts of what available information reveals.28 The debate
over the relevance and utility of legislative history deals
squarely with this difficult process. As we and others have
written, not all legislative history is equal.29 In addition to
26
27
28
29
See Boudreau et al., What Statutes Mean, supra note 1, at 971-81.
See supra Part III.
Boudreau et al., What Statutes Mean, supra note 1, at 979-81.
Id.
2011]
STATUTORY MEANINGS
991
communicating their intent, individual legislators may send
messages designed to claim credit for policy victories, to shift
blame for defeats, to jam the signals of their opponents, and,
more generally, to ensure their reelection in the next electoral
contest.30 Having advocated legislative history as a tool for
statutory interpretation and as a key component of our
approach, we in no way suggest that judges use legislative
history indiscriminately. Rather, we emphasize that some
aspects of legislative history are trustworthy indicia of
legislative meaning and others are not. Thus, the task for
judges interpreting statutes is to determine which aspects of
legislative history are trustworthy and to rely only upon those
aspects when discerning the meaning of statutes. Elsewhere,
we provide some key criteria judges can use to identify
trustworthy sources of information.31
This process also implicates debates over the use of
canons of statutory construction. Consider, for example, the
plain-meaning approach to statutory construction, a general
approach undergirded by the canon that statutory language
should be accorded its plain—rather than any especially
imaginative or counterintuitive—meaning.32 The suitability of
this hoary rule turns squarely on what we expect to be the
processes by which legislators have compressed their
communications in the first instance and, in turn, what their
expectations are with respect to the processes of expansion by the
receiver. Where certain language has a plain meaning—without
making any effort here to define what is or is not plain—the
plain meaning would seem to have the great asset of minimizing
noise and, within the structure of the compression-expansion
algorithm central to the communication process, minimizing the
risk of error. Yet the plain-meaning approach goes wrong in its
positive assertion that language usually does have a plain
meaning and that the process is not really about interpretation
30
See generally DAVID R. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION
(2d ed. 1974).
31
See Boudreau et al., What Statutes Mean, supra note 1, at 971-79.
32
While plain-meaning interpretation has often been treated synonymously
with interpretive textualism, it is important to see them as distinct. Textualism refers
to a comprehensive theory of interpretation that regards the text as the only legitimate
subject of interpretation and sees extrinsic evidence of statutory meaning (such as
legislative history) as irrelevant to the enterprise. Reference to plain-meaning
interpretation has in mind a particular perspective on how one reads the text and thus
is seen properly as a rule of interpretation.
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and is merely a matter of application.33 In short, what we need to
know to make use of this canon are (at least) two critical things:
(1) the capacity of language in a particular instance to be
rendered to a plain (rather than, to use a clumsy term, “unplain”)
meaning, and (2) the expected treatment of certain language by
those with authorized involvement in both the compression and
expansion process. If we lack sufficient knowledge in either of
these dimensions—and, to be sure, our focus in this essay is on
the second of these matters—then the plain-meaning canon will
not meet its intended goals. So “it depends” is all we are in a
strong position to say about the plain-meaning canon in the
context of statutory interpretation generally.
Next, consider rules that impute to the legislature the
intent to create broad remedial policies where the language used
in the statute does not point ambiguously in the direction of
those policies. Examples of these rules include the implied right
of action, the presumption of reviewability, and the old canon
that liberal statutes be broadly construed. While they reflect
different aims and histories, they are of a common piece with the
notion that proper statutory interpretation puts a thumb on the
scale in favor of “progressive” social policy. Relatedly, it gives an
edge to judicial intervention (as in the case of the implied right
of action and the reviewability presumption). From our
perspective, these rules, taken as a whole, are inconsistent with
both the structured process of communication and, as well, the
positive political theory of lawmaking.
First, these rules essentially rewrite the statute to
insert provisions regarding the statute’s scope and the
procedures to be followed in the statute’s implementation. So,
for example, the creation of an implied right of action adds
language where none existed; it also reorients the
administration of the statute (an administration that will
frequently entail an administrative agency) by adding a new
institution to the mix—an institution with its own roles, rules,
and powers.34 A statute might have, in the first instance,
contained an administrative mechanism that gave relevant
legislative
committees
and
subcommittees
principal
33
For especially influential renderings of this claim, see ANTONIN SCALIA, A
MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (1997); Frank H.
Easterbrook, The Role of Original Intent in Statutory Construction, 11 HARV. J.L. &
PUB. POL’Y 59 (1988).
34
Cf. Daniel B. Rodriguez, The Presumption of Reviewability: A Study in
Canonical Construction and Its Consequences, 45 VAND. L. REV. 743 (1992).
2011]
STATUTORY MEANINGS
993
prerogative to engage in various forms of “police patrol” or “fire
alarm” oversight.35 Interposing a court in this process by
providing a route to judicial review will inevitably, and at the
very least, reconfigure the processes of legislative scrutiny and
the general structure of policy implementation.
In essence, statutes reflect complex tradeoffs. No matter
how strongly worded a particular policy directive is,36 the choice
of how best to implement this policy both in terms of the level
and technique of enforcement and in terms of the resources
devoted to these initiatives in one or another budgetary cycle (a
choice manifest acutely in the constitutionally prescribed
appropriations process) entails difficult tradeoffs. A canon that
layers onto a legislative compromise a particular directive that
the legislature either did not consider or, as is more likely,
declined to create, undermines these tradeoffs. And whatever
we might say about this strategy as a normative matter, we are
content here to say that such an interpretive rule is
fundamentally inconsistent with both the theory of
communication and the positive political theory of lawmaking.
In earlier work, we considered two additional canons—
the whole act rule and the appropriations canon—and
explained why they conflict with theories of communication
and lawmaking.37 The whole act rule presumes, implausibly,
that the legislature set out to write a completely coherent
policy in which all parts would mesh seamlessly and every
embedded policy would reinforce the other. This idea, too,
conflicts with the notion that statutes are inevitably about
tradeoffs and compromise. Moreover, the whole act rule
supposes that the communication being compressed and later
expanded is one omnibus communication that meets strict
standards of transitivity, consistency, and coherence. That may
well be our democratic ambition. But we can all conjure up
35
See Mathew D. McCubbins & Thomas Schwartz, Congressional Oversight
Overlooked: Police Patrols Versus Fire Alarms, 28 AM. J. POL. SCI. 165, 165-66 (1984).
36
For instance, the directions in the federal environmental statutes to
regulate all “significant risks” and to use the “best available technology” to clean up air
and water pollution. See, e.g., 33 U.S.C. § 1311(p)(1) (2006) (“Such modified
requirements shall apply the best available technology economically achievable on a
case-by-case basis, using best professional judgment, to set specific numerical effluent
limitations in each permit.”); 42 U.S.C. § 6905(b)(2)(A)(ii) (2006) (“As promptly as
practicable . . . the Administrator shall submit a report describing . . . any significant
risks to human health posed by these emissions . . . .”).
37
See generally Mathew D. McCubbins & Daniel B. Rodriguez, Canonical
Construction and Statutory Revisionism: The Strange Case of the Appropriations
Canon, 14 J. CONTEMP. LEGAL ISSUES 669 (2005).
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examples in which this ambition is not met in the crucible of
real political decision making and real statutes. Relatedly, the
claim that legislative changes made through the appropriations
process lack the deliberative qualities of substantive legislative
decisions is problematic—both from the vantage point of the
(undertheorized,
empirically
problematic)
notion
of
deliberation38 and from a plausible account of how legislators
communicate through their fiscal decisions. There is absolutely
no reason to expect that the kinds of choices and tradeoffs
made by legislators in their decision making over annual
appropriations cannot be subject to exactly the same logic of
compression and expansion as can other legislative choices.
Moreover, the structures embodied in legislative decision
making on appropriations jibe in ways that have been
neglected by both political scientists and legal scholars with a
sensible account of legislative policymaking. In short, the PPT
account of the appropriations process undermines the canon of
construction invented in TVA v. Hill39 and more or less followed
ever since: that legislative changes through the appropriations
process ought to be narrowly construed.
The more global lesson to draw from this analysis is
that familiar canons of statutory construction can be hard to
square with what we believe to be the best assessment of how
and why the legislature functions to communicate through the
statutory-enactment process. Still, these canons may serve
important normative goals. These goals may include the
improvement of legislative processes and the implementation of
what William Eskridge and Philip Frickey label “quasiconstitutional” objectives.40 However we evaluate the merits of
these objectives, we should see them as orthogonal to the core
positive objective of facilitating interpretive approaches that
are broadly congruent with theories of communication and
democratic lawmaking. While much has been said in the
voluminous literature on statutory interpretation—and even
more remains to be said—about these important normative
objectives, our contribution here to the debate is principally
positive; that is, we endeavor to show that plausible
38
Mathew D. McCubbins & Daniel B. Rodriguez, When Does Deliberating
Improve Decisionmaking?, 15 J. CONTEMP. LEGAL ISSUES 9, 39 (2006); McCubbins &
Rodriguez, supra note 37, at 691.
39
Tenn. Valley Auth. v. Hill, 437 U.S. 153, 189-93 (1978).
40
See William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law:
Clear Statement Rules as Constitutional Lawmaking, 45 VAND. L. REV. 593, 597 (1992).
2011]
STATUTORY MEANINGS
995
interpretive principles can be derived thoughtfully from a
model of statute making that builds upon theories of
communication and legislative process.
Two Kinds of Plain Meaning
Victoria F. Nourse†
Is plain meaning so plain? This is not meant to be a
philosophical question, but one deserving serious legal
analysis. The plain-meaning rule claims to provide certainty
and narrow statutes’ domains. As a relative claim, comparing
plain meaning with purposivism, I agree. But I do not agree
that plain-meaning analysis is as easy as its proponents
suggest. In this piece, I tease out two very different ideas of
plain meaning—ordinary/popular meaning and expansive/
legalist meaning—suggesting that doctrinal analysis requires
more than plain-meaning simpliciter. Perhaps more
importantly, I argue that plain meaning, as legalist meaning,
can quite easily expand a statute’s scope, relative to a baseline
of ordinary meaning or the status quo ex ante.
In 1987, Justice Scalia gave an extremely influential set
of lectures1 in which he set forth a doctrine of statutory
interpretation known as the new textualism. The Scalia
Tanner Lectures contain one of the most eloquent statements
in print about the importance of legislation: “Every issue of law
resolved by a federal judge involves interpretation of text—the
text of a regulation, or of a statute, or of the Constitution.”2
Scalia’s theory influenced me, and a generation of scholars and
students. In a world where very few lawyers have any clue
about how legislation is debated—or even how to find
legislative history3—the textualism rule is easy to understand
†
Burrus-Bascom Professor of Law, University of Wisconsin. Special thanks
to Professor Lawrence Solan whose essay on ordinary meaning, The New Textualists’
New Text, 38 LOY. L.A. L. REV. 2027 (2005), inspired these thoughts and to the
students in my 2010 Legislation Class at Georgetown University Law Center who were
so eager to focus on “two kinds” of plain meaning. All errors are, of course, my own.
1
See Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role
of United States Federal Courts in Interpreting the Constitution and Laws, in A
MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 3-47 (Amy Gutmann ed.,
1997) (Justice Scalia’s essay based on the lectures, with third-party commentary and
Justice Scalia’s response).
2
Id. at 13.
3
Elsewhere, I have been quite critical of law schools’ failure to teach
congressional literacy. See Victoria Nourse, Misunderstanding Congress: Statutory
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and teach. It seems such a simple rule: “[W]hen construing
statutes, consider the text, the whole text, and nothing but the
text. Period.”4
Church of the Holy Trinity v. United States5 figures
prominently in Justice Scalia’s theory.6 The question in Holy
Trinity was whether a British minister contracting to serve a
New York church fell within a statute aimed to prevent largescale importation of immigrant laborers. The opinion opens by
acknowledging Justice Scalia’s point: “It must be conceded that
the act of the [church] is within the letter of [the] section,” the
statute applying not only to “labor or service” but “labor or
service of any kind.”7 To top it off, the Court notes that the
statute exempted even singers, lecturers, and domestic
servants, and thus “strengthens the idea that every other kind
of labor and service” came within the law.8 Having noted all
these textual arguments for covering the good rector, the Court
ignored them; it read the statute to exclude him, relying on the
rule that Congress’s intent trumped any plain reading. In the
Court’s view, interpreting the statute to include a rector among
imported “swine” was so broad that it “reach[ed] cases and acts
which the whole history and life of the country affirm could not
have been intentionally legislated against.”9 “[U]nder those
circumstances,” the Court noted, “[i]t is the duty of the courts
. . . to say that, however broad the language of the statute may
be, the act, although within the letter, is not within the
intention of the legislature, and therefore cannot be within the
statute.”10 Thus, a statute whose purpose was to prevent mass
importation of manual laborers—not “brain toilers”—should
not cover the rector.11
To Justice Scalia, Holy Trinity was obviously wrong:
“Well of course I think that the act was within the letter of the
statute, and was therefore within the statute: end of case.”12
Interpretation, the Supermajoritarian Difficulty, and the Separation of Powers, 99 GEO.
L.J. 1119 (2011).
4
William N. Eskridge, Jr., Textualism, The Unknown Ideal?, 96 MICH. L.
REV. 1509, 1514 (1998) (reviewing A MATTER OF INTERPRETATION, supra note 1).
5
Church of the Holy Trinity v. United States, 143 U.S. 457 (1892).
6
Scalia, supra note 1, at 18-22.
7
Holy Trinity, 143 U.S. at 458 (emphasis added) (internal quotation marks
omitted).
8
Id. at 458-59.
9
Id. at 472.
10
Id.
11
Id. at 464.
12
Scalia, supra note 1, at 20.
2011]
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999
Holy Trinity, he argued, is “cited to us whenever counsel wants
us to ignore the narrow, deadening text of the statute, and pay
attention to the life-giving legislative intent. It is nothing but
an invitation to judicial lawmaking.”13 As this excerpt suggests,
one of Justice Scalia’s greatest claims for his position is
constraint on activist judges: “[T]extualism constrains judges’
decisions more than other methods do, and it gives judges a
principled method for interpreting statutes separate from their
own ‘policy preferences.’”14
There are many grounds on which I stand firmly with
Justice Scalia. Law should be objective and restrained; it
should not be the province of activist judges. Justice
Frankfurter was right when he insisted, “read the text, read
the text, read the text.”15 But I am also skeptical about the
“plainness” of some assertions of plain meaning. In
constitutional law, as Philip Bobbitt has argued, certain forms
of argument—such as originalism and structuralism—have
always played a role.16 So, too, in statutory interpretation. I
teach the “Blackstone 5”—text, context, subject matter,
effects/absurdity,17 and reason.18 These five forms of argument
have been the consistent “liquidated” (to borrow a Madisonian
phrase)19 forms of argument used by American courts in
statutory interpretation since the founding.
13
Id. at 21.
Miranda McGowan, Do as I Do, Not as I Say: An Empirical Investigation of
Justice Scalia’s Ordinary Meaning Method of Statutory Interpretation, 78 MISS. L.J.
129, 143 (2008) (citing Scalia, supra note 1, at 17-18).
15
This is apparently filtered through the eyes of Judge Friendly. As a law
professor, Justice Frankfurter advised his students to follow a three-pronged rule for
statutory interpretation: (1) read the statute, (2) read the statute, and (3) read the
statute. See HENRY J. FRIENDLY, BENCHMARKS 202 (1967).
16
PHILIP BOBBITT, CONSTITUTIONAL FATE 74-92 (1982) (on structural
argument); PHILIP BOBBITT, CONSTITUTIONAL INTERPRETATION 178-79 (1991) (on
originalism, which Bobbit terms the historical mode of interpretation).
17
I teach these as “originalist” forms of argument even though I have some
concern that “absurdity” claims might be better resolved as conflicts between ordinary
and legalist meaning. See infra note 22.
18
1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 59
(1765) (“The fairest and most rational method to interpret the will of the legislator, is
by exploring his intentions at the time when the law was made, by signs the most
natural and probable. And these signs are either the words, the context, the subject
matter, the effects and consequence, or the spirit and reason of the law.”). Blackstone
explains these with particular examples that give these terms greater meaning,
consistent with the list asserted above. Id.
19
THE FEDERALIST NO. 37, at 229 (James Madison) (Clinton Rossiter ed.,
1999) (“All new laws, though penned with the greatest technical skill, and passed on
the fullest and most mature deliberation, are considered as more or less obscure and
14
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Think hard now about two kinds of plain meaning. As
linguist Larry Solan has written, ordinary meaning is
prototypical meaning20—that is, meaning focusing on a core
example, rather than reaching the conceptual or logical
extension of the term. Prototypical meaning picks the best
example, not the peripheral one. Now, let us apply this to Holy
Trinity. In 1885 (when the Holy Trinity legislation was
debated), the prototypical laborer was a miner or a railroad
worker, not a minister—at least according to the dictionaries of
the day.21 As the Holy Trinity Court explained, the “whole
history and life of the country”22 rebelled at the notion that this
law—aimed at “importing laborers as we import horses and
cattle”23—could cover the voluntary passage of an upper-class
minister. Justice Scalia, however, finds a different plain
meaning; he finds the meaning prescribed by what the Court
calls the letter of the law and what I will call legalist meaning
(borrowing from Adrian Vermeule).24 Justice Scalia abstracts
from the core and considers all logical possibilities within the
concept of a laborer.
Notice the difference between prototypical meaning and
legalist meaning as it relates to the domain of the statute. As
Chief Judge Easterbrook has written in a brilliant article,
purposivism has a tendency to expand the range of a statute;
this is certainly true if you assume that the baseline statute is
equivocal, until their meaning be liquidated and ascertained by a series of particular
discussions and adjudications.”).
20
Lawrence M. Solan, The New Textualists’ New Text, 38 LOY. L.A. L. REV.
2027 (2005).
21
So, too, the prototypical “service” provider was a maid, not a rector.
Eskridge, supra note 4, at 1518 (“The first definition of the term ‘labor’ listed in the
1879 and 1886 editions of Webster’s Dictionary was ‘Physical toil or bodily exertion . . .
hard muscular effort directed to some useful end, as agriculture, manufactures, and
the like . . . .’” (quoting NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH
LANGUAGE 745 (Chauncey A. Goodrich & Noah Porter eds., rev. ed. 1879))); see also id.
at 1515-18 (discussing cases and the definition of labor in BLACK’S LAW DICTIONARY
682 (1st ed. 1891), in which labor was equated with manual laborers and service to
servants). Of course, there were secondary definitions, but the point is to find the “best”
example under prototypical meaning, not any possible example.
22
Church of the Holy Trinity v. United States, 143 U.S. 457, 472 (1892). Holy
Trinity is typically known as an “absurdity” case, but one way of thinking about
absurdity is to view it as arising when there is a strong conflict between legalist
meaning (e.g., all workers) and prototypical meaning (e.g., manual labor or service).
Compare, for example, standard examples of absurdity: blood-letting (prototypical
meaning = fight; legalist meaning = any bloodletting, including by a surgeon); and
prison escape (prototypical meaning = escape to flout law; legalist meaning = any
escape even if to escape fire).
23
16 CONG. REC. 1782 (1885) (statement of Sen. Platt).
24
ADRIAN VERMEULE, LAW AND THE LIMITS OF REASON 2-3 (2008).
2011]
TWO KINDS OF PLAIN MEANING
1001
in fact expanding the range of law.25 Notice, however, how a
similar expansion may occur when one moves from ordinary to
legalist meaning. By definition, prototypical meaning looks for
the “best example”; legalist meaning looks for all examples,
examples that may invite fringe or peripheral meanings.26 In
Holy Trinity, the plain-meaning approach expands the
meaning of the statute beyond the status quo ex ante (all labor,
including the minister, versus the original baseline of no
regulation of alien contract labor). More importantly, it
expands the baseline relative to ordinary meaning. If the
ordinary meaning was “manual labor or service” in 1885, then
“all labor” expands the domain of the statute. Plain meaning of
this kind (legalist meaning) expands the domain of the statute
relative to plain meaning of another kind (ordinary meaning),
suggesting that it should be important to decide which
meaning counts.
I am not confident enough of the distinction between
ordinary/prototypical and legalist/expansive meaning to urge it
as a matter of logic or linguistics. At the same time, there are
enough examples to make this more than an academic
curiosity. For example, in Green v. Bock Laundry Machine Co.,
the ordinary meaning (to the average person on the street) of
defendant was criminal defendant; relative to a legalist
meaning of defendant—which comprised all possible
defendants, civil and criminal27—the ordinary-meaning
interpretation narrowed the range of the balancing act at issue.
Similarly, in Public Citizen v. Department of Justice,28 the
question was whether a government advisory committee was
subject to a legalist meaning (i.e., any two persons conferring
with the President, which could include his children or his
political advisors), or an ordinary best-example meaning (i.e.,
an advisory committee created by the government). At the
same time, it is important to acknowledge that, in some cases,
prototypical or ordinary meaning itself may be contested.29
One may conceive of the way legalist meaning may
expand the range of the statute in the following diagram:
25
Frank H. Easterbrook, Statutes’ Domains, 50 U. CHI. L. REV. 533 (1983).
Here, as well, there is an analogy to HLA Hart’s famous distinction
between core and penumbral meaning. See DAVID LYONS, MORAL ASPECTS OF LEGAL
THEORY: ESSAYS ON LAW, JUSTICE, AND POLITICAL RESPONSIBILITY 84-86 (1993).
27
See Green v. Bock Laundry Mach. Co., 490 U.S. 504, 511 (1989).
28
Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 452-65 (1989).
29
See Solan, supra note 20, at 2031 (“It is not always easy to decide what
makes ordinary meaning ‘ordinary.’”).
26
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LEGALIST/
PERIPHERAL
PROTOTYPICAL/
CORE
There is nothing terribly modern about this idea. It has existed
in statutory interpretation since the sixteenth century,
expressed in the shell-and-kernel metaphor:
And the law may be resembled to a nut, which has a shell and a
kernel within, the letter of the law represents the shell, and the
sense of it the kernel, and as you will be no better for the nut if you
make use only of the shell, so you will receive no benefit by the law,
if you rely only upon the letter.30
Here, the kernel represents prototypical “sense” while the shell
represents the legalist “letter of the law.” At the founding,
American courts were fond of a similar idea, quoting the Latin
phrase nam qui haeret in litera, haeret in cortice (he who sticks
to the letter of the law will only stick to its bark).31
Academic textualists have not, in my opinion, grappled
with this distinction as much as they might. Instead, there
seems to be a good deal of talk of ordinary meaning
30
WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION 4 (1994)
(quoting Reporter’s Note to Eyston v. Studd, (1574) 75 Eng. Rep. 688 (K.B.) 695-96; 2
Plowden 459, 465).
31
E.g., Church v. Thomson, 1 Kirby 98, 99, 1786 WL 117 (Conn. Super. Ct.
1786); Olin v. Chipman, 2 Tyl. 148, 150, 1802 WL 778 (Vt. 1802); Miller’s Lessee v.
Holt, 1 Tenn. 111, 5 (1805); Commonwealth v. Andrews, 2 Mass. 14, 29, 1806 WL 735
(1806); Sumner v. Williams, 8 Mass. 162, 183, 1811 WL 1169 (1811). My thanks to the
research assistance of Asher Steinberg, Georgetown University Law Center Class of
2011, who found this phrase and its repetition in his research on founding statutory
interpretation.
2011]
TWO KINDS OF PLAIN MEANING
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accompanied by a definition of ordinary meaning as technical
or legalist. John Manning writes that “textualists seek out
technical meaning, including the specialized connotations and
practices common to the specialized sub-community of
lawyers.”32 As Jonathan Molot writes, textualists tend to see
“words written on a piece of paper, rather than as a collective
effort by elected representatives to govern on behalf of their
constituents.”33 This tendency to detach chunks of text from the
statute and then hold them up to the light to test their logical
extent reflects the lawyerly love of logic. Indeed, one leading
scholar and Federalist Society member writes, “The textualist
judge treats questions of interpretation like a puzzle to which it
is assumed there is one right answer.”34
This tendency to prefer legalist meaning is reflected in
two important aspects of textual theory. Generally, new
textualism advertises itself as a more restrained view of
statutory interpretation, relative to intentionalism or
purposivism. Although textualists claim that, unlike
purposivists, they do not “add” meaning to text, in fact, they do.
They may reject legislative history, but they are perfectly
willing to add lawyerly meanings taken from past precedents,
canons of construction, and even the common law. The implied
preference for specialized meanings speaks loudest in
textualists’ affection for the common-law baseline. As one
prominent textualist writes, “Textualists assign common-law
terms their full array of common-law connotations; they
supplement otherwise unqualified texts with settled commonlaw practices . . . .”35 Surely, however, this affection for the
common law stands in some tension with the notion of ordinary
meaning. Does the ordinary man or woman on the street know
much about the common law? Does the ordinary legislator?
Textualists reply that it is not fair to tar textualism
with affection for arcane lawyerly meanings; textualists seek
ordinary meanings. Justice Scalia writes,
32
John F. Manning, Textualism and Legislative Intent, 91 VA. L. REV. 419,
434-35 (2005).
33
Jonathan T. Molot, The Rise and Fall of Textualism, 106 COLUM. L. REV. 1,
48 (2006).
34
Thomas W. Merrill, Textualism and the Future of the Chevron Doctrine, 72
WASH. U. L.Q. 351, 372 (1994).
35
Manning, supra note 32, at 435 (citing Moskal v. United States, 498 U.S.
103, 121 (1990) (Scalia, J., dissenting)).
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[F]irst, find the ordinary meaning of the language in its textual
context; and second, using established canons of construction, ask
whether there is any clear indication that some permissible meaning
other than the ordinary one applies. If not—and especially if a good
reason for the ordinary meaning appears plain—we apply that
ordinary meaning.36
I agree entirely. But, as other scholars have wondered, a gap
may remain between talking about ordinary meaning and
applying ordinary meaning. There is reason to wonder, for
example, whether the best and brightest lawyers confuse
ordinary meaning with expert or specialized meaning.37 In one
recent study of Justice Scalia’s dissents, the author found that
“plain meaning . . . refer[red] to something different than
‘ordinary meaning’ . . . to a specialized but accepted meaning of
a term.”38 In another empirical study, the political scientist
Frank Cross found that “[o]verall, the plain meaning standard
seems ideologically manipulable and incapable of constraining
preferences to provide greater consensus.”39 In yet another more
recent empirical study based on over 1000 subject responses,
Ward Farnsworth, Dustin Guzior, and Anup Mulani found that
plain meaning correlated with ideological bias, whereas
ordinary meaning did not.40 There is a reason for this: plain
meaning simply asserts its plainness, and thus bears the risk
of dogmatism and self-regard (i.e., “it is plain because I say
so”). Ordinary meaning requires the interpreter to put herself
in the shoes of a nonlegal audience; it has a built-in form of
impartiality, not to mention democratic appeal. Perhaps that
helps explain empirical work showing that Congress has a
greater tendency to “override” plain-meaning decisions than
decisions relying on legislative history.41
36
Chisom v. Roemer, 501 U.S. 380, 404 (1991) (Scalia, J., dissenting)
(emphasis added). In the constitutional context, he is similarly insistent. See, e.g.,
District of Columbia v. Heller, 554 U.S. 570, 584 (2008).
37
Solan, supra note 20.
38
McGowan, supra note 14, at 149 (emphasis added).
39
FRANK B. CROSS, THE THEORY AND PRACTICE OF STATUTORY
INTERPRETATION 166 (2009).
40
Ward Farnsworth, Dustin F. Guzior & Anup Mulani, Ambiguity About
Ambiguity: An Empirical Inquiry into Legal Interpretation, 2 J. LEGAL ANALYSIS 257
(2010), available at http://ssrn.com/abstract=1441860. Farnsworth, Guzior, and Mulani
usefully distinguish between plain meaning as an internal view and ordinary meaning
as external. Whereas the question, “is this meaning plain?” tends to elicit views
correlated with strong ideological positions (the internal view), the question, “would an
ordinary person think this meaning is plain?” does not (the external view).
41
See CROSS, supra note 39, at 82-83 (summarizing this evidence); see also
Daniel J. Bussel, Textualism’s Failures: A Study of Overruled Bankruptcy Decisions, 53
2011]
TWO KINDS OF PLAIN MEANING
1005
Here lies an important question for textualist theory.
New textualism remains unclear about precisely what type of
meanings it will apply.42 While some textualists tend to
emphasize expert meaning and semantic content, others
emphasize ordinary meaning. Indeed, some textualists are
quick, even within a single article, to refer to ordinary meaning
and specialized meaning as if there were no difference between
the two.43 Perhaps textualists are assuming that the average
citizen is a lawyer—something I am quite sure the voting
public would find odd, if not offensive. The very existence of
two kinds of plain meaning calls for a theory concerning when
a court should apply expert meaning and when it should apply
public, or prototypical, meaning.
VAND. L. REV. 887 (2000); William N. Eskridge, Jr., Overriding Supreme Court
Statutory Interpretation Decisions, 101 YALE L.J. 331, 350 tbl.8 (1991); Michael E.
Solimine & James L. Walker, The Next Word: Congressional Response to Supreme
Court Statutory Decisions, 65 TEMP. L. REV. 425 (1992).
42
See Molot, supra note 33, at 36 (“[L]ittle attention is devoted to the
interpretive methodology textualism offers to replace strong purposivism and on
variations within the textualist movement.”).
43
See supra note 35 and accompanying text.
Text or Consequences?
Jane S. Schacter†
I.
INTRODUCTION
The magnetic pull of taxonomy is a well-worn feature of
scholarship in the realm of statutory interpretation and
beyond. Casting competing theories in bold relief and in terms
of what separates them produces sharp and lively exchanges.
And so it has been with textualism in statutory interpretation.
The approach was once dubbed the “new textualism,”1 though
presumably the moniker of novelty can be dropped now that
twenty years have passed since textualism first appeared, close
on the heels of its avatar, Justice Antonin Scalia, taking his
seat on the Supreme Court. In those two decades, textualism
has been set against intentionalism, purposivism, dynamic
interpretation, pragmatism, and other worthy competitors in a
vigorous normative debate.2
As part of this contest over interpretive first principles,
Justices Scalia and Stephen Breyer have engaged one another
repeatedly, and they show no sign of fatigue as they continue a
long-running interpretive road show that has brought this
debate to various venues and to C-SPAN viewers.3 The lines of
†
William Nelson Cromwell Professor of Law, Stanford Law School. Thanks
to Jessica Spradling for excellent research assistance and to the participants in the
Symposium for helpful comments and discussions.
1
See William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621,
623 (1990).
2
See generally WILLIAM N. ESKRIDGE, JR. ET AL., CASES AND MATERIALS ON
LEGISLATION 765-98 (4th ed. 2007).
3
Justice Scalia’s core ideas are concisely laid out in ANTONIN SCALIA, A
MATTER OF INTERPRETATION (1997). Justice Breyer’s competing views on legislative
history are laid out in Stephen Breyer, On the Uses of Legislative History in Interpreting
Statutes, 65 S. CAL. L. REV. 845 (1992), and his broader views on the centrality of
statutory purpose are laid out in STEPHEN BREYER, MAKING OUR DEMOCRACY WORK 88105 (2010). The two have debated each other numerous times. See, e.g., Brooke Bellomy,
Justices Scalia, Breyer Speak at Lecture Series, DAILY TOREADOR (Nov. 14, 2010),
http://www.dailytoreador.com/news/article_7bf7c942-f04a-11df-b524-0017a4a78c22.html;
Constitutional Conversation (C-SPAN television broadcast Apr. 21, 2005), available at
http://www.c-spanvideo.org/program/Conversation; Constitutional Issues (C-SPAN
television broadcast Dec. 5, 2006), available at http://www.c-spanvideo.org/program/
ConstitutionalIss; Original Intent and a Living Constitution (C-SPAN television
1007
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the overall debate are, by now, familiar.4 Scalia stresses the
singular legitimacy and crisp constitutional pedigree of
statutory text, and the imperative of suppressing judicial
policymaking.5 Breyer trumpets the greater commitment of his
approach to values like meaningful legislative supremacy, the
functional value of consulting legislative history, and the
pragmatic virtues of a nondogmatic approach that is open to an
eclectic range of interpretive resources.6
It has become somewhat common for observers of this
debate to proclaim that “we are all textualists now.”7 Indeed,
some commentators have flatly declared the triumph of
textualism, though it is uncertain just what that means in light
of the distinctions drawn by some of the same observers
between “moderate” and “aggressive” textualism, and
associated arguments about the convergence of text- and
intent-based theories.8 The convergence hypothesis has been
resisted in some quarters based on the belief that textualism is
implacably “radical” at its conceptual core.9 This radicalism,
however, has been ascribed more to scholarly proponents of
textualism than to those who practice it as judges.
It is the gap between theory and practice that I would
like to reflect on in this short essay. To borrow from the law
and society framework and adapt the idea for our purposes, let
us call it the gap between textualism on the books (its formal
theory) and textualism in action (how it is actually applied in
broadcast Mar. 23, 2010), available at http://www.c-spanvideo.org/program/Intenta;
Principles of Constitutional and Statutory Interpretation (C-SPAN television broadcast
Oct. 26, 2009), available at http://www.c-spanvideo.org/program/Statuto.
4
For a concise overview, see Abbe R. Gluck, The States as Laboratories of
Statutory Interpretation: Methodological Consensus and the New Modified Textualism,
119 YALE L.J. 1750, 1761-68 (2010).
5
See generally SCALIA, supra note 3.
6
See generally BREYER, supra note 3; Breyer, supra note 3.
7
See Jonathan R. Siegel, Textualism and Contextualism in Administrative
Law, 78 B.U. L. REV. 1023, 1057 (1998) (“In a significant sense, we are all textualists
now.”); see also, e.g., William N. Eskridge, Jr., All About Words: Early Understandings
of the “Judicial Power” in Statutory Interpretation, 1776-1806, 101 COLUM. L. REV. 990,
1090 (2001) (“[T]he proposition that statutory text . . . ought to be the primary source of
statutory meaning . . . needs little defense today. We are all textualists.”); Jonathan T.
Molot, The Rise and Fall of Textualism, 106 COLUM. L. REV. 1, 43 (2006) (“[W]e are all
textualists in an important sense.”); Marjorie O. Rendell, 2003—A Year of Discovery:
Cybergenics and Plain Meaning in Bankruptcy Cases, 49 VILL. L. REV. 887, 887 (2004)
(“We are all textualists now.”).
8
See, e.g., Molot, supra note 7, at 43; Caleb Nelson, What Is Textualism?, 91
VA. L. REV. 347, 348-49 (2005).
9
See generally Jonathan R. Siegel, The Inexorable Radicalization of
Textualism, 158 U. PA. L. REV. 117 (2009).
2011]
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1009
cases). I have no quarrel with the idea that textualism on the
books can be quite radical. I would like to suggest, though, that
textualism in action can be, and often is, deployed in a far more
pragmatic way, and that highlighting that point can suggest
some new normative inquiries. To develop this point, I will use
as my frame of reference the interpretation of federal statutory
law,10 and focus on textualism’s most famous adherent. That
seems only appropriate as this symposium coincides with
Justice Scalia’s twenty-fifth anniversary on the Supreme
Court. The particular point I would like to press is this: while
textualism on the books conspicuously eschews the legitimacy
of consequentialism in statutory interpretation, textualism in
action often uses strikingly consequentialist methods. In other
words, it can and does argue for and against particular
interpretations of statutory language based explicitly on the
policy consequences that would follow—consequences that are
not imputed to Congress as part of the legislative purpose.
I mean something less global and more refined than a
general claim that “textualism is as activist as anything else.” In
particular, I mean the specific idea that judicially determined
policy consequences can, and often do, figure quite prominently
in textualist reasoning and method. This idea is, of course,
anathema to the intellectual claims and premises of textualist
theory. Indeed, on occasion, Justice Scalia has gone out of his
way to dissociate himself explicitly from this style of argument,
saying, for example, “I do not think . . . that the avoidance of
unhappy consequences is adequate basis for interpreting a
text.”11 Revealing and probing this aspect of textualism in
practice can give us a fuller and more accurate picture of the
method, and open up an important set of prescriptive questions
that are missed when we take textualism at face value and
debate its wisdom only as an abstraction.
II.
DISCUSSION
Textualism’s consequentialist tendencies are apparent
at three levels of analysis: general claims of substantive goods
it supposedly produces; the textual canons it accommodates
10
The idea of looking at textualism in action ought to extend to state courts
as well, though that question is beyond my scope here. See generally Gluck, supra note
4 (gathering empirical evidence suggesting “modified textualism” is alive and well in
the state courts).
11
Nixon v. Mo. Mun. League, 541 U.S. 125, 141 (2004) (Scalia, J., concurring).
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and employs; and particular statutory readings related to
policy consequences.
First, at the most general level, textualism is itself
conceived and justified in strikingly consequentialist terms.
Consider the many salutary results claimed by its proponents.
Among other things, textualism is said to encourage judicial
restraint;12 promote democratic values;13 avoid the particular
“harm” that results from permitting courts to “psychoanalyze[]
Congress rather than read[] its laws”;14 curb the undue
influence of lobbyists, interest groups, and unelected staffers;15
and further the rule of law by making the meaning of statutory
law more accessible to citizens.16 And the list might go on.17
To be fair, the justification for textualism might be
restated as more intrinsic than instrumental by focusing on the
familiar claim that the Constitution demands textualist
methodology.18 But that claim depends on a contestable view of
the Constitution—and one that is itself bound up with, and
inspired by, the institutional consequences it is said to produce.
Moreover, the other, and more obviously consequentialist,
claims for textualism enumerated above persist. Rather than
have a somewhat metaphysical debate about the difference
between a consequence and a claim of inherent worth, then, let
us simply stipulate that proponents of textualism commonly
tout several desirable consequences that they claim their
approach will produce.
Second, Justice Scalia’s textualism accepts and
accommodates a number of canons that can be, and have been,
12
SCALIA, supra note 3, at 17-18 (arguing that intentionalism allows judges
to “pursue their own objectives and desires” and should thus be replaced by textualism,
which will confine them to “what the legislature said,” not “what it meant”).
13
See Chisom v. Roemer, 501 U.S. 380, 417 (1991) (Scalia, J., dissenting)
(arguing that textualism will give Congress “a sure means by which it may work the
people’s will”).
14
Id.
15
See Blanchard v. Bergeron, 489 U.S. 87, 98-99 (1989) (Scalia, J., concurring);
SCALIA, supra note 3, at 32-37.
16
See SCALIA, supra note 3, at 17 (comparing intentionalism to Nero’s
“posting edicts high up on the pillars, so that they could not easily be read”).
17
See generally John F. Manning, The Absurdity Doctrine, 116 HARV. L. REV.
2387, 2476 & n.319 (2003) (citing portions of Lon L. Fuller, The Case of the Speluncean
Explorers, 62 HARV. L. REV. 616, 636 (1949), as a defense of formalism of the textualist
sort in terms of its costs and consequences).
18
SCALIA, supra note 3, at 34-35.
2011]
TEXT OR CONSEQUENCES?
1011
deployed in consequentialist fashion.19 As a general matter,
Scalia has criticized substantive canons as questionable “diceloading rules.”20 But he has approved the use of what he calls
“established canons of construction,” which he suggests can be
properly employed to show that “some permissible meaning
other than the ordinary one applies.”21 The mother of all
consequentialist canons is undoubtedly the rule that statutes
should not be construed to produce absurd results. By definition,
the absurdity doctrine is oriented precisely to avoiding bad
policy consequences. In a textualist critique of this canon, John
Manning collected a number of opinions in which Scalia (as well
as textualist Judge Frank Easterbrook) employed it or approved
of its use.22 Manning argues that textualism ought to banish the
absurdity canon—or, on my reading of his argument, drive the
canon underground by reframing it in terms of background
conventions.23 His own critique notwithstanding, however,
Manning freely acknowledges that neither Justice Scalia—nor
for that matter Judge Easterbrook—have jettisoned absurdity in
the name of textualism.24 Interestingly, Scalia has not only
applied the absurdity canon on its own, but has, on occasion,
linked it with more semantically oriented canons, such as
expressio unius,25 thus giving those kinds of canons their own
consequentialist twist.
The consequentialist use of canons as part of textualism
is not limited to absurdity. Other canons deemed “established”
19
On the general ways in which canons are associated with the justices’
ideologies, see James J. Brudney & Corey Ditslear, Canons of Construction and the
Elusive Quest for Neutral Reasoning, 58 VAND. L. REV. 1 (2005).
20
SCALIA, supra note 3, at 28-29.
21
Chisom v. Roemer, 501 U.S. 380, 404 (1991) (Scalia, J., dissenting).
22
See Manning, supra note 17, at 2419 nn.122-23 (citing Burns v. United
States, 501 U.S. 129, 135 (1991) (Scalia, J., joining majority opinion); Green v. Bock
Laundry Mach. Co., 490 U.S. 504, 527-28 (1989) (Scalia, J., concurring); City of
Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424, 449 n.4 (2002) (Scalia,
J., dissenting); INS v. Cardoza-Fonseca, 480 U.S. 421, 452 (1987) (Scalia, J.,
concurring); United States v. Seaboard Sur. Co., 236 F.3d 883, 885 (7th Cir. 2001)
(Easterbrook, J.); Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir. 1998) (Easterbrook, J.)).
23
Manning, supra note 17, at 2419-31; see also John C. Nagle, Textualism’s
Exceptions, ISSUES IN LEGAL SCHOLARSHIP, Nov. 2002, http://www.bepress.com/cgi/
viewcontent.cgi?article=1035&context=ils.
24
Manning, supra note 17, at 2419-20, 2471.
25
Expressio unius est exclusio alterius reflects the idea that including
particular things in a statute implies the exclusion of others. See BLACK’S LAW
DICTIONARY 620 (8th ed. 2004). Justice Scalia has indicated support for the idea that
the absurdity principle imposes a limitation on expressio unius. See Pauley v.
Bethenergy Mines, Inc., 501 U.S. 680, 719-20 (1991) (Scalia, J., dissenting); Burns v.
United States, 501 U.S. 129, 136-38 (1991) (Scalia, J., joining majority opinion).
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by Scalia have also been used in this way.26 For example, Scalia
has invoked clear statement rules in ways explicitly calibrated
to preventing policy consequences deemed inconsistent with
the normative tenets underlying such rules. In the realm of
federalism, for example, he argued in Rapanos v. United States
against an interpretation of the Clean Water Act that would
“authorize an unprecedented intrusion into traditional state
authority.”27 There are substantial questions about whether the
clear statement rule employed in Rapanos can credibly be
considered well established given its recent vintage, but the
pertinent point for our purposes is the manner in which it was
used, not the fact of use itself.
In the realm of disability law, Justice Scalia has used a
clear statement rule to argue against the application of Title III
of the Americans with Disabilities Act to foreign-flag ships. In
this context, he appealed to, among other things, the risk of
subjecting ships to inconsistent international regulatory
requirements.28 These arguments can be reframed as matters of
reasonable meaning (as in, “what sensible Congress would
trample state prerogatives or create the risk of international
commercial chaos in this fashion?”), but that strikes me as a
thin defense against the claim of canonical consequentialism.
We can go through a similar exercise with respect to other
canons as well.29
Third, and perhaps most significant for my analysis,
textualism can be deployed in a consequentialist fashion when,
without regard to canons, particular readings of a statutory
term are preferred or disfavored based on the policy
consequences that such readings are thought likely to produce.
I am thinking here of instances in which the relevant policy
consequences are not attributable in a specific way to
congressional choice. Take, for example, Justice Scalia’s
26
For a discussion of canons deemed “established” by Scalia, and a critique of
the category itself, see Philip P. Frickey, Interpretive-Regime Change, 38 LOY. L.A. L.
REV. 1971, 1987-92 (2005).
27
Rapanos v. United States, 547 U.S. 715, 738 (2006).
28
Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 149 (2005) (Scalia, J.,
dissenting).
29
See Brudney & Ditslear, supra note 19, at 13 nn.48-51 (listing examples of
opinions that utilize canons, several of which are authored or joined by Justice Scalia,
including: Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452-53 (2002) (expressio unius);
Circuit City Stores v. Adams, 532 U.S. 105, 114-15 (2001) (esjudem generis); Sutton v.
United Air Lines, Inc., 527 U.S 471, 482, 487 (1999) (Whole Act Rule); and Ford Motor
Co. v. EEOC, 458 U.S. 219, 225-26, 226 n.8, 233 n.19 (1982) (in pari materia)); see also
supra text accompanying note 22.
2011]
TEXT OR CONSEQUENCES?
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Rapanos opinion interpreting the Clean Water Act. He not only
invoked the clear statement rule alluded to above, but also
launched a screed against the excesses of federal regulation,
citing $1.7 billion in annual costs incurred by those seeking
wetlands permits and helping to make a consequentialist case
for his reading of the statutory terms.30
Consider, as well, Scalia’s dissent in Babbitt v. Sweet
Home.31 In vigorously disputing the majority’s construction of the
term “take” in the Endangered Species Act to include habitat
modification, Scalia made many arguments, including that
it produces a result that no legislature could reasonably be thought
to have intended: A large number of routine private activities—for
example, farming, ranching, roadbuilding, construction and
logging—are subjected to strict-liability penalties when they
fortuitously injure protected wildlife, no matter how remote the
chain of causation and no matter how difficult to foresee (or to
disprove) the “injury” may be (e.g., an “impairment” of breeding).32
Note that this argument collects and emphasizes a set of
consequences thought to be beyond the pale, but does not
attempt to impute this concern to the enacting Congress in any
specific or factual sense. It loosely invokes a hypothetical
Congress, but employs a rhetorical device that, in previous
work, I have argued is akin to “the Court more or less play[ing]
ventriloquist to a hypothetical congressional dummy” because
“[t]he important move here is the one made by the Court, not
Congress: the identification of the policy baseline against which
the range of plausible legislative meanings is gauged.”33
In an article about the 1998 Supreme Court term, I
called this category of interpretive resources “judiciallyselected policy norms.”34 When Justice Scalia argued in various
cases during that term, for example, that a proffered reading of
a statute should be rejected because it would undermine
settlement incentives, lead to expensive factual inquiries,
generate boondoggles, create a zany system, or produce
perverse policy results of various stripes,35 he chose the critical
30
Rapanos, 547 U.S. at 721.
Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687,
714 (1995) (Scalia, J., dissenting).
32
Id. at 721-22.
33
Jane S. Schacter, The Confounding Common Law Originalism in Recent
Supreme Court Statutory Interpretation: Implications for the Legislative History Debate
and Beyond, 51 STAN. L. REV. 1, 25 (1998).
34
Id.
35
See id. at 63-71 app. B.
31
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policy norm, used it to guide interpretation, and did so in a
straightforwardly consequentialist way.
Nor was he alone in using this mode of analysis. To the
contrary, I found that mode to be utterly routine—it appeared in
73% of that term’s statutory interpretation opinions—and to
cross conventional interpretive divides.36 The regular use of these
consequentialist arguments, along with an eclectic array of other
resources, prompted me to suggest that the idea of “common law
originalism” described the Supreme Court’s interpretive
practices better than any of the conventional “isms” could.
My own analysis looked only at a single Supreme Court
term, but the evidence suggests it was no outlier. Nick Zeppos’s
analysis of a random sample of Supreme Court cases decided
between 1890 and 1990 reflected an eclectic range of resources,
as well as significant use of what he called “[c]onsequentialist
or practical considerations.”37 He found these considerations to
be used in nearly one-third of the cases. That is less frequent
usage than I found, though still substantial.38
More relevant for our purposes, perhaps, is that
subsequent scholarly analyses of the Supreme Court’s practices
in statutory cases have also found frequent use of judicial
policy norms.39 Indeed, it has persisted in a variety of
substantive contexts.40 And recent work sheds some new light
on the use of these judicial norms. Anita Krishnakumar has
disaggregated the category by distinguishing between norms
36
Id. at 18 tbl.1.
Nicholas Zeppos, The Use of Authority in Statutory Interpretation: An
Empirical Analysis, 70 TEX. L. REV. 1073, 1097 (1992).
38
I suspect the difference is attributable to our having defined the category
differently. The operative categories here can be somewhat slippery because, as I
suggested above, the rhetoric can be deployed to impute the consciousness of
consequences to Congress, not the interpreter. An argument that simply invokes x
consequence to defeat an interpretation might be counted differently than one that
says, “It simply could not have been Congress’s intent to produce x.” In substance,
however, they are often the same, and I would treat them as such, unless the opinion
cites some specific evidence of congressional concern with the relevant consequence.
39
See Anita S. Krishnakumar, Statutory Interpretation in the Roberts Court’s
First Era: An Empirical and Doctrinal Analysis, 62 HASTINGS L.J. 221, 224-25, 228-29,
235-38 (2010); Miranda McGowan, Do as I Do, Not as I Say: An Empirical Investigation
of Justice Scalia’s Ordinary Meaning Method of Statutory Interpretation, 78 MISS. L.J.
129, 173 (2008); Alan Schwartz, The New Textualism and the Rule of Law Subtext in
the Supreme Court’s Bankruptcy Jurisprudence, 45 N.Y.L. SCH. L. REV. 149, 150-55,
192-97 apps. A-B (2000); Nancy Staudt et al., Judging Statutes: Interpretive Regimes,
38 LOY. L.A. L. REV. 1909, 1911, 1960 (2005). Frank Cross found less frequent usage of
practical considerations, but also appears to have used a more restrictive
understanding of the term. See FRANK B. CROSS, THE THEORY AND PRACTICE OF
STATUTORY INTERPRETATION 134-43, 147-48 (2009).
40
See, e.g., Schwartz, supra note 39 (bankruptcy); Staudt, supra note 39 (tax).
37
2011]
TEXT OR CONSEQUENCES?
1015
oriented toward “legal landscape coherence” and those oriented
toward “statute-specific coherence,” and has noted that Justice
Scalia favors the former category.41 Her analysis of the early
Roberts Court supplies many examples of these kinds of
consequentialist arguments, including arguments by Scalia, for
whom she found “[p]ractical [c]onsequences” to be the thirdmost used interpretive tool, following only “[t]ext/[p]lain
[m]eaning” and “Supreme Court [p]recedent.”42
Similarly, in an extended analysis of Scalia’s dissents,
Miranda McGowan documented that he regularly employed a
consequentialist style of argument.43 In her data, this style of
argument appeared in some 70% of the dissenting opinions.44
She also somewhat disaggregated the category. Canvassing the
various dissents, she separated out, for example, what she
called “absurdity-lite” arguments that stressed the policy
anomalies that would result from a given interpretation; the
approach of “[p]utting [p]urposes in Congress’s [m]outh”; the
appeal to what Justice Scalia often calls “common sense”; and
the frequent concern with the “[w]orkability” of different
interpretations of the statute.45 These are recurring interpretive
themes, each one in some way focusing on the results thought
to flow from a particular reading of statutory language.
III.
CONCLUSION
Given that I am not, myself, a textualist, this might be
the point in the paper where you expect me to say “gotcha.” And
while that is always an attractive possibility, I confess, I think
the better response might be something more like “phew.”
Textualism’s ability to be deployed in a consequentialist way is a
virtue, not a vice. This hardly cures all of textualism’s ills, but
the fact that the approach can be, and sometimes is, used with a
pragmatic sensitivity to policy consequences is a source of some
reassurance against the fears of textualist mindlessness.46 But
41
See Krishnakumar, supra note 39, at 225-27.
See id. at 250-51 tbl.2.
43
McGowan, supra note 39, at 175.
44
Id. at 173.
45
Id. at 176, 183-88.
46
See W. Va. Univ. Hosps. v. Casey, 499 U.S. 83, 113 (1991) (Stevens, J.,
dissenting) (criticizing textualism for interpreting laws through “thick grammarian’s
spectacles”); BREYER, supra note 3, at 91 (textualism is missing necessary context for
language); Philip P. Frickey, From the Big Sleep to the Big Heat, 77 MINN. L. REV. 241,
250, 258 (1992) (textualism as literalism).
42
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its concern with consequences should be acknowledged more
forthrightly so that it can be analyzed more systematically.
When textualism’s defenders—including Justice Scalia—deny
this trait and seek shelter in formalist justification alone,
productive normative analysis of this sort is more easily avoided.
The basic question to be addressed, I suggest, is not whether an
interpretive approach is consequentialist, but how it is. We
ought, then, to move from the mode of revelation to one of
evaluation—that is, to a mode in which the particular ways that
different interpretive methodologies that encourage interpreters
to weigh policy consequences can be compared, contrasted, and
assessed in careful relation to one another. That is an important
set of comparative questions to which scholars might
productively turn.
Textualism, intentionalism, purposivism, and virtually
any credible approach to statutory interpretation will begin
with the language, but the approach will be crucially shaped by
how it selects from among the plausible interpretations. That is
where, we have seen, the consideration of consequences enters
the analysis. Plainly, textualism does not consider
consequences in the same way that intentionalism or
purposivism does, for it does so by using text and canons as the
launching pad for this analysis. Is that the best way to consider
consequences? Setting aside questions of candor, it is quite
threadbare. It gives the interpreter little with which to work to
identify and assess the policy consequences likely to flow from
different understandings of the contested statutory langauge.
Given the ubiquity of some form of consequentialist
concern across interpretive methods, then, judges, scholars,
and lawyers might begin to think more systematically about
the appropriate source of the norms that will guide interpreters
as they sort through arguments about consequences. One
obvious source of norms is Congress itself. On this point, the
ability of intent- or purpose-based approaches to assimilate
information about the policy consequences that Congress
sought or feared gives those approaches a functional advantage
over textualism. And it suggests the particular utility of
legislative history. Moreover, legislative history has a role to
play in assessing policy consequences even without fully
embracing intentionalist or purposivist methods. Putting aside
the question of what members of Congress may have wanted,
congressional reports and debates reflect a sustained analysis
of the relevant policy area. Irrespective of which interpretive
theory is chosen, in other words, these reports and debates are
2011]
TEXT OR CONSEQUENCES?
1017
likely to be a relatively rich source of information about the
policy area, and therefore about the possible consequences
associated with different interpretations of the statute.
Legislative history is not, however, the only plausible
source of information about the relevant policy consequences.
Briefing by lawyers, including Brandeis briefs, might
productively address that issue. Similarly, the view of relevant
administrative agencies about likely consequences might be
sought out and considered by judges, even in cases in which the
agency’s own interpretation of the statute is not at issue. In
this way, interpretive litigation might function in appropriate
cases as a forum for developing evidence, in a focused way,
about the results likely to flow from different interpretations.
Questions of fact will not and should not replace questions of
law, but they might usefully inform them. Treating the policy
consequences of different interpretations as a factual matter
bearing on interpretation would likely have some procedural
implications. For example, encouraging policy analysis of this
sort might entail loosening the grip of the traditional
distinction between legislative and adjudicative facts in
appropriate cases.47 And this idea might affect how and when
summary judgment motions are used in statutory
interpretation cases. These implications—and others—ought to
be identified and examined in a thoughtful way.
To have any shot at improving matters, all of these
possibilities would require some willingness on the part of
judicial interpreters to be forthright about the role of
consequentialist analysis, among other interpretive tools.
Formidable institutional and cultural forces work against
openly embracing the idea that judges ought to function as,
essentially, problem solvers with some necessary policy
latitude to work through the implications of plausible
interpretations of a statute. Scholars might play a useful role
in encouraging that shift by probing less the theory, and more
the practice, of interpretive methodology.
47
On the distinction between legislative and adjudicative facts, see 2
KENNETH C. DAVIS & RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 10.5
(3d ed. 1994).
Naïve Textualism in Patent Law
*
Jonathan R. Siegel†
INTRODUCTION
This symposium asks, “How much work does language
do?” The answer these days is “too much.” Courts are letting
statutory language do the work that used to be done by judges’
paying sensitive attention to context, history, policy, and
background understandings.1 Or at least, they are apparently
doing so—the even less appealing possibility is that courts are
using statutory language as a cover for decisions reached on
other grounds.2
I have long argued that part of the judicial function in
statutory interpretation is to apply “background principles” of
law, or “field-specific canons of construction.”3 Courts, in
construing statutes, should—and do—discern the background
principles of the area of law of which a statute is a part and
interpret statutory text in light of them. Background principles
of law frequently influence statutory interpretation, and in
appropriate cases, the force of field-specific canons of
construction may be so great as to cause courts to depart from
apparently clear statutory text.4
*
© 2011 Jonathan R. Siegel. All rights reserved.
Professor of Law, Kahan Research Professor, George Washington
University Law School; A.B., Harvard College; J.D., Yale Law School. The author is
currently on leave from teaching while serving as the Director of Research and Policy
of the Administrative Conference of the United States. This essay is written in the
author’s academic capacity and is not endorsed by the United States or any agency
thereof. The author wishes to thank the participants in the Brooklyn Law School
symposium at which this paper was presented for their helpful comments.
1
See infra Part II.B.
2
See infra Part II.C.
3
Jonathan R. Siegel, Guardians of the Background Principles, 2009 MICH.
ST. L. REV. 123, 123-29; Jonathan R. Siegel, What Statutory Drafting Errors Teach Us
About Statutory Interpretation, 69 GEO. WASH. L. REV. 309, 348 (2001); Jonathan R.
Siegel, Textualism and Contextualism in Administrative Law, 78 B.U. L. REV. 1023,
1033, 1043-44, 1054 (1998) [hereinafter Siegel, Textualism and Contextualism].
4
See, e.g., Siegel, Textualism and Contextualism, supra note 3, at 1045-48.
Such cases are unusual, but they are sufficiently numerous to demonstrate that reliance
on background principles is a part of the judicial process of statutory construction.
†
1019
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Textualist interpreters, however, are pushing more and
more in the direction of insistently following statutory text.
Textualists are becoming increasingly radical, as they
gradually realize that the accommodations they previously
allowed in order to reach sensible results are inconsistent with
fundamental textualist premises.5 This trend has resulted in
the creation of a “naïve textualism.” This mode of
interpretation is not sharply differentiated from textualism per
se, but is distinguished by its naïve attitude that statutes can
be best understood by simply looking up their words in a
dictionary, applying a few canons of statutory construction, and
eschewing other considerations.
The Supreme Court recently provided an excellent
example of its radical shift in the direction of naïve textualism
in the field of patent law. For decades—indeed, for centuries—
patent law was a paradigm of richly contextualized judicial
interpretation. Courts understood the sparse text of patent
statutes in light of history, policy, and background
understandings of the field of patent law.6 In the recent case of
Bilski v. Kappos,7 however, the Supreme Court looked to little
more than the dictionary in deciding fundamentally important
questions under the patent statute. Bilski shows the dangers of
language doing too much work.
This essay first outlines the Court’s shift from a richly
contextual approach to a naïvely textualist approach to
statutory interpretation in patent law,8 and then discusses why
courts should avoid naïve textualism.9
I.
INTERPRETING THE PATENT ACT, THEN AND NOW
A.
Traditional Methods of Interpreting the Patent Act
For a statute that governs such an important and
tremendously varied array of human behavior, the Patent Act
is remarkably compact. Three short sections set out the
requirements that a patentable invention be new, useful, and
nonobvious, and comprise a patentable subject matter.10 But life
5
Jonathan R. Siegel, The Inexorable Radicalization of Textualism, 158 U.
PA. L. REV. 117, 120-22 (2009).
6
See infra Part I.A.
7
130 S. Ct. 3218 (2010).
8
See infra Part I.
9
See infra Part II.
10
See 35 U.S.C. §§ 101, 102, 103 (2006).
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NAÏVE TEXTUALISM IN PATENT LAW
1021
under the patent statute is not as simple as its brief text might
suggest: “the statute cannot be read in isolation from the array
of judicial precedent that has interpreted nearly each of its
words.”11 In making the terse language of the patent statute
workable in practice, the courts have glossed, strained, and
sometimes departed from the statutory text, and they have not
been embarrassed to acknowledge their policy reasons for doing
so. To fully document the judicial role in drawing patent law
principles out of sparse statutory text would require far more
space than is available in a symposium contribution, but a few
examples will give the flavor of traditional judicial methods of
interpreting the Patent Act.
1. Novelty
Section 102 of the Patent Act, which embodies the
statutory requirement that a patented invention be “new,” has
been the subject of much judicial development. For example,
the statute provides that an invention cannot be patented if,
prior to the applicant’s invention of it, the invention was
“known . . . by others in this country.”12 Notwithstanding the
seemingly straightforward text of the statute, however, the
courts have held that the word “known” means “publicly
known.” A patent, therefore, is not barred by prior knowledge
of the invention that was not available to the public.13 The
courts have justified this somewhat strained reading on the
policy ground that an inventor should not lose patent rights
because of knowledge that a prior inventor kept “in his closet.”14
This textual strain becomes more readily apparent
when one contrasts this reading of “known” with the reading
that courts give to the rule that a patent cannot be granted if
the claimed invention was in “public use” more than a year
prior to the date of the patent application.15 The cases that
address this issue hold that a use is a “public use,” within the
meaning of the statute, even if it is hidden from public view
and gives the public no information about the invention—as
11
ROGER E. SCHECHTER & JOHN R. THOMAS, INTELLECTUAL PROPERTY: THE
LAW OF COPYRIGHTS, PATENTS, AND TRADEMARKS 323 (2003).
12
35 U.S.C. § 102(a).
13
E.g., Carella v. Starlight Archery, 804 F.2d 135, 139 (Fed. Cir. 1986); In re
Borst, 345 F.2d 851, 854 (C.C.P.A. 1965) (referring to this rule as a “well-established
principle”).
14
Heath v. Hildreth, 11 F. Cas. 1003, 1005 (C.C.D.C. 1841).
15
35 U.S.C. § 102(b).
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might occur, for example, if the invention were a mechanism
hidden in the workings of a watch.16 Thus, the statutory
prohibition that includes the word “public” requires less public
knowledge than the statutory text that does not—certainly a
surprising result from a textualist perspective.17
The surprise is still greater when one learns that even
the most open, public use of an invention does not count as a
“public use” if the purpose of the use is to test the invention,
even though the statutory text makes no reference to the
purpose of a use.18 Again, the courts have not hesitated to justify
this atextual reading on policy grounds, based on the rationale
that “it is the interest of the public, as well as [of the inventor],
that the invention should be perfect and properly tested.”19 Many
similar examples of courts adopting atextual interpretations of
the Patent Act’s novelty requirement could be cited.20
2. Nonobviousness
Section 103 of the Patent Act provides that, even if an
invention survives the novelty requirement of section 102, a
patent cannot be obtained if the invention “would have been
obvious at the time the invention was made to a person having
16
Egbert v. Lippmann, 104 U.S. 333, 336 (1881).
See id. at 338-39 (Miller, J., dissenting) (complaining that “the word public
is . . . an important member of the sentence” and that the Court’s reading “eliminate[s]
from the statute the word public”).
18
Elizabeth v. Am. Nicholson Pavement Co., 97 U.S. 126, 134 (1877) (holding
that installing experimental pavement on a public toll road for six years was not a “public
use”).
19
Id. at 137.
20
Indeed, the first U.S. patent act barred a patent if the invention was
“known or used before the application” for a patent. Patent Act, § 1, 1 Stat. 318 (1793).
Read naïvely, this language would bar all patents, because every inventor necessarily
knows his or her claimed invention before applying for a patent for it. The Supreme
Court saved the statute by interpreting it as applying only to knowledge or use by
others besides the inventor, as Section 102(a) now provides. E.g., Shaw v. Cooper, 32
U.S. (7 Pet.) 292, 319 (1833).
Another strikingly atextual reading relates to manufacturing process
inventions. If a process is secretly used to produce a product that is openly sold, such
use is a “public use” of the process only if it is by the patentee himself, and not if it is
by others, even though the statutory text makes no reference to who is using the
invention. Compare Metallizing Eng’g Co. v. Kenyon Bearing & Auto Parts Co., 153
F.2d 516 (2d Cir. 1946) (holding such use to be public if by the patentee himself), with
W.L. Gore & Assocs. v. Garlock, Inc., 721 F.2d 1540 (Fed. Cir. 1983) (holding such use
not to be public if by another). In each case, the court justified its interpretation on
policy grounds. See W.L. Gore, 721 F.2d at 1550 (holding that the law prefers a later
inventor who files a patent application over an earlier one who keeps the process
secret); Metallizing Eng’g, 153 F.2d at 520 (holding that the patent applicant should
not be permitted to “extend . . . his monopoly”).
17
2011]
NAÏVE TEXTUALISM IN PATENT LAW
1023
ordinary skill in the art to which said subject matter
pertains.”21 This requirement was born as an extratextual
statutory gloss; the Supreme Court read it into the word
“invention” in the Patent Act (if, indeed, the Court was
concerning itself with statutory language at all) long before the
modern section 103 even existed.22 Today, the requirement is
the subject of a strikingly atextual rule: although the text
clearly turns on whether the invention would have been
obvious “at the time the invention was made,” the lower courts
have held that it bars a patent for an invention that would
have been obvious in light of material published more than a
year before the filing of the patent application, even if
publication took place after the invention was made.23 Again,
this interpretation is justified on policy grounds.24
3. Subject Matter
Perhaps nowhere has the judiciary played a larger role
in the development of patent law than with regard to
patentable subject matter—the fundamental question of what
kinds of things are patentable. Section 101 of the Patent Act
provides: “Whoever invents or discovers any new and useful
process, machine, manufacture, or composition of matter, or
any new and useful improvement thereof, may obtain a patent
therefor, subject to the conditions and requirements of this
title.”25 Innumerable cases have attempted to explain this
requirement, particularly with regard to “process” inventions.
Although the statutory term “process” seems very broad
(especially since it is further statutorily defined to mean
“process, art, or method”),26 the courts have long imposed
restrictions based on widely shared understandings of what
kinds of things are patentable. Most fundamentally, the
Supreme Court has held that “laws of nature, physical
phenomena, and abstract ideas” are not patentable.27 This rule
is tied less to statutory text than to the principle that such
21
35 U.S.C. § 103(a) (2006).
Hotchkiss v. Greenwood, 52 U.S. (11 How.) 248, 267 (1850). It is unclear
from the Court’s opinion whether the Court was interpreting a specific word in the
Patent Act or simply relying on general principles.
23
In re Foster, 343 F.2d 980, 987-90 (C.C.P.A. 1965).
24
See id.
25
35 U.S.C. § 101 (2006).
26
Id. § 100(b).
27
Diamond v. Chakrabarty, 447 U.S. 303, 309 (1980).
22
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BROOKLYN LAW REVIEW
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things cannot be patented because they are “the basic tools of
scientific and technological work.”28 While the boundaries of the
category of “abstract idea” are not especially clear, the
Supreme Court has held, for example, that algorithmic
processes that do no more than manipulate numbers are not
patentable, even though they would fall within the dictionary
definition of the term “process.”29
Particular controversy has surrounded the patentability
of processes that may be characterized as “business methods.”
Although the dictionary definition of the term “process” (and its
statutory predecessor, “art”) would encompass a process for
doing business, the patent community long acted on the basis
of a widely shared “understanding . . . about what patents were
meant to protect” under which an application for a patent on a
business method “would have been seen as absurd.”30 Based on
this understanding, courts long denied patents for business
methods, and treatise writers agreed that business methods, as
generally understood, were outside the patent system.31
Thus, for well over a century, the courts, including the
Supreme Court, imbued the text of the patent statute with
meaning based on widely shared, background understandings
of how the patent system is supposed to work.32 Courts deployed
a substantial amount of policy reasoning in arriving at their
decisions. They accepted an important role in the development
of patent law. Some of the resulting decisions heavily glossed
the statutory text, and some can only be described as having
departed from the statutory text.
28
Gottschalk v. Benson, 409 U.S. 63, 67 (1972).
Id. at 67-72.
30
Robert P. Merges, As Many as Six Impossible Patents Before Breakfast:
Property Rights for Business Concepts and Patent System Reform, 14 BERKELEY TECH.
L.J. 577, 585 (1999); see also Peter S. Menell, Forty Years of Wondering in the
Wilderness and No Closer to the Promised Land: Bilski’s Superficial Textualism and
the Missed Opportunity to Ground Patent Law Interpretation and Return Patent Law to
Its Technology Mooring, STAN. L. REV. (forthcoming 2011) (manuscript at *5-9)
(available on SSRN); John R. Thomas, The Patenting of the Liberal Professions, 40 B.C.
L. REV. 1139, 1145-47 (1999). (Professor Menell’s article, which concerns a topic similar
to that of this essay, was posted on SSRN in December 2010, after this essay was
presented at the Brooklyn Law School symposium in November 2010.)
31
Bilski v. Kappos, 130 S. Ct. 3218, 3246 (2010) (Stevens, J., dissenting).
32
Menell, supra note 30, at *20-21.
29
2011]
B.
NAÏVE TEXTUALISM IN PATENT LAW
1025
Business Method Patents and Naïve Textualism
Notwithstanding the long tradition of rich judicial
involvement in patent law, the Supreme Court recently applied
quite different interpretive methods with respect to the patent
statute, and particularly with regard to the question of
whether business methods are patentable subject matter. The
issue became prominent after 1998, when the Federal Circuit,
departing from tradition, declared that there was no “business
method” exception to patentability.33 The Federal Circuit’s
ruling led to a decade of uncertainty, during which inventors
claimed, somewhat absurdly, to have invented everything from
arbitration34 to hedging.35
Bilski v. Kappos arose when an inventor sought a patent
on a method of hedging against certain business risks.36 When
the case reached the Supreme Court, the Court, speaking
through Justice Kennedy, produced an opinion notably different
from those described in the previous section. Gone were the
appeals to policy and background understandings of the patent
system. In their place was brisk, textualist reasoning.
Patent law, the Court declared, is subject to the usual rule
that, “[u]nless otherwise defined, words will be interpreted as
taking their ordinary, contemporary, common meaning.”37 In place
of policy analysis, the Court deployed “dictionary definitions” and
“common usage.”38 The Court recognized that the long-standing
exception for “laws of nature, physical phenomena, and abstract
ideas”39 deviates from the dictionary definitions of words in the
Patent Act. But the Court denied that “the existence of these wellestablished exceptions gives the Judiciary carte blanche to impose
other limitations that are inconsistent with the text and the
statute’s purpose and design.”40
With specific regard to the question of whether the term
“process” can encompass business methods, the Court’s
33
State St. Bank & Trust Co. v. Signature Fin. Grp., Inc., 149 F.3d 1368,
1375 (Fed. Cir. 1998).
34
In re Comiskey, 554 F.3d 967, 970 (Fed. Cir. 2009).
35
Bilski, 130 S. Ct. at 3223.
36
See id. at 3223-24.
37
Id. at 3226 (alteration in original) (quoting Diamond v. Diehr, 450 U.S.
175, 182 (1981) (quoting Perrin v. United States, 444 U.S. 37, 42 (1979))) (internal
quotation marks omitted).
38
Id.
39
Id.
40
Id.
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analysis was starkly textual.41 Looking to a 1954 dictionary, the
Court quoted the definition of “method” (part of the statutory
definition of “process”), and observed that this definition—“[a]n
orderly procedure or process . . . regular way or manner of
doing anything”42—encompasses methods of doing business.
The Court set aside the tradition of reading the language of the
Patent Act in light of history and background understandings;
it simply relied on the dictionary.
The Court buttressed its dictionary analysis with just
one other observation—an appeal to the canonical “rule against
redundancy.” The Court observed that section 273 of the Patent
Act provides a special, limited defense to claims based on
business method patents.43 Such a defense, the Court observed,
would be superfluous if there were no such thing as business
method patents in the first place.44 Although the Court
acknowledged that section 273 was a later addition to the
Patent Act (it was enacted only after the Federal Circuit’s 1998
decision approving business method patents),45 it said that the
rule against redundancy “cannot be overcome by judicial
speculation as to the subjective intent of various legislators in
enacting the subsequent provision.”46
And that was that. Justice Kennedy’s opinion went on to
invoke some policy reasoning; he explained that tests for
patentable subject matter had to respect the needs of the
information age.47 But these policy observations were not part
of the opinion of the Court. They were segregated into sections
of Justice Kennedy’s opinion that received four votes only;
Justice Scalia declined to join them.48 Thus, the opinion of the
Supreme Court was a textualist opinion that relied exclusively
on a dictionary definition and a canon of construction to decide
an extremely important question of patent law.
41
Menell, supra note 30, at *11-12 (noting that the Court “collapsed the rich
historical development of patentable subject matter doctrine into three amorphous,
static, and ill-defined exceptions”).
42
Bilski, 130 S. Ct. at 3228 (alteration in original) (quoting WEBSTER’S NEW
INTERNATIONAL DICTIONARY 1548 (2d ed. 1954)) (internal quotation marks omitted).
43
Id.; see also 35 U.S.C. § 273 (2006).
44
Bilski, 130 S. Ct. at 3228-29.
45
Id.; see also id. at 3250 (Stevens, J., concurring in judgment).
46
Id. at 3229 (opinion of the Court).
47
Id. at 3227.
48
See id. at 3223 n.*.
2011]
II.
NAÏVE TEXTUALISM IN PATENT LAW
1027
THE DANGERS OF NAÏVE TEXTUALISM
Bilski illustrates the dangers of naïve textualism. To
answer the question posed by this symposium, Bilski permits
statutory language to do too much work. The interpretive regime
of Bilski can be criticized in at least three ways. First, it seems
unfair to apply naïve textualism to a statute passed in a former
era, when courts applied quite different interpretive methods.
Second, even at its best, naïve textualism will result in too many
issues being decided by fortuitous language choices by a
legislature that did not foresee the decisions it was making. And
finally, at its worst, naïve textualism will serve as a disingenuous
cover for judicial choices made on extratextual grounds.
A.
The Bait and Switch of Bilski’s Naïve Textualism
In Bilski, the Supreme Court applied modern-day
textualism to a statute from a former era. Congress has not
comprehensively revised the Patent Act since 1952.49 At the
time Congress was writing the 1952 revisions, it had every
reason to expect that its handiwork would not be interpreted
purely textually.50 The courts had spent more than a century
sensitively applying (and interstitially making) patent law and
imbuing the statutory text with the spirit of widely shared
background understandings of the patent system.
Congress would likely have expected courts to continue
these practices. The statute’s authors would have expected that
they could trust the courts to exercise sound discretion in
implementing the patent system. It seems unfair for courts to
surprise Congress by changing the interpretive rules after a
statute is enacted. If an analysis of Bilski’s naïve textualism
suggests nothing else, it at least suggests that courts should
interpret a statute using the interpretive techniques that were
prevalent when the statute was adopted, lest Congress be
unfairly surprised.
It is, after all, standard dogma that courts should
consider a statute’s enactment date in determining the
meaning of individual words in it: courts look to the words’
“ordinary, contemporary, common meaning.”51 That is why the
49
Act of July 19, 1952, ch. 950, 66 Stat. 792 (codified as amended at 35
U.S.C. §§ 1-376 (2006)).
50
See supra Part I.A.
51
Perrin v. United States, 444 U.S. 37, 42 (1979) (emphasis added).
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[Vol. 76:3
Supreme Court consulted a 1954 dictionary to determine the
meaning of terms in the 1952 statute. But meaning does not
reside solely in the definitions given to individual words. It is
also a product of context and interpretive approach. If it is
sound practice not to read modern definitions of individual
words into a statute passed in a previous era, then it should be
sound not to read modern interpretive techniques into the
statute either.
Of course, it will not always be easy to say what the
interpretive regime was at a given point in history. The courts
make many pronouncements on interpretive methodology and
are not particularly consistent about it.52 But it seems clear
that interpretive methods prevailing in 1952 were not nearly as
textualist as the methods applied by the Supreme Court in
Bilski. Congress could reasonably claim unfair surprise at the
Court’s reading modern-day textualism back into history.
B.
Language Doing Too Much Work
Even setting aside the problem of applying a modern
interpretive approach to a statute passed in a different era, the
difficulty with naïve textualism is that it makes language do too
much work. The result is that fortuitous language choices—what
Larry Solan calls “linguistic accidents”53—made without
foreknowledge of issues that would later arise, end up controlling
questions of great moment. Extraordinary weight is being placed
on Congress’s choice of the words “process” and “method.”
The scope of patentable subject matter is vital to the
patent system. It is difficult to come up with a precise
definition of patentable subject matter, in part because the
very purpose of the patent system is to encourage the
development of new and unforeseen things.54 It is almost
inevitable, therefore, that the statutory language that defines
the scope of patentable subject matter will never perfectly
capture the universe of inventions that should be patentable.
The patent laws require sensitive construction by judges who
are knowledgeable in the full context of the patent system. If,
52
See Jonathan R. Siegel, The Polymorphic Principle and the Judicial Role in
Statutory Interpretation, 84 TEX. L. REV. 339, 385-89 (2005).
53
Lawrence M. Solan, Statutory Interpretation, Morality, and the Text, 76
BROOK. L. REV. 1033 (2011).
54
Diamond v. Chakrabarty, 447 U.S. 303, 315-16 (1980).
2011]
NAÏVE TEXTUALISM IN PATENT LAW
1029
instead, the courts “make a fortress out of the dictionary,”55
they will doom legislatures to producing statutes with
unintended consequences that depart from widely shared
understandings of how the system is supposed to work.
To give the textualists their due, they are surely aware
of this point, and they have an answer to it. A textualist would
say that if a statute’s language is not used to answer whatever
questions arise under it, even questions that were
unanticipated at the time the language was written, the
alternative is for judges to answer the questions, and that
alternative gives judges too much power. Judges are not
supposed to make policy decisions in a democratic society; they
are supposed to implement the policy decisions laid down by
the legislature. By abandoning efforts to imbue statutes with
the spirit of policies and background understandings, courts
confine themselves to their proper role. If that means that
some questions get unanticipated answers, that is the price we
pay for preventing judges from exercising too much power.
The riposte to this argument, however, is that glossing
or even departing from statutory text need not mean that the
judges are implementing their own policies. In appropriate
cases glossing or departing from statutory text is precisely
what is needed to implement the legislature’s policies. The
trick, of course, is for judges to discern those unusual occasions
that warrant something other than straightforward application
of statutory text. Background principles play a critical role in
this process. When the result of simply running statutory
language through the dictionary is a startling departure from
widely shared background understandings of how the system is
supposed to work, it may be a clue to the court that indicates
that something other than a purely textual construction of the
statute is appropriate.56 Judges should certainly not depart
from statutory language at will, but neither should they make
statutory language do all the work.
C.
Language as a Cover for Judicial Decision Making
Moreover, the argument that judges ought to answer
questions based solely on statutory language, lest they exercise
too much policy-making power, is based on a highly
55
56
See Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945) (L. Hand, J.).
Siegel, supra note 52, at 373-74.
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questionable assumption—namely, that courts really can set
aside all other influences and decide questions based solely on
the statutory text. In fact, this seems unlikely. There is too
much indeterminacy in statutory text. Even courts that
purport to be abdicating any policy-making role and following
the rule laid down in the text may be making an interpretive
choice—as can be seen in Bilski.
In Bilski, the Court relied on a standard canon of
statutory construction, the rule against redundancy.57 The
Court noted (rightly enough) that the recently added section
273 of the Patent Act, which provides a limited defense to suits
based on business method patents, would be redundant if
business method patents could never exist. From a textualist
perspective, this is a strong argument.
The flaw in the argument, however, is that courts must
make a choice regarding whether to follow the rule against
redundancy. Sometimes courts set aside the rule on the ground
that a legislature occasionally writes redundant statutory text
as a precaution. Indeed, just two years before Bilski, in Ali v.
Federal Bureau of Prisons,58 the Supreme Court interpreted the
Federal Tort Claims Act in a way that arguably rendered some
words in the statutory text superfluous.59 The Court justified its
ruling by asserting that Congress might have inserted the
superfluous language “to remove any doubt.”60 Chief Justice
Roberts and Justices Thomas, Scalia, and Alito, all part of the
Bilski majority, joined this opinion.61
Two years later, in Bilski, the Court flatly asserted that
the rule against redundancy “cannot be overcome by judicial
speculation as to the subjective intent of legislators.”62
Obviously, this assertion is at best overstated and at worst
57
See supra Part I.B.
552 U.S. 214 (2008).
59
See id. at 237 (Kennedy, J., dissenting) (complaining that the Court’s
reading rendered part of the text “mere surplusage” in violation of the rule against
redundancy).
60
Id. at 226 (majority opinion).
61
The Court similarly rejected application of the rule against redundancy on
the ground that the legislature might have inserted apparently superfluous language
to avoid risk of doubt in Landgraf v. USI Film Products, 511 U.S. 244, 260 (1994),
although in that case the more textualist justices joined a separate concurrence. See
also Chickasaw Nation v. United States, 534 U.S. 84, 94 (2001) (holding that a court
may reject words as “surplusage” if they are “inadvertently inserted or . . . repugnant
to the rest of the statute”) (quoting KARL LLEWELLYN, THE COMMON LAW TRADITION
525 (1980)).
62
Bilski v. Kappos, 130 S. Ct. 3218, 3229 (2010).
58
2011]
NAÏVE TEXTUALISM IN PATENT LAW
1031
disingenuous. The Court has overcome the rule against
redundancy through judicial speculation about the subjective
intent of legislators. Indeed, the speculation in Ali was more
aggressive than would have been the necessary speculation in
Bilski. In Ali there was no particular evidence to suggest that
Congress had acted out of the caution that the Court attributed
to it, whereas in Bilski there was powerful evidence of the
motives behind the potentially redundant provision. Congress
inserted the statutory defense to actions based on business
method patents only after the Federal Circuit ruled that such
patents could be lawful. It seems quite plausible that Congress
was not trying to ratify the Federal Circuit’s decision, but to
limit any fallout that would ensue if that decision were
ultimately to stand.63
Something other than statutory language, therefore,
told the Supreme Court that it could overcome the rule against
redundancy in Ali, but not in Bilski.64 The judges made a
choice. Even within textualism, the rules of statutory
interpretation are not perfectly constraining. The canons of
construction are only guides.65 It is wrong to pretend that the
courts cannot overcome canons of statutory interpretation
when they can and do.
Justice Scalia has accused those who rely on legislative
history of using it merely as “an omnipresent makeweight for
decisions arrived at on other grounds.”66 Naïve textualism uses
text in the same way. It is bad enough to make language do all
the work. It is even worse to pretend that language has done
all the work, when other factors must have guided a court’s
understanding of that language.
CONCLUSION
The Supreme Court did not reach an inappropriate
result in Bilski—all nine justices agreed that the claimed
63
Of course, rather than insert a limited defense to business method patents,
Congress could have clarified that such patents should never be granted. But it might
have lacked the votes to settle the ultimate question of the validity of business method
patents, while having the votes for the limited defense.
64
See also Menell, supra note 30, at *14-15 (noting that the Court’s choice to
apply the canonical rule against redundancy in Bilski was in tension with the equally
canonical principle that repeals by implication are not favored).
65
E.g., Chickasaw Nation, 534 U.S. at 94.
66
Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 219 (1994) (Scalia, J.,
concurring in part and concurring in the judgment).
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invention was not patentable. But the Court displayed an
unfortunately naïve interpretive attitude. Setting aside the
centuries-old tradition of imbuing the text of the patent
statutes with a rich awareness of the history, policy, and
background understandings of the patent system, the Court
imagined, or at least pretended to imagine, that it could
interpret the Patent Act with no more tools than the dictionary
and the canons of construction.
Such naïve textualism, if generally applied, would make
the legislature’s job, and ultimately the task of governing, even
harder than it already is. The legislature cannot foresee
everything as it writes statutes. Judges must exercise
judgment in the process of statutory interpretation. Language
cannot do all the work.
Statutory Interpretation, Morality,
and the Text
Lawrence M. Solan†
In this essay, I wish to explore the question of whether
certain approaches to statutory interpretation can be regarded
as wrongful. My argument concerns instances in which
interpreters take advantage of linguistic accident to license
arguments that flout the intent or purpose of a law.
Philosopher Bernard Williams calls reliance on literal meaning
in this manner “fetishizing assertion,”1 and considers it
tantamount to lying.
If linguistic practices that rely too heavily on linguistic
accident are wrongful, then serious ethical questions present
themselves to the legal system. For if we acknowledge the
problem, we then are forced to ask ourselves how comfortable
we are with a rule of law that cannot rely fully on the law as
written to sustain its legitimacy. In this brief essay, I raise
these issues, and comment on their relationship to questions of
judicial candor in cases concerning the interpretation of
statutes. I conclude that especially when there is doubt about
meaning, or suspicion that the legislature has erred, it is
essential to turn to the purpose of the law in order to avoid the
moral consequences of assertive fetishism. I further argue that
recourse to purpose, contrary to the views of many, actually
reduces the range of judicial discretion, and that those who
associate purposive interpretation with judicial activism
appear to be subject to a cognitive bias—the conjunction
fallacy.
†
Don Forchelli Professor of Law, Brooklyn Law School. My thanks to Ralf
Poscher and to participants in the Brooklyn Law School symposium on statutory
interpretation for helpful comments. This research was sponsored by a summer
research stipend from Brooklyn Law School.
1
BERNARD WILLIAMS, TRUTH AND TRUTHFULNESS 100-10 (2002).
1033
1034
I.
BROOKLYN LAW REVIEW
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MORALITY, SPEECH, AND INTERPRETATION
Lying is an immoral act—at least most of the time. It is
prohibited in many legally relevant contexts. Lying under oath
is perjury.2 Lying in business affairs is fraud.3 Lying to
government officials is a crime in itself.4 Lying in the course of
acting as a lawyer is sanctionable misconduct.5
In some, but not all, of these contexts, misleading
another person into believing to be true something the speaker
believes to be false is also both immoral and legally prohibited. A
truthful, but misleading, statement can be just as much a fraud
as a false statement.6 In fact, fraud is defined to include both
species of deception. In some instances, it might even seem
worse for a person to scheme to misdirect his target through a
series of truthful statements than it does to tell an outright lie.
While the liar has to take responsibility for his falsehood, the
deceiver can feel virtuous at not having said anything false
while arriving at the same result: successfully leading someone
to believe something to be true that the speaker knows is false.7
For this reason, many moral philosophers draw no distinction
between the two.8 Bernard Williams goes even further,
denouncing reliance on the truth for moral justification of a
fraudulent act as immoral in its own right.9
How does deception work? Like persuasion, deception
depends on a change in the state of mind of the hearer (or
reader).10 To succeed, the deceiver calculates the inferences that
a person is likely to draw from a speech act and leads the
target to draw just the inferences that will accomplish the task
2
18 U.S.C. § 1621 (2006).
For definitions, see RESTATEMENT (SECOND) OF TORTS §§ 525-26 (1977).
4
See 18 U.S.C. § 1001 (2006).
5
See MODEL RULES OF PROF’L CONDUCT § 8.4 (2010).
6
See RESTATEMENT (SECOND) OF TORTS § 529 (“Representation Misleading
Because Incomplete: A representation stating the truth so far as it goes but which the
maker knows or believes to be materially misleading because of his failure to state
additional or qualifying matter is a fraudulent misrepresentation.”).
7
See Jonathan E. Adler, Lying, Deceiving, or Falsely Implicating, 94 J. PHIL.
435, 439-40 (1997).
8
See, e.g., T.M. SCANLON, WHAT WE OWE TO EACH OTHER 320 (1998);
JENNIFER SAUL, LYING, MISLEADING AND WHAT IS SAID (forthcoming) (manuscript at
10-13) (on file with author).
9
WILLIAMS, supra note 1, at 100-10.
10
Philosopher J.L. Austin refers to this as the “perlocutionary effect” of the
statement. J.L. AUSTIN, HOW TO DO THINGS WITH WORDS 108 (J.O. Urmson ed., 1965).
3
2011] STATUTORY INTERPRETATION, MORALITY, AND THE TEXT 1035
of deception.11 The better the calculation, the more likely the
deception. And these calculations are easy enough, at least
much of the time. It is not at all difficult to deceive, because we
are all aware that people tend to draw the inferences we intend
them to draw in everyday conversation. In fact, we say the
things we do with those inferences in mind. If I ask you, as
your guest, “where’s the telephone,” we both understand that I
am asking you if I can use the phone, and the assumption is
that I will not use it in a way that will cost you money (or at
least no more money than our relationship would bear within
the bounds of politeness). Neither of us has said any of this, but
I know what you will infer before I speak. In essence, we both
apply Grice’s cooperative principle, which says that we
construe conversations to proceed as a cooperative interaction,
drawing whatever inferences we need to draw for that to
happen.12 You draw those inferences as the hearer, and I adjust
what I say around the inferences that I (correctly, we hope)
predict that you will draw.
Now, let us assume that you and I are negotiating some
kind of deal. I know that if you speak with Hannes before
signing on the dotted line, you will find out that the deal is
unfair to you, and I also know that you want to speak to Hannes
because you value his counseling. It is the kind of conversation
that you would only have with Hannes in person if he is
available. I would rather that you and Hannes not speak. You
ask: “Have you seen Hannes recently?” I answer truthfully: “I
saw Hannes in Washington last week.” What I didn’t add was
that Hannes is now staying at a hotel in New York two blocks
from where we are having our conversation, and that I just had
dinner with him there last night. With only a little luck, your
trust in me will cause you to snap at the bait, and I will be home
free. In our story, I have committed an immoral act, whether or
not you believe that telling an actual lie would have been an
even greater affront (I personally do not think so).
Now let us ask whether, just as one can act immorally
by misdirecting someone with statements that are literally
truthful, one can act immorally by construing a statement of
another in a manner consistent with the words, but
11
This perspective is consistent with the signal approach to communication,
described in Cheryl Boudreau et al., What Statutes Mean: Interpretive Lessons from
Positive Theories of Communication and Legislation, 44 SAN DIEGO L. REV. 957 (2007).
12
H. P. Grice, Logic and Conversation, in SYNTAX AND SEMANTICS 41, 45 (P.
Cole & J. Morgan eds., 1975).
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inconsistent with the inferences that the context dictates would
be reasonable to draw. That is, can I commit a reciprocal moral
wrong if I make it your problem that your words can be
construed in a manner contrary to your intended
communicative desires, and perhaps, contrary to your
interests, even when I know what you are trying to say? I think
the answer is yes. Going back to our conversation about
Hannes’s whereabouts, let us assume that, after seeing Hannes
in Washington last week, I have not seen him since. I have no
idea where he is now. You, however, would gain some
advantage from my acknowledging that I had seen him
yesterday, although I hadn’t. You then tell others that I did not
deny having seen Hannes yesterday when I said that I had
seen him last week, and that I spoke indirectly when you asked
about Hannes, casting suspicion on my honesty. You never lie,
but you have insincerely taken my words to imply things I
never intended them to imply, and that the normal rules of
implicature would not support. This makes you an immoral
listener, just as the first story made me an immoral speaker.
Of course, your immoral act does not end with your
having intentionally misconstrued my words. For you have not
only misconstrued them, but you have presented your
interpretation to others knowing that you did not fairly report
the substance of my message, in order to deceive them without
presenting them with a bald-faced lie. I will not here address
the morality of the person who privately perverts the intended
meaning of a communication without letting anyone know
about it. When the distorted interpretation is reported, though,
the interpretive act has been transposed into a deceptive
speech act, which is precisely what we saw to be
uncontroversially immoral above. That is why the two acts are
reciprocal moral wrongs.
Moreover, we would draw the same conclusions about
your morality if you were to take advantage of an error I made
in what I said. Assume that I met Hannes on Tuesday of last
week. We both know this because you were also there. In a
subsequent conversation with you, I accidentally refer to
having seen Hannes on Wednesday. We both know that by
Wednesday, Hannes had flown to London, and that I didn’t see
him that day and could not have seen him that day even if I
had wanted to see him that day. Nonetheless, knowing that I
2011] STATUTORY INTERPRETATION, MORALITY, AND THE TEXT 1037
had made a simple speech error,13 you find a way to take
advantage of the fact that I said Wednesday instead of
Tuesday, perhaps implying that I was scheming with Hannes,
or that I am a liar, or something else that you know not to be
true. Again, you never lie, but you construe my words both
insincerely and ungenerously, and then report your construal
to others. Lawyers do this all the time when they engage in
aggressive cross-examination of an opposing witness. It is
insincere in that context, whether or not it is justified or
required by the lawyer’s obligation to advocate zealously.
Should statutory interpreters behave similarly? Nothing in the
nature of the adversarial system, which is what justifies the
cross-examiner, suggests that they should be given similar
license.
II.
USING STATUTORY LANGUAGE TO FLOUT PURPOSE
I suggest that judges sometimes behave toward
legislatures and toward litigants just as you behaved toward
me in our hypothetical stories about Hannes, whether you took
advantage of an inference that was available but not a fair
interpretation of my words, or whether you took advantage of a
mistake. They take advantage of linguistic indeterminacy to
interpret language that undermines the communicative intent
of the speaker, in this case, the legislature. Sometimes, the
indeterminacy results from a presumed chain of inferences, as
in our hypothetical. At other times, it results from vagueness or
from ambiguity. In still other cases, judges take advantage of
errors in drafting.
Before I illustrate this point with examples from case
law, I wish to make two points. First, these problems do not
arise in every case. Typically, cases involve precisely the
situation that the statute was enacted to address. Thus, as is
13
In everyday interactions, we routinely compensate for grammatical errors
of others and construe the utterances as they were intended to be construed. For recent
studies, see Lyn Frazier & Charles Clifton, Jr., Quantifiers Undone: Reversing
Predictable Speech Errors in Comprehension, 87 LANGUAGE 158 (2011). Frazier and
Clifton note that such compensation for grammatical errors may be more prevalent in
informal speech than in the construal of formal writings, a fact obviously relevant to
the legal context. See id. at 167-68. This distinction among registers suggests that
individuals confronted with obvious errors in formal settings are more likely to be
consciously aware of the mistake, and then must decide how to construe the language:
as literally written, or as an error. The fact that we so routinely compensate for speech
errors in a manner respectful of communicative intent suggests that self-consciously
doing the opposite in formal settings flouts social norms and is construed as such.
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often true with controversial statutory cases, we are dealing
with situations that occur at the margins. Moreover, even when
judges have the opportunity to flout the legislature’s intent or
purpose, they usually do not do so because they regard their
roles, at least in part, as furthering the will of the legislature.14
This essay, then, is truly about outliers.
Second, the judicial practices that I criticize might be
defended as the best practices even if I am right that they are
laced with immoral linguistic games. That is because sticking
closer to the text than to a set of expected inferences has its
own systemic advantages, many of which are described in the
literature defending textualism.15 One may argue that the risk
of an occasional misreading of communicative intent is a small
price to pay for the democratically salient principle of
legislative primacy. This argument is convincing in some
contexts, but not in the ones that form the subject of this essay.
I return briefly to this question later.
The cases that most clearly illustrate my point are ones
in which the statute is susceptible to multiple interpretations,
whether because of syntactic ambiguity, lexical ambiguity, or
vagueness (i.e., the case involves a borderline case of a
statutory word), and a court chooses to ignore the purpose of
the legislation and to take advantage of the linguistic opening.
Consider Ledbetter v. Goodyear Tire & Rubber Co., decided by
the Supreme Court in 2007.16 It is an unfair employment
practice under the Civil Rights Act to discriminate against “any
individual with respect to his compensation . . . because of such
individual’s . . . sex.”17 Ledbetter claimed that she was being
14
See, for example, Bruesewitz v. Wyeth LLC, 131 S. Ct. 1068 (2010), for a
recent case in which the majority opinion, 131 S. Ct. at 1080-81 (Scalia, J.); the
concurring opinion, 131 S. Ct. at 1085-86 (Breyer, J., concurring); and the dissenting
opinion, 131 S. Ct. at 1086-87 (Sotomayor, J., dissenting), all make specific reference to
the intent of the legislature. I discuss the debates about the propriety of referring to
legislative intent, and the fact that judges of all political and philosophical stripes refer
to such information in LAWRENCE M. SOLAN, THE LANGUAGE OF STATUTES: LAWS AND
THEIR INTERPRETATION ch. 3-4 (2010).
15
See, e.g., ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL
COURTS AND THE LAW (1997) (arguing that since statutes are legislatively enacted and
intentions are not, that the proper role of courts is to construe only the language of the
statutes themselves); John Manning, The Absurdity Doctrine, 116 HARV. L. REV. 2387
(2003) (arguing that with an enhanced theory of word meaning, it becomes less
necessary to look outside the statutory language itself, thus constraining judicial
decision making).
16
550 U.S. 618 (2007).
17
42 U.S.C. § 2000e-(2)(a)(1) (2006).
2011] STATUTORY INTERPRETATION, MORALITY, AND THE TEXT 1039
paid less because of her sex.18 The statute has a 180-day statute
of limitations. Although her claim was filed more than 180 days
after the discrimination had allegedly begun, Ledbetter argued
that her claim was timely as long as it applied only to those
paychecks issued in the past 180 days.19 In other words, her
claim was that each time that Goodyear paid her less than they
would have paid her if she were male, she had been subject to
discrimination.
In a 5-4 decision, the Court rejected this position,
accepting instead Goodyear’s argument that the ordinary
meaning of “discriminate” would focus on the decision to pay her
less, made long ago, and not on the ministerial act of cutting a
paycheck.20 Of course, the Court was right about that. And the
Court does often employ the canon that statutory words should
be construed in their ordinary sense.21 Justice Scalia has
explained that the canon is used as a surrogate for investigating
intent: “The question, at bottom, is one of statutory intent, and
we accordingly begin with the language employed by Congress
and the assumption that the ordinary meaning of that language
accurately expresses the legislative purpose.”22
Nonetheless, it defies common sense to think that
Congress intended to create a safe harbor for salary
discrimination not discovered within six months. As Justice
Ginsburg noted in dissent, unlike promotion decisions,
compensation decisions are “hidden from sight,” and
comparative information becomes known only after time, if at
all.23 The decision literally gives an employer leave, after six
months, to say to an employee, “I just want you to know that I
am paying you less because you are a woman, and I have been
doing it for long enough that I can do it forever.” The statutory
language licenses the majority decision—it is surely not
without basis. But the majority has taken advantage of a
linguistic opening to flout the purpose of the statute. I suggest
here that this practice is morally wrong in everyday life, and I
can see no reason for it to be less so when judges engage in it.
18
Ledbetter, 550 U.S. at 621-22.
Id. at 624-25.
20
Id. at 628-29.
21
For discussion of the ordinary meaning canon, including linguistic
justification, see SOLAN, supra note 14, at 53-81.
22
Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992) (quoting
FMC Corp. v. Holliday, 498 U.S. 52, 57 (1990); Park ’N Fly, Inc. v. Dollar Park & Fly,
Inc., 469 U.S. 189, 194 (1985)) (internal quotation marks omitted).
23
Ledbetter, 550 U.S. at 649 (Ginsburg, J., dissenting).
19
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In 2009, Congress amended the law to make this interpretation
no longer available, requiring that the statute of limitations be
reset with the issuance of each paycheck.24
More difficult are cases in which it appears that the
legislature erred. Unlike cases involving statutes whose literal
meaning is ambiguous, these cases actually do pit the literal
meaning of the statute against the goals that the legislature was
attempting to accomplish. And not all errors are the same, as
Jonathan Siegel pointed out in his important work on this
issue.25 The easier of these cases involve scrivener’s errors in
which the legislature seems to suffer a written slip of the tongue.
United States v. Locke26 illustrates this problem. A statute
requires that a person claiming mineral rights on federal land
file a statement with the Bureau of Land Management “prior to
December 31 of each year.”27 Although it is possible that
Congress intended to require that claimants file by December
30, the likelihood is that Congress meant to say “by” instead of
“prior to.” Thinking that the statute required only that the claim
be filed by year end, Locke filed his claim for his mineral mine in
Nevada on the last day of the year.28 The Bureau of Land
Management held him in default of the filing requirement and
proceeded to take away the mineral rights.29 The situation was
made worse by the fact that a member of Locke’s family had
called the Bureau’s office and was told that the filing had to be
made by the end of the year.30 However, the doctrine that the
government may not be estopped as a result of its errors made
this fact appear to be legally irrelevant.31
Justice Thurgood Marshall’s majority opinion showed
little sympathy for the Lockes. On its face, such an opinion,
although perhaps justifiable in its respect for the language that
24
Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5. It is
often the case that legislative overrides of judicial decisions occur in so-called “plain
language” situations where a court argues that it has no choice but to rule in a manner
that the legislature no doubt did not intend. See William N. Eskridge, Jr., Overriding
Supreme Court Statutory Interpretation Decisions, 101 YALE L.J. 331, 347 (1991). For
discussion of congressional overrides in the context of the civil rights laws, see Deborah
A. Widiss, Shadow Precedents and the Separation of Powers: Statutory Interpretation of
Congressional Overrides, 84 NOTRE DAME L. REV. 511 (2009).
25
Jonathan R. Siegel, What Statutory Drafting Errors Teach Us About
Statutory Interpretation, 69 GEO. WASH. L. REV. 309 (2001).
26
471 U.S. 84 (1985).
27
43 U.S.C. § 1744 (2006).
28
Locke, 471 U.S. at 89-90.
29
Id. at 90.
30
Id. at 89 n.7.
31
Id.
2011] STATUTORY INTERPRETATION, MORALITY, AND THE TEXT 1041
the legislature actually used, is morally questionable. The legal
system is taking advantage in two different ways of a
legitimate misunderstanding that the system itself caused: by
enacting a statute that was “a trap for the unwary,” as Judge
Posner has noted,32 and then by misinforming a member of the
public about what the law said because the government
workers themselves had fallen into the trap. I would hold
Justice Marshall and those who voted with him morally
blameworthy if it were not for a footnote in the opinion that
threatened the government with abandonment of the “no
estoppel” doctrine when the case was remanded.33 Lawyers for
the government read the footnote and gave the mineral rights
back to Locke.34 Thus, the case successfully applauds languagebased rule of law values without allowing one side or the other
to take undue advantage of a communicative error. Most cases,
however, do not accomplish these goals simultaneously.35
Less nuanced is Judge Bybee’s dissenting opinion in
Amalgamated Transit Union Local 1309 v. Laidlaw Transit
Service, Inc.36 The Class Action Fairness Act liberalizes removal
to federal court of class actions filed in state court, and calls for
removal decisions to be appealed as follows:
[A] court of appeals may accept an appeal from an order of a district
court granting or denying a motion to remand a class action to the
State court from which it was removed if application is made to the
court of appeals not less than 7 days after entry of the order.37
This is obviously a legislative error. Congress meant to say “not
more than 7 days . . . .” What sense does it make to say that an
unsuccessful party must wait a week, and then has until the
end of time to appeal? Arguing that the language should be
applied as written, Judge Bybee adduced textualist rhetoric.
32
RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 267-68 (1990).
Locke, 471 U.S. at 89 n.7.
34
I describe this history in more detail in SOLAN, supra note 14, at 109.
35
For one that does not, see Bowles v. Russell, 551 U.S. 205 (2007), in which
a judge had misinformed a prisoner of the time that he had to file an appeal, and the
Supreme Court ruled that the law should be interpreted literally, since the statute was
jurisdictional in nature, id. at 206-07, an interpretation that is legitimate, but not
necessary given the statutory language.
36
448 F.3d 1092, 1094 (9th Cir. 2006) (Bybee, J., dissenting). For further
discussion of this case, see Jonathan R. Siegel, The Inexorable Radicalization of
Textualism, 158 U. PA. L. REV. 117 (2009), and my response to Professor Siegel, Lawrence
M. Solan, Response, Opportunistic Textualism, 158 U. PA. L. REV. PENNUMBRA 225, 22829 (2010), http:///www.pennumbra.com/response/104-2010/solan.pdf.
37
28 U.S.C. § 1453(c)(1) (2006) (emphasis added).
33
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Arguing that Congress did not make a scrivener’s error, which
a court might have the right to correct, Bybee continued:
Section 1453(c)(1) makes perfect sense; it is fully grammatical and
can be understood by people of ordinary intelligence. That we think
Congress might choose a different word if it decides to redraft the
statute hardly means that someone made a “typographical error”
that the court may blithely correct. “‘It is beyond [the Court’s]
province to rescue Congress from its drafting errors, and to provide
for what we might think . . . is the preferred result.’”38
Of course, the fact that the sentence is grammatical has
nothing to do with whether the legislature committed an error
in drafting. Bybee would have been on stronger moral grounds
had he forthrightly admitted that the legislature made an
error, but that in his view the legal system should trade some
of its moral authority in an individual case for certainty, which
brings credibility to the system. Instead, he engaged in
fetishizing the assertion notwithstanding the legislature’s
obvious communicative intent.
Finally, let us look at a more difficult situation, one in
which the legislature erred by writing a statute inconsistent
with its purpose not because it used the wrong language, but
because it based its legislative decision on erroneous facts.
Consider United States v. Marshall,39 a case that is well known
to law students. It pits Judges Easterbrook and Posner against
each other in the Seventh Circuit. Perhaps for that reason, the
circuit court opinions are studied more than is the Supreme
Court’s affirmance.40 Marshall was convicted of distributing more
than ten grams of “a mixture or substance containing more than
a detectable amount of LSD.”41 The LSD, which weighs next to
nothing, was sold on blotter paper, which is more than 100 times
as heavy as the drug itself.42 Nonetheless, both the Seventh
Circuit and the Supreme Court affirmed the convictions. This, as
Judge Posner wrote in dissent, resulted in the penalty per dose
of LSD to exceed the per-dose penalty for other drugs to an
extent that makes little sense.43 The best explanation is that
Congress wrote a law in which LSD was treated like powder
38
Amalgamated, 448 F.3d at 1098 (Bybee, J., dissenting) (internal citations
omitted).
39
40
41
42
43
908 F.2d 1312 (7th Cir. 1990).
Chapman v. United States, 500 U.S. 453 (1991).
Marshall, 908 F.2d at 1314-15.
Id. at 1315.
Id. at 1332-34 (Posner, J., dissenting).
2011] STATUTORY INTERPRETATION, MORALITY, AND THE TEXT 1043
drugs, such as heroin, because those who wrote the law did not
know that the various drugs covered by the statute were neither
manufactured nor sold in a comparable way.44
Not all legislative errors are created equal. Judge
Easterbrook’s majority opinion is not about taking advantage of
linguistic accidence, but rather about taking advantage of
legislative ignorance. There is no doubt that Congress
intentionally punished LSD as it did. Favoring consideration of
purpose in deciding which of two available readings should be
accepted does nothing to compromise respect for the
constitutionally mandated legislative process. Correcting
linguistic errors in drafting intrudes further into the legislative
process, but does no more than attempt to arrive at the
legislature’s communicative intent. As noted above, we
routinely compensate for grammatical errors in the speech of
others, unselfconsciously drawing from the language the
intended meaning.45
The correction of legislative errors that concern
mistakes of fact resulting in the enactment of senseless laws
are more difficult, however. When the mistake is a scrivener’s
error, the statutory interpreter who corrects the error says in
essence, “You said x, but you meant to say y.” When, in
contrast, the mistake is one of basing a law on an erroneous set
of facts, the interpreter who corrects the error instead must say
the equivalent of, “You intended to accomplish goal g by virtue
of enacting law x. But x does not accomplish g. Rather, y does.
So I will change x to y to assist you in achieving g.” Changing a
law to better accomplish the legislature’s goal is more of an
intrusion into the legislative process, and reasonable judges
and scholars are likely to disagree about its propriety. Perhaps
the appropriate solution of this case would have been to declare
the law unconstitutional as applied, since the penalty, in the
statutory scheme, lacks a rational basis.
III.
STATUTORY INTERPRETATION AND JUDICIAL CANDOR
Judges must both decide disputes and explain the
reasons for their decisions. Often, it is suggested, judges make
decisions based on personal values, their own politics, or
perhaps an unarticulated sense of the best decision under the
44
45
See id. at 1333-34.
See Frazier & Clifton, supra note 13.
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law, which then must be justified post hoc. Gaps between
reasonable inferences about what drove a judge to decide a case
and the reasons for the decision that the judge articulates
create the inference that judges are not being candid. David
Shapiro describes the importance of judicial candor:
A requirement that judges give reasons for their decisions—grounds
of decision that can be debated, attacked, and defended—serves a
vital function in constraining the judiciary’s exercise of power. In the
absence of an obligation of candor, this constraint would be greatly
diluted, since judges who regard themselves as free to distort or
misstate the reasons for their actions can avoid the sanctions of
criticism and condemnation that honest disclosure of their
motivation may entail. In a sense, candor is the sine qua non of all
other restraints on abuse of judicial power, for the limitations
imposed by constitutions, statutes, and precedents count for little if
judges feel free to believe one thing about them and to say another.
Moreover, lack of candor seldom goes undetected for long, and its
detection only serves to increase the level of cynicism about the
nature of judging and of judges.46
As Judge Posner points out in How Judges Think, the
issue of candor arises more with the judges of high courts, the
Supreme Court in particular, since those jurists have far more
discretion than do lower court judges.47 Moreover, the cases
most likely to generate published opinions are the more
controversial ones, increasing the likelihood that a judge’s
personal values will infiltrate the decision-making process.
It is hard to believe it an accident that the five most
conservative justices voted as they did in Ledbetter (the
employment discrimination statute of limitations case), and
that the four more liberal justices opposed them in dissent. It
appears that the justices had reason to vote as they did based
on their political and personal values, and used the linguistic
opening as an opportunity to further these values. Not all cases
involving assertive fetishism involve a lack of candor, just as
not all cases that concern candor raise the moral issues
discussed here. Nonetheless, the relationship between the two
issues creates particularly troubling set of examples. Judges
who simultaneously construe statutes in a way consistent with
the language but inconsistent with the statute’s purpose, do so
to further their own values, and hide the ball about all of this.
46
David L. Shapiro, In Defense of Judicial Candor, 100 HARV. L. REV. 731,
737 (1987) (footnotes omitted).
47
RICHARD A. POSNER, HOW JUDGES THINK 269-323 (2008) (chapter entitled
“The Supreme Court Is a Political Court”).
2011] STATUTORY INTERPRETATION, MORALITY, AND THE TEXT 1045
As for whether this lack of sincerity is appropriate, I
agree with Professor Shapiro that it should be kept to a
minimum. A recent article by Micah Schwartzman argues that
judicial sincerity is important to a democracy, for people are
entitled to know the reasons behind the ways in which the state
treats them.48 While the lawyer may be insincere, the judge plays
a different role. Yet, as Judge Posner points out, the
requirement that judges write only about legitimate legal
arguments severely restricts their decision-making options, and
preserves rule of law values at least in part.49 The practice
essentially tells judges: “Whatever your actual motivations for
making a decision, unless you can justify it in legal terms to the
legal community, you should not go there.” I surely do not
recommend that judges cease this practice. However, when other
values are self-evidently driving the decision-making process,
this practice most likely comes at some cost in credibility.
A model for judicial sincerity in this context is Chief
Justice John Marshall’s decision in United States v.
Wiltberger.50 A statute that federalized crimes committed on
American vessels on the high seas, defined “high seas” to
include rivers in other countries for most of the crimes, but
failed to do so for the crime of manslaughter, with which
Wiltberger was charged.51 Marshall, in his opinion, admitted
that the legislature most likely intended to include this crime,
but decided that the rule of lenity, which at the very least
prohibits courts from expanding criminal liability beyond any
reasonable reading of the statute, was the more important
principle to apply.52 Thus, Marshall placed other values above
the intent of the legislature. But he did not do so by either
ignoring and flouting that intent as an opportunity to impose
his own values, nor by pretending that he was unable to
discern the legislature’s intent in such an obvious case. Rather,
he placed his own hierarchy of values on the table, an act of
judicial candor and commitment to avoiding the immorality of
disrespecting communicative intent while pretending not to be
doing so. Reasonable minds can disagree with Justice
48
Micah Schwartzman, Judicial Sincerity, 94 VA. L. REV. 987, 990-91 (2008).
See POSNER, supra note 47. A recent article by Mathilde Cohen takes a similar
position, arguing that judges need to be candid about the legitimacy of the arguments they
make, but not about their belief in them. Mathilde Cohen, Sincerity and Reason-Giving:
When May Legal Decision-Makers Lie?, 59 DEPAUL L. REV. 1091, 1098 (2010).
50
18 U.S. (5 Wheat.) 76 (1820).
51
Id. at 98.
52
Id. at 99.
49
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Marshall’s ruling, but he cannot be accused of falling prey to
assertive fetishism.
IV.
CONCLUSION
I have argued in this essay that the legal system loses
some moral high ground when judges take advantage of
linguistic indeterminacy to flout the intent of the legislature to
accomplish its goals. How important this is depends in part
upon how much legitimacy is lost when the law operates in a
manner that is inconsistent with the moral intuitions of
citizens.53 I assume that there is at least some loss of legitimacy
when judges make arguments that are both transparently
insincere and wrongful in their treatment of language.
I conclude by addressing some objections that may be
made in response to my analysis.
First, the legislature’s purpose is not always obvious.
When statutes contain compromise, the purpose of a statute is
to accomplish legislative goals to the extent that the
compromises have allowed these goals to go forward. As Justice
Scalia describes it, “the purpose of a statute includes not only
what it sets out to change, but also what it resolves to leave
alone.”54 To some extent, Scalia is correct. Nonetheless, when
the question is which of two readings of a statute licensed by
the language is the better one, we are not dealing with a
question of unexpressed purpose or intent. In Ledbetter, for
example, it is difficult to come up with any reason for Congress
to have written a statute consistent with the majority position.
My point is not that looking at text should be replaced by
looking at purpose; in fact, I cannot think of anyone who takes
that position as a general matter. Rather, my point is that
when language is either uncertain or clearly mistaken, it is
simply wrong to use the uncertainty to interpret a law in a
manner that thwarts the communicative intent of the law.
Second, one reason for reliance on text is that the
legislature wrote the text, so sticking to the language creates
fewer opportunities for judicial activism. Again, this is true
when the decision is between paying attention to the language
53
See PAUL H. ROBINSON & JOHN M. DARLEY, JUSTICE, LIABILITY AND BLAME:
COMMUNITY VIEWS AND THE CRIMINAL LAW (1995), for discussion about the loss
suffered by a legal system with large gaps between the intuitions of the community and
the dictates of the code.
54
W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 98 (1991).
2011] STATUTORY INTERPRETATION, MORALITY, AND THE TEXT 1047
on the one hand, or unexpressed purpose on the other. But
paying attention to both ipso facto reduces judicial discretion.
For the intersection of two considerations (in this case language
and purpose) can be no greater than either of the considerations
individually. To conclude otherwise reflects an error in
reasoning that Kahneman and Tversky have called “the
conjunction fallacy.”55 In their most famous example, a feminist
named Linda who takes a job as a bank teller cannot be more
likely to be a “feminist bank teller” than to be either a feminist
or a bank teller.56 Yet people engage in this fallacy as a result of
the mental models they form about the intersection of these
traits. By the same token, if linguistic indeterminacy leaves two
sensible interpretations, requiring that judges examine these
interpretations with respect to furthering the legislature’s
purpose cannot, as a logical matter, expand the number of
possible readings that the judge has the discretion to impose.
Third, there is one important difference between my
stories about everyday deception on the one hand, and the
undermining of legislative purpose on the other: the latter is
transparent. When I deceive you about Hannes’s whereabouts,
you cannot turn to a record, or to a dissenting opinion to learn
the truth of the matter. On the contrary, if I am successful at
deceiving you, you will never discover the truth. That is my
very goal. Nonetheless, the presence of a public record, which
includes opinions that run contrary to the offending one, does
not excuse an individual judge from taking responsibility for a
morally unjustified position. The fact that a bad act—even a
bad interpretive act—is discoverable does not convert it into a
good act. But the transparency does provide a partial
vindication of the legal system as a whole, and is a positive
attribute of the American legal order.
Far more serious an objection to my position is the fact
that the legal system might be doing the best it can whether or
not I am right about the status of using language to flout
purpose. If, for example, the kinds of cases that I describe
rarely arise, but the value of focusing on linguistic nuance as a
general matter enhances rule of law values, then perhaps it is
best to tolerate small moral failures at the margins of a just
and legitimate system. For example, a great deal of value is
placed on requiring that statutory interpretation respect the
55
Amos Tversky & Daniel Kahneman, Extensional Versus Intuitive Reasoning:
The Conjunction Fallacy in Probability Judgment, 90 PSYCHOL. REV. 293 (1983).
56
Id. at 299.
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legislative process that led to the law’s enactment in the first
place. I personally do not accept the argument that such
linguistic fidelity excuses the legal system from acting in a way
that we would regard as immoral in our everyday lives. The
loss of legitimacy is not worth any perceived gains, and when it
comes to construing statutes whose language is susceptible of
only a single interpretation, there is no gain. However, if those
who defend the status quo recognize the obligation to defend
this balance of insincerity at the margins against the benefits
of practices that reinforce formal and systemic values, then
progress will have been made.
NOTES
The Rules of Consumption
THE PROMISE AND PERIL OF FEDERAL
EMULATION OF THE BIG APPLE’S FOOD LAWS
I.
INTRODUCTION
It is not just the usual suspects that are causing
American consumers to suffer from obesity and diabetes.
Actually, highly caloric fare entices our nation in the most
unexpected restaurants and food service establishments
(FSEs). Since the passage of New York City Health Code
Regulation 81.501 (Regulation 81.50) many New York City
(NYC) residents have discovered that the places they have
consistently regarded as more healthful are, in fact, not good
for their health at all. For example, there are 1140 calories in
Le Pain Quotidien’s Mediterranean Platter, a seemingly
wholesome and nutritious plate comprised of vegetable spreads
and assorted organic breads.2 Likewise, there are 1060 calories
in California Pizza Kitchen’s most healthful sounding
appetizer—Lettuce Wraps with minced chicken and shrimp.3
Unfortunately, these secretly fattening menu items are not just
fooling the residents of NYC—this is a problem affecting all of
America.
In enacting Regulation 81.50, NYC pioneered the menu
calorie-disclosure movement and provided our nation with an
essential litmus test.4 The constitutional success of the NYC
law encouraged many other states and cities across America to
1
N.Y.C., N.Y., HEALTH CODE tit. 24, § 81.50 (2008).
Sharing Platters, LE PAIN QUOTIDIEN, http://www.lepainquotidien.com/files/
Core%20-%20AC%20IX%2008%20-%20No%20price.pdf (last visited Jan. 6, 2011).
3
Appetizers, CALIFORNIA PIZZA KITCHEN, http://www.cpk.com/menu/pdfs/
main-dessert-nutritional-menu.pdf (last visited Jan. 4, 2011).
4
N.Y.C., N.Y., HEALTH CODE tit. 24, § 81.50.
2
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adopt their own versions of calorie-disclosure laws.5 As this
legislative trend was rapidly spreading, it was the appropriate
time for the federal government to adopt a clear national
mandate on menu calorie disclosures and take advantage of
this stepping stone towards reducing our nation’s levels of
obesity and diabetes.6 Congress preempted these myriad state
and local solutions by passing the Patient Protection and
Affordable Care Act (PPACA), which included a federal caloriedisclosure provision.7 In doing so, Congress obviously
considered the benefits that a federal mandate would provide
for not only restaurants and FSEs nationwide, but also for all
American citizens.8 Despite the likely benefits of this law,
however, this note argues that Congress should recognize that
not all food-based health initiative laws are constitutionally
proper. Recent NYC mandates go beyond mere information
disclosure by regulating what people may consume.
In Part II, this note will review the rocky development
of Regulation 81.50 and discuss its requirements. In Part III,
this note will focus on the Second Circuit’s decision in New
York State Restaurant Ass’n v. New York City Board of Health,
and discuss how NYC’s calorie-disclosure law prevailed over
two federal constitutional challenges.9 In addition, Part III will
discuss how NYC inspired other cities and states to adopt
5
See infra text accompanying notes 106-30.
See N.Y.C., N.Y., HEALTH CODE tit. 24, § 81.50. Because it is outside the
scope of the forthcoming analysis, this note does not offer much background on the
extent of the obesity and diabetes crises. However, for excellent recent commentary on
the extent of these epidemics and their relatedness to calorie consumption, see Tamara
Schulman, Note, Menu Labeling: Knowledge for a Healthier America, 47 HARV. J. ON
LEGIS. 587, 589-91 (2010); see also Brent Bernell, The History and Impact of the New
York City Menu Labeling Law, 65 FOOD & DRUG L.J. 839, 840-45 (2010); Eloisa C.
Rodriguez-Dod, It’s Not a Small World After All: Regulating Obesity Globally, 79 MISS.
L.J. 697, 697-99 (2010). For another recent discussion of obesity and its relatedness to
the consumption of sugary drinks, see Jonathon Cummings, Obesity and Unhealthy
Consumption: The Public-Policy Case for Placing a Federal Sin Tax on Sugary
Beverages, 34 SEATTLE U. L. REV. 273, 278-81 (2010).
7
See Lauren F. Gizzi, Note, State Menu-Labeling Legislation: A Dormant
Giant Waiting to Be Awoken by Commerce Clause Challenges, 58 CATH. U. L. REV. 501,
533 (2009) (“Congress must adopt a federal law to ensure that restaurants can comply
with such regulations in a convenient manner, and also take a considerable step
toward ending the onslaught of obesity in the United States.”).
8
See Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat.
119, § 4205(b) (2010) (codified as amended in scattered sections of the U.S.C.). Importantly,
it has been noted that “there are many . . . ways that the federal government could
intervene to improve . . . Americans’ health. Legislators could . . . enact legislation like New
York City’s new law which requires some restaurants to provide better nutritional
information.” David Burnett, Fast-Food Lawsuits and the Cheeseburger Bill: Critiquing
Congress’s Response to the Obesity Epidemic, 14 VA. J. SOC. POL’Y & L. 357, 373-74 (2007).
9
N.Y. State Rest. Ass’n v. N.Y.C. Bd. of Health, 556 F.3d 114 (2d Cir. 2009).
6
2011]
THE RULES OF CONSUMPTION
1051
similar laws.10 In Part IV, this note will review several failed
federal attempts to enact a national menu calorie-disclosure
law and discuss why it was the best time to adopt a national
mandate. Part IV will also analyze expected constitutional
challenges to the federal menu calorie-disclosure law and
explain why these challenges also will not be successful. Then,
in Part V, this note will discuss other food-based health
initiatives considered and adopted by the NYC government and
argue that similar measures should not be pursued as federal
mandates. Lastly, in Part VI, this note will conclude that the
federal government has appropriately passed the menu caloriedisclosure provision in the PPACA and should continue to
pursue other educational methods to diminish the prevalence
of obesity, diabetes, and other life-threatening epidemics in our
nation.
II.
NYC CALORIE-DISCLOSURE LAW
Regulation 81.50 is now a constitutionally-sound
calorie-disclosure law, requiring all restaurants and FSEs in
NYC with fifteen or more locations nationally to display the
caloric contents of each menu item, anywhere that menu items
are listed.11 But this was not always the case. This section
discusses the original version of the law, its prior constitutional
violations, and the subsequent amendments made by the NYC
legislature, which pioneered the calorie-disclosure movement in
America.12
A.
The Law as Originally Drafted
In December 2006, NYC’s Department of Health and
Mental Hygiene, Board of Health (“Board of Health”), issued a
Notice of Adoption of the most recent amendment to Article 81:
Regulation 81.50.13 Through this new amendment, NYC hoped
to facilitate consumers’ ability to make healthier choices when
eating at restaurants and other FSEs by forcing them to
10
See infra text accompanying notes 106-30.
See N.Y.C., N.Y., HEALTH CODE tit. 24, § 81.50.
12
For recent discussions of the development of Regulation 81.50, see Bernell,
supra note 6, at 845-52, and Rodriguez-Dod, supra note 6, at 701-06.
13
N.Y.C. DEP’T OF HEALTH & MENTAL HYGIENE, BD. OF HEALTH, NOTICE OF
ADOPTION OF AN AMENDMENT (§ 81.50) TO ARTICLE 81 OF THE NEW YORK CITY HEALTH
CODE 1 (2006) [hereinafter NOTICE OF ADOPTION 1], available at http://www.nyc.gov/
html/doh/downloads/pdf/public/notice-adoption-hc-art81-50.pdf.
11
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[Vol. 76:3
consider calorie information at the moment of purchase.14 NYC
believed that providing consumers with calorie information
before they purchased food would result in weight loss and
healthier lifestyles, and thus reduce the epidemics of obesity
and diabetes.15
NYC’s concern about calories grew out of the rapidly
rising obesity rate among its citizens.16 The Board of Health
noted that “[c]onsumers consistently underestimate the
nutrient levels in food items and overestimate the
healthfulness of restaurant items.”17 While some restaurants
and other FSEs voluntarily provided consumers with “nutrition
information,” the methods employed were clearly insufficient,
as the obesity rate in NYC continued to rise.18 For example,
many businesses were placing calorie information on the
company website.19 But the obvious problem with this method
was that consumers needed to have access to the Internet at
the point of purchase in order to make informed decisions.20 In
addition to the company-website-display method, some
companies published information “in brochures, on placemats
covered with food items, or on food wrappers, where the
information is hard to find or difficult to read and only
accessible after the purchase is made.”21 It is no surprise that
14
See id. (“By requiring posting of available information concerning
restaurant menu item calorie content, so that such information is accessible at the time
of ordering, this Health Code amendment will allow individuals to make more informed
choices that can decrease their risk for the negative health effects of overweight and
obesity associated with excessive calorie intake.”).
15
See N.Y. State Rest. Ass’n v. N.Y.C. Bd. of Health, 556 F.3d 114, 120-21 (2d
Cir. 2009) (“Seeking to combat rising rates of obesity and associated health care
problems, in December 2006, the New York City Board of Health adopted the precursor
to the current Regulation 81.50 . . . . [which] mandated that any [FSE] voluntarily
publishing calorie information post such information on its menus and menu boards.”).
16
See NOTICE OF ADOPTION 1, supra note 13, at 2 (recognizing that “the
obesity rate among U.S. adults more than doubled over the past three decades from
14.5% in 1971-1974 to 32.2% in 2003-2004. In New York City, more than half of adults
are overweight and one in six is obese. . . . 21% of New York City kindergarten children
are obese.”).
17
Id. (citation omitted). “Recent studies found that 9 out of 10 people
underestimated the calorie content of less-healthy items by an average of more than
600 calories (almost 50% less than the actual calorie content).” Id.
18
Id. (“Current voluntary attempts by some [FSEs] to make available
nutrition information are inadequate particularly because the information is usually
not displayed where consumers are making their choices and purchases.”).
19
Id.
20
Id.
21
Id.
2011]
THE RULES OF CONSUMPTION
1053
these second-rate methods had little, if any, impact on
consumers’ food purchasing decisions.22
In considering possible solutions to the rising obesity
epidemic, NYC reviewed the success of the federal Nutrition
Labeling and Education Act (NLEA).23 Since its enactment, the
NLEA has noticeably affected consumer attitude and decision
making in regards to prepackaged food products purchased in
stores.24 Despite its successes, the NLEA exempted restaurants
from its nutrition labeling requirements, leaving people dining
outside the home to hazard an estimate about the nutrient
content of their food choices at the point of purchase.25 NYC
hoped that by extending the calorie information mandate to
include certain restaurants, healthful decision-making
practices would result because of consumers’ timely access to
such information.
In the Notice of Adoption of Regulation 81.50, NYC
argued that recent reports indicated that an overwhelming
majority of resident consumers would like to have calorie
information at certain restaurants and FSEs made available to
them, and were eagerly awaiting the enactment of this new
legislation.26 NYC noted that “approximately 2,200 written and
oral comments” were received from the public, and that “all but
22 supported the amendment.”27 With this great support from
NYC residents, the regulation was enacted on March 1, 2007.28
Regulation 81.50 required calorie disclosure only in places that
voluntarily chose to post such information on their menus and
menu boards—about ten percent of NYC’s restaurants and
FSEs.29
22
Id.
Nutrition Labeling and Education Act of 1990, Pub. L. No. 101-535, 104
Stat. 2353 (2004) (codified as amended at 21 U.S.C. § 343).
24
NOTICE OF ADOPTION 1, supra note 13, at 2 (“Three-quarters of American
adults report using food labels, and about half (48%) report that nutrition information
on food labels has caused them to change their food purchasing habits.” (citations
omitted)).
25
Id.
26
Id. at 3 (“Six nationally representative polls have found that between 62%
to 87% of Americans support requiring restaurants to list nutrition information.”).
27
Id. at 4.
28
Id.
29
Id. at 3 (“This provision does not require any FSE to engage in analysis of
the nutrition content of its menu items, but does require restaurants that make such
information publicly available to their customers to post it in plain sight, so it is
available at the time of ordering.”) The new health code only applied to “standard menu
item[s] offered on a regular and ongoing basis that [are] prepared from a standardized
23
1054
B.
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The Problem: NYC May Not Only Regulate Voluntary
Information
Those subject to the provisions of Regulation 81.50
immediately responded with protest.30 The law “was met with
vigorous objection from . . . restaurants and prompted many to
stop voluntarily making such information available.”31 The New
York State Restaurant Association (NYSRA) brought a lawsuit
against the Board of Health32 challenging Regulation 81.50 on
several grounds, including that it was preempted by a federal
law, the NLEA.33 In a decision issued on September 11, 2007,
Judge Richard Howell of the United States District Court for
the Southern District of New York awarded judgment in favor
of the NYSRA.34 The court held that Regulation 81.50 was
preempted by the NLEA as it only mandated disclosure of
calorie information from restaurants and other FSEs that
voluntarily posted nutrition information, which “amounted to a
‘voluntary nutrient content claim,’ a category of disclosure that
no state can regulate as mandated by the preemption
provisions of the NLEA.”35
The opinion concluded with obvious disappointment.
The court stated that it understood the “wisdom of Regulation
81.50” and it believed this type of health-reform legislation
would be successful in combating obesity and other publichealth concerns.36 Although the NYC law was ultimately ruled
unconstitutional, the court subtly encouraged the Board of
Health to adopt a new regulatory approach that would fall
within the small, unpreempted gap of the NLEA.37
recipe” and did not regulate “[n]on-standard items, including daily specials and
experimental items.” Id.
30
N.Y. State Rest. Ass’n v. N.Y.C. Bd. of Health, 556 F.3d 114, 121 (2d Cir. 2009).
31
Id.
32
N.Y. State Rest. Ass’n v. N.Y.C. Bd. of Health, 509 F. Supp. 2d 351, 352
(S.D.N.Y. 2007).
33
Id.
34
Id. at 363.
35
Gizzi, supra note 7, at 517-18.
36
N.Y. State Rest. Ass’n, 509 F. Supp. 2d at 354.
37
Id.
2011]
C.
THE RULES OF CONSUMPTION
1055
The Solution: A New and Improved Piece of Legislation
The Board of Health got the message, and on January
22, 2008, it enacted the current version of Regulation 81.50.38
Providing the same reasoning as it had for its original attempt,
NYC again cited the local prevalence of two health-related
epidemics, obesity and diabetes, and the need for this
legislative health reform.39 The specific mandate of the revised
Regulation 81.50 provided that all restaurants and FSEs in
NYC with fifteen or more locations nationally, operating under
the same name and offering the same fare on their menus,
were subject to regulation.40 The new version of Regulation
81.50 provided a more “flexible” rule of disclosure than the
repealed regulation.41
The Board of Health also highlighted that, in recent
years, consumers have been eating outside of their homes more
often, facilitated by the proliferation of restaurant chains and
38
N.Y.C. DEP’T OF HEALTH & MENTAL HYGIENE, BD. OF HEALTH, NOTICE OF
ADOPTION OF A RESOLUTION TO REPEAL AND REENACT § 81.50 OF THE NEW YORK CITY
HEALTH CODE 1-2 (2008) [hereinafter NOTICE OF ADOPTION 2], available at http://www.
nyc.gov/html/doh/downloads/pdf/public/notice-adoption-hc-art81-50-0108.pdf (“[T]he Federal
court clearly affirmed the authority of local governments to mandate that restaurants
disclose nutritional information.”); see also N.Y. State Rest. Ass’n v. N.Y.C. Bd. of Health,
556 F.3d 114, 121 (2d Cir. 2009); Gizzi, supra note 7, at 518 (“[T]he New York City Board
of Health voted to adopt a new bill to require menu-labeling, this time applying the
provision to all New York chain restaurants, not just those that already provide nutrition
information to the public.”); Diane Cardwell, City Tries Again to Require Restaurants to
Post Calories, N.Y. TIMES, Jan. 23, 2008, at B2.
39
NOTICE OF ADOPTION 2, supra note 38, at 2-4 (discussing the epidemics and
noting that “diabetes has more [than] doubled in New York City in the past decade,
and hospitalizations for long-term complications of diabetes have been rising steadily”).
40
Id. at 10. “Fifteen was found to be an appropriate cut-off to focus on chains
with standardized menus, and will cover the vast majority of such chain restaurant
locations.” Id.
41
Id. at 11 (“The reenacted rule . . . provides one, more flexible standard for
displaying calorie information, incorporating the lessons learned by the [Board of
Health] from its analysis of many proposed alternative designs and its discussions with
industry representatives. All of the alternative design elements that were considered
approvable have been incorporated into the reenacted rule.”). The current standard can
be summed up as follows:
Calorie information will have to be displayed as prominently as either the
menu item’s name or price . . . . [and] will also be provided on item tags
where food is displayed. . . . This rule mandates posting only of calories, the
single most important piece of nutrition information, at the point of selection.
FSEs are, of course, not . . . precluded from providing additional nutrition
information voluntarily. . . . [and] are also free to add disclaimers about
possible slight variations from listed calorie content.
Id.
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FSEs serving easily attainable and inexpensive food.42 Since
most consumers are not knowledgeable about the nutritional
information of the menu items they purchase for consumption,
nor are they likely to accurately estimate the caloric content of
these items, NYC once again stressed that without Regulation
81.50, its residents would continue to practice uninformed
nutritional decision-making and gain weight.43 NYC specifically
emphasized the “calorie information gap. . . . contributing to
people choosing higher calorie items” and that providing such
information “in a time, place, and manner that can inform
decisions will help bridge this gap.”44 NYC concluded its new
proposal by providing information based on statistics and local
polls, which displayed remarkable results.45 For example,
consumers with the calorie information of menu items at the
point of purchase tended to consume approximately fifty less
calories than those without that information, and also selected
items with almost 100 fewer calories than their original menu
choices.46 As these results showed a dramatic decrease in caloric
consumption, it followed that the new menu calorie-disclosure
law would likely increase the health of NYC citizens. The only
remaining obstacle was whether Regulation 81.50 could
successfully fight another constitutional battle against the
NYSRA.
ROUND II: NYSRA V. N.Y.C. BOARD OF HEALTH
III.
The NYSRA again challenged Regulation 81.50 in
court. This time, however, the NYSRA was not met with the
same favorable result. The following section discusses the
NYSRA’s undersupported preemption challenge, meritless
First Amendment claim, and failed arguments that the court
should review the issue using a higher level of scrutiny.48
47
42
Id. at 1-2.
Id. at 5 (“[T]he systematic underestimation of calories suggests that
consumers have distorted perceptions of calorie content and de facto have been misled
to view oversized, high-calorie portions as ‘normal’ portions, containing acceptable
numbers of calories.”).
44
Id. at 6.
45
Id. at 6-7.
46
Id. at 7.
47
N.Y. State Rest. Ass’n v. N.Y.C. Bd. of Health, 545 F. Supp. 2d 363
(S.D.N.Y. 2008).
48
For other recent discussions of the NYSRA’s unsuccessful second attempt
at challenging Regulation 81.50, see Rodriquez-Dod, supra note 6, at 705-06. See also
Bernell, supra note 6, at 852-61; Jodi Schuette Green, Cheeseburger in Paradise? An
43
2011]
A.
THE RULES OF CONSUMPTION
1057
The NYSRA Loses Both of Its Constitutional Claims
On April 18, 2008, Judge Howell issued a decision
upholding the new Regulation 81.50 as constitutional.49 On
June 12, 2008, the United States Court of Appeals for the
Second Circuit heard the NYSRA’s appeal asking the court to
reverse the lower court’s decision.50 On February 17, 2009,
Judge Pooler issued the decision of the court.51
1. Preemption or Not Preemption? That Was the
Question
The first of the two bases the NYSRA used to challenge
Regulation 81.50 was preemption by the NLEA. According to
the Supreme Court, in order to determine whether federal law
preempts a state regulation, a court should completely concern
itself with the legislative purpose and goal of the federal Act.52
There are several ways for a court to detect whether a
preemption problem exists. One, “[c]onflict preemption,” is
present when “‘compliance with both federal and state
regulations is a physical impossibility,’” or a “state law ‘stands
as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.’”53 Thus, in analyzing
whether conflict preemption was present in this case, the
Second Circuit had the difficult task of determining whether
the new Regulation 81.50 clashed with the NLEA in such a
way that made it inherently unconstitutional. Throughout nine
pages of detailed discussion, Judge Pooler upheld the law as
constitutional.54
The NLEA “amended the Federal Food, Drug and
Cosmetic Act” (FFDCA), and dictated that all food sold for
human consumption must include “a nutrition label with
Analysis of How New York State Restaurant Association v. New York City Board of
Health May Reform Our Fast Food Nation, 59 DEPAUL L. REV. 733, 746-65 (2010).
49
N.Y. State Rest. Ass’n, 545 F. Supp. 2d at 365, 369.
50
N.Y. State Rest. Ass’n v. N.Y.C. Bd. of Health, 556 F.3d 114, 114 (2d Cir. 2009).
51
Id. at 114, 117.
52
Gade v. Nat’l Solid Wastes Mgmt. Assoc., 505 U.S. 88, 96 (1992) (noting that
the “question whether a certain state action is pre-empted by federal law is one of
congressional intent” (quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208 (1985))).
53
GEOFFREY R. STONE ET AL., CONSTITUTIONAL LAW 276 (5th ed. 2005)
(quoting Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963); Hines
v. Davidowitz, 312 U.S. 52, 67 (1941)).
54
See generally N.Y. State Rest. Ass’n, 556 F.3d at 123-31.
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specified nutrients and other information.”55 The intent of the
NLEA was to “clarify and to strengthen the Food and Drug
Administration’s legal authority to require nutrition labeling
on foods, and to establish the circumstances under which
claims may be made about nutrients in foods.”56 Although the
purpose of the NLEA and its accompanying requirements seem
straightforward, the Second Circuit declared it “a labyrinth.”57
The court suggested that determining whether a preemption
issue was present was a tricky endeavor, especially because the
implementing agency regulations were somewhat inconsistent
with the NLEA.58
First, looking directly at the text of the NLEA, the court
narrowed the focus of its opinion by noting that the foundation
for preemption questions arose from two specific sections.59
Section 343(q), “entitled ‘nutrition information,’” discusses
information that must be made available and mandates that
“basic nutrition facts” be indicated on the label of most food
items sold for human consumption.60 Section 343(r), “entitled
‘[n]utrition levels and health-related claims,’” discusses
information that a seller may choose to volunteer on the
nutrition label of its food products regarding any health
benefits or nutrients in that item.61 Restaurants like the
members of the NYSRA do not fall within the scope of this
federal law, and thus do not have to display nutrition
information of the food they serve.62 However, according to
these NLEA sections, if a restaurant or FSE deliberately and
voluntarily chooses to display not just the bare bones calorie
55
Steve Keane, Can a Consumer’s Right to Know Survive the WTO?: The
Case of Food Labeling, 16 TRANSNAT’L L. & CONTEMP. PROBS. 291, 297 (2006) (citing
Nutrition Labeling and Education Act of 1990, Pub. L. No. 101-535, 104 Stat. 2353
(codified as amended at 21 U.S.C. § 343 (2004))).
56
Gizzi, supra note 7, at 520 (quoting H.R. REP. NO. 101-538 at 7 (1990),
reprinted in 1990 U.S.C.C.A.N. 3336, 3337).
57
N.Y. State Rest. Ass’n, 556 F.3d at 117.
58
Id.
59
Id. at 118 (noting that Sections 343(q) and (r) “are the statutory bases from
which the preemption questions in this case stem”); see also Nutrition Labeling and
Education Act of 1990, Pub. L. No. 101-535, 104 Stat. 2353 (codified as amended at 21
U.S.C. § 343(q), (r) (2004)).
60
N.Y. State Rest. Ass’n, 556 F.3d at 118; see also 21 U.S.C. § 343(q)(1).
61
N.Y. State Rest. Ass’n, 556 F.3d at 119; see also 21 U.S.C. § 343(r)(1).
62
See 21 U.S.C. § 343(q)(5)(A)(i); see also N.Y. State Rest. Ass’n, 556 F.3d at 118
(“Restaurants, NYSRA’s membership, are exempt from Section 343(q)’s mandatory
nutrition information labeling requirements; they do not have to attach a Nutrition Facts
panel to food they serve.”). “[T]he NLEA does not regulate nutrition information labeling
on restaurant food, and states and localities are free to adopt their own rules.” Id. at 120.
2011]
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1059
information of food products, but also information on health
value and nutritional content of its offered fare, then it must
conform to both sections.63
The court also looked at the language of the
supplementary agency regulations passed in accordance with
the NLEA.64 It found that a distinction was drawn between
nutrition information and nutrition claims, with the former
open to expansion by state and local legislation, while the
latter is completely preempted by the NLEA.65 Consequently,
the Second Circuit had to decide if the numerical calorie
disclosures required by Regulation 81.50 of NYC restaurants
and FSEs on their menus and menu boards are preempted
“claims” under Section 343(r) of the NLEA, or unpreempted
“nutrition information” under Section 343(q) of the federal
law.66
On one hand, the court found that the NLEA defined
“nutrition information” to mean objective reports, displaying
simply the numerical quantity of calories in a food item.67 On
the other hand, the NLEA characterized “claims” as being
subjective statements on food labels or other branding criteria
that in any way, explicitly or implicitly, depict a level of
nutrients or are related to the overall health benefits offered by
the food product.68 Therefore, in most cases, it would be obvious
to a court when a state or local law regulated objective or
63
N.Y. State Rest. Ass’n, 556 F.3d at 120 (“When a restaurant chooses to
characterize the level of any nutrient which is of the type required by Section 343(q) to
be in the label or labeling of the food, it must conform to Section 343(r)’s requirements.”
(citation omitted)). “The NLEA, however, does generally regulate nutrition content
claims on restaurant foods, and states and localities may only adopt rules that are
identical to those provided in the NLEA.” Id.
64
Specifically, two of the agency regulations, 343-1(a)(4) and 343-1(a)(5), were
passed as counterparts to the two aforementioned NLEA sections, and exist to further
dictate the scope of the NLEA’s preemption on state and local legislation. See N.Y. State
Rest. Ass’n, 556 F.3d at 120. The first, 343-1(a)(4), relates to NLEA Section 343(q) and
“preempts any state or local requirement for nutrition labeling of food that is not identical
to the requirement of section 343(q), except a requirement for nutrition labeling of food
which is exempt (i.e. restaurant exception).” Id. The second, 343-1(a)(5), relates to NLEA
Section 343(r) and explicitly “preempts state or local governments from imposing any
requirement on nutrient content claims made by a food purveyor in the label or labeling
of food that is not identical to the requirement of section 343(r).” Id.
65
N.Y. State Rest. Ass’n, 556 F.3d at 123.
66
Id.
67
See 21 U.S.C § 343(q)(1)(c) (2004); 21 C.F.R. § 101.9(c)(1) (2006); see also
N.Y. State Rest. Ass’n, 556 F.3d at 124.
68
See N.Y. State Rest. Ass’n, 556 F.3d at 124-25. The agency regulation
describes “calorie content claims” to include “calorie free, free of calories . . . without
calories, trivial source of calories, negligible source of calories, [and] dietarily
insignificant source of calories.” 21 C.F.R. § 101.60(b)(1) (2006).
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subjective labeling of foods, and thus whether such legislation
is preempted.69 In this case, the type of menu labeling
information controlled by Regulation 81.50 was neither
confusing nor ambiguous.70 The court determined that Section
343(r) provided that
in order for a Section 343(q)-type statement not to be a claim . . . it
must appear with the other information required or permitted by the
NLEA for packaged food, or applicable state or local law for
restaurant food, which here, would be that required by Regulation
81.50—the total number of calories.71
Thus, the Second Circuit concluded that the NLEA did not
preempt the current version of Regulation 81.50, as it only
mandated the disclosure of “quantitative information,”72 but
that the law prohibited any further regulation by the Board of
Health on “nutrient content claims.”73 Accordingly, Regulation
81.50 was upheld as valid, as it merely orders the disclosure of
caloric facts, and nothing else.
2. Freedom of Speech Does Not Mean Freedom to Resist
Speech
The new Regulation 81.50 emerged victorious from the
first challenge, but still faced a second challenge brought under
the First Amendment by the NYSRA. Here too, however, the
Second Circuit held that Regulation 81.50 did not violate the
constitutional right of free speech.
a. First Amendment Background
The court found that because restaurants are
commercial entities, the type of speech they engage in is
69
N.Y. State Rest. Ass’n, 556 F.3d at 120 (“[S]tates are not preempted from
adopting nutrition information labeling laws as defined by Section 343(q), but are
preempted from adopting nutrient claim laws as defined by Section (r).”).
70
See Richard J. Wegener, Calorie Information on Fast-Food Menus? Court
Upholds NYC Menu Labeling Law, FREDRIKSON & BYRON, P.A. (Feb. 24, 2009),
http://www.fredlaw.com/articles/marketing/mark_0902_rjw.html (“The court concluded
that calorie displays are more accurately termed ‘information,’ and that federal law
does not preempt states from legislating with respect to such information in
restaurants.”).
71
N.Y. State Rest Ass’n, 556 F.3d at 127-28.
72
Id. at 124.
73
Id. at 123 (“The NLEA does not preempt New York City from adopting its
own requirements for nutrition information labeling . . . but it does generally preempt
it from adopting different rules for nutrient content claims.”).
2011]
THE RULES OF CONSUMPTION
1061
commercial speech.74 Thus, a restaurant or FSE may challenge
legislation it believes conflicts with its First Amendment
commercial speech rights.75 Similarly, the Supreme Court has
consistently recognized that the First Amendment protects the
inverse of the right to speak: the right not to speak.76
Nevertheless,
even
though
the
First
Amendment
unquestionably protects commercial speech, the protection
offered is less extensive than the speech rights afforded to
noncommercial speech.77 Yet, the inquiry does not end with the
conclusion that the speech affected is commercial speech, as
different levels of protection are given to commercial entities
based on the type of speech regulated.78
The Second Circuit had previously held that the test
used for regulations of commercial speech is “the more
permissive means-ends test from Zauderer v. Office of
Disciplinary Counsel of the Supreme Court of Ohio.”79 In
addition, the Second Circuit had found that the rational basis
test applies when evaluating commercial speech disclosure
laws.80 In Zauderer, the Court recognized that there exist
“material
differences
between
purely
factual
and
uncontroversial disclosure requirements and outright
prohibitions on speech,” and that “[r]egulations that compel
purely factual and uncontroversial commercial speech are
subject to more lenient review than regulations that restrict
accurate commercial speech.”81 Applying this holding to the
current challenge brought before it, the Second Circuit
74
Id. at 131 (“As commercial speech is speech that proposes a commercial
transaction [and] Regulation 81.50 requires disclosure of calorie information in
connection with a proposed commercial transaction—the sale of a restaurant meal, the
form of speech affected . . . is clearly commercial speech.” (citation omitted)).
75
Keane, supra note 55, at 307 (“A food producer may also challenge a
government-mandated food label on the ground that it conflicts with his free speech
rights under the First Amendment.”).
76
See, e.g., Wooley v. Maynard, 430 U.S. 705, 714 (1977) (“[T]he right of
freedom of thought protected by the First Amendment against state action includes
both the right to speak freely and the right to refrain from speaking at all.”); see also
Keane, supra note 55, at 307.
77
See Zauderer v. Office of Disciplinary Counsel, 471 U.S 626, 637 (1985); see
also Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S 557, 562-63 (1980)
(“The Constitution . . . accords a lesser protection to commercial speech than to other
constitutionally guaranteed expression.”).
78
N.Y. State Rest. Ass’n, 556 F.3d at 132.
79
Keane, supra note 55, at 311; see also Zauderer, 471 U.S. at 651.
80
Rules “mandating that commercial actors disclose commercial information”
are subject to the rational basis test. Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104,
114-15 (2d Cir. 2001).
81
Id. at 113.
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subjected Regulation 81.50 to rational basis review, found that
a reasonable relationship existed between the new law and its
intended purpose, and accordingly gave its condolences to the
NYSRA.82
b. The Push for Heightened Scrutiny
In a final effort to save its case, the NYSRA argued that
the Second Circuit should apply strict scrutiny, rather than a
rational basis review, as the Supreme Court’s jurisprudence
since Zauderer has increasingly recognized greater protection
of commercial speech.83 The NYSRA further contended that the
holding in Zauderer is limited to misleading commercial
speech, and exists merely as a jurisprudential effort to prevent
deception.84 Thus, the NYSRA urged the court to designate
Zauderer as jurisprudence limited to the sphere of unreliable
commercial speech.85 It argued that “calories are not inherently
dangerous” and because “people cannot survive without
consuming calories,” the issue should receive a different
standard of review.86 The NYSRA reasoned that the Board of
Health did nothing more than assert its point of view in
Regulation 81.50—that calories are dangerous—and that this
distinguishes it from what has previously been allowed in
mandatory disclosure laws based on factual information.87
In contrast, the Board of Health argued that Regulation
81.50 is completely based on objective facts that even the
members of the NYSRA agree with: the calorie content
82
N.Y. State Rest. Ass’n, 556 F.3d at 134 (“[A]ccordingly, rational basis
applies and NYSRA concedes that it will not prevail if we apply that test.”).
83
Brief for Plaintiff-Appellant at 43, N.Y. State Rest. Ass’n v. N.Y.C. Bd. of
Health, 556 F.3d 114 (2d Cir. 2009) (No. 08-1892) (“The rational basis standard is not
consistent with the Supreme Court’s First Amendment jurisprudence, which recognizes
robust protection of commercial speech and has consistently forbidden forced
communication by a private citizen of a governmental message.”).
84
Id. at 44 (“In the many years since Zauderer, the . . . Court has never
applied the rational basis standard to non-misleading commercial speech. Indeed, in
United Foods—decided 16 years after Zauderer—the Court expressly rejected the wider
application of rational basis review as urged by the [Board of Health] here and limited
the Zauderer standard to laws necessary to prevent deception.”); see also Zauderer, 471
U.S. at 651 (upholding the speech restriction and finding that “an advertiser’s rights
are adequately protected as long as disclosure requirements are reasonably related to
the State’s interest in preventing deception of consumers”); Bose Corp. v. Consumers
Union of U.S., Inc., 466 U.S. 485 (1984).
85
Brief for Plaintiff-Appellant at 47, N.Y. State Rest. Ass’n, 556 F.3d 114.
86
Id.
87
Brief for Defendant-Appellee at 38, N.Y. State Rest. Ass’n, 556 F.3d 114.
2011]
THE RULES OF CONSUMPTION
1063
information that they were being forced to disclose.88 The Board
of Health noted that the NYSRA only disagreed with providing
such information.89
Ultimately, the Second Circuit agreed90 with the Board
of Health that the NYSRA’s argument was “completely
meritless,” because the posting of factual information alone
could never be understood as an expression of an opinion.91
c. Applying Rational Basis
Unconvinced by the argument for heightened scrutiny,
the court applied the Zauderer rational-basis test.92 As
expected, the Second Circuit held that NYC “has plainly
demonstrated a reasonable relationship between the purpose of
Regulation 81.50’s disclosure requirements and the means
employed to achieve that purpose.”93 The court credited NYC’s
stated purposes for the legislation in the Notice of Adoption: to
increase consumer awareness of the calorie content of menu
items and influence point of purchase decisions.94
The court also found that hard facts and a guarantee of
the regulation’s success did not need to be shown at this point,
thus recognizing that the Board of Health was not obligated to
support its legislation with “evidence or empirical data to
sustain rationality.”95 Rather, NYC’s findings regarding
consumption habits of its citizens when eating outside of the
home provided enough of a rational basis for Regulation 81.50.96
Citing the Notice of Adoption, the court said that these findings
clearly and sufficiently displayed that
the obesity epidemic is mainly due to excess calorie consumption,
often resulting from meals eaten away from home. Americans . . . are
eating out more than in the past and when doing so, typically eat
88
Id. at 36. “Here, the inclusion of factual information on the menu conveys
no point of view.” Id. at 38 (“Informing the public about safe toxin disposal is nonideological; it involves no ‘compelled recitation of a message’ and no ‘affirmation of
belief.’” (citing Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832, 850 (9th Cir. 2003))).
89
Id. at 36.
90
See N.Y. State Rest. Ass’n, 556 F.3d at 132-34.
91
Brief for Defendant-Appellee at 38-39, N.Y. State Rest. Ass’n, 556 F.3d 114.
92
N.Y. State Rest. Ass’n, 556 F. 3d at 134.
93
Id.
94
Id. (“Citing what it termed an ‘obesity epidemic,’ New York City enacted
Regulation 81.50 to: (1) reduce consumer confusion and deception; and (2) to promote informed
consumer decision-making so as to reduce obesity and the diseases associate with it.”).
95
Id. at 134 n.23 (quoting Lewis v. Thompson, 252 F. 3d 567, 582 (2d Cir. 2001)).
96
Id. at 135.
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more than they do at home, and in just one meal ordered in a fast
food restaurant, might consume more than the advised daily caloric
intake.97
Further, the court explained that these findings and
observations were not only made by NYC, but also recognized
in reports commissioned by the Food and Drug Administration
(FDA), the Center for Disease Control, and the United States
Department of Agriculture.98 In light of this substantial support
for the goals and purpose of Regulation 81.50,99 the court held
that the menu calorie-disclosure mandate was rationally and
reasonably related to its ultimate goal of combating diabetes
and obesity.100
97
Id.; see also NOTICE OF ADOPTION 1, supra note 13, at 3-4.
N.Y. State Rest. Ass’n, 556 F.3d at 135. “A 2006 FDA-commissioned report
concluded that ‘obesity has become a public health crisis of epidemic proportions.’” Id.
(quoting THE KEYSTONE REPORT, FORUM ON AWAY-FROM-HOME FOODS: OPPORTUNITIES
FOR PREVENTING WEIGHT GAIN AND OBESITY 4 (2006) [hereinafter KEYSTONE REPORT]).
“Another Study concluded that rising obesity rates led to increasing diabetes
rates . . . .” Id. (citing CTR. FOR DISEASE CONTROL, NAT’L CTR. FOR HEALTH STATISTICS,
NAT’L DIABETES SURVEILLANCE SYS., PREVALENCE OF DIABETES (1980-2005), available
at http://www.cdc.gov/diabetes/statistics/prev/national/tablepersons.htm). “Further,
studies have linked obesity to eating out. The Keystone Report also concluded that the
consumption of high-calorie meals at fast-food restaurants is a significant cause of
obesity, stating that ‘[e]ating out more frequently is associated with obesity, higher
body fatness, and higher body mass index.’” Id. (quoting KEYSTONE REPORT, supra, at
27). “The United States Department of Agriculture has observed that away-from-home
foods have lower nutritional quality than home foods and found a correlation between
increased caloric intake and eating out.” Id. (citation omitted).
99
Beyond the studies the case discussed, many briefs were filed on behalf of
organizations supporting the Board of Health’s new calorie-disclosure regulation. See
Brief for Rudd Center for Food Policy & Obesity at Yale University as Amici Curiae
Supporting Defendants-Appellees and Arguing for Affirmation at 3-4, N.Y. State Rest.
Ass’n, 556 F.3d 114 (“If NYSRA’s First Amendment arguments are accepted, . . . [t]he
regulatory structure of consumer protection in the United States, which relies heavily
on promoting information transparency to encourage informed consumer decisionmaking, will be thrown into jeopardy, as will the government’s ability to combat the
obesity epidemic through regulations promoting knowledgeable consumer choice and
personal responsibility.”); see also Brief of the FDA as Amici Curiae in Support of
Affirmance at 2-3, N.Y. State Rest. Ass’n, 556 F.3d 114 (“Because the Regulation
compels an accurate, purely factual disclosure of the calorie content of restaurant menu
items, and addresses a legitimate state interest in preventing or reducing obesity
among its citizens by making accurate calorie information available to consumers,
there is a rational connection between the disclosure requirement and the City’s
purpose in imposing it such that the Regulation survives constitutional analysis.”); see
generally Brief for U.S. Congressman Henry Waxman et al. as Amici Curiae in Support
of Appelles and for Affirmance, N.Y. State Rest. Ass’n, 556 F.3d 114. This extended
support was praised in commentaries following the court decision, including
commendation from the American Medical Association. See Amy Lynn Sorrel, Fed
Court Upholds New York City’s Calorie-posting Rule, AM. MEDICAL ASS’N (Mar. 9,
2009), http://www.ama-assn.org/amednews/2009/03/09/prsb0309.htm.
100
N.Y. State Rest. Ass’n, 556 F.3d at 136 (“In view of all the above findings,
Regulation 81.50’s calorie disclosure rules are clearly reasonably related to its goal of
reducing obesity.”).
98
2011]
THE RULES OF CONSUMPTION
1065
Regulation 81.50 survived both of the NYSRA’s
constitutional challenges. Eventually, the outcome of these
challenges would prove to be not just a victory for NYC, but for
general public health reform in all of America.
B.
The Aftermath: NYC Inspires the Nation
The Second Circuit best explained the phenomenon:
Now, every time New Yorkers walk into or use the drive-through of
certain chain restaurants, they are informed, for instance, that the
taco salad contains 840 calories, the sausage and egg breakfast
sandwich contains 450 calories, and the premium hamburger
sandwich with mayonnaise contains 670 calories, but without
mayonnaise contains 510 calories.101
And so it began—every NYC resident dining at a regulated
business was forced to face the calorie content of their food
choices in the crucial moment when they decided what to eat.
Once Regulation 81.50 was back in effect, restaurants began
noticing real differences in customers’ ordering choices.102
Newspapers, blogs, and other media sources frequently
reported on the success of the law—its influence quickly
became a popular headline.103 Along with the local attention the
NYC calorie-disclosure law was receiving, other cities and
states also took notice of Regulation 81.50 and its success
against legal challenges.104 Consequently, these cities and states
began drafting, enacting, and implementing their own caloriedisclosure legislation.105
101
Id. at 121; see also Schulman, supra note 6, at 598 (stating if “the goal of
menu-labeling is to influence the dietary decisions of a wide range of consumers, merely
making nutritional information available somewhere is not enough” and discussing how
consumers must be presented with this information at the point of purchase).
102
See, e.g., New York City Rave Reviews for Menu Labeling, CTR. FOR SCI. IN
THE PUB. INTEREST, http://cspinet.org/new/pdf/nyc_review_fact_sheet.pdf (last visited
Jan. 6, 2011); see also Musings of an Obesity Medicine Doc and Certifiably Cynical
Realist, WEIGHTY MATTERS, http://www.weightymatters.ca/2008/07/proof-nyc-menuboard-calories-change.html (last visited Jan. 6, 2011) [hereinafter Musings]; Ronnie
Caryn Rabin, New Yorkers Try to Swallow Calorie Sticker Shock, 600 Calorie Muffins?
The First City to Adopt Law Faces Unappetizing Surprises, MSNBC.COM (Jul. 16,
2008), http://www.msnbc.msn.com/id/25464987.
103
See, e.g., sources cited supra note 102.
104
See generally State and Local Menu Labeling Policies, http://cspinet.org/
new/pdf/ml_map.pdf (last visited Jan. 6, 2011) (displaying the various state and local
menu labeling policies either passed, implemented, or introduced as of February 2010).
105
See id.
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1. The Triumph of Regulation 81.50
Residents of NYC noticed the calorie postings and began
to change their eating habits. The transformation started as
early as the first enactment of the calorie-disclosure legislation,
even before the completion of the initial lawsuit challenging its
constitutionality.106 Now, many New Yorkers who see calorie
information on a menu before purchasing fare end up ordering
less caloric food.107 If this diet alteration in favor of healthier,
lower-calorie options already being made by some New Yorkers
continues to gain popularity, it could soon inspire more
residents and start drastically reducing cases of obesity and
diabetes in NYC.108
Journalists, bloggers, and critics wildly reported
positive predictions about the new NYC law,109 addressed how
effective Regulation 81.50 would be in reducing obesity levels
in NYC, and favorably discussed recent independent case
studies.110 For example, in one study conducted shortly after the
first version of Regulation 81.50 was passed, a reporter
interviewed a woman, who was about to order her usual
breakfast, but then noticed the caloric content of her choice.111
She found out that her favorite chocolate chip muffin at
Dunkin’ Donuts had 630 calories.112 This woman told the
reporter that she “was blown away,” and that she did not
expect her “little muffin” to have 630 calories in it.113 Similarly,
another case study documented a reporter watching a table of
women reading menus after sitting down to dine at T.G.I.
Friday’s.114 The reporter noticed that these women, upon seeing
106
See Rabin, supra note 102.
See ACS Supports Calorie Labeling in Albany, N.Y. ACTION CENTER (July,
28, 2009), http://www.acscan.org/action/ny/updates/451 (“In NYC, fast food customers
who saw calorie information displayed purchased 52 fewer calories than those who
didn’t see the information.”). For an example of a menu displaying caloric information,
see Menus & Menu Boards with Nutrition Information, CTR. FOR SCI. IN THE PUB.
INTEREST, http://www.cspinet.org/menulabeling/boards.html (last visited Jan 6, 2011).
108
See Menu Labeling Laws—Sweeping The Nation?, FIRST MOVERS (Feb. 22,
2009), http://firstmovers.blogspot.com/2009/02/menu-labeling-laws-sweeping-nation_22.
html [hereinafter FIRST MOVERS] (“[T]he New York City Department of Health
projected that menu labeling in the City will prevent at least 30,000 new cases of
diabetes in the next five years.”).
109
See, e.g., Musings, supra note 102; see also Rabin, supra note 102.
110
See Musings, supra note 102; see also Rabin, supra note 102.
111
Rabin, supra note 102.
112
Id.
113
Id.
114
Id.
107
2011]
THE RULES OF CONSUMPTION
1067
the caloric content of the menu items, wore identical
expressions of shock and disgust.115 Following their appalling
discovery of the actual caloric content in most menu choices,
the reporter recalled that two of the women “asked about the
suddenly popular Classic Sirloin—at 290 calories, it was one of
the lowest calorie items on the menu—but learned the
restaurant ran out by the time the dinner rush started.”116 As
the information in these case studies indicates, many NYC
consumers are making healthier, lower calorie food choices.
Because of this, it was greatly anticipated that other states
would soon follow suit. 117
2. Adoption of Similar Laws Elsewhere
As was predicted, NYC is no longer alone in forcing
disclosure of calorie content on menus. With the similarly
stated purpose of combating the national epidemics of obesity
and diabetes in their own states or cities, legislatures around
the United States followed suit and adopted different caloriedisclosure regulations.118 Thus, “[w]hat once seemed like the farfetched idea of a health-nut legislator” was no longer
considered so extreme, as “state and local menu-labeling laws
[went] into effect all over the country, forcing many in the
restaurant industry to comply with their parameters.” 119
New laws have been enacted from coast to coast by both
state and local legislatures. Just as NYC was the first city to
enact a menu calorie-disclosure law,120 California became the
first state to do so.121 Unfortunately, however, the success of
Regulation 81.50 did not influence everyone. Some states, like
Georgia and Ohio, took the opposite route and passed
legislation that ensures their state and local governments
115
Id.
Id. In comparison, the reporter noted that “Friday’s pecan-crusted chicken
salad, served with mandarin oranges, dried cranberries and celery, has 1,360 calories.” Id.
117
See, e.g., Wegener, supra note 70.
118
Gizzi, supra note 7, at 502 (“In an effort to combat the obesity epidemic,
certain states and local governments have proposed or passed legislation requiring
chain restaurants to post nutrition information alongside item prices on menus or
menu boards.”); see also Nutrition Labeling in Chain Restaurants, CTR. FOR SCI. IN THE
PUB. INTEREST, http://www.cspinet.org/nutritionpolicy/MenuLabelingBills2007-2008.
pdf (last visited Jan. 6, 2011).
119
Gizzi, supra note 7, at 514.
120
See FIRST MOVERS, supra note 108.
121
See California First State in Nation to Pass Menu Labeling Law, CTR. FOR
SCI. IN THE PUB. INTEREST, http://www.cspinet.org/new/200809301.html (last visited
Feb. 6, 2011); see also Gizzi, supra note 7, at 516.
116
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would never support menu calorie-disclosure laws.122 The
governments that followed NYC’s lead have adopted various
types of calorie-disclosure laws, some stricter than Regulation
81.50 and some more lenient.123 Many of these proposed bills
and passed laws contained similar menu labeling requirements
as Regulation 81.50, regulating disclosure only in restaurants
and FSEs with a certain amount of locations nationally.124
Similarly, many states utilize a different measuring approach,
applying only to restaurants and FSEs with a specific number
of locations statewide, rather than nationwide.125 Further, while
Regulation 81.50 merely requires disclosure of caloric
information, other state laws require disclosure of additional
nutrient information, such as fat content.126
As local and state legislatures increasingly adopted
more calorie-disclosure bills, the burden on restaurants and
FSEs with locations across the United States was bound to
increase. These national and regional chains already had
dozens of laws to comply with,127 sometimes even varying within
the same state.128 As nutrition disclosure laws multiply, so too
122
See Restaurant Industry Successes in Menu Board/Calorie Posting Wars,
NOWPUBLIC.COM, http://www.nowpublic.com/health/restaurant-industry-successes-menuboard-calorie-posting-wars (last visited Feb. 6, 2011).
123
For examples of laws that are more strict than Regulation 81.50, see KINGS
CNTY., WASH. BD. OF HEALTH CODE, ch. 5.10.015 (2008) (“The nutrition labeling of food
shall include, but not be limited to, the total number of calories; . . . [t]otal number of
grams of saturated fat; . . . carbohydrate; and . . . milligrams of sodium.”). See also
Rabin, supra note 102. For examples of laws that are more lenient, see CAL. HEALTH &
SAFETY CODE § 114094 (West Supp. 2009). See also California First State in Nation to
Pass Menu Labeling Law, supra note 121.
124
See, e.g., KINGS CNTY., WASH. BD. OF HEALTH CODE, ch. 5.10.015 (stating
that the labeling law requires restaurants with fifteen or more locations nationally to
disclose caloric information).
125
See, e.g., CAL. HEALTH & SAFETY CODE § 114094 (stating that the labeling
law requires restaurants with twenty or more locations statewide to disclose caloric
information).
126
Gizzi, supra note 7, at 515.
127
See H.B 54, 24th Leg., 2008 Reg. Sess. (Haw. 2007), available at http://www.
capitol.hawaii.gov/session2008/bills/HB54.htm (regulating ten or more establishments); S.F.
2158 82nd Gen. Assem., 2008 Sess. (Iowa 2008) (regulating twenty-one or more locations
within the state); S.B. 211, 2008 Leg., 2008 Reg. Sess. (Ky. 2008) (regulating twenty or
more locations statewide); S.B. 1290, 185th Gen. Court, 2007-2008 Sess. (Mass. 2007)
(regulating ten or more locations across the United States); A. 1407, 213th Leg. 2008
Sess. (N.J. 2009) (regulating twenty or more locations in New Jersey); A. 729, 2007 State.
Assemb., 2007 Sess. (N.Y. 2007) (regulating fifteen or more locations nationally as well as
five locations in New York); see also Gizzi, supra note 7, at 515 n.104; State and Local
Menu Labeling Policies, supra note 104.
128
See generally State and Local Menu Labeling Policies, supra note 104.
2011]
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1069
does the cost of compliance for these restaurants.129 As a result,
“[i]f even a portion of [the pending legislations in various cities
and states] eventually pass, [these laws would] significantly
affect interstate commerce.”130 Thus, absent the national
mandate to preempt these local and state laws, the cost of a
meal at regulated restaurants and FSEs would likely increase,
as these businesses would need to find new ways to carry the
greater financial burden of compliance. To mitigate the
financial burden, it became necessary for the federal
government to step in.
IV.
IT WAS THE APPROPRIATE TIME FOR CONGRESS TO PASS
A FEDERAL CALORIE-DISCLOSURE LAW
Because of the increasing popularity of menu caloriedisclosure laws, not only do chain restaurants and other FSEs
have no choice whether or not to share nutrition information,
or how to convey that information, but they now also have to
comply with a variety of special requirements that are
particular to each jurisdiction.131 As a result of this
jurisdictional issue, it became even more important for
Congress to recognize that “the most effective route to fighting
obesity . . . [is] old-fashioned ‘command and control’ federal
legislation, given the national government’s ability and
arguable obligation to improve Americans’ food supply, lifestyle
habits, and education about the health risks of obesity.”132
A.
Previous Attempts Were Failures
A federal menu calorie-disclosure law had been
contemplated for some time.133 Actually, proponents of the
NLEA were willing to enact a national calorie-labeling
129
See Kim Leonard, Calorie Disclosure in Store for Food Chains, PITTSBURGH
TRIB. REV. (Jul. 2, 2010), http://www.pittsburghlive.com/x/pittsburghtrib/business/
s_688598.html.
130
See Gizzi, supra note 7, at 519.
131
See id. at 527 (“Now, not only will restaurants be unable to choose the
method by which they convey nutrition information to customers, but they will also
have to follow the requirements of various jurisdictions.”).
132
Burnett, supra note 8, at 414; see also Edieth Y. Wu, McFat—Obesity,
Parens Patriae, and the Children, 29 OKLA. CITY U. L. REV. 569 (2004) (stating that
childhood obesity is a huge problem and that our federal government should be the one
to do something about it).
133
For recent discussions on prior federal attempts at a menu caloriedisclosure law, see Green, supra note 48, at 740-45. See also Devon E. Winkles,
Weighing the Value of Information, 59 EMORY L.J. 549, 551-54 (2009).
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requirement for restaurant and FSE menus as early as 1990.134
The law did not come to fruition as “the restaurant industry
lobbied vehemently against such a regulatory burden” and,
ultimately, “Congress compromised and provided restaurants
certain exemptions to the labeling requirements of [the NLEA],
concluding that the federal government should be cautious
when intervening in the states’ right to protect the health and
safety of their citizens.”135
Though this area was within states’ police powers, there
was no widely recognized purpose or need to burden
restaurants with the national menu labeling regulation, and
the idea for the federal menu calorie-disclosure law was soon
forgotten. Almost twenty years later, and now clearly faced
with a desperate need and purpose for such a federal law—as
obesity and diabetes have become national epidemics—
Congress finally had a change of heart.136
The federal bill that ultimately passed was not the first
of its kind; in recent years, both houses made similar attempts.
First, in 2003, both houses introduced the Menu Education And
Labeling Act (MEAL Act) to the 108th Congress.137 The MEAL
Act was designed to “address the lack of readily-accessible
information about fast-food ingredients by requiring restaurant
chains to clearly display the number of calories, grams of
saturated fat, and milligrams of sodium in their food.”138 Similar
to Regulation 81.50, public interest groups praised the MEAL
134
Gizzi, supra note 7, at 522 (citing LAURA SIMS, THE POLITICS OF FAT: FOOD
200 (1998)).
135
Id.; see also 136 CONG. REC. H5840 (1990).
136
Burnett, supra note 8, at 366 (“Legislation in the House and Senate that
would have a positive effect on America’s obesity epidemic, to the extent such laws
have been proposed, has almost always been unsuccessful.”).
137
See Menu Education and Labeling Act, H.R. 3444, 108th Cong. (2003); see
also S. 2108, 108th Cong. (2003).
138
Burnett, supra note 8, at 366; see also H.R. 5563, 109th Cong. (2006); S.
3484, 109th Cong. (2006); H.R. 3444, 108th Cong. (2003); S. 2108, 108th Cong. (2003).
Also noting the requirements of the MEAL Act, one blogger stated that the
AND NUTRITION POLICY IN AMERICA
bill exempts condiments, items placed on a table or counter for general use,
daily specials, temporary menu items, and irregular menu items.
Interestingly, the bill would also require restaurants that sell self-serve food,
such as through salad bars or buffet lines, to place a sign that lists the
number of calories per standard serving adjacent to each item, and would
require vending machine operators to provide a conspicuous sign disclosing
the number of calories to each item.
FIRST MOVERS, supra note 108.
2011]
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1071
Act and the restaurant industry despised it.139 The restaurant
industry focused its protests against an intentional gap in the
federal legislation, which gave states the option to regulate the
disclosure of more information than the law required.140 This
first attempt at a federal menu calorie labeling law was strict—
perhaps too strict—and for this reason it died in committee in
the 108th, 109th, and 110th Congresses.141
Then, in September 2008, the Senate introduced the
Labeling Education And Nutrition Act (LEAN Act) to the 110th
Congress.142 This also never became more than a bill.143 Refusing
to accept defeat, both houses, as recently as March 2009,
reintroduced companion LEAN Acts to the 111th Congress.144
This proposed legislation
look[ed] to expand current packaged food labeling law to require a
uniform national nutrition labeling standard for chain [FSEs], while
providing a reasonable range of flexibility for the restaurant. While
the LEAN Act would require a uniform national nutrition standard,
the law also would provide for a single set of guidelines in [sic] how
nutrition information is calculated and will provide legal protection
for those restaurants that abide by the law. As larger chain
restaurants with standard menus and standard methods of
preparation are better situated to meet such requirements, the
LEAN Act would apply only to chains with 20 or more units.145
139
See, e.g., Brief of Plaintiff-Appellant at 4-10, N.Y. State Rest. Ass’n v.
N.Y.C. Bd. of Health, 556 F.3d 114 (2d Cir. 2009) (No. 08-1892); see also FIRST MOVERS,
supra note 108.
140
FIRST MOVERS, supra note 108.
141
See Bill Summary and Status, H.R. 3444, 108th Cong. (2003), available at
http://thomas.loc.gov/cgi-bin/bdquery/z?d108:h3444: (last visited Feb. 6, 2011); see also H.R.
3895:MEAL Act, http://www.govtrack.us/congress/bill.xpd?bill=h110-3895 (last visited Jan.
8, 2011); Bill Summary and Status, H.R. 5563, 109th Cong. (2006), available at http://
thomas.loc.gov/cgi-bin/bdquery/z?d109:h5563: (last visited Feb. 6, 2011); Bill Summary and
Status, S. 3484, 109th Cong. (2006), available at http://thomas.loc.gov/cgi-bin/bdquery/z?
d109:SN03484: (last visited Feb. 6, 2011); Bill Summary and Status, S. 2108, 108th Cong.
(2003), available at http://thomas.loc.gov/cgi-bin/bdquery/z?d108:s2108: (last visited Feb. 6,
2011).
142
Labeling Education and Nutrition Act of 2008, S. 3575, 110th Cong. (2008).
143
See H.R. 1398, 111th Cong. (2009); see also S. 558, 111th Cong. (2009); Bill
Summary and Status, H.R. 1398, 111th Cong. (2009), available at http://thomas.loc.gov/
cgi-bin/bdquery/z?d111:HR01398:|/home/LegislativeData.php?n=BSS;c=111|; Bill Summary
and Status, S. 558, 111th Cong. (2009), available at http://thomas.loc.gov/cgi-bin/bdquery/z?
d111:SN00558:|/home/LegislativeData.php?n=BSS;c=111|.
144
Also, the National Restaurant Association has urged members of Congress
to co-sponsor the LEAN Act of 2008. See Public Policy Issue Briefs, NAT’L RESTAURANT
ASSOC., http://www.restaurant.org/government/issues/issue.cfm?Issue=menulabel (last
visited Jan. 8, 2011).
145
Jim Coen, Labeling Education and Nutrition Act of 2008 (LEAN Act), DDIFO
(Feb. 20, 2009), http://www.ddifo.org/labeling-education-and-nutrition-act-of-2008-lean-act/;
see also Evan Goodman, Something’s Gotta Give, But What Will It Take?, FULL SPECTRUM
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As the LEAN Act was less demanding than its predecessor, the
MEAL Act, it gained support from many different arenas—
including a former dissenter, the National Restaurant
Association (NRA).146 Specifically, one of the reasons for this
newfound support was that this bill was a “compromise,”147 as
the LEAN Act would only regulate the areas of the restaurant
industry that our government needed to control in order to
fight obesity.148 Another reason for the widespread support was
that a lenient national law would be much less burdensome for
restaurants and FSEs than complying with the various laws at
the state and local levels.149 Moreover, as state and local laws
went into effect, patrons were becoming more aware that they
needed to be able to individually access caloric information in
order to make more healthful choices when dining out.150 Still,
even with this tremendous support, the LEAN Act never made
it past committee.151
BLOG (Aug. 24, 2009, 1:58 PM), http://www.spectrumscience.com/blog/2009/08/24/some
thing’s-gotta-give-but-what-will-it-take/#more-595 (“The goal of The LEAN Act is to reduce
caloric intake among restaurant patrons by exposing them to the contents of what they are
eating. Because most people do not know the nutritional value (or lack thereof) in food they
eat when dining out, awareness is a key step towards healthy eating.”).
146
See Parke Wilde, New Advocacy Coalition Backs National Menu Labeling,
U.S. FOOD POL’Y BLOG (June 12, 2009, 10:14 AM), http://usfoodpolicy.blogspot.com/2009/
06/new-advocacy-coalition-backs-national.html; see also FIRST MOVERS, supra note 108
(“Although no federal menu labeling requirements exist, the topic has gained momentum
in recent years, especially now that the National Restaurant Association is actively
supporting the Labeling Education and Nutrition (LEAN) Act, introduced in the 2008
Congressional session.”).
147
Wilde, supra note 146 (“First, the bill is a compromise bill, providing the
restaurant chains with some of their key policy priorities, including preserving a good
deal of flexibility in deciding how to present the information and protection from what
the restaurants describe as ‘frivolous’ lawsuits.”).
148
Goodman, supra note 145 (“[T]he bipartisan LEAN Act of 2009 is designed to
help curb the obesity epidemic by introducing nutrition labeling of food offered for sale in
[FSEs]. . . . [It] calls for accessible, reliable nutrition information to be displayed in chain
restaurants and is a stepping stone on a long path to improving the health of Americans.”
(internal quotation marks omitted)).
149
Wilde, supra note 146 (“As with other important nutrition labeling policies
in the past, such as the current nutrition facts panel on packaged food, an important
sector of the food industry chose to support a new government policy in return for more
consistent and less burdensome regulation across jurisdictions.”).
150
Goodman, supra note 145 (“[T]he consequences of dining out . . . include
higher intakes of fat, sodium, and soft drinks, and lower intakes of nutrient-dense
foods such as vegetables. . . . [H]alf of Americans’ diets consist of food consumed outside
the home. . . .The LEAN Act is only one potential intervention to help curb the obesity
epidemic in America. This legislation works on the individual level in order to increase
access to information.” (internal quotation marks omitted)).
151
See H.R. 1398: Labeling Education and Nutrition Act of 2009, GOVTRACK.US,
http://www.govtrack.us/congress/bill.xpd?bill=h111-1398 (last visited Jan. 10, 2011).
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B.
1073
Current Attempt Was Finally a Success
The most recent attempt to implement a federal caloriedisclosure law occurred as this note was being drafted. Our
nation had been experiencing a tremendous push for universal
health reform.152 Thus, incorporated within each of the various
bills drafted by the 111th Congress were menu caloriedisclosure stipulations.153 The decision to include these
provisions was the result of compromise and recognition that
state and local regulations were increasingly developing across
our nation.154 Although the requirements of the federal bill were
not dissimilar to those proposed and enacted at the state and
local level,155 nor were they drastically different than what was
proposed under the LEAN Act, strong alliances formed in favor
of this legislation and groups prepared to lobby for its
enactment.156 In fact, the law’s one-time biggest opponent
became its greatest supporter.157
After many years of protest, the NRA and the “food
police,” a public policy interest group, vocalized their support
for one bill, and publicly declared that a federal mandate would
be the best solution.158 These groups recognized that a single,
consistent standard would lessen the burden on restaurants
and FSEs nationwide.159 A NRA spokesperson stated that the
organization believed that this bill had the most potential to
152
See generally HEALTHCARE.GOV, http://www.healthcare.gov (last visited Jan.
31, 2011).
153
See generally Nationwide Menu Labeling to Be Included in Health Reform,
ROBERT WOOD JOHNSON FOUND. (June 10, 2009), http://www.rwjf.org/pr/product.jsp?id
=44028&topicid=1024.
154
See generally Sean Gregory, Fast Food: Would You Like 1,000 Calories
with That?, TIME.COM (June 29, 2009), http://www.time.com/time/magazine/article/
0,9171,1905509,00.html (“Spurred by the passage of a slew of state and local menulabeling laws, on June 10 the Senate reached a bipartisan agreement to include a
federal menu-labeling law as part of comprehensive health-care reform.”).
155
See sources cited supra note 127.
156
See generally Jerry Hirsch, Calorie-Listing Bill Spawns Industry Fight,
L.A. TIMES (Aug. 3, 2009), http://articles.latimes.com/2009/aug/03/business/fi-menu3.
157
Id.
158
See id.; see also Public Policy Issue Briefs, supra note 144; Stephanie
Rosenbloom, Calorie Data to Be Posted at Most Chains, N.Y. TIMES (Mar. 23, 2010), http://
www.nytimes.com/2010/03/24/business24menu.html (The “measure was approved by
Congress with little public discussion, in part because restaurant chains supported it. They
had spent years fighting such requirements, but they were slowly losing the battle.”).
159
Hirsch, supra note 156 (“The restaurant trade group’s priority is getting rid
of local laws in favor of one national, uniform standard for menu labeling, which it says
will make it easier for the national chains to standardize their menus and policies.”).
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prevent “a patchwork of harmful regulation and legislation”
from springing up all around the country.160
On September 17, 2009, the House of Representatives
released H.R. 3590, formally known as the Patient Protection
and Affordable Care Act (PPACA).161 After resolving differences
between the chambers, Congress passed the PPACA.162 Finally,
on March 23, 2010, President Obama signed the bill into law,
and it became Public Law No. 111-148.163 After all the
amendments, still included in the depths of this law is a menulabeling provision, which like the aforementioned local and
state laws, requires certain restaurants and FSEs to post
calorie information.164
Section 4205 of the PPACA165 was the result of
negotiations with the NRA, which, as noted above, wanted a
solution to the ever-increasing disparities in the laws being
enacted at the state and local levels.166 This provision requires
restaurants and FSEs with twenty or more locations nationally
to provide calorie information at the point-of-purchase for
standard, unchanging food items, and to post this information
in an obvious and unambiguous manner next to the name of
each item on menus.167 Thus, this provision does not apply to
items that are temporarily offered as a daily special, items that
are not listed on the establishment’s menus such as condiments
or custom orders, items offered on a menu for sixty days or less,
nor items that are part of a traditional market test lasting less
160
Id.
See Patient Protection and Affordable Care Act, TAXATION TIMES (Mar. 3,
2010), http://www.taxationtimes.com/2010/124-stat-119/#history [hereinafter TAXATION
TIMES Article]; see also Patient Protection and Affordable Care Act § 4205 (2010), Pub. L.
No. 111-148, 124 Stat. 119 (codified as amended in scattered sections of the U.S.C.).
162
TAXATION TIMES Article, supra note 161.
163
Id.; see also Patient Protection and Affordable Care Act § 4205(b).
164
Patient Protection and Affordable Care Act § 4205(b).
165
For a recent, more detailed discussion of the creation and requirements of
section 4205, see Michelle I. Banker, I Saw the Sign: The New Federal Menu-Labeling
Law and Lessons from Local Experience, 65 FOOD & DRUG L.J. 901, 904-07 (2010). See
also Bernell, supra note 6, at 865-67.
166
See Margie King, New Federal Health Care Reform Legislation Requires
Calorie Disclosure on Menus, EXAMINER.COM (Mar. 30 2010, 9:40 PM), http://www.
examiner.com/nutrition-in-philadelphia/new-federal-health-care-reform-legislation-requirescalorie-disclosure-on-menus.
167
Patient Protection and Affordable Care Act § 4205(b); see also Schulman,
supra note 6, at 608 (stating that restaurants will have to offer calorie information for
these menu items “on menus, menu boards, and drive-through menus”).
161
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1075
than ninety days.168 The law also exempts small businesses
from regulation.169
Different from Regulation 81.50, the PPACA also
requires that these establishments post on their menus a sort
of warning statement, notifying customers of the suggested
daily caloric intake.170 In addition, the law requires restaurants
to clearly inform customers that if they are interested in
knowing additional or more detailed nutritional information
about each standard menu item, it will be made available to
them upon request.171 Lastly, the law allows restaurants that do
not fall under its purview to voluntarily disclose calories on
their menus.172
Ultimately, section 4205 will be enforced by the FDA.173
In August, 2010, the FDA released both a draft guidance
document describing implementation of certain portions of the
law, and a final guidance document describing the effect the
federal law will have on state and local laws already in
existence.174 In these plans, the FDA recognized that the
“industry may need additional information and time to comply
with the new provisions” and that it expected “to refrain from
enforcement action for a time period that will be provided in
the guidance once it is finalized.”175 After this announcement,
the FDA was expected to begin enforcing this mandate before
2011.176 More importantly, the law requires that the FDA offer
its final proposal for implementation of this regulation by
168
Schulman, supra note 6, at 608.
See id.; see also Jean Spencer, Menu Measure: Health Bill Requires Calorie
Disclosure, WALL ST. J. (Mar. 22, 2010), http://blogs.wsj.com/washwire/2010/03/22/menumeasure-health-bill-requires-calorie-disclosure.
170
See Patient Protection and Affordable Care Act § 4205(b); see also
Schulman, supra note 6, at 608.
171
See Patient Protection and Affordable Care Act § 4205(b).
172
See id.
173
See King, supra note 166; see also Banker, supra note 165, at 906 (internal
quotation marks omitted) (“The statute also directs the FDA to consider a variety of
potentially thorny practical issues while drafting regulations, including
standardization of recipes and methods of preparation, reasonable variation in serving
size and formulation of menu items, space on menus and menu boards, inadvertent
human error, training of food service workers, and variations in ingredients. . . . [and]
to specify the format and manner of the nutrient labels.”).
174
See id.
175
Id. The FDA also asked the public to comment on what it believed would be
a reasonable amount of time before demanding compliance. See id.
176
See, e.g., Client Advisory, FDA Moving Quickly to Enforce New Calorie
Labeling Requirements for Restaurant Menus and Vending Machines, KELLEY DRYE (Oct.
5, 2010), http://www.kelleydrye.com/publications/client_advisories/0597 [hereinafter Kelley
Drye Client Advisory].
169
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March 23, 2011.177 By the time this note went to press, however,
the FDA still had not set forth any proposals.
Nevertheless, the law has been enacted, and although it
may take some time,178 our nation is gearing up for the
enforcement of national menu calorie disclosure.179 Congress
has finally passed legislation that preempts almost all future
menu calorie-disclosure regulations on the state and local level,
and makes many existing regulations, including Regulation
81.50, ineffective and void.180
C.
Potential Legal Challenges to the Federal Law
Although most commentators have supported section
4205 of the PPACA,181 the adoption of this national caloriedisclosure law will still likely meet many forms of criticism.
Since it was signed into law, the efficacy of this provision has
already been criticized in some journal and law review articles
for a variety of reasons, ranging from the fact that it does not
include smaller restaurants within the scope of regulation to
the fact that it only makes calorie-disclosure compulsory and
does not require disclosure of other important information such
177
Patient Protection and Affordable Care Act § 4205(b); Banker, supra note
165, at 906 (“The statute gives the FDA a one year time limit to promulgate
regulations for implementing its provisions and requires the agency to submit a
quarterly report to Congress regarding the status of proposed regulations.”); see also
Kelley Drye Client Advisory, supra note 176.
178
Spencer, supra note 169 (“The [FDA] needs to come up with regulations, and as
a result, many Americans won’t likely see calories disclosures for three to four years.”); but
see generally FDA Expects to Issue Menu Labeling Proposal by March 23, NAT’L REST. ASS’N,
http://www.restaurant.org/nra_news_blog/2011/01/fda-expects-to-issue-menu-labelingproposal-by-march-23.cfm (last visited Feb. 4, 2011); Andy Hodges, Fast Food Calories News
Reveals Health Care Restaurant Law, NEWSOXY (Mar. 25, 2010), http://www.newsoxy.com/
fast-food/calories-news-12833.html (“If a legal battle ensues, as often happens with new
federal regulations, the effect date could conceivably be years away.”).
179
Claire E. Castles, For 500 Additional Calories, Do You Still Want Fries
With That?, ABA HEALTH ESOURCE (Oct. 2010), http://www.abanet.org/health/esource/
Volume7/02/castles.html (“By removing the calorie and nutritional labeling exception
for certain establishments from the federal labeling requirement, the industry may
now rely on a federal standard for compliance with the labeling requirements.”).
180
See Rosenbloom, supra note 158 (“More than a dozen states have been
considering labeling measures or have already passed them, though many have not yet
taken effect. The new legislation overrides many existing laws, though some localities
will be able to continue enforcing rules that are more stringent than the federal
requirements. New York City, for instance, is expected to continue requiring chains
with 15 or more outlets to post nutritional data, compared with the standard of 20
outlets in the federal law.”).
181
See, e.g., Castles, supra note 179 (stating that this national decree will
tremendously “assist in creating healthier communities, improve wellness and prevent
disease”).
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1077
as fat content of food.182 The effectiveness of this law remains to
be seen, and given the recent, inconsistent studies regarding
the value of Regulation 81.50 in NYC, it is clear that it will
take many years before a well-supported argument is
possible.183 At this point, however, it is possible to predict
forthcoming legal challenges to section 4205 of the PPACA.
The lawsuit discussed in Part III of this note indicates
that the federal law would likely survive a First Amendment
challenge,184 but other constitutional challenges can still be
expected.185 First, as some articles have suggested, “litigation
may arise regarding the extent to which [section] 4205
preempts state and local laws.”186 While this note agrees that
such proceedings are inevitable, it is impossible at this point to
determine the success or failure of such claims, as that will
vary based on the specific attributes of the local or state law
being challenged.187 Second, a lawsuit alleging that the federal
calorie-disclosure law is unconstitutional under the due process
clause of the Fifth Amendment would not likely be successful,
as this provision “targets a large subset of restaurants” and the
government has at the very least a rational basis for the law.188
Lastly, and discussed in some detail below, critics will likely
182
For arguments criticizing the compulsory menu labeling provision, see, for
example, Banker, supra note 165, at 917-21, and Schulman, supra note 6, at 608-09
(stating that the provision is “an excellent start,” but “it does not constitute an ideal
solution to implementing menu-labeling policy on a national level if the goal is to
maximize the policy’s potential impact on the national weight crisis” and that “it
misses an important opportunity for broad menu-labeling implementation by
exempting smaller, non-chain restaurants”).
183
This note does not discuss these studies in detail, as the impact of the new
federal law is tangential to its main argument. For recent articles discussing the
results of each study, see, for example, Schulman, supra note 6, at 599-603; Banker,
supra note 165, at 911-13; Bernell, supra note 6, at 867-70; Sheila Flesichhacker & Joel
Gittelsohn, Carrots or Candy in Corner Stores?: Federal Facilitators and Barriers to
Stocking Healthier Options, 7 IND. HEALTH L. REV. 23, 52 (2010) (“Even though the
menu labeling law is based on a strong public health rationale and founded on
consumer rights, further work is needed to understand the impact these policy changes
have had (e.g. in New York) and will have (e.g. nationwide on consumer behavior,
dietary intakes, and health conditions). Initial research on [Regulation 81.50] found
some positive effects on low-income consumer awareness, but not any significant
impacts on caloric consumption.”).
184
For a more detailed analysis of a potential First Amendment challenge to
the PPACA, see generally Bernell, supra note 6, at 862-63.
185
For another recent discussion of the legal challenges the federal law will
likely face, see id. at 861-64.
186
Banker, supra note 165, at 926.
187
One caveat to this statement is that in general, a preemption challenge
may be successful if the law requires “claims” to be made, and not only “factual
nutritional information.” Bernell, supra note 6, at 861-62.
188
Banker, supra note 165, at 927.
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claim that the law is beyond Congress’s vested power to
regulate interstate commerce.189
Our federal Constitution bestows Congress with the
power to regulate commerce through the Commerce Clause.190
Since this grant of authority, “the . . . Court has extracted the
notion that the Commerce Clause is an affirmative grant of
power to Congress to restrict independent state action in order
to promote nationwide free trade.”191 That is, besides its obvious
ability to regulate interstate activities, Congress can regulate
intrastate activities that substantially affect interstate
commerce.192 Here, because of the variety of state and locally
mandated menu calorie-disclosure laws established before the
federal mandate was passed, “the burden on interstate
commerce [was] certain, especially if states continue[d] to
adopt different regulations.”193
Critics will likely argue that the law does not fall within
Congress’s Commerce Clause authority. Specifically, they will
contend that the states possess a “residuum of power” to create
public health and safety laws, which reflect local concerns,
even if these laws do affect interstate commerce.194 Such state
laws are presumably valid and subject to such regulation
because public health and welfare consistently fall within the
ambit of state authority and are primarily local concerns.195
These critics will reason that Congress is overstepping its
bounds with such legislation and entering into state policepower territory.
However, it is not likely that this challenge would be
successful. Today, the Court’s jurisprudence gives Congress
189
For another recent discussion of the likely commerce clause challenge, see
id. at 927-28.
190
U.S. CONST. art. 1, § 8, cl. 3. (“[The Congress shall have power] To regulate
Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”).
191
Gizzi, supra note 7, at 507; see also Gibbons v. Ogden, 22 U.S. 1, 4 (1824)
(where John Marshall first defined “commerce” to mean “intercourse,” and further
explained that the Constitution uses the word “among,” indicating that power to regulate
interstate commerce didn’t extend to commercial activities entirely within a state).
192
See Gonzales v. Raich, 545 U.S. 1, 17 (2005).
193
Gizzi, supra note 7, at 525. Moreover, “in giving Congress the power to
regulate commerce among the states, the Commerce Clause impliedly requires the
states to refrain from placing economic barriers between themselves and other states
that would disrupt the unified national economy.” Id. at 504.
194
See S. Pac. Co. v. Arizona, 325 U.S. 761, 767 (1945) (“[I]n the absence of
conflicting legislation by Congress, there is a residuum of power in the state to make
laws governing matters of local concern.”).
195
See id.
2011]
THE RULES OF CONSUMPTION
1079
broad power under the Commerce Clause,196 and the disclosure
of calorie content on chain restaurant menus would be an
example of an activity that substantially affects interstate
commerce. The sales from these regulated businesses
unarguably affect interstate commerce, accounting for billions
of dollars spent by American consumers.197 Moreover, chain
establishments—those restaurants to be affected by such a
regulation—are interstate in nature, as most of these
companies have locations in more than one state.198 Thus, the
burden on these businesses is an interstate one.199 For these
reasons, the Court would likely find Congress well within its
Commerce Clause authority to pass section 4205 of the PPACA.
Further, section 4205 of the PPACA, in fact, decreases a
burden on interstate commerce. Specifically, “[i]f the individual
states [continued to] mandate[] dissimilar sets of rules and
regulations according to their own interests, the nation would
be nothing more than fifty independent countries coexisting
under the guise of one name, each imposing its own taxes and
other economic burdens on the other.”200 Every regulated
restaurant and FSE would have had to follow a variety of
regulations, as each law would be exclusive to its city or state.
For that reason, it is likely that the Court would find that the
Framers of our federal Constitution wanted to circumvent this
type of arduous undertaking by granting supreme Commerce
Clause power to our national Congress.201
Another argument opponents may offer would center on
the federalism theory that the states are the laboratories of
196
See Raich, 545 U.S. 1; see also United States v. Lopez, 514 U.S. 549, 558 (1995).
Elizabeth Young Spivey, Trans Fat: Can New York City Save Its Citizens
from This “Metabolic Poison”?, 42 GA. L. REV. 273, 291 (citing ERIC SCHLOSSER, FAST
FOOD NATION: THE DARK SIDE OF THE ALL-AMERICAN MEAL 293 (2002)). “In 2001,
Americans spent more than $110 billion on fast food, more than on higher education or
new cars.” Id.
198
Id.
199
See supra text accompanying notes 127-30.
200
Gizzi, supra note 7, at 508; see also H.P. Hood & Sons, Inc. v. Du Mond, 336
U.S. 525, 532 (1949) (stating that the national effect would “set a barrier to traffic between
one state and another as effective as if customs duties, equal to the price differential, had
been laid upon the thing transported” (internal quotation marks omitted)).
201
Gizzi, supra note 7, at 531 (“This onerous task is precisely what the
Framers sought to avoid by creating a unified republic and vesting the Commerce
Clause power in Congress.”); see also Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 523
(1935) (“[The Constitution] was framed upon the theory that the peoples of the several
states must sink or swim together, and that in the long run prosperity and salvation
are in union and not division.”).
197
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democracy.202 Those who are against the passage of the federal
calorie-disclosure law would posit that the aforementioned
burden on these restaurants is worth the cost. They would
suggest that through varying attempts, the states would
continue to strive for a perfect solution to these life-threatening
epidemics and, ultimately, find a successful one.203 But these
opponents fail to realize that the federal calorie-disclosure law
does not fully rid the states of their authority within this
realm. In fact, although the federal law in its current form
preempts most state and local regulation, those governments
may still pass laws for unregulated restaurants and may also
still have more stringent disclosure requirements than the
federal mandate.204 Accordingly, states may still experiment
with new legislation and be within the broad scope of section
4205 of the PPACA. Thus, although this constitutional
challenge will likely arise, it is unlikely that it will prevail.
V.
WHERE SHOULD CONGRESS DRAW THE LINE?
Americans enjoy being oblivious, so this federally
mandated menu calorie-disclosure law is nothing short of a
nightmare for many. The reality, unfortunately, is that our
increasing national weight gain seems to be directly related to
consistent dining in these regulated establishments, as their
customers are eating not only a greater amount of food than
they would at home, but are eating much unhealthier food as
well.205 Now, in every town, city, and state, American citizens
202
Jessica Bulman-Pozen & Heather K. Gerken, Uncooperative Federalism,
118 YALE L.J. 1256, 1261 (2009) (“Most theories of federalism rest upon an autonomy
model that depicts states as sovereign policymaking enclaves, able to regulate separate
and apart from federal interference. State autonomy helps create laboratories of
democracy, diffuse power, foster choice, safeguard individual rights, and promote
vibrant participatory opportunities for citizens.”).
203
Supporting this argument, in 1932, Justice Brandeis wrote, “It is one of the
happy incidents of the federal system that a single courageous State may, if its citizens
choose, serve as a laboratory; and try novel social and economic experiments without
risk to the rest of the country.” New State Ice Co. v. Liebman, 285 U.S. 262, 311 (1932)
(Brandeis, J., dissenting).
204
See generally Patient Protection and Affordable Care Act, Pub. L. No. 111148, § 4205(b), 124 Stat. 119 (2010) (codified as amended in scattered sections of the
U.S.C.); see also Guidance for Industry: Questions and Answers Regarding the Effect of
Section 4205 of the Patient Protection and Affordable Care Act of 2010 on State and
Local Menu and Vending Machine Labeling Laws, FDA.GOV (Aug. 2010), http://www.
fda.gov/Food/GuidanceComplianceRegulatoryInformation/GuidanceDocuments/FoodLa
belingNutrition/ucm223408.htm.
205
For a more detailed discussion of the relative unhealthiness of food
consumed outside the home, see Schulman, supra note 6, at 594-97.
2011]
THE RULES OF CONSUMPTION
1081
will have to face the glaring truth of their food choices in these
regulated restaurants and FSEs. Alas, illustrating how this
will impact the American dining experience, one blogger wrote,
The new calorie law is a murderer! Yes, it has killed my pleasure of
eating out! . . . For Gods [sic] sake, who wants to know all this? I
dine out once a week with my family simply for the pleasure of
eating. I’m already savvy on a lot of calorie education, buddy! The
television, newspapers, health journals, slimming spas, doctor’s [sic]
chambers are all bombarding people day in and day out with
information on calories and high and low calorie foods. I really don’t
need to be reminded of all that once more when I’m going to a food
joint to deliberately indulge in my favorite food once in a while.206
But it is exactly this carefree attitude that has led to America’s
unhealthy status. Although many commentators have noted
that magazines, television, and other media sources are
sufficient means to create widespread awareness on high and
low calorie food choices, they have ignored that this method
was practiced for years, without notable success. Likely, the
reason for the failure of those methods is because when
Americans read magazines or watch television they are not
standing in line or sitting at a table, waiting to place an order
for food. When calorie information is on menus, staring patrons
in the face, it cannot be ignored or forgotten.
Just as NYC inspired cities and states across the nation
to adopt calorie-disclosure laws that ultimately led to the
recent federal mandate, it has also inspired local and state
governments to pass other innovative food laws designed to
combat obesity, diabetes, and other life-threatening
epidemics.207 This section addresses three recent NYC foodbased health initiatives in particular. First, NYC, in passing its
trans fat ban,208 was the earliest of many state and local
governments to enact such regulation.209 Second, NYC has
206
Who Cares for the Calorie Law?, IFOOD, http://www.ifood.tv/node/93263
(last visited Jan. 6, 2011).
207
Does New York City’s Trans-Fat Ban Go Too Far?, ALLBUSINESS.COM (Jul.
31, 2010), http://www.allbusiness.com/medicine-health/diseases-disorders-obesity/148834
38-1.html (“New York City banned the use of trans fats in all restaurants in the city in
2006. Philadelphia, California, Boston and Montgomery County, Md. have subsequently
passed similar bans on the use of trans fats in restaurants.”).
208
N.Y.C., N.Y., HEALTH CODE tit. 24, § 81.08(a)-(b) (2008).
209
New York Passes Trans Fat Ban, MSNBC.COM (Dec. 5, 2006, 5:30 PM), http://
www.msnbc.msn.com/id/16051436/ns/health-diet_and_nutrition; see also Trans Fat Bans in
Restaurants, CTR. FOR SCI. IN THE PUB. INTEREST, http://www.cspinet.org/transfat/index.
html (last visited Feb. 3, 2011).
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recently commenced a sodium reduction campaign210 that is also
spreading across the nation.211 Third, NYC has just proposed its
newest initiative: banning the use of food stamps to purchase
sugary drinks.212
While there is a lot of recent criticism that section 4205
of the PPACA does not go far enough, our federal legislature
should be wary of emulating the local and state food laws that
go beyond mere information disclosure. Specifically, Congress
should be careful not to pass laws similar to these other NYC
food-targeting
health-initiatives
that
regulate
actual
consumption. As many commentators have recently questioned
where the legislative line should be drawn,213 this note suggests
that it should be drawn at educational mandates. While all of
NYC’s recent food laws are based on noble public goals, goals
that could decrease the prevalence of obesity, diabetes, and
other life-threatening epidemics in America, this note argues
that some things should not be regulated at all.
A.
Funding the Epidemics
It is no secret that American taxpayers are funding the
growth of obesity, diabetes, and hypertension in America.214 The
hypertension epidemic alone places a gigantic burden on our
210
Cutting Salt, Improving Health, NYC.GOV, http://www.nyc.gov/html/doh/html/
cardio/cardio-salt-initiative.shtml (last visited Feb. 3, 2011) [hereinafter Cutting Salt].
211
Legal and Policy Resources on Public Health “Winnable Battles,” Sodium
Reduction, CENTERS FOR DISEASE CONTROL AND PREVENTION, http://www2a.cdc.gov/
phlp/winnable/sodium_reduction.asp (last visited Feb. 3, 2011); see also Tiffany
O’Callaghan, Next on New York’s Health Agenda: Curbing Salt Intake (Jan. 11, 2010),
http://healthland.time.com/2010/01/11/next-on-new-yorks-health-agenda-curbing-saltintake (stating that the campaign “includes public health organizations from several
different cities (including Boston, Chicago, Los Angeles, Philadelphia, Seattle) and
states (including Alaska, Delaware, Michigan, North Carolina, Tennessee).”).
212
See Press Release, News from the Blue Room, Mayor Bloomberg and
Governor Patterson Propose Excluding Sugary Drinks from Food Stamp Purchases in
New York City (Oct. 7, 2010), http://www.nyc.gov (follow “News and Press Releases”
hyperlink; then follow “2010 Events” hyperlink; then “October 2010” hyperlink; then
scroll to “October 7, 2010”; then follow “Read the press release”) [hereinafter Sugary
Drinks Press Release].
213
See, e.g., Rodriguez-Dod, supra note 6, at 720 (“Should governments
intervene in a matter that is basically about choice? . . . Given the health crisis that the
world is facing, legislation and programs at all levels should be allowed and
encouraged.”); see also Scott Hensley, New York City Wants to Ban Food Stamps for
Sodas, NPR HEALTH BLOG (Oct. 7, 2010), http://www.npr.org/blogs/health/2010/10/07/
130399285/new-york-city-wants-to-ban-food-stamps-for-sodas; see also New York Passes
Trans Fat Ban, MSNBC.COM (DEC. 5, 2006), http://www.msnbc.msn.com/id/16051436/
ns/health-diet_and_nutrition.
214
See Cummings, supra note 6, at 287 (“Taxpayers already bear a significant
portion of the U.S. healthcare costs associated with obesity.”).
2011]
THE RULES OF CONSUMPTION
1083
healthcare system, with costs around $73.4 billion in just
2009.215 Moreover, even fifteen years ago, medical costs related
to obesity, which were partially funded by Medicaid and
Medicare, were around $78.5 billion per year.216 In fact, it has
been estimated that by 2018, “the annual medical burden of
obesity across all private and public payors [will] be as high as
$344 billion per year.”217 This increase in the cost of healthcare
is directly related to the increasing rates of obesity in our
country.218 Although the idea of billions of dollars is not as
shocking today as it once was,219 these startling statistics
perhaps may be the basis for an argument in the near future
claiming that the federal government should pass further
regulations like the NYC schemes discussed below.220 Although
many support such efforts, this kind of legislation damages the
foundation that makes our country America the free and
should not be considered by Congress.221
B.
NYC’s Uninspiring & Misguided Pursuits
Many have questioned whether NYC should enact such
paternalistic laws.222 Convincing arguments have been made on
both sides of the debate.223 On the one hand, as noted above, the
obesity crisis in America is out of control, costing citizens
billions of dollars as well as their lives. On the other hand, we
215
See A Population-Based Policy and Systems Change Approach to Prevent and
Control Hypertension, Institute of Medicine Consensus Report, INST. MED. NAT’L ACADS. (Feb.
22, 2010), http://www.iom.edu/Reports/2010/A-Population-Based-Policy-and-Systems-ChangeApproach-to-Prevent-and-Control-Hypertension.aspx.
216
Specifically, these federal health-insurance programs paid for about half of
these medical costs. See Castles, supra note 179 (citation omitted).
217
Id. (citation omitted). “Within the Centers for Medicare & Medicaid, the
Office of the Actuary provides annuals [sic] projections of health care spending for
categories within the National Health Expenditure Accounts. The National Health
Expenditure Accounts track health spending by source of funds . . . and by type of service
or service providers.” Id. at 1 n.4.
218
See id. at 1.
219
See id.
220
“[I]f Americans [do] not slim down as a result of menu labeling, the
government might require restaurants to take further action . . . and they’ll push for
more . . . . I don’t think this is taking us down a very appetizing course.” Rosenbloom,
supra note 158; see also Esther Choi, Trans Fat Regulation: A Legislative Remedy for
America’s Heartache, 17 S. CAL. INTERDISC. L.J. 507, 538 (2008).
221
“Derogative generalities such as the ‘nanny state,’ ‘big brother,’ and ‘food
police’ are some of the characterizations used by citizens who oppose government
regulation . . . .” Cummings, supra note 6, at 290-91.
222
See, e.g., Spivey, supra note 197, at 306 (“Does [New York City] have the
power to enact this ban? . . . Should New York City enact this ban?”).
223
See generally id.
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live in a country that is founded on few, but vital and
fundamental, principles stemming from our federal
Constitution. In the advent of the passage of the PPACA, and
realistic threat of more paternalistic legislation passing in the
future, this note sides with the latter in the debate.
1. The Paternalistic Schemes
This section offers a brief description of the three abovementioned NYC schemes and explains why they are inherently
unconstitutional. The justification provided by NYC for each of
these initiatives is that it would directly and effectively combat
the startling and increasing rates of obesity, diabetes, and
hypertension amongst its citizens.224
a. Trans-Fat Ban
In one of the most intrusive forms of government
involvement to date, on December 5, 2006, NYC passed a
regulation225 that restricts all restaurants that hold a permit by
the NYC Health Department226 from including more than 0.5
grams of artificial trans fats per serving227 in both food
preparation and food served.228 However, the ban does not
regulate natural trans fats, like those in dairy products or red
meats.229 This amendment to the Health Code became effective
on July 1, 2007, and allowed for a phase-in period of several
months—between six and eighteen—depending on the use of
trans fat in the establishment and the type of food it served.230
224
See Sugary Drinks Press Release, supra note 212; see also Cutting Salt,
supra note 210; The Regulation to Phase Out Artificial Trans Fat in New York City
Food Service Establishments, NYC.GOV, http://www.nyc.gov/html/doh/downloads/pdf/
cardio/cardio-transfat-bro.pdf (last visited Feb. 3, 2011) [hereinafter Trans Fat Ban].
225
N.Y.C., N.Y., HEALTH CODE tit. 24, § 81.08(a)-(b) (2008).
226
Trans Fat Ban, supra note 224.
227
This note does not discuss trans fats and the associated health risks in any
detail; to learn more about this, see id.; see also The Campaign to Ban Partially
Hydrogenated Oils, BAN TRANS FATS, http://www.bantransfats.com/abouttransfat.html
(last visited Feb. 3, 2011).
228
See Trans Fat Ban, supra note 224.
229
Id.
230
See, e.g., Cardiovascular Disease Prevention, NYC.GOV, http://www.nyc.
gov/html/doh/html/cardio/cardio-transfat-healthcode.shtml (last visited Feb. 3, 2011)
(“[R]estaurants had until July 1, 2007, to make sure that all oils, shortening and
margarine containing artificial trans fat used for frying or for spreads have less than
0.5 grams of trans fat per serving. Oils and shortening used to deep fry yeast dough
and cake batter were not included in the first deadline. The second deadline was July
2011]
THE RULES OF CONSUMPTION
1085
NYC, again, was the first city in the country to enact such a
ban,231 because, “[b]ased on the most conservative estimates,
artificial trans fat kills at least 500 New Yorkers each
year . . . .”232
b. Sodium-Reduction Initiative
On January 11, 2010, the Board of Health released the
“National Salt Reduction Initiative,” which targets restaurants
and FSEs and asks them to voluntarily reduce the salt levels in
fare offered.233 NYC has appointed itself leader of this
movement, seeking to reduce salt levels in both packaged and
restaurant foods over the next five years by twenty-five
percent.234 This initiative, if successful, could cut our national
sodium intake by twenty percent.235 Unlike the mandatory trans
fat ban, this scheme is currently voluntary.236 On the one hand,
it is difficult to determine when this campaign will transform
into a regulation, as many believe that it will not have a
serious impact on national health because it does not seek to
decrease sodium content enough.237 On the other hand, this
campaign looks a lot like NYC’s original movement to cut trans
fat from restaurant fare, which only became enforced after it
did not work as a voluntary scheme.238 Accordingly, this note
predicts that the sodium-reduction scheme will be compulsory
in the very near future.
1, 2008. By that date, all foods containing artificial trans fat must have less than 0.5
grams of trans fat per serving.”).
231
New York Passes Trans Fat Ban, MSNBC.COM, http://www.msnbc.msn.com/
id/16051436/ns/health-diet_and_nutrition (last visited Feb. 3, 2011).
232
See Cardiovascular Disease Prevention, supra note 230.
233
Tyler Anderson, Hold the Salt: The Gathering Push for Sodium Reduction in
Food Products, FOOD LIABILITY L. BLOG (Jan. 15, 2010), http://www.foodliabilitylaw.com/
2010/01/articles/legislation-2/hold-the-salt-the-gathering-push-for-sodium-reduction-in-foodproducts.
234
Id.
235
Id.
236
Cutting Salt, supra note 210; see also William Neuman, Citing Hazard, New
York Says Hold the Salt, N.Y. TIMES (Jan. 11, 2010), http://www.nytimes.com/2010/01/11/
business/11salt.html?_r=1.
237
See, e.g., Tom Randall & Shannon Pettypiece, New York Pushes for 25%
Salt Reduction in U.S. Foods, BLOOMBERG (Jan. 11, 2010), http://www.bloomberg.com/
apps/news?pid=21070001&sid=aMAGgUeMSmr4.
238
Neuman, supra note 236.
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c. Food Stamp Restriction
On October 10, 2010, NYC embarked on its most recent
“public health push” when it asked the federal government to
allow it to pass legislation that would ban citizens from using
their food stamps to purchase sugary drinks that contain
greater than ten calories per cup.239 But the law would not
regulate beverages that do not contain added sugar, like juice
or milk.240 Presently, the food stamp system, which has been in
place for over fifty years, “does not . . . restrict any other foods
based on nutrition.”241 The only limitations on food stamps are
that they may not be used to purchase “alcohol, cigarettes or
items such as pet food, vitamins or household goods.”242 The
intention of the food stamp program is to aid those who need
assistance, and not to dictate what they should or should not
eat.243 Today, 1.7 million NYC residents receive food stamps and
spend about $135 million a year on sugary drinks.244
2. Due Process Concerns
Many NYC restaurant owners and patrons have
opposed these campaigns and expressed their discontent with
the government dictating what they can serve or eat.245 What
these dissatisfied citizens likely do not realize, however, is that
they are victims of more than just frustration, because with
each enactment of these paternalistic schemes, they have also
had one of their most fundamental rights violated. At the core
of the problem is that American citizens have a right to
privacy,246 and within that right, the privilege to determine
what enters their bodies—or, in other words, to decide what
239
See Sugary Drinks Press Release, supra note 212; see also Hensley, supra
note 213.
240
Hensley, supra note 213.
NY Seeks to Ban Sugary Drinks from Food Stamp Buys, AETNA INTELIHEALTH,
http://www.intelihealth.com/IH/ihtIH/EMI/333/8015/1377711.html (last visited Feb. 3, 2011).
242
Id.
243
See, e.g., Keep the Fizz in Foodstamps, L.A. TIMES (Oct. 19, 2010, 2:00 AM),
http://www.newsobserver.com/2010/10/19/747915/keep-the-fizz-in-food-stamps.html.
244
Terry J. Allen, Should Food Stamps Be Used for Soda?, ALTERNET (Dec. 7,
2010), http://www.alternet.org/vision/149116/should_food_stamps_be_used_for_soda.
245
Arun Kristian Das, Chefs Call Proposed New York Salt Ban ‘Absurd,’ MYFOXNY
(Mar. 11, 2010), http://www.myfoxny.com/dpp/news/local_news/new_york_state/chefs-call-prop
osed-new-york-salt-ban-absurd-20100310-akd (“[C]hefs and restaurant owners . . . are tired of
politicians dictating what they can serve and what people can eat. They have opposed the city’s
anti-sodium and anti-trans fat campaigns.”).
246
See Griswold v. Connecticut, 381 U.S. 479, 483 (1965).
241
2011]
THE RULES OF CONSUMPTION
1087
they will or will not consume. Although many have opined that
NYC has acted within its broad police powers to preserve
public health and therefore has not overstepped its
boundaries,247 these arguments fail to recognize that the abovementioned regulation and pursuits offend our federal laws and
are unconstitutional.
Although these regulations and pursuits would not
likely violate the Commerce Clause248 or the Equal Protection
Clause249 of our federal Constitution, all of these initiatives that
go beyond information disclosure violate the Due Process
clauses.250 The Due Process clauses of the Fifth and Fourteenth
Amendments mandate that neither the federal government nor
any state “shall . . . deprive [any person] of life, liberty, or
property without due process of law.”251 Similar to the First
Amendment analysis discussed in Part III of this note,252 courts
decide challenges based on substantive due process using levels
of scrutiny to determine how much protection it will afford to
the right in question.253 Not all of our privileges as citizens are
explicitly stated in the federal Constitution itself, but the Court
has commonly found that the fundamental rights recognized in
its jurisprudence are implicitly contained therein.254 The Court
247
See generally Spivey, supra note 197, at 293-94.
See id. at 294, 306. The only way, it seems, that such federal action could
be problematic is if these issues were deemed by a federal court to be strictly of state
concern, and thus the federal scheme would violate the Tenth Amendment. See
Flesichhacker & Gittelsohn, supra note 183, at 35; see also Sarah Romero, Local Bans
on Trans Fats: A New (and Legal) Way Forward, HARV. L. & POL’Y REV. (Apr. 5, 2007),
http://hlpronline.com/2007/04/transfat. For an argument to the contrary, see Katharine
Kruk, Of Fat People and Fundamental Rights: The Constitutionality of the New York
City Trans-Fat Ban, 18 WM. & MARY BILL RTS. J. 857, 864 (2010).
249
Does New York City’s Trans-Fat Ban Go Too Far?, supra note 207; see also Is
the New York City Board of Health’s Ban on Trans Fats in Restaurants Constitutional?,
HELIUM: USNEWS (Apr. 24, 2008), http://www.helium.com/items/1015112-is-the-new-yorkcity-board-of-healths-ban-on-trans-fats-in-restaurants (“The Equal Protection Clause
prohibits invidious discrimination, such as racial discrimination. ‘People in New York City’
or ‘people who like to eat trans fats’ are a far cry from the types of victims that the 14th
Amendment was designed to protect. The Equal Protection Clause does not apply.”).
250
This note focuses solely on the substantive due process rights of American
citizens that may be violated, and does not cover any economic due process
infringements committed against the restaurant industry. For a discussion on whether
a challenge brought against the New York City trans fat ban on economic due process
grounds would be successful, see Kruk, supra note 248, at 866-67 (“[C]ourts would
likely decline to overturn the trans-fat ban based on an alleged infringement of the
substantive, economic due process rights of New York City restaurateurs.”).
251
U.S. CONST. amends. V, XIV.
252
See supra text accompanying notes 74-100.
253
See Kruk, supra note 248, at 864.
254
See, e.g., Palko v. Connecticut, 302 U.S. 319, 325 (1937) (stating that these
rights are “implicit in the concept of ordered liberty”).
248
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has found that substantive due-process rights are two-fold: the
right must be “deeply rooted in [the] Nation’s history and
tradition,”255 and it must be carefully described.256 If the Court
determines that the legal interest being challenged is a
fundamental right, the challenged restriction on the right will
be subject to the highest level of scrutiny.257
The Court has decided many cases regarding “the right
to privacy and other constitutionally-guaranteed, fundamental
rights” and it has evaluated each of these cases “under the
framework of strict scrutiny,” which, is the ultimate safeguard
of due process rights.258 Most notably, the Court has applied
strict scrutiny to a woman’s right to an abortion,259 which could
be indicative of a fundamental right of Americans to control
what does or does not enter their bodies.260 Each of the three
recent NYC initiatives restrains the ability of residents to
make their own consumption decisions; that is, to decide what
ingredients or food products may or may not enter their bodies.
If Congress responds to the recent critiques of section 4205 of
the PPACA261 by emulating these NYC laws, it is likely that it
would be challenged as infringing on the guarantees of the due
process clause.262 This note predicts that the Court would strike
down any such additions or amendments as unconstitutional.
It is likely that the Court would analyze the addition of
any paternalistic restriction under strict scrutiny because these
255
Moore v. City of E. Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion);
see also Palko, 302 U.S. at 325.
256
See, e.g., Reno v. Flores, 507 U.S. 292, 302 (1993).
257
See Palko, 302 U.S. at 325.
258
Kruk, supra note 248, at 864 & n.57 (citing Planned Parenthood of Se. Pa.
v. Casey, 505 U.S. 833, 845-48 (1992) for the idea that the Constitution guarantees “a
realm of personal liberty which the government may not enter”).
259
See Planned Parenthood, 505 U.S. at 845-48; see also City of Akron v.
Akron Ctr. for Reproductive Health, Inc., 462 U.S. 416, 427 (1983); Roe v. Wade, 410
U.S. 113, 154-56 (1973).
260
See generally Control Over One’s Body Not Just Right of Pregnant Women,
STATE NEWS (Oct. 15, 2010), http://www.statenews.com/index.php/article/2008/10/
control_over_ones_body_not_just_right_of_pregnant_women (“[A]n adult has the basic
right of controlling his or her own body. . . . [T]his also must include controlling all of
one’s own body, not just abortion.”); see also Kruk, supra note 248, at 865 (“Healthrelated rights are generally considered to be part of the bundle of privacy rights that
are given strict scrutiny in the Due Process Clause context . . . protecting the
Fourteenth Amendment’s ever-evolving realm of personal liberty.” (internal quotation
marks omitted)).
261
Many articles have critiqued the federal government for not going far
enough with the law. See, e.g., Schulman, supra note 6.
262
As the federal equivalent of these laws is unconstitutional, for the same
reasons this note contends that the law passed by NYC is equally unconstitutional.
2011]
THE RULES OF CONSUMPTION
1089
NYC initiatives infringe a fundamental right. Assuming that
the Court would find that the “right to make dietary
decisions”263 or the right to determine what enters your body is
a fundamental right,264 to survive strict scrutiny analysis the
government would have to set forth a compelling justification
for its law, showing the gravity of its interest in passing the
law and that the regulation has been as narrowly-tailored as
possible.265 To be narrowly tailored, the challenged legislation
cannot be either overinclusive or underinclusive in its scope.266
The government’s proposed rationale would be the same
as the rationale for its menu calorie-disclosure provision: to
improve the health of citizens by decreasing rising national
epidemics.267 Although this goal of reducing the prevalence of
serious national epidemics would most likely be found to be
compelling,268 the government’s position would certainly fail on
the narrow-tailoring prong of the analysis, as each of these
measures are underinclusive.269
263
Kruk, supra note 248, at 871.
See Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (discussing the
importance of fundamental rights in the realm of personal-health choices).
265
See, e.g., Lawrence v. Texas, 539 U.S. 558, 593 (2003) (Scalia, J., dissenting)
(“Our opinions applying the doctrine known as ‘substantive due process’ hold that the
Due Process Clause prohibits States from infringing fundamental liberty interests, unless
the infringement is narrowly tailored to serve a compelling state interest.”).
266
See, e.g., Kenneth W. Simons, Overinclusion and Underinclusion: A New
Model, 36 UCLA L. REV. 447, 478 (1989) (“Under strict scrutiny, apparently any
overinclusion or underinclusion is too much.” (citing Arkansas Writers’ Project v. Ragland,
481 U.S. 221, 231 (1987); Kramer v. Union Free School Dist., 395 U.S. 621, 632 (1969))).
267
See generally Press Release, FDA, FDA Releases Guidance on Federal Menu
Labeling Requirements (Aug. 24, 2010), available at http://www.fda.gov/NewsEvents/
Newsroom/PressAnnouncements/ucm223880.htm. The rationale underlying the New
York City trans fat law sheds some guidance on what the purported federal justification
would be. The Board of Health stated that
264
[t]his amendment to the Health Code is promulgated pursuant to §§ 558 and
1043 of the Charter. Section 558(b) and (c) of the Charter empowers the
Board of Health to amend the Health Code and to include in the Health Code
all matters to which the Department’s authority extends. Section 1043 grants
the Department rule-making authority.
N.Y.C. DEP’T OF HEALTH & MENTAL HYGIENE, BD. OF HEALTH, NOTICE OF ADOPTION OF
AN AMENDMENT (§ 81.08) TO ARTICLE 81 OF THE NEW YORK CITY HEALTH CODE 1 (2006)
[hereinafter NOTICE OF ADOPTION 3].
268
The Court has previously held that safeguarding the public health is a
compelling interest. See Roe v. Wade, 410 U.S. 113, 147-64 (1973); see also Church of
Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 538 (1993) (stating, in dicta, that
protecting the public interest is a legitimate governmental interest).
269
Kruk, supra note 248, at 873 n.137 (“An underinclusive statute is one that
fails to extend to all matters that should properly be addressed by a particular
ordinance or regulation.”).
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First, the trans fat law is underinclusive as it only
regulates artificial trans fats.270 Artificial trans fats only
account for 80% of trans fats used in food preparation in
restaurants and FSEs;271 and so the ban, in its current form,
“only applies to four-fifths” of the problem.272 Clearly, the ban
could be more narrowly tailored if it applied to currently
exempt items such as natural trans fats, products sold in
grocery stores, and/or food sold in restaurants in their original
packaging.273 As these items are not included in the regulation,
it follows that only a limited and specific portion of trans fats
are being regulated, meaning that the ban is not narrowly
tailored.
Second, it has been argued that the salt-reduction
campaign does not go far enough to make any real difference as
it only bans a minimal amount of sodium in regulated
products.274 Likewise, the voluntary scheme only targets about
75 to 80 percent of the average person’s daily salt intake.275 In
addition, the sodium-reduction campaign does not target table
salt, which may still be placed on tables at these
establishments, ready for consumer overuse.276 Accordingly, this
scheme is also poorly tailored.
Finally, there is no doubt the Court would find that the
food-stamp proposal is inadequately tailored. To start, this
scheme only applies to a particular class of people, those using
food stamps, and fails to regulate all other persons who do not
use food stamps. Also, the ban would prevent the use of food
stamps to purchase soda and other sugary drinks, but still
allows for the purchase of other unhealthy and very sugary
foods.277 Thus, like the trans fat ban and sodium-reduction
270
N.Y.C., N.Y., HEALTH CODE tit. 24, § 81.08(a)-(b) (2008).
NOTICE OF ADOPTION 3, supra note 267, at 2.
272
Kruk, supra note 248, at 874.
273
See N.Y.C., N.Y., HEALTH CODE tit. 24, § 81.08(a)-(b).
274
See, e.g., Randall & Pettypiece, supra note 237 (“The salt reduction won’t
have as much impact on national health as [other initiatives like the calorie law and the
trans fat law]. . . . A 50 percent reduction would be more appropriately ambitious.”).
275
Chuck Bennett, Food-Nanny Mike Declares War on Salt in NYers Diets, N.Y.
POST (Jan. 11, 2010), http://www.nypost.com/p/news/local/food_nanny_mike_to_ny_halt_
the_salt_XpeycWZo3bLV2ODxFkv8VM.
276
Id.
277
See Sherry F. Colb, No Buying Soda with Food Stamps? Considering Mayor
Bloomberg’s New Health Initiative, FINDLAW (Oct. 27, 2010), http://writ.news.findlaw.
com/colb/20101027.html (stating that there are “two under-inclusiveness problems
involved in cutting sodas out of Food Stamp eligibility—as to the targeted population
(only people receiving food stamps, rather than everyone in [NYC]) and as to the targeted
products (sugary sodas, instead of all unhealthy foods)”).
271
2011]
THE RULES OF CONSUMPTION
1091
pursuit, this measure would likely be struck down as
unconstitutional.
C.
The Better Solution: Mandate More Educational
Programs
The federal menu calorie-disclosure law is a great start,
but, as discussed above, Congress should avoid copying all of
the NYC food-based health initiatives. Instead, our federal
government should continue to explore other edifying,
information-disclosure methods for regulation, as these
methods do not compromise any fundamental rights
guaranteed in our federal Constitution.278 This section discusses
how the federal government has already implemented and
should continue to adopt educational methods to combat our
national epidemics.
In a 2003 speech, a former United States Surgeon
General coined the phrase “health literacy,” which is “the
ability of an individual to understand, access, and use healthrelated information and services.”279 Even before its new menu
calorie-disclosure law, our federal government has taken this
health-literate approach towards educating the public about
their food choices. For example, the FDA enacted a rule in
2006, which requires all manufacturers of food products to
state on the product’s Nutrition Facts label, in a separate line
immediately under the statement of the product’s saturated
fats, the amount of trans-fatty acids it contains.280 This
legislation, functionally speaking, does not “ban nor reduce the
amount of trans-fats present in grocery store food. . . . [but
rather] simply serve[s] to make consumers aware of what they
are eating.”281 Thus, this recent regulation recognizes that
American citizens should be informed about how much trans
fat is contained within the food they purchase and does not
create the same legal predicament as the NYC trans fat ban.
The principle is simple: instead of telling the public
what to consume, teach them about what they are consuming
so that they can make informed choices. This note urges
278
For a fantastic discussion of the appeal of information disclosure laws and
their effects, see Winkles, supra note 133, at 557-72.
279
Vice Admiral Richard H. Carmona, U.S. Surgeon Gen., Remarks at the Am.
Enter. Inst. Obesity Conference (June 10, 2003), available at http://www.surgeongeneral.gov/
news/speeches/obesity061003.htm; see also Rodriguez-Dod, supra note 6, at 725.
280
See 21 C.F.R. §§ 101.1-.106 (2006).
281
Kruk, supra note 248, at 862.
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Congress to continue to enact mandates similar to the FDA’s
trans-fat-disclosure law and the PPACA’s menu caloriedisclosure provision, as they will educate our nation without
infringing on fundamental rights. Most importantly, by
increasing society’s knowledge through these measures, the
federal government could potentially influence patrons to
demand healthier options from regulated establishments,
which would slowly eradicate our frightening national
epidemics, without sacrificing America the free.
VI.
CONCLUSION
The legal and social successes of Regulation 81.50
served as important inspiration for our federal government. As
obesity and diabetes have become national health concerns,
NYC pioneered a crucial step towards a healthier America.
With simple calorie disclosure, consumers are educated about
their food choices but still maintain the option of ignoring this
nutritional information. Thus, although their enjoyment of
their fare may be compromised, they still get to decide what
they consume. Unfortunately, NYC’s other recent food-based
health initiatives have headed down a dangerous and
unconstitutional path. NYC’s recent schemes undermine the
very foundation of one of the most important rights granted to
all citizens by our federal Constitution. For that reason,
Congress should not attempt to emulate these initiatives, but
should instead focus its attention on creating more educational,
information-disclosure regulations. It is these instructive
mandates that will benefit our nation most of all.
Victoria Bettina Browne†
†
J.D. Candidate, Brooklyn Law School, 2011; Chef’s Certificate in Culinary
Arts, Institute of Culinary Education, 2008; B.A., Wesleyan University, 2007. I would like
to thank the Brooklyn Law Review staff for their incredible assistance. I would also like to
thank my wonderful husband, Evan, for his brilliant input and guidance. I would also like
to thank my father, Dr. Jeffrey Kessler; my mother, Ilana Kessler; my three brothers,
Andrew Schwartz, James Kessler, and Ian Kessler; my two sisters-in-law, Jennifer
Schwartz and Jessica Kessler; my niece and nephew, Daniela and Alexander Schwartz,
and my in-laws, Dr. Terry and Patricia Browne, for providing me with the most
invaluable support system. Finally, I would like to thank my friends for inspiring me to
write about what I love.
The International Trade Commission
and Changes to United States Patent
Law
I.
INTRODUCTION
The legal protection of ideas is by no means a novel
concept. The history of patent law and intellectual property can
be traced to England’s Statute of Monopolies enacted in 1623.
And the notion that valuable discoveries should be protected by
law has been documented as far back as the fourth century BC
in writings such as Aristotle’s Politics.1 It is debatable as to
where the proper balancing point lies between allowing
inventors to adequately profit from their inventions and
requiring them to share their knowledge with the public.
Evidence has demonstrated, however, a strong correlation
between idea protection and innovation.2 The system of patent
protection in the United States has evolved a great deal since its
initiation, but a number of principles remain at its core. Among
these are the promotion of inventiveness,3 the protection of
property and personhood,4 and the safeguarding of national
industries.5 It is the last of these goals—the topic of this note—
that was of great concern to our country’s leaders when they
first created the International Trade Commission (ITC) and
expanded its powers over international trade and relations.6
The ITC was created in 1974 to help the United States
manage its international trade laws, with one of its chief
1
ROBERT PATRICK MERGES & JOHN FITZGERALD DUFFY, PATENT LAW AND
POLICY: CASES AND MATERIALS 1-5 (4th ed. 2007).
2
Id. at 9-10 (citing ERIC SCHIFF, INDUSTRIALIZATION WITHOUT NATIONAL
PATENTS: THE NETHERLANDS 1869-1912; SWITZERLAND 1850-1907 (1971)) (providing
statistical evidence that the reintroduction of a patent system in the Netherlands in
1912 spurred Dutch inventiveness).
3
ALAN L. DURHAM, PATENT LAW ESSENTIALS: A CONCISE GUIDE 2-3 (3d ed. 2009).
4
Id.
5
Sapna Kumar, The Other Patent Agency: Congressional Regulation of the
ITC, 61 FLA. L. REV. 529, 547 (2009).
6
Colleen V. Chien, Patently Protectionist? An Empirical Analysis of Patent
Cases at the International Trade Commission, 50 WM. & MARY L. REV. 63, 67 (2008).
1093
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priorities being to promote our country’s competitiveness in the
global marketplace.7 Despite its recent creation, the ITC’s concern
for our national industries reflects deep and historic American
sentiments of nationalism that predate the birth of our nation. A
multitude of statutes and protocols have been enacted in this vein
over the course of our country’s existence.8 One of the broadest of
these initiatives was the 1930 Trade Act, which first introduced
intellectual-property measures to assist in the protection of the
U.S. economy, essentially allowing entities to block the
importation of goods if the effect or threat of such importation
would injure American industry.9 Section 337 of the Trade Act
allows parties to address their concerns through administrative
proceedings, specifically targeting improper importation of goods
into the United States, and these powers were placed under the
ITC’s jurisdiction upon its creation.10 Often, complaints brought
before the ITC against importers take the form of intellectual
property disputes—namely, claims of patent infringement or
patent invalidity.11 When Congress granted the ITC jurisdiction to
address these issues, it effectively created—for the first time in
U.S. history—a venue other than the federal courts to litigate
patent disputes.12
The ITC is much more than just a second venue,
however, and section 337 proceedings differ greatly from federalcourt proceedings. One major disparity is that the ITC has in
rem jurisdiction over articles imported into the United States.13
This power allows for charges to be brought against an alleged
infringer even if personal jurisdiction is not available.14
7
About the USITC, U.S. INT’L TRADE COMM’N, http://www.usitc.gov/press_
room/about_usitc.htm (last visited Feb. 1, 2010) (“The mission of the Commission is to (1)
administer U.S. trade remedy laws within its mandate in a fair and objective manner; (2)
provide the President, USTR, and Congress with independent analysis, information, and
support on matters of tariffs, international trade, and U.S. competitiveness; and (3)
maintain the Harmonized Tariff Schedule of the United States (HTS).”).
8
Chien, supra note 6, at 66. Evidence of this sentiment existed as early as
the 1770s, with the seizure of underpriced Indian tea during the Boston Tea Party in
efforts to protect the colonies’ local tea market. Id.
9
Id. at 67.
10
19 U.S.C. § 1337 (2000).
11
Kumar, supra note 5, at 544.
12
Douglas P. Martin, Preclusive Effect of Factual Determinations of the
International Trade Commission with Regard to Patent Matters, 62 U. CHI. L. REV. 885,
885-86 (1995).
13
Russell E. Levine & James B. Coughlan, United States Intellectual
Property Litigation and the ITC, IP VALUE (2004), http://www.kirkland.com/siteFiles/
kirkexp/publications/2433/Document1/Levine%20(Globe%20White%20Page).pdf.
14
Id.
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THE ITC AND CHANGES TO U.S. PATENT LAW
1095
Additionally, in section 337 proceedings an administrative law
judge—rather than a jury—is the finder of fact, the timeframe
for litigation and trial is limited, and parties are restricted to
suing for injunctive relief.15 Due to the multitude of disparities
between cases brought in the ITC and cases brought in federal
courts, problems have arisen. Specifically, cases brought before
the ITC pursuant to section 337 are diverging from the ITC’s
primary goal of providing protection to American industries.16
Commentators have also raised concerns that these proceedings
may violate international law.17 In addition, studies show that
proceedings before the ITC improperly favor patent holders18 and
promote inefficiencies in the patent system.19 Furthermore,
because the federal courts do not give ITC cases preclusive
effect, judicial resources are wasted.20
This note argues that this alternate patent-dispute forum
is wreaking havoc on the U.S. patent system, and suggests a
possible solution through elimination of ITC patent litigation
and large-scale amendments to patent law. The following
sections address the complex issues presented. First, Part II of
this note provides a short history of patent law in the U.S.
federal courts. Part III discusses the creation of the ITC and its
power to hear patent disputes, and offers an in-depth analysis of
the differences between federal court and ITC proceedings. Next,
Part IV explores the problems created by ITC patent cases and
their effect on U.S. patent law. Finally, Part V offers a solution
to these problems by suggesting the government initiate a
holistic amendment plan. This plan includes eliminating patent
practice before the ITC and adopting suggested changes under
the proposed Patent Pilot Program, creating a more specialized
district-court system to hear patent cases.21 In addition, the
15
Id.
Robert W. Hahn & Hal J. Singer, Assessing Bias in Patent Infringement
Cases: A Review of International Trade Commission Decisions, 21 HARV. J.L. & TECH.
457, 470 (2008).
17
Robert G. Krupka, International Trade Commission Patent Litigation: A
Unique Experience, in PATENT LITIGATION 1994, at 709, 731 (PLI Patents, Copyrights,
Trademarks & Literary Prop. Course Handbook Ser. No. G4-3929, 1994).
18
Hahn & Singer, supra note 16, at 490.
19
Chien, supra note 6, at 71.
20
J. Brian Kopp, Note, In Re Convertible Rowing Exerciser Patent Litigation:
Should ITC Patent Decisions Be Given Preclusive Effect in District Courts?, 24
CORNELL INT’L L.J. 357, 357 (1991).
21
Adam Shartzer, Patent Litigation 101: Empirical Support for the Patent
Pilot Program’s Solution to Increase Judicial Experience in Patent Law, 18 FED. CIR.
B.J. 191, 191 (2009).
16
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solution recommends that the federal courts adopt some of the
beneficial aspects of ITC practices, including in rem jurisdiction
and eased standards by which injunctive relief is awarded.
II.
BACKGROUND OF PATENT LAW IN UNITED STATES
FEDERAL COURTS
In the United States, the founding fathers thought that
intellectual property was important enough to explicitly protect
it in the Constitution, providing that “Congress shall have
Power . . . to promote the Progress of Science and useful Arts,
by securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries.”22
The first U.S. Patent Act was passed in May 1790,23 and the
first patent was issued within months of its passage.24 Cases
involving patent issues were treated no differently than other
federal cases, and could be brought to the district court and
appealed up through the federal court system. It was not until
the 1836 revision of the Patent Act that a formal system of
examination was put into place, setting the stage for the
current system of patent prosecution and examination that we
know today.25 Over the next century and a half, the number of
cases brought before the federal courts grew immensely, and it
was not until the creation of the Court of Appeals for the
Federal Circuit in 1982 that the next vital change in U.S.
patent law was initiated.26 After this change, all federal courts
were still permitted to hear patent cases, but any appeals
would now be heard by the newly created Court of Appeals for
the Federal Circuit.27 Since this time, no other modifications
have been made to the U.S. federal-court system with respect
to patent-related cases. The U.S. federal courts were, until very
recently, the only venue in which to commence patent cases
22
U.S. CONST. art. I, § 8.
Patent Act of 1790, ch. 7, 1 Stat. 109, 109-112 (1790) (codified as amended
at 35 U.S.C. §§ 1-376 (2006)).
24
The first patent was issued to Samuel Hopkins of Philadelphia on July 31, 1790,
for the process of making potash from wood ashes. MERGES & DUFFY, supra note 1, at 8.
25
Id. In the world of patents, the term “prosecution” refers to the application
process through which patents are obtained. Id. at 50.
26
Id. at 11. The U.S. Court of Appeals for the Federal Circuit was created in
response to divergent trends being set by various circuits throughout the United
States. Id. By creating a single, unified court of appeals that would handle all appeals
involving patent matters, differences in the law could be unified, and alterations to the
patent doctrine could be established as believed necessary. Id.
27
Id.
23
2011]
THE ITC AND CHANGES TO U.S. PATENT LAW
1097
and still remain the most prominent arena for the protection of
patents.28
III.
ITC JURISDICTION—AN ALTERNATE VENUE IS CREATED
The formation of the ITC and subsequent congressional
changes to its function have created a unique and appealing
alternate forum for patent litigation. The numerous procedural
distinctions between cases held before the ITC and those before
federal courts provide for a different, and often preferred,
environment for rights holders, leading to an increase in its
popularity in recent years.29
A.
History of the ITC
The ITC was created by Congress as part of the Trade
Act of 1974.30 One of the ITC’s purposes is to provide remedies
for unfair trade practices, and in order to ensure its
effectiveness, Congress granted it expansive jurisdiction and
remedial powers.31 Consequently, the ITC became an alternate
and appealing venue for intellectual property cases, in which
domestic producers may assert their rights to exclude
infringing products from importation into the United States.32
The ITC is responsible for administering a statute called
Unfair Practices in Import Trade,33 commonly referred to as
“section 337.”34 Section 337 was originally created with the
Tariff Act of 1930 but was largely ignored for decades after its
passage.35 The ability to effectively exclude infringing products
was hindered by its requirement that the President be involved
in the process, making it both very cumbersome and
28
Id.
Bryan A. Schwartz, Where the Patent Trials Are: How the U.S.
International Trade Commission Hit the Big Time as a Patent Litigation Forum, 20
INTELL. PROP. L. NEWSL. 1, 1 (2002).
30
Trade Act of 1974, Pub. L. No. 93-618, 88 Stat. 1978 (1975).
31
Martin, supra note 12, at 885. This power included the ability to
investigate unfair practices in import trade through all legal and equitable defenses
brought before it. 19 U.S.C. § 1337(c) (1988).
32
Martin, supra note 12, at 885.
33
19 U.S.C. § 1337.
34
Gilbert B. Kaplan & Courtland Reichman, The ITC or the District Court?—
Where to Protect Your International Intellectual Property, BRIEFLY, Nov. 2006, at v.
35
Krupka, supra note 17, at 709.
29
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inefficient.36 However, Congress remedied this issue by creating
of the ITC, which transferred exclusion power from the
President to the commission in 1974.37
After its creation, section 337 proceedings have been
used to halt the importation of goods that infringe U.S. patents
at an ever-increasing pace.38 In 1988, section 337 was further
amended to increase its effectiveness and availability of use
through the Omnibus Trade and Competitiveness Act.39 These
amendments effectively eased the burden of establishing a
patent-infringement
violation
by
dropping
several
requirements for patent holders filing complaints.40 These
changes made it cheaper to litigate patent cases before the ITC
and expanded patent holders’ access to the forum. As a result,
the number of patent cases that were brought before the ITC
began to increase.41 The number of cases has climbed from only
nine complaints filed in 1999 to forty complaints in 2008,
representing an increase of over 400% in only ten years.42 This
increase in patent-related cases before the ITC is beginning to
have drastic effects on patent law within the United States,
and the rise in popularity of the venue has shown little, if any,
sign of waning.
36
Id. at 710. The Tariff Commission was empowered to investigate unfaircompetition complaints and make recommendations to the President, who had statutory
authority to increase tariffs or ban products from importation altogether. Id.
37
Id. In addition to the transfer of powers to the ITC, other amendments
were also passed that made the use of section 337 a viable alternative to federal court
cases. These amendments (1) included the provision for faster relief by imposing a
twelve- to- eighteen-month limit on decisions (this requirement was later revoked
through amendments made in 1994), (2) increased the reliability of proceedings by
creating formal-adjudication provisions, and (3) made available patent-invalidity and
unenforceability defenses. Donna M. Tanquay & Audrey M. Sugimura, Patent
Litigation Before the ITC, in PATENT LITIGATION, supra note 17, at 747, 754.
38
Schwartz, supra note 29, at 1.
39
See Omnibus Trade and Competitiveness Act of 1988, § 1, 19 U.S.C. § 2901
(1988).
40
Kumar, supra note 5, at 548-49. Prior to the amendments, the Act required
that a patent holder engage in a domestic industry, that the industry was “efficiently
and economically operated,” and that the importation of the goods would substantially
injure the industry. 19 U.S.C. § 337(a) (1987). The 1988 Act eliminated the second and
third requirements for intellectual-property-infringement cases. Kumar, supra note 5,
at 549.
41
Kaplan & Reichman, supra note 34, at v.
42
All section 337 cases before the ITC are available online at http://www.
usitc.gov.
2011]
B.
THE ITC AND CHANGES TO U.S. PATENT LAW
1099
Distinctions Between Federal Courts and the ITC
The most obvious distinction between decisions
rendered by the ITC and those by U.S. federal courts is that
the ITC is an independent federal agency.43 It is not tied to the
judicial or legislative branches, or to any other department of
the executive branch.44 It is presided over by six commissioners
appointed by the President who each serve nine-year terms.45 In
addition to this evident distinction, further significant
substantive and procedural differences exist in almost every
aspect of a proceeding before the ITC when compared to
federal-court cases.46
1. Required Showing of Domestic Industry
One important difference in ITC hearings is the
requirement to show that a domestic industry exists.47
Specifically, the ITC requires that an industry relating to the
product protected by patent exists or is in the process of being
established in the United States, in addition to the elements
necessary to establish a claim of patent infringement.48 At one
time, the domestic-industry requirement served as a significant
hurdle that plaintiffs had to clear before filing a patent
infringement suit before the ITC,49 barring suit unless the
importation of the goods would destroy, substantially injure, or
prevent the establishment of an industry.50 Now, however, the
requisite standard has been lowered, requiring only that there
be significant investment in a plant and equipment, significant
43
Kaplan & Reichman, supra note 34, at 6.
Id.
45
Id.
46
The number of procedural and substantive differences between ITC and
district court proceedings is enormous. Discussion on all of these differences would
exceed the scope of this note, so only those differences that are relevant to the
discussion are addressed. For a complete discussion of all differences, see generally id.
47
John Gladstone Mills III et al., Importation and Exportation of Patented
Goods, in 4 PATENT LAW FUNDAMENTALS § 21:43 (2d ed. 2009).
48
Id.
49
Id.
50
Id. The current requirement as defined under the Tariff Act of 1930 is far
less burdensome than the previous statute. Prior to the amendment, the effect or
tendency of the importation of the goods into the United States had to “destroy or
substantially injure an industry efficiently and economically operated in the United
States,” or “prevent the establishment of such an industry.” Id. This requirement was
eliminated to do away with the need to present and evaluate extensive economic data.
Id.
44
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employment of labor or capital, or substantial investment in
the industry’s exploitation.51 With this change, the domesticindustry requirement is far less of an impediment for potential
plaintiffs.52
2. Abbreviated Case Duration
Another significant distinction between proceedings
before the ITC and federal courts is the estimated timeline of
the case.53 At one time, fixed time periods were set for
investigations, allowing both parties to know exactly how long
the case would last, but this requirement was lifted in the 1994
amendments.54 Efficiency is still an important focus of the ITC,
however, and thus a provision was adopted that required cases
be completed “at the earliest practicable time.”55 A survey of
section 337 cases before the ITC between 1999 and 2004
indicated that the average case took approximately thirteen
and a half months.56 This is significantly shorter than the three
to five years a typical patent-infringement case takes when
brought in the federal courts.57 This drastic difference in length
of cases offers huge incentives to plaintiffs both in time and in
estimated expenses, and serves as one of the biggest draws to
ITC proceedings.
3. In Rem Jurisdiction
A major difference between ITC proceedings and
federal-court proceedings is that only the ITC has in rem
jurisdiction over articles imported into the United States.58
Consequently, complainants can bring charges against an
alleged infringer even if personal jurisdiction over the
respondent is not present—an option that is unavailable in
federal court.59 In ITC proceedings, the complainant does not
have to prove that the respondent has a domestic presence or
51
19 U.S.C. § 1337(a)(2) (2006).
See Mills et al., supra note 47, at 21-177; see also infra Part IV.A.
53
Kaplan & Reichman, supra note 34, at 18.
54
Id.
55
Id. To achieve this goal, the commission sets a “target date” by which the
case should be completed, typically twelve to fifteen months. Id.
56
Id. at 19 (citation omitted).
57
Id.
58
Levine & Coughlan, supra note 13.
59
Id.
52
2011]
THE ITC AND CHANGES TO U.S. PATENT LAW
1101
bring suit against the purchasers who are established in the
United States, giving the commission very broad reach.60 In
addition, the ITC provides the opportunity to address
infringement by multiple products and multiple parties in a
single forum.61 In federal-court patent trials, time and expenses
are exhausted litigating jurisdiction and service issues,
especially if overseas companies are involved.62 By giving the
ITC such broad jurisdiction these costs and headaches are
almost entirely eliminated.
4. Employment of Administrative Law Judges and
Better Courtroom Resources
Another considerable difference in proceedings before
the ITC is that an administrative law judge (ALJ) serves as the
finder of fact.63 There is no jury involved and it is up to the ALJ
to both oversee the case and to determine whether section 337
has been violated.64 Once the ALJ makes an initial
determination, the decision may be submitted to the
commission for review.65 This initial determination will become
final unless the commission orders that further review is
required, or a petition is filed by one of the parties involved.66
The decision is then submitted to the President of the United
States for review.67 The President is given a sixty-day period
during which he can disapprove of the commission’s
“Under
these
determination
for
“policy
reasons.”68
circumstances, the determination by the commission will have
no force or effect,” but “disapprovals are rare” and have only
been applied in “limited circumstances.”69
The use of an ALJ, who is often experienced in
overseeing intellectual-property disputes involving complex
technical issues,70 is one of the reasons some complainants
60
Id.
Schwartz, supra note 29, at 2.
62
Id.
63
See Kaplan & Reichman, supra note 34, at 24-25.
64
Id. at 25.
65
Id. at 26.
66
Id.
67
Id.
68
Id. at 28. In practice, “policy reasons” have included national security,
national economic interests, and potential impact on U.S. foreign relations. Id.
69
Id. at 29.
70
Schwartz, supra note 29, at 6.
61
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believe that the ITC is a preferable forum. The theory is that
because the ALJs and their clerks hear no other type of cases,
they become well versed and quite adept at dealing with the
intricacies of patent cases.71 Also, the ITC’s Office of Unfair
Import Investigations (OUII), which represents the public’s
interest during the investigations, is comprised primarily of
career attorneys.72 Due to the absence of all other types of cases,
the ALJs and OUII can maintain a singular focus in their
responsibilities, arguably resulting in better decisions.73 In
addition, the ITC is equipped with high-tech capabilities in all
of its courtrooms, and most parties and judges will typically
avail themselves of real-time reporting and sophisticated
graphic presentations.74 In many patent trials, the subject
matter is very technical, making these facilities quite useful
and accommodating. This experience and tenure working with
patent cases would be hard to find in any federal court and
again invites an increasing number of litigants to the ITC.
5. Available Remedies
Finally, the available remedies offered by the ITC are
also unique. In section 337 proceedings, unlike in federal-court
proceedings, monetary damages are unavailable.75 Preliminary
injunctions are permitted but are rarely necessary due to the
speed of the litigation process.76 Alternatively, the commission
generally enters exclusion orders, either in limited fashion
against a named respondent or against all infringing articles
without regard to source.77 The scope of ITC relief is narrower
because it only focuses on the control of the importation of goods
into the United States, but this focus is balanced by the
injunctive powers it can grant, which far exceed those available
in district courts. The ability, through “general” exclusion
orders, to exclude all imported products of a certain type—
regardless of whether the manufacturer was a defendant in the
case—is unparalleled in the courts and hugely enticing to
71
Id.
Id.
73
Id.
74
Id.
75
Section 337 Investigations: Answers to Frequently Asked Questions, USITC
PUB. 4105, at 24 (Mar. 2009), [hereinafter USITC FAQ], http://www.usitc.gov/intellectual_
property/documents/337_faqs.pdf.
76
Kumar, supra note 5, at 538.
77
USITC FAQ, supra note 75, at 24.
72
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1103
potential plaintiffs.78 Exclusion orders offer a much more efficient
mechanism for dealing with the importation of infringing
products by stopping goods at the border rather than suing once
the goods enter the marketplace.79 In addition, “the so-called
limited exclusion orders” against named defendants “are not so
limited.”80 These “orders . . . apply prospectively against all of [a
defendant’s] existing or future products of the [same] type,” not
just the models presented at trial.81
Not only is the injunctive relief provided by the ITC
broader than in federal court, but it is also much easier to
obtain.82 In eBay Inc. v. MercExchange, L.L.C., the Supreme
Court held that in order to obtain injunctive relief in the
federal courts, a patent holder must pass a four-part analysis.83
Accordingly, a party seeking an injunction in federal court
must demonstrate (1) that it has suffered irreparable injury, (2)
that monetary damages are inadequate to compensate for the
injury, (3) that a remedy in equity is warranted when
considering the balance of hardships to the plaintiff and
defendant, and (4) that the public interest would not be
disserved by the injunction.84 The ITC’s standard for injunctive
relief is much lower. The ITC typically issues injunctions
whenever it finds that a product infringes on a claimant’s
patent.85 Notably, before issuing an exclusion order, the ITC
must consider the effect the exclusion order will have on the
“public health and welfare, competitive conditions in the
United States economy, the production of like or directly
competitive articles in the United States, and United States
consumers.”86 However, these policy concerns are typically
downplayed and rarely stop orders of exclusion.87
When considering the differences between ITC and
district-court proceedings, it is understandable why some
plaintiffs would choose to bring suit against alleged patent
infringers before the ITC rather than in district courts. Combine
all of the potential benefits with a higher success rate for
78
79
80
81
82
83
84
85
86
87
Schwartz, supra note 29, at 5.
Kumar, supra note 5, at 565-66.
Schwartz, supra note 29, at 6.
Id.
Kumar, supra note 5, at 566.
eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).
Id.
Kumar, supra note 5, at 566.
19 U.S.C. § 1337(d)(1) (2000).
Kumar, supra note 5, at 566.
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patentees than in district court, and the reason for the ITC’s
blossoming popularity is clear.88 Patent attorneys and strategists
have made practice before the ITC a very relevant alternative to
bringing suit before a U.S. federal court, and increasing
numbers of experienced attorneys will recommend ITC hearings
over the courts in a variety of situations.89 But just because this
venue is popular does not mean that it is proper, and many of
these differences have had serious and detrimental effects on
patent practice in the United States.
IV.
PROBLEMS CAUSED BY ITC PATENT CASES
With all of the procedural and substantive divergences
of patent law before the ITC, it is easy to understand how the
application of patent law deviates from the federal court’s
precedent. With the increased popularity of practice before the
ITC in recent years, criticism of this alternative venue has also
risen sharply and for just cause.90 Patent practice utilizing
section 337 in cases before the ITC is beginning to have
harmful effects on the state of patent law within the United
States, and the time has come to initiate much needed change
before its effects worsen. In this section, I first address the
concern that practice before the ITC is deviating from section
337’s intended purpose. Second, I discuss whether ITC
practices are violating international law. Third, I explore the
accusations that the ITC improperly favors patent holders.
Finally, I address the possibilities of forum shopping,
conflicting decisions, and judicial waste.
88
A snapshot of cases between 1995 and 2000 shows nearly a seventypercent success rate for the patentee (if settlement numbers are included). Schwartz,
supra note 29, at 7-8.
89
Mark Abate and Charles Sanders of Goodwin Procter LLP have theorized
that the ITC should especially be considered in five specific scenarios: (1) when the
patent owner files suit early in the patent’s product cycle, (2) where personal
jurisdiction is questionable, (3) in response to a declaratory judgment or a patentinfringement action, (4) where the patent claims a method of manufacture, and (5)
when the litigation target makes only a “sale for importation.” Mark J. Abate &
Charles Sanders, Patent Litigation in the ITC, 9 PAT. STRATEGY & MGMT. 3 (2009).
90
See, e.g., Chien, supra note 6; Hahn & Singer, supra note 16; Kumar, supra
note 5.
2011]
A.
THE ITC AND CHANGES TO U.S. PATENT LAW
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ITC Cases Brought Under Section 337 Are Deviating
from the Statute’s Intended Purpose
When the ITC was created in 1974, Congress intended it
to protect domestic industry.91 Previously, the agency served only
as an advisor to the President, but with its expanded powers, it
now has the authority to make final decisions regarding unfair
trade practices and to issue exclusion orders.92 Upon granting the
ITC these powers, intellectual-property claims brought against
foreign companies began to be filed.93 By the early 1980s,
however, advocates motivated by an increased need for
protection of domestic industry were building momentum to
make amendments to the 1974 Trade Act.94 Congress found that
unfair trade practices were “cumbersome and costly,” and that
existing laws did not provide U.S. patent holders with adequate
protection against foreign companies.95 Thus, Congress passed
the Omnibus Trade and Competitiveness Act of 1988, which
expanded the scope of section 337 to make patent-infringement
claims against foreign companies easier by lowering the
requirements for bringing suit.96 With Congress recognizing the
importance of protecting our national industries, it is easy to
understand why they granted such broad powers to the ITC.
However, Congress failed to specify a necessary limit to the
scope of these powers, which has allowed claimants to file a
broad range of actions pursuant to section 337 that deviate from
the ITC’s fundamental goals.
The ITC forum is not limited to particular parties
dependent upon nationality, and complaints are no longer
confined to cases that protect domestic industries from unfair
competitors, even though this was the purpose behind the
commission’s creation.97 The only jurisdictional prerequisites are
that the defendant import goods and that the complainant
satisfy the domestic-industry requirement of section 337(a)(2).98
To be a domestic industry, a company need only show that it has
91
Kumar, supra note 5, at 544. The ITC was created through the Trade Act
of 1974. Id.
92
Id.
Id. at 546.
94
Id. at 545.
95
Id. (quoting the Omnibus Trade and Competitiveness Act of 1988, Pub. L.
No. 100-418, 102 Stat. 1107).
96
Id. at 548-49.
97
Hahn & Singer, supra note 16, at 469.
98
Id.
93
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a “significant investment in plant and equipment; significant
employment of labor or capital, or substantial investment in its
exploitation, including engineering, research and development,
or licensing” in the United States.99 Also, since there is no bar
against bringing suit against industries or companies based in
the United States, many of the cases brought before the ITC are
actually against domestic manufacturers or suppliers.100 In fact,
many cases involve only foreign companies or are cases brought
by foreign companies against domestic companies.101 As long as
any component or article is imported into the United States, the
ITC will hear the case. These scenarios are a far cry from the
ITC’s initial motives to ensure the protection of U.S. industry,
and this trend is not fading. Cases involving domestic
complainants against a foreign respondent have steadily
declined since the ITC was formed.102 In the 1980s, domesticversus-foreign cases accounted for 83% of all section 337 patent
cases; in the 1990s, these cases accounted for 74% of all cases;
and from 2000 to 2006, they accounted for 66% of all cases.103
This movement away from domestic-versus-foreign cases
suggests that the ITC is deviating from its original goal of
protecting U.S. industry from foreign competitors. Steps need to
be taken to amend this state of affairs.
B.
Potential Violations of International Law
The motivation behind the ITC’s abandoning of its
protectionist roots lies primarily in the development of
international law and the United States’ need to look beyond
our borders when making decisions regarding our nation’s
industries. As the interdependence of the world’s nations grew,
and treaties were signed and agreements were made, the
single-sided and now-antiquated concern with national
interests fell by the wayside. The original purpose of section
337—to give advantages to national industry at the expense of
foreign competition—is not only frowned upon in today’s
99
19 U.S.C. § 1337(a)(3) (2000).
Hahn & Singer, supra note 16, at 469. See, e.g., In re Certain Baseband Processor
Chips & Chipsets (Broadcom v. Qualcomm), Inv. No. 337-TA-543 (June 21, 2005).
101
Hahn & Singer, supra note 16, at 469. Four cases in 2001 were brought by a
foreign company against another foreign company. See, e.g., In re Certain Portable Digital
Media Players, Inv. No. 337-TA-573, (June 14, 2006); In re Certain Video Cassette Devices,
Inv. No. 337-TA-464, (Sept. 14, 2001); see also Hahn & Singer, supra note 16, at 470.
102
Hahn & Singer, supra note 16, at 470.
103
Id.
100
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THE ITC AND CHANGES TO U.S. PATENT LAW
1107
globalized world, but these actions also violate international
protocols.104 In 1988, a General Agreement on Tariffs and Trade
(GATT) panel ruled that some aspects of section 337 violated
international law.105 Specifically, the report alleged that foreign
respondents were being discriminated against due to the strict
time limits that were believed to benefit local residents, the
inability of foreign respondents to assert counterclaims, the
potential for dual path litigation, the complainant’s choice of
forum options, and the use of broad general exclusion orders.106
To address these concerns, Congress amended section
337 in 1995 in a number of ways.107 The amendments removed
the strict statutory time limit of twelve or eighteen months,
allowing adequate preparation time for foreign companies.108
Congress also heightened the requirements for awarding
general exclusion orders to limit the ease of award.109 Finally,
the amendments permitted defendants to file counterclaims to
even the playing field.110 Although these changes are seemingly
justified, they were the initial steps leading to the current state
of controversial patent-law practices in the ITC. It was the
congressional attempt to bring a purposefully prejudicial
statutory effort in line with international obligations that has
led to the middle-ground, compromised solution we now have in
place. Assuming the amendments made to the statute were
effective, there are in essence two possible outcomes: (1) an
effective but now illegal protection of domestic companies at
the expense of foreign competitors as originally proscribed by
section 337, or (2) an ineffective and much-diluted effort that is
legal but in no way provides U.S. companies with the
protection section 337 was created to offer. The current state of
the law leaves us squarely in the latter of these options and is
strong evidence of the need for change.
104
Joel W. Rogers & Joseph P. Whitlock, Is Section 337 Consistent with the
GATT and the TRIPS Agreement?, 17 AM. U. INT’L L. REV. 459, 475-77 (2002).
105
Id.
106
Id. at 476.
107
Ralph A. Mittelberger & Gary M. Hnath, Changes in Section 337 as a
Result of the GATT-Implementing Legislation, 22 AIPLA Q.J. 465, 479 (1994).
108
Id.
109
Id. at 486.
110
Id. at 480-81. But these counterclaims are automatically removed to a U.S.
district court. Id.
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ITC Practice Improperly Favors Patent Holders
Critics have raised and debated a further issue with
current patent practice before the ITC—here, in relation to the
results of the proceeding. For years, critics have argued that
the ITC forum improperly favors patent holders, but little
empirical evidence was offered in support of these claims. In
2008, however, Robert Hahn and Hal Singer published the
results of a study they performed, finally offering firm
statistical support to these claims.111
One of the metrics Hahn and Singer focused on was
relative percentages of cases finding patent infringement in the
ITC versus federal district courts.112 After comparing patent
cases brought in both venues between 1972 and September
2006, a huge disparity in the outcomes became obvious. The
overall rate at which the ITC found infringement was 23%,
while infringement was only found in about 6% before district
courts.113 Hahn and Singer have speculated that this drastic
difference might be due to the fact that patent cases before the
district court often do not go to trial or that the ITC may hear
stronger patent cases than the district courts.114 Regardless of
potential reasoning, the relative success rates at the ITC are
shocking, and these statistics fully support the alleged bias for
patent holders in ITC cases.115
This vast discrepancy adds to the uncertainty and
unpredictability of patent law within the United States. If a
patent holder has four times the chance of succeeding before
the ITC, the traditional (and arguably sole) proper venue in
which to bring a patent infringement case—the federal district
courts—becomes far less appealing. This likelihood of success is
one of the many factors contributing to the rise in ITC
popularity, which is creating an increasingly large sector of
patent law that is being decided on an entirely different set of
standards and procedures.
111
Hahn & Singer, supra note 16.
Id. at 473.
113
Id. at 475.
114
Id. at 476.
115
Id. The Hahn and Singer study then explored the rates at which each
venue awards injunctive relief, finding that the ITC is again biased in favor of the
patent holders due to the heightened standard in district courts set forth in eBay, Inc.
v. MercExchange, Inc. Id. (examining eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388
(2006)). For further discussion, see infra Part V.B.3.
112
2011]
D.
THE ITC AND CHANGES TO U.S. PATENT LAW
1109
Forum Shopping and Dual Litigation Lead to
Inefficiencies and the Potential for Conflicting Decisions
In addition to progressing away from protecting
domestic industry, trends also indicate that the ITC is being
treated as an alternate, and sometimes even simultaneous,
venue in which to try patent-infringement cases.116 The lack of
consistency between the proceedings and remedies allows
litigants to shop their claims, selecting the better of the two
venues in which to bring their complaints.117 This creation of
inconsistent patent law and the ability to take advantage of the
system was exactly what Congress was trying to prevent when
it created the consolidated and focused Court of Appeals for the
Federal Circuit in 1982.118 The increase in ITC patent cases is
therefore acting to reverse the congressional goal of promoting
predictable and consistent patent law within the United States.
Additionally, the ITC is not only being taken advantage of as
an alternate venue through forum shopping, but also as a
parallel venue in which to bring suit concurrent to a federal
court case.119 In a study conducted by Coleen Chien, 65% of
patent cases tried before the ITC between 1995 and mid-2007
had district-court counterparts.120 This absence of coordination
between the ITC and the U.S. court systems has many negative
effects. In addition to the ability to forum shop, the allowance
of parallel cases increases this harm by exposing litigants to
the risk of duplicative litigation and potentially conflicting
outcomes.121
E.
Preclusivity Not Given to ITC Decisions Results in
Judicial Waste
The problem of judicial waste and conflicting decisions
promoted by ITC practice is magnified by the fact that the
federal courts do not give preclusive effect to ITC
determinations. For example, the Delaware District Court’s
1989 opinion in In re Convertible Rowing Exerciser held that
the ITC’s decision that a patent was invalid should not
116
Chien, supra note 6, at 71. Simultaneous suits can be brought alleging the
same claims in both federal court and before the ITC. Id.
117
Id.
118
MERGES & DUFFY, supra note 1, at 11.
119
Chien, supra note 6, at 92.
120
Id.
121
Id. at 71.
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preclude the district court from considering the patent’s
validity de novo.122 As later stated, “[the] district court can
attribute whatever persuasive value to the prior ITC decisions
that it considers justified.”123 This practice allows a party that
loses before the ITC based on patent invalidity to have a second
chance to succeed before a district court. The effect is to allow a
complainant to test the validity of his patent in the ITC forum
prior to bringing suit in the district courts, encouraging costly
and duplicative litigation.124
V.
PROPOSED SOLUTION
Due to all the potential issues surrounding patent cases
and the ITC, section 337 proceedings have created quite a
controversy. In order to right the path of patent law in the
United States, the only viable option is to abolish section 337
patent practice before the ITC. For the majority of this
country’s history, the federal courts have been the sole venue in
which patent cases can be tried, and this norm should be
reestablished. There is something to be learned, however, from
the ITC, and now is an ideal time to evaluate some of the
advantages ITC practice has demonstrated with the multitude
of proposals currently before Congress relating to patent law in
the United States. One such proposal is the Patent Pilot
Program—an amendment that would allow for more
specialization in the federal courts regarding patent cases.125
Much like the benefits that specialization offers the ITC,
numerous advantages in the federal courts can be realized.
This program should be initiated as a proper base upon which
additional modifications can be made. These further
amendments include the adoption of in rem jurisdiction for
cases relating to the importation of goods, as well as a per se
right to injunctive relief, attributes found to be quite beneficial
in the ITC forum.
122
721 F. Supp. 596 (D. Del. 1989), appeal denied, 904 F.2d 44 (Fed. Cir.
1990), reh’g denied, 903 F.2d 822 (Fed. Cir. 1990).
123
Tex. Instruments v. Cypress Semiconductor, 90 F.3d 1558, 1569 (Fed. Cir.
1996).
124
Kopp, supra note 20, at 357.
125
Shartzer, supra note 21, at 192.
2011]
A.
THE ITC AND CHANGES TO U.S. PATENT LAW
1111
Proposed Amendments Before Congress
Numerous proposals have been introduced to Congress
that have the potential to alter U.S. patent law in drastic ways.
These proposals include the Patent Pilot Program,126 as well as
the Patent Reform Act of 2010,127 both of which include
proposals that affect the heart of U.S. patent law but do not
directly address the ITC debate. Specifically, the Patent Pilot
Program proposes to direct patent cases to judges that choose
to hear them more often.128 This would be done by segregating
quasi-specialized patent trial judges from the general pool of
judges.129 District courts that participate in the Patent Pilot
Program would hear all the patent cases brought in their
district, creating in essence specialized patent trial courts.130
The ultimate goal was to create a more experienced and
specialized judicial presence before which patent cases can be
brought.131 For many of the same reasons that the Federal
Circuit Court of Appeals was created as the sole jurisdiction to
bring appeals of patent cases, this specialization was proposed
to help make decisions in patent law cases more predictable,
more efficient, and most importantly, more accurate.132 The
theory is that the more patent cases a judge receives, the more
likely the judge will correctly decide the case and the more
efficient the entire process will become.133
The Patent Reform Act, in comparison to the Patent
Pilot Program, is a much more unwieldy and controversial
animal. This Act has been introduced in both the House and
Senate, and many of the elements mirror the proposed Patent
Reform legislation from years prior.134 Some of the more
consequential changes proposed include (1) a first-to-file
system, which gives priority of invention to the first to file an
application, rather than the applicant who first invented it; (2)
126
Id.
Dennis Crouch, Patent Reform Act of 2010, PANTENTLYO L. BLOG (Mar. 8, 2010),
http://www.patentlyo.com/patent/2010/03/patent-reform-act-of-2010-an-overview.html.
128
Shartzer, supra note 21, at 192. The program was introduced by
Representative Darrell Issa under House Bill 34 in 2007. Id.
129
David L. Schwartz, Courting Specialization: An Empirical Study of Claim
Construction Comparing Patent Litigation Before Federal District Courts and the
International Trade Commission, 50 WM. & MARY L. REV. 1699, 1701 (2009).
130
Id.
131
Id.
132
Shartzer, supra note 21, at 192.
133
Id.
134
Crouch, supra note 127.
127
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a change in the calculation of damages based on the invention’s
“specific contribution over the prior art”; (3) expanded
reexamination proceedings that can be initiated based on
published prior art or public use or sale in the United States
rather than just patents; (4) limiting the venues in which to
bring patent cases in attempts to limit bringing cases in
jurisdictions that favor patent holders, or cause undue
hardship for the defendants; and finally, (5) the abolishment of
interference practices.135 Some of the more controversial
sections were removed in comparison to the 2005 and 2007
Patent Reform Acts,136 but the list of proposed changes is still
quite impressive.
Although many of the proposals laid out in the Patent
Reform Act are of questionable value to the U.S. patent system,
the effects these changes may have are still very much
unknown.137 The Act’s scope is immense, and unlike the
proposals of the Patent Pilot Program, the issues at hand are
very deeply tied to international law and the United States’
obligation to honor various treaties and agreements with
foreign nations.138 There is continued debate before Congress
whether all, some, or none of these changes should be
implemented, and these debates will likely continue at length
as they have for many years.
B.
Suggested Approach
With all of the changes to patent law initiated by practice
before the ITC, and with the current amendments on the table
before Congress in the form of the Patent Reform Act and Patent
135
Id.
Mark P. Walters, Patent Reform 2009: It’s a “Threepeat,” WASH. STATE
PATENT L. BLOG (Mar. 4, 2009), http://www.wapatents.com/2009/03/patent-reform-2009
-its-threepeat.html. Some of the sections removed in the 2009 and 2010 proposals
include a requirement for quality submissions that mandates (1) an applicant research
whether a patent exists prior to filing, (2) an elimination of the equitable conduct
requirement, and (3) the granting of rule-making authority to the USPTO. Id.
137
Arguments have been made both in favor and against each of the
alterations outlined in the Patent Reform Act. See, e.g., Kelly C. McKinney, The Patent
Reform Act of 2007 and International Patent Law Harmonization, 31 HOUS. J. INT’L L.
125 (2008). However, the discussion of these potential amendments and their effects is
beyond the scope of this note.
138
For example, the TRIPS Agreement, to which the United States is a
signatory, provides support for many of the Act’s amendments, and in general, many of
the other nations, who are also members of GATT and the WIPO, have more consistent
practices when it comes to patent laws in general (i.e., almost all have first to file
rather than first to invent systems). McKinney, supra note 137, at 132-43.
136
2011]
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1113
Pilot Program, the direction of patent law in the United States
has become quite uncertain. Changes are needed to increase the
quality and efficiency of our system, and in order to jumpstart
these efforts, an intermediate and manageable solution needs to
be initiated. This note proposes that Congress adopt the Patent
Pilot Program’s specialized grouping of patent trial courts as a
harmonized and consolidated base, upon which needed
amendments to the patent system within the United States can
more easily be enacted. Along with this implementation,
immediate amendments also need to be adopted. Specifically,
some aspects of section 337 proceedings before the ITC must be
transferred to these specialized district patent courts, and to the
Federal Circuit Court of Appeals. First, in order to protect one of
the only beneficial roles that the ITC does play, in rem
jurisdiction should be granted to these courts in cases involving
importation of allegedly infringing products. Second, the
injunctive powers of the ITC must also be transferred, in some
respects, to the federal courts through a congressional action to
amend the Patent Act to allow for a per se right to injunction.
1. Implement the Patent Pilot Program
Since the creation of the Federal Circuit Court of
Appeals in 1982, there has been much debate over whether the
goals of this endeavor have been met. With decisional
uniformity and the reduction of forum shopping as primary
objectives, most commentators agree that the Federal Circuit
has been a resounding success.139 The proposal for the Patent
Pilot Program was submitted in light of the Federal Circuit’s
success. Adoption of this proposal is the first key step toward
the harmonization of patent law in the United States.
The theory that having more experienced judges will
lead to efficiency, clarity, and uniformity seems obvious. Critics
are still not entirely persuaded, however, that the Patent Pilot
Program is an endeavor worth initiating.140 To combat this
uncertainty, Adam Shartzer performed an empirical study in
2009 in an attempt to predict the likely success of the
139
Shartzer, supra note 21, at 191; see also Richard Linn, The Future of the
United States Court of Appeals for the Federal Circuit Now That It Has Turned 21, 53 AM.
U. L. REV. 731, 732, 737 (2004) (noting that the Federal Circuit quickly achieved
uniformity in patent law and that “the future in the patent area will be no different than
in the past in striving to bring uniformity, certainty, and clarity to the patent laws”).
140
For arguments against the Patent Pilot Program, see Schwartz, supra note
129, at 1701-02.
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program.141 His findings showed a direct correlation between
judges’ experience with patent cases and their affirmance rates
at the Federal Circuit Court of Appeals.142 This data strongly
supports the likelihood of the Patent Pilot Program’s success
and lends further support for its adoption.143
In addition to its likelihood of success in promoting better
decisions, one of the most important effects will be its ability to
consolidate the realm in which patent law is practiced. By
limiting the number of district courts in which patent cases are
commenced, amendments to patent law can be made more easily
and will be implemented more consistently. In addition, much
like the current ITC,144 these courts could be adapted to offer
high-tech facilities with features such as multimedia that
supports real-time reporting and graphic presentations.
2. Adopt In Rem Jurisdiction for Cases Relating to the
Importation of Allegedly Infringing Goods
One of the principal benefits of litigating patent cases
before the ITC is its broad in rem jurisdiction.145 Without the
requirement of establishing personal jurisdiction over the
alleged infringing party, suits could be brought earlier in the
process—specifically, before the alleged infringing product is
sold or offered for sale within the United States.146 Jurisdiction
is derived from the imported articles, not the presence of the
parties or unfair acts in the vicinity of the forum.147 The benefits
in rem jurisdiction offer are massive, and this solution should
be implemented in the federal courts when dealing with patent
cases relating to importation.
In addition, in rem jurisdiction offers the opportunity to
address infringement by multiple products and by multiple
141
Shartzer, supra note 21, at 193.
Id. at 231-33.
143
Shartzer’s study was based on comparing patent-case outcomes from the
top fifteen patent districts in terms of patent-case filings, and compares the number of
times a judge has been affirmed by the Federal Circuit Court of Appeals in relation to
the number of times that particular judge had his cases reviewed by the Federal
Circuit. A total of 616 cases were analyzed, and a direct correlation was found,
indicating that affirmance rates improve as district judges have more of their cases
appealed and reviewed by the Federal Circuit. See id. at 226-27.
144
Schwartz, supra note 29, at 6.
145
Id. at 3-4.
146
See id. at 4.
147
Id.
142
2011]
THE ITC AND CHANGES TO U.S. PATENT LAW
1115
parties in a single forum.148 One of the biggest drawbacks to
patent cases in federal court, and one of the main reasons that
the ITC has become so popular, is the difficulty arising from
jurisdiction and service issues.149 Fighting over these issues,
especially when a multinational or foreign company is involved,
requires exorbitant amounts of time and money to resolve.150
With the adoption of in rem jurisdiction, these problems all but
disappear.
The international community’s concern regarding the
current ITC practices seems likely to pertain to this in rem
jurisdiction right if granted to the federal courts. This concern,
however, is unfounded. The “national treatment” commitment
to treat all parties alike will be maintained if this jurisdictional
right is granted properly, and many of the major concerns the
international community had with patent practice before the
ITC would be eliminated. For example, foreign respondents
would no longer face dual litigation in the ITC and federal
courts, discriminatory time limits that favor local residents, or
broad forum-selection rules that favor complainants.151 With the
exception of the liberal general exclusion orders (discussed
below with the proposed standard for injunctive relief), all the
concerns of the international community will no longer be at
issue. With the abolition of the ITC and the adoption of the
Patent Pilot Program, the concerns of forum shopping and dual
litigation cease to exist.
3. Adopt a Per Se Right to Injunctive Relief in Federal
Court Patent Cases
The availability of injunctive relief is one of the major
values highlighted by ITC patent practice. This remedy is one
of the major reasons that practice in this forum has become so
popular in recent years, especially in light of the heightened
bar set in the federal courts by the eBay decision.152 The
question raised is whether the lowered standards available at
the ITC would offer benefits to the traditional U.S. patent
system. It is important to note that just because something is
popular or preferred does not make it more likely to be
148
149
150
151
152
Id.
Id.
Id.
Krupka, supra note 17, at 730.
eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006).
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beneficial to the system as a whole, and in some cases,
popularity could be seen as a sign of an unfair advantage.
However, before coming to a conclusion, we must first analyze
the effect the eBay decision has on the state of injunctive relief
in federal courts, as well as the social and economic effects of
injunctive relief on the patent system, the economy, and
technological development as a whole.
Prior to the eBay case, the Federal Circuit had granted
injunctive relief for infringement of a patent almost as a matter
of course.153 However, in eBay, the Supreme Court overturned a
long line of federal cases following this general propensity to
award an injunction.154 Justice Thomas, in the majority opinion,
laid out a four-factor test that must be satisfied in order to
justify the granting of injunctive relief:
A plaintiff must demonstrate: (1) that it has suffered an irreparable
injury; (2) that remedies available at law, such as monetary
damages, are inadequate to compensate for that injury; (3) that,
considering the balance of hardships between the plaintiff and
defendant, a remedy in equity is warranted; and (4) that the public
interest would not be disserved buy a permanent injunction.155
The majority held that the issuance of permanent injunctions
would be decided on a case-by-case basis upon consideration of
these factors in order to maintain the “well-established
principles of equity.”156 A survey of the district courts’
interpretation of the decision, however, yielded a consensus
that the majority of courts are applying Justice Kennedy’s
approach laid out in his concurring opinion, in which a threetiered categorization of patent holders’ rights is defined.157
These categories separate patent holders into patentees that
participate in the manufacture and sales of patented products
and methods, research and nonprofit institutions that produce
patentable
inventions,
and
inventors
that
pursue
commercialization of the patented inventions by licensing.158
153
Dariush Keyhani, Permanent Injunctions in Patent Cases, 6 BUFF. INTELL.
PROP. L.J. 1, 3-4 (2008); see also W.L. Gore & Assoc. v. Garlock, Inc., 842 F.2d 1275,
1281 (Fed. Cir. 1988) (“[A]n injunction should issue once infringement has been
established unless there is sufficient reason for denying it.”).
154
See eBay, 547 U.S. at 394.
155
Id. at 391.
156
Id.
157
Keyhani, supra note 153, at 2; see also Bernard H. Chao, After eBay, Inc. v.
MercExchange: The Changing Landscape for Patent Remedies, 9 MINN. J.L. SCI. &
TECH. 543 (2008).
158
eBay, 547 U.S. at 396-97.
2011]
THE ITC AND CHANGES TO U.S. PATENT LAW
1117
When categorized, the district courts more liberally granted
injunctive relief to the first two groups and failed to award
injunctive relief in almost all cases involving this third group.159
This denial of injunctive relief is inherently inequitable to
those parties who choose to take advantage of their procured
patent rights in certain ways, and some critics argue it is a
violation of the Takings Clause of the Fifth Amendment.160
The Fifth Amendment to the U.S. Constitution states
that “private property [shall not] be taken for public use,
without just compensation.”161 Advocates in support of
injunctive relief argue that denying this remedy where a patent
is found to be infringed is inconsistent with the patent holder’s
right to due process of law and thus violates this clause.162 The
idea is that the government essentially grants the patent
holder an exclusive property right when the patent is issued,
and although this right is an intellectual-property right, it
should be treated no differently from rights assigned to
personal or real property.163 When the courts find that this
property right has been violated, in this case when the patent
has been infringed, this property right must be recognized, and
the patent owner is deserving of absolute injunctive relief. The
government’s imposition of unexpected limitations on this
right, as in the case of allowing further future infringement, is
in essence a “de facto private eminent domain sanctioned by
the government.”164
In addition to conflicts with the U.S. Constitution,
failure to reward injunctive relief may run astray of
commitments to international intellectual-property agreements
as well. These agreements include the Trade Related Aspects of
Intellectual Property Rights (TRIPS) Agreement under
GATT.165 TRIPS was signed and put into effect in the mid1990s, committing the United States, as well as all other
signatories, to its multitude of requirements. One of the
159
Keyhani, supra note 153, at 2. In 2008, Keyhani researched cases involving
this third group—inventors who pursue commercialization of the patented inventions
by licensing—in an analysis of the effects of the eBay decision.
160
Id. at 4.
161
U.S. CONST. amend. V.
162
Keyhani, supra note 153, at 4 (citing Paul M. Schoenhard, Who Took My
IP—Defending the Availability of Injunctive Relief of Patent Owners, 16 TEX. INTELL.
PROP. L.J. 187, 193 (2008)).
163
Id.
164
Id.
165
Id. at 5-6.
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limitations outlined in Article 30 states, “Members may provide
limited exceptions to the exclusive rights conferred by a patent,
provided that such exceptions do not unreasonably conflict with
a normal exploitation of the patent and do not unreasonably
prejudice the legitimate interests of the patent owner, taking
account of the legitimate interests of third parties.”166 The
denial of an injunction to a patent holder whose patent was
found to be infringed is a denial of the right to exclude and is a
forced compulsory license.167 The right to exclude and the right
to choose how one wishes to commercialize one’ patent is part
of the normal exploitation of a patent.168 Forcing the patent
holder to license the rights to an infringing party prejudices the
legitimate interest of the patent holder, and critics argue this
requirement violates the United States’ obligation under the
TRIPS agreement.169
Finally, and most importantly, limiting the award of
injunctive relief is bad economic policy. Injunctive relief
strengthens the patent system, and reinforces the incentives to
invent and have these inventions patented. When injunctive
relief is no longer awarded, or is awarded in a more limited
fashion, it has the effect of undermining both innovation and
entrepreneurship. With the expansive globalization in the past
decades that has opened up vast numbers of lower-cost
markets, what we once were able to manufacture and sell in
the United States can no longer be manufactured here, at least
not competitively. One of the last frontiers in which the United
States and other highly developed countries thrive is
innovation and technology. With the weakening of intellectualproperty rights the lack of a per se right to an injunction, we
are effectively weakening the United States’ last economic edge
in the global marketplace.170 With the current standard for
injunctive relief, patent holders are being unjustly treated. The
only solution available is congressional action to amend the
Patent Act to undo the harm created by the Supreme Court’s
decision in eBay and to allow for a per se right to injunctive
relief.
166
Agreement on Trade-Related Aspects of Intellectual Property Rights art. 30
Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex
1C, 1869 U.N.T.S. 299.
167
Keyhani, supra note 153, at 6.
168
Id.
169
Id.
170
Id. at 6-7.
2011]
VI.
THE ITC AND CHANGES TO U.S. PATENT LAW
1119
CONCLUSION
The ITC’s section 337 proceedings involving patent
disputes must be abolished. The large number of
inconsistencies between patent suits before the ITC and those
in federal court has created a variety of problems that must be
remedied before the divergent path of patent law in the United
States can be righted. These issues include the trending of ITC
cases away from the venue’s initial purpose of offering
protection against foreign industries171 and concerns with
respect to compliance with international law.172 Furthermore,
studies show that proceedings before the ITC improperly favor
patent holders,173 promote inefficiencies in the patent system,174
and lead to judicial waste.175
Some aspects of section 337 proceedings have been
shown to be quite advantageous, however, and amendments
should be made to the patent system currently in place to take
advantage of the lessons learned. These amendments include
the granting of in rem jurisdiction to the federal courts when
addressing cases involving importation of allegedly infringing
products and a congressional action to amend the Patent Act to
allow for a per se right to an injunction. In addition, Congress
should adopt the proposed Patent Pilot Program, which would
create a more specialized district-court system in which to hear
patent cases176 and offer a united base upon which further
amendments can be more easily implemented.
Robert E. Bugg†
171
Hahn & Singer, supra note 16, at 470.
Krupka, supra note 17, at 730-31.
173
Hahn & Singer, supra note 16, at 472-77.
174
Chien, supra note 6, at 71.
175
Kopp, supra note 20, at 357.
176
See Shartzer, supra note 21, at 191.
†
J.D. Candidate, Brooklyn Law School, 2011; B.S., Pennsylvania State
University, 2005. I would like to thank the members of the Brooklyn Law Review for
their valuable input and assistance. Thanks also to Professor Patricia Judd for her
insight and guidance, and to my family for their never-ending support.
172
More Gore
VIDEO GAME VIOLENCE AND THE TECHNOLOGY
OF THE FUTURE
INTRODUCTION
John walked into his local multiplex on a slow Sunday
afternoon. He spent the earlier part of the day at home, lazily
reading the newspaper, trying to pass the time between meals
and his eventual sleep, but found it a difficult task. John was
bored; he needed an escape. After making pleasant small talk
with the friendly woman behind the ticket counter and gathering
some assorted snacks from the concession, John made his way to
the middle seat in the sixth row of a half-full theater. A minute
or two passed, and then the screen lit up. Suddenly, John was no
longer in the theater, the multiplex, or his hometown. Instead,
John was riding in the passenger seat of a high-octane sports car
zipping through the streets of Prague. Behind the wheel was a
svelte British secret agent, steering with one hand, the other
tightly wrapped around a nine-millimeter pistol, firing blindly
behind him at the two black cars in hot pursuit. Return fire
whizzed through the back windshield and past John’s ears as the
driver turned sharply onto a busy side street. He quipped,
“Nothing like a scenic drive through Prague.” John grinned. So
much for a slow Sunday afternoon.
Movies, much like any art form, have the power to
transport us to far-away worlds and let us live lives foreign to
our own. In the brief moments that we watch a film, read a book,
or listen to a song, we live out our fantasies of exciting
adventure, enchanting romance, or bone-chilling thrills, and
escape from the comparably ho-hum happenings of the everyday.
While these experiences can be fulfilling, there is a disconnect
between the mind of the watcher/reader/listener and the
characters and emotions within the art. In short, the experience
is more passive observation than transportation and immersion.
This is what sets video games apart from movies,
literature, and other art forms. Video games attempt to bridge
that mental gap. They combine the elaborate narratives found in
books and movies with a level of tactile control—creating a much
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more personal, interactive experience.1 Instead of simply
watching Harrison Ford traverse ancient ruins in Raiders of the
Lost Ark,2 games like Tomb Raider Underworld3 and Uncharted:
Drake’s Fortune4 allow you to control the action yourself, with
every dexterous jump performed in accordance with your inputs.
Rather than cheering on Tom Hanks and his platoon in Saving
Private Ryan5 from the sidelines, you can pick up a rifle, stare
down the barrel, and fight alongside your allied comrades in
games like Call of Duty: World at War6 and Medal of Honor:
Frontline.7 In some sense, video games are the evolution of art—
edging closer and closer to a fully immersive fantasy experience.
Regardless of this potential for immersion, video games
are awarded substantial protection under the U.S. Constitution
due to their narrative nature. Specifically, video games fall
within the protections of the First Amendment as free speech.8
Despite this protection, the distinction between video games and
other art forms must not be forgotten, especially when thirtyfive percent of the industry is composed of minors.9 Damaging
1
Ilana Lubin, Challenging Standard Conceptions of Tradition, Science and
Technology in 2006, 13 CARDOZO J.L. & GENDER 173, 181-83 (2006) (noting the interactive
nature of video games and the stark differences between a “viewer” and a “player”).
2
See generally RAIDERS OF THE LOST ARK (Lucasfilm Ltd. 1981); Raiders of
the Lost Ark, IMDB, http://www.imdb.com/title/tt0082971 (last visited Jan. 10, 2010).
3
See generally Jeff Haynes, Tomb Raider: Underworld Review, IGN (Nov.
19, 2008), http://ps3.ign.com/articles/931/931785p1.html.
4
See generally Greg Miller, Uncharted: Drake’s Fortuner Review, IGN (Nov.
13, 2007), http://ps3.ign.com/articles/834/834931p1.html.
5
See generally SAVING PRIVATE RYAN (Paramount Pictures 1998); Saving
Private Ryan, IMDB, http://www.imdb.com/title/tt0120815 (last visited Jan. 10, 2010).
6
See generally Jason Ocampo, Call of Duty: World at War Review, IGN (Nov.
11, 2008), http://xbox360.ign.com/articles/927/927055p1.html.
7
See generally Douglass C. Perry, Medal of Honor Frontline, IGN (June 3,
2002), http://ps2.ign.com/articles/361/361335p1.html.
8
See U.S. CONST. amend. I (“Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press . . . .”); see also Rothner v. City of Chicago, 929 F.2d
297, 303 (7th Cir. 1991) (noting that modern video games, with their highly narrative
nature, are more deserving of First Amendment protection than perhaps once
conceived); Am. Amusement Mach. Ass’n v. Kendrick, 244 F.3d 572, 577 (7th Cir. 2001)
(likening video games to other protected art forms like movies and literature). Video
games are also afforded protection under the Intellectual Property Clause, which
grants video game creators the exclusive rights to their work, allowing them to reap
the benefits of their labor without fear of any free riders. This creates an incentive for
game makers to continue to ply their trade, ensuring the market is consistently ripe
with new titles, which in turn furthers the evolution of the art form. See U.S. CONST.
art. I, § 8, cl. 8. See generally ASHLEY SAUNDERS LIPSON & ROBERT D. BRAIN,
COMPUTER AND VIDEO GAME LAW 205-07 (2009).
9
Bill Pratt, The Demographic of Video Game Players, EZINEARTICLES (Apr. 22,
2008), http://ezinearticles.com/?The-Demographics-of-Video-Game-Players&id=1111304.
It is generally accepted by courts that minors are not possessed of “that full capacity for
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MORE GORE
1123
material, such as sexually explicit content and graphic violence,
becomes much more volatile when displayed in an interactive
medium like video games.10 There is a stark difference between
merely watching a gore-filled movie or reading an erotic novel,
and actually carrying out violent and sexual actions within a
virtual world. In other words, the distinction that makes video
games much more powerful than other art forms also has the
potential to make risqué material much more venomous.11 But is
this distinction enough to remove video games entirely from
standard First Amendment jurisprudence? As video game
technology stands now, it doesn’t seem so.12
Even though the visual effects displayed in modern
games are as realistic as they have ever been, actual reality and
video games are still quite distinct. Game designers have yet to
achieve true photo-realism as to the human form; the difficulty
of accurately animating facial expressions, such as subtle eye
movements and the natural asymmetry of facial muscles, has
created a substantial barrier.13 Other obstacles exist too, such as
the complicated controller in the player’s hand, and the fact that
the action takes place on a small screen in the player’s living
room rather than all around him. These factors are constant
reminders for gamers that they are simply playing a game and
that the experience is not real. In short, the violence in video
games today simply isn’t real or immersive enough to remove it
from First Amendment protection, and the interest in protecting
minors is not great enough to overcome strict judicial scrutiny.14
But what happens when the line between video games
and reality disappears? What happens when graphic
individual choice which is the presupposition of First Amendment guarantees.” See
Ginsberg v. New York, 390 U.S. 629, 649-50 (1968) (Stewart, J., concurring).
10
See Video Software Dealers Ass’n v. Maleng, 325 F. Supp. 2d 1180, 1188 (W.D.
Wash. 2004) (acknowledging that video games have certain “unique characteristics” from
other art forms, which may tend to make them more harmful).
11
See id.
12
See generally Video Software Dealers Ass’n v. Schwarzenegger, 556 F.3d
950 (9th Cir. 2009), cert. granted sub nom, Schwarzenegger v. Entm’t Merchs. Ass’n,
130 S. Ct. 2398 (argued Nov. 2, 2010) (refusing to remove video games from normal
First Amendment jurisprudence); Interactive Digital Software Ass’n v. St. Louis, 329
F.3d 954 (8th Cir. 2003); Kendrick, 244 F.3d 572.
13
Jonathan Richards, Lifelike Animation Heralds New Era for Computer
Games, TIMES ONLINE (Aug. 18, 2008), http://technology.timesonline.co.uk/tol/news/
tech_and_web/article4557935.ece (“Those types of imperfections . . . are what [make]
people look real.”).
14
Kendrick, 244 F.3d at 575 (explaining that nobody viewing video game
violence would make the mistake that they are in fact watching real life violence, and
as such video game violence is not obscene in the same way a violent photograph is).
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technology advances to the point where computer-created
characters are uncanny in resemblance to the actual human
form?15 What happens when gamers are no longer witnessing
the action through a television screen but instead are seeing it
all around them through the use of virtual reality?16 What
happens when the characters on screen are not being controlled
through a complicated, button-ridden controller but are instead
being manipulated by the player’s precise full-body physical
motions?17 While this may all sound like science fiction, these
technologies are currently in development and will be staples of
the video game industry very soon, helping make the game
experience indistinguishable from real life.18
This note argues that current First Amendment
jurisprudence on violent content in video games is premised on
many presuppositions that will soon be outdated and
irrelevant. Our past notions about video game violence—
suggested in cases like American Amusement Machine
Association v. Kendrick19—become untenable in the face of the
highly realistic and fully immersive games of the future. A new
legal framework will soon be warranted, and this note suggests
some options. Additionally, it recommends steps that future
video game designers can take to ensure that they continue to
be fully protected under the First Amendment.
Part I presents a detailed account of the judicial history
surrounding this issue, beginning with the “variable obscenity”
standard enumerated in the Supreme Court case Ginsberg v.
New York.20 This part then details how state legislatures have
attempted to apply this standard to video game violence and
how the circuit courts have rejected these attempts.21 Both the
distinctions drawn by the courts between violent content in
video games and obscenity in general, as well as the
comparisons of games to other art forms, such as literature,
15
Richards, supra note 13.
See generally Marc Jonathan Blitz, The Freedom of 3D Thought: The First
Amendment in Virtual Reality, 30 CARDOZO L. REV. 1141 (2008).
17
Ryan Geddes, Everything You Need to Know About Kinect, IGN (Jan. 14,
2010), http://xbox360.ign.com/articles/106/1061205p1.html; Erik Brudvig, TGS09: Trying
out Natal, IGN (Sept. 14, 2009), http://xbox360.ign.com/articles/102/1028409p1.html; Cliff
Edwards, Microsoft Moves onto Nintendo’s Motion Turf, BUSINESSWEEK (June 1, 2009),
http://www.businessweek.com/technology/content/jun2009/tc2009061_527242.htm.
18
Cam Shea, Gaming Tech to Watch in 2009, IGN (Feb. 23, 2009), http://ps3.
ign.com/articles/956/956105p1.html; Geddes, supra note 17.
19
Kendrick, 244 F.3d 572.
20
Ginsberg v. New York, 390 U.S. 629, 635-36 (1968); see also infra Part I.A.
21
See infra Part I.B.
16
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MORE GORE
1125
will be of particular note.22 Finally, Part I also points out the
loopholes in one of the more instructive circuit-court opinions—
American Amusement Machine Association v. Kendrick23—and
explains how these loopholes leave the door open for regulation
as video game technology develops.24 Part II delves into new
developments in video game technology that are on the horizon,
focusing on the advancements in both the way games are
viewed and the way games are played.25 Part II also evaluates
the effect these advancements purport to have on the gaming
experience at large, substantially changing the industry from
the conditions present today.26 Part III presents four possible
outcomes of these developments.27 It then moves into a call-toaction for the video game industry, suggesting methods to
avoid regulation in the future.28
I.
LEGAL BACKGROUND AND HISTORY
Today, video games are awarded full protection under the
First Amendment.29 This was not always the case.30 Most
importantly, before games acquired the narrative qualities they
now contain, legislatures often used the variable obscenity
standard to create regulations that limited minors’ access to
violent video games but did not apply to adults.31 To properly
understand how the law has changed since then, it is useful to
first illustrate how the variable obscenity standard was derived
before evaluating its possible applications to video game violence.
A.
Ginsberg and the Variable Obscenity Standard
The Supreme Court’s decision in Ginsberg v. New York
established the legal framework for subsequent state regulation
22
See infra Part I.B.
Kendrick, 244 F.3d 572.
24
See infra Part I.C.
25
See infra Part II.A-B.
26
See infra Part II.A-B.
27
See infra Part III.A.
28
See infra Part III.B.
29
See generally, e.g., Am. Amusement Mach. Ass’n v. Kendrick, 244 F.3d 572
(7th Cir. 2001) (subjecting the challenged statute to the strict-scrutiny standard); Video
Software Dealers Ass’n v. Schwarzenegger, 556 F.3d 950 (9th Cir. 2009) (subjecting the
challenged statute to the strict-scrutiny standard), cert. granted sub nom.
Schwarzenegger v. Entm’t Merchs. Ass’n, 130 S. Ct. 2398 (argued Nov. 2, 2010).
30
See People v. Walker, 354 N.W.2d 312, 316-17 (Mich. Ct. App. 1984).
31
See, e.g., id. at 270-71, 274-75.
23
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of video games.32 The defendant in this case was the operator of a
stationary store on Long Island.33 He was charged with selling
pornographic magazines to a sixteen-year-old boy in violation of
a New York criminal statute that prohibited the sale of harmful
materials to minors.34 That statute, section 484-h of the New
York State Penal Code, provided a criminal penalty for the sale
of pornographic material to minors.35 The current version of this
statute defines “harmful to minors” as follows:
“Harmful to minors” means that quality of any description or
representation . . . of nudity, sexual conduct, sexual excitement, or
sado-masochistic abuse, when it: (a) [c]onsidered as a whole, appeals to
the prurient interest in sex of minors; and (b) [i]s patently offensive to
prevailing standards in the adult community as a whole with respect to
what is suitable material for minors; and (c) [c]onsidered as a whole,
lacks serious literary, artistic, political, and scientific value for minors.36
The Nassau County District Court determined that the
magazines in question were harmful to minors under the
statute’s definition and found the defendant guilty.37 The
defendant appealed this decision but did not challenge the
application of section 484-h.38 Instead, he argued that “the
scope of the constitutional freedom of expression secured to a
citizen . . . cannot be made to depend upon whether the citizen
is an adult or a minor.”39 In other words, the defendant
contended that denying minors’ access to material that is
available to adults was an unconstitutional breach of the
protections afforded by the First Amendment.40 The Court
rejected this argument on the basis that obscenity is not a
protected type of speech,41 and adopted the principle that
certain types of speech may be acceptable for adults but
obscene (and thus unprotected) in relation to minors.42
32
390 U.S. 629 (1968).
Id. at 631.
34
Id. at 631-32.
35
N.Y. PENAL LAW § 484-h (1965). The statute has since been rewritten
under Article 235 of the code as “[d]isseminating indecent material to minors.” N.Y.
PENAL LAW § 235.20-235.24 (McKinney 2008). All quotations contain the currently
enforceable statutory language found in those sections.
36
Id. § 235.20(6).
37
See People v. Ginsberg, 290 N.Y.S.2d 239, 240-41 (N.Y. Crim. Ct. 1966).
38
Ginsberg, 390 U.S. at 635.
39
Id. at 636.
40
Id.
41
Id. at 635; see also Roth v. United States, 354 U.S. 476, 485 (1957).
42
Ginsberg, 390 U.S. at 635-36.
33
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The Court derived this variable obscenity principle using
another well-established principle of First Amendment
jurisprudence: that the protection adults receive under the First
Amendment is not coextensive with that of minors, and as such,
“the power of the state to control the conduct of children reaches
beyond the scope of its authority over adults.”43 Given that
“obscenity is not within the area of protected speech or press,”44
the Court had no trouble approving the New York statute as
constitutional. The Court explained that the definition of
material “harmful to minors” was simply a slight variation on
other definitions of obscene material accepted by the Court in
past decisions.45 Clarifying, the Court stated that section 484-h
merely adjusted these previously accepted definitions of
obscenity to account for the realities of society in assessing this
material’s appeal to the sexual interests of minors.46 Accordingly,
the State’s delineation between adults and minors was not an
abridgment of any fundamental constitutional right.47
Since no such right was violated, the Court undertook a
deferential rational-basis review of the statute.48 The Court
43
Id. at 638 (quoting Prince v. Massachusetts, 321 U.S. 158, 170 (1944))
(quotation marks omitted). This principle has been consistently reaffirmed,
particularly in cases addressing a student’s right to free speech while in school. Cf.
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514 (1969) (Stewart, J.,
concurring) (“Although I agree with much of . . . the Court’s opinion . . . I cannot share
the Court’s uncritical assumption that, school discipline aside, the First Amendment
rights of children are co-extensive with those of adults.”).
44
Ginsberg, 390 U.S. at 635 (citing Roth, 354 U.S. at 485).
45
Id. at 635-36. The Court referred again to the Roth decision and to the
plurality opinion in A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v.
Attorney General of Massachusetts (Memoirs v. Massachusetts), 383 U.S. 413 (1966). In
Memoirs v. Massachusetts, the Court first referred to a general definition for obscenity
proposed in Roth. Id. at 418. Specifically, “whether to the average person, applying
contemporary community standards, the dominant theme of the material taken as a
whole appeals to prurient interest.” Id. The Memoirs Court then elucidated a threeprong test. For material to be considered obscene, the Court held,
it must be established that (a) the dominant theme of the material taken as a
whole appeals to a prurient interest in sex; (b) the material is patently
offensive because it affronts contemporary community standards relating to
the description or representation of sexual matters; and (c) the material is
utterly without redeeming social value.
Id. The Court in Ginsberg noted that that the New York statute seemed to employ
Memoirs’s three-prong test to define obscenity. Ginsberg, 390 U.S. at 635-36.
46
Ginsberg, 390 U.S. at 638 (quoting Mishkin v. New York, 383 U.S. 502, 509
(1966)).
47
Id. at 643.
48
Id. at 639-43. A rational-basis review is applied when there is no breach of
a fundamental constitutional right, and no suspect classification is formed. See Clark v.
Jeter, 486 U.S. 456, 461 (1988). This standard of review is the default level of
constitutional scrutiny. Id.
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highlighted two specific interests promoted by the statute: (1)
the State’s interest in supporting parents’ right to raise their
children,49 and (2) the State’s independent interest in the health
and well-being of its youth.50 With regard to the first interest,
the Court explained that parents are “entitled to the support of
laws designed to aid discharge of [their responsibility to care
for and nurture their children],” and that the statute affects
this by couching its definition of harmful content in what the
adult community deems appropriate.51 As for the second
interest, the Court addressed whether New York could have
rationally concluded that obscene materials, as defined in the
statute, could have damaging effects on the growth and
development of minors.52 The Court pointed out that because
obscenity is not protected, the State did not have to show a
“clear and present danger” posed by the material in question,
but merely that it was rational to believe that this material
could cause harm to minors.53 While studies on the subject were
inconclusive, the Court explained that scientific certainty is not
necessary, and the fact that a causal link between obscene
material had not been disproven was enough to establish that
the State’s belief was not irrational.54 Accordingly, the statute
passed constitutional muster, and the Ginsberg Court affirmed
the defendant’s conviction.55
B.
Attempts to Apply Variable Obscenity to Video Game
Violence
Unsurprisingly, state legislatures were pleased with the
decision in Ginsberg, as it allowed them to regulate certain
types of content that may be deemed appropriate for adults but
not so for minors. Most notably, states have attempted to use
the variable obscenity standard to regulate another
49
Ginsberg, 390 U.S. at 639.
Id. at 640.
51
Id. at 639; see also N.Y. PENAL LAW § 484-h(1)(f)(ii) (McKinney 1965)
(currently § 235.20(6)(b)) (defining “harmful to minors” as material that “is patently
offensive to prevailing standards in the adult community as a whole with respect to
what is suitable material for minors”).
52
Ginsberg, 390 U.S. at 641.
53
Id. (citing Roth v. United States, 354 U.S. 476, 486-87 (1957)) (explaining
that when a statute regulates a form of protected speech, the state must show a
compelling interest by proving that the speech poses a “clear and present danger” to
the class that the statute purports to protect).
54
Id. at 641-43.
55
Id. at 643, 645.
50
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troublesome type of content that could easily be perceived as
inappropriate for minors: content depicting graphic violence.56
As Justice Stewart made clear in his Ginsberg concurrence, “a
child—like someone in a captive audience—is not possessed of
that full capacity for individual choice [that] is the
presupposition of First Amendment guarantees.”57 It seems
warranted, then, that parents and their states would fear that
children viewing violent content, without such capacity, may
misconceive violence as acceptable. Following this train of
thought, states have proposed regulations upon certain outlets
that display graphic violence, such as trading cards58 and
videos.59 While these attempts have failed, violence in video
games may be a bird of a quite different feather, due to the
interactive and immersive nature of the media.60 This reasoning
led many states to adopt statutes that regulated the sale of
video games containing violence to minors.61
Early on in the life of the video game industry, courts
upheld these regulations, as video games were not considered
protected speech due to their inability to “communicate or
express some idea or some information.”62 But once technology
advanced to the point that video games—much like other types
56
See, e.g., Eclipse Enters., Inc. v. Gulotta, 134 F.3d 63, 64-65 (2d Cir. 1997)
(making it a crime to sell any trading card depicting graphic violence to a minor); Video
Software Dealers Ass’n v. Webster, 968 F.2d 684, 687-88 (8th Cir. 1992) (Missouri
statute (1) barring the sale or rental of videocassettes depicting violence to minors and
(2) requiring merchants to display and maintain such tapes in a separate area not
accessible to minors).
57
Ginsberg, 390 U.S. at 649-50 (Stewart, J., concurring) (footnote omitted).
58
See Gulotta, 134 F.3d at 64-65. In this case, New York attempted to
prohibit the sale to minors of trading cards with depictions of violent crimes. The
Second Circuit struck down the regulation as an unconstitutional content-based
regulation. Id. at 68.
59
See Webster, 968 F.2d at 687-88. Here, a Missouri statute prohibited the
sale or rental of videos depicting violence to minors. The Eighth Circuit held that the
statute was unconstitutional. Id. at 691.
60
See Interactive Digital Software Ass’n v. St. Louis, 329 F.3d 954, 957-58 (8th Cir.
2003); Am. Amusement Mach. Ass’n v. Kendrick, 244 F.3d 572, 577 (7th Cir. 2001).
61
See, e.g., CAL. CIV. CODE § 1746-1746.5 (West 2009).
62
Marshfield Family Skateland, Inc. v. Marshfield, 450 N.E.2d 605, 609-10
(Mass. 1983) (explaining that the video games in question were no more than
“technologically advanced pinball machines”); see also America’s Best Family
Showplace Corp. v. City of New York, 536 F. Supp. 170, 174 (E.D.N.Y. 1982) (“In no
sense can it be said that video games are meant to inform. Rather, a video game, like a
pinball game, a game of chess, or a game of baseball, is pure entertainment with no
informational element.”); People v. Walker, 354 N.W.2d 312, 316 (Mich. Ct. App. 1984)
(adopting the rationale of Marshfield to hold that video games are not a form of
communication entitled to constitutional protection). But see Rothner v. City of
Chicago, 929 F.2d 297, 302-03 (7th Cir. 1991) (suggesting that video games have the
potential for expression covered by the First Amendment).
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of art—depicted creative expression in their storylines and
characters, courts quickly picked up on the shift and placed
video games within the realm of speech protected under the
First Amendment.63 This victory for the video game industry
has seemed to put the proverbial nail in the coffin for state
attempts to regulate violent content in video games.
A particularly informative and instructive opinion on this
issue—and one of the first to accept video games as protected
speech under the First Amendment—was written by Judge
Posner in American Amusement Machine Association v.
Kendrick.64 In Kendrick, proponents of the video game industry
challenged an Indianapolis ordinance forbidding establishments
from allowing an unaccompanied minor to use “an amusement
machine that is harmful to minors.”65 In an attempt to fit within
the tenets of Ginsberg, the city adopted language very similar to
the New York statute in defining the term “harmful to minors.”66
Unlike the New York statute, however, the Indianapolis
ordinance was not limited to amusement machines that appeal
to “minors’ prurient interest in sex”; it also included those that
appeal to “minors’ morbid interest in violence.”67 The ordinance
went on to limit the definition to machines containing either
“graphic violence” or “strong sexual content.”68 The city primarily
argued that the legal definition of obscenity should be extended
to include graphic violence in video games, while the plaintiffs
countered that their games were not “obscene” as defined by the
Ginsberg Court.69
63
See LIPSON & BRAIN, supra note 8, at 573.
Kendrick, 244 F.3d 572.
65
See Indianapolis, Ind., General Ordinance 72-2000 (July 10, 2000). This
ordinance refers to pay-to-play arcade-type machines, and applies to owners of
establishments that operate five or more such machines, seemingly aimed at arcades
and other places of public amusement, such as movie theaters that operate arcade
machines. Id.; see also Kendrick, 244 F.3d at 573.
66
See Indianapolis, Ind., General Ordinance 72-2000.
67
Kendrick, 244 F.3d at 573 (emphasis added). The ordinance’s definition of
“harmful to minors” further mimics that found in Ginsberg, going on to stipulate that
such machines must be “patently offensive to prevailing standards in the adult
community as a whole with respect to what is suitable material for [minors],” and must
“lack[] serious literary, artistic, political or scientific value as a whole for [minors].”
Indianapolis, Ind., General Ordinance 72-2000; see also Kendrick, 244 F.3d at 573.
68
Kendrick, 244 F.3d at 573. Judge Posner noted that, because the plaintiffs
did not make game machines containing any “strong sexual content,” the court would
only focus on the “violence” prong. Id. It seems plain, however, that because such
sexual material would easily fall within the Ginsberg definition of obscenity, the sex
prong of the ordinance would withstand constitutional scrutiny. Id. at 579.
69
Id. at 574.
64
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Judge Posner began his assessment of the ordinance by
drawing a very important distinction between the regulation of
violence and that of obscenity. First, he explained that the
First Amendment does not protect obscenity mainly because it
is offensive on its face and “violates community norms
regarding the permissible scope of depictions of sexual or sexrelated activity.”70 Posner then distinguished obscenity from
violent content in video games. In Posner’s view, the city
attempted to regulate video game violence not because it was
inherently offensive, but because the violent content had the
propensity to cause harm—in both the physical sense by
causing minors to act violently and the mental sense by
subjecting minors to psychological damage.71 Judge Posner used
this distinction to demonstrate that obscenity and violence are
two very different categories of objectionable content; under the
law, therefore, they should not be treated as one concept.72
This distinction alone, however, was not enough for
Posner to conclude that video game violence was protected by
the First Amendment; simply demonstrating the difference
between video game violence and obscenity does not end the
inquiry into how video game violence itself should be treated.
Accordingly, Posner continued, examining the narrative nature
of the video games in question, utilizing analogies to violence
used in other art forms (most prominently, literature) to reach
his eventual conclusion.73 He began with some examples of
graphic violence depicted in literary classics, like eye gouging
in the Odyssey and the tortures of the damned in The Divine
Comedy.74 Posner posited that no one would expect an
ordinance banning minors’ access to those works to be upheld.75
Citing one of the games in the record, The House of the Dead,76
he reasoned that most of these games are stories in the same
sense that the literary works are.77 The House of the Dead, he
70
Id. at 574-75 (citing Miller v. California, 413 U.S. 15 (1973)) (explaining that
obscenity is “to many people disgusting, embarrassing, degrading, disturbing, outrageous,
and insulting, but it generally is not believed to inflict temporal . . . harm”).
71
Id. at 575-76.
72
Id. at 574.
73
Id. at 577.
74
Id.
75
Id.
76
This title was a basic “on rails” light-gun game, with the player using a
plastic gun peripheral to shoot zombies and other monsters to protect himself and
other humans. See The House of the Dead, KILLER LIST OF VIDEO GAMES, http://www.
klov.com/game_detail.php?game_id=8153 (last visited Jan. 4, 2010).
77
Kendrick, 244 F.3d at 577.
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explained, featured many “age-old themes of literature,” such
as “self-defense, protection of others, dread of the ‘undead,’
[and] fighting against overwhelming odds.”78 To the point that
video games are different because they contain interactive
game play, with the players actually effecting the violent
depictions, Posner responded that “[a]ll literature [defined to
include movies, television, etc.] is interactive; the better it is,
the more interactive.”79 Accordingly, he concluded that video
game violence should be afforded the same protection as these
literary works, and any regulation of such speech should be
subject to strict scrutiny, requiring a compelling interest and a
means narrowly tailored to meet that end.80 Given the dearth of
hard scientific evidence that the game machines targeted by
the ordinance cause harm to minors, Posner had no trouble
holding that the ordinance was unconstitutional.81
Since Judge Posner’s opinion in Kendrick, courts across
the nation have relied on his language and reasoning to strike
down regulations of violent content in video games.82 For example,
the Eighth Circuit’s decision in Interactive Digital Software
Association v. St. Louis County mimicked Posner’s train of
thought to the letter—explaining that violence and obscenity are
distinct concepts, that today’s video games contain deep stories
with themes and messages common in literature, and that the
interactive nature of video games is of no consequence.83 Similar
reasoning is seen in the most recent federal circuit-court decision
78
Id. at 577-78.
Id. at 577.
80
Id. at 576-79.; see also United States v. Carolene Prods. Co., 304 U.S. 144,
152 n.4 (1938) (explaining that strict scrutiny should be applied when legislation, on its
face, violates a constitutionally guaranteed right).
81
Kendrick, 244 F.3d at 578-80. The city relied primarily on evidence from
studies conducted by Craig Anderson and Karen Dill. See generally Craig A. Anderson
& Karen E. Dill, Video Games and Aggressive Thoughts, Feelings, and Behavior in the
Laboratory and in Life, 78 J. PERSONALITY & SOC. PSYCH. 772 (2000). Posner explained
that these studies did not give the city a compelling interest in restricting the game
machines in question because “there is no indication that the games used in the studies
are similar to those in the record of this case . . . . The studies do not find that video
games have ever caused anyone to commit a violent act . . . or have caused the average
level of violence to increase anywhere.” Kendrick, 244 F.3d at 578-79.
82
See Video Software Dealers Ass’n v. Schwarzenegger, 556 F.3d 950, 952-53,
960-61, 965 (9th Cir. 2009) (striking down a California statute “impos[ing] restrictions
and a labeling requirement on the sale or rental of ‘violent video games’ to minors” as
unconstitutional), cert. granted sub nom. Schwarzenegger v. Entm’t Merchs. Ass’n, 130 S.
Ct. 2398 (argued Nov. 2, 2010); Interactive Digital Software Ass’n v. St. Louis Cnty., 329
F.3d 954, 957, 960 (8th Cir. 2003) (finding unconstitutional a St. Louis ordinance that
prohibited the sale, rental, or procurement of graphically violent video games to minors).
83
See Interactive Digital Software, 329 F.3d at 957-58.
79
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on the topic, Video Software Dealer Association v.
Schwarzenegger.84 In both of these cases, the courts subjected the
regulations to strict scrutiny and found little scientific support for
the proposed compelling interest in protecting minors from harm
caused by video game violence.85 In fact, since the decision in
Kendrick, courts have consistently struck down regulations of
video games based on their violent content.86
C.
Stumbling Blocks of the Kendrick Opinion
While historically instructive, the Kendrick opinion has
many weaknesses, especially when viewed through a more
modern lens. These weaknesses open the door to a change in
jurisprudence as video game technology continues to advance.
The first weakness is Posner’s conclusion that the interactive
nature of video games is no different than that in other types of
literature.87 In reaching this conclusion, Posner reasoned that
all literature is interactive because it “draws the reader into
the story, makes him identify with the characters, invites him
to judge them and quarrel with them, to experience the joys
and sufferings as the reader’s own.”88 This reasoning is
immediately and quite easily contestable. No scientific evidence
is needed to observe the stark differences between reading a
book or watching a movie, and playing a video game. In the
former, the experience is passive viewing; the latter effects a
state of direct control over the action.89 It is one thing to watch
Indiana Jones fight Nazis in the movie Raiders of the Lost
Ark.90 It is quite another to make the decision to pull the trigger
and watch the gory results of your actions unfold in games like
84
See generally Video Software Dealers, 556 F.3d 950.
See Interactive Digital Software, 329 F.3d at 958-60; Video Software
Dealers, 556 F.3d at 961-65. In Video Software Dealers, the Supreme Court granted a
writ of certiorari, and oral arguments took place on November 2, 2010. 130 S. Ct. 2398.
86
See, e.g., Entm’t Software Ass’n v. Foti, 451 F. Supp. 2d 823 (M.D. La.
2006); Entm’t Software Ass’n v. Blagojevich, 404 F. Supp. 2d 1051 (N.D. Ill. 2005);
Video Software Dealers Ass’n v. Maleng, 325 F. Supp. 2d 1180 (W.D. Wash. 2004). But
it still remains to be seen how the Supreme Court will rule on the California statute
challenged in Video Software Dealers.
87
Am. Amusement Mach. Ass’n v. Kendrick, 244 F.3d 572, 577-78 (7th Cir. 2001).
88
Id. at 577.
89
Lubin, supra note 1, at 181-82; see also Maleng, 325 F. Supp. 2d at 1188-90
(acknowledging that video games have certain “unique characteristics” different from
other art forms, which may tend to make them more harmful).
90
See John Wiggins, Plot Summary for Raiders of the Lost Ark, IMDB, http://
www.imdb.com/title/tt0082971/plotsummary (last visited Feb. 1, 2011).
85
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Wolfenstein,91 especially when these decisions reward the gamer
with further progression through the game’s story. This
decision-making element—this concept of control—is not
present in other forms of literature.92 And given minors’ lack of
“that full capacity for individual choice,”93 to rope them all
together is unwarranted and erroneous.
More important is Posner’s discussion of the
offensiveness of obscene content compared to violent content.
Posner states plainly that the problem with obscene material is
not its propensity to cause psychological or physical harm to
minors; rather, obscenity is offensive in the sense that it
violates societal norms of what is appropriate for minors.94
While this notion is sound, Posner’s next assertion is dubious.
To support his conclusion that video game violence is not
offensive in the same sense as obscenity,95 Posner again
referred to The House of the Dead. Describing the violence in
the game, he explained how it
depicts zombies being killed flamboyantly, with much severing of
limbs and effusion of blood; but so stylized and patently fictitious is
the cartoon-like depictions that no one would suppose it “obscene” in
the sense in which a photograph of a person being decapitated might
be described as “obscene.” It will not turn anyone’s stomach.96
He reiterated this point later in the opinion, stating that “[t]he
characters in the video games in the record are cartoon
characters, that is, animated drawings. No one would mistake
them for . . . real people.”97 Perhaps this was indeed the case in
2001. With the exponential advances in technology, however,
the notion that video game violence cannot be offensive in the
same sense as obscenity is tenuous, derived from decade-old
arcade technology. In fact, Posner himself noted that the
situation may be different if “games used actors and simulated
real death and mutilation convincingly.”98
Regardless of these pitfalls, however, and even in the
face of today’s realistic graphic technology, courts have refused
91
See Jason Ocampo, Wolfenstein Review, IGN (Aug. 19, 2009), http://xbox360.
ign.com/articles/101/1014821p2.html.
92
Lubin, supra note 1, at 181-83.
93
Ginsberg v. New York, 390 U.S. 629, 649-50 (1968) (Stewart, J., concurring).
94
Am. Amusement Mach. Ass’n v. Kendrick, 244 F.3d 572, 574-75 (7th Cir. 2001).
95
Id.
96
Id. at 575.
97
Id. at 579.
98
Id.
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to remove video game violence from the realm of the First
Amendment,99 mainly because states have been unable to
categorize video game violence as obscenity. This is a direct
result of the Roth and, subsequently, the Ginsberg definition of
obscenity as material relating to minors’ prurient interests in
sex.100 The Supreme Court has never expanded the definition of
obscenity beyond sexual content, and thus, subsequent courts
addressing video game violence refused to consider such
material as fitting within this category of exclusion.
Consequently, video game violence is protected speech under
the First Amendment; any regulation of that speech is
therefore considered “content based,” “presumptively invalid”
and subject to strict scrutiny.101
D.
Schwarzenegger and the Supreme Court
But the battle is not yet over. On April 26, 2010, the
Supreme Court granted certiorari to Video Software Dealers
Association v. Schwarzenegger, marking the first time that our
nation’s highest court will rule on an attempt to regulate video
game violence.102 At the circuit-court level in Schwarzenegger
(the most recent decision on the matter), the State once again
put forth the tried-but-seemingly-not-true argument that the
variable obscenity standard, as defined in Ginsberg, should
apply to violent video games.103 As such, the Ninth Circuit had
little trouble rejecting the statute in question, citing the myriad
cases entrenching the Ginsberg standard in sexual conduct and
99
See, e.g., Video Software Dealers Ass’n v. Schwarzenegger, 556 F.3d 950,
965 (9th Cir. 2009), cert. granted sub nom. Schwarzenegger v. Entm’t Merchs. Ass’n,
130 S. Ct. 2398 (argued Nov. 2, 2010). Immediately before publication of this note, the
pending Supreme Court decision was renamed Brown v. Entertainment Merchants
Association to account for Edmund G. Brown, Jr.’s replacement of Arnold
Schwarzenegger as Governor of California. Mr. Brown was also a party to the original
case as the former Attorney General of California. This note refers to the case by its
original name.
100
Roth v. United States, 354 U.S. 476, 485-87 (1957); see also Miller v.
California, 413 U.S. 15, 24 (1972) (“A state offense must . . . be limited to works which
. . . appeal to the prurient interest in sex.”).
101
Video Software Dealers, 556 F.3d at 958.
102
Entm’t Merchs. Ass’n, 130 S. Ct. 2398; Jim Reilly, Violent Game Law Goes
to Supreme Court, IGN (Nov. 1, 2010), http://xbox360.ign.com/articles/113/1131462p1.
html (“[I]n April 2009, the U.S. Supreme Court agreed to review the decision, marking
the first time a video game case has gone before the Supreme Court.”).
103
Reply Brief of Defendant-Appellants at 2-6, Video Software Dealers, 556
F.3d 950 (No. 07-16620), 2008 WL 7730384 (arguing that there is no valid reason to
treat the violent content defined in the statute differently from sexually explicit
content, and thus, both should fall within the Ginsberg definition of variable obscenity).
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declining to apply it to violent video games.104 In particular, the
court relied on Kendrick to justify its reluctance to adopt such a
standard.105 But the Ninth Circuit seemed to conflate two
differing approaches to the regulation of video game violence.
On the one hand, the court often referred to the State’s
argument as a familiar attempt to broaden the definition of
obscenity to cover violence.106 At other times, however, the court
noted that the State was instead suggesting an entirely new
First Amendment category of exclusion—a decidedly novel
approach to the matter.107
The State seemed to recognize these two different
concepts and chose to alter its approach slightly after the
Supreme Court granted certiorari. While sticking with the
general principle of expanding the Ginsberg standard, the State
noted in its brief that obscenity is the only historically applicable
parallel to the violent content regulated by its statute and that it
“would not be a misnomer to refer to [this material] as ‘obscene
violence.’”108 In essence, the State set forth that, while violence is
not by definition the same as obscenity, certain extreme
depictions thereof could be excluded from First Amendment
protection under similar justifications, and thus, a new category
of exclusion should be adopted.109 At oral argument, many
justices recognized this novel approach to the issue.110 Though
some seemed reluctant to create a new exception,111 others were
cognizant of the new challenges presented by the everdeveloping technological world.112 It is important to recognize and
understand this differing approach, as it avoids the most obvious
104
Video Software Dealers, 556 F.3d at 957-61. The court noted that the State
was asking the Court to “boldly go where no court has gone before.” Id. at 961.
105
Id. at 960.
106
See id. at 960-61 (“We decline the State’s entreaty to extend the reach of
Ginsberg and thereby redefine the concept of obscenity.”).
107
Id. at 959 (“The State . . . asks us to create a new category of non-protected
material based on its depiction of violence.”).
108
Reply Brief for Petitioners at 4, Schwarzenegger v. Entm’t Merchs. Ass’n,
130 S. Ct. 2398 (Oct. 8, 2010) (No. 08-1448), 2010 WL 4034925.
109
See id. at 2-7.
110
Transcript of Oral Argument at 14-15, Video Software Dealers, 130 S. Ct.
2398 (Nov. 2, 2010) (No. 08-1448), 2010 WL 4317136.
111
See id. at 15-16 (“You are asking us to create . . . a whole new prohibition
which the American people . . . never ratified when they ratified the First Amendment.”).
112
See id. at 36 (“[W]e have here a . . . new medium that cannot possibly have
been envisioned at the time when the First Amendment was ratified.”); id. at 37
(“[T]his presents a question that could not have been specifically contemplated at the
time when the First Amendment was adopted.”).
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roadblock to previous regulatory attempts: that video game
violence is not, by definition, obscenity.
Unfortunately, the Supreme Court has not yet reached a
final decision as this note goes to print—though many
commentators believe that the California statute will be struck
down.113 However decided, the case may already be irrelevant
given its dated technological underpinnings. For example, the
law addressed in the case was signed by Governor
Schwarzenegger on October 27, 2005.114 The first home console
capable of high-definition graphics—the Xbox 360—was not
released until November of that year.115 Accordingly, it is not
possible that the law’s drafters took into account the
implications of modern graphics technology, as such technology
had not yet been released. Furthermore, an evaluation of the
transcript of oral arguments heard by the Supreme Court on
this matter produces few if any references to video games of the
116
current console generation. In fact, the only modern game
mentioned during oral arguments was MadWorld, a standarddefinition Wii title that uses black and white highly-stylized
cartoon violence instead of photo-realistic gore.117 The game that
received the most attention from the Court was Postal 2, a
computer-based first-person shooter that was released back in
2003.118 It seems that no matter how the Supreme Court rules,
the decision will not fully account for the increased levels of
immersion provided for by modern gaming technology.119
113
See, e.g., Dahlia Lithwick, Simulated Originalism: James Madison, Meet
Postal 2, SLATE (Nov. 2, 2010), http://www.slate.com/id/2273338/pagenum/all/#p2 (“I
count only three votes to uphold the California ban . . . . It doesn’t look very good for
the California violent video ban.”); Chris Morris, Analysis: Inside the U.S. Supreme
Court on ‘Schwarzenegger v. EMA,’ GAMASUTRA (Nov. 2, 2010), http://www.gamasutra.
com/view/news/31316/Analysis_Inside_The_US_Supreme_Court_On_Schwarzenegger_
v_EMA.php.
114
Video Software Dealers Ass’n v. Schwarzenegger, 556 F.3d 950, 953 (9th
Cir. 2009), cert. granted sub nom. Schwarzenegger v. Entm’t Merchs. Ass’n, 130 S. Ct.
2398 (argued Nov. 2, 2010).
115
See Xbox 360 Sells Out Within Minutes, BBC NEWS (Dec. 2, 2005),
http://news.bbc.co.uk/2/hi/technology/4491804.stm. The other HD-capable console—the
PlayStation 3—was released a year later on November 11, 2006. See PlayStation 3 Sells
out at Launch, BBC NEWS (Nov. 11, 2006), http://news.bbc.co.uk/2/hi/technology/
6135452.stm.
116
See generally Transcript of Oral Argument, supra note 110.
117
Id. at 57; see also Matt Casamassina, MadWorld Review, IGN (Mar. 9,
2009), http://wii.ign.com/articles/960/960344p1.html.
118
Transcript of Oral Argument, supra note 110, at 12, 42, 57; see also Ivan
Deez, Postal 2 Review, IGN (Apr. 3, 2003), http://pc.ign.com/articles/392/392215p1.html.
119
See infra Part II.
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BREAKING BARRIERS
It is difficult to predict the outcome of the
Schwarzenegger case, or whether the decision will even be
relevant in today’s high-tech gaming world. But the path
advocated by California seems viable, as it tends to focus on the
inherent offensiveness of violent content in video games—
utilizing comparisons to obscenity as a parallel instead of a
synonym. Under this construction, the question is whether
violent video games are inherently offensive in the same sense as
obscenity rather than the same way. In Kendrick, Posner
suggested that violent video games would meet this standard if
their violent content was much more realistic.120 In fact, the
language in Kendrick seems to plainly state that violent video
games would be considered inherently offensive in the same
sense as obscenity if such violence was indistinguishable from
real-life violence.121 So have we reached this point in time
envisioned by Posner? Are we now in a realm where certain
violent video games are as inherently offensive as obscenity and
should similarly be excluded from First Amendment protection?
Put simply, no. There are too many barriers between the
players and the on-screen action to distinguish video game
violence from violence featured in more passive types of art
indulgence, such as watching a movie or reading a book. Even
with the advanced technology of today’s gaming systems, one
would be hard pressed to mistake the interactive experience as
real.122 These barriers, however, are on the verge of collapsing
thanks to the new gaming technology in development. Once
these barriers fall and gaming becomes indistinguishable from
real life, states will have renewed ammunition to regulate video
game violence: the argument that it is offensive on its face (like
obscenity). As such, courts will soon need to reevaluate their
stance on the First Amendment categories of exclusion.
These barriers fall into two overarching categories:
visual and tactile. The first category results from the visual
inadequacies that limit players’ ability to lose themselves
within games. For example, there is the simple fact that the
players are viewing their characters and the action through a
120
Am. Amusement Mach. Ass’n v. Kendrick, 244 F.3d 572, 579 (7th Cir. 2001).
Id.
122
See Blitz, supra note 16, at 1141-42 (“While fantasy life can be deeply
engrossing, it is relatively easy to distinguish from the brick and mortar world in which
we [live].”).
121
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television screen that is literally separate from their bodies. No
matter how intense the in-game violence, players will never be
fully immersed because pieces of their living rooms are still
well within their peripheries—a constant reminder that what
is happening on screen is not real. Moreover, graphic
technology is not yet at the point where a player could
realistically mistake the on-screen characters for real people.
While today’s graphics look extremely realistic in comparison
to the pixilated graphics of the original Nintendo
Entertainment System (NES), there are certain intricacies of
the human form that have yet to be mastered by game
designers, such as precise facial animation used to display
realistic emotions.123
The second barrier—the tactile barrier—presents a
higher hurdle to jump. Since the origin of gaming, players have
controlled the on-screen action using hand-held controllers.
Such controllers were originally very simple, with the first NES
controller having only four button inputs (including start and
select) and one directional pad.124 Today, however, these
controllers have evolved well beyond those limited attributes.
For example, the PlayStation 3 comes with a controller with
eleven button inputs, one directional input, two joysticks, and
motion-sensing capability!125 With such a complicated device
used to interact with the game, how can players ever be fully
immersed? The tactile barrier will not be broken until gamers
can interact without such complications.
With these barriers in place, the courts may have gotten it
right. Gaming simply has not reached the point where it will need
to be treated differently than other art forms. At least not yet.
There are many different gaming technologies in development
that will drastically change the playing field. A few of these
barrier-breakers are available in some form today; some are
slated for release within the next few years; all are extremely real
and forthcoming. When used in tandem, these advancements will
require a reevaluation of our current video-game-violence
jurisprudence. But to fully understand how they will change the
gaming experience, each one must be addressed individually.
123
Richards, supra note 13.
See “Navie,” Top 7 Video Game Controllers, GAMEGIRL (June 7, 2008),
http://gamegirl.blogfaction.com/article/101818/top-7-video-game-controllers (depicting the
original NES controller).
125
David Carnoy, Sony DualShock 3 Review, CNET REVIEWS (Apr. 4, 2008), http://
reviews.cnet.com/game-accessories/sony-dualshock-3-black/4505-10110_7-32913551.html#re
viewPage1.
124
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The Visual Barriers
The Kendrick opinion strongly supports the proposition
that seeing is believing (as the old saying goes). According to
Posner, games have not reached the same level of offensiveness
as obscenity because nobody would see a violent video game
and believe that the depicted violence was in fact real.126 This
presumption still holds true today, given the many visual
barriers in place. More specifically, gamers will not mistake a
game for real life until the action no longer takes place on a TV
screen within their peripheries but instead transpires all
around them, and until video game graphics achieve a level of
uncanny resemblance to what we see in the real world.
Developments in virtual reality and graphics technology,
however, will soon break down the visual barrier between video
games and reality.
1. Virtual Reality
For a long time, the concept of virtual reality (or VR) was
purely science fiction. The idea is that instead of viewing a game
on a television screen that only comprises a fraction of our view,
players would experience the game as if it were happening all
around them.127 The result would be a fully immersive
experience, lacking visual clues that the player is not in fact
within the game world.128 The most common method of creating a
virtual reality is through the use of a “head-mounted display”
(HMD) that surrounds the user’s entire scope of vision with the
game’s graphics.129 This HMD would also be able to track eye
movement and precise turning of the wearer’s head—shifting
the perspective displayed on the device’s screen to realistically
mimic the real-world changes in human visual experience.130 In
short, an effective virtual-reality peripheral would remove
players from their bedrooms and place them squarely within the
virtual world depicted in the game they play.
126
See Am. Amusement Mach. Ass’n v. Kendrick, 244 F.3d 572, 575 (7th Cir. 2001).
Blitz, supra note 16, at 1141-42.
128
Id. at 1142 (citing FRED MOODY, THE VISIONARY POSITION: THE INSIDE STORY
OF THE DIGITAL DREAMERS WHO ARE MAKING VIRTUAL REALITY A REALITY xxiii (1999))
(defining “virtual reality” as “a computer interface that appears to surround the user with
an artificial environment, often called an immersive world, or an immersive environment”).
129
Id.
130
Id. (citing MICHAEL HEIM, VIRTUAL REALISM 7 (1998)).
127
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With the promise of full immersion, it is no surprise
that game designers have tried their hand at creating HMDs.
One such product—made for use with last-generation systems
like the PlayStation 2 and Xbox—proved to be fairly
ineffective.131 The Vuzix Company,132 however, has had much
more success. Most notably, their iWear VR920 video eyewear
has wowed critics with the accuracy of its head tracking.133
Though it only works with a limited number of PC games, the
VR920’s ability to recreate head movements has been described
as “almost unbelievable” and “bring[ing] a new level of realism”
to games.134 Pushing the bar even further is the Vuzix Wrap
920, a pair of media sunglasses that not only utilize a fully
immersive display but also provide for “augmented reality”
through transparent screens that allow three-dimensional
overlays to be viewed on top of real life.135 Both the VR920 and
131
See Gerry Block, Trimersion Virtual Reality Review, IGN (Apr. 4, 2007),
http://gear.ign.com/articles/778/778513p1.html. This primitive model, labeled the
Trimersion Virtual Reality Package, seemed to have the necessary components of an
effective virtual-reality peripheral—namely, an HMD with the capability to track the
head movements of the wearer. But it ended up being quite limited in use and did not
create the true immersion its creators had hoped for. Id. Visually, the screens used in
the HMD were low quality and were not “a pleasure to look at.” Id. The visor also made
180-degree turns nearly impossible, and the head-tracking system had a tendency to
cause the player to look down in the real world when trying to look straight ahead in
the game world. Id. To add insult to injury, the package was also incapable of
registering small changes in the head position. Id. Needless to say, the Trimersion
Virtual Reality Package fell quite short of allowing players to lose themselves in the
virtual world.
132
See generally VUZIX, http://www.vuzix.com/home/index.html (last visited
Dec. 30, 2010).
133
Ben Kuchera, VR on the Cheap: A Review of the Vuzix iWear VR920 Video
Eyewear, ARS TECHNICA (Nov. 7, 2007), http://arstechnica.com/hardware/reviews/2007/
11/virtual-reality-headset-review.ars. For detailed information on the iWear, see
generally iWear VR920 Product Information Page, VUZIX, http://www.vuzix.com/
consumer/products_vr920.html (last visited Feb. 12, 2011), and iWear VR920 Product
Sheet, VUZIX, http://www.vuzix.com/site/_photo/sheet/Vuzix_VR920_Sheet.pdf (last visited
Mar. 25, 2011).
134
iWear VR920—PC—Review, GAMEZONE (Nov. 15, 2007), http://pc.gamezone.
com/reviews/item/iwear_vr920_pc_review (“[O]nce you get the calibration set correctly,
the panning is smooth as silk”). But see Dustin Chadwell, The Next Generation of Virtual
Reality Gaming Headsets Has Arrived. Does It Work as Advertised?, GAMING AGE (Nov.
14, 2009), http://www.gaming-age.com/review/hardware/vuzix_vr920 (noting that the
head tracking is not perfect, especially when quick head motions are used in certain firstperson shooter games).
135
See Wrap 920 Product Information Page, VUZIX, http://www.vuzix.com/iwear/
products_wrap920.html (last visited Dec. 30, 2010); Wrap 920 Product Sheet, VUZIX,
http://www.vuzix.com/site/_photo/sheet/Wrap_920_Product_Sheet_329PB0005_A.pdf; Vuzix
Announces New Wrap 920AV Video Eyewear with Revolutionary “See-Thru” Quantum
Optics Technology, MY DIGITAL LIFE (Jan. 8, 2009), http://www.mydigitallife.info/2009/01/
08/vuzix-announces-new-wrap-920av-video-eyewear-with-revolutionary-see-thru-quantumoptics-technology. For more information about the distinctions between virtual reality and
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Wrap 920 are now available on store shelves. Vuzix has also
recently announced plans for their next VR headset—the Wrap
VR1200—demonstrating the company’s dedication to support
and perfect the technology in the future.136
In truth, VR has yet to be adopted for widespread use
with console and PC video games.137 Still, given its potential for
full-immersion gaming, there is no question that, once
perfected, VR will become a staple of the gaming industry. The
theoretical implications of widespread implementation are
staggering. Through the use of VR, players can enter the shoes
of their favorite game heroes, experiencing their virtual fantasy
world as if it were the players’ own. While certain to enrich the
gaming experience, VR may have many undesirable results,
especially when used by children. For example, consider the
popular science-fiction horror game Dead Space.138 This game is
of the “survival horror” genre, pitting players in the shoes of a
space engineer who must fight his way through the dark,
claustrophobic corridors of a decrepit spacecraft, using his
mining tools to fend off hordes of bone-chilling monsters known
as “necromorphs.”139 The game has been described as
“unsettling,” “disturbing,” and “violent and horrible”—filled
with unimaginable creatures and a terrifying atmosphere.140
With virtual reality in place, players would not simply see the
blood-splattered walls on screen, but would experience the
tight passageways and scary atmosphere all around them. The
grotesque necromorphs would be charging right into their
faces, sneaking up from behind them, surrounding them from
every angle, as if they were truly attacking the players and not
augmented reality, see Kevin Bonsor, How Augmented Reality Will Work, HOW STUFF
WORKS, http://www.howstuffworks.com/augmented-reality.htm (last visited Feb. 12, 2011).
136
At the time of this writing, the Wrap VR1200 was slated for a Spring 2011
release. Wrap VR1200 Product Information Page, VUZIX, http://www.vuzix.com/
consumer/products_wrap_vr1200.html (last visited Mar. 25, 2011); Vuzix Announces Its
Next Generation Virtual Reality Video Eyewear—The Wrap VR1200, VUZIX (Jan. 4, 2011),
http://www.vuzix.com/site/_news/Press%20Release%2001-04-2011%20Wrap%20VR1200%
20-FINAL%20FINAL-1.pdf.
137
While Vuzix devices are compatible with many PC games, a limited
number actually support the head-tracking technology as a viewpoint-control option.
See Virtual Reality Support for iWear VR920 & Wrap 920 Eyewear, VUZIX, http://www.
vuzix.com/consumer/products_vr920_support.html (last visited Dec. 30, 2010).
138
Jeff Haynes, Dead Space Review, IGN (Oct. 10, 2008), http://ps3.ign.com/
articles/918/918859p1.html.
139
Id.
140
Id.; see also Lark Anderson, Dead Space Review, GAMESPOT (Oct. 13, 2008,
6:21 PM), http://www.gamespot.com/xbox360/action/deadspace/review.html (noting the
game’s “[t]ruly terrifying gameplay” and “disturbingly twisted visuals”).
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their in-game characters.141 What is more, through the use of
augmented reality, players could see the terrible necromorphs
chasing them through their own homes. Needless to say, any
fear that gamers experienced while playing Dead Space on
their television screens would be substantially amplified
through the use of VR—with the scary and violent happenings
appearing much more realistic as gamers become fully
immersed in the game world.
The potential dangers of this immersion have been
demonstrated by VR systems used to treat certain psychological
disorders.142 One study of particular note is Virtual Iraq, which
aims to treat soldiers who are experiencing post-traumatic stress
disorder (PTSD).143 By allowing soldiers to experience the
battlefield in a controlled, virtual environment, many were able
to better cope with what they experienced while away at war.144
But despite the positive effect on soldiers, the experience had an
almost Newtonian equal-and-opposite effect on certain
civilians.145 For example, an actor training for a role in a warthemed movie stepped into the simulation and was presented
with a full battle experience.146 Ten minutes in, he stopped the
141
Haynes, supra note 138 (describing scenes where the monsters unexpectedly
crawl out of vents and creep up on the player from behind).
142
Virtual reality has often been used to help treat certain fears through
controlled exposure. See, e.g., Will Knight, Computer Games Can Treat Phobias,
NEWSCIENTIST (Oct. 20, 2003, 2:50 PM), http://www.newscientist.com/article/dn4292computer-games-can-treat-phobias.html (showing how VR displays are used with
games to cure fears like arachnophobia and claustrophobia through exposure therapy);
Sam Lubell, On the Therapist’s Couch, a Jolt of Virtual Reality, N.Y. TIMES, Feb. 19,
2004, available at http://imsc.usc.edu/press/pdfs/04_02_19.pdf (treating public-speaking
anxiety through use of a VR audience).
143
See Sue Halpern, Virtual Iraq, NEW YORKER (May 19, 2008), available at
http://www.newyorker.com/reporting/2008/05/19/080519fa_fact_halpern?currentPage=a
ll; see also Virtual Iraq—VR Based Therapy for Post-Traumatic Stress Disorder,
DEFENSE UPDATE (Dec. 1, 2005), http://defense-update.com/products/v/VR-PTSD.htm.
The therapy used in Virtual Iraq is known as Virtual-Reality Exposure Therapy and
Arousal Control (VRET-AC); it relies heavily on the concepts of “immersion” and
“presence.” See Dennis Patrick Wood, Brenda K. Wiederhold & James Spira, Lessons
Learned from 350 Virtual-Reality Sessions with Warriors Diagnosed with CombatRelated Posttraumatic Stress Disorder, 13 CYBERPSYCHOLOGY, BEHAV. & SOC.
NETWORKING 3, 3-5 (2010) (defining immersion, presence, their interrelation, and how
they are achieved through the use of virtual reality).
144
Halpern, supra note 143 (“The first thing [one patient] noticed, after a few
weeks of Virtual Iraq exposure therapy, was that he was able to sleep without
medication. He was more relaxed, and he could joke around. . . . [He said that] ‘[t]oward
the end, it was pretty easy to talk about what had happened over there. We went over all
the hot spots in succession. I could talk about it without breaking down.’”).
145
See id.
146
Id.
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simulation because it was affecting him physically.147 The actor
“started to sweat. His heart was racing. His hands were numb.
He was having a hard time holding the rifle. His face went
white. He bit his lips.”148 Clearly, the VR experience present in
this study was extremely jarring. Given the multitude of games
that feature intense war-themed graphics, sounds, and action,149
widespread adoption of VR technology has the potential to
enhance realism of video games to extreme levels—levels even
adults may not be comfortable experiencing.
2. Uncanny Graphics
Much of Posner’s conclusion that video game violence is
not offensive in the same sense as obscenity was based on the
fact that video games are visually distinguishable from real
life.150 Almost a decade later, the same remains true. While
high-resolution displays and advanced computer processors
have allowed for very detailed and realistic environments, the
characters in games still do not perfectly resemble human
beings.151 Certain intricacies of human emotion—such as subtle
eye movements and the natural asymmetry of the human
face—pose trouble for game designers trying to accurately
recreate human facial expressions.152 Another problem is
detailed in the uncanny valley theory, developed by Dr.
Masahiro Mori.153 According to this theory, as analogues to the
human form come closer and closer to identically resembling an
actual human being, there is a drop-off point at which, instead
of looking human, the analogues look like scary human corpses
and elicit negative feelings in viewers.154 Due to the difficulty of
147
Id.
Id.
149
See, e.g., Ocampo, supra note 6; Nate Ahearn, Battlefield: Bad Company
Review, IGN (June 20, 2008), http://ps3.ign.com/articles/883/883276p1.html; Hilary
Goldstein, Call of Duty 4: Modern Warfare Review, IGN (Nov. 5, 2007), http://xbox360.
ign.com/articles/832/832599p1.html.
150
See Am. Amusement Mach. Ass’n v. Kendrick, 244 F.3d 572, 575 (7th Cir.
2001) (describing the violence in the games in question as “stylized” and “cartoon-like”).
151
For example, the PS3 title Killzone 2 has received immense praise as being a
graphical masterpiece, yet the flaws in the facial design of the characters tended to
detract from the action. See Killzone2 Review, CRAVEONLINE (Mar. 3, 2009),
http://www.craveonline.com/gaming/article/killzone-2-review-73715 (“The only downside
to the graphics are actual character models in Killzone 2.”).
152
Richards, supra note 13.
153
See Marisa Brook, A Walk in the Valley of the Uncanny, DAMN INTERESTING
(May 24, 2007), http://www.damninteresting.com/a-walk-in-the-valley-of-the-uncanny.
154
Id.
148
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accurately animating the human face in video games, game
designers have been fighting an uphill battle. Unable to
achieve perfection, they have been forced to create character
models with faces that are further from uncanny resemblance
in an effort to avoid falling into the uncanny valley and
repulsing the game players.155 In other words, game designers
are purposely creating characters that look more like cartoons
and less like realistic humans and will continue along this
trend until the uncanny valley can be avoided completely.
Recently, however, Image Metrics, a California-based
computer-imagery company, has overstepped the uncanny
valley with their creation of “Emily,” a computer-generated
human analogue that has been revered as truly photorealistic.156 Using one-to-one pixel mapping, Image Metrics
developed a technique that allows them to track facial
movements down to the minutest detail, such as “the
movement in the top 3-4mm of the right side of the smile.”157
Through this technique, the company has made great strides in
overcoming the obstacles mentioned earlier, such as properly
animating the eyes and problems with symmetry.158 The results
are outstanding, gaining much buzz around the Internet,159 and
truly must be seen to be believed.160
Though Image Metrics has often worked in the gamedesign field,161 this technology has yet to be implemented in
video games, primarily because the processors available for
computers and installed in home consoles like the PlayStation
3 and Xbox 360 are not capable of handling the complicated
155
See Richards, supra note 13 (“For many years now, animators have come
up against a barrier known as ‘uncanny valley,’ which refers to how, as a computergenerated face approaches human likeness, it begins [to] take on a corpse-like
appearance . . . . As a result, computer game animators have purposely simplified their
creations so that the players realise [sic] immediately that the figures are not real.”).
156
Id. For a video of Emily, see The Emily Project, IMAGE METRICS, http://www.
image-metrics.com/project/emily-project (last visited Feb. 1, 2011).
157
Image Metrics’ method involves the facial mapping of individual pixels in a
video instead of applying motion-capture dots to certain facial reference points. See
generally Richards, supra note 13.
158
Id.
159
See Image Metrics Emily Cg Facial Animation Blows My Mind, TECHNABOB
(Aug. 20, 2008), http://technabob.com/blog/2008/08/20/image-metrics-emily-facial-animationblows-my-mind (“[Y]ou’d be really hard-pressed to tell the difference between digital Emily
and real-world Emily.”).
160
The Emily Project, supra note 156.
161
Richards, supra note 13 (noting that Image Metrics has produced facial
animations for popular titles like the Grand Theft Auto series).
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computation involved in animating an analogue like Emily.162
But processors with enough power will be available for PCs in
the next ten years and will likely be included in the coordinate
generation of home consoles.163 In other words, the ability to
create games with photo-realistic graphics is at hand; game
designers are simply waiting for graphics-processing
technology to catch up.
As soon as this technology is implemented in video
games, video game violence will become tremendously more
offensive. For example, the game Medal of Honor: Frontline
opens with a stage recreating D-Day from World War II.164
Players arrive on the shores of Normandy surrounded by their
comrades, who subsequently get mowed down by oncoming rifle
fire. Through the use of photo-realistic graphics, the players will
see this carnage as the actual soldiers saw it—with real-looking
humans dying in realistic ways, suffering realistic flesh wounds
and losing realistic limbs, all the while grimacing and cringing
with uncanny accuracy. This is no longer the “cartoon-like”
violence Posner labeled inoffensive in Kendrick165 and could alone
warrant a jurisprudential reevaluation by the courts.
B.
The Tactile Barrier and Motion Control
In Kendrick, Posner refused to treat the violence in
video games differently from violence in other art forms, such
as movies and literature.166 He posited that the interactive
162
Id. (“If you’re trying to process the graphics in a photo-realistic animation, in
real-time, there’s a lot of computation involved.”). But strides are being made with regard
to facial motion capture in this generation of video games, the most stunning example
being the use of Australian company Depth Analysis’s MotionScan camera technology in
the upcoming Rockstar Games L.A. Noire. See Tim Stevens, L.A. Noire’s Amazing
MotionScan Facial Capture System Demonstrated, ENGADGET (Dec. 17, 2010, 3:45 PM),
http://www.engadget.com/2010/12/17/l-a-noires-amazing-motionscan-facial-capture-systemdemonstrat; Jake Gaskill, L.A. Noire Facial Recognition Tech Video Drops, Perfectly Maps
Jaws, G4TV (Dec. 16, 2010), http://g4tv.com/thefeed/blog/post/709238/LA-Noire-FacialRecognition-Tech-Video-Drops-Perfectly-Maps-Jaws.html (“The facial animation tech at
work in the game . . . has, until now, only been seen in major blockbuster movies, and, in
fact, this marks the tech’s first appearance ever in a video game.”). But see Evan Narcisse,
Face-to-Face with “L.A. Noire’s” Cutting-Edge Tech, TIME TECHLAND (Dec. 17, 2010),
http://techland.time.com/2010/12/17/face-to-face-with-l-a-noires-cutting-edge-tech (“As good
as this stuff looks, we’re deep into Uncanny Valley-land here. It remains to be seen if the
MotionScan performances will be at all off-putting for people who want to play the game.”).
163
Richards, supra note 13 (“[T]he line between what was real and what was
rendered would not be blurred completely until 2020.”).
164
See generally Perry, supra note 7.
165
Am. Amusement Mach. Ass’n v. Kendrick, 244 F.3d 572, 575 (7th Cir. 2001).
166
Id. at 577.
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component of video games is no different from the immersive
qualities of the best books and cinema.167 Perhaps with the
current state of gaming technology, the immersive quality of
video games does not warrant any special treatment. After all,
how immersed can a player get when he is required to control
his on-screen character through complicated button inputs?
But the fact remains that games are different from movies and
literature in that they contain this element of control and
decision making. Once games can be controlled using methods
that do not constantly remind players that they are in fact
simply playing a video game, such as through advanced
motion-sensing technology, it may be warranted to treat them
differently from other types of media.
The use of motion-based controls is a fairly new
development in how players interact with games, and it has
created a powerful buzz in the game industry. The motioncontrol craze began with the release of the Nintendo Wii. The
Wii was the first home console to allow players to utilize their
physical motions to control the action on screen.168 While this
technology has been successful in its own right, leading the Wii
to outclass its competitors in worldwide sales,169 it is has been
unsuccessful in fully breaking the tactile barrier. The
technology in the Wii remote is not sophisticated enough to
process intricate physical motions. While this is fine for
mimicking the simple act of throwing a bowling ball in Wii
Sports,170 games like The Legend of Zelda: Twilight Princess171
167
Id.
See generally Matt Casamassina, IGN’s Nintendo Wii FAQ, IGN (Sept. 19,
2006), http://wii.ign.com/articles/733/733464p1.html (“The Wii system is the fruit of a
new Nintendo philosophy that is determined to emphasize original and fresh gameplay
endeavors . . . . [The] Wii’s biggest innovation lies with a potentially revolutionary new
controller.”). Using a combination of high-tech accelerometers (known as “Micro
Electro-Mechanical System” (MEMS) units) and infrared sensors, the handheld Wii
remote controller (affectionately labeled the “Wii-mote”) tracks its own relative motion,
translating a player’s wrist flicks and twists into commands for the on-screen
counterparts to follow. See Michel Marriot, At the Heart of the Wii, Micron-Size
Machines, N.Y. TIMES, Dec. 21, 2006, at C12, available at http://www.nytimes.com/
2006/12/21/technology/21howw.html?_r=3&oref=slogin&oref=slogin.
169
Hardware Totals, VGCHARTZ, http://www.vgchartz.com/hardware_totals.php
(last visited Feb. 12, 2011) (demonstrating that the Nintendo Wii ranks fifth all-time in
total units sold with 84.72 million worldwide, whereas the competing Microsoft Xbox
360 and Sony PlayStation 3 rank ninth and eleventh with 51.29 million and 47.34
million units sold respectively).
170
Matt Casamassina, Wii Sports Review, IGN (Nov. 19, 2006), http://wii.ign.
com/articles/745/745708p1.html (noting that the Wii remote works very well for
recreating real-life bowling).
168
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and Ready 2 Rumble Revolution172 have been less successful in
recreating more advanced motions like sword fighting and
boxing, respectively. In short, the Wii technology is not up to
the task of creating a fully immersive experience due to its
inability to accurately process a player’s motions beyond the
simplest activities, removing most of the “reality” from the
motion-based experience. Nintendo has recently introduced the
Wii MotionPlus, a small device that plugs into the bottom of
the Wii remote to increase its ability to recreate players’
motions with near one-to-one accuracy. Critics have claimed
that this peripheral is a marked improvement over the
capability of the standard Wii remote.173 But even with the Wii
MotionPlus, players are still required to hold a controller in
their hands, often necessitating a combination of button inputs
with physical motions, which acts as a constant reminder that
they are, in fact, simply playing a video game.
The Nintendo Wii’s commercial success has informed its
competitors that players want motion-based controls due to the
potential for these controls to make players’ interaction with
their games more realistic. Both Sony and Microsoft have
developed, and recently released, new motion-sensing
technologies for use with their systems.174 It is Microsoft’s
device, however, that is the most intriguing and offers the
greatest potential for players to lose themselves within games.
171
Matt Casamassina, The Legend of Zelda: Twilight Princess Review, IGN
(Nov. 17, 2006), http://wii.ign.com/articles/746/746691p2.html (explaining that swinging
the Wii remote to make the main character attack does not create one-to-one movement
recognition but simply replaces a button press with a wrist flick).
172
Craig Harris, Ready 2 Rumble Revolution Review, IGN (Mar. 18, 2009),
http://wii.ign.com/articles/964/964019p1.html (“Ready 2 Rumble Revolution is the
latest game that attempts all sorts of various Wii waggle for all of its attacks, and
ultimately fails at giving players the precision they need to pull them off.”).
173
See Martin Robinson, Wii MotionPlus Arrives, IGN UK (Jun. 12, 2009),
http://wii.ign.com/articles/994/994199p1.html; see also Craig Harris, Wii Sports Resort
Review, IGN (July 26, 2009), http://wii.ign.com/articles/100/1004395p3.html (“[This
game is] a wonderful demonstration of the capabilities of the Wii Motion Plus
peripheral, and shows just how much it changes Wii motion sensing for the better. The
device is incredibly accurate.”).
174
Sony’s offering, the PlayStation Move, combines a Wii remote-like
controller with a motion-detecting camera called the PlayStation Eye. See Giancarlo
Varanini, PlayStation Move: What You Need to Know, GAMESPOT (June 17, 2010, 1:05
PM), http://move.gamespot.com/updates/index.php?id=6266516. Out of the three (the
Wii, the Move, and the Kinect), the Move may in fact provide for the most accurate
motion detection, but its potential for full immersion is still limited by the complicated
controller in the player’s hand. See generally Scott Lowe, PlayStation Move Review,
IGN (Sept. 17, 2010), http://gear.ign.com/articles/111/1117286p1.html (“At the end of
the day, the PlayStation Move has the potential to be the best motion control system on
the current crop of consoles.”).
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Microsoft’s motion-detecting peripheral for use with the Xbox
360 console, originally labeled Project Natal, is called the
Kinect.175 The Kinect is a camera that allows players to control
the game experience utilizing a combination of actions used
every day to interact in the real world—full-body physical
movement, facial expressions, and speech—with no need for a
handheld controller whatsoever.176 While in development, the
original Project Natal prototype repeatedly blew critics away.177
It had been reported that the Natal’s ability to recognize
extremely precise movement was astounding, with onscreen
characters recreating wild arm waving and random hip
thrusting perfectly, as well as accurately detecting different
movement speeds for calculating how hard a player is
attempting to hit a ball, swing a bat, etc.178
Unfortunately, some of the magic seems to have been
lost in the transition between the Project Natal and the nowavailable Microsoft Kinect. Accurate motion detection is still
present, but the final product contains a lack of immersion and
responsiveness due to some unpleasant lag between the
player’s movements and the on-screen representations
175
See Tor Thorsen, Project Natal Renamed Kinect, Due in November,
GAMESPOT (June 13, 2010, 8:40 PM), http://kinect.gamespot.com/updates/index.php?id
=6265354.
176
Scott Lowe, Microsoft Kinect Review, IGN (Nov. 3, 2010), http://gear.ign.
com/articles/113/1132213p1.html (“Microsoft has paired an RGB VGA camera with a
resolution of 640 x 480, a depth sensor of the same resolution, and a multi-array
microphone into a single peripheral that can gauge distance and motion, digitally map
a 3D space, and even visually recognize players and accept voice commands; and it does
it all in real time.”); see also Edwards, supra note 17; Geddes, supra note 17.
177
The groundbreaking device purported to detect a player’s full body and
motion in a 3D space “with spectacular accuracy.” Martin Robinson, GC 2009: Project
Natal Preview, IGN UK (Aug. 20, 2009), http://xbox360.ign.com/articles/101/1016309p1.
html. According to people who had tried the device, it worked exactly as described. See,
e.g., Jeremy Dunham, E3 2009: I’ve Played Natal and It Works, IGN (June 2, 2009),
http://xbox360.ign.com/articles/989/989269p1.html.
178
See Robinson, supra note 177. The potential power and effectiveness of the
Natal peripheral was also demonstrated by the large number of game developers and
publishers that were ready to jump on board even before its official release, confirming
that their future titles would support the use of Project Natal. See, e.g., Jim Reilly, All
Future Epic Games to Support Natal, IGN (Oct. 9, 2009), http://xbox360.ign.com/articles/
103/1033630p1.html; Jim Reilly, Fable III Getting Natal Support, Micro-Transactions, IGN
(Oct. 22, 2009), http://xbox360.ign.com/articles/103/1037764p1.html; Tom Magrino, Unreal
the ‘Unofficial Engine’ of Natal, GAMESPOT (Oct. 9, 2009, 11:44 AM), http://www.gamespot.
com/news/6232564.html; see also Hilary Goldstein, Crytek Considering Natal, IGN (Aug. 12,
2009), http://xbox360.ign.com/articles/101/1013226p1.html (“The Natal project sounds
fascinating. . . . Just making games higher and higher resolution is never going to be the
future, there needs to be other routes too.”).
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thereof.179 Even with its limitations, however, the Kinect is most
assuredly a portent of things to come, demonstrating that
motion-controlled gaming is here to stay, and the ability to
create a fully immersive controller-less experience is only
slightly beyond our reach.180 And the importance of this
technology is only further validated by the extent to which
game creators have praised it181 and the way the Kinect has
absolutely flown off store shelves.182
By taking the controller completely out of the player’s
hand, future devices like the Microsoft Kinect have the
potential to create interactive gaming experiences that go far
beyond the simple “toggle stick” described by Posner.183 For
example, current controllers require you to guide your soccer
team to victory in a game like FIFA Soccer 11184 by using
complicated button presses and the pitch of an analog stick.
The Kinect and its future progeny, however, will allow your
own precise leg and body movements to control how your
players pass, aim, shoot, steal, and dribble—just like in real
life. Delineations between a pass and a shot would not be about
pressing either the “A” button or the “B” button, but would rely
179
See Lowe, supra note 176 (noting that the finalized model no longer has the
integrated processing unit that was included in the Natal prototype, and while the
Kinect is still accurate in detecting motion, there is a noticeable delay in the
translation between the camera and the console, and this delay “will certainly stand in
the way of more advanced gaming applications”).
180
The only reason for the lag in the Kinect seems to be the result of a
decision designed to decrease the retail price of the device. See id. (“The impact of
Microsoft’s decision to ditch onboard processing, presumably to cut costs, has resulted
in a hit to the sensor’s responsiveness.” (emphasis added)).
181
One creator stated that “technology-wise, it surpasses anything that exists
right now”; another described using it for the first time as just “like the 2D to 3D
shift . . . that was the degree of shock I felt” and said that “it has the potential to
change lifestyle dramatically.” Erik Brudvig, TGS 09: Kojima on Natal-Like 2D to 3D
Shift, IGN (Sept. 24, 2009), http://xbox360.ign.com/articles/102/1027989p1.html.
182
See Paul Miller, Microsoft Announces 2.5 Million Kinects Sold in First 25 Days,
ENGADGET (Nov. 29, 2010, 7:44 PM), http://www.engadget.com/2010/11/29/microsoftannounces-2-5-million-kinects-sold-in-first-25-days; Bianca Bosker, Microsoft’s Kinect
Selling Twice as Fast as the iPad, HUFFINGTON POST (Nov. 30, 2010), http://www.huffington
post.com/2010/11/30/kinect-selling-twice-as-fast-as-ipad_n_789752.html; Brett Walton, Kinect
Sales Reach 4 Million Units Worldwide, GAMRFEED (Dec. 14, 2010), http://gamrfeed.vgchartz.
com/story/83079/kinect-sales-reach-4-million-units-worldwide (“In the same timeframe from
launch, Nintendo’s Wii managed to sell 2.9 million units and Sony’s PlayStation Move sold
just over 900,000 units (camera + at least one Move controller)—less than 1/4 of the sales of
Kinect.”); see also Brendan Sinclair, Kinect to Reach 7.6 Million in 2011—Report, GAMESPOT
(Dec. 23, 2010, 11:03 AM), http://www.gamespot.com/news/6285819.html?tag=latest
headlines%3Btitle%3B4.
183
Am. Amusement Mach. Ass’n v. Kendrick, 244 F.3d 572, 579 (7th Cir. 2001).
184
See generally Guy Cocker, FIFA Soccer 11 Review for Xbox 360, GAMESPOT
(Oct. 1, 2010, 2:48 PM), http://www.gamespot.com/xbox360/sports/fifasoccer11/review.html.
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on how hard you kick, what part of your foot makes contact
with the ball, where your body is pivoted to aim, and so on. You
could even use your own voice to call for a pass!
The same applies, however, for games that contain
graphic violence. For example, the protagonists in games like
Metal Gear Solid 4185 and Tom Clancy’s Splinter Cell:
Conviction186 are forced to utilize stealth, and as such, often find
the need to sneak up behind enemies, choke them into
submission, and, if they choose, snap their necks in order to
remain unnoticed. Using devices like the Kinect, players would
be able to mimic actual strangling motions, with the quick
flicks of their hands used to take their enemies by surprise. It
is not hard to imagine minors playing a game like Metal Gear
Solid 4 in their living rooms, wringing their hands in real life
to brutally incapacitate his or her enemies in the game.
Through the introduction of the Kinect, the level of
interactivity in games that Posner and subsequent courts have
likened to that of books and movies will be a faint memory.
This is no longer sitting, clicking, and flicking. This is being.
III.
CHANGING THE GAME(S)
The world in which Posner exclaimed that games are
not offensive in the same way as obscenity is today a far cry
from the world imagined by these upcoming technologies.
Moreover, when these technologies are used in tandem, the
experience will assuredly be astoundingly real. For example,
imagine a hypothetical home console called the “Omega.” The
system has been built from the ground up to take full
advantage of Image Metrics’ face-mapping technology, with the
processing power to create perfect human analogues in games.
In other words, the game world has become visually
indistinguishable from real life. The line has been blurred.
Next, imagine that instead of viewing these images in 2D on a
TV screen, players see the virtual world all around them using
a perfected VR headset in the vein of the Vuzix devices
185
Jeff Haynes, Metal Gear Solid 4: Guns of the Patriots Review, IGN (June
12, 2008), http://ps3.ign.com/articles/881/881472p1.html (“[Y]ou may need to use
everything from playing dead to rolling on the ground to evade visual contact to new
[close-quarters combat] attacks, such as lying atop an enemy and choking them silently
to incapacitate opponents.”).
186
See Hilary Goldstein, Splinter Cell: Conviction Review, IGN (Apr. 9, 2010),
http://xbox360.ign.com/articles/108/1082854p1.html (“[The player-controlled character] Sam
lurks in the shadows, finds his moment to pounce and strikes with deadly efficiency.”).
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mentioned earlier. This alone seems like an experience that is
way more intense than anything the public has played before.
The line fades. But it gets better. Imagine now that gamers are
playing the Omega in front of a Kinect-like device. The device
detects the players’ precise head tilts and turns, and changes
the perspective they are seeing through the VR helmet to
create a seamless, 360-degree virtual world. The line vanishes.
Now imagine further that the players are interacting with the
characters in the game world using precise full-body motions
and vocal commands, with zero need for a handheld controller.
The line is a mere afterthought. It is fully conceivable that with
all of these technologies working hand in hand, the gaming
experience will be completely indistinguishable from real life.
The Omega’s danger—and, more importantly, its
offensiveness—becomes clear when violent content is added to
the mix. The possibilities are extremely jarring. For example,
take a game like Manhunt,187 which has players performing
gory and brutal stealth kills on heavily armed enemies with
everyday objects, such as plastic bags, shards of glass, and
crowbars. This game has already given birth to a Nintendo Wii
sequel, Manhunt 2,188 which lets players actuate these horrible
acts with rudimentary motion controls (imprecise wiggles and
waggles). But what if Manhunt 3 was to come out on the
Omega? Players are dropped into a dark and dingy alleyway
that is indistinguishable from the one down the street from
their apartment. They notice a large, stalking shadow in the
distance, brandishing a baseball bat. The player tilts his head
all around, sizing up the situation, when he notices a broken
beer bottle lying next to a dumpster. As silently as possible, the
player creeps up behind his assailant, and when close enough,
grabs the man and plunges the broken glass into his neck using
precise arm motions. The player twists and turns his wrist,
187
See Douglass C. Perry, Manhunt, IGN (Nov. 19, 2003), http://ps2.ign.com/
objects/549/549938.html.
188
Jeff Haynes, Manhunt 2 Review, IGN (Oct. 29, 2007), http://wii.ign.com/
objects/883/883115.html. Because of the game’s increased level of violence and the
inclusion of motion controls, Manhunt 2 generated particular controversy. It came close
to receiving an “Adults Only” rating from the Entertainment Software Review Board
and also faced many challenges from the British Board of Film Classification as per the
Video Appeals Committee’s decision to allow the game to retail in the UK. See
generally Martin Robinson, Manhunt 2 Take to Court, IGN (Dec. 18, 2007), http://wii.
ign.com/articles/842/842082p1.html; Rob Burman & Matt Casamassina, Rockstar
Responds to Manhunt 2 Ban, AO Rating, IGN (June 20, 2007), http://wii.ign.com/
articles/797/797920p1.html. Manhunt 2 was also designated as one of the scariest
games of the last generation by IGN. See 13 Scariest Games of This Generation, IGN
(Oct. 29, 2008), http://wii.ign.com/articles/925/925281p1.html.
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digging deeper into the man’s flesh. Blood pours out, and the
player watches as the man, bearing an uncanny resemblance to
an actual human being, cringes and cries out in pain until he
slowly fades away; the man is dead in the player’s arms. Using
precise motion controls in an immersive, photo-real
environment to recreate such violent murders would shock the
conscience, especially when considering minors. Isn’t this type
of gaming experience just as offensive to community standards
of what is appropriate for minors, just as “obscene,” as any
sexually explicit content?
A.
Adapting the Law as the Technology Advances
Considering the implications of a console like the
Omega, the validity of Judge Posner’s decision in Kendrick and,
consequently, the subsequent decisions that use Kendrick as a
model for striking down regulations of violent video games,
must soon be brought under rigorous scrutiny. Posner
entrenched his reasons for differentiating between the dangers
of obscenity and those of video game violence in the notion that
video games are no more immersive or interactive than movies
or literature,189 and that the violence in video games would
never be mistaken for real-life violence.190 These conclusions,
however, will not be true for much longer. Accordingly, our
jurisprudence regarding state regulation of video game violence
will need to adapt to account for the increasing offensiveness of
this violence and its similarity to the deplorable characteristics
of obscenity. While it is unclear precisely how such adaption
will proceed, there are four plausible possibilities: (1) the
development of a technological tipping point, (2) the expansion
of the legal definition of obscenity, (3) the development of more
narrowly tailored statutes, or (4) the creation of a new category
of First Amendment exclusion.
1. A Technological Tipping Point
The first possibility is that courts and their judges will
adopt a technology-based tipping point, establishing a distinct
point in time at which all games become so “real” that all of
their violent content is removed from First Amendment
protection. This would be an umbrella rule of sorts and would
189
190
Am. Amusement Mach. Ass’n v. Kendrick, 244 F.3d 572, 577 (7th Cir. 2001).
Id. at 575.
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not be premised on the specific qualities of the games being
regulated in each particular instance. Instead, it would
presume that, based on the new technology, the games to follow
would be too realistically violent; thus, they should all be
removed from the protection of the First Amendment, and any
regulation of them would only have to pass muster under the
lenient rational-basis standard. The justification for such an
umbrella rule could be that judges and juries are ill equipped to
make detailed value judgments based on the violent qualities of
the particular video games being regulated. Courts would be
more comfortable removing games entirely to avoid trying their
hands at such intricate evaluations. Before video games had
the potential to convey a narrative storyline, they were not
protected under the First Amendment.191 It is conceivable that
once we reach a technological tipping point at which games
have the potential to be disturbingly realistic and immersive in
their depictions of violence, games will once again be excluded
from First Amendment protection.
While perhaps conceivable in justification, such an
umbrella rule would be troubling in practice, and is far and
away the most unlikely of ways the law may adapt to the
advancing video game technology. Just as judges are ill
equipped to make game-by-game value judgments of violent
content, they are similarly ill equipped to devise a particular
“point of no return” for video game technology. Furthermore,
such a rule would tend to be overinclusive, since not all video
game violence is created equally. Using the suggested tipping
point, states would find success in regulating games that
display little to no violence whatsoever as long as they could
demonstrate some conceivable reasonable justification for the
regulation. In short, a blanket rule applicable to all video
games seems unworkable, and courts would be hard pressed to
establish it in the first place.
2. The Expansion of Obscenity
A second possible method for the law governing video
game violence to adopt is that courts will expand the legal
definition of obscenity to include violent content in video
games. This is the most common argument made by proponents
of regulating video game violence, and is the argument raised
191
See, e.g., People v. Walker, 354 N.W.2d 312, 316-17 (Mich. Ct. App. 1984).
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by the city of Indianapolis in Kendrick192 and St. Louis County
in Interactive Digital Software Association v. St. Louis.193 While
unsuccessful so far, perhaps as technology advances and video
game violence becomes increasingly offensive to normal
standards of what is appropriate (especially for minors), the
differences between video game violence and obscenity will
become less important. After all, it is not sex as sex that causes
the fears associated with obscenity, but the fact that the sexual
content stands in stark contrast to community standards of
what is appropriate.
This route is advocated by Jennifer Chang in her note,
Rated M for Mature: Violent Video Game Legislation and the
Obscenity Standard.194 At the heart of Chang’s argument is a
reevaluation of the obscenity standard detailed by the Supreme
Court in Miller v. California.195 In that case, the Court again
expressly limited the obscenity exclusion to “works
which . . . appeal to the prurient interest in sex.”196 The Court
further expressed its concerns for overbroad utilizations of the
obscenity standard by states to regulate speech: “We
acknowledge . . . the inherent dangers of undertaking to regulate
any form of expression. State statutes designed to regulate
obscene materials must be carefully limited. As a result, we now
confine the permissible scope of such regulation to works which
depict or describe sexual conduct.”197 Chang points out that this
limitation seems more concerned with the potentially broad
scope of the obscenity exclusion, and not the actual definition of
the term “obscenity.”198 She then explains how the Court itself
noted that its limitation of obscenity is not in line with the
general understanding of the term “obscenity” and that sexual
content is just one subgroup thereof.199 Utilizing these notions,
Chang goes on to conclude that Courts citing Miller in video
192
Kendrick, 244 F.3d at 574 (“[T]he City asks us to squeeze the provision on
violence into a familiar legal pigeonhole, that of obscenity.”).
193
Interactive Digital Software Ass’n v. St. Louis Cnty., 329 F.3d 954, 957,
958 (8th Cir. 2003) (“We reject the County’s suggestion that we should find that the
‘graphically violent’ video games in this case are obscene as to minors.”).
194
Jennifer Chang, Rated M for Mature: Violent Video Game Legislation and
the Obscenity Standard, 24 ST. JOHN’S J. LEGAL COMMENT 697 (2010).
195
Id. at 703-05. See generally Miller v. California, 413 U.S. 15 (1973). Note
that Miller postdates previously cited cases like Memoirs and Roth, and is as such a
further clarification and elucidation of the principles established therein. Id. at 15.
196
Miller, 413 U.S. at 24 (emphasis added).
197
Id. at 23-24.
198
Chang, supra note 194, at 704.
199
Id. at 704-05 (citing Miller, 413 U.S. at 18 n.2).
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game violence cases should not be so quick to toss out the idea
that violence could fall within the definition of obscenity.200
Despite Chang’s analysis, it is unlikely that courts will
opt to go this route. The Supreme Court has been very clear in
cases like Roth and Ginsberg that the term obscenity, in its legal
sense as a category of exclusion from First Amendment
protection, relates specifically to sexually explicit content.201
Lower courts have been reluctant to expand this definition
because of its extremely narrow application by the Supreme
Court.202 As Chang noted, one concern for this limitation is to
avoid opening the floodgates to a vast number of state
regulations under the obscenity exclusion.203 For example, if
video game violence is included in the definition of obscenity,
there would be little to stop states from trying to regulate other
types of violent content, such as that found in movies and
television, under the same definition. But there is another,
perhaps more pertinent, motivation for limiting the definition of
obscenity—one that a handful of justices noted during the
Schwarzenegger oral arguments. Essentially, as both Justices
Scalia and Sotomayor pointed out, obscenity and violence are
distinct concepts; the former was recognized as excluded from
First Amendment protection when the Bill of Rights was
originally ratified, whereas the latter has no historical tradition
of being regulated.204 As such, violence cannot be treated under
the same umbrella as obscenity, since a prohibition against
violence, unlike sexual content, is one “[that] the American
people . . . never ratified when they ratified the First
Amendment.”205 For these reasons, without more direction from
the Supreme Court, it is highly likely that the definition of
“obscenity” will remain strictly limited to sexual content.
200
Id. at 724.
See, e.g., Memoirs v. Massachusetts, 383 U.S. 413, 418 (1965) (explaining
that, to be considered obscene, material must appeal to a “prurient interest in sex” and
offend standards relating to the depiction of “sexual matters”).
202
See, e.g., Interactive Digital Software Ass’n v. St. Louis, 329 F.3d 954, 958 (8th
Cir. 2003) (“[W]e have previously observed that ‘[m]aterial that contains violence but not
depictions or descriptions of sexual conduct cannot be obscene.’” (quoting Video Software
Dealers Ass’n v. Webster, 968 F.2d 684, 688 (8th Cir. 1992) (second alteration in original))).
203
Chang, supra note 194, at 703.
204
Transcript of Oral Argument, supra note 110, at 8, 15-16.
205
Id. at 15-16.
201
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3. The Ability to Narrowly Tailor Increases
The third possible path for a change in video game
violence law as a result of advancing technology is that states
will develop much more narrowly tailored statutes more likely
to survive strict scrutiny. A major part of the game industry’s
argument in Schwarzenegger is that the English language is
simply too imprecise to draft a statute that is sufficiently
narrow; thus, all attempts to regulate video game violence are
over-inclusive and invalid under strict scrutiny.206 But this may
not be the case as technology develops. By limiting a
regulation’s application to very specific characteristics present
in the fully immersive violent games of the future, the scope
would be much narrower and the harm of this content might be
more readily discernable. In this context, these regulations
could be deemed constitutional. For example, a state
legislature could draw up a statute that prohibits sale of video
games that contain “fully immersive graphic violence” or
“photo-realistic gore in an immersive virtual world,” and define
these terms as requiring a virtual reality that is
indistinguishable from real life, intense images of graphic
violence inflicted upon photo-realistic human beings, and a
level of interactivity that goes beyond button inputs, such as
motion-tracked re-creations of physical violence. Such detailed
regulations would only apply to a specific, much more narrowly
tailored category of games: those that truly achieve
disturbingly realistic violence. By authoring regulations in this
way, legislatures would avoid the pitfall of over-inclusion.
It is worth pointing out that states would still need to
demonstrate a compelling interest in regulating video game
violence to survive strict scrutiny. This has generally been
difficult given the inconclusive studies about the potential for
violent video games to actually cause damage.207 But it is
plausible that, given today’s evidence of the physical effects of
intense VR experiences (like the one described in Virtual
Iraq),208 the evidence will be more conclusive when our gaming
technology takes the jump into the real.
206
Id. at 42 (“[T]he English language is not susceptible [to] that level of precision.”).
See, e.g., Video Software Dealers Ass’n v. Schwarzenegger, 556 F.3d 950,
962-64 (9th Cir. 2009), cert. granted sub nom. Schwarzenegger v. Entm’t Merchs. Ass’n,
130 S. Ct. 2398 (argued Nov. 2, 2010); Am. Amusement Mach. Ass’n v. Kendrick, 244
F.3d 572, 578-80 (7th Cir. 2001); Transcript of Oral Argument, supra note 110, at 35
(“[T]he current studies don’t suggest much of anything about harm.”).
208
Halpern, supra note 143.
207
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4. A New Category of Exclusion
The fourth and final possible way in which the law will
adapt to the ever-advancing landscape of video game
technology is one that, given Posner’s language in Kendrick,
has a high likelihood of success.209 Instead of trying to cram
video game violence under the umbrella of the obscenity
exclusion, states could quite easily argue for a new category of
exclusion from the First Amendment that covers disturbingly
realistic video game violence. This is the path advocated by the
State of California in Schwarzenegger.210 In Kendrick, Posner
made it very clear that obscenity and violence were different
because of the reasons states try to regulate them.211 On the one
hand, obscenity is, on its face, offensive to the norms of what is
appropriate for minors.212 On the other hand, it is the potential
for violent video games to cause harm that previous state
regulations had been addressing.213 Posner demonstrated that
video game violence was not offensive in the same sense as
obscenity because the violence was unrealistic, stylized,
cartoon-like, and the characters in games would never be
mistaken as actual human beings.214 He also commented that
the interactivity in video games does not go beyond that of
reading a book or watching a movie.215
Using this language, in a world where consoles like the
Omega exist, courts would have no trouble turning these
misconceptions on their head. Video game violence will turn
stomachs and be extremely realistic. People will mistake the
characters in games for actual human beings. The interactivity
and immersion will go far beyond that of other art forms. In
other words, video game violence will be offensive in the same
sense as obscenity, as it will completely violate the norms of
what society deems appropriate, especially for minors. And
when any material reaches this level of offensiveness, there is
209
Two of the justices (Scalia and Alito) noted the legitimacy of this avenue
during the Video Software Dealers oral arguments due to the inability for the First
Amendment to conceive of the potential offensiveness of violent video games. See
Transcript of Oral Argument, supra note 110, at 36-38.
210
See Reply Brief for Petitioners, supra note 108, at 4 (defining this category
as “obscene violence”).
211
Kendrick, 244 F.3d at 574-76.
212
Id.
213
Id. at 575.
214
Id.
215
Id. at 579.
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no reason it shouldn’t be dealt with on the same playing field
as other material at this level—namely, obscenity. Once these
upcoming technologies become a reality, courts would be hard
pressed not to create a new standard for unprotected speech,
such as “photo-realistic interactive violence.” And with this
new category of exclusion created, a showing of actual harm
would no longer be necessary, as state regulations of speech
under this exclusion would be assessed under the lenient
rational-basis analysis instead of strict scrutiny.216
B.
Game Designers: How to Protect Themselves
Regardless of how the law changes, the outcome is the
same: a higher probability that games will be regulated one
way or another. This spells trouble for the video game industry
for a few reasons. First, consumers demand better graphics and
interactivity. When new technology is available, consumers
expect that it be utilized, and console manufacturers and game
designers would take much flak if they opted to forgo building
their new games and systems to utilize the most advanced and
interactive technology available.217 Second, game designers
want to ply their trade in new ways, breaking the barriers
between games and reality to create truly remarkable
immersive experiences that have never been seen before. Much
like any artists, it is the goal of game designers to take steps
into new territories that have yet to be explored and
revolutionize their trade. With such demand for the utilization
of new technology coming from all sides, the video game
industry may be fighting an unwinnable fight. On the one
hand, if game companies follow technological trends and design
consoles like the Omega, they run the risk of opening the door
to greater regulation of the industry. On the other hand, if
216
Ginsberg v. New York, 390 U.S. 629, 641-43 (1968) (discussing how
scientific certainty is not needed to satisfy the rational-basis analysis).
217
One example is the amount of heat Nintendo has received after the Wii was
released without high-definition graphics capabilities. Many reviews of the console
identified its last-generation graphics as one of its biggest downsides. See, e.g., Sandy
Berger, Nintendo Wii Review, HARDWARE SECRETS (Nov. 9, 2009), http://www.hardware
secrets.com/article/Nintendo-Wii-Review/858/4 (“The graphics in the Wii are simplistic
and somewhat stilted compared to the realism and quality of the graphic display offered
by the [Xbox 360] and the [PS3].”); Jess Bakalar, Nintendo Wii Review, CNET (Nov. 13,
2006), http://reviews.cnet.com/consoles/nintendo-wii/4505-10109_7-31355104-2.html?tag=
rvwBody (“[The Wii] doesn’t have nearly as much polygon-pushing power as the Xbox 360
or the PlayStation 3. . . . [I]f you’re looking for state-of-the-art eye candy, you’re going to
want to opt for the PS3 or the Xbox 360.”).
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companies opt instead to forgo utilizing technological
advancements, they may lose support from both customers and
game designers. Is the industry left with no options? Will
gaming eventually be truncated either by state regulations or a
refusal to utilize new technology?
Perhaps to some degree game companies are in a tight
spot, but there are a few weapons in the industry’s arsenal to
help maintain control over game content while still continuing to
satisfy their customers. Primarily, game creators should try and
be reasonable in their use of the new technology. For example,
many designers have been extremely successful in creating
games with engrossing tales and fantastic game play without
utilizing the most realistic graphics possibly achievable.218
Techniques like cel-shading219 have been used to create extremely
striking environments and characters, quite distinct from the
real world but still immersive in their own right. By using
advanced graphics technology to further stylize their games
(instead of making them look more like real life), designers can
continue to create artistic masterpieces without toeing the line
between gaming and reality, and forcing courts to adopt a new
scheme of regulation. Some examples of this technique include
the titles MadWorld220 and No More Heroes.221 Both games feature
high levels of blood and violence but do so in a cartoon, stylized
world.222 This allows the designers to employ an effective level of
violence to reach their narrative and thematic goals without
threatening Posner’s assertion that video games are easily
distinguishable from real life.223 Furthermore, designers can limit
their depictions of violence in games even when utilizing photoreal graphics. Just because a game features gunplay and sword
218
One example of a title that achieved critical acclaim while utilizing a
stylized graphic technique is the new Prince of Persia for the PS3 and Xbox 360. See
generally Hilary Goldstein, Prince of Persia Limited Edition Review, IGN (Dec. 4,
2008), http://ps3.ign.com/articles/935/935926p1.html.
219
See Sami Hamlaoui, Cel-Shading, GAMEDEV, http://archive.gamedev.net/
reference/programming/features/celshading (“Cel-Shading is the ‘art’ of rendering your
objects to look like cartoons.”) (last visited Jan. 12, 2010).
220
See Casamassina, supra note 117.
221
See Bozon, No More Heroes Review, IGN (Jan. 22, 2008), http://wii.ign.com/
articles/846/846921p1.html.
222
Id. (“Since the entire game embraces a style of punk/retro visuals,
otherwise overly-violent scenes are . . . more like Tarentino’s Kill Bill films, where you
know you’re witnessing violent actions, but the style is so heavy that it’s really dulled
down and far more tolerable.”); Casamassina, supra note 117 (discussing how the
combination of excessive blood and the overdone stylized presentation transform
otherwise disturbing scenes of violence into moments of comedy).
223
Am. Amusement Mach. Ass’n v. Kendrick, 244 F.3d 572, 575 (7th Cir. 2001).
2011]
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fighting in a photo-realistic world doesn’t mean they need to
have excessive dismemberment and buckets of gore. We don’t
need to see limbs, organs, and entrails; a quick spray of red goes
a long way.
Another option is to avoid overly gruesome uses for
advanced motion-detecting devices like the Kinect. Recreating
swinging a sword in a fantasyland is one thing. Mimicking
brutal murders with strangling, stabbing, and punching motions
is quite another. In short, designers should use technology to
enhance the game experience, but recognize a line between what
adds to an immersive experience and what is gratuitous and
offensive. Games need not require players to tear enemies limb
from limb with their own bare hands to create an immersive
experience and an encapsulating narrative.
Finally, the industry may also do well to adopt new selfregulation tactics. Currently, the Entertainment Software
Review Board (ESRB) ranks games based on their
appropriateness for certain ages, from early childhood and
everyone, to mature (17+) and adults only (18+).224 The ESRB
also employs certain content descriptors that inform
purchasers exactly what a game contains, such as “alcohol
references,” “blood and gore,” “cartoon violence,” and others.225
These ratings have not been adopted into law by any state, but
the ESRB works closely with retailers to provide in-store
signage and to create a basis for the store’s own policy (such as
asking for identification when someone purchases a maturerated title).226 As a sign of good faith and also as another way to
demonstrate to courts that restrictive means are not necessary,
the ESRB would do well to recognize the changes in technology
and adjust their system accordingly. For example, the ESRB
could adopt a new content descriptor, such as “photo-realistic
blood and gore” or “fully immersive violence,” and could rate
games that garner these descriptions as “adults only.”
CONCLUSION
Every issue of the popular video game magazine
GamePro concludes with a “parting shot,” a full-page
224
Game Ratings and Descriptor Guide, ESRB, http://www.esrb.org/ratings/
ratings_guide.jsp (last visited Jan. 12, 2010).
225
Id.
226
Enforcement, ESRB, http://www.esrb.org/ratings/enforcement.jsp (last visited
Jan. 12, 2010).
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screenshot from an upcoming game that is meant to elicit
excitement about the unreleased title. In “Issue 254” of the
periodical, the parting shot featured a particularly gory
execution featured in the game Aliens vs. Predator.227 The
picture is supplemented by a short blurb, describing the
intensity and realism of the game’s violence:
Aliens vs. Predators doesn’t shy away from the gore . . . . For
instance, the Predator’s trophy kills are perhaps the most shocking
and violent sequences we’ve ever seen in a game. After grabbing a
helpless marine by the throat, his terrified face is centered in your
view. As your wrist blades plunge under his chin, the head is
separated from the body and a foot of blood-drenched spinal cord
follows. The marine’s face twists in anguish and you can’t help but
feel a little frightened by the realism.228
The description alone is startling and seems plainly offensive
in the sense of what is appropriate material for minors. When
imagined through the lens of a gaming system like the
hypothetical Omega, this idea almost becomes a fact.
The bottom line is that the law must adapt to the
changing technological climate. Before Kendrick, in cases like City
of Warren v. Walker, video games were not awarded First
Amendment protection because they did not—by their very
nature—contain the requisite communicative elements.229 Once
technology advanced to the point where games were capable of
containing narratives and characters similar to those in movies
and literature, the law adapted and awarded video games
protection under the First Amendment.230 As technology further
develops, it is inevitable that the offensiveness of video game
violence will reach a level similar to that of obscenity.
Accordingly, the law will need to adapt once again. Precisely how
the law should change is uncertain. What is certain, however, is
that Posner’s dated view of the video game landscape presented in
Kendrick will soon be a distant memory. A departure from
Kendrick and its progeny will be necessary to properly account for
227
Parting Shot, GAMEPRO, Nov. 2009, at 96.
Id.; see also Kevin VanOrd, Aliens vs. Predators Review for PC, GAMESPOT
(Feb. 18, 2010, 5:24 PM), http://www.gamespot.com/pc/action/aliensvspredatorworking
title/review.html (“You yank your foe’s head and spine right out of his body, stare into
his terrified eyes, and stroke the dangling bit of anatomy.”).
229
See, e.g., People v. Walker, 354 N.W.2d 312, 316 (Mich. Ct. App. 1984).
230
See, e.g., Am. Amusement Mach. Ass’n v. Kendrick, 244 F.3d 572 (7th Cir.
2001) (awarding video games full protection under the First Amendment based on the
similarities of their narratives to literature); Rothner v. Chicago, 929 F.2d 297 (7th Cir.
1991) (explaining that some games may be capable of narrative qualities, so it cannot
be said that all games do not deserve First Amendment protection).
228
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the extreme offensiveness of the disturbingly photo-realistic, fully
immersive games of the near future.
Some may consider the points raised in this note to be
mere speculation about an uncertain technological future.
While this view has some merit, it is impossible to look at the
progress we have seen in video games since their inception less
than thirty years ago—from the pixilated paddles of Pong231 to
the graphic Greek goriness of God of War 3232—and not ponder
what games will look like and how they will be played within
the next decade. This note does not suggest that video game
violence must be regulated, nor does it support the
scientifically questionable notion that video game violence
indeed threatens to cause some sort of psychological or physical
harm to minors. But it is without question that the legal
foundations underlying the repeated refusal to remove video
game violence from the protections of the First Amendment
will no longer hold water once video games achieve full
immersion through future technological advancements.
Eventually, we will hit a tipping point. It is important to
consider the legal ramifications now to allow game designers
the ability to make educated decisions about their future
products. And with Schwarzenegger currently being decided by
the Supreme Court, these considerations are as poignant as
ever.
Eric T. Gerson†
231
Killer List of Video Games, PONG, http://www.arcade-museum.com/game_
detail.php?game_id=9074 (last visited Jan. 5, 2010).
232
See Chris Roper, God of War III Review, IGN (Mar. 8, 2010), http://ps3.ign.
com/articles/107/1075014p1.html (“[T]his is a very M-rated game, one filled with blood,
gore and detached limbs . . . . Truly, God of War III presents some of the most
impressive visuals that I’ve ever seen in a game. . . . [I]t is at times the best looking
game ever.”).
†
J.D. Candidate, Brooklyn Law School, 2011; B.A., University of Michigan,
2008. I would like to thank the Brooklyn Law Review staff for their indispensible help
and input. I would also like to thank the good people at IGN and GameSpot for always
keeping me informed about the latest developments in the world of gaming. Finally, I
would like to thank my mother Lauri Gerson, my father Steven Gerson, and my sister
Hallie Weil for their constant love and support, and for accepting and, at many times,
financing my unbridled enthusiasm for video games and related technologies.
Debt Settlement
A BEAST OF BURDEN WITHOUT ANY REINS
INTRODUCTION
At a recent debt-settlement industry conference, the
speakers’ stage was decorated to look like a boxing ring.1 This
backdrop was meant to symbolize the industry’s need to fight
back against its perceived opposition: lawmakers, regulators,
and consumer-advocacy groups that want to put debtsettlement companies out of business. At first glance, the
backlash against the debt-settlement industry is perplexing,
since the industry bills itself as a better alternative to
bankruptcy for consumers struggling with unsecured debt.
Irrespective of the conflict, the industry has been rapidly
growing. One estimate places the total number of debtsettlement companies at two-thousand—up from eighty or one
hundred just six years ago.2 Industry advertising is much more
prevalent and mainstream, and debt-settlement advertisements
frequently appear on the front pages of New York City
commuter newspapers. Remarkably, one major account-systems
provider recently announced that it had aggregated over $3
billion in consumer debt-settlement accounts.3
Despite this growth, few outside the industry fully
understand debt settlement as a service or its relationship to
consumer-protection law. This note attempts to fill this void by
providing a comprehensive examination of the debt-settlement
industry and the legal issues it implicates. It begins with a
brief history of debt-relief services targeting consumers. Part II
provides a detailed explanation of the debt-settlement business
model—its potential benefits and its fundamental problems
1
David Streitfeld, The Debt Settlement Industry Is Busy, But It’s a Bit
Nervous, Too, N.Y. TIMES (June 9, 2009), http://www.nytimes.com/2009/06/10/business/
10debt.html.
2
Pamela Yip, Debt Settlers Attract Customers, Scrutiny: Credit Solutions CEO
Defends Ethics Amid Regulator Suits, DALLAS MORNING NEWS, May 30, 2009, at 1D.
3
Press Release, Persolvo Data Sys., Persolvo Data Systems Achieves $3 Billion
Milestone (Sept. 9, 2009), available at http://persolvodatasystems.com/pr/Persolvo_$3_
Billion_Dollar_Milestone_Wade-Torkelson.pdf.
1165
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that harm debt-settlement clients. Part III explains why past
efforts, at both the federal and state level, have been
inadequate to regulate this harm. Part IV discusses current
regulatory proposals in federal law and uniform state law. It
also examines the Federal Trade Commission’s recent rule
amendments that address the harms caused by debt
settlement. Finally, Part V argues that the Federal Trade
Commission (FTC) is the ideal venue for regulating the debtsettlement industry. This part also addresses the shortcomings
of current FTC regulation. Although the FTC recently amended
its regulations—wisely banning debt-settlement companies
from collecting upfront fees—the amendments’ efficacy is
severely limited by the absence of a private cause of action
accessible to individual consumers. Administering these
regulations is necessary to both rein in the industry and to
ensure that debt-settlement services successfully assist
consumers with the burdens of unsecured debt.
I.
A BRIEF HISTORY OF DEBT-RELIEF SERVICES
Debt-relief services have a long history in business and
regulation. Early in the twentieth century, debt adjusters
began operating as the first generation of this consumer
service.4 Also known as debt consolidators, debt adjusters are
for-profit services that attempt to persuade creditors to accept
a less-than-full payment and discharge the remainder of a
debtor’s obligations.5 If an agreement is reached, the debt
adjuster collects a monthly payment from the debtor and
distributes it to the creditor in accordance with the agreement.6
Myriad problems existed within this particular business
model. Debt adjusters often charged usurious rates assessed
prior to creditor payment and created unreasonable payment
plans.7 Complaints of deceptive advertising and outright fraud
were also numerous.8 Consumers unable to timely pay creditors
often found themselves in worse financial conditions after
4
Leslie E. Linfield, Uniform Debt Management Services Act: Regulating Two
Related—Yet Distinct—Industries, AM. BANKR. INST. J., Apr. 2009, at 50, 51. For much
of this background on the history of debt-relief services, see UNIF. DEBT MGMT. SERVS.
ACT, prefatory note (Nat’l Conference of Comm’rs on Unif. State Laws 2005).
5
Linfield, supra note 4, at 51.
6
Id.
7
Carla Stone Witzel, The New Uniform Debt-Management Services Act, 60
CONSUMER FIN. L.Q. REP. 650, 651 (2006).
8
Linfield, supra note 4, at 51.
2011]
DEBT SETTLEMENT
1167
working with debt adjusters.9 In response, by 1970, most states
had banned for-profit debt adjusters,10 and a majority of the
remaining states had passed strict regulatory measures.11
Despite this regulatory movement, many of these
statutes exempted nonprofit organizations from debt-adjusting
prohibitions, triggering the second generation of debt-relief
services.12 In the 1960s, a trade association of credit-card-issuing
businesses developed credit-counseling agencies for the express
purpose of reducing consumer bankruptcy filings.13 These
counseling agencies negotiate a debt-management plan (DMP)
between debtors and creditors for full payment of the debt, albeit
on modified terms.14 A counselor first determines if a modified
plan is appropriate by examining the debtor’s financial
information and then negotiating with existing unsecured
creditors for modifications (such as reduced interest rates,
lowered late fees, and time extensions for repayment).15 Once a
DMP is set, the counselor takes monthly payments from the
debtor and disburses pro-rata payments to creditors.16 Funded
predominantly by participating creditors, these credit-counseling
agencies also provide educational and financial-literacy
counseling as a part of the overall debt-management plan.17
As the amount of unsecured debt grew through the 1980s
and 1990s, so did the credit-counseling industry—creating the
third generation of debt-relief services.18 Competing trade
associations organized around aggressive marketing strategies
and cost cutting.19 These new agencies pushed for debtmanagement plans at the expense of educational initiatives and
9
Witzel, supra note 7, at 651.
Id.; see, e.g., N.Y. GEN. BUS. LAW §§ 455-457 (McKinney 2009). New York
called debt adjusting “budget planning,” defined as
10
the making of a contract . . . with a particular debtor whereby . . . the debtor
agrees to pay a sum or sums of money in any manner or form and the person
or entity engaged in the business of budget planning distributes . . . the same
among certain specified creditors in accordance with a plan agreed upon.
Id. § 455(1).
11
Linfield, supra note 4, at 51.
Id. New York explicitly exempted from its ban what it called “budget
planning” not-for-profit entities. GEN. BUS. LAW § 455(4).
13
Telemarketing Sales Rule, 74 Fed. Reg. 41,988, 41,995 (Aug. 19, 2009).
14
Id.
15
Id.
16
Linfield, supra note 4, at 51.
17
Telemarketing Sales Rule, 74 Fed. Reg. at 41,990.
18
Linfield, supra note 4, at 51.
19
Id.
12
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individualized counseling.20 As the market grew, creditors
became less willing to fund these agencies, and higher fees were
levied on the debtor.21 Critics charge that credit-counseling
agencies now provide no social utility and operate simply as
deceptive debt collectors on behalf of creditors.22 Many critics
also allege illegal financial improprieties related to the agencies’
required use of nonprofit status.23 Due to the exemption of
nonprofits from debt-adjuster laws, this industry remains
largely unregulated.24 Nevertheless, the FTC and state attorneys
general (AGs) have pursued many enforcement actions against
credit-counseling agencies for violations of state and federal
consumer-protection laws.25
II.
DEBT-SETTLEMENT COMPANIES
A.
The Business Model
Debt settlement, the fourth generation of debt-relief
services, differs significantly from credit counseling.26 Because
the end result of a debt-settlement program is less-than-full
payment of a debtor’s obligations, the service can also be
thought of as a reappearance or reformulation of firstgeneration debt adjusters.27 Indeed, one of the main industry
trade associations describes a business familiar to consumer
law professionals:
By definition, debt settlement is the process by which a company
negotiates with a consumer’s unsecured creditors over time for a
reduction in principal, which is usually less than the current balance
owed. History shows us that an offer from creditors, collection
20
Id.
Telemarketing Sales Rule, 74 Fed. Reg. at 41,991.
22
Witzel, supra note 7, at 652.
23
See PERMANENT SUBCOMM. ON INVESTIGATIONS, COMM. ON HOMELAND SEC.
& GOVERNMENTAL AFFAIRS, U.S. SENATE, PROFITEERING IN A NON-PROFIT INDUSTRY:
ABUSIVE PRACTICES IN CREDIT COUNSELING, S. REP. NO. 109-55 (2005). Specifically,
fraud and nonenforcement were identified as major issues.
24
Witzel, supra note 7, at 652.
25
For an extensive sample of enforcement actions, see Telemarketing Sales
Rule, 74 Fed. Reg. at 41,991-92 nn.51-59. Generally, the FTC Act and state unfair-anddeceptive-practices laws were used. For a discussion of these laws as they relate to the
debt-settlement industry, see infra text accompanying notes 80-122.
26
Linfield, supra note 4, at 51.
27
Id. This comparison is not made as a conclusive argument in favor of
regulation. Debt adjusters, as discussed above, were not banned because they sought
less than full payment to creditors but because diverse, industry-wide abuse was
identified.
21
2011]
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1169
agencies, debt buyers, and attorneys can range from as little as 5% of
the outstanding claim to as much as 90% of the outstanding
claim. . . . The process of debt settlement is, in theory, simple. A
financially troubled consumer resolves an outstanding account,
alleviating the consumer of that financial responsibility. The bank
liquidates an account, saving the account from total loss.28
Debt settlement, however, is unique. Unlike debt
adjusters, the company creates a contract and payment plan
prior to contacting or negotiating with any creditors.29 The
debtor makes payments to a savings or escrow account, and
once a target amount is achieved (often calculated based on a
percentage of the total debt owed), the settlement company
contacts the creditor and offers a sum that can be immediately
paid from that account.30 Debt-settlement companies encourage
saving enough money to effectuate settlements in escrow as
quickly as possible,31 and typically, payment plans aim for
achieving this amount in twenty-four to thirty-six months.32
Inherent in this business model is “the ability of the
debt settlement provider to time a consumer’s delinquency and
rate of savings to coincide with a creditor’s or debt collector’s
incentive to settle.”33 Generally, the industry has determined
that creditors become much more willing to settle for lower
payments once an account is more than 120 days in
delinquency.34 Consequently, debt-settlement companies
instruct clients to stop payments, default on accounts, and
cease communication with creditors.35 To achieve this
superficial divorce of debtor from creditor, debt-settlement
companies often accept power of attorney to cease
communication, instruct creditors to only contact the
settlement company, or change billing addresses to route all
creditor mail to the settlement company.36
28
U.S. ORGS. OF BANKR. ALTS., INC., DEBT SETTLEMENT: DEBT RELIEF: A
GROWING NECESSITY FOR MANY CONSUMERS 6 (2008) [hereinafter GROWING NECESSITY],
available at http://www.ftc.gov/os/comments/debtsettlementworkshop/536796-00022.htm.
29
Linfield, supra note 4, at 51.
30
Id.
31
ASS’N OF SETTLEMENT COS., TASC GENERAL RESPONSE TO QUESTION
CARDS FROM FTC WORKSHOP 8 (2008) [hereinafter TASC RESPONSE].
32
See Consumer Protection in the Debt Collection and Debt Management
Industries: Hearing on A. 7268 Before the Comm. on Consumer Affairs & Prot., 2009
Leg., 2 (N.Y. 2009) (testimony of Johnson M. Tyler) [hereinafter Tyler Testimony].
33
Telemarketing Sales Rule, 74 Fed. Reg. 41,988, 41,993 (Aug. 19, 2009).
34
GROWING NECESSITY, supra note 28, at 7.
35
Telemarketing Sales Rule, 74 Fed. Reg. at 41,994; UNIF. DEBT MGMT. SERVS.
ACT prefatory note 3 (Nat’l Conference of Comm’rs on Unif. State Laws 2005).
36
Telemarketing Sales Rule, 74 Fed. Reg. at 41,994.
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Debt-settlement companies frequently calculate fees
using one of two methods: the settlement savings-fee method or
the flat-fee method.37 The former bases most of the fee on a
percentage of the savings realized by the debtor, while the
latter is based on a percentage of the total debt managed by the
settlement company.38 Additionally, enrollment fees and
monthly maintenance fees are often calculated and charged
separately.39 The FTC found that regardless of how fees are
calculated, most companies charge using a “front-end fee
model” that requires a debtor to pay a bulk of the fee within the
first few months of enrollment, “whether or not any
settlements have been attempted or achieved.”40 Some
companies also require a debtor to pay all or almost all fees
before any funds are released to creditors as a settlement.41
B.
The Good
Demand for debt-relief services is high, yet “traditional
[debt-management plans] have become less available to
consumers who increasingly have insufficient income to repay
their debts under such plans.”42 Completion of a debtsettlement program can potentially reduce the debt owed by a
consumer who is otherwise ineligible for debt management or
liquidation bankruptcy.43 A hypothetical debt situation is
helpful in understanding the potential benefit of debt-
37
See TASC RESPONSE, supra note 31, at 2; see also GROWING NECESSITY,
supra note 28, at 12.
38
TASC RESPONSE, supra note 31, at 2.
39
GROWING NECESSITY, supra note 28, at 13.
40
Telemarketing Sales Rule, 74 Fed. Reg. at 41,994. The FTC also describes
two alternative fee structures—one in which the entire fee is collected during the first
half of the enrollment period and one in which the bulk of the fee is not paid until the
program is complete. Id.
41
Id.
42
Id. at 41,993; CAREONE CREDIT COUNSELING, BETWEEN FINANCIAL
BALANCE AND BANKRUPTCY: BETTER OPTIONS FOR CONSUMERS STRUGGLING TO
MANAGE UNSECURED DEBT 5 (2008), available at http://www.ftc.gov/os/comments/
debtsettlementworkshop/536796-00035.pdf (estimating that, every year, “more than six
million consumers interested in the traditional DMP either opt for another solution or
do not meet the repayment criteria”).
43
Debt-management plans frequently require a debtor to show a sufficient
ability to pay, something that many debtors cannot do. See CAREONE CREDIT
COUNSELING, supra note 42, at 4. Similarly, recent amendments to the bankruptcy code
make liquidation bankruptcy more difficult to obtain because of added eligibility
requirements, which also increases filing expenses. See generally Andrew P.
MacArthur, Pay to Play: The Poor’s Problems in the BAPCPA, 25 EMORY BANKR. DEV.
J. 407 (2008).
2011]
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settlement services. A debtor that owed $10,000 in total debt
might be charged a fee of 18% under the flat-fee model (or
$1800).44 That debtor may be charged a $300 initiation fee and
a $60-per-month service fee for the entire, say, thirty-sixmonth program, resulting in service fees of $2460.45 Combined
with the flat fee, the debt-settlement-program fees total $4260.
Assume that the settlement company is able to negotiate a 40%
settlement of the total debt in this situation—a number that
debt-settlement companies claim is possible.46 In this scenario,
the debtor will have paid $4000 to settle the actual debt and an
additional $4260 in fees—a total of $8260. The debtor saved
close to 20% on the total $10,000 debt owed, and the entire
program lasted only three years. This is a best-case scenario.
C.
The Bad
The best-case scenario is not necessarily the norm. State
attorneys general report a two-fold increase in the number of
complaints against debt-settlement companies in 2009.47 Major
news outlets—including ABC’s Nightline and World News
Saturday, and CBS’s The Early Show—have recently run
features critical of the debt-settlement industry and warning
consumers of its drawbacks.48 In 2008, debt settlement was listed
in Better Business Bureau as one of the top-ten business
scams.49 Two prominent New York legal-services organizations
advise against using debt-settlement programs entirely; one
bluntly stated, “[d]ebt settlement companies are a rip-off.”50 Debt
settlement often results in unforeseen harm for consumers.
One major concern is the success rate within the
industry. A voluntary study conducted by an industry trade
44
See TASC RESPONSE, supra note 31, at 2. This hypothetical uses numbers
that two leading trade associations provided to the FTC. Id.
45
GROWING NECESSITY, supra note 28, at 13. For illustrative purposes, I have
chosen potential fees on the higher side of ranges provided by debt-settlement
companies.
46
Id. at 6.
47
David Streitfeld, Debt Settlers Offer Promises But Little Help, N.Y. TIMES
(Apr. 20, 2009), http://www.nytimes.com/2009/04/20/business/20settle.html.
48
See, e.g., The Early Show (CBS television broadcast May 12, 2009);
Nightline (ABC television broadcast July 25, 2009); World News Saturday (ABC
television broadcast Aug. 22, 2009).
49
Linfield, supra note 4, at 51.
50
Peter Dellinger, Debt Settlement Scams, EMPIRE JUST. CENTER (Aug. 13, 2009),
http://www.empirejustice.org/issue-areas/consumer-community-development/credit-cards/
debt-settlement-scams.html; Tyler Testimony, supra note 32, at 2.
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association found only a 35% to 60% debtor “completion rate.”51
Even worse, a National Consumer Law Center report stated
that only 1.4% of consumers completed a debt-settlement
program after enrolling.52 Similarly, New York Attorney
General Andrew Cuomo reported that one debt-settlement
company promised a 60% reduction in debt yet only achieved
those results for 1% of enrolled consumers.53 In one suit brought
by the State of Texas against a debt-settlement company, the
State alleged that the company’s own internal data showed
that fewer than 20% of individual accounts reached a
settlement of any amount.54
The FTC describes the problems with debt-settlement
services as two-fold: (1) “the marketing and advertising” of
debt-settlement programs and (2) their fundamental soundness
for consumers.55 Speaking to the former, debt-settlement
companies advertise heavily on television, radio, and the
internet.56 A common strategy is to highlight the long-term
consequences of bankruptcy and present debt settlement as a
better alternative.57 Specific outcomes are frequently touted:
Common claims in the ads . . . include representations that debt
settlement companies will obtain for consumers who enroll in a debt
settlement plan any of the following results: a reduction of their
debts by 50%; elimination of debt in 12-36 months; cessation of
harassing calls from debt collectors and collection lawsuits; and
expert assistance from debt settlement providers who have special
relationships with creditors and knowledge about available
techniques to induce settlement. Debt settlement companies also
frequently represent that there is a high likelihood (sometimes even
a “guarantee”) of success.58
51
ASS’N OF SETTLEMENT COS., STUDY ON THE DEBT SETTLEMENT INDUSTRY 1
(2007). The study accepted companies’ self-reported completion rates, which had been
calculated using different standards. See Telemarketing Sales Rule, 74 Fed. Reg. 41,988,
41,995 n.104 (Aug. 19, 2009). The FTC was highly critical of this methodology. Id.
52
DEANNE LOONIN, NAT’L CONSUMER LAW CTR., AN INVESTIGATION OF DEBT
SETTLEMENT COMPANIES: AN UNSETTLING BUSINESS FOR CONSUMERS 5 (2005)
[hereinafter UNSETTLING BUSINESS].
53
Press Release, N.Y. Att’y Gen., Attorney General Cuomo Sues Debt
Settlement Companies for Deceiving and Harming Consumers (May 19, 2009),
available at http://www.ag.ny.gov/media_center/2009/may/may19b_09.html.
54
Streitfeld, supra note 47.
55
Telemarketing Sales Rule, 74 Fed. Reg. at 41,995 (internal citations omitted).
56
Suzanne Ziegler, New Law Tightens Rules for Debt Firms, STAR TRIB.
(Minn.) (June 7, 2009), http://www.startribune.com/business/47061237.html.
57
See, e.g., Streitfeld, supra note 1.
58
Telemarketing Sales Rule, 74 Fed. Reg. at 41,995.
2011]
DEBT SETTLEMENT
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In light of the industry’s low completion rates, these claims are
dubious at best.59 Touting guaranteed specific reduction
percentages and completion dates without concern for
individual circumstances or overall success rates is reckless
and deceptive. Indeed, even the executive director of a debtsettlement trade association commented, “the main concern is
consumers are being misled through false advertising.”60
More troubling are the fundamental flaws in the nature
of debt-settlement services. Debt-settlement companies claim
to maintain strong relationships with creditors61 and market
their experience with creditor settlement procedures as a
benefit.62 But it is not clear that creditors are even receptive to
working with debt-settlement companies. One executive of the
American Bankers Association—the professional association
representing the banking industry—described debt-settlement
companies as “very harmful to both creditor and consumer.”63
Another American Bankers Association senior representative
stated that creditors want to work with customers “without the
significant negative consequences to the consumer that flow
from the insertion of the debt-settlement company into the
relationship.”64 In fact, many consumer advocates recommend
contacting creditors directly to negotiate reductions as a better
alternative to debt-settlement programs.65
59
Id.
John Pacenti, McCollum: Consumers Better Off Avoiding Debt Settlement
Firms, MIAMI DAILY BUS. REV., Oct. 20, 2008, at 1.
61
Telemarketing Sales Rule, 74 Fed. Reg. at 41,995.
62
UNSETTLING BUSINESS, supra note 52, at 10. One debt-settlement trade
association went so far as to state,
60
It is common for debt settlement company representatives to have a
relationship with specific contacts at creditor offices or collection agencies
that they work with in the negotiation process. Some creditors and collection
agencies have developed, or are in the process of developing, specific
departments that work exclusively with debt settlement companies. For these
creditors and collection agencies, working with debt settlement companies
allows them to handle a large quantity of accounts with a limited amount of
manpower, minimizing the costs associated with collection activity and
maximizing liquidation percentages.
GROWING NECESSITY, supra note 28, at 8.
63
Streitfeld, supra note 47 (internal quotation marks omitted).
64
Pacenti, supra note 60, at 1.
65
See, e.g., Sandra Block, When Settling Debt, Watch out for Scam Artists
Waiting to Pounce, USA TODAY, July 21, 2009, at B3; Tara Siegel Bernard, Weighing the
Options with Credit Card Debt, N.Y. TIMES (May 16, 2009), http://www.nytimes.com/
2009/05/16/your-money/credit-and-debit-cards/16counsel.html; David Streitfeld, Credit
Bailout: Issuers Slashing Card Balances, N.Y. TIMES (June 16, 2009), http://www.
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Moreover, debt-settlement companies encourage debtor
default—either explicitly or implicitly—a strategy that is
unavoidably harmful to consumers.66 The industry openly
admits that delinquency aids the negotiation process.67 But
payment default has a profoundly negative impact on the
debtor more generally: “creditors often impose additional
finance charges, delinquency fees and may undertake collection
activity, including litigation.”68 This response is not surprising;
creditors may go months without receiving payment or any
communication on behalf of a debtor’s account after the debtor
enrolls in a settlement program. Payment neglect may even
accelerate the collection process.69 Indeed, one FTC enforcement
action against a consortium of debt-settlement companies
revealed that 5679 collection lawsuits were filed against the
companies’ approximately 18,116 clients during a one-year
period.70 Compounding the problem, many clients are unaware
that they are subject to traditional collection measures once
enrolled in debt-settlement programs, and debt-settlement
companies provide no assistance with the consequences.71
Additionally, debt-settlement programs are financially
infeasible for their target population of debtors:
Debt settlement companies have described the ideal debt settlement
customer as someone who is suffering from a hardship of some kind
and having difficulty making payments . . . and cannot afford to pay
their debts. Some companies will work only with insolvent
customers, defined in some cases to mean consumers who are
unemployed. Others require that the consumer be in a hardship
situation. One company states that its program is appropriate for
consumers with little or no ability to pay their debts and facing
possible bankruptcy. “It is not for people who are gainfully employed
or have high credit ratings.” Another company strongly discourages
people with good credit.72
Indeed, of the three debt-settlement clients described in a
recent New York Assembly committee hearing on the problems
nytimes.com/2009/06/16/your-money/credit-and-debit-cards/16credit.html; Susan Tompor,
Be Wary of Offers to Settle Debt, BELLEVILLE NEWS DEMOCRAT, May 28, 2009.
66
UNSETTLING BUSINESS, supra note 52, at 5; Linfield, supra note 4, at 60.
67
GROWING NECESSITY, supra note 28, at 7.
68
Linfield, supra note 4, at 51.
69
Telemarketing Sales Rule, 74 Fed. Reg. 41,988, 41,994 n.86 (Aug. 19, 2009).
70
Id. at 41,996 n.109 (citing Complaint, Fed. Trade Comm’n v. Connelly, No.
SA CV 06-701 DOC RNBx (C.D. Cal. Aug. 3, 2006)).
71
UNSETTLING BUSINESS, supra note 52, at 6.
72
Id. at 4.
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DEBT SETTLEMENT
1175
within the industry, not one was employed.73 Monthly
charges—which include money to be put in escrow and service
fees—often exceed a client’s ability to pay.74 High monthly
payments are only exacerbated by the front-end fee model—
now an industry standard.75 Many settlement companies claim
to have a screening process to ensure that clients can afford the
given monthly payments.76 But it is hard to accept this
assertion given the extremely low success rate, the industry’s
stated preference for indigent clients, and the available
examples of common payment schedules.77 Further, for many
indigent clients, their only income and assets are exempt from
collection under applicable state and federal laws—a fact that
debt-settlement companies would undoubtedly discover under
any financial audit.78 The economically infeasible nature of
debt-settlement programs seriously undermines their utility for
both debtors and creditors.
III.
EXISTING REGULATION AND ENFORCEMENT
Commonly used regulatory and enforcement schemes
are ill equipped to address the problems within the debtsettlement industry. Current laws were not designed with
reference to debt settlement and do not attack the industry’s
fundamental problems.79
A.
FTC Action
FTC action has been a frequent method of enforcement.
Responding to consumer complaints, the FTC targets debtsettlement companies for deceptive and misleading
73
Tyler Testimony, supra note 32, at 2-3.
UNSETTLING BUSINESS, supra note 52, at 4.
75
Telemarketing Sales Rule, 74 Fed. Reg. 41,994 (Aug. 19, 2009).
76
GROWING NECESSITY, supra note 28, at 7.
77
See UNSETTLING BUSINESS, supra note 52, at 4. One example is a $300-permonth plan set for a woman whose only source of income was Social Security. Tyler
Testimony, supra note 32, at 2.
78
See Tyler Testimony, supra note 32, at 3; see also UNSETTLING BUSINESS,
supra note 52, at 4.
79
Although the FTC has now passed rule amendments specifically
addressing the debt-settlement industry (most of which became effective on September
27, 2010), the discussion here is limited to longer-standing regulatory sources under
which enforcement actions have originated. Telemarketing Sales Rule; Final Rule, 75
Fed. Reg. 48,458 (Aug. 10, 2010) (to be codified at 16 C.F.R. pt. 310).
74
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advertising.80 Since 2001, the FTC has filed seven actions, some
of which involved multiple companies and individuals.81 Most
commonly, the FTC alleges violations of the Federal Trade
Commission Act (FTC Act).82 The FTC Act is broadly worded,
providing that “[u]nfair methods of competition in or affecting
commerce, and unfair or deceptive acts or practices in or
affecting commerce, are . . . unlawful.”83 Consequently, FTC
actions under this law have alleged violations such as
misrepresented fees, undisclosed fees, falsely promised success
rates, and failure to warn of negative consequences.84
FTC actions against debt-settlement companies have
been successful in limited circumstances. For example, one
settlement agreement stipulated that an individual defendant,
the ex-CEO of a debt-settlement company that allegedly
violated the FTC Act, could no longer engage in telemarketing
or debt negotiation.85 Similarly, a different settlement
agreement obtained by the FTC for alleged FTC Act violations
permanently banned an individual defendant and a corporate
defendant from engaging in debt-negotiation services of any
kind.86 The FTC has also recovered substantial monetary
refunds through settlements.87
80
See Telemarketing Sales Rule, 74 Fed. Reg. at 41,996; see also ROBERT J.
HOBBS, FAIR DEBT COLLECTION 624-25 (6th ed. 2008).
81
See Telemarketing Sales Rule, 74 Fed. Reg. at 41,996.
82
15 U.S.C. §§ 41-58 (2006). See, e.g., Complaint, Fed. Trade Comm’n v.
Connelly, No. SA CV 06-701 (C.D. Cal. Aug. 3, 2006); Complaint, Fed. Trade Comm’n v.
Nat’l Consumer Council, No. SA CV 04-0474 (C.D. Cal. Apr. 23, 2004); Complaint, Fed.
Trade Comm’n v. Debt Set, Inc., No. 07 CV 00558 (D. Co. Mar. 20, 2007).
83
15 U.S.C. § 45(a)(1).
84
See, e.g., Press Release, Fed. Trade Comm’n, ‘Debt Meltdown Program’
Marketers Settle with FTC; Charged with Failing to Deliver Promised Debt Reduction
Services (Aug. 5, 2008), available at http://www.ftc.gov/opa/2008/08/edge.shtm; Press
Release, Fed. Trade Comm’n, Debt-Negotiation Defendants Agree to Settle FTC
Charges in Nationwide Operation That Led Many into Financial Ruin (Sept. 25, 2008),
available at http://www.ftc.gov/opa/2008/09/nss.shtm; Press Release, Fed. Trade
Comm’n, Debt Reduction Companies Settle with FTC (Feb. 14, 2008), available at
http://www.ftc.gov/opa/2008/02/debtreduct.shtm.
85
Settlement Agreement and Stipulated Final Order as to Defendant Dennis
Connelly at 6, Fed. Trade Comm’n v. Connelly, No. SA CV 06-701 (C.D. Cal. Sept. 25, 2008).
86
Stipulated Final Judgment and Order for Permanent Injunction Against
Defendants Todd A. Baker and Debt Resolution Specialists, Inc. at 8-9, Fed. Trade
Comm’n v. Innovative Sys. Tech., Inc., No. CV 04-0728 (C.D. Cal. July 13, 2005).
87
See, e.g., Press Release, Fed. Trade Comm’n, Debt Services Operations
Settle FTC Charges (Mar. 30, 2005), available at http://www.ftc.gov/opa/2005/03/
creditcouncel.shtm. Here an FTC settlement agreement with NCC required corporate
defendants to pay $1 million and three individual defendants to pay $3.5 million, after
the FTC had recovered $24 million in funds held in corporate trust accounts. Id.
2011]
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Despite these successes, the FTC is not able to address
the full extent of abuse in the debt-settlement industry. As an
agency, the FTC is tasked with numerous categories of
consumer protection involving many statutes—resulting in
limited resources for any one issue.88 Indeed, while the FTC has
identified abuse in the industry widespread enough to justify
increased regulation,89 it has only brought seven enforcement
actions since 200190—despite its broad discretion under the
FTC Act to determine what actually constitutes consumer
harm.91 Additionally, the FTC Act, under which the FTC has
achieved most of its settlements, disallows private causes of
action.92 This means that individuals who are harmed by
violations of the Act are “encouraged to complain to the
Commission, [but their] complaints give them no formal
standing before the Commission or the courts.”93 Thus,
recognizing its internal limitations, the FTC itself has
advocated the creation of private causes of action for consumer
matters.94 Finally, while FTC enforcement has been able to
selectively shutter debt-settlement companies for employing
deceitful advertising, the FTC Act does not address the
fundamental problems of the industry—namely, untenable fee
structures, and harmful delays between client payments and
services rendered.95
88
Oren Bar-Gill & Elizabeth Warren, Making Credit Safer, 157 U. PA. L.
REV. 1, 95 (2008).
89
See Telemarketing Sales Rule; Final Rule, 75 Fed. Reg. 48,458 (Aug. 10,
2010) (to be codified at 16 C.F.R. pt. 310).
90
See Telemarketing Sales Rule, 74 Fed. Reg. 41,994, 41,996 (Aug. 19, 2009).
91
Victor E. Schwartz & Cary Silverman, Common-Sense Construction of
Consumer Protection Acts, 54 U. KAN. L. REV. 1, 8-9 (2005).
92
PETER C. WARD, FEDERAL TRADE COMMISSION LAW PRACTICE AND
PROCEDURE § 3.04 (Law Journal Press 2010).
93
Id.
94
William A. Lovett, State Deceptive Trade Practice Legislation, 46 TUL. L.
REV. 724, 729 n.10 (1972) (“FTC enforcement effort against deceptive trade practices
suffers from crucial and probably inherent limitations. . . . [T]he federal effort is
modestly staffed, far removed from most local communities, and, consequently, must be
concentrated against national media advertising with only occasional test cases against
smaller scale law violators. In recent years . . . the FTC itself [has] strongly endorsed
and emphasized the need for . . . viable private remedies for consumers.”).
95
On at least one occasion, the FTC brought an action for FTC Act violations
based on failure to disclose the potential harmful effects of discontinuing payment to
one’s original creditors. Press Release, Fed. Trade Comm’n, Fraudulent “Debt
Negotiators” Settle FTC Charges (July 19, 2005), available at http://www.ftc.gov/
opa/2005/07/briggsbaker.shtm. But this allegation still does not address the
fundamental problems of the debt-settlement model. A company could easily comply
with the law by using contractual fine print and simultaneously do nothing to protect
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State Attorneys General
Like the FTC, state attorneys general also frequently
target debt-settlement companies in civil actions.96 Often, AGs
allege unfair or deceptive acts and practices committed by debtsettlement companies in violation of state consumer law.97 For
example, in May 2009, New York Attorney General Andrew
Cuomo filed suit against two debt-settlement companies
alleging deceptive business practices and false advertising.98
The suits followed subpoenas issued by the AG to fourteen
debt-settlement companies requesting information about fee
structures, completion rates, and services rendered.99 One of
these cases has already been decided, levying a civil penalty of
$198,100 against Nationwide Asset Services, Inc. for
defrauding 1981 consumers.100 The court also ordered a
complete refund to 180 consumers and enjoined the company
from doing further business in New York unless it provided a
$500,000 performance bond.101
Although these AG actions can be financially effective for
select consumers, they provide only short-term solutions that
clients from the permanently damaging actions of creditors once payments and
communication cease.
96
Telemarketing Sales Rule, 74 Fed. Reg. 41,988, 41,997 (Aug. 19, 2009).
97
Id. at 41,996. For an extensive list of AG enforcement actions from around
the country, see id. at 41,997 nn.132-33. For a discussion of state deceptive-acts laws,
also called “little FTC Acts,” see Schwartz & Silverman, supra note 91, at 15. AGs also
frequently target debt-settlement companies for violations of more narrowly written
debt-management statutes. Telemarketing Sales Rule, 74 Fed. Reg. at 41,997 n.134.
State laws specifically targeting debt-management services are discussed at length
infra Part IV.B. And because New York has not yet passed this type of legislation, a
description of its enforcement is not relevant here.
98
Verified Complaint, Cuomo v. CSA-Credit Solutions of Am., No.
401225/2009 (N.Y. Sup. Ct. May 19, 2009); Verified Petition, Cuomo v. Nationwide
Asset Servs., Inc., No. 2009-5710 (N.Y. Sup. Ct. May 20, 2009). Both complaints alleged
that defendants Nationwide Asset Services and Credit Solutions of America Inc. (CSA)
engaged in fraud, deceptive business acts, and false advertising in violation of New
York law; only the CSA complaint alleged violations of New York’s credit-services law.
These particular New York statutes are discussed infra Part III.B in the context of
private causes of action.
99
Press Release, N.Y. Att’y Gen., Attorney General Cuomo Announces
Nationwide Investigation into Debt Settlement Industry (May 7, 2009), available at
http://www.oag.state.ny.us/media_center/2009/may/may7a_09.html.
100
Press Release, N.Y. Att’y Gen., Attorney General Cuomo Obtains Court
Order Barring Debt Settlement Company that Ripped Off Thousands of New York
Consumers from Operating in NYS Unless It Meets Strict Requirements (Oct. 15,
2009), available at http://www.oag.state.ny.us/media_center/2009/oct/oct15b_09.html.
According to the AG’s office, the “court found that the majority of . . . customers were
promised a 25 to 40 percent reduction in their outstanding debt but never saw such
reductions. Only one-third of one percent of consumers received such savings.” Id.
101
Id.
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1179
are limited in ways similar to FTC actions. The New York AG’s
office does not prosecute directly on behalf of individual
consumers; there must be a widespread need for it to proceed.102
The result is that lone consumers may not be able to use the AG
to enforce their legal rights. Further, these New York cases are
based on laws that address only general fraudulent and
deceptive practices by debt-settlement companies. Accordingly, a
debt-settlement company can easily comply with basic disclosure
requirements while simultaneously collecting upfront fees that
far exceed the value of services rendered. Similarly, AG actions
fail to address the industry’s fundamental problems because
they are brought under state laws with limited breadth. Like the
FTC, AGs cannot target infeasible fee structures or delays in
services that cause creditors to pursue debtors for payment
defaults while under a debt-settlement program. Absent false or
misleading statements, the AG is unable to act against debtsettlement companies.
C.
Private Enforcement
Private causes of action also target debt-settlement
companies with varied but less-than-sufficient success. The
Federal Credit Repair Organizations Act (CROA) is one statute
that allows individuals to assert violations by debt-settlement
companies.103 The CROA provides that “credit repair
organizations” may not receive money or valuable
consideration in advance of performing agreed-upon services.104
A credit-repair organization is defined as any person or entity
that provides services for the express or implied purpose of
either (1) “improving any consumer’s credit record, credit
history, or credit rating” or (2) “providing advice or assistance
to any consumer with regard to” such services.105 In passing the
CROA, Congress desired to ensure that consumers had
102
Indeed, in the two cases against debt-settlement companies, 18,000 New
York residents had enrolled with one company, while 1981 had enrolled with another
one, illustrating the size of cases taken by the AG. David Streitfeld, New York Accuses
2 Debt Settlement Firms of Fraud, N.Y. TIMES (May 20, 2009), http://www.nytimes.
com/2009/05/20/business/20debt.html.
103
15 U.S.C. §§ 1679-1679j (2006). See, e.g., Complaint, Yunker v. Rise Above
Debt Relief LLC, No. 09-CV-1204-01 (D. Kan. June 30, 2009); Complaint, Boyken v.
Am. Debt Arbitration, No. 6:07-cv-06348 (W.D.N.Y. July 16, 2007); Complaint, Cortese
v. Edge Solutions, Inc., No. CV-04 0956 (E.D.N.Y. Mar. 5, 2004).
104
15 U.S.C. § 1679b(b).
105
Id. § 1679a(3). Nonprofit organizations and a particular debtor’s original
creditors are explicitly exempted from the statute’s provisions. Id.
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necessary information when purchasing such services, and to
protect the public from unfair and deceptive business practices
in the industry.106
Debt-settlement fee structures would violate the
CROA’s ban on upfront fees because no debt-settlement
company begins negotiations with creditors until all or a
substantial portion of fees have been collected.107 But in the
limited cases on the issue, courts have refused to find that
debt-settlement services alone fulfill the CROA’s definition of a
credit-repair organization.108 Absent a showing that the
company, at a minimum, advertised or engaged in specific
credit-related issues, courts are unwilling to declare that debtsettlement companies are credit-repair organizations. In
Plattner v. Edge Solutions, Inc., for example, an Illinois district
court held that a debt-settlement company administering a
credit-repair program was not a credit-repair organization
because the company had “ma[de] clear that participation in
[its] program [would] likely result in damage to the
participant’s credit” and “that the participant’s credit is outside
the scope of the program.”109 Thus, the court concluded, the
company “did not represent or even imply that [its] program
was designed to improve the participant’s credit as required for
[it] to be a credit repair organization.”110 Indeed, the debtsettlement companies that the courts have deemed creditrepair organizations have aimed, explicitly or implicitly, to
improve their clients’ credit rating.111 In light of this case law, a
debt-settlement company can easily avoid CROA liability by
tailoring its representations while still retaining harmful
aspects of its business model.
106
Id. § 1679(b).
Telemarketing Sales Rule, 74 Fed. Reg. 41,994 (Aug. 19, 2009).
108
See HOBBS, supra note 80, at 624-25.
109
Plattner v. Edge Solutions, Inc., 422 F. Supp. 2d 969, 974 (N.D. Ill. 2006).
The court stated that “[w]hether a company is a credit repair organization under the
CROA depends on the representations made.” Id.
110
Id.
111
See, e.g., Reynolds v. Credit Solutions, Inc., 541 F. Supp. 2d 1248, 1254-57
(N.D. Ala. 2008) (finding that a debt-settlement program that advertised credit
improvement met the CROA’s definition of credit-repair organization), vacated on other
grounds, Picard v. Credit Solutions, Inc., 564 F.3d 1249 (11th Cir. 2009); Cortese v.
Edge Solutions, Inc., No. 04-0956, 2007 WL 2782750, at *6-7 (E.D.N.Y. Sept. 24, 2007)
(holding that a debt-settlement company was a credit-repair organization because it
advertised and rendered a supplemental program explicitly designed to repair credit
following the traditional settlement program).
107
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CROA’s legislative history also does not support the
statute’s application to the debt-settlement industry. A U.S.
House of Representatives report accompanying the CROA’s
passage states that “[t]he credit repair business involves the
marketing of credit repair services to consumers whose
consumer reports contain adverse information that interferes
with their ability to obtain credit.”112 More succinctly, “credit
repair organizations . . . help consumers eliminate adverse
information from consumer reports.”113 Debt-settlement
companies, however, do not purport to perform this function.
Rather, these companies exist to eliminate outstanding debt on
their clients’ behalf. Absent material representations about
improving credit worthiness, debt settlement does not fall
within Congress’s purpose in enacting the CROA.114 Although
the CROA may be useful for certain consumers, it is
inadequate as regulation of the industry as a whole.
Many states have enacted CROA analogs that provide an
additional private cause of action for debt-settlement clients.115
For instance, New York’s CROA analog applies to “credit
services businesses”—defined identically to the federal CROA’s
credit-repair organizations.116 The New York law imposes specific
disclosure requirements on credit-services companies and
112
Hillis v. Equifax Consumer Servs., Inc., 237 F.R.D. 491, 513 (N.D. Ga.
2006) (quoting H.R. REP. NO. 103-486, at 57 (1994)).
113
Id. (quoting S. REP. NO. 103-2009, at 7 (1993)).
114
For an extensive discussion of the CROA’s legislative history, see id. As the
district court noted in Hillis,
To utilize an analogy from the sport of golf, a [credit-repair organization] is
like a person who offers to improve a golfer’s score after a round is over by
reviewing and making changes to the golfer’s score card or by telling the
golfer how he can make changes to his score card. By contrast, a person who
offers to give a golfer swing tips to improve his score the next time he heads
out on the course is not a [credit-repair organization].
Id. at 514. The Hillis court was not discussing debt-settlement companies, but the
distinction between editing a scorecard and performing differently in the future is
relevant. Congress intended the CROA to regulate the former while debt settlement is
a service much more like the latter.
115
For a comprehensive discussion of various state credit-repair laws and
their scope, see CHI CHI WU & ELIZABETH DE ARMOND, FAIR CREDIT REPORTING § 15.3
(6th ed. 2006).
116
N.Y. GEN. BUS. LAW §§ 458-a to 458-k (McKinney 2009) (defining a credit
service business as person who provides “a service for the express or implied purpose of
improving a consumer’s credit record, history, or rating or providing advice or
assistance to a consumer with regard to the consumer’s credit record history or rating
in return for the payment of a fee”); see also 15 U.S.C. § 1679a(3) (2006) (codification of
the federal CROA). New York law, like the federal CROA, exempts nonprofits and
original creditors from regulation. GEN. BUS. § 458-b.
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prohibits them from accepting fees before performing services.117
Given the New York CROA’s similarity to its federal
counterpart, courts are likely to interpret its definitional scope
similarly: debt settlement qua debt settlement is not a creditservices business.118 Indeed, state credit-repair laws “generally
cover the same variety of organizations as the [federal CROA].”119
Just as the federal CROA does not adequately regulate the debtsettlement industry, it is unlikely that courts will read state
analogs to do so.
Additionally, New York’s deceptive-acts-and-practices
law provides a private cause of action that may also apply to
the debt-settlement industry.120 Section 349 states very simply
and broadly that “[d]eceptive acts and practices in the conduct
of any business, trade or commerce or in the furnishing of any
service in this state are hereby declared unlawful.”121 Modeled
on the FTC Act provision discussed above,122 New York courts
have interpreted section 349 using FTC Act case law and
legislative history.123 Since the FTC has been relatively
successful in the few actions it has brought against debtsettlement companies, similarly situated plaintiffs in New York
may be successful in section 349 actions. At least one suit
brought under section 349 against a debt-settlement company,
for example, settled out of court. The complaint, filed in the
Western District of New York, alleged numerous section 349
violations for a debt-settlement company’s statements about
117
GEN. BUS. §§ 458-d, 458-e.
Although plaintiff Cortese pleaded violations of section 458, the court
denied the defendant’s motion for summary judgment on procedural grounds without
discussing the merits of the plaintiff’s state-law claims. Cortese v. Edge Solutions, Inc.,
No. 04-0956, 2007 WL 2782750, at *1 n.1 (E.D.N.Y. Sept. 24, 2007). Cortese, therefore,
provides no insight into how it would apply section 458 to a debt-settlement company.
119
WU & DE ARMOND, supra note 115, at § 15.3.2. But New York credit-repair
law does explicitly exempt “[a]ny person admitted to practice law in this state where
the person renders services within the course and scope of his or her practice as an
attorney at law.” GEN. BUS. § 458-b(1)(b). There is no similar exemption under the
federal CROA. This New York exemption would be relevant in a situation where a law
firm provides debt-settlement services (and, thus, might claim exemption from the New
York law). While the intended scope of the exemption is unclear, one could argue that
debt settlement is not “within the course and scope” of law practice and should
therefore not be exempted.
120
See GEN. BUS. § 349.
121
Id. § 349(a).
122
15 U.S.C. § 45 (2006). Indeed, these state laws are known as “little FTC
Acts.” Schwartz & Silverman, supra note 91, at 15 (quoting J.R. Franke & D.A. Ballam,
New Applications of Consumer Protection Law: Judicial Activism or Legislative
Directive?, 32 SANTA CLARA L. REV. 347, 357 (1992)).
123
State ex rel. Lefkowitz v. Colo. State Christian Coll. of Church of Inner
Power, Inc., 346 N.Y.S.2d 482, 487 (N.Y. Sup. Ct. 1973).
118
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the time required for services to be rendered and the success
rates of its program.124
Nonetheless, section 349 has many of the same
limitations as its federal counterpart. While section 349 may
benefit certain individuals, like the FTC Act, it addresses only
deceptive behavior. In enacting section 349, the New York
legislature did not intend to address debt-settlement companies;
indeed, its passage predates the rapid expansion of debtsettlement usage. Consequently, section 349 does not address
the core problems of the debt-settlement industry. Section 349
provides consumers with only a limited resource and contributes
little to the needed comprehensive regulatory framework.
IV.
PROPOSED SOLUTIONS
Public concerns about the debt-settlement industry have
not escaped the attention of regulators and legislators—federal
and state alike. This section provides a detailed explanation of
recent legislative efforts, as well as rule amendments passed by
the FTC to regulate the debt-settlement industry.
A.
Congressional Efforts
The U.S. House of Representatives has proposed a few
different measures to address the deleterious effects of debt
settlement. In 2003, the House proposed a resolution that
mandated significant advertising and contract disclosures, and
prohibited upfront fees.125 The bill also banned debt-settlement
companies from advising clients to discontinue payments owed
to their original creditors.126 The bill was referred to committee
in late 2003, and has not been voted on or reintroduced since.127
More recently, the House introduced a bill that would
give the FTC expedited rulemaking powers to regulate debt-
124
Complaint at 10, Boyken v. Am. Debt Arbitration, No. 6:07-cv-06348
(W.D.N.Y. July 16, 2007).
125
Debt Counseling, Debt Consolidation, and Debt Settlement Practices
Improvement Act of 2003, H.R. 3331, 108th Cong. (1st Sess. 2003).
126
Id. § 1003(c)(1).
127
See H.R. 3331 Bill Summary & Status, LIBRARY OF CONG., http://thomas.
loc.gov (follow “Try the Advanced Search” link; then select “108” under “Select
Congress”; then select “Bill Number” in the drop-down menu under “Enter Search”;
then enter “H.R. 3331” in text search box; then follow “search hyperlink”; then follow
“All Congressional Actions” hyperlink) (last visited Feb. 10, 2011); see also Library of
Congress, THOMAS ONLINE DATABASE, http://thomas.loc.gov (last visited Feb. 1, 2011).
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settlement companies.128 Specifically, the bill directs the FTC to
consider banning upfront fees and requiring certain disclosures
by the debt-settlement industry.129 No action has been taken on
this bill since June 3, 2009,130 likely due, in part, to the FTC’s
broader independent efforts and Congress’s proposals for
institutional change. As discussed below, the FTC
independently passed amended rules creating regulations
pertaining to “debt relief services”131—entirely supplanting the
need for the House’s expedited rulemaking.
Additionally, Congress recently passed the Dodd-Frank
Wall Street Reform and Consumer Protection Act, which
created the Bureau of Consumer Financial Protection.132 The
bureau is tasked with regulating all financial products and
services, which are defined to explicitly include debt-settlement
services.133 That Congress specifically tasked a new federal
agency with regulating the debt-settlement industry suggests
that it is unlikely to pursue further legislation.
B.
Uniform State Laws
Although congressional action is frozen, state
legislatures have recognized the need to tackle the problems of
the debt-settlement industry. As discussed above, states have
commonly regulated debt-relief services in the past through
piecemeal legislation.134 Recently, however, the National
Conference of Commissioners on Uniform State Laws
(NCCUSL) began an effort to reverse this trend.135 In 2005, the
NCCUSL approved for dissemination a final version of the
Uniform Debt-Management Services Act (UDMSA).136 In brief,
128
Consumer Credit and Debt Protection Act, H.R. 2309, 111th Cong. (1st
Sess. 2009).
129
Id. § 2(b).
See H.R. 2309 Bill Summary & Status, LIBRARY OF CONG., http://thomas.
loc.gov (follow “Try the Advanced Search” link; then select “111” under “Select
Congress”; then select “Bill Number” in the drop-down menu under “Enter Search”;
then enter “H.R. 2309” in text search box; then follow “search hyperlink”; then follow
“All Congressional Actions” hyperlink) (last visited Feb. 10, 2011).
131
Telemarketing Sales Rule, 74 Fed. Reg. 41,988, 41,988 (Aug. 19, 2009).
132
Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No.
111-203, § 1011, 124 Stat. 1376 (2010) (to be codified at 15 U.S.C. § 5491).
133
Id. § 1002(15)(A)(viii)(II).
134
See supra Part I.
135
For a full background and history of the NCCUSL, see generally James J.
White, Ex Proprio Vigore, 89 MICH. L. REV. 2096 (1991).
136
Jeffrey S. Tenenbaum & Jonathan L. Pompan, Proposed Uniform DebtManagement Services Act to Effect Major Changes in the Law, 123 BANK. L.J. 502, 502 (2006).
130
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the UDMSA purports to regulate debt-management services,
including both credit-counseling agencies and debt-settlement
companies.137 Of course, the UDMSA is not law at promulgation;
state legislatures must adopt and enact its provisions.138 But a
handful of states have enacted the UDMSA so far.139
At its foundation, the UDMSA prohibits companies and
individuals from providing “debt management services”
without registering at the state level.140 Debt-management
services are defined “as an intermediary between an individual
and one or more creditors for the individual for the purpose of
obtaining concessions.”141 The comments to this subsection
clarify that debt-management services encompass any
intermediary that attempts to change the terms of a debt
contract—even when the intermediary does not have control
over an individual’s escrow funds—and explicitly mention debtsettlement companies.142 The UDMSA exempts specific entities
from its coverage.143 The UDMSA also includes alternative
language that allows states to decide whether to allow forprofit companies.144 For example, a state could enact UDMSA
language banning all for-profit debt-settlement services; or it
could opt for language allowing only for-profit debt-settlement
services and prohibiting for-profit credit counseling.145
137
Id.
White, supra note 135, at 2096.
139
E.g. COLO. REV. STAT. ANN. § 12-14.5-201 (West 2010); DEL. CODE ANN.
TIT. 6 § 2401A (West 2010); KAN. STAT. ANN. § 50-1116 (West 2010); MINN. STAT. ANN.
§ 332A.02 (West 2010); 63 PA. CONS. STAT. ANN. § 2401 (West 2010); R.I. GEN. LAWS
ANN. § 19-14.8-1 (West 2010); S.C. CODE ANN. § 37-7-101 (2010); UTAH CODE ANN.
§ 13-42-101 (West 2010). The UDMSA has also been proposed in New York. The bill
adopting the UDMSA regulations was introduced in the New York Assembly and was
referred to the Consumer Affairs and Protection Committee on March 27, 2009. The
committee held a hearing on May 8, 2009. N.Y. Assemb., A. 7268, 2009 Leg. (N.Y.
2009). But no action has since been taken on the bill.
140
UNIF. DEBT MGMT. SERVS. ACT § 4(a) (Nat’l Conference of Comm’rs on
Unif. State Laws 2005). Registration is made with a state agency designated or created
by a state for administering the UDMSA. Id. § 2(1). Approval of registration in one
state shall be accepted as valid in another state so long as the information is
substantially similar or more comprehensive than that required by the second state. Id.
§ 12(1).
141
Id. § 2(9).
142
Id. § 2 cmt. 8. The UDMSA is also explicitly intended to cover creditcounseling agencies. In fact, when originally written in 2003, the UDMSA only covered
credit-counseling agencies. Debt-settlement companies were not included until a
NCCUSL decision in 2004. Id. at 4 (prefatory note).
143
For example, judicial officers and banks are specifically exempted. Id. § 3.
144
Id. § 4(d).
145
Id.; see also Tenenbaum & Pompan, supra note 136, at 506. For example, the
version proposed by the New York legislature, see supra note 139, would require any
138
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Once registered, the UDMSA imposes significant
regulation on a debt-settlement company. One drafter described
UDMSA regulations as “four pillars” that respond to recognized
past abuse by “(1) safeguarding the debtor’s money; (2)
disclosing the credit counselor’s relationship with and payment
by creditors; (3) requiring adequate financial education; and,
perhaps most importantly, (4) requiring credit counselors to
determine that a [debt-management plan] is suitable for the
debtor before enrolling the debtor in [the plan].”146
The UDMSA purports to accomplish the first goal—
safeguarding a debtor’s money—in several ways. First, it
requires registered companies to provide extensive biographical
information.147 This requirement is intended to prevent highway
banditry and to lower enforcement costs by allowing a state
administrator to easily locate companies. Additionally, the
UDMSA mandates that registered companies have a bond,
certificate of insurance, or letter of credit in an amount deemed
sufficient to cover potential payments of damages—which
protects against company insolvency.148 Trust accounts (also
known as escrow accounts) must conform to specific guidelines:
notably, money in a trust must be promptly returned to the
individual upon cancellation of a service program.149 Finally, the
UDMSA specifically limits the fees that a debt-settlement
company may charge.150 Service fees are not to exceed $50
monthly; set-up fees are not to exceed $400 monthly; and debt-
debt-management company—including debt-settlement companies—to be nonprofit
before registering and conducting business in New York. N.Y. Assemb., A. 7268, 2009
Leg. Sess. § 579-C (N.Y. 2009). The specific language, borrowed directly from the
UDMSA, provides that no company may register unless it is (1) organized and properly
running as a not-for-profit under the law of the state in which it was formed, and (2)
exempt from taxation under Section 501 of the Internal Revenue Code. Id. Despite this
for-profit ban, however, the New York bill as proposed does not alter the UDMSA’s
general fee-cap provisions. Id. § 584-B. Indeed, New York specifically uses the UDMSA’s
language providing for a maximum initial fee of $400, a maximum monthly fee of $50,
and a maximum of 30% of the amount saved on any settled debt. Id.
146
Witzel, supra note 7, at 653. Disclosing details of any relationship with
creditors is more relevant to credit counselors that are employed or paid by creditors.
As previously noted, debt-settlement companies do not have a history of opaque
relationships with creditors; in fact, creditors often disapprove of the debt-settlement
industry. See supra Part II.C. As such, this particular type of regulation will not be
discussed here.
147
UNIF. DEBT MGMT. SERVS. ACT § 6 (Nat’l Conference of Comm’rs on Unif.
State Laws 2005).
148
Id. §§ 13, 14.
149
Id. § 22(h).
150
Id. § 23.
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settlement companies may only charge up to 30% of the
amount saved on a settled debt.151
The UDMSA goal of “requiring adequate financial
education” speaks to disclosure as well as education. Prior to
performing
debt-management
services,
debt-settlement
companies must provide an itemized list of services and
charges, as well as a list of predicted settlement outcomes with
each creditor.152 In addition, the UDMSA requires that these
companies disclose the adverse consequences of participating in
their programs. Companies must inform clients that the service
may adversely affect their credit scores.153 They also must
advise clients that there may be better alternatives like
bankruptcy and that any settled debt may be taxable as
income.154 Supplementing these disclosure requirements, a debtsettlement company is required to provide prospective clients
with “reasonable education about the management of personal
finance.”155 According to the comment accompanying this
subsection, education may be a “group class” or an “electronic
educational program,” but it “must be substantially more than
an explanation of the benefits of a plan.”156 Noting that
financial-literacy education is becoming more commonplace,
the UDMSA comments also explain that the state
administrator may promulgate more detailed rules for
education as standards for effective financial literacy develop.157
Finally, the UDMSA regulations require a debtmanagement service to determine that a particular plan is
suitable for an individual before the individual enrolls in the
151
Id. The numbers presented here are absolute-maximum amounts allowed
under the UDMSA. Actual fee structures are based on the amount of debt under
contract in various ways. For example, a debt-settlement company may only charge a
set-up fee “in an amount not exceeding the lesser of $400 and four percent of the debt
in the plan at the inception of the plan.” Id. § 23(d)(2)(A). The UDMSA also requires
that debt-settlement contracts provide cancellation within three days of creation with
no obligation and cancellation upon notice by the individual at anytime with the right
to a refund of unexpended funds. Id. §§ 19, 20. This protects a debtor’s money by
allowing cancellation of a contract without liability for further payments.
152
Id. § 17(a), (c). Prediction of settlement outcomes need not be particular as
to an amount. The UDMSA creates four categories in which a creditor must be
predicatively placed by a debt-settlement company: (1) those that will participate and
grant concessions, (2) those that will participate but not grant concessions, (3) those
that will not participate, and (4) all others. Id. § 17(c)(3).
153
Id. § 17(d).
154
Id.
155
Id. § 17(b)(1).
156
Id. § 17 cmt. 2.
157
Id.
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service’s plan.158 For a prospective client of a debt-settlement
company, suitability “means at a minimum that the individual
does not have the ability to satisfy creditors out of current
income within a reasonable time even if the creditors were to
reduce finance charges and fees for late payment, default, and
delinquency.”159 A debt-settlement company must also
determine that an individual will be able to fulfill the payment
schedule of the chosen settlement plan.160
To enforce the UDMSA regulations, the UDMSA gives
the state administrator power to order a cease and desist, to
order payment of restitution, and to prosecute a civil action
independently or on an individual’s behalf.161 In addition to
public enforcement, an individual may bring a civil action to
recover compensatory damages, punitive damages, and
reasonable attorney’s fees.162
C.
FTC Rulemaking
Apart from federal and state legislation, the FTC has
recently adopted rule changes targeting the debt-settlement
This
rulemaking
amended
the
current
industry.163
Telemarketing Sales Rule (TSR) to bring more aspects of debtrelief services within the regulations.164 Generally, the TSR
regulates various business practices of companies engaged in
telemarketing.165 Telemarketing is defined as (1) soliciting the
sale of goods or services using a telephone and (2) making more
than one interstate phone call.166 Previously, the TSR applied
only to outbound calls made by debt-relief services.167 But the
new rule encompasses inbound calls as well, bringing “virtually
all debt relief telemarketing transactions” within the TSR’s
158
Id. § 17(b)(3)(B).
Id. § 17 cmt. 4.
160
Id. § 17(b)(3)(B).
161
Id. § 33. The state administrator is the agency or entity chosen by the state
to enforce the UDMSA. Id. § 2(1).
162
Id. § 35.
163
Telemarketing Sales Rule; Final Rule, 75 Fed. Reg. 48,458 (Aug. 10, 2010)
(to be codified at 16 C.F.R. pt. 310). The deadline to submit written comments in
response to this rule’s requisite notice of proposed rulemaking was October 9, 2009.
Telemarketing Sales Rule, 74 Fed. Reg. 41,988 (Aug. 19, 2009).
164
See Telemarketing Sales Rule; Final Rule, 75 Fed. Reg. at 48,458.
165
Id.
166
Id.
167
Id. at 48,501-02.
159
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coverage.168 At the outset, it is important to understand that the
statute authorizing the FTC to implement the TSR (and thus,
this proposed rulemaking) creates a federal private cause of
action for injunctive relief or damages, provided that the
amount in controversy exceeds $50,000.169
Under the new rule, a debt-relief service is defined
broadly and is intended to cover debt-settlement services.170
Specifically, a debt-relief service is defined as
any program or service represented, directly or by implication, to
renegotiate, settle, or in any way alter the terms of payment or other
terms of the debt between a person and one or more unsecured
creditors or debt collectors, including, but not limited to, a reduction
in the balance, interest rate, or fees owed by a person to an
unsecured creditor or debt collector.171
In promulgating this new rule, the FTC sought to regulate all
procedures sold to consumers, and it added the word “program”
to ensure this wide breadth.172
The new FTC rule also subjects debt-settlement
companies to mandatory disclosure, an important aspect of
regulation for the FTC. Under one general set of provisions,
debt-settlement companies must disclose (1) the total costs of
services; (2) all “material restrictions, limitations, or conditions
to purchase, receive, or use the goods or services”; and (3) the
seller’s refund policy.173 The rule also mandates disclosure of the
time required to achieve resolution—including the specific time
when a settlement company will tender settlements to
creditors—and the amount of money that must accumulate
168
Id. As an initial matter, these amendments are subject to the jurisdictional
limitations of the TSR and the FTC Act. One noteworthy limitation is that all nonprofit
entities are exempted from these regulations. Id. at 48,465-66. The FTC acknowledged
concerns that many abusive debt-relief services might remain unregulated because
they are technically nonprofits. Id. at 48,465. It concluded, however, that it lacks
authority under the TSR’s governing statute to regulate nonprofit entities. Id. at
48,465-66.
169
15 U.S.C. § 6104 (2006). The statute also provides a civil cause of action for
any state attorney general. Id. § 6103.
170
Telemarketing Sales Rule; Final Rule, 75 Fed. Reg. at 48,516-17. The last
clause of the definition, however, limits the definitional scope to unsecured creditors or
debt collectors operating with unsecured debt. This was done intentionally to exclude
mortgage loan-modification plans. The FTC noted that there are problems with
fraudulent mortgage-relief companies that are similar to debt-settlement operations
but that need to be regulated in different ways for various reasons. Id.
171
Id. at 48,516-17.
172
Id. at 48,466 n.123.
173
Id. at 48,517.
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before settlement is offered.174 Additionally, the new rule
requires that debt-settlement companies advise clients of
certain risks—namely, that creditors may pursue collection
efforts (including litigation) during the debt-settlement
program, and that participating in a settlement program will
likely result in an adverse credit rating and may increase the
total amount of debt owed.175
Much beyond disclosure, the FTC also adopted a
solution to the unsound practice of charging upfront fees. The
new rule prohibits requesting or receiving payment for any
debt-relief service unless the company has “renegotiated,
settled, reduced, or otherwise altered the terms of at least one
debt pursuant to a settlement agreement.”176 This upfront-fee
ban applies to all debt-relief services—including debtsettlement companies, which, as explained above, hold a
client’s funds in escrow until enough have accumulated to offer
a settlement. The rule states that the FTC “does not intend
that the advance fee ban be interpreted to prohibit a consumer
from using legitimate escrow services . . . to save money in
anticipation of settlement,”177 though this language does seem
to explicitly prohibit collecting any part of a flat fee prior to
settling a debt.178
Less clear, however, are other fees often charged by
debt-settlement companies—namely, service fees, initiation
fees, and other account-maintenance or administrative-type
fees. Companies charge these fees before any debt has been
settled, but one could argue that this practice does not violate
the ban on upfront fees because these other fees are required to
facilitate escrow services for the client until enough funds have
accumulated. The FTC has concluded, however, that all upfront
fees charges by debt-relief providers are an abusive business
practice.179
174
Id. at 48,518.
Id.
176
Id. at 48,519.
177
Telemarketing Sales Rule, 74 Fed. Reg. 41,988 (Aug. 19, 2009).
178
See supra Part II. A flat-fee model charges a percentage of the total debt
and is typically collected—entirely or in part—before any settlement is achieved.
179
Telemarketing Sales Rule, 74 Fed. Reg. at 42,006. To determine if a
practice is abusive, the FTC uses a three-prong unfairness test. A practice is unfair if
“1) the conduct at issue causes substantial injury to consumers; 2) the harm resulting
from the conduct is not outweighed by any countervailing benefits; and 3) the harm is
not reasonably avoidable.” Id. at 42,005.
175
2011]
V.
DEBT SETTLEMENT
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THE IDEAL REGULATION
To determine ideal regulation of the debt-settlement
industry, one must answer two questions: (1) where should
regulation originate,180 and (2) what particulars should the
regulation include?
A.
Source of Regulation
To the first question, we have seen potential regulation
originate from uniform state law, federal law, and federalagency regulation. Congress’s recent actions in regulating debtrelief services show that it is likely to stay out of the issue.181 As
a practical matter, then, it is appropriate here to analyze the
benefits of uniform state law and federal-agency regulation.
The NCCUSL is known as a private legislature because
it cannot pass binding laws; it can only suggest passage to
traditional legislatures.182 It has also been called an elite
legislature because its members are chosen by state governors
based on their expertise and sophistication in a particular area
of law.183 As one commentator has noted, NCCUSL
“[c]ommissioners are likely to draft laws that are clearer, better
understood, and with more insight” than state legislatures.184
Even if true, however, these factors may not warrant
placing regulation of the debt-settlement industry in the
NCCUSL’s hands. One problem is that the NCCUSL
coordinates and embraces interest-group activities, injecting
bias into uniform laws.185 The NCCUSL invites interest-group
advisers and self-interested American Bar Association
committees to participate in drafting the laws.186 As a result,
180
Implicit in the question is, to whom should the power of enforcement be given?
As noted supra text accompanying notes 125-27, Congress failed to act on
comprehensive regulation in 2003; it proposed expedited rulemaking powers for the
FTC in 2009; and recently, it created a new federal agency tasked with consumer
protection. See supra text accompanying notes 132-33. It is highly unlikely, then, that
Congress will now be a venue for regulation.
182
Alan Schwartz & Robert E. Scott, The Political Economy of Private
Legislatures, 143 U. PA. L. REV. 595, 596 (1995).
183
See White, supra note 135, at 2132.
184
Id. Indeed, it is also argued that because its product must be approved by
fifty state legislatures, NCCUSL is forced to engage in a much more careful
deliberative process. Edward J. Janger, Predicting When the Uniform Law Process Will
Fail: Article 9, Capture and the Race to the Bottom, 83 IOWA L. REV. 569, 583 (1998).
185
See Larry E. Ribstein & Bruce H. Kobayashi, An Economic Analysis of
Uniform State Laws, 25 J. LEGAL STUD. 131, 142-43 (1996).
186
Id.
181
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“the drafting process may be biased towards business rather
than consumer groups.”187 Unbalanced lobbying efforts also
result when the burdens of a proposed law fall on a small,
concentrated group while its benefits are distributed among a
large, diffuse group.188 In this context, “the small and
concentrated group can use its own resources . . . to acquire
rules favorable to itself and possibly detrimental to the larger,
diffuse group.”189 Besides producing a biased law, interest-group
involvement may hinder the ultimate ratification of uniform
laws. At the state level, interest-group opposition “can prevent
widespread adoption of an efficient NCCUSL proposal.”190
The UDMSA—and, indeed, any NCCUSL regulation of
the debt-services industry—is prone to these exact problems.
Debt-management-services providers bear the costs and
burdens of the regulation, while the benefits go to the diffuse
population of debt-holding consumers nationwide. Naturally,
this dynamic creates strong incentives for the debt-settlement
industry to participate in drafting the UDMSA. It likewise
creates very little incentive for the individual consumer to
participate, even though that consumer is within the
population that benefits.
NCCUSL proposals are also prone to negative results
when interest groups mount equal lobbying campaigns in
competition with each other. Often, active interest-group
competition results when a legislative proposal would
substantially change the status quo.191 The NCCUSL generally
reacts to coequal lobbying with a conservative stance—
adopting “no new rules at all” or “vague rules that appear to
accomplish something, but in fact do not.”192 Thus, if consumer
interests were equally represented in the lobbying and drafting
process, the UDMSA regulations would likely do little to effect
meaningful change in the debt-settlement industry.
187
Id. at 143. Consumers and consumer-oriented groups may also be much
better equipped to pressure public legislatures than the NCCUSL, given the latter’s
procedural inclusion of interest groups. Id. at 142-43. Similarly, public legislatures
have institutional tools that foster production of diverse and reliable information
whereas private legislatures do not. See Schwartz & Scott, supra note 182, at 630.
188
Janger, supra note 184, at 584-85; Ribstein & Kobayashi, supra note 185, at 143.
189
Janger, supra note 184, at 585.
190
Ribstein & Kobayashi, supra note 186, at 143.
191
See Schwartz & Scott, supra note 183, at 636.
192
Id. at 637.
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In any event, the NCCUSL has a low rate of adoption in
state legislatures.193 Opposition to adopting a uniform law
makes failure the likely result, regardless of how proficient the
proposal may be.194 The UDMSA, though already enacted in
some states, would face sharp opposition from an acutely
interested industry if it imposed anything considered a
constraint on business.195 The goal of uniform laws is
uniformity; thus, uniform laws should not be proposed if there
is a risk of failure.196 Since the UDMSA is either likely to be
ineffective at regulating the debt-settlement industry or prone
to failure at the state level, uniform state laws are not the ideal
means of regulation in this context.
The FTC, by contrast, avoids both of these problems. As
an agency with a relatively broad mandate of authority, the
FTC is free of “interest group capture.”197 Moreover, the FTC’s
rules have uniform applicability.198 Unlike the UDMSA, FTC
rulemaking would create complete national coverage and
193
As of 1991, “[o]f the more than 200 uniform acts, 107 have been adopted by
fewer than ten states; 77 of those have not made the grade in even five states, and a
number of uniform acts have earned zero adoptions.” White, supra note 135, at 2103.
194
See id. at 2132. As one commentator has written,
The pull to make the law technically better is an engine of modest
horsepower. Going up even the smallest incline . . . it is soon unable to move
forward. When there is only a modest incline and no opposition, as in the case
of laws concerning procedural issues in the courts, this engine can carry its
load to the destination, but only in such circumstances.
Id.
195
It is difficult to ascertain the extent of the debt-settlement industry’s direct
involvement in the UDMSA’s drafting. But speaking to the general idea that the
industry is acutely aware and interested in any potential regulation, the FTC held a
public workshop on September 25, 2008, for which it received thirty-five public
comments from debt-settlement companies and trade associations. All these comments
are available at http://www.ftc.gov/os/comments/debtsettlementworkshop/index.shtm.
There is no reason to believe that the industry as a whole was and is any less
interested in the UDMSA.
196
See Janger, supra note 184, at 593 (arguing that, when certain
circumstances indicate that the uniform law process is likely to fail, the “NCCUSL
should decline to regulate the area and leave the question to federal law or nonuniform
state law”).
197
See Sidney M. Milkis, The Federal Trade Commission and Consumer
Protection: Regulatory Change and Administrative Pragmatism, 72 ANTITRUST L.J.
911, 938 (2005). In Milkis’s view, although the FTC was not institutionally or
historically designed to avoid capture, it has become the agency’s biggest strength. Id.
at 911-13. He supports this thesis with three case studies on consumer-protection
actions, including one examining the Telemarketing Sales Rule. Id. at 927.
198
See Telemarketing Sales Rule, 74 Fed. Reg. 41,989 (Aug. 19, 2009).
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uniformity.199 And uniformity may prompt less industry
opposition. Since many debt-settlement companies operate
nationally, a uniform rule provides “the advantage[] of having
to comply with only one law.”200
Despite these strengths, however, there is a legitimate
concern that the FTC lacks the ability to effectively enforce its
own consumer-protection regulations. The agency has a relatively
small budget and is charged with overseeing a large number of
businesses and transactions.201 Of particular concern, “the sheer
number of actions the FTC can bring in any given year is
insignificant compared to the nature and scope of the consumer
protection problems plaguing consumers and honest businesses in
the United States.”202 As a result, most defrauded consumers thus
have no recourse after filing a complaint with the FTC.203
There is an easy solution to this problem: a private
cause of action. A private cause of action was expressly
considered and ultimately rejected when the FTC Act was
originally passed in 1914.204 Lawmakers recognized that,
because the FTC Act was purposefully broad, a private cause of
action would destroy predictability, be abused by plaintiffs’
attorneys, and burden the court system.205 While “the FTC was
composed of a body of experts and economists who could create
policy in a reasoned, orderly, and forward-looking fashion . . .
199
See Mark E. Budnitz, Martina Rojo & Julia Marlowe, Deceptive Claims for
Prepaid Telephone Cards and the Need for Regulation, 19 LOY. CONSUMER L. REV. 1, 14
(2006).
200
Id. Budnitz argues that the best approach to regulating prepaid telephone
cards is through federal legislation giving the FTC rulemaking authority. Congress has
already given the FTC authority to regulate the debt-settlement industry, as seen in
the FTC’s recent rulemaking. Telemarketing Sales Rule; Final Rule, 75 Fed. Reg.
48,458 (Aug. 10, 2010) (to be codified at 16 C.F.R. pt. 310). But Budnitz’s reasons for a
federal approach remain relevant in this context.
201
See Jeff Sovern, Private Actions Under the Deceptive Trade Practices Act:
Reconsidering the FTC Act as Rule Model, 52 OHIO ST. L.J. 437, 442 (1991).
202
Robert M. Langer, Point: State Attorneys General Should Have Broad
Powers to Enforce a Federal Telemarketing Fraud Law, 5 ANTITRUST 36, 36 (1991).
203
Guernsey v. Rich Plan of the Midwest, 408 F. Supp. 582, 586 (N.D. Ind.
1976). The Guernsey court noted that
[m]ost defrauded customers have no remedy at all because the Government
cannot possibly act in more than a small fraction of all of the cases of deceit
and overreaching against consumers. The [FTC] currently receives about
9,000 complaints a year and is only able to investigate one out of eight or
nine of these, and, of the small fraction investigated, only one in ten results
in a cease and desist order.
Id.
204
205
Schwartz & Silverman, supra note 91, at 12.
Id. at 13-14.
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DEBT SETTLEMENT
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private lawsuits, on the other hand, create[] policy in a
piecemeal and retroactive manner.”206 The Act has not been
amended to include a private cause of action.207
The legislature’s concerns were valid when the FTC Act
was enacted and remain valid today. But the new FTC rules
regulating the debt-settlement industry do not trigger these
concerns. First, despite the breadth of the FTC Act, the new
rules are specific, top-down provisions that are not subject to
judicial discretion. In this context, a private cause of action
would not create policy retroactively. To the contrary, banning
specific actions by a debt-settlement company is an “orderly”
and “forward-looking” policy.208 And a private cause of action
would be a much-needed means of enforcement. Moreover,
there is little reason for concern that a private cause of action
would be exploited by plaintiffs or overburden the judiciary.
The vast majority of potential plaintiffs are low-income
consumers whose access to legal representation is, at the very
least, limited. Nor would a private cause of action compromise
predictability because this regulation is built of narrow, specific
provisions—unlike the FTC Act, which is broad and open to
interpretation.209
The cause of action allowed under the FTC regulations
is inadequate because it is preconditioned on an amount in
controversy exceeding $50,000.210 Losses to fraudulent debtsettlement companies are frequently no more than a few
thousand dollars per case. Moreover, individual consumers
cannot rely on the FTC to redress these losses. As discussed
earlier in this note, the FTC does not excel at this level of
enforcement.211 An unrestrained private cause of action
provided by FTC rulemaking is the best approach to regulate
the debt-settlement industry. Although the FTC’s recent rule
amendments are a good start, consumer protection means
nothing without enforcement. Without a private cause of
206
Id. at 15.
Id. at 14.
208
Id. at 15.
209
Indeed, the FTC Act prohibits “unfair or deceptive acts or practices.” 15
U.S.C. § 45(a)(1) (2006). A private cause of action would force courts to interpret this
phrase on a case-by-case basis. Contrast this with the FTC’s recent proposed rule,
which prohibits receiving a fee before a particular debt is settled. Telemarketing Sales
Rule, 74 Fed. Reg. 42,020 (Aug. 19, 2009). Issues of interpretation arise in any
litigation, but even with a private cause of action, debt-settlement regulations would
result in much more predictability and much less ambiguity than the FTC Act.
210
15 U.S.C. § 6104 (2006).
211
See supra text accompanying notes 88-93.
207
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action—one that does not impose a threshold amount in
controversy—the new regulations will often go unenforced,
substantially undermining their efficacy.
B.
Particulars of Regulation
The second question remains: of what particulars should
regulation be composed? Generally speaking, the UDMSA
focuses on registering companies, mandating education, and
imposing fee caps for debt settlement, whereas FTC
rulemaking emphasizes banning upfront fees. Both proposed
regulations include significant disclosure requirements.
Disclosure is a laudable characteristic of any business
practice. In this context, however, it has limited value.
Mandating disclosure often results in “creative compliance” by
companies—that is, printed communications too complicated or
convoluted for the average customer to understand.212
Regardless of the information’s clarity or value, consumers
frequently do not read contracts.213 Thus, requiring a company
to “inform” consumers that debt settlement may adversely
affect their credit scores, as the UDMSA does,214 is window
dressing that would benefit few consumers. In fact, many debtsettlement companies already disclose pertinent information—
voluntarily or pursuant to state law—but consumers are
uninformed nonetheless because they rarely read contracts.215
Further, the FTC Act and its state analogs also prohibit
companies’ questionable representations, albeit with less
clarity than would provisions tailored specifically to the debt-
212
Debra Pogrund Stark & Jessica M. Choplin, A License to Deceive: Enforcing
Contractual Myths Despite Consumer Psychological Realities, 5 N.Y.U. J.L. & BUS. 617,
660-61 (2009); see generally Matthew A. Edwards, Empirical and Behavioral Critiques
of Mandatory Disclosure: Socio-Economics and the Quest for Truth in Lending, 14
CORNELL J.L. & PUB. POL’Y 199 (2005) (arguing that existing disclosure regimes—
particularly the Truth in Lending Act—fail to reduce information asymmetries in the
consumer-finance industry). Moreover, extensive disclosure requirements are worth
little when potential debt-settlement clients are in stressful financial situations;
“desperate consumers will tend to focus most on the representations made in the
advertisements about how these services can relieve them of their debt worries.” Letter
from Consumer Fed’n of Am. to the Sec’y of the Fed. Trade Comm’n 10 (Oct. 16, 2009),
available at http://www.ftc.gov/os/comments/tsrdebtrelief/543670-00161.pdf.
213
See Stark & Choplin, supra note 212, at 655-56.
214
UNIF. DEBT MGMT. SERVS. ACT, § 17(d)(3) (Nat’l Conference of Comm’rs on
Unif. State Laws 2005).
215
Letter from S. Brooklyn Legal Servs. to the Sec’y of the Fed. Trade Comm’n
7-8 (Oct. 26, 2009), available at http://www.ftc.gov/os/comments/tsrdebtrelief/54367000216.pdf.
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settlement industry.216 Disclosure would provide benefits for
certain consumers—possibly warranting inclusion—but it
cannot be the gravitas of this regulation.
Debt-settlement services have an enormous potential for
consumer financial harm. Damage results not only from high fees
but also from high failure rates. Legal action by creditors and
worsened credit scores are often unavoidable consequences of the
service as it exists today. Since this potential harm is the central
problem of the industry, it must be the focus of regulation.
Banning upfront fees is the proper solution to address
these problems. Advance fees allow debt-settlement companies
to benefit from client payment stagnation while taking no risk
of their own. Even if a consumer is unable to save money in
escrow (and thus does not proceed to benefit from the service),
debt-settlement companies still profit from advance fees.217 This
delay is fundamentally problematic for consumers: it increases
the risk of failure and creditor legal action while worsening
credit worthiness and doing nothing to lessen debt. Debtsettlement companies seek this business because it is
profitable. And they target consumers that cannot afford debtsettlement services in the first place.218 As an unregulated
service, debt-settlement companies can profit by contracting
with anyone holding unsecured debt.
A ban on upfront fees provides these companies with a
natural incentive to screen clients for potential success.
Prohibiting advance fees increases the profit margin that exists
in clients that could actually save enough money to effectuate a
settlement. With an advance-fee bar in place, companies will
voluntarily screen potential clients, limiting abusive
216
See supra Part III.
See Letter from Nat’l Ass’n of Att’ys Gen. to the Sec’y of the Fed. Trade
Comm’n 9 (Oct. 23, 2009) [hereinafter Letter to FTC], available at http://www.ftc.gov/
os/comments/tsrdebtrelief/543670-00192.pdf (arguing that, without a ban on advance
fees, “there is minimal incentive for debt relief companies charging up-front fees to
perform services because they collect these substantial fees regardless of whether they
negotiate anything for the consumer, succeed in settling any of the consumer’s debts for
a reduced amount, or take any action at all on behalf of the consumer”).
218
See id. (stating concern that “the current regulatory regime—in which
collection of substantial up-front fees is not prohibited—is such that increasing
numbers of unscrupulous operators will flock to this industry”). This comment also
references a classified advertisement in a Portland, Oregon, newspaper that claimed,
“This is truly the NEXT WAVE!! I’m sure you heard about it. Debt Settlement! . . . You
can be part of it and make a fantastic residual income!!! You too can potentially earn a
Million dollars in the next 12 months! Free Complete Training! No Fee To Become An
Affiliate!” Id. at 9 n.14.
217
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contracting.219 It would also force companies to provide services
quickly and efficiently—to work with a client’s creditors earlier
in the process to achieve an earlier payday. Banning upfront
fees would increase overall success rates, minimize creditor
action because of shortened default periods and ensure that
consumers owe fees only once a benefit has been realized.
The industry claims that debt-settlement companies are
unable to operate without upfront fees. It bases this claim on
several arguments. First, the industry argues that the
settlement process is continuous and ongoing, making advance
payment a requirement for creditor communication, and that
creditor communication is the relevant unit of work justifying
compensation.220 Second, debt-settlement companies have
relatively large client-acquisition costs, which justify advance
fees.221 Finally, the industry warns that only large existing
companies would be able to operate without upfront fees,
meaning that the ban would harm competition.222
These objections are without merit. The hypothetical
value of debt settlement is reducing a consumer’s debt load by
negotiating settlements with creditors. The value does not
derive from general communication with creditors, nor does it
derive from an expanded client base. Consumers are willing to
pay fees to have their debts settled—not for a company to
communicate with their creditors.223 Every business has costs
associated with its intended results. The entitlement to profit
219
Over the past decade, various state laws have attempted to rein in
subprime and other predatory home-loan providers by banning upfront fees. See Daniel
Immergluck, Private Risk, Public Risk: Public Policy, Market Development, and the
Mortgage Crisis, 36 FORDHAM URB. L.J. 447, 470-71 (2009). Some studies suggest that
antipredatory lending laws discouraged providers from offering the riskiest loans. Id.
at 483-84; Comptroller of the Currency, Economic Issues in Predatory Lending 19-20
(OCC Working Paper July 30, 2003), available at http://www.occ.treas.gov/working
paper.pdf. In the case of debt settlement, a ban on upfront fees would discourage
companies from contracting with the riskiest clients (i.e., those most unable to
complete a debt-settlement program and thus most likely to gain no benefit from debt
settlement).
220
Transcript of Federal Trade Commission Workshop: Consumer Protection
and Debt Settlement Industry, at 189 (Sept. 25, 2008) [hereinafter FTC Transcript]
(statement of Michael Mallow), available at http://www.ftc.gov/bcp/workshops/
debtsettlement/OfficialTranscript.pdf (“I don’t believe that in a debt settlement
company the unit of work is the successful completion of the settlement and the
satisfaction thereof.”); see also id. at 113 (statement of Jack Craven).
221
ASS’N OF SETTLEMENT COS., STUDY ON THE DEBT SETTLEMENT INDUSTRY 45 (2007) [hereinafter STUDY ON THE INDUSTRY], available at http://www.ftc.gov/os/
comments/debtsettlementworkshop/536796-00014.pdf.
222
FTC Transcript, supra note 220, at 187 (statement of Wesley Young).
223
See Letter to FTC, supra note 217, at 10 (“[I]t is marketing, lead generation
and referral costs that drive the debt settlement industry’s zeal for up-front fees.”).
2011]
DEBT SETTLEMENT
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comes from providing a service that has a client value greater
than its provider costs. Debt-settlement companies deserve
payment only after a client has received a benefit—that is, once
a debt has been settled.
To be sure, the ban on advance fees could potentially
constrain competition. The FTC noted that a “prohibition could
increase the costs incurred by any legitimate providers of debtrelief services, make it impossible for some firms to continue to
exist, and reduce the ability of new firms to enter the
market.”224 A ban may necessitate “additional capitalization, in
the form of borrowing or investment.”225 As a result, the
industry claims, debt settlement will become more expensive
and less accessible. But the industry is currently contracting
with far more consumers than it can reasonably provide
beneficial services for.226 The ban on advance fees would
eliminate predatory firms, allowing legitimate settlement
providers to fairly compete in the market and price their
services accurately. To the extent that constrained supply
would increase the costs of debt-settlement services, these costs
“would be unlikely to outweigh the consumer injury resulting
from the current fee practice.”227 Banning upfront fees mitigates
the most harmful aspect of debt settlement without creating
unreasonable costs for the industry.
For precisely these reasons, banning upfront fees is more
desirable than the UDMSA approach of imposing fee
maximums. While a fee maximum would hypothetically save a
client more money in escrow, since less would be taken for fees
(much as banning advance fees would), it does not give the debtsettlement company any incentive to complete settlement
services more efficiently. Fee maximums would not compel client
screening because clients with no chance of completing
companies’ settlement programs would still be profitable. There
is also no incentive to mitigate creditor intervention because
224
Telemarketing Sales Rule, 74 Fed. Reg. 41,988, 42,008 (Aug. 19, 2009).
Id. Some form of capital reserve via bond or insurance is required under
the UDMSA to protect against insolvency in the event of a judgment against the
company. UNIF. DEBT MGMT. SERVS. ACT §§ 13, 14 (Nat’l Conference of Comm’rs on
Unif. State Laws 2005). The UDMSA’s registration requirement is largely intended to
effectuate this mandated capitalization. Banning upfront fees might also force debtsettlement companies to maintain a reserve and may mitigate the need to impose
registration requirements on debt-settlement companies.
226
A voluntary study conducted by an industry trade association reported success
rates only as high as 60%. STUDY ON THE INDUSTRY, supra note 221, at 1. This means that,
at minimum, 40% of debt-settlement clients realize no benefits from the service.
227
Telemarketing Sales Rule, 74 Fed. Reg. at 42,008.
225
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these companies would collect fees—albeit at a more modest
level—regardless of whether a client falls further into financial
turmoil. The ban on upfront fees is the most advantageous
approach to regulating the debt-settlement industry, and the
FTC is wise to adopt it as its regulatory centerpiece instead of
fee maximums or mere compelled disclosure.
CONCLUSION
The debt-settlement industry is likely to continue its
rapid growth. But the existing regulation is insufficient to
protect consumers from the harm caused by debt settlement.
Neither the UDMSA nor the FTC’s recent rulemaking are
perfect, but each contains elements helpful in ensuring that
debt-settlement
programs
provide
financial
benefits.
Ultimately, the FTC’s recent regulation banning upfront fees is
a strong start. Still, the FTC must also provide for an
unreserved private cause of action to guarantee proper
enforcement. As it stands now, debt settlement is a beast that
tramples consumer welfare. But with the proper reins, debt
settlement can provide legitimate help to those facing the
burden of unsecured debt.
Andrew T. Schwenk†
†
J.D. Candidate, Brooklyn Law School, 2011; B.A., Bucknell University,
2006. I would like to thank Johnson Tyler for his invaluable work in consumer
protection and inspiring me to write this note. I would also like to thank Professor
Cynthia Godsoe for teaching legal writing to me and providing helpful edits to this
note. Thanks also to the entire staff of the Brooklyn Law Review. Finally, I would like
to thank my mom, dad, and sister for always keeping me on the right side of the law
and giving me constant support and inspiration.
Gubernatorial Discretion Not Advised
THE CASE FOR SPECIAL ELECTIONS TO FILL
SENATE VACANCIES
With the United States at war with itself and its very
existence teetering on the brink of collapse, commander-in-chief
Abraham Lincoln stood before a group of soldiers at a military
cemetery in Gettysburg, Pennsylvania, and declared that
“government of the people, by the people, for the people, shall not
perish from the earth.”1 Inherent in this democratic ideal was the
principle that “the people should choose whom they please to
govern them. . . . [P]opular election, should be perfectly pure, and
the most unbounded liberty allowed.”2 Today, this liberty is often
taken for granted. We flex our democratic muscles in voting for
everything from our Presidents, congressmen, and governors, to
our corporate directors, local school boards, reality show winners,
and top plays of the day in the world of sports. Yet the ability to
choose our leaders, a staple of our democratic society and
republican government, has only received the benefit of
constitutional protection for a relatively short span of time. The
Fifteenth Amendment, which precluded states from denying the
right to vote on the basis of race, was not made a part of our
Constitution until 1870.3 Women would have to wait another fifty
years for the Nineteenth Amendment to guarantee that the
government could not restrict the right to vote on the basis of
sex.4 The democratic impediment of a poll tax was not removed
from the voting booths until passage of the Twenty-Fourth
Amendment in 1964.5 And it wasn’t until 1971, with ratification
of the Twenty-Sixth Amendment, that young men and women old
enough to go to war were permitted to choose their
representatives responsible for sending them there.6 It has taken
1
President Abraham Lincoln, Gettysburg Address (Nov. 19, 1863).
U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 795 (1995) (quoting
Alexander Hamilton).
3
U.S. CONST. amend. XV.
4
Id. amend. XIX.
5
Id. amend. XXIV.
6
Id. amend. XXVI.
2
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Congress and the States the better part of the past two hundred
years to recognize, as the Supreme Court has, that suffrage is a
fundamental right, and a crucial linchpin of our democracy.
The right to elect our representatives in the Senate was
not established until 1913, with ratification of the Seventeenth
Amendment. Prior to 1913, senators were constitutionally
required to be appointed by the legislatures of their respective
states.7 Beginning in the early nineteenth century, a movement
was underway, comprised of reformers who believed that “the
direct vote was the inalienable right of every citizen,” to remove
the choice of senator from the discretion of the state
lawmakers.8 What emerged from this nearly century-long effort
was an amendment with a crystal clear democratic purpose to
put into the hands of the people the right to choose their
leaders.9 However, in the years since ratification, an inherent
flaw has come to light that has served to undermine the
original purpose of the amendment.
Immediately after vesting in the people the right to elect
their senators, the drafters of the Seventeenth Amendment set
forth the procedures by which vacancies should be filled. This
section of the amendment reads:
When vacancies happen in the representation of any State in the
Senate, the executive authority of such State shall issue writs of
election to fill such vacancies: Provided, That the legislature of any
State may empower the executive thereof to make temporary
appointments until the people fill the vacancies by election as the
legislature may direct.10
In one swift action, the drafters took the power of
appointment, originally granted to the state legislatures, and
conveyed it to the state executives in instances where a Senate
seat becomes vacant.11 However, the amendment does not grant
appointment powers to the governors directly. Rather, it is in
the discretion of each state legislature to decide whether to
grant appointment power to the governor, or to require the
7
Id. art. I, § 3, cl. 1.
C.H. HOEBEKE, THE ROAD TO MASS DEMOCRACY 50 (Transaction
Publishers 1995).
9
Laura E. Little, An Excursion into the Uncharted Waters of the Seventeenth
Amendment, 64 TEMP. L. REV. 629, 637 (1991).
10
U.S. CONST. amend. XVII.
11
See, e.g., Vikram David Amar, Are Statutes Constraining Gubernatorial
Power to Make Temporary Appointments to the United States Senate Constitutional
Under the Seventeenth Amendment?, 35 HASTINGS CONST. L.Q. 727, 729-30 (2008).
8
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governor instead to order that special elections take place.12
Thus, while the Seventeenth Amendment produced a uniform
method for the election of senators throughout the country, it
also created an inconsistent framework for their replacement
upon early departures from Capitol Hill. In turn, the vacancy
mechanism of the Seventeenth Amendment has produced a
slate of chaotic and often antidemocratic results.
Part I of this note documents recent events that have
brought this previously obscure issue into the national
spotlight. Part II provides a historical background of the
Seventeenth Amendment, detailing the movement that led to
its ratification and the three central concerns motivating its
supporters. Part III focuses on the evils confronted by the
framers of the Seventeenth Amendment and uses current
examples to show that these same issues remain prevalent
today. Finally, Part IV details the need for a constitutional
amendment to remedy the current flaws in our democracy. This
note ultimately concludes that in order to resolve the current
democratic crisis surrounding gubernatorial appointments,
special elections must be constitutionally mandated whenever
a vacancy in the U.S. Senate arises.
I.
THE CURRENT DEMOCRATIC CRISIS
In recent years, a string of infamous events have
occurred that have undermined the modern democratic
principles established by the Seventeenth Amendment.
Antidemocratic forces in our national politics have wrested
away the people’s right to choose their leaders and have
subsequently eroded the public’s trust in its own government.
One must look no further than to recent events in
Massachusetts, where the death of Senator Edward M.
Kennedy reignited age-old debates that surrounded the
passage of the Seventeenth Amendment. After Senator
Kennedy’s death on August 25, 2009, arguments ensued over
how to fill his vacant Massachusetts Senate seat.13 Existing law
in the state prescribed that:
[T]he governor shall immediately cause precepts to be issued to the
aldermen in every city and the selectmen in every town in the
district, directing them to call an election on the day appointed . . . .
12
See, e.g., id.
Kennedy’s Seat May Remain Empty for Months, CNN.COM (Aug. 26, 2009),
http://www.cnn.com/2009/POLITICS/08/26/kennedy.replacement/index.html.
13
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[which] shall not be more than 160 nor less than 145 days after the
date that a vacancy is created . . . .14
State law therefore mandated that the seat remain empty
until a replacement could be chosen by the people in a special
election that was to be held no sooner than 145 days after August
25, the date of the Senator’s death. However, the timing of the
vacancy and the national political climate served to transform
the issue into a partisan tug-of-war. The loss of Senator Kennedy
dropped Democratic representation in the Senate from sixty to
fifty-nine, thereby denying Democrats the ability to block a
Republican filibuster.15 Furthermore, the vacancy arrived at a
time when the debate over national health care reform had
reached a crescendo, with television screens rolling footage of
town hall protestors spewing angry barbs at elected officials.16 In
a posthumous letter addressed to both Massachusetts Governor
Deval Patrick and the state legislature, Senator Kennedy made a
public request to have his successor appointed by the governor.17
With critical legislation hanging in the balance and their
supermajority in the Senate in jeopardy, President Obama’s
administration exerted its own pressure on the state legislature
to change its procedures to allow Governor Patrick to fill the
empty seat before a special election could be held.18
This put Massachusetts Democrats in the awkward
position of amending a law that they were responsible for having
created just five years earlier. While Massachusetts Senator
John Kerry was campaigning for the Presidency in 2004, state
Democrats feared Republican Governor Mitt Romney would
appoint a member of his own party to succeed the candidate.19 To
prevent this scenario from taking place, the Democrats amended
the statute to require that special elections be held whenever
Senate vacancies arise.20 Any notion that this change was
motivated by democratic ideals in the spirit of the Seventeenth
14
MASS. GEN. LAWS ANN. ch. 54, § 140 (2004).
Glen Johnson, Kennedy Loyalist Tapped as Senate Replacement, HUFFINGTON
POST (Sept. 24, 2009), http://www.huffingtonpost.com/wires/2009/09/24/mass-governor-setto-name_ws_297986.html.
16
Philip Rucker & Dan Eggen, Protests at Democrats’ Health-Care Events Spark
Political Tug of War, WASH. POST, Aug. 6, 2009, available at http://www.washingtonpost.
com/wp-dyn/content/article/2009/08/05/AR2009080502780.html.
17
James Oliphant, Kennedy Asks Massachusetts to Change Successor Rules,
L.A. TIMES, Aug. 21, 2009.
18
Johnson, supra note 15.
19
Michael Falcone, Massachusetts Democrats Wary of Kennedy Law Change,
POLITICO.COM (Sep. 12, 2009), http://www.politico.com/news/stories/0909/27066.html.
20
Id.
15
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Amendment was refuted in 2009, when the Democrats once
again changed the law to allow for temporary gubernatorial
appointments, thereby clearing the way for Governor Patrick to
name Democrat Paul Kirk Jr. as Kennedy’s successor.21
Less than a year earlier, Illinois’s vacancy procedures
were the focus of national attention as a replacement was
sought to fill the seat left by Barack Obama’s ascendency to the
White House. According to state law, the seat was to be filled
by “the Governor [who] shall make [a] temporary appointment
to fill such vacancy until the next election of representatives in
Congress, at which time such vacancy shall be filled by
election . . . .”22 Thus, the ability to choose the people’s
representative was left exclusively to the discretion of Governor
Rod Blagojevich.23 As part of a wide-ranging investigation into
allegations of corruption against the governor, federal wiretaps
revealed Blagojevich leveraging the seat to secure future
campaign
donations
and
postpolitical
employment
24
opportunities. Fearing that he would exercise his statutory
duty to appoint a senator, federal authorities ended the sting
and arrested the governor before the country could find out
what a seat in the Senate was actually worth.25 Incredibly,
amid federal indictment and public outcry, Blagojevich sent a
letter to the President of the Senate of the United States
certifying his selection of Roland Burris to fill the vacant seat.26
After the Illinois Supreme Court deemed the appointment
valid, Senate Democrats backed down from their initial threats
to blockade Burris and allowed him to be seated.27 Not
21
Johnson, supra note 15. On January 19, 2010, the people finally had their say.
To the nation’s shock, they elected Republican Scott Brown to fill what had been a
Democratic seat for the previous forty-seven years. Matt Viser & Andrea Estes, Big Win
for Brown, BOS. GLOBE (Jan. 20, 2010), http://www.boston.com/news/local/massachusetts/
articles/2010/01/20/republican_trounces_coakley_for_senate_imperils_obama_health_plan.
22
10 ILL. COMP. STAT. ANN. 5/25-8 (2009).
23
Brian Ross, FBI: Illinois Governor Sought to “Sell” Obama’s Seat, ABC
NEWS.COM (Dec. 9, 2008), http://abcnews.go.com/Blotter/ConductUnbecoming/story?id=
6424985&page=1.
24
Michael Scherer, Governor Gone Wild: The Blagojevich Scandal, TIME.COM
(Dec. 11, 2008), http://www.time.com/time/nation/article/0,8599,1865781-1,00.html. Governor
Blagojevich was caught on tape stating “I’m just not giving it up for . . . nothing” and
lamenting the fact that President Obama’s allies were “not willing to give me anything
except appreciation.” Id.
25
Id.
26
Burris v. White, 901 N.E.2d 895, 896 (Ill. 2009).
27
Z. Byron Wolf, Jonathan Karl & Kate Barrett, U.S. Senate Will Seat
Roland Burris, ABCNEWS.COM (Jan. 12, 2009), http://abcnews.go.com/Politics/story?id
=6631014&page=1.
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surprisingly, a poll released months after his term began
revealed Burris to have a pathetic 17% approval rating, the
lowest of any sitting U.S. Senator.28 While the scandal
surrounding his appointment must have been a substantial
factor in the apparent lack of faith on the part of his
constituents, the democratically flawed method by which he
was chosen could not be overlooked either.
The gubernatorial appointment of Senator Lisa
Murkowski of Alaska in 2002 provides another outrageous
example of the Seventeenth Amendment’s flawed vacancy
provision. Senator Frank Murkowski, having served as
Alaska’s senator for twenty-two years, resigned his post to
become the governor of the state.29 Murkowski, “to the disgust
of many Alaskans,” chose his own daughter to fill his seat in
the Senate.30 Underscoring the inherent faults with this
nepotistic selection, the newly appointed senator held
divergent views from her father on two major political issues:
abortion and tax reform.31 Gubernatorial appointments that
keep the seat within the same political party are justified by
some on grounds that they are consistent with the wishes of
the constituents and thereby replicate their will until they can
vote in the next election.32 In the case of the Murkowski family,
although father and daughter were members of the same party,
their political views were arguably too incongruous to construe
the selection as an adequate reflection of the will of the people.
Outrage over the appointment spilled over to the next election
in 2004, when a ballot initiative was put forth to require
special elections when a vacancy in the Senate occurs.33 After
the ballot initiative passed, it was interpreted by the Alaska
28
Senate Approval Ratings, POLITICO.COM (May 22, 2009), http://www.politico.
com/blogs/scorecard/0509/Senate_approval_ratings.html.
29
Katharine Q. Seelye, New Alaska Governor Gives Daughter His Seat in
Senate, N.Y. TIMES, Dec. 21, 2002, available at http://www.nytimes.com/2002/12/21/us/
new-alaska-governor-gives-daughter-his-seat-in-senate.html.
30
Sanford Levinson, Political Party and Senatorial Succession: A Response to
Vikram Amar on How Best to Interpret the Seventeenth Amendment, 35 HASTINGS
CONST. L.Q. 713, 720 (2008) (quoting Blaine Harden, Senator Murkowski’s Big
Problem: Dad the Governor, WASH. POST, Aug. 10, 2004, available at http://www.
washingtonpost.com/wp-dyn/articles/A52838-2004Aug9.html).
31
Seelye, supra note 29.
32
Amar, supra note 11, at 753-58 (discussing Arizona’s statute that requires
the governor to choose a member of the departed senator’s party to fill the Senate
vacancy until the next election).
33
Alaska Judge Orders 500,000 Ballots Reprinted, Redistributed for Nov. 2
Election, USATODAY.COM (Sep. 29, 2004), http://www.usatoday.com/news/politicselections/
state/alaska/2004-09-29-ballots_x.htm.
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Supreme Court to have “eliminat[ed] gubernatorial
appointments from the process of filling [S]enate vacancies.”34
In New York, the appointment made by Governor David
Patterson to fill the vacant Senate seat of Secretary of State
Hillary Clinton was likewise tarnished by “its share of
acrimony.”35 While there were no allegations of political
misplay, the process to find a successor took weeks and was
seen by critics as “a careful political calculation” by a governor
who was presumed to be running for re-election in 2010.36 Not
only did Governor Patterson’s selection offer New Yorkers the
unsavory scenario of having a loosely elected governor appoint
an unelected senator,37 but it also reflected the danger posed by
the mixture of state and national politics. When the two are
combined, government roles and accountability become
confused, leaving the people misrepresented on both levels of
government.38 This issue was a major impetus that led to
ratification of the Seventeenth Amendment.39
Though unseemly gubernatorial appointments may have
damaging political repercussions for the parties involved,40 they
have, with the potential exception of Governor Blagojevich,41 not
34
State v. Trust the People, 113 P.3d 613, 614 (Alaska 2005). Interestingly,
Senator Lisa Murkowski won a surprise re-election bid as a write-in candidate in 2010.
William Yardley, Murkowski Wins Alaska Senate Race, N.Y. TIMES (Nov. 17, 2010),
http://www.nytimes.com/2010/11/18/us/politics/18alaska.html. Thus, it appears the voters’
anger had little to do with the choice of senator, but rather the method by which she was
chosen.
35
Emily Friedman, Feingold Seeks Change in Empty Senate Seat Protocol,
ABCNEWS.COM (Jan. 27, 2009), http://abcnews.go.com/Politics/story?id=6734789&page=1.
36
Javier C. Hernandez, Danny Hakim & Nicholas Confessore, Patterson Announces
Choice of Gillebrand for Senate Seat, N.Y. TIMES, Jan. 23, 2009, available at http://www.
nytimes.com/2009/01/24/nyregion/24choice.html. Ultimately, Governor Patterson decided
not to seek a second term. Danny Hakim & Jeremy W. Peters, Under Fire, Patterson Ends
His Campaign for Governor, N.Y. TIMES, Feb. 26, 2010, available at http://www.nytimes.
com/2010/02/27/nyregion/27paterson.html.
37
Governor Patterson was elected as New York’s Lieutenant Governor, and
ascended to the Governor’s mansion upon the downfall of Governor Elliot Spitzer, who
resigned amid scandal surrounding his involvement in a prostitution ring. Michael M.
Grynbaum, Spitzer Resigns, Citing Personal Failings, N.Y. TIMES, Mar. 12, 2008,
available at http://www.nytimes.com/2008/03/12/nyregion/12cnd-resign.html.
38
Roger G. Brooks, Note, Garcia, the Seventeenth Amendment, and the Role of
the Supreme Court in Defending Federalism, 10 HARV. J.L. & PUB. POL’Y 189, 200 (1987).
39
See Virginia M. McInerney, Federalism and the Seventeenth Amendment, 7
J. CHRISTIAN JURISPRUDENCE 153, 169 (1988); see also Brooks, supra note 38, at 207.
40
See infra notes 163-67 and accompanying text.
41
Blagojevich’s trial for attempting to sell President Obama’s Senate seat
ended in a mistrial, though federal prosecutors have announced their intention to retry
the former governor. Monica Davey & Susan Saulny, Blagojevich, Guilty on 1 of 24
Counts, Faces Retrial, N.Y. TIMES, Aug. 17, 2010, available at http://www.nytimes.com/
2010/08/18/us/18jury.html.
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run afoul of the law. In fact, the Supreme Court affirmed and
upheld one of the more egregious uses of the appointment power
against a Seventeenth Amendment challenge brought by voters
in the state of New York.42 With the legality of gubernatorial
appointments largely a settled issue, the door remains open for
the types of scandals and political chicanery which have been
commonplace in recent years. Therefore, a state like
Massachusetts can choose to have the governor appoint a
successor in years where the executive and legislative branch
are controlled by the same party, and subsequently amend the
law to require special elections in years where no such
alignment exists. Vacancies can continue to be filled according to
political loyalties and special interests rather than as an
accurate reflection of the will of the people. However, while these
practices may not be in violation of the law, they are at odds
with the goals and spirit of the Seventeenth Amendment,
discussed in the next Part of this note.
II.
HISTORICAL BACKGROUND OF THE SEVENTEENTH
AMENDMENT
Although the Seventeenth Amendment was not enacted
until 1913, the campaign to remove the power of appointment
from the state legislature and open the Senate to direct
elections began nearly a century earlier. Reformers intended
the Seventeenth Amendment to tackle three main obstacles
that were threatening the legitimacy and efficacy of the
democratic system.
A.
Road to the Seventeenth Amendment
The campaign to make the Senate directly accountable
to the people spanned nearly an entire century, beginning with
an initial proposal in 1826 and continuing through the ultimate
ratification of the Seventeenth Amendment in 1913.43 The
proposed reform was first introduced into the public debate just
two years after the presidential election of 1824, the first of its
kind to utilize the popular vote.44 Yet it would take another
42
See Valenti v. Rockefeller, 292 F. Supp. 851, 853 (W.D.N.Y. 1968), aff’d,
393 U.S. 405 (1969); see infra notes 224-35 and accompanying text.
43
RALPH A. ROSSUM, FEDERALISM, THE SUPREME COURT, AND THE
SEVENTEENTH AMENDMENT: THE IRONY OF CONSTITUTIONAL DEMOCRACY 183
(Lexington Books 2001); Little, supra note 9, at 636.
44
See HOEBEKE, supra note 8, at 85.
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eighty-six years of debate and 187 resolutions in Congress to
produce an amendment that would extend direct elections to
senatorial contests.45 Throughout the nineteenth and early
twentieth centuries, there was a steady drumbeat of
democratic fervor sweeping the country, and the direct election
of senators would become the crowning achievement of the
broader movement for direct democracy. By 1912, the Senate
could no longer drag its feet against the momentum of the
people.
The shift towards direct democracy was already
underway in the mid-nineteenth century, when states removed
property qualifications from the right to suffrage, thereby
opening the vote to all white males above the age of twentyone.46 Later that century, in an effort to make their
governments more “responsive” to the people, some states
began to implement popular referendums and ballot initiatives
designed to ease the process by which their constitutions could
be amended.47 According to Senate historian George Haynes,
the expansion of suffrage, the widespread use of the
referendum, and the addition of elective offices formed a larger
movement to “democratize American government,” a movement
that would later spawn the Seventeenth Amendment.48
The end of the nineteenth century produced two events
that would serve as important triumphs for the direct democracy
movement and ultimately break the will of those senators
resistant to constitutional change. First was the advent of the
senatorial primary election system, introduced by Nebraska in
1875.49 However, these initial primaries proved to be little more
than recommendations, as the state legislatures were not legally
bound to honor the wishes of their constituents by appointing
the election winner.50 Thus, in 1904, the people of Oregon
invented the “Oregon System,” whereby candidates for state
45
ROSSUM, supra note 43, at 183. Measures for direct elections were far
better received in the House of Representatives, where its members had always been
elected directly by the people, than in the Senate, where resolutions rarely made their
way out of committee. See generally id. at 194-214; see also HOEBEKE, supra note 8, at
141 (“[I]n five out of six congresses, the resolution had been mostly smooth sailing
through the House. This was certainly not the case in the Senate, where the resolution
was routinely rejected without ever coming to the floor for a vote.”).
46
See HOEBEKE, supra note 8, at 56.
47
See id. at 69; see also GEORGE H. HAYNES, THE SENATE OF THE UNITED
STATES, ITS HISTORY AND PRACTICE 1041 (Russell & Russell 1960) (1938).
48
HAYNES, supra note 47, at 1041.
49
HOEBEKE, supra note 8, at 88.
50
ROSSUM, supra note 43, at 192.
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legislature could be pressured to disclose in their campaign
platforms whether they would “abide by the results of the
general election . . . regardless of party affiliation . . . .”51 This
modified primary system added teeth to its predecessor and held
state legislators accountable for implementing the will of the
people. By 1912, the year the Seventeenth Amendment secured
passage in both houses of Congress, twelve states were adhering
to the “Oregon System” and its de facto direct election regime,
while thirty-three states were using other forms of a primary
election system.52 Having already “abdicated their federal
[appointment] responsibilities in favor of the popular expedient,”
the state legislatures put enormous pressure on Congress to
heed the public’s calls for democracy.53
In addition to delegating to the people their
constitutional duty of choosing senators, state legislatures were
also calling for a constitutional convention to consider an
amendment that would open up senatorial elections to the
popular vote.54 The Constitution requires Congress to organize a
convention for proposing amendments upon the application of
two-thirds of the states.55 By 1908, acting on the belief that the
Senate would not change its electoral procedures on its own,
twenty-eight states had joined a coordinated effort to call a
constitutional convention to force the Senate’s hand.56 The fear of
a constitutional convention, combined with “the fact that most
senators represented states whose legislatures were on record as
favoring direct election” proved to be more pressure than the
Senate could bear.57 On June 12, 1911, after an eighty-six-year
battle, the Senate finally relented, passing the amendment by a
sixty-four to fourteen vote.58 Passage in the House followed
shortly thereafter.59 Finally, on April 8, 1913, the Seventeenth
Amendment was ratified by the states, becoming the secondquickest amendment to attain ratification.60
51
52
53
54
55
56
57
58
59
60
Id.
Id.
HOEBEKE, supra note 8, at 109.
ROSSUM, supra note 43, at 192.
U.S. CONST. art. V.
ROSSUM, supra note 43, at 193-94.
Id. at 194.
Id. at 211-12.
Id. at 213-14.
Id. at 214.
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Aims of the Seventeenth Amendment
While the success in bringing about direct elections was
aided by a larger movement intent on spreading democracy to
the people, progressive reformers made their pitch for
constitutional change by taking aim at the inherent defects
plaguing the existing appointment system. Specifically,
reformers pointed to (1) corruption permeating the appointment
process; (2) the negative influence of the “political machines”; and
(3) the power of special interests as support for their argument
that removal of the appointment power from the state
legislatures was necessary.61 A review of these defects
underscores the spirit of the Seventeenth Amendment and
provides a crucial context in which to assess the current proposal
to remove the appointment power from state executives.62
1. Ending Corruption and Bribery
In rallying the public behind an amendment for direct
senatorial elections, perhaps no issue had as dramatic an impact
as the tales of corruption and bribery taking place in the state
legislative halls throughout the country. There is little question
that some of these sinister storylines were overexaggerated by
the “yellow journalists” of the era.63 The pure statistics reveal
that corruption was far from being as endemic or widespread as
reformers would have liked the public to believe. In the years
between 1789 and 1909, there were 1180 senators sent to
Capitol Hill by the state legislatures. Out of this pool, only
fifteen faced allegations of corruption, and only seven were
precluded from serving out their terms.64 Only one of the fifteen
alleged incidents of corruption took place prior to 1866.65 Thus,
the remaining fourteen charges were levied, not coincidentally,
at the same time that the movement towards democratizing
elections began to gain traction and find its voice.66 Nevertheless,
61
See, e.g., McInerney, supra note 39, at 168-69; see also Amar, supra note
11, at 744-45; Brooks, supra note 38, at 200.
62
See infra Part III.
63
See HOEBEKE, supra note 8, at 97-98. “Yellow journalism” is a term used to
describe newspapers that used “lurid features and sensationalized news . . . to attract
readers and increase circulation.” Yellow Journalism, ENCYCLOPEDIABRITTANICA.COM,
http://www.britannica.com/EBchecked/topic/652632/yellow-journalism (last visited Feb.
1, 2011).
64
ROSSUM, supra note 43, at 191.
65
Id. at 190.
66
See id.
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perception trumped reality as these stories became “much
publicized and . . . crucial [to] undermining support for the
original mode of electing senators.”67
A review of some of the more sensational headline
stories illustrates the nexus between the corruption scandals of
the era and the fight for direct elections that was
simultaneously being waged in Congress. The first infamous
bribery case occurred in 1899 with the election of Senator
William Clark from Montana. Having failed in his bid to attain
office in 1890, a determined Clark devoted his impressive
resources to mount a successful campaign in 1899.68 On
December 4, 1899, the same day that Clark was to be admitted
to the Senate, a petition was filed by members of the Montana
legislature challenging the “validity of the pretended election”
on grounds of bribery.69 The complaint alleged that Clark
appropriated $35,000 for the votes of four state lawmakers,
with another $175,000 being offered to others for their “votes or
influence.”70 On May 15, 1900, with overwhelming evidence of
both Clark’s guilt and “corruption [which] totally pervaded
Montana politics,” the Senate voted to strip him of his seat.71
Just four days after being ousted, Montana’s acting governor
selected none other than embattled ex-Senator William Clark
to fill the vacant Senate seat.72 Though this action was reversed
three days later by the absentee governor, Clark was later
appointed to the Senate in 1901 by a state legislature
comprised of many of the same lawmakers who had received
financial support from Clark in the past. This time, he was
allowed to retain his seat in the Senate.73
A decade later in 1910, Senator William Lorimer of
Illinois faced “the most sensationalized, politicized, and
humiliating investigation in the history of the Senate up to
that time . . . .”74 The Illinois senator, already one year into his
term, found himself the subject of a Chicago Tribune article
containing admissions from state lawmakers that they had
67
Id. at 191.
The Election Case of William A. Clark of Montana (1900), U.S. SENATE, http://
www.senate.gov/artandhistory/history/common/contested_elections/089William_Clark.htm
[hereinafter Election of Clark] (last visited Feb. 1, 2011).
69
Charges in the Clark Case, N.Y. TIMES, Dec. 4, 1899.
70
Id.
71
Election of Clark, supra note 68.
72
Id.
73
Id.
74
HOEBEKE, supra note 8, at 92.
68
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1213
been bribed with cash and portions of a “jackpot” slush fund to
appoint Lorimer to the Senate.75 Lorimer was cleared of any
wrongdoing by the Senate based on inconsistent testimony
among the parties involved and a lack of adequate proof
necessary to unseat him.76 However, it was the rhetoric of
dissenting Senator Beveridge of Indiana, a member of
Lorimer’s own party, which placed the scandal squarely in the
middle of the ongoing Seventeenth Amendment debate.
Beveridge blasted the appointment system, stating, “The
candidate is not on trial. The election is on trial,” and just one
instance of bribery “makes the whole election foul.”77 By linking
the corruption scandal with an outmoded method of electing
senators, progressive reformers came to view the case against
Lorimer “as a holy crusade.”78
Adding fuel to the fire, on the eve of the Senate’s
decision on whether to unseat Lorimer, charges were filed
against Senator Isaac Stephenson of Wisconsin, alleging that
his seat had been obtained through corruption.79 Stephenson
was accused of violating primary campaign finance laws,
making illegal contributions, and offering bribes to assist in the
procurement of his appointment.80 Like Lorimer, Stephenson
was exonerated by a majority of senators who believed that
violations of state primary election laws should not preclude a
senator from being seated, since the primary system was not a
part of the constitutional process by which one becomes a
senator.81 The dissenting senators felt that although state
legislatures were not legally bound to appoint the winner of a
primary election, the primary vote did reflect the will of the
people, and therefore, any corruption in the primary process
would taint the appointment.82
75
See Tells of Bribes to Elect Lorimer, N.Y. TIMES, Apr. 30, 1910; see also
HOEBEKE, supra note 8, at 94.
76
See HOEBEKE, supra note 8, at 94; The Election Case of William Lorimer of
Illinois (1910; 1912), U.S. SENATE, http://www.senate.gov/artandhistory/history/common/
contested_elections/095William_Lorimer.htm [hereinafter Election of Lorimer] (last
visited Feb. 1, 2011).
77
Owen and Beveridge Say Put Lorimer Out, N.Y. TIMES, Jan. 9, 1911.
78
Election of Lorimer, supra note 76.
79
Senator Stephenson Under Bribe Charge, N.Y. TIMES, Jan. 11, 1911.
80
Id.
81
The Election Case of Isaac Stephenson of Wisconsin (1912), U.S. SENATE,
http://www.senate.gov/artandhistory/history/common/contested_elections/096Isaac_Ste
phenson.htm [hereinafter Case of Stephenson] (last visited Feb. 1, 2011).
82
Id. Wisconsin was one of the states using a direct primary system that
allowed voters to express their choice for senator, thereby exerting political pressure on the
state legislators to honor their wishes. See id.; see also ROSSUM, supra note 43, at 192 n.49.
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Though Lorimer and Stephenson were both able to
retain their Senate seats, the debate surrounding their stories
served as a major impetus for the change in senatorial election
procedures. Both scandals took place as “public sentiment was
running high against the use of money and questionable
practices during state legislatures’ election of senators and
while
Congress
was
debating
the
Seventeenth
Amendment . . . .”83 The tales of scandal, the perception of
corruption, and the push for direct elections were inextricably
linked. Indeed, William Lorimer managed to escape expulsion
during the 61st Congress (which had rebuffed a direct elections
resolution).84 However, the 62nd Congress, boasting new
members who had used the scandal to gain political support in
the previous election cycle, retried the issue and ousted
Senator Lorimer, marking the only time in history a Senate
seat had been upheld by one Congress and repealed in the
next.85 Fair or not, the perception of abuse and corruption
“aroused suspicion that Senators elected by legislators . . .
could not be trusted to safeguard the public interest.”86 The
timing of the scandals alongside the ongoing debate over direct
elections meant one subject would rarely be discussed without
mention of the other.87 These headlines helped progressive
reformers rally the public and pressure Congress into passing
the Seventeenth Amendment.
Even where Senate seats were not directly paid for, some
appointments were nonetheless tainted by the appearance of
impropriety. Candidates fearful of arousing public suspicion
through direct bribes could still purchase a seat years in
advance by “contributing funds in every party contest, [and]
paying the campaign expenses of [state] legislators who would
respond to the call in senatorial elections.”88
For example, the nomination of William Sheehan for the
New York Senate seat in 1911 was properly condemned for this
brand of corruption. Sheehan had helped the Tammany
machine take control of the state legislature through his
campaign contributions and political endorsements, which
83
84
85
86
87
88
Case of Stephenson, supra note 81.
See HOEBEKE, supra note 8, at 95.
See id. at 96.
HAYNES, supra note 47, at 1041.
HOEBEKE, supra note 8, at 92.
Id. at 99.
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carried great weight due to his personal celebrity.89 When the
machine returned the favor by nominating him for the Senate,
one legislator remarked that “Mr. Sheehan may not be exactly
the kind of man we believe should be sent to the United States
Senate, but he has done a lot for the party by turning control of
the Legislature over to us, and I believe he is entitled to his
reward.”90 These “rewards,” like the transparent corruption
present in the Lorimer and Stephenson escapades, motivated
the framers of the Seventeenth Amendment to put an end to
the “buying of seats” for good.91
2. Curbing the Power of the Political Machines
In the lead-up to the passage of the Seventeenth
Amendment, senators were increasingly viewed less as the
independent and deliberative choice of the state legislature, and
more as the selection of “party bosses who ruled the legislative
‘machines.’”92 There was a pervading “skepticism of government
officials . . . . It was the era of the professional politician, the
hey-day of the boss.”93 The parliamentary practices of the
“bosses” fueled the growing distrust of government officials and
gave rise to a number of concerns regarding the existing
electoral process.94 One primary concern, which rarely goes
unmentioned with any discussion of political machines, was
corruption, an issue that directly led to the ratification of the
Seventeenth Amendment.95 Two other issues that served to
embolden the movement for direct elections were closely linked
to the influence of the political machines: (1) the blending of
state and national politics, and (2) legislative deadlocks.
Prior to passage of the Seventeenth Amendment, party
leaders discovered that nominating a senator before a state
election, who would in turn campaign alongside the state
nominee, could help secure votes for their party.96 This widely
89
Id. at 100. The “Tammany machine” perpetuated political control over New
York City through a “blend of charity and patronage,” and became “synonymous with
urban political corruption.” Tammany Hall, ENCYCLOPEDIABRITTANICA.COM, http://www.
britannica.com/EBchecked/topic/582027/Tammany-Hall (last visited Feb. 1, 2011).
90
HOEBEKE, supra note 8, at 100 (quoting a New York Times article).
91
HAYNES, supra note 47, at 1047.
92
HOEBEKE, supra note 8, at 17.
93
McInerney, supra note 39, at 166.
94
Amar, supra note 11, at 741.
95
See supra Part II.B.1.
96
HOEBEKE, supra note 8, at 86.
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used practice, known as “public canvass[ing],”97 was first
employed during the Lincoln-Douglas debates for Illinois’s
Senate seat in 1858. For the state legislators, their decision on
whether to endorse Lincoln or Douglas was to be “the biggest
popular issue in the upcoming state elections.”98 As the use of
canvassing increased throughout the country, many feared that
the mixture of state and national politics was “overwhelm[ing]
local issues” and “effecting the state’s legislative business.”99
Canvassing remained popular until 1913 because it
allowed a senatorial candidate to “drag a majority of the
legislators on his coattails,” thereby perpetuating the power of
the machines.100 However, as a consequence, state officials were
primarily being chosen for their choice of U.S. Senator, rather
than their local accomplishments and agenda.101 Voters in local
elections were “forced to consider both national and state
issues”102 at the polls, resulting in misrepresentation on both the
state and national levels.103 Summing up the growing frustrations
over machine influence, Senator Beveridge stated on the Senate
floor that “it [has] come[] to pass that Senators actually have
been . . . selected by the ‘party managers’ . . . . The party boss has
become more potent than the legislature, or even the people
themselves, in selecting United States Senators . . . .”104 Two
years later, direct elections would “put an end to the blurring of
issues in the election of members of the legislatures . . . .”105
Legislative deadlock was the other major issue attributed
to the political machines that served as an impetus for direct
elections.106 Often times, where one political party controlled the
state’s assembly and its rival party controlled the state senate,
the legislative apparatus of the state would come to a
97
See Brooks, supra note 38, at 207; see also Todd J. Zywicki, Senators and
Special Interests: A Public Choice Analysis of the Seventeenth Amendment, 73 OR. L.
REV. 1007, 1025 (1994).
98
HOEBEKE, supra note 8, at 87.
99
Todd J. Zywicki, Beyond the Shell and Husk of History: The History of the
Seventeenth Amendment and Its Implications for Current Reform Proposals, 45 CLEV.
ST. L. REV. 165, 200-01 (1997).
100
HOEBEKE, supra note 8, at 89.
101
McInerney, supra note 39, at 169.
102
Id.
103
Brooks, supra note 38, at 200. See McInerney, supra note 39, at 169 (“The
people are electing [state] officials, not for their abilities, but for their choice of United
States Senator.”).
104
Little, supra note 9, at 641 (quoting Senator Beveridge).
105
HAYNES, supra note 47, at 1070.
106
See Amar, supra note 11, at 741.
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standstill.107 Partisan bickering between legislative bodies would
sometimes leave the citizenry without any representation at all.
In fact, between 1885 and 1912, there were seventy-one
legislative deadlocks.108 Of these partisan battles, seventeen
resulted in a Senate seat remaining unfilled for an entire
legislative session.109 For example, in Delaware, the people were
left with only one senator in three different Congresses and with
none at all from 1901 through 1903.110 At other times, the
impasse in the state legislative halls led to outbreaks of
violence.111 As a result of these deadlocks, state legislatures were
rendered ineffective and Congress suffered from “the absence of
various state Senators.”112 Thus, legislative deadlocks helped
bolster support for direct senatorial elections.113
The candidacy of William Sheehan provides an
illustration of the corrosive effect that political machines had on
the levers of government in the years prior to the Seventeenth
Amendment.114 Sheehan had been nominated by Tammany boss
Charles Murphy as a reward for his efforts in helping a majority
of Democrats secure election to the state legislature.115 In turn,
the state Democrats, pressured by Tammany Hall, pledged to
cast their votes to send Sheehan to Capitol Hill.116 However,
“insurgents” from upstate that were not loyal to the Tammany
machine were ready to break rank and desert Sheehan’s
candidacy.117 When Republican lawmakers refused to choose
sides, a six-week deadlock ensued.118 The controversy was only
brought to an end after Tammany Democrats and the insurgents
compromised on a different candidate.119
107
See ROSSUM, supra note 43, at 183.
Id. at 187.
109
Id.
110
Id.
111
See HOEBEKE, supra note 8, at 90. In 1896, Kentucky’s governor was forced
to declare martial law in order to quell public outrage over the Senate contest. Id. In
1905, Colorado’s Republican governor called in troops to confront Denver police who
supported the Democratic candidate for Senate. Id. And in Missouri in 1905, a fist fight
broke out on the floor of the assembly when tensions boiled over during a legislative
stalemate. See Zywicki, supra note 99, at 200.
112
McInerney, supra note 39, at 168-69.
113
See, e.g., id.
114
See supra notes 89-90 and accompanying text.
115
HOEBEKE, supra note 8, at 100.
116
Dix, Worried, Hopes for Another Caucus, N.Y. TIMES, Mar. 1, 1911.
117
HOEBEKE, supra note 8, at 100.
118
Id.
119
Id.
108
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The Sheehan case demonstrates the litany of problems
associated with party-machine involvement in senatorial
appointments. First, his nomination was acknowledged as a
reward for “canvassing,” a practice that resulted in voters
electing state officials based on their choice of national political
figures rather than on their local records. Second, the rift
between Democrats loyal to the Tammany machine and the
“insurgents” produced a prolonged stalemate that brought the
state’s legislative process to a standstill. Third, the episode
could only be settled by compromise on a lesser known
candidate. Often, legislative deadlocks were broken only by
nominating “the darkest of the dark horse” candidates,
ultimately to the detriment of the people.120 Other times,
deadlocks led to states being completely unrepresented in the
Senate. Even when seats were eventually filled, the protracted
battles between the parties “always consumed a great deal of
state legislative time that was therefore not spent on other
important state matters . . . .”121 Thus, political-machine
influence and meddling proved to be another compelling issue
utilized by reformers to rally the nation behind direct elections.
3. Reducing the Influence of the Special Interests
Closely related to the suspicions surrounding political
machine control over the appointment of senators was the
alleged influence of big business. Large corporations contributed
substantial amounts of money to the political parties in each
state, with donations usually increasing during the years in
which a federal election was held.122 These funds would then be
used by the parties to finance their public canvass and massadvertising campaigns, and to help elect the state legislators who
had already pledged their vote for the party’s choice of senator.123
The Senate as a whole, with at least some members having been
put into power through the bankrolls of the corporations, became
labeled by progressive reformers as a “‘millionaire’s club,’
beholden to corporate and machine interests.”124
120
ROSSUM, supra note 43, at 187.
Id.
122
HOEBEKE, supra note 8, at 103.
123
Id. at 105.
124
Zywicki, supra note 97, at 1018 (citation omitted); see also McInerney,
supra note 39, at 169.
121
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Like the issue of corruption, however, the influence of
interest lobbying seems to have been overstated. Many
corporations donated money not to exercise control over
senatorial appointments, but merely to compete with their
business rivals who were simultaneously forking over large
amounts of money to the machines in an attempt to influence
local legislation.125 Their only real strategy, therefore, was to be
seen on the winning team when all was said and done. The
corporations implemented this strategy by hedging their bets
and donating to both parties when the election appeared too
close to call, or by simply withholding funds until a winner was
all but certain.126 In addition to the lack of real power and
control over the appointment process, Professor Todd Zywicki
points out that, contrary to the allegations of the reformers,
corporate influence over national lawmakers was actually at a
low point in the late-nineteenth century due to the high
transactional costs associated with forming a special interest
contract with the federal government.127 This theory runs
counter to the characterization of the Senate as a conglomerate
of individuals indebted and subservient to the corporate
interests that sent them to Capitol Hill.
Still, as was true of the corruption issue, perception
overwhelmed reality and special interest influence helped
progressive reformers realize their goal of direct elections.
There was no disputing that special interests were contributing
to state and local governments, a fact that surely could have
eroded the public’s confidence in the legislature’s ability to
appoint the most qualified candidate to represent the state in
the Senate. In addition, the lack of uniformity in senatorial
election procedures, along with a disparity in political stability
between regions, created Senate “Stalwarts” in the East, and a
constant changeover of senators in the West.128 The stark
contrast in seniority between the regions provided special
125
HOEBEKE, supra note 8, at 104.
Id.
127
Zywicki, supra note 97, at 1038 (arguing that the Seventeenth Amendment
was passed at the behest of special interest groups). Before 1913, the transaction costs
of lobbying were “extremely high,” since interest groups were forced to persuade not
just Congress but also the state legislatures, who could remove a senator who did not
vote in the “desired manner.” Id. The fact that each house of Congress was accountable
to a different constituency also “made it more difficult for special-interest ‘factions’ to
divert the powers of government toward private ends.” Id. at 1034 (citation omitted).
128
Zywicki, supra note 99, at 205. These disparities meant that eastern states
held distinct seniority advantages in Congress, and led to the declining influence of
western states. Id.
126
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interests exercising influence over eastern senators, such as
the railroad industry, with the ability to procure federal
funding at a disproportionate level to the detriment of the
western agrarian interests.129 Thus, it was the western states
that most actively championed the direct election of senators in
order to even the special interest playing field.130 Ultimately,
regardless of whether the special interests truly possessed
substantial control over the appointment process and
subsequent policy decisions of the senators, passage of the
Seventeenth Amendment was hailed as a “hard-earned and
much-needed triumph of ‘the people’ over special interests.”131
However, the reformers’ victory was not as complete and
thorough as was once believed. As will be seen in Part III of
this note, corruption, political influence, and special-interest
control continue to plague the electoral process of the U.S.
Senate.
III.
CONCERNS SURROUNDING GUBERNATORIAL
APPOINTMENTS
Ratification of the Seventeenth Amendment extended
democracy to the people by allowing them to choose their
senators directly, rather than leaving the decision to the
discretion of state legislatures perceived as incapable of
handling the responsibility. Still, the framers of the
amendment left some vestiges of pure representative
government intact by granting the state executive the power to
make an appointment when a vacancy arises.132 Since
ratification in 1913, there have been 188 gubernatorial
appointments to fill vacant Senate seats.133 Over this time, “the
process of awarding the [Senate] office has become fraught
129
Id. at 205-06; cf. Kris W. Kobach, Rethinking Article V: Term Limits and
the Seventeenth and Nineteenth Amendments, 103 YALE L.J. 1971, 1977 (1994) (“In the
Midwest, agrarian interests became convinced that only popular election could weaken
the power that railroads and other corporate interests had over the Senate and end the
economic discrimination against the region.”).
130
Zywicki, supra note 99, at 205-06. Zywicki is careful to note that “western
politicians did not favor direct election purely because of an ideological commitment to
democracy and popular government. Rather, westerners favored popular election
primarily because they saw it as an instrument for increasing their influence in
Washington and to enact policies designed to further their economic interests.” Id. at 206.
131
Zywicki, supra note 97, at 1010 (citation omitted).
132
See supra note 11 and accompanying text.
133
Appointed Senators, U.S. SENATE, http://www.senate.gov/artandhistory/
history/common/briefing/senators_appointed.htm (last visited Feb. 11, 2011).
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GUBERNATORIAL DISCRETION NOT ADVISED
1221
with malfeasance and political peril.”134 The same issues that
progressives exploited to remove appointment power from the
state legislatures—namely, corruption of the appointers,135
and
special
interest
political
party
manipulation,136
137
influence —are the same issues that have plagued
gubernatorial Senate appointments since ratification. As a
consequence, the credibility of both the governors and their
appointees has been undermined, while public trust in the
government has eroded. In keeping with the spirit of the
Seventeenth Amendment, if the response to these evils in 1913
was “more democracy,”138 then the power to choose our senators
must once again be removed from politicians and granted
directly to the people. This part examines the three primary
issues motivating the Seventeenth Amendment in our modern
day political context, and demonstrates that the current
gubernatorial appointment scheme suffers from the same fatal
flaws that sabotaged the pre-Seventeenth Amendment
electoral process.
A.
Gubernatorial Corruption
It is unknown whether the framers of the Seventeenth
Amendment believed that state executives were a more-trusted
source of authority than their colleagues in the legislative
branch, though this may be presumed based on the appointment
power having been taken from the legislators and granted to the
governors.139 Events in the past decade, however, reveal that any
ethical credit afforded to the state executives was likely
unwarranted and undeserved. For example, in 2003, Governor
Edwin Edwards of Louisiana was sentenced to ten years in
prison after being found guilty on charges of corruption.140 The
following year, Governor John Rowland of Connecticut was
forced to step down after pleading guilty to a federal conspiracy
134
Carl Hulse, Senate Vacancies Leave a String of Sordid Tales, N.Y. TIMES,
Dec. 11, 2008, http://www.nytimes.com/2008/12/11/us/politics/11senate.html.
135
See supra Part II.B.1.
136
See supra Part II.B.2.
137
See supra Part II.B.3.
138
HOEBEKE, supra note 8, at 79.
139
See Amar, supra note 11, at 743-44 (arguing that governors were given the
right to make vacancy appointments because they share a common electorate with the
senators themselves, rather than state legislators who, like candidates for seats in the
House of Representatives, are subject to election in gerrymandered districts).
140
Lauren Johnston, Ex-Governor Talks From Prison, CBSNEWS.COM (Oct.
16, 2003), http://www.cbsnews.com/stories/2003/10/16/eveningnews/main578506.shtml.
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charge.141 In 2005, Governor Bob Taft of Ohio, great-grandson of
former President William Howard Taft, pled no contest to
misdemeanor ethics violations.142 In 2006, Governor Don
Siegelman of Alabama was convicted on bribery and corruption
charges,143 and Governor George Ryan of Illinois was sentenced
to prison for racketeering, fraud, and lying under oath.144 In
2008, Governor Rod Blagojevich of Illinois was ousted from office
after he allegedly attempted to sell then-President-elect Barack
Obama’s vacant Senate seat.145 Also in 2008, Governor Elliot
Spitzer of New York was forced to resign after being implicated
in a prostitution ring.146 Finally, in 2009, Governor Mark Sanford
of South Carolina disappeared to Argentina to carry on an
extramarital affair, allegedly using taxpayer money and
campaign donations to finance the excursion.147 Sanford faced
thirty-seven ethics violations that were ultimately settled,
thereby allowing him to escape impeachment.148 This rundown of
general gubernatorial corruption within the past decade is not
meant to characterize all state executives as inherently corrupt.
Rather, it illustrates that the office of the governor, like the
state legislative halls at the turn of the century, has been
tainted by a steady barrage of media reports detailing episodes
of corruption and ethics violations. It is through this prism that
gubernatorial appointments to fill vacant Senate seats are now
being viewed by the public.
Since ratification, Senate vacancy appointments have
rarely involved the type of transparent bribery made infamous
in the cases of William Clark149 and William Lorimer.150
Governor Rod Blagojevich’s claim that he wasn’t “giving it up
for [expletive] nothing,” in reference to then-President-elect
141
Jarrett Murphy, Guilty Plea for Ex-Conn. Governor, CBSNEWS.COM (Dec.
23, 2004), http://www.cbsnews.com/stories/2004/06/21/politics/main625031.shtml.
142
Dan Balz, Taft Admits Ethics Violations, WASH. POST, Aug. 19, 2005, http://
www.washingtonpost.com/wp-dyn/content/article/2005/08/18/AR2005081800319.html.
143
John Schwartz & Charlie Savage, Review of Governor’s Conviction Sought,
N.Y. TIMES, Apr. 22, 2009, http://www.nytimes.com/2009/04/22/us/22justice.html.
144
Peter Slevin, Ex-Governor Is Sentenced to Prison, WASH. POST, Sept. 7,
2006, http://www.washingtonpost.com/wp-dyn/content/article/2006/09/06/AR200609060
0512.html.
145
See supra notes 23-26 and accompanying text.
146
See supra note 37.
147
Robbie Brown, Gov. Sanford Accepts Fine in Ethics Case, N.Y. TIMES, Mar.
18, 2010, http://www.nytimes.com/2010/03/19/us/19sanford.html.
148
Id. Governor Sanford paid $74,000 to avoid hearings on the ethics
allegations. Id.
149
See supra text accompanying notes 68-73.
150
See supra text accompanying notes 74-78.
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Obama’s vacated Senate seat, provided a rare example of such
blatant corruption.151 Rather, most of the appointment scandals
occurring after 1913 have borne a stronger resemblance to the
type of indirect “rewards” for political favors that were the
hallmark of the political machine, exemplified in the case of
William Sheehan.152 For instance, in 1929, Pennsylvania
Governor John Fisher appointed Senator Joseph Grundy, a
textile manufacturer who was “an influential backer of
campaigns, [and] who had contributed heavily to Fisher’s
campaign.”153 In more recent years, gubernatorial appointments
have come to be seen as a choice to “reward patrons, install
relatives, [or to] put in placeholders . . . .”154
Unmerited appointments have become ever more
frequent, increasing the urgency to remove the appointment
power from the state executives. For example, in 2009, Florida
Governor Charlie Crist selected his “former chief of staff and
campaign ‘maestro’ George LeMieux,” marking the first time the
newly appointed senator would hold a public office.155 Critics of
the appointment, blasting it as an example of “cronyism,”
quickly responded with a bill that would require special
elections when a Senate seat is vacated.156 Appointments by
Louisiana’s Governor Edwin Edwards of his wife in 1972,157 and
Alaska’s Governor Frank Murkowski of his daughter in 2002,158
implicate cronyism’s closely related cousin—nepotism. Alaskan
151
Monica Davey & Jack Healy, Illinois Governor Charged in Scheme to Sell
Obama’s Seat, N.Y. TIMES, Dec. 9, 2008, http://www.nytimes.com/2008/12/09/us/politics/
10Illinois.html.
152
See supra notes 89-90 and accompanying text.
153
The Election Case of William B. Wilson v. William S. Vare of Pennsylvania
(1929), U.S. SENATE, http://www.senate.gov/artandhistory/history/common/contested_
elections/109Wilson_Vare.htm (last visited Feb. 1, 2011). The seat had been vacant due
to the Senate’s determination that Senator Vare, who was victorious in the election,
had gained his seat through fraud and corruption. Id.
154
Hulse, supra note 134.
155
Catherine Dolinski, Bills Seek Vote for Senate Vacancies, TAMPA TRIB., Oct.
13, 2009. Crist would later seem apologetic for the appointment, saying, “I was happy to
carry out my duty but I think it’s preferable always to have the people weigh in.” Lloyd
Dunkelberger, Crist’s Popularity Dips Below 50 Percent in Poll, SARASOTA HERALD TRIB.,
Oct. 18, 2009, http://www.allbusiness.com/government/elections-politics-politics-politicalparties/14761561-1.html.
156
Alex Leary, Kriseman: End ‘Cronyism’ and Hold Special Elections for U.S.
Senate Vacancies, BUZZ BLOG OF ST. PETERSBURG TIMES (Oct. 13, 2009), http://www.
tampabay.com/blogs/the-buzz-florida-politics/content/kriseman-end-cryonyism-and-hold
-special-elections-us-senate-vacancies.
157
Jacob Weisberg, Political Corruption Smackdown: Which State Is the Most
Crooked—Illinois or Louisiana?, SLATE (Dec. 13, 2008), http://www.slate.com/id/2206523.
158
See supra text accompanying note 29.
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voters, like critics in Florida, responded swiftly with a ballot
initiative to require special elections when a vacancy arises in
the Senate.159 In Delaware, the appointment of Edward Kaufman
to fill Vice President-elect Joseph Biden’s Senate seat was
widely viewed as a mere “placeholder” for Beau Biden, until the
Vice President’s son returned from military service.160
Ultimately, both the son and the place-holding Senator declined
the opportunity to fill the father’s seat by the time the special
election did occur.161 Nevertheless, the treatment of a Senate seat
as “a family heirloom” gave ample ammunition for critics of
vacancy appointments to renew the call for special elections.162
Polling in the most recent states to incur a Senate
vacancy suggests immediate dissatisfaction and distrust among
the electorate after an appointment is made by the governor. In
New York, according to a poll conducted in September 2009, just
months after her appointment, Senator Kirsten Gillibrand
retained a 26% approval rating, while Governor Patterson’s
approval rating hovered around 17%.163 Newly appointed
Colorado Senator Michael Bennet, who was controversially
chosen to replace Senator Ken Salazar, enjoyed an approval
rating of just 31% according to an August 2009 poll,164 while the
governor who appointed him held a mere 40% approval rating.165
159
See supra text accompanying note 33.
See Perry Bacon, Jr., GOP Eyes Seats of Appointed Senators, WASH. POST, Jan.
28, 2009; Bill Schneider, Senate Appointments Highlight Messy Process, CNN.COM (Feb. 5,
2009), http://www.cnn.com/2009/POLITICS/02/05/schneider.senate.appoint/index.html.
Similarly, in Florida, Governor Charlie Crist’s appointment of George Lemieux was widely
seen as a placeholder for Crist himself to make a run at the Senate in 2010. See Michael
Muskal, Marco Rubio Defeats Gov. Charlie Crist in Florida Senate Race, L.A. TIMES, Nov.
2, 2010, http://articles.latimes.com/2010/nov/02/news/la-pn-crist-rubio-final.
161
GOP Encouraged to Pick Up Senate Seat as Beau Biden Decides Not to
Follow Dad, FOXNEWS.COM (Jan. 25, 2010), http://www.foxnews.com/politics/2010/01/
25/bidens-son-beau-announces-run-senate.
162
How Not to Pick a Senator: Three Examples Show Why Vacancies Should Be
Filled by Special Election, WASH. POST, Jan. 24, 2009, available at http://www.
washingtonpost.com/wp-dyn/content/article/2009/01/23/AR2009012303379.html.
163
Marist Poll: NYS Voters on White House Involvement in NYS Politics,
MARIST COLL. INST. FOR PUB. OP. (Sep. 24, 2009), http://maristpoll.marist.edu/wp-content/
misc/nyspolls/ny090922/Complete%20September%2024,%202009%20NYS%20Poll%20Rel
ease%20and%20Tables.pdf. Gillibrand would overcome the initial backlash surrounding
her appointment and win the special election held in 2010. See Appointee No More: NY’s
Gillibrand Wins Sen. Seat, WASH. POST.COM (Nov. 2, 2010), http://www.washingtonpost.
com/wp-dyn/content/article/2010/11/02/AR2010110206914.html. Governor Patterson, on
the other hand, never recovered politically and did not seek another term. See Hakim &
Peters, supra note 36.
164
Colorado Senate Pretty Wide Open, PUBLIC POLICY POLLING (Aug. 18, 2009),
http://publicpolicypolling.blogspot.com/2009/08/colorado-senate-pretty-wide-open.html.
165
Ritter Still Vulnerable, PUBLIC POLICY POLLING (Aug. 20, 2009), http://
www.publicpolicypolling.com/pdf/PPP_Release_CO_820925.pdf. Bennet used his time
160
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GUBERNATORIAL DISCRETION NOT ADVISED
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The immediate backlash against vacancy appointments in
Florida and Massachusetts was felt by Florida Governor Charlie
Crist, who saw a precipitous decline in his approval ratings from
60% to 48%,166 and Massachusetts Governor Deval Patrick,
whose ratings following his appointment were among “the
lowest gubernatorial approval ratings in the country” in the
Democratic stronghold of Massachusetts.167 At a time when,
according to a December 2010 Gallup poll, Congress’s overall
approval rating stands at an all-time low of 13%, there exists a
dramatic need for trust and accountability in government.168
These goals can only be undermined when Senate vacancies are
filled by gubernatorial appointments.
The allegations of self-serving bribery, cronyism, and
nepotism surrounding the most recent Senate appointments
have reinvigorated the old debates waged in the run up to
passage of the Seventeenth Amendment. While introducing a
constitutional amendment to require special elections for vacant
Senate seats, Senator Russ Feingold drew a parallel between the
reformers’ fight for direct elections in the previous century, and
the current slate of appointment controversies, stating:
[The ratification of the Seventeenth Amendment] was the
culmination of a nearly century-long struggle. The public’s disgust
with the corruption, bribery, and political chicanery that resulted
from the original constitutional provision giving State legislatures
in Washington to “establish a solid financial base,” ultimately enabling him to edge out
Tea Party challenger Ken Buck in the 2010 special election. See Kevin Simpson, Allison
Sherry & Michael Booth, Bennet Wins in Senate Race, DENVERPOST.COM (Nov. 3, 2010),
http://www.denverpost.com/election2010/ci_16502977. Like his New York counterpart,
Colorado Governor Bill Ritter did not seek re-election in 2010. See Steven K. Paulson,
Hickenlooper Defeats Tancredo in Colorado Governor’s Race, HUFFINGTON POST (Nov. 2,
2010), http://www.huffingtonpost.com/2010/11/02/hickenlooper-defeats-tanc_n_778004.html.
166
Dunkelberger, supra note 155. In 2010, Marco Rubio soundly defeated
Crist as the two battled to replace Lemieux in the Senate. See Muskal, supra note 160.
167
Eamon Javers, Obama Tries to Energize Patrick, POLITICO (Oct. 23, 2009),
http://www.politico.com/news/stories/1009/28661.html#. But see Tom Jensen, Our Governor
Approval Ratings, PUBLIC POLICY POLLING (Apr. 30, 2009), http://publicpolicypolling.
blogspot.com/2009/04/our-governor-approval-ratings.html (showing Delaware Governor
Jack Markell with a 62% job approval rating as recently in April, just months following
his appointment of Edward Kaufman). Governor Patrick ultimately survived to win reelection in 2010. See Abby Goodnough, Patrick Hangs on as Massachusetts Governor, N.Y.
TIMES, Nov. 3, 2010, available at http://www.nytimes.com/2010/11/03/us/politics/03mass.
html. However, his appointment was rebuked by the electorate as the Senate seat of Ted
Kennedy fell into Republican hands following Scott Brown’s surprise special election
victory. See Viser & Estes, supra note 21.
168
See Jeffrey M. Jones, Congress’ Job Approval Rating Worst in Gallup History,
GALLUP.COM (Dec. 15, 2010), http://www.gallup.com/poll/145238/congress-job-approvalrating-worst-gallup-history.aspx (“Americans currently hold Congress in lower esteem for
the job it is doing than at any point in the last 36 years.”).
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the power to choose United States Senators was a big motivation for
the amendment. As we have seen in recent months, gubernatorial
appointments may pose the same dangers. They demand the same
solution and, that is, direct elections.169
The perception that governors are ethically incapable of
choosing the people’s representatives mirrors one of the major
democratic defects that the framers of the Seventeenth
Amendment sought to remedy. In keeping with the spirit of the
amendment, the only solution to the recent wave of corrupt
appointments is to put democracy back into the hands of the
people when a vacancy in the Senate arises.
B.
Party Politics in Senate Appointments
As was the case prior to the passage of the Seventeenth
Amendment, party politics currently has an enormous influence
on the decision of who will represent the people in the Senate.
While the amendment’s vacancy provision has cured the
problem of legislative deadlocks by putting the appointment
power into the hands of the executive, other vexatious issues
that plagued the old electoral system continue to frustrate the
will of the people today. First, the modern day governor is just as
susceptible to political party power and influence as state
legislators were to the political machines prior to 1913. Further,
party influence over gubernatorial appointments and other state
and local issues blurs the lines between national and local
politics and engenders confusion among voters. Finally, the
political chicanery that corroded the legislative appointment
system continues to have a disproportionate impact on the
ultimate filling of a vacant Senate seat. The political party
apparatus wields more power now than ever before, and
gubernatorial Senate appointments have become a purely
political process under its direct purview and influence.
Professor Sanford Levinson raises the possibility that
the Seventeenth Amendment reformers may have believed that
removing the appointment power from the “party hacks” in the
state legislature and vesting it in the executive branch would
“diminish the relevance of political party identity” surrounding
169
A Constitutional Amendment Concerning Senate Vacancies: Hearing Before
the Subcomm. on the Constitution of the Comm. on the Judiciary, 111th Cong. 2 (2009)
[hereinafter Hearing] (statement of Sen. Russ Feingold, Member, Sen. Comm. on the
Judiciary).
2011]
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senatorial appointments.170 The notion that state executives
stand above the partisan fray cannot be given any sort of
credence today, as governors are just as reliant on their party’s
warchest of campaign capital and political organization as the
turn-of-the-century legislators were on their political machines.
For example, in the 2009 gubernatorial elections in New Jersey
and Virginia, both the Democratic and Republican parties
“pour[ed] unprecedented amounts of money and muscle” behind
their party candidates.171 In Virginia, the two parties
contributed over twenty million dollars in their attempts to
sway the outcome of the state’s election.172 In New Jersey, the
Republican National Committee spent another $4.1 million
backing Chris Christie for governor.173
Given this reliance on the national party apparatus, it
would be wishful to think that the governor, entrusted with a
decision that could sway the balance of power in both the
Senate and the country, would be insulated from the pressure
and influence of partisan politics. The statistics refute any such
idealistic notion. Of the fifty-seven Senate appointments made
by governors since 1960, only two have resulted in the
appointment of a senator from the governor’s opposing party.174
Hall Lusk, a Democrat from Oregon, was sent to Capitol Hill in
1960 by a Republican governor.175 The only other time a
governor has chosen a member of the opposing party was
Democratic Governor Dave Freudenthal’s appointment of
Republican John Barrasso, a choice forced on him by a
Wyoming law constraining the governor’s choice to a member of
the departed senator’s party.176 Governors are no less likely to
be influenced by their political party affiliation than were the
legislators of the early twentieth century. As Professor
Levinson points out, “[t]he fact that modern governors may not
170
Levinson, supra note 30, at 721.
David Chalian, National Parties Battle in VA and NJ to Set Stage for 2010,
ABC NEWS.COM (Oct. 7, 2009), http://abcnews.go.com/Politics/dnc-gop-battle-gubernatorialraces-virginia-jersey-setting/story?id=8768117.
172
Id.
173
Michael O’Brien, RNC Spends over $13 Million on Va., N.J. Gov. Races, THE
HILL (Oct. 29, 2008), http://thehill.com/blogs/blog-briefing-room/news/65365-rnc-spendsover-13-million-on-va-nj-gov-races.
174
See Ken Rudin, The Ever-Shrinking Democratic Field for ‘08, NPR.ORG (Dec.
20, 2006), http://www.npr.org/templates/story/story.php?storyId=6653800 (citing only one
instance where a senator was appointed by a governor from the opposing party, having
been written prior to Senator Barrasso’s appointment in 2007).
175
Id.
176
Amar, supra note 11, at 727.
171
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be ‘bosses’ does not lessen their identity one whit, by and large,
as thoroughly political and partisan creatures.”177
Furthermore, national party entrenchment in state and
local affairs can blur the lines between national and local politics
and engender confusion among voters when they elect their
state officers. As evidenced by spending levels in gubernatorial
elections, the national political parties and other out-of-state
political action committees pump enormous amounts of money
into influencing voters’ decisions regarding in-state affairs.178
Aside from investments of capital, political parties now practice
a modern form of “canvassing,” where national political stars
invade small towns to pledge their support behind the local
candidates. For instance, during the 2009 election season,
President Obama and Vice President Biden appeared in New
Jersey to stump for incumbent governor Jon Corzine,179 while
big-name Republicans Sarah Palin and Newt Gingrich
interjected themselves into an obscure upstate New York
congressional race, hoping to change their party’s national
profile.180 Attack ads produced and paid for by the political
parties tying the state candidate to the unpopular policies of
national political figures are a common sight each fall, as are ads
attempting to exploit the popularity of a national figure in the
candidate’s same party. As a result, modern state elections are
often viewed as a referendum on national party policies rather
than a vote on pressing local issues.181
This convergence of state and national party politics
makes a governor’s appointment decision inherently political,
as an unpopular appointment could become a determinative
issue in the next gubernatorial campaign. In 2008, Alaska
voters ousted incumbent Governor Frank Murkowski in favor
of Sarah Palin, due in part to the former’s nepotistic
177
Levinson, supra note 30, at 722.
See supra notes 171-73 and accompanying text; see also Olympia Meola,
Out-of-State Groups Pump $6 Million into Va. Gubernatorial Race, RICHMOND TIMESDISPATCH, July 19, 2009, http://www2.timesdispatch.com/news/2009/jul/19/cash19_
20090718-222406-ar-36842.
179
Paul Steinhauser, Clinton Stumps for Corzine, CNN POLITICS (Oct. 20,
2009), http://politicalticker.blogs.cnn.com/2009/10/20/clinton-stumps-for-corzine.
180
See Janet Hook, New York Race at Epicenter of GOP a Mutiny, L.A. TIMES,
Oct. 27, 2009, http://articles.latimes.com/2009/oct/27/nation/na-gop-identity-crisis27.
181
See Dana Milbank, Referendum on Obama? Depends on Who Wins, WASH.
POST, Nov. 3, 2009, http://www.washingtonpost.com/wp-dyn/content/article/2009/11/02/
AR2009110202873.html.
178
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appointment of his daughter to the Senate.182 Governor
Patterson’s appointment of Kirsten Gillebrand, on the other
hand, was portrayed by the New York Times as “a careful
political calculation by the governor, who will run for his
second term as governor in 2010 . . . .”183 The controversies
surrounding Senate appointments have the potential to
overwhelm critical local issues that are at stake during a
gubernatorial campaign and can lead to misrepresentation in
state government. The blending of national politics in the state
process was one of the primary reasons for the constitutional
change to direct elections.184
Finally, the political stunts and tricks that reformers
sought to eliminate with passage of the Seventeenth
Amendment remain a plague on the vacancy system. Though
the power to fill a vacant Senate seat by appointment is the
exclusive domain of the governor, it is the state legislatures
that make the initial determination of whether the seat will be
filled by a special election or a gubernatorial appointment.185
Therefore, the process of naming a successor remains
vulnerable to the same influences and political tricks that were
prevalent before the implementation of direct elections. This
was acutely demonstrated in Massachusetts, where state
Democrats in control of the legislature stripped Republican
Governor Mitt Romney of his appointment powers in 2004,186
only to reinstitute gubernatorial appointments in 2009 with a
Democratic governor in charge and a sixty-seat Senate
supermajority hanging in the balance.187 This brand of political
manipulation, similar to the practice of “gerrymandering,”
where state and congressional district lines are redrawn by the
party in power, is designed to perpetuate party control and
undermine the will of the people.188 Thus, the party in control of
182
Alaska Gov. Murkowski Concedes Defeat in GOP Gubernatorial Primary,
FOXNEWS.COM (Aug. 23, 2006), http://www.foxnews.com/story/0,2933,209918,00.html
(“His approval ratings have skidded over the past four years because of much-criticized
decisions such as appointing his daughter to his U.S. Senate seat . . . .”).
183
Hernandez, Hakim & Confessore, supra note 36.
184
See supra notes 96-105 and accompanying text.
185
U.S. CONST. amend. XVII (“[T]he executive authority of such State shall
issue writs of election . . . [p]rovided, That the legislature of any State may empower
the executive thereof to make temporary appointments . . . .”).
186
See supra notes 19-20 and accompanying text.
187
See supra note 21 and accompanying text.
188
See Amar, supra note 11, at 746. Amar argues that gerrymandered districts
caused misrepresentation in state legislative halls and led to the appointment of senators
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the state legislature can still exercise direct and undue
influence over the choice of the new senator.189
In 2007, Hawaii recognized these dangers and changed
its laws to require the governor to select the new senator from
“the same political party as the prior incumbent.”190 The goal in
Hawaii was to create an appointment process “free of political
gamesmanship or controversy” and “ensure the integrity of the
legislative process.”191 Only Arizona, Utah, and Wyoming192 have
followed Hawaii’s lead in an attempt to reduce the “potential
for partisan shenanigans.”193 It is doubtful this potential can
ever be completely eradicated so long as the modern-day
political machines continue to exercise enormous influence and
control over state politics and the replacement of senators.
C.
Special Interest Influence on the Political Process
Contrary to the aspirations of the Seventeenth
Amendment reformers, special interests are more active today
than ever before in Washington, D.C., and throughout the
country on the state and local levels. Though campaigns are often
filled with promises to “change the culture in politics,” a coded
phrase for eliminating special interest influence over
legislation,194 Washington remains “a city dominated by influence-
who would have otherwise been defeated in state-wide popular elections. Id. Thus,
gerrymandering was a “largely unnoticed” cause of the change to direct elections. Id.
189
See id. at 754 (“[A] legislature could still decide . . . depending on the party
identity of the governor and the current U.S. Senators, to enact or repeal such a law
requiring party continuity.”).
190
HAW. REV. STAT. § 17-1 (2009).
191
Haw. Sess. Laws, Act 57, § 1 (2007).
192
ARIZ. REV. STAT. ANN. § 16-222(C) (2008); UTAH CODE ANN. § 20A-1-502(b)
(LexisNexis 2009); WYO. STAT. ANN. § 22-18-111(a)(i) (2009).
193
Amar, supra note 11, at 754. Still, these statutes do not go far enough,
since they fail to recognize the will of the independent voter who votes for a person and
not a party. See infra text accompanying notes 242-44.
194
For instance, throughout the course of the 2008 presidential debates, both
Senator McCain and President Obama made numerous mentions of their records on
fighting the special interests. President Obama told the country that “we’re going to
have to change the culture in Washington so that lobbyists and special interests aren’t
driving the process . . . . The key is whether . . . we’ve got priorities that are working for
you as opposed to those who have been dictating the policy in Washington lately, and
that’s mostly lobbyists and special interests.” Transcript of Second McCain, Obama
Debate, http://www.cnn.com/2008/POLITICS/10/07/presidential.debate.transcript (last
visited Feb. 1, 2011). Senator McCain, during the course of the debates, stated, “I think
if we get rid of cronyism and special interest influence in Washington . . . we can act
more effectively.” Id. McCain also touted his record on the issue, telling the country
that he had “advocated and taken on the special interests.” Id.
2011]
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1231
seeking money and special-interest lobbyists.”195 In fact, as
Professor Zywicki argues, the advent of direct elections has made
special interest lobbying prohibitively easier by allowing
corporations to lobby Congress directly, rather than going
through the middle-man—the state legislature.196 This theory is
borne out in the level of influence that big business exerts over
seemingly every major policy issue on all levels of government
today. Still, this unintended benefit bestowed on special interest
groups does not counsel leaving the authority to choose a senator
in the hands of one person, who in many instances has herself
been the recipient of corporate and special interest funds. Rather,
in keeping with the spirit of the Seventeenth Amendment, the
decision should remain in the hands of the people.
In the years immediately following passage of the
Seventeenth Amendment, numerous elections were challenged
on grounds that the victor had used excessive campaign funds,
often provided by special interest lobbyists. For instance, the
1926 senatorial election of Thomas Schall in Minnesota, viewed
as a conflict “between agrarian and industrial interests,” was
contested on such grounds.197 In 1928, Governor Lennington
Small of Illinois was forced to make an appointment following
the Senate’s refusal to seat Colonel Frank L. Smith, the winner
of the election who stood accused of accepting excessive
contributions from public utility companies.198 Though Smith was
ousted due to special interest meddling that had tainted his
campaign, Governor Small’s subsequent appointment to fill the
vacant seat was characterized as the product of heavy pressure
exerted by “large business and agricultural interests.”199
Supreme Court decisions in the past one hundred years
have allowed special interest influence to fester and expand
throughout the country. In Newberry v. United States,
195
Albert R. Hunt, Some Holdouts to Obama’s Vow to Change Washington,
BLOOMBERG.COM (Oct. 26, 2009), http://www.bloomberg.com/apps/news?pid=20601070
&sid=aFAPkVN34Kpw (quoting Fred Wertheimer, an advocate for campaign finance reform).
196
Zywicki, supra note 99, at 216; see also HOEBEKE, supra note 8, at 106 (“In
short, the historical trend toward greater popularization of Senate elections, by
transferring direct responsibility from the legislators to the electorate en masse, had given
rise to the very conditions which reformers hoped to end with even more popularization.”).
197
The Election Case of Magnus Johnson v. Thomas D. Schall of Minnesota (1926),
U.S. SENATE, http://www.senate.gov/artandhistory/history/common/contested_elections/
106Johnson_Schall.htm (last visited Feb. 1, 2011).
198
The Election Case of Frank L. Smith of Illinois (1928), U.S. SENATE, http://
www.senate.gov/artandhistory/history/common/contested_elections/110Frank_Smith.htm
(last visited Feb. 1, 2011).
199
Gov. Small Asked to Name Senator, N.Y. TIMES, Apr. 15, 1928.
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automobile magnate Henry Ford challenged the 1918 election of
Senator Truman Newberry on grounds that his excessive
campaign expenditures violated federal law.200 The Court struck
down the statute, which attempted to regulate campaign
financing in primary elections.201 Since that decision, the Court
has undercut similar attempts to regulate the influx of special
interest capital into the electoral process. In Buckley v. Valeo,
the Court struck down portions of the Federal Election
Campaign Act that attempted to place a ceiling on campaign
expenditures by individuals and groups, as an infringement of
First Amendment political expression.202 Though the Court has
upheld caps on campaign contributions,203 its attempt to balance
the “problem of large campaign contributions . . . where the
actuality and potential for corruption have been identified” while
simultaneously allowing for “free . . . independent political
expression”204 has left an open window for special interest groups
to influence public policy. This window was blown open in
Citizens United v. Federal Election Commission, where the
Supreme Court struck down a portion of the McCain-Feingold
Act that prohibited corporations and unions from making
independent expenditures to advocate for the election or defeat
of a particular candidate.205 The landmark decision was
immediately criticized by President Obama as “a major victory
for big oil, Wall Street banks, health insurance companies and
the other powerful interests that marshal their power every day
in Washington to drown out the voices of everyday Americans.”206
200
Newberry v. United States, 256 U.S. 232, 245 (1921).
Id. at 258.
202
Buckley v. Valeo, 424 U.S. 1, 45 (1976) (holding that the prevention of the
“appearance of corruption” was not a sufficient justification for expenditure limits); see
also Colo. Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 617-18 (1996)
(where a plurality held that the Republican party’s expenditure on radio attack ads
was an independent expenditure and thus not subject to federal contribution limits).
The absence of coordination between the party and its candidate regarding the
advertising campaign rendered the expenditure “independent” and took it out of the
realm of a regulated “contribution.” Id. at 614. The expenditure was therefore
guaranteed First Amendment protection. Id.
203
See Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 392-93 (2000)
(distinguishing limits on expenditures from contribution caps on the grounds that
“‘limitations on independent expenditures are less directly related to preventing
corruption’ than contributions are”) (quoting Colo. Republican Fed. Campaign Comm.,
518 U.S. at 615).
204
Buckley, 424 U.S. at 28.
205
130 S. Ct. 876, 913 (“Government may not suppress political speech on the
basis of the speaker’s corporate identity.”).
206
Adam Liptak, Justices, 5-4, Reject Corporate Spending Limit, N.Y. TIMES,
Jan. 21, 2010, available at http://www.nytimes.com/2010/01/22/us/politics/22scotus.html.
201
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The presidential criticism of the Supreme Court
represented the growing distrust on the part of an American
public that has witnessed the disproportionate influence that
special interest groups have exerted over its representatives in
recent years. For example, in 2009, the website Politico reported
that companies and financial institutions that had received
TARP (Troubled Asset Relief Program) funds from the federal
government were using portions of the taxpayers’ money to
lobby the same politicians who had given them the money in the
first instance.207 In defense of this practice, a spokesperson for
General Motors said, “[W]e have an obligation to remain
engaged at the federal and state levels and to have our voice
heard in the policymaking process.”208 Just as potential changes
in the regulation of the financial system attracted the attention
and money of special interests, so too did the debates
surrounding reform of the nation’s health care system. The war
over health care legislation, which played out publicly as a
debate between Democrats and Republicans, was being waged
behind the scenes by pharmaceutical companies and labor
unions against health insurance companies and business
groups.209 The White House reportedly sided with the former,
reaching a deal with the pharmaceutical companies whereby it
would veto any act of Congress that would extract any more
than the $80 billion in cost reductions over ten years already
promised by the pharmaceutical industry.210 In exchange, the
Democrats would receive industry support and $150 million in
advertising contributions to support the health care initiative.211
Despite yearly campaign promises, the quid-pro-quo business of
Washington politics has not changed. Echoing the words of
Abraham Lincoln, Representative Dennis Kucinich of Ohio
bemoaned special interest control over the health care debate
and other policy issues in the nation’s capital, stating:
Is this the best we can do . . . guaranteeing at least $50 billion in
new business for the insurance companies . . . but the government
won’t negotiate with the pharmaceutical companies which will drive
207
Jeanne Cummings, From Under TARP, Banks Add Lobbying, POLITICO
(July 28, 2009), http://www.politico.com/news/stories/0709/25497.html.
208
Id.
209
Associated Press, ‘Special Interests’ on Both Sides in Health Fight,
MSNBC.COM (Aug. 19, 2009), http://rss.msnbc.msn.com/id/32479506/ns/politics-health_
care_reform.
210
David D. Kirkpatrick, White House Affirms Deal on Drug Cost, N.Y. TIMES,
Aug. 6, 2009, http://www.nytimes.com/2009/08/06/health/policy/06insure.html.
211
Associated Press, supra note 209.
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up pharmaceutical costs. Is this the best we can do . . . [Then] we
have to ask some hard questions about our political system . . .
Government of the people, or government by the corporations?212
While special interest influence has expanded in the
federal arena since passage of the Seventeenth Amendment,213
it remains endemic on the state and local level as well. For
instance, in the 2009 New Jersey gubernatorial race,
challenger Chris Christie took in $401,700 from business
groups, with nearly $60,000 coming from medical device
companies.214 His opponent, incumbent governor Jon Corzine,
received money from a variety of interests, including business
groups, law firms, and state employees.215 In Florida, Governor
Charlie Crist, who had appointed George LeMieux to fill a
vacant Senate seat,216 took in a record $4 million in the first
fifty days after announcing his own bid to run for the Senate.217
Although federal and state laws limit contributions to a
candidate, lobbyists and politicians like Crist have been able to
circumvent the laws by using a practice known as “bundling.”218
It was LeMieux who defended the practice of bundling
contributions in 2008 before he was appointed senator, even
where it would “sweep[] in donations from troubled businesses
or the money of out-of-staters with no apparent interest in the
election.”219 And in Massachusetts, Governor Deval Patrick
stood accused of using a conduit known as the “Seventy-First”
fund to evade state campaign contribution laws.220 The scandal
212
111 Cong. Rec. H3962 (Oct. 29, 2009) (statement of Rep. Dennis Kucinich),
available at http://www.youtube.com/watch?v=dzzVppah_mg.
213
See supra note 127 and accompanying text.
214
Ted Sherman, N.J. Gubernatorial Candidates Gov. Corzine, Christie Get
Campaign Funds from Special Interests, STAR LEDGER, Oct. 11, 2009, http://www.nj.
com/news/index.ssf/2009/10/nj_gubernatorial_candidates_go_1.html.
215
Id.
216
See supra note 155 and accompanying text.
217
Beth Reinhard, Governor Charlie Crist’s Senate Campaign Reaps Benefits
from Bundling of Donations, MIAMIHERALD.COM (July 22, 2009), http://www.tampa
bay.com/news/politics/gubernatorial/article1020488.ece.
218
Id. “Bundling” allows lobbyists constrained by state law caps on
contributions to exceed the threshold by pooling together contributions from different
sources. Id. For instance, in Florida, state law caps a lobbyist’s contributions to a
political campaign at $2400. However, a Jacksonville lobbyist was able to contribute
$139,250 to Governor Crist by pooling contributions from his corporate clients. Id.
219
Jennifer Liberto & Rob Farley, Donations for McCain and Crist Bundled
Far from Florida, ST. PETERSBURG TIMES, Aug. 21, 2008, http://www.tampabay.com/
news/politics/state/article778639.ece.
220
See Frank Phillips, Patrick Fund-Raising Arrangement Skirts Law: Donations
Channeled Through Democratic Party, BOS. GLOBE, Jan. 23, 2008, http://www.boston.com/
news/local/articles/2008/01/23/patrick_fund_raising_arrangement_skirts_law. This ethically
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forced the governor’s own party to pass a new state ethics law
to close loopholes that had allowed him to circumvent the
contribution caps,221 just three months before his senatorial
appointment at the height of the national health care debate.222
Despite modest attempts at limiting the ability of special
interest groups to influence public policy, there is still ample
opportunity for massive corporate donations on both the federal
and state levels. Prior to passage of the Seventeenth
Amendment, it was the state legislators who were accused of
being under the influence of special interest lobbyists.223 Today,
all politicians, including governors, have proven to be equally
incapable of resisting the expansive war chests of big business.
Thus, there is legitimate concern that lobbyists can exercise
undue influence over a governor’s senatorial appointment. This
is added reason, in keeping with the intent of the framers of the
Seventeenth Amendment, to transfer the power of replacing a
vacant Senate seat back into the hands of the people.
IV.
THE NEED FOR CONSTITUTIONAL REFORM
The Supreme Court, by affirming a particularly
egregious use of the gubernatorial appointment power in
Valenti v. Rockefeller, has upheld its validity against
constitutional challenge.224 In Valenti, voters brought an action
against Governor Nelson Rockefeller of New York, challenging
his authority to appoint a successor for Senator Robert F.
Kennedy following the assassination of the Senator.225 New
York’s election law required that a vacancy be filled by a
special election to occur at the annual November elections, so
long as sixty days had passed between the vacancy and the
primary election.226 However, since Robert Kennedy died on
June 6, 1968, and New York held its primary elections within
the same month, a replacement could not be named until the
questionable practice allowed the governor to accept up to $5500 in political contributions,
well in excess of a state law that provided for a $500 contribution ceiling. Id.
221
See Matt Viser, Leaders Approve Ethics Revamp: House, Senate to Vote
Today; Bill Would Bar Most Gifts, BOS. GLOBE, June 25, 2009, http://www.boston.com/
news/local/massachusetts/articles/2009/06/25/legislative_leaders_approve_bill_to_overh
aul_ethics_laws/?page=2.
222
See supra text accompanying note 16.
223
See supra Part II.B.3.
224
393 U.S. 405 (1969).
225
Valenti v. Rockefeller, 292 F. Supp. 851, 853 (W.D.N.Y. 1968), aff’d, 393
U.S. 405 (1969).
226
Id. at 854.
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[Vol. 76:3
elections of November 1969.227 To add insult to the voters’
injury, New York election law required that special elections
for Senate seats take place in even-numbered years.228
Therefore, voters would have to wait until November 1970, a
full twenty-nine months after the vacancy was created, to
democratically elect their representative in the Senate.229
Construing the two-year appointment of a senator as merely
“temporary,” and therefore compliant with the Seventeenth
Amendment, the district court held the delay was justified by
the legitimate government interests in maximizing voter
turnout,230 allowing the parties and candidates proper time to
finance a campaign,231 and retaining a primary election
system.232 In reaching its conclusions, the court found there to
be “no fundamental imperfection in the functioning of
democracy.”233 The dissent found these justifications to be
“exaggerated” and “too remote and unsubstantial to warrant
the resulting denial of the popular will.”234 To the dissent, the
Seventeenth Amendment’s unmistakable command for popular
sovereignty rendered the twenty-nine month period that voters
would have to wait to choose their senator a betrayal of “the
revered principle of government ‘by the people.’”235
The justifying interests identified in Valenti and
accepted by the Supreme Court become even less compelling in
the current political environment. Voter turnout is far easier to
promote today with advancements in communication
technology and grassroots “get out the vote” campaigns, not to
mention the twenty-four hour cable news cycle which covers
elections like horse races and brings heightened awareness to
key issues throughout the country.236 Nor is the expense of
financing a campaign a compelling justification for depriving
the people of their right to vote. The reach of the national party
227
Id. at 855.
Id. at 854.
229
Id. at 855.
230
Id. at 859.
231
Id. at 859-60.
232
Id. at 861.
233
Id. at 867.
234
Id. at 888 (Frankel, J., dissenting).
235
Id. at 875-76 (majority opinion).
236
See Liz Sidoti, Races an Early Test of Obama Influence, SEATTLE TIMES, Nov.
3, 2009, http://seattletimes.nwsource.com/html/localnews/2010192606_apuselectionrdp4t
hldwritethru.html (President Obama has “deployed the Democratic National Committee
and his own political campaign arm, Organizing for America, to ensure the swarms of
new voters he attracted in 2008 turn out even if he’s not on the ballot.”).
228
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apparatus, political action committees, and the internet have
helped place viable candidates before the public in rapid
turnaround time.237 Furthermore, the interest in retaining
special election primaries stands in contradiction to the goal of
controlling expense to the candidates and the parties.238 If mere
expense is sufficient reason to forestall the right to vote, then
conducting a special election without a primary would reduce
this burden and still provide for popular sovereignty. Promptly
filling vacancies and saving taxpayer money have also been
identified by other courts as legitimate government interests
that are sufficient to remove the right to vote from the people.239
Yet time spent giving the people the right to choose their
leaders has not been an impediment to the House of
Representatives, where special elections are required when a
vacancy arises.240 Taxpayer expense should also not be sufficient
reason to burden the right to vote and deprive those same
taxpayers of a basic democratic tenet.241
237
For instance, in a special election to replace a vacant House seat in New
York’s twenty-third district, conservative political groups and the Republican National
committee pumped large amounts of money in just a matter of weeks behind out-ofstate conservative Doug Hoffman, propelling him from an obscure, out-of-state third
party candidate to the top of the polls. See Justin Blum, Republican Scozzafava Backs
Democrat in New York Congress Race, BLOOMBERG.COM (Nov. 2, 2009) http://www.
bloomberg.com/apps/news?pid=newsarchive&sid=afQoujAldk.U; see also Rachel Weiner,
Palin Endorses Hoffman, Snubs GOP Candidate in New York House Race, HUFFINGTON
POST (Oct. 23, 2009), http://www.huffingtonpost.com/2009/10/23/palin-endorses-hoffmansn_n_331279.html.
238
See Trinsey v. Pennsylvania, 941 F.2d 224, 235 (3d Cir. 1991) (“The
legislature is free to decide that it is not in the interests of the state to require that a
special primary, with its attendant expense for the state and the candidates, be held
before the special election when . . . the vacancy occurs too late to be filled in the usual
spring primary.”). The interest in promptly filling a vacant Senate seat is also
undermined by the Valenti interest in retaining party primaries. Id.
239
See Rodriguez v. Popular Democratic Party, 457 U.S. 1, 12 (1982)
(upholding temporary appointments to the legislature in the Commonwealth of Puerto
Rico); see also Amar, supra note 11, at 751-52.
240
U.S. CONST. art. I, § 2, cl. 4 (“When vacancies happen in the Representation
from any State, the Executive Authority thereof shall issue Writs of Election to fill such
Vacancies.”); see also Paul Taylor, Proposals to Prevent Discontinuity in Government and
Preserve the Right to Elected Representation, 54 SYRACUSE L. REV. 435, 438 (2004)
(“Indeed, the House of Representatives is constitutionally unique in that it is the only
part of the federal government whose legitimacy is based exclusively on democratic
elections.”); Hearing, supra note 169, at 2 (statement of Rep. Russ Feingold) (“No one can
represent the people in the House of Representatives without the approval of the voters.
The same should be true for the Senate.”).
241
See Statement of U.S. Senator Russ Feingold on Introduction of a
Constitutional Amendment Concerning Senate Vacancies, U.S. SENATE (Jan. 29, 2009),
http://feingold.senate.gov/record.cfm?id=307525 [hereinafter Feingold Statement] (“But
the cost to our democracy of continuing the anachronism of gubernatorial Senate
appointments is far greater than the cost of infrequent special elections . . . . I find the
cost argument wholly unconvincing.”).
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Four states have attempted to strike a balance between
the state’s interests and the people’s right to vote by allowing
gubernatorial appointments, but constraining the choice to a
member of the departed senator’s political party.242 These
statutes make the questionable assumption that retaining
party continuity is an accurate reflection of the will of the
people. However, they do not take into account the possibility
that the vacant Senate seat may have been created due to a
scandal implicating the political party as a whole.243 Further,
they ignore the will of the independent voter who votes for a
person rather than for a party.244 In short, these statutes are
quick-fix solutions that miss the major issue with
gubernatorial appointments: they deprive people of the right to
choose, an essential component of popular sovereignty. Perhaps
nothing illustrates the importance of the right to choose better
than the “American Rule,” applied by a majority of courts,
which upholds votes for a deceased candidate on grounds that
it reflects the people’s choice to disavow another candidate in
favor of creating a vacancy.245 Whether a voter’s motivation is to
send a preferred candidate to Washington, or simply to choose
to prevent a less desired candidate from getting there, the
element of choice has been fundamental to our form of
government since passage of the Seventeenth Amendment.
As the “[j]udge of the Elections, Returns, and
Qualifications of its own Members,”246 the onus to reform a broken
system falls exclusively to Congress. Senator Russ Feingold,
leading the charge for a constitutional amendment, invoked the
struggle of the Seventeenth Amendment reformers, stating, “it
seems obvious to us that the Senate should be elected by the
people, [but] the struggle for that right was not easy or fast. But
the cause was just and in the end the call for direct elections was
too strong to be ignored.”247 If the cause was just in the early
242
See supra notes 190-93 and accompanying text.
See Amar, supra note 11, at 756.
244
A July 2009 poll from the Washington Post and ABC News identified
independent voters as 41% of the overall electorate. John Avlon, Commentary: Obama
Losing Independent Voters, CNN.COM (Aug. 27, 2009), http://www.cnn.com/2009/
POLITICS/08/27/avlon.obama.independents/index.html.
245
See Michael G. Adams, Missouri Compromise: Did the Posthumous
Senatorial Election of Mel Carnahan and Subsequent Appointment of Jean Carnahan
Compromise Federal or State Law?, 29 N. KY. L. REV. 433, 439 (2002). The American
rule allows votes for a deceased candidate to count, and was invoked in Mel Carnahan’s
posthumous victory over John Ashcroft for a Missouri Senate seat. Id. at 435.
246
U.S. CONST. art. I, § 5, cl. 1.
247
Feingold Statement, supra note 241.
243
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twentieth century, then it is certainly a just cause today.
Corruption, or at least strong appearances of impropriety in
gubernatorial appointments, remain prevalent and undermine
faith and trust in the government.248 Political chicanery and
gamesmanship continue to disproportionately influence who will
represent the people in the Senate.249 Special interests, often
chided as the enemy of democracy, are stronger and more
powerful now than they ever were prior to direct elections.250
At a time when the country is so sharply and evenly
divided over a range of critical issues, the notion of unelected
senators deciding matters of national importance violates the
spirit of the Seventeenth Amendment and offends our democratic
principles. The time has come for Congress to put an end to
gubernatorial Senate appointments and ensure once again a
government of the people, by the people, and for the people.
Ari L. Tran†
248
See supra Part III.A.
See supra Part III.B.
250
See supra Part III.C.
†
J.D. Candidate, Brooklyn Law School, 2011; B.A., University of Michigan,
2005. Special thanks to my parents Pam and Alan, my sister Robbie, and my Uncle Jay for
all the help and support you have given me throughout my time in law school. I would also
like to thank the great staff of the Brooklyn Law Review for all of their hard work and
dedication.
249