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Posts Tagged ‘statutory interpretation’

To work effectively with statutes, just as with cases, it is necessary to have some kind of guiding notion, either articulate or inarticulate, about what you are doing and why. These materials proceed on the assumption that a working theory which is consciously developed and articulate is better than one which is taken for granted upon unexamined premises and hence inarticulate. They try to provide the wherewithal for the development of such a theory. But in embarking upon this enterprise it is important not to be misled about the nature of it.

Do not expect anybody’s theory of statutory interpretation, whether it is your own or somebody else’s, to be an accurate statement of what courts actually do with statutes. The hard truth of the matter is that American courts have no intelligible, generally accepted, and consistently applied theory of statutory interpretation.

When an effort is made to formulate a sound and workable theory, therefore, the most that can be hoped for is that it will have some foundation in experience and in the best practice of the wisest judges, and that it will be well calculated to serve the ultimate purposes of law.

Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1169 (tent. ed. 1958), as edited by William N. Eskridge, Jr. & Phillip P. Frickey (Foundation Press 1994).

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The Fourth Circuit yesterday issued a decision in a messy dispute among plaintiffs’ lawyers, car dealers, and car purchasers over the use of South Carolina’s FOIA law to obtain personal information about car purchasers for use in litigation against car dealers. Judge Davis wrote the opinion for the Court in Maracich v. Spears, in which Judge Duncan and Judge Wynn joined.

The court’s summary of its holding:

[W]e hold that the district court erred in ruling that the Lawyers did not engage in solicitation. Yet, the Lawyers indisputably made permissible use of the Buyers’ personal information protected by the DPPA, here, for use “in connection with [litigation],” including “investigation in anticipation of litigation.” 18 U.S.C. §2721(b)(4). Ultimately, the Buyers’ damages claims asserted under the DPPA fail as a matter of law, notwithstanding the fact that the Buyers can identify a distinct prohibited use (mass solicitation without consent) that might be supported by evidence in the record. In short, where, as a matter of settled state law and practice, as here, solicitation is an accepted and expected element of, and is inextricably intertwined with, conduct satisfying the litigation exception under the DPPA, such solicitation is not actionable by persons to whom the personal information pertains.

The opinion notes that its decision in favor of the lawyers largely tracks the approach of the Eleventh Circuit in Rine v. Imagitas, 590 F.3d 1215, 1226 (11th Cir. 2009). The buyers relied on the Third Circuit’s decision in Pichler v. UNITE, 542 F.3d 380 (3d Cir. 2008), but the court thought that decision to be “plainly distinguishable.”

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The Fourth Circuit yesterday issued a published opinion in United States v. Wellman affirming convictions on three offenses related to child pornography possession along with a ten-year sentence on one of the counts. Judge Keenan wrote the opinion, which was joined in by Judge Wynn and Senior Judge Hamilton.

In disposing of the defendant’s Fourth Amendment claim, Judge Keenan assumed without deciding that the content of the warrant application was insufficient to find probable cause, but held that the evidence was not subject to suppression because the West Virginia State Police relied in good faith on the issued search warrant. Although the structure of this reasoning does not yield clear guidance about what must be included in a warrant application, the panel did “decline to impose a requirement that a search warrant application involving child pornography must include an image of the alleged pornography.”

The opinion rejects the defendant’s statutory argument as an impermissible “attempt to graft a subjective, fact-based knowledge requirement onto an objective legal standard.”

The Eighth Amendment proportionality analysis concludes easily that Congress acted “well within its authority” in providing for a ten-year sentence for recidivist possessors of child pornography. In the lead-up to the analysis, Judge Keenan quotes a First Circuit decision stating that the instances of disproportionate sentences invalid under the Eighth Amendment should be “hen’s-teeth rare.” This suburbanite does not know what that means based on any experience with hens, but I suppose the number of such sentences is not much more than a goose egg.

 

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