A federal statute allows certain appeals "if application is made to the court of appeals not less than 7 days after entry of the order." That's pretty odd -- why allow applications that come six years after the order, but not ones that come six days after? There's some reason to think that Congress (or those members or staffers that paid any attention to the provision) meant "not more than 7 days after entry of the order," making this a deadline rather than a waiting period.
The interpretive question is whether a court should read "not less than" as (1) "not more than," on the theory that this is what Congress must have meant, or as (2) "not less than," on the theory that this is what Congress actually said. The Ninth Circuit (and, I believe, several others) read it as "not more than." Several judges disagreed, and dissented from the Circuit's refusal to rehear this decision en banc. Here are the opening sentences of the dissent (a dissent, incidentally, that I found to be substantively quite well-reasoned):
Is less more? To lawyers, unlike philosophers, the question may appear facetious, but the answer has real-life implications.
My first reaction to the "Is less more?" question was that it was an allusion to the phrase "less is more." I suspect this would be the common reaction, and quite likely the intended reaction. And it might seem like a nice colorful touch, an eye-catching way of framing the legal issue.
Yet the trouble is that the connection to "less is more" cuts against the dissent's rhetorical purposes, or so it seems to me. "Less is more" (and, I suppose, "is less more?") is neither particularly facetious nor particularly philosophical. Rather, it's a common way of putting the notion that less of something (especially something that's usually a means towards an end) may often be more of something (the end itself).
A lawyer may tell a junior lawyer that, "when it comes to italics, less is more," meaning that "less use of italics to show emphasis may actually mean more effective emphasis." Or he may say, "in brief-writing, less is often more," probably meaning "using fewer words will often make for more persuasion." "Less is more" is often good advice.
So the answer to "Is less more?" is thus actually often yes, and a not particularly facetious yes. By framing the majority's argument as being "Is less more?," the dissent, I think, is analogizing the majority's argument to something quite plausible (since less often is more) rather than to something wrong, paradoxical, unlawyerly, or particularly facetious. As it happens, the majority's point that "'less' is 'more'" actually has nothing to do with the common phrase "less is more." But it seems to me that by bringing up this phrase in the reader's mind, the dissent is giving the majority more credit than necessary.
I mention this because it ties in to my "avoid the figurative, but not like the plague" advice. I'm all in favor of making one's arguments colorful, if that color doesn't unduly sacrifice precision or persuasiveness. Metaphors, allusions, and witticisms can sometimes be especially persuasive, or at least can help keep the reader interested.
But often such colorful language is so appealing to the writer that the writer uses it even when it's not quite apt -- even when it suggests an analogy that isn't quite right, or when it implicitly undermines the writer's argument. Plain words are usually chosen only because the writer thinks they're right. (They may still be wrong, but the writer was at least focused solely on getting the right words.) Colorful words are often chosen chiefly because they're colorful, not because they're the most precise way of articulating the writer's point. And while a colorful and precise phrase is great, a colorful but inapt and thus substantively counterproductive phrase is worse than a plain and precise one.
Perhaps I'm mistaken, and perhaps I'm reading too much into a harmless witticism. But if I'm right, then it's further evidence that we should be skeptical about the very flourishes that we most like. If we like them for reasons other than their logical and rhetorical aptness, we might be missing their possible inaptness.
Related Posts (on one page):
- Is Less More? A Slightly Different Take:
- The Dangers of Trying To Be Colorful:
``Fills a much-needed gap''
``Each one better than the next''
To the dissenters, a scrivener's error is not correctible if the result is comprehensible in the English languge.
By way of example, suppose Congress intended to pass the following law:
"FBI Agents shall not shoot innocent children."
... but passed this instead:
"FBI Agents shall not shoote3 innocent children."
... that could be corrected. However, if the mistake took the form of omission of the word "not":
"FBI Agents shall shoot innocent children."
... the courts would be required to enjoin the FBI agents to start haunting the schoolyards, because the inquiry stops once the statute is determined to be unambiguous.
We test airplanes before we let people fly on them; shouldn't we do at least as much for laws, especially ones that are going to send people to jail?
I think that one of the signs of an intelligent person is that no matter how elegant a theory seems in theory, if it leads to an absurd result in practice, it's time to revise the theory.
In contrast, one of the signs of a person who isn't nearly as smart as he believes himself to be is the refusal to revise a theory no matter how absurd a result it leads to.
Which brings me, of course, to judicial conservatives' infatuation with plain meaning. I realize that there is quite a lot of merit to interpreting statutes without resort to extrinsic aids whenever possible. The language of bills is carefully considered and represents the only thing the entire legislature passes on, legislative history is manipulable, canons of construction conflict with each other, etc.
Nonetheless, here's a case where it is perfectly obvious that the legislature intended the opposite of what it said. To hang on to plain meaning in this situation is simply petulant and serves no purpose. Sorry, Jim, but maybe we just have to bend your precious plain meaning rule in this situation.
What gets me is these guys seem to think that everyone who tries to inject a little common sense into the process necessarily gives up any mooring to any legal principle whatsoever and is legislating from the bench.
Requiring the FBI to shoot kids would serve no possible government purpose.
Well, it might curb juvenile delinquency a bit.
Further, requiring the FBI to shoot kids would be unconstitutional (denying life liberty or property without due process of law). The Constitutional Abstention doctrine (hope I got the name right) discussed in the linked opinion deals with this situation.
To avoid the constitutional question, the judges would presumably require the FBI agents to shoot to wound.
Prof. Volokh--you could have let sleeping dogs lie (sorry, couldn't resist), but instead chose to say that you found Judge Bybee's dissent "substantively quite well reasoned" without further comment. Why do you find the dissent's parenthetical distinguishing US National Bank of Oregon, a case commonly used in law schools (at least mine) persuasive? If memory serves, the quotation marks in question could be readily understood where they were actually placed. They were sufficiently clear that the DC Circuit concluded that a statute assumed to be on the books for 80 years was in fact repealed in 1918.
A unanimous Supreme Court rejected this reasoning, seemingly rejecting exactly the interpretation of the "scrivener's error" doctrine adopted by Judge Bybee and the other dissenters.
Seems to me that to be "substantively quite well reasoned," the [inferior] Ninth Circuit ought at least take a stab at explaining why its case is different than the [presumably binding] authority from above. Is the scrivener's error doctrine different for punctuation? What about "little words," like articles? How about the brief writer's nightmare--a stray "not?"
I'm not sure that Bybee is wrong, but I am curious to hear anyone offer a more spirited effort to distinguish US National Bank of Oregon.
Thanks in advance.
You're right, it is odd; it should be "not fewer than 7 days..."
As the dissent points out, think of it from the point of view, not of a judicial supremacist who thinks he was appointed to run the country, but from the point of view of an actual citizen of the United States. He diligently does his research, reads the relevant statute, and sees that he must wait 7 days to file his appeal. He does so, and then the court says, "Surprise! We don't care that you read the statute and followed it; we're rewriting it because we think it should have said something different."
Apparently the old saw "Ignorance of the law is no excuse" will need to be amended to say, "Ignorance of what some judge might rewrite the law to say in the future is no excuse."
However, as to the correct interpratation I think the answer should be to throw out the law. The very fact that judges came down on both sides means a potential appealant could reasonably have interpreted the phrase either way. Thus to the extent this interpratation would be applied to any case before this deciscion it presents the potential for manifest unfairness. Procedural bars are bad enough as it is (especially 6 days) but to some extent they are a necessery evil. A procedural bar which says one thing and means another is wholly unjust. Yes, congress has the power to create unjust laws but if it does not appear that this was their intent the courts shouldn't create injustice through their interpratations.
So why not just overturn the whole provision until congress corrects it?
And I'll trust judges can distinguish scrivener's errors from stupidity and unintended consequences, though they sometimes do appeal to "The lawmakers couldn't have meant what they said because [consequence]", as in 13th Amendment prohibits peonage, but not peonage owed to us.
As for "less is more", as uttered the phrase is always understood (or ought to be always understood) as "less X yields more Y" or "less X is more effective than more X" and not the result of the interpretation, "'less' is (to be read as) 'more'".
Maybe Bybee should listen to less Neil Chayette.
The judge basically has two options: Decide the case contrary to what Congress obviously intended [let's not pretend that Congress actually intended to allow applications to appeal 20 years after an order but not within 7 days], or ignore what Congress plainly said. For the parties litigating cases, and for Congress, the better result is to interpret the statute consistently with what Congress intended.
Maybe people don't trust judges to do this. But judges are trusted every day with decisions that quite literally affect whether people live or die, whether they are imprisoned or remain free, and whether property belongs to one party or another. Is it so dangerous to allow them to decide a case on filing deadlines consistently with what Congress obviously intended?
As the dissent points out, think of it from the point of view, not of a judicial supremacist who thinks he was appointed to run the country, but from the point of view of an actual citizen of the United States. He diligently does his research, reads the relevant statute, and sees that he must wait 7 days to file his appeal. He does so, and then the court says, "Surprise! We don't care that you read the statute and followed it; we're rewriting it because we think it should have said something different."
Apparently the old saw "Ignorance of the law is no excuse" will need to be amended to say, "Ignorance of what some judge might rewrite the law to say in the future is no excuse."
David:
If there were any actual evidence of reliance by a particular litigant, of course that litigant should get the benefit of the doubt. We have plenty of equitable doctrines such as tolling that deal with that situation.
Bybee, who knows the law, knows this full well. He's making an argument that he knows has no substance, in order to defend an unjust interpretation of the statute.
I understand that there are legitimate reasons for containing judicial power. Indeed, I believe in them. But correcting obvious drafting errors to ensure that the intent of the Legislature is upheld and not thwarted is not "judicial supremicism". Its courts doing what courts are supposed to do, interpreting the law and doing justice.
The fact is, anyone who REALLY believes that the scrivener's error doctrine-- rather than, say, footnote 4 of Carolene Products or Griswold v. Connecticut or Wickard v. Filburn or Hans v. Louisiana-- is a serious catalyst to judges running off the rails and ignoring the law has simply no clue as to what judicial activism is. Judicial activists IGNORE legislative intent and do what they want-- the Ninth Circuit in this case, by contrast, followed legislative intent. It's Bybee and crew who don't give a hoot what Congress actually wanted to accomplish, because they don't want to admit that making rules of statutory construction with "no exceptions" leads to unjust results, and a failure to effectuate congressional intent, and thus their "plain meaning" doctrine needs to be revised and qualified.
Nor is there an "unjust result" here. Who exactly was harmed by the appeal being filed 43 days later (exactly as the statute commands) instead of 7 days later? If it's prospectively unjust, Congress can fix it. Why is it such a bad thing to observe the separation of powers?
If you ask a judicial activist, I doubt he'd say that he "ignores legislative intent." I think he'd say he implements legislative intent as he understands it. Which is what the majority does here.
"Legislative intent," assuming it's a coherent concept at all given that we're talking about 535 people (536, counting the president who signs it), is an interpretive tool, not an end in itself. The statute is what counts.
I agree that the statute is what counts. But the question is what a statute means. And this idea that where a statute appears clear on its face, you can never look at rules of construction to determine if there may be a latent ambiguity, while it has a superficial appeal to people who are outraged over judges doing whatever they feel like, is a very shortsighted approach.
Here's an example. A statute says "No automobiles are allowed in the park.". Pretty simple to interpret, isn't it? Plain meaning says that if you drive a car into the park, you are violating the law, right?
But suppose that (1) there are signed and demarcated roads in the park that are fully accessible, with no fencing or gates, from the roads outside the park; (2) there are parking meters located on those roads; (3) the statute that contains that provision is entitled the "July 4 niusance abatement act"; (4) the other provisions of the statute ban: (a) possession of fireworks in the park on July 4, (b) excessive noisemaking in the park on July 4, and (c) the playing of musical instruments in the park on July 4; and (5) the committee reports and legislative debate are packed with statements that indicate that the legislature was intending to bar vehicles on July 4 only.
Now Bybee and you would say that we can't consider any of that stuff-- we have to insist on enforcing the "plain meaning" of a statute that was actually MEANT to do something entirely different than what it supposedly says.
As I said, when your theory gives you absurd results, that's a good sign that there is something wrong with your theory. Indeed, another thing wrong with the plain meaning rule is that the whole purpose of it is because it is supposedly the best metric of legislative intent. That, after all, is why Scalia hates legislative history. But that suggests that when we actually DO know that the legislative intent did not get reflected in the plain meaning, sticking with the plain meaning is obtuse. (And yes, legislative intent IS the goal. I agree that it is not always clear what it is, but if legislative intent were not the goal, ALL rules of statutory construction should be overturned and never used. Because the whole reason to, for instance, take words of a statute in context or harmonize them with other statutes (things even Scalia and Bybee approve of) is to uphold the intention of the Legislature.)
If you are interested in this topic, you might want to look up the California Supreme Court case, decided in the late 1960's, of Pacific Gas &Electric v. G.W. Thomas Drayage. It goes through all of this analysis much more eloquently than I can.
At bottom, I think what is going on is this. You are a conservative. You have been overly influenced by the right wing's attacks on judges, some of which have merit but many of which are overblown. As a result, you think that the only way to prevent judges from doing things you don't like is to strip them of any discretion whatsoever whenever possible so that they are just robots mechanically applying the rules.
In fact, though, even most conservative judges and justices think that the idea that you can't correct a drafting error is ridiculous. Before Scalia reached the Supreme Court, this would have been a 9-0 proposition for about 50 years (a nice demonstration of just how much of an extremist Scalia is, by the way). And the reason is because they know darned well that the problem of judicial activism is not due to all those pesky judges correcting drafting errors.
To put it simply: The legislators did not enact their intent. They enacted the statute.He hates legislative history because it is utterly unreliable as a guide to the intent, let alone to the text. First, legislative history is often anything but; these are words that may or may not have been seen by any legislator at any time. There is no evidence, much of the time, that the language cited as "legislative history" was approved of, considered, or even read by any legislator (other than the one who inserted it into the record), let alone the requisite majority of legislators.
Second, there's always enough (so-called) legislative history that a judge can pick and choose whichever statements are his favorite in an attempt to support his position.
Actually, Bybee and I (to be presumptuous) would note the clear difference between things that are in the statute -- (3) and (4) -- and the other things you cite. One key difference is that we know for a fact that (3) and (4) were formally adopted by a majority of the legislature. Rather than by a single committee or a few people who spoke on the floor. (Or who didn't speak on the floor, but inserted a phony debate into the legislative history.)
I know all about Drayage. Drayage is a case about contractual interpretation, and so whatever its merits, is irrelevant to this discussion. That having been said, Drayage, of course, is a horrid decision, ably fisked by Kozinski in the Trident Center v. Connecticut General Life Insurance case, which I would suggest that you read. Or I could cite you to Learned Hand, who pointed out in Hotchkiss, five decades before Drayage, why Traynor's opinion is ludicrous.