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Sunday, June 04, 2017

SCOTUS OT16 Symposium: The Code and the Law

My last post promised a few quibbles with the Court's opinion in BNSF. Here's one: the Court misdescribes the statute's text.

The opinion quotes the statute as follows:

To justify the exercise of personal jurisdiction over BNSF, the Montana Supreme Court relied on [45 U.S.C.] § 56, which provides in relevant part:

“Under this chapter an action may be brought in a district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several States.” 

These particular words were never enacted by Congress. Instead, on April 5, 1910, a different statute was adopted, with text later published at 36 Stat. 291:

Under this Act an action may be brought in a circuit court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this Act shall be concurrent with that of the courts of the several States, and no case arising under this Act and brought in any state court of competent jurisdiction shall be removed to any court of the United States.

Congress amended the last sentence in 1948, ending the sentence at the comma and moving the rest into 28 U.S.C. § 1445. But the other edits in § 56—replacing "Act" with "chapter," and "circuit court" with "district court"—weren't made by Congress. When the old circuit courts were abolished in 1911, Congress didn't change all the old statutes mentioning them; it just told everyone to read those unchanged statutes "to refer to * * * the district courts" instead. And it never replaced "Act" with "chapter" at all.

So who wrote the words in the opinion? The answer is the staff at the Office of Law Revision Counsel, an office in the House of Representatives. They edit the real statutes that go through bicameralism-and-presentment (most of which are published in the Statutes at Large) and then compile them into titles of the United States Code. Congress occasionally reenacts those edited compilations as the real law. But often the Code isn't really law; as Will Baude recently put it, it's just "a helpful edited collection that tries to reflect what the Statutes at Large actually add up to." That's why the Code's unenacted titles are only "prima facie" evidence of the text, while the Statutes at Large are "legal evidence" of what you'd find in the original enrolled bills deposited in the National Archives.

Usually these distinctions don't matter much. Who cares whether a statute actually says "district courts," so long as we're legally required to read the text as if it did? But sometimes the difference does matter—such as when the compilers leave a statutory provision out of the U.S. Code for four decades, or when Congress writes a new law but forgets to change the enacted title it overrides.

And sometimes, as Tobias Dorsey explains in a great article, courts misunderstand what a statute does simply because they're looking at a final edited version, not the bills enacted over time. So when BNSF's reply brief based an argument on "[t]he statute's reference to jurisdiction 'under this chapter,'" its conclusion wasn't necessarily wrong—but its premise should have rested on words written by Congress, not by a staff office making chapter divisions on its own.

Two last points. First, courts can help remind the parties (and themselves) that the Code is not the law. Right now, the Supreme Court's Rule 34.5 requires parties to cite to the U.S. Code, even for unenacted titles. Rules like this could instead distinguish enacted titles from unenacted ones—separating the real law from what Dorsey correctly calls the "Cliffs Notes" version.

Second, remembering that the Code isn't the law reminds us of something useful about legal interpretation: that it's about law, and not just about texts. When we talk about "the text of the statute," we're often talking about the text as amended—that is, as generated by a particular process, involving a variety of different legal judgments. Some of those judgments are easy, as when Congress spells out what it's amending and how. But some are quite difficult, as when there are discrepancies in an enrolled bill, or when a particular provision may or may not fall within the scope of an unclear repeal. Similarly, when we talk about "the text of the Constitution," we aren't talking about a single organic text, but a patchwork of more than a score of separate enactments, adopted over hundreds of years. That's entirely correct as a legal matter, because Article V made those subsequent enactments "valid to all Intents and Purposes, as Part of this Constitution." But you need to use legal reasoning to get there, not just textual interpretation. (This is especially true for the Fourteenth Amendment, whose validity may involve reference to the de facto government doctrine or the laws of war.) "What's the text?" isn't only a textual-integrity question, of the kind we might refer to philologists or historians; often the question we're really asking is "what's the law?" But to answer that question, we really ought to get the words right in the first place.

Posted by Stephen Sachs on June 4, 2017 at 10:05 PM in 2016-17 End of Term, Civil Procedure, Constitutional thoughts | Permalink

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