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Sunday, June 08, 2008

Karl Llewellyn and the U.S. Supreme Court

Karl Llewellyn haunted the Supreme Court this term, when Ali v Federal Bureau of Prisons was handed down on January 22nd. The 5-4 decision, written by Thomas, with dissents by Kennedy and Breyer, has not been much noticed. The case involved the suit of a prisoner, Ali, to recover damages under the Federal Tort Claims Act for the Federal Bureau of Prison’s loss of his Quran, prayer rug, and sundries. The majority ruled against Ali on the ground that Ali’s claim fell within an exception to the FTCA’s waiver of immunity for “[a]ny claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any ... property by any officer of customs or excise or any other law enforcement officer.” 28 U.S.C. section 2680(c).

So far, so dull. But to those interested in legal reasoning, Legal Realism, and the idea of Dworkinian integrity in interpretation, the case is one of the most interesting ones handed down this term The dispute between Thomas and Kennedy became a real-life re-enactment of Llewellyn’s famous article (Download llewellyn_on_canons.pdf) on canons of statutory construction, with Kennedy supplying the “thrust” and Thomas, the “parry.”

The canon in question was ejusdem generis: Was the phrase “any other law enforcement officer” limited in some way by the preceding reference to officers performing revenue or customs duties? Thomas argued against the canonical limit, citing the breadth of the term “any”; Kennedy insisted on the canon, citing the need not to render unnecessary the references to “officer of customs or excise.” But behind the invocation of these textual proprieties, one could not help but notice that four out of the five justices who joined Thomas’s opinion generally like neither prisoners nor tort plaintiffs; and three out of four in Kennedy’s camp generally do.

Was the Court unselfconsciously treating us to a Legal Realist moment, in which (1) the Court passionately debated how to apply some dry Latinate legalism while (2) all the real work was done mostly offstage by the Justice’s ideological priors? I do not think so, for two reasons: Justice Ginsburg (who joined Thomas’s opinion) and Justice Kennedy (who wrote the dissent). I have no reason to believe that either have strong ideological priors about their chosen view on sovereign immunity. So these swing votes must have been moved by something about the canonical discussion – about which I will speculate following the “jump.”

Ejusdem generis is similar to a host of other rules (e.g., stare decisis, noscitur a sociis, rule against implied repeal, pari material, and so forth) that serve as ways by which to preserve as much of the pre-existing law as possible. As David Shapiro has observed in Continuity and Change in Statutory Interpretation, 67 N.Y.U. L. Rev. 921 (1992) (and Tocqueville, long before, in chapter 16, 1 Democracy in America), lawyers are inherently conservative: They are historic preservationists, seeking legal coherence by minimizing disruption of the status quo.

Ali raised special problems for this conservative attitude writ small and large.

Writ small, there is a clause-specific problem: it is not easy to interpret the clause in question without rendering part of it mere surplusage. If one construes the catch-all clause -- “any other law enforcement officer” -- to refer only to officials acting as customs and excise enforcers, then it is hard to know what the clause adds to the specific reference to such officers. (Surely, stated Justice Thomas, even a DEA agent who enforced a customs law would be pro tanto a customs officer without the catch-all clause). If one construes it as broadly as the majority, then the preceding references to customs and excise officers is mere surplusage.

Writ large, there is the problem of normative baseline. Is that baseline immunity or waiver? One might say that the “normal” default condition is immunity: Absent the FTCA, after all, the traditional rule of immunity would hold sway, and the federal government could not be sued in tort. But the FTCA enacts a very broad waiver with 13 specific exceptions. One might say, therefore, that the “normal” condition really is waiver: Ordinary people now assume that, outside some islands of immunity, they can call their government to account when it destroys, confiscates, damages, loses, or steals their property.

I see no easy way to choose between these two normative baselines – but the choice determines how Shapiro’s principle of legal continuity should apply. “Which interpretation,” Shapiro’s legal conservative would ask, “does the least damage to the pre-existing fabric of the law?” In Ali, the answer depends on an irresolvably contested normative baseline about the law’s “normal” state.

Llewellyn might say that this always the case with the canons. The impossibility of Shapiro’s “preservationist” position -- which is, incidentally, akin to Ronald Dworkin’s principle of integrity – is that the mass of the law has no more “shape” than the mass of stars. Lawyers impose patterns – normative baselines – on this mass like astrologers impose constellations on the stars, but there is no way to judge whether one constellation is a “better fit” than any other.

I do not know whether Llewellyn (or his intellectual descendants, the Crits) are correct in this regard. I am sure only that Ali is a good vehicle for thinking about this perplexing problem – and I am teaching it next Spring in statutory interpretation.

Posted by Rick Hills on June 8, 2008 at 10:40 AM | Permalink


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I don't think it's right to say that Llewellyn's intellectual successors are the crits. Some crits hate him and see him as the forerunner of Law and Econ.

Posted by: Anon | Jun 9, 2008 1:24:53 AM

I taught Ali this past semester in my Interpretation class, moving some other material aside. The case is, as you say, an up-to-the-minute exemplar of the Court's wrestling with canons, baselines, and all the rest. If my students' reaction is any indication, yours will enjoy the case quite a bit!

Posted by: Joe Miller | Jun 8, 2008 11:09:08 AM

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