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Tuesday, March 22, 2011

Why do I waste my time teaching the so-called "Rule of Lenity"?

By one of those extraordinary coincidences that making teaching statutory construction a pleasure in the Spring, the Court managed to come down with an opinion today that confirmed my low view of the so-called "Rule of Lenity" the day after I taught lenity in statutory construction. In the course of holding that the Fair Labor Standards Act's anti-retaliation provision's phrase "filed any complaint" includes the making of an oral complaint, the Court in Kasten v. Saint-Gobain Performance Plastics held that the rule of lenity was no reason to favor the defendant's narrower view of the phrase. According to the Court (slip opinion at pp 13-14):

Saint-Gobain invokes the “rule of lenity” in support of its “written complaint” interpretation. That rule applies primarily to the interpretation of criminal statutes. It leads us to favor a more lenient interpretation of a criminal statute “when, after consulting traditional canons of statutory construction, we are left with an ambiguous statute.” United States v. Shabani, 513 U. S. 10, 17 (1994). We agree with Saint-Gobain that those who violate the anti-retaliation provision before us are subject to criminal sanction, 29 U. S. C. §216(a). And we have said that the rule of lenity can apply when a statute with criminal sanctions is applied in a noncriminal context.See Leocal v. Ashcroft, 543 U. S. 1, 11, n. 8 (2004). But after engaging in traditional methods of statutory interpretation, we cannot find that the statute remains sufficiently ambiguous to warrant application of the rule of lenity here.
Given that Justice Scalia took a different view of the same phrase and is presumably no dummy when it comes to reading legal texts, the phrase in question is at least somewhat ambiguous. So the level of ambiguity necessary to trigger the soi-disant "rule" of lenity is pretty high: The canon really ought to be called "the exception of lenity."

The canon is, indeed, so exceptional that I wonder why I bothered wasting twenty minutes of class time yesterday teaching that lenity does not matter, only to be confirmed today that the canon (and presumably the class time wasted telling people about its phantom existence) is as useless as I took it to be. Oddly, Justice Scalia said nothing about lenity in his dissent. Given that he has been a crusader for the rule, does this mean that we can now adopt Dan Kahan's suggestion that the rule does not really exist and just stop teaching it altogether? Or are there state courts out there who give lenity more than lip service?

Posted by Rick Hills on March 22, 2011 at 04:28 PM | Permalink


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Here are a few from Illinois. The term "Rule of Lenity" isn't used but it's being applied:

People v. Taylor, 850 N.E.2d 134 (Ill. 2006)(holding in the alternative)
People v. Grever, 856 N.E.2d 378 (Ill. 2006)
People ex rel. Gibson v. Cannon, 357 N.E.2d 1180 (Ill. 1976)
People v. Baaree, 735 N.E.2d 720 (Ill. App. Ct. 2000)

Posted by: Jonathan K | Mar 24, 2011 4:50:42 PM

I nominate this pair of Ohio Supreme Court cases as, taken together, showing lenity in a criminal case and no lenity in an analogous civil case. State v. Gray, 62 Ohio St. 3d 514 (1992), and In re Blackshear, 90 Ohio St. 3d 197 (2000). Both cases involved newborns whose mothers had used cocaine while pregnant.

In Gray, the state prosecuted for child abuse. Statutory issue was whether definition of "child" included fetus and whether definition of "parent" included pregnant woman. Court says no. Opinion starts with baseline statement that "the criminal statutes of the Revised Code are to be strictly construed against the state and liberally construed in favor of the accused. R.C. 2901.04." (Note that Ohio codifies the rule, and it does not use the term of art "lenity," so term-based research won't pick it up.)

In Blackshear, the state did not prosecute, but the county social services agency sought to remove the baby from the mother's custody, under a statute providing for removal of an "abused child." The court said the statute applied, and the removal was allowed. The court first relied on a careful statutory reading, saying it was not defining the fetus as a child, but that the removal statute applied literally because the now-child was suffering harms caused by his now-parent, even if the acts causing the harms were prenatal.

The court distinguished Gray based on the criminal/civil difference, saying lenity was triggered in Gray but not in Blackshear. Court also invoked a contrary canon (also codified in Ohio) requiring that provisions for protection of children be read liberally.

In my view, that distinction mattered more than the ostensible statutory reading, even though the reading was given as primary and the Gray distinction was footnoted. Two cases, same facts, and the criminal defendant did not abuse her child, but the civil custody-removal defendant did have an "abused child." Textbook.

Posted by: ohio reader | Mar 24, 2011 4:29:47 PM

Quite apart from lenity issues, I think this case (both majority and dissent) is great for reviewing loads of textual canons. Ordinary meaning vs. specialized meaning, whole act, whole code, dictionaries, noscitur a sociis, contextual meanings vs. isolated words, etc. A real treasure trove. Plus the policy and purpose arguments in Breyer's opinion for the Court. And the jousting between Breyer and Scalia on Skidmore/Mead. And all of this in a fairly short and understandable case.

Posted by: Aaron Bruhl | Mar 23, 2011 10:29:18 PM

For a case where the rule of lenity should have been discussed and applied, see People v King, 2-1 Mich Ct Appeals case holding the undefined term "enclosed" means a storage facility with a roof.


Dissent at http://coa.courts.mi.gov/documents/opinions/final/coa/20110203_c294682_46_294682d.opn.pdf

I think the end of the dissent was getting at the rule of lenity but did not say so.

Any thoughts?

Posted by: John Minock | Mar 23, 2011 4:45:34 PM

Hillel writes:

Rick, if you don't like teaching students to speak like lawyers despite the fact that in hard cases all of that jargon isn't decisive, why be a law professor? I think that's a good portion of what we do.

As I say, I like rhetoric just fine for, say, nine weeks. But we're past spring break now, and, as I noted, it's getting old.

As for judging icebergs by their SCOTUS tips -- I'd love to see more state court "lenity" (or absurdity, or anti-derogation, or expressio unius, or whatever canon you like) decisions where the canon made a difference. So keep those cards and letters coming! So far, I've collected Millis and Brekka -- the Ninth Circuit, which is not so far deep under the iceberg. Any others -- especially obscure state and trial court decisions?

Posted by: Rick Hills | Mar 23, 2011 12:09:54 PM

I think that the reasonable principle behind the RoL and many other doctrines/canons of statutory interpretation/construction is that people should have reasonable notice of what the law is, and judges should interpret statutes consistently with what those expectations are. In this sense, I think that the RoL is a cousin to stare decisis, landscape precedents, the One Congress rule, certain estoppel-like doctrines, reference to publicized legislative history, constitutional avoidance, and perhaps even agency deference.

(If you want to read more about this theory, check out my article, Contemporary Meaning and Expectations in Statutory Interpretation, available for download at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1677689, and still available to law review editors! {end shameless self-promotion}.)

The trouble is that courts get lost in the doctrinal jargon and the contours of each of these doctrines, rather than simply take seriously the underlying principles that people have a right to know what the law is and that courts should be wary when they interfere with the reasonably-developed public understanding of the law.

Tangentially, Rick, if you don't like teaching students to speak like lawyers despite the fact that in hard cases all of that jargon isn't decisive, why be a law professor? I think that's a good portion of what we do.

Finally, let's note that we're really only talking about these doctrines in the context of the U.S. Supreme Court. Even if they may not be decisive there, because those cases are the most difficult and perhaps the most politically/ideologically-charged, they may be decisive or at least persuasive for other decision-makers (lower court judges, prosecutors and other lawyers, agency officials, etc.). This is the problem of judging the iceberg from its visible tip.

Posted by: Hillel Y. Levin | Mar 23, 2011 9:38:25 AM

Rick: Funny that -- I just taught the RoL, too. I agree that it doesn't often, if ever, change the outcome of a case (but how many canons do?). And that view is shared by most or all of those who regularly argue before the Court, which is why, for instance, the SG's briefs virtually always give lenity arguments the back of the hand. But I do think that lenity -- or, more precisely, the broader due-process-like concern associated with that canon -- does occasionally drive the Court's decisions, not so much in cases of ordinary vagueness, but rather in cases where the Justices confront shockingly broad statutes that, read literally, would criminalize a great deal of not-obviously-wrongful conduct and that therefore give far too much discretion to prosecutors. Ratzlaf, perhaps. Skilling is the most obvious recent example -- although in that case the Court invoked lenity only at the end of its opinion, which was framed primarily in due-process/constitutional-avoidance terms; so perhaps it's fair to say that lenity, as such, is only germane in cases where the avoidance canon is sufficient to the task.

Posted by: Marty Lederman | Mar 22, 2011 11:34:35 PM

I don't know much about the rule of lenity, and the broader question about teaching canons of construction is probably more interesting than the following. But I should note that the chance of being subject to *criminal* sanctions for any sort of FLSA violation is vanishingly tiny, and the chance of being subject to criminal sanctions for violating the FLSA's anti-retaliation provision is pretty much 0%.

Posted by: Joseph Slater | Mar 22, 2011 10:30:29 PM

I agree with Hillel, but, man, the students get horse doctor's doses of training in lawyerly rhetoric. By Week #9, I confess that I am sick of showing them how to make a noise like a lawyer: I'd rather focus on how to solve problems rather than disguise reasons with billows of blather.

As for the Ninth Circuit's decision in Brekka, I disagree that the Court actually used the lenity canon in a civil case there. Yes, they cited the doctrine and blathered about lenity, but the citation and blather was gratuitous: On a reading of the statute's plain language, the defendant ought to have won. As the Brekka court noted (page 1135), "[b]ecause LVRC's proposed interpretation based on [a Seventh Circuit opinion] does not comport with the plain language of the CFAA, and given the care with which we must interpret criminal statutes to ensure that defendants are on notice as to which acts are criminal, we decline to adopt the interpretation of [the relevant statutory language] suggested by [the Seventh Circuit]."

In fact, the plaintiff's case against Brekka strikes me as plainly silly: Brekka kept using an e-mail account given to him by his former employer because the employer was slow in canceling it: How could this possibly be use "without authorization"?

Lenity survives on meaningless citations like that in Brekka, where it tags along as a makeweight argument, easy to cite because utterly gratuitous to the result. But show me a genuinely close case where the canon actually seemed to affect the result.

Posted by: Rick Hills | Mar 22, 2011 9:28:11 PM


In my opinion, the reason to highlight the Rule of Lenity in a statutory interpretation class is to offer it as a substantive canon (familiar to most students) that is, like several other substantive canons, endlessly pliable and ultimately used or disposed of at the discretion of the judge. Unlike some other substantive canons, it has an easily-stated normative justification and should be relatively easy to apply; but it is used inconsistently. See also constitutional avoidance.

This is a lesson in legal realism, of course. To be competent lawyers, students must be familiar with these so-called rules, be able to deploy them when it serves their clients or be able to attack and undermine them when THAT serves their clients, and try to make some sense out of the doctrine so that (a) they can defend their positions, and (b) so that law is not a farce. But no one should be fooled into thinking that these doctrines typically drive case outcomes in difficult or politically/ideologically-charged cases.

In other words, I more-or-less agree with your description of the Rule of Lenity; but I think that's an argument for teaching it, not ignoring it.

Posted by: Hillel Y. Levin | Mar 22, 2011 8:35:39 PM

It came up in the Ninth Circuit's CFAA case, LVRC v. Brekka, 581 F.3d 1127 (9th Cir. 2009).

Posted by: Link to case | Mar 22, 2011 6:30:53 PM

Thanks for Millis: I can add it to my lenity collection. It is, incidentally, strikingly similar to my personal -- albeit entirely fictional -- favorite example of the enforcements of a criminal law beyond its purpose but according to its letter. Imagine that Captain Sullenberger was prosecuted for violation of New York's ban on dumping solid waste in navigable waterways the Hudson River for his famous ditching of Flight 1549 into the Hudson River. I use that hypo to illustrate easy "absurdity" cases. Perhaps the leaving of water for immigrants counts as a similar absurdity, in which case lenity is not doing any real work. (Note that lenity does not do work in (1972), which is really just an application of a constitutional avoidance canon).

Posted by: Rick Hills | Mar 22, 2011 6:24:36 PM

As for Millis, I have never understand the need for the rule of lenity in that case. I do not understand why anybody thinks that caching water bottles in the desert is "littering, disposing, or dumping . . . "garbage . . . or other debris." The water bottles aren't garbage, and they aren't being dumped, littered, or disposed of.

Posted by: WPB | Mar 22, 2011 6:03:57 PM

Maybe the better rule would be to abandon the doctrine saying that the rule of lenity applies to civil cases when the civil statute has a double-life as a criminal statute. (The Kasten Court cites Leocal v. Ashcroft for this proposition.)

That rule never made much sense to me in the first place-- the whole premise of the rule of lenity is that criminal proceedings require extra solicitude-- and there seems to be little appetite for its consequences anyway.

Posted by: WPB | Mar 22, 2011 5:46:40 PM

The Ninth Circuit reversed an appellant's conviction last September under the rule of lenity in United States v. Millis, 621 F.3d 914 (9th Cir. 2010). I used the facts of the case to create the following problem for my Criminal Law students:

Daniel Millis was convicted under 50 C.F.R. Section 27.94 for placing full, gallon-sized plastic bottles of water on trails in the Buenos Aires National Wildlife Refuge to help alleviate exposure deaths among undocumented immigrants crossing into the United States. That section criminalizes the littering, disposing, or dumping in any manner of garbage…on any national wildlife refuge….” There is no legislative history for the section. Millis challenges his conviction on grounds of lenity. How should the court rule? See United States v. Millis, 621 F.3d 914 (9th Cir. 2010).

Posted by: Colin Miller | Mar 22, 2011 4:56:36 PM

The case "presented" (scare quotes explained in a moment) two questions. The statutory term[s] at issue were "filed" (must the thing filed be written, or may it be oral?) a "complaint" (must the thing be filed with the government, or is it enough to file it with the employer?). Justice Breyer for the majority dealt with "filed," saying that the meaning of "complaint" wasn't properly before the Court. As to "filed," he concluded that the term clearly covered both oral and written complaints. So, as to "filed," the statute wasn't ambiguous enough to invoke the rule of lenity. Justice Scalia dealt with "complaint," saying that its meaning could be considered by the Court. That there was a dissent doesn't in itself establish that the term "filed" was ambiguous enough to trigger the rule of lenity, because the dissent didn't deal with that term's meaning.

Posted by: Mark Tushnet | Mar 22, 2011 4:44:39 PM

When I was in law school Frank Easterbrook had a seminar that he called "Defunct Doctrines." The point is that even arguments that seem dead as a dodo today come back in some other guise tomorrow (e.g. from Slaughterhouse to Due Process Incorporation).

Posted by: TJ | Mar 22, 2011 4:42:49 PM

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