Book Review: Sudden Mission by Guy L. Pace

My friend and fellow veteran Guy Pace is an author and I recently picked up the Kindle version of his first book, Sudden Mission. I don't often read fiction and I had no idea what this book was about! I don't write many reviews either, but I thought this one was worth it.

Sudden Mission is a story about a group of teenagers on a journey across the United States to complete a mission for God. I found myself reading the book in one hand while following along the journey on Google Maps in the other.  It's a Christian story set in modern times and designed for young adults. I genuinely enjoyed this book, probably more so because it is much different from the sometimes dense non-fiction that I often read.  As a result, it was easy reading and I finished the book in a few hours.

None of this detracts from the powerful message that Guy has interwoven into the story. The teenagers' friendship and relationship with God is pivotal to their mission. Most importantly, Sudden Mission is about their faith and how it guides their journey.

I'm looking forward to the next book: Nasty Leftovers!

"Books You're Not Supposed to Read" Bibliography

A complete list of the "Books You're Not Supposed to Read" from Robert P. Murphy's The Politically Incorrect Guide to Capitalism. You can also find this list on Goodreads.

Cross-posted on Liberty Leanings.

Planned Chaos by Ludwig von Mises; Irvington-on-Hudson, NY: Foundation for Economic Education, 1947.

How the West Grew Rich by Nathan Rosenberg; New York: Basic Books, 1986.

Capitalism and the Historians by Friedrich Hayek; Chicago: University of Chicago Press, 1954.

by Walter Block, Milton Friedman, Friedrich A. Von Hayek, Basil Kalymon, Edgar O. Olsen, eds.; Vancouver: Fraser Institute, 1981.

The Age of Oil: The Mythology, History, and Future of the World’s Most Controversial Resource by Leonardo Maugeri; Westport, CT: Praeger, 2006.

Cornerstone of Liberty: Property Rights in 21st-Century America by Timothy Sandefur; Washington, DC: Cato Institute, 2006.

Economics in One Lesson by Henry Hazlitt; New York: Harper & Brothers, 1946.

The Strike Threat System by William Hutt; New York: Arlington House, 1973.

Out of Work: Unemployment and Government in Twentieth-Century America by Richard Vedder and Lowell Gallaway; New York: New York University Press, 1997.

Freedom in the Workplace: The Untold Story of Merit Shop Construction’s Crusade against 

Compulsory Trade Unionism by Samuel Cook; Washington, DC: Regnery, 2005.

The State against Blacks by Walter Williams; New York: McGraw-Hill, 1984.

Capitalism: The Cure for Racism by George Reisman; The Jefferson School of Philosophy, Economics & Psychology, 1992.

Reflections of an Affirmative Action Baby by Stephen L. Carter; New York: Basic Books, 1991.

Race and Culture: A World View by Thomas Sowell; New York: Basic Books, 1994.

The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War by Thomas DiLorenzo; Roseville, CA: Prima, 2002.

Emancipating Slaves, Enslaving Free Men by Jeffrey Rogers Hummel; Peru, IL: Open Court, 1996.

The Ultimate Resource by Julian Simon; Princeton, NJ: Princeton University Press, 1983.

Energy: The Master Resource by Robert L. Bradley, Jr. and Richard W. Fulmer; Dubuque, IA: Kendall/Hunt Publishing Company, 2004.

Environmental Overkill: Whatever Happened to Common Sense? by Dixy Lee Ray; Washington, DC: Regnery, 1993.

Economics and the Environment: A Reconciliation, ed. Walter Block; Vancouver: Fraser Institute, 1990.

Trashing the Planet: How Science Can Help Us Deal with Acid Rain, Depletion of the Ozone, and 

Nuclear Waste (Among Other Things) by Dixy Lee Ray; New York: Perennial, 1992.

Free to Choose: A Personal Statement by Milton and Rose Friedman; New York: Harcourt Brace Jovanovich, 1980.

The Death and Life of Great American Cities by Jane Jacobs; New York: Random House, 1961.

Money Mischief: Episodes in Monetary History by Milton Friedman; New York: Harcourt Brace Jovanovich, 1992.

What Has Government Done to Our Money? by Murray Rothbard; Auburn, AL: Ludwig von Mises Institute, 2005.

The Rationale of Central Banking and the Free Banking Alternative by Vera Smith; New York: Liberty Press, 1990.

America’s Great Depression by Murray Rothbard; Auburn, AL: Ludwig von Mises Institute, 2000.

FDR’s Folly: How Roosevelt and His New Deal Prolonged the Great Depression by Jim Powell; New York: Crown Forum, 2003.

The Roosevelt Myth by John T. Flynn; San Francisco: Fox & Wilkes, 1998.

Economics on Trial: Lies, Myths, and Realites by Mark Skousen; Scarborough, Ontario: Irwin, 1990.

What Do You Care What Other People Think? by Richard Feynman; New York: W. W. Norton, 1988.

Bureaucracy by Ludwig von Mises; Grove City, PA: Libertarian Press, 1994.

Street Smart: Competition, Entrepreneur-ship, and the Future of Roads, ed. Gabriel Roth; New Brunswick, NJ: Transaction, 2006.

The Myth of the Robber Barons by Burton Folsom; Washington, DC: Young America’s Foundation, 2003.

Antitrust Policy: The Case for Repeal by Dominick Armentano; Washington, DC: Cato Institute, 1986.

Economic Sophisms by Frédéric Bastiat.

The Wealth of Nations by Adam Smith.

Free Trade Under Fire by Douglas A. Irwin; Princeton, NJ: Princeton University Press, 2002.

Equality, the Third World, and Economic Delusion by P.T. Bauer; Cambridge, MA: Harvard University Press, 1983.

In Defense of Global Capitalism by Johan Norberg; Washington, DC: Cato Institute, 2003.

Creative Destruction: How Globalization Is Changing the World’s Cultures by Tyler Cowen; Princeton, NJ: Princeton University Press, 2002.

In Defense of Globalization by Jagdish Bhagwati; New York: Oxford, 2005.

Why Globalization Works by Martin Wolf; New Haven: Yale University Press, 2005.

The Power of Economic Thinking by Mark Skousen; Washington, DC: BNA Books, 2002.

RIP: Tom Clancy, April 12, 1947 - October 1, 2013

Tom Clancy, one of my favorite authors of all time, died last night in Baltimore.

Remember when the government actually abolished something?

Ok, it's been awhile. The Interstate Commerce Commission was abolished in 1995.

One of these books is not like the other

Two recent Supreme Court cases and two sides of the Extraterritoriality Canon

This is one of a series of posts about Justice Antonin Scalia and Bryan Garner's Reading Law: The Interpretation of Legal Texts. For similar posts, click here.

I wrote a previous post that addressed the issue of the Extraterritoriality Canon. A statute presumptively has no extraterritorial application (statuta suo clauduntur territorio, nec ultra territorium disponunt, p. 268).

Two recent cases discussed this concept, but came out on different sides. First, in Kirtsaeng v. John Wiley & Sons, Inc., Justice Breyer's majority opinion rejected this presumption--but never actually mentions it. Rather, he calls it a geographical limitation. So rather than starting from the idea that the Copyright Act presumptively has no extraterritorial application and then rebutting the presumption (because he can't--courts have long held that the Copyright Act doesn't apply extraterritorially), he starts with the presumption that no such limitation exists. In this way, he starts the argument on his side of the court (and Court, if you will).

Justice Ginsburg's dissent specifically addressed the presumption of extraterritoriality and in my opinion, is more persuasive than the majority.

Second, in  Kiobel v. Royal Dutch Petroleum, Chief Justice Roberts's majority opinion relied primarily on this canon in concluding that the Alien Tort Statute does not apply to the alleged conduct:

We therefore conclude that the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption. "[T]here is no clear indication of extraterritoriality here," Morrison, 561 U. S., at ___ (slip op., at 16), and petitioners' case seeking relief for violations of the law of nations occurring outside the United States is barred.

The subject matter is lengthy and I won't quote anything else from either opinion here, but I recommend you read the opinions to get a sense of how the Court applies this presumption in recent cases.

How do you pronounce that word, part 2

This post is a follow-up to a previous one I had written about the pronunciation of common words. In Justice Scalia and Bryan Garner's Making Your Case: The Art of Persuading Judges, they argue (quite sensibly) that if you want to be taken seriously during oral arguments of a case, you need to pronounce words correctly. What's the correct pronunciation? Generally, it's the preferred pronunciation, meaning "preferred by well-educated people" (p. 145).

Here are a few other words of interest, which notes and links to their Dictionary.com definition ((follow the link, then click the speaker icon for the spoken pronunciation).

often [aw-fuh n, of-uh n; awf-tuh n, of-]. The preferred pronunciation leaves the t silent; this is one of those times when it sounds (to my ear, at least) as if leaving the t silent sounds less-educated and lazy. Either way, this isn't a big deal, as the pronunciation note suggests:

Often was pronounced with a t -sound until the 17th century, when a pronunciation without the [t] came to predominate in the speech of the educated, in both North America and Great Britain, and the earlier pronunciation fell into disfavor. Common use of a spelling pronunciation has since restored the [t] for many speakers, and today [aw-fuh n] and  [awf-tuh n] [or [of-uh n] and [of-tuh n] ] exist side by side. Although it is still sometimes criticized, often  with a [t]  is now so widely heard from educated speakers that it has become fully standard once again.

affidavit [af-i-dey-vit, not -vid]
athlete [ath-leet]. Here's another very common mispronunciation:

Athlete, athletic, and athletics, normally pronounced [ath-leet] [ath-let-ik] and [ath-let-iks] are heard frequently with an epenthetic schwa, an intrusive unstressed vowel inserted between the first and second syllables: [ath-uh-leet] [ath-uh-let-ik] and [ath-uh-let-iks]. The pronunciations containing the extra syllable are usually considered nonstandard, in spite of their widespread use on radio and television. Pronunciations with similarly intrusive vowels are also heard, though with less currency, for other words, as  [fil-uh m] for film, [el-uh m] for elm, and [ahr-thuh-rahy-tis] for arthritis, rather than the standard [film] [elm] and [ahr-thrahy-tis].

irregardless [ir-i-gahrd-lis]. Not so much a pronunciation issue, as it is not really a word:

Irregardless is considered nonstandard because of the two negative elements ir- and -less. It was probably formed on the analogy of such words as irrespective, irrelevant, and irreparable. Those who use it, including on occasion educated speakers, may do so from a desire to add emphasis.

nuclear [noo-klee-er, nyoo- or, by metathesis, -kyuh-ler].

In pronouncing nuclear, the second and third syllables are most commonly said as [-klee-er] a sequence of sounds that directly reflects the spelled sequence -cle·ar.  In recent years, a somewhat controversial pronunciation has come to public attention, with these two final syllables said as [-kyuh-ler]. Since [-klee-er] the common pronunciation of cle·ar,  might also be represented, broadly, as [-kluh-yer] the [-kyuh-ler]  pronunciation can be seen as coming from a process of metathesis, in which the [l] and the [y] change places.

pronunciation [pruh-nuhn-see-ey-shuh n, not pruh-now-n-see-ey-shuh n]. Every time I type pronunciation, I have to fight myself to avoid typing pronounciation. I don't have a problem with the actual (spoken) pronunciation, because it seems straightforward. Rather, it seems natural (from a spelling standpoint) to move from pronounce to pronounciation. Here, it seems the common mispronunciation stems from the spelling issue.

It may seem odd for the pronunciation of this very word to be an issue; the pronunciation of pronunciation should be evident from its spelling. The vowel in the second syllable is u, said as in the word up. It is not the diphthong ou, as in ouch. 

Language Lessons: How do you pronounce that word?

This is one in a series of posts about the peculiarities of writing and speaking the English language. For similar posts, click here.

How do you pronounce the following words?

comptroller
coupon
err
flaccid
heinous
schism

In Justice Scalia and Bryan Garner's Making Your Case: The Art of Persuading Judges, they argue (quite sensibly) that if you want to be taken seriously during oral arguments of a case, you need to pronounce words correctly. What's the correct pronunciation? Generally, it's the preferred pronunciation, meaning "preferred by well-educated people" (p. 145).

For example, they argue that the six words listed above are among those that are commonly mispronounced. Chances are that you, like me (despite us being reasonably well educated people), have also been pronouncing at least a few of them incorrectly (or, at least, by their non-preferred means).

Here are the original six words, linked to their Dictionary.com definition (follow the link, then click the speaker icon for the spoken pronunciation):

comptroller [kuh n-troh-ler; not komp-troh-ler]
coupon [koo-pon; kyoo-pon is acceptable but not preferred]
err [ur, er; not air]
flaccid [flak-sid; although flas-id is also acceptable]
heinous [hey-nuh s; if there is a common mispronunciation, I don't know of it]
schism [siz-uh m or skiz-uh m]

Live Your Life (Tecumseh)

So live your life that the fear of death can never enter your heart. Trouble no one about their religion; respect others in their view, and demand that they respect yours. Love your life, perfect your life, beautify all things in your life. Seek to make your life long and its purpose in the service of your people. Prepare a noble death song for the day when you go over the great divide.

Always give a word or a sign of salute when meeting or passing a friend, even a stranger, when in a lonely place. Show respect to all people and grovel to none.

When you arise in the morning give thanks for the food and for the joy of living. If you see no reason for giving thanks, the fault lies only in yourself. Abuse no one and no thing, for abuse turns the wise ones to fools and robs the spirit of its vision.

When it comes your time to die, be not like those whose hearts are filled with the fear of death, so that when their time comes they weep and pray for a little more time to live their lives over again in a different way. Sing your death song and die like a hero going home.

--Tecumseh (1768-1813)

Does the first sale doctrine of copyright apply to extraterritorial works?

This is one of a series of posts about Justice Antonin Scalia and Bryan Garner's Reading Law: The Interpretation of Legal Texts. For similar posts, click here.

Section 109(a) of the Copyright Act provides, in part, that

...the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

Emphasis is mine. Contrast that with Section 602(a)(1) which states that

[i]mportation into the United States, without the authority of the owner of copyright under this title, of copies or phonorecords of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies or phonorecords....

As you can probably tell from reading these two relevant provisions, they appear to contradict one another. The first provision delineates the first-sale doctrine. This limits the rights of copyright holders and enables secondary markets by permitting resale without authority of the copyright owner. The second provision prohibits the importation of a work without the authority of the copyright’s owner.

This is the question presented in the case of Kirtsaeng v. John Wiley & Sons, Inc., which was argued before the Supreme Court on October 29. The Second Circuit summarized the facts:

To help subsidize the cost of his education, Kirtsaeng allegedly participated in the following scheme: Between 2007 and September 8, 2008, Kirtsaeng's friends and family shipped him foreign edition textbooks printed abroad by Wiley Asia. In turn, Kirtsaeng sold these textbooks on commercial websites....

The Supreme Court has already considered a very similar case in Quality King Distributors Inc., v. L'anza Research International Inc., 523 U.S. 135 (1998). In summary:

L'anza, a California manufacturer, sells its hair care products in this country exclusively to distributors who have agreed to resell within limited geographic areas and only to authorized retailers. L'anza promotes its domestic sales with extensive advertising and special retailer training. In foreign markets, however, it does not engage in comparable advertising or promotion; its foreign prices are substantially lower than its domestic prices. It appears that after L'anza's United Kingdom distributor arranged for the sale of several tons of L'anza products, affixed with copyrighted labels, to a distributor in Malta, that distributor sold the goods to petitioner, which imported them back into this country without L'anza's permission and then resold them at discounted prices to unauthorized retailers.

The Supreme Court found that the first sale doctrine endorsed in § 109(a) is applicable to imported copies. That would seem to be sufficient to decide Kirtsaeng (of course, if it were that simple, the Supreme Court probably wouldn't be hearing the case!). However, it is potentially distinguishing that the hair care products in L'anza were in fact manufactured within the United States (and the labels were copyrighted in the United States), distributed overseas, and then re-imported into the United States. The books at question in Kirtsaeng were manufactured and copyrighted overseas.

In 2010, the Supreme Court affirmed the 9th Circuit's decision in Omega S.A. v. Costco Wholesale Corp., 541 F.3d 982 (9th Cir. 2008). According to the 9th Circuit:

Omega manufactures watches in Switzerland and sells them globally through a network of authorized distributors and retailers. Engraved on the underside of the watches is a U.S.-copyrighted “Omega Globe Design.” Costco obtained watches bearing the copyrighted design from the “gray market” 1 in the following manner:  Omega first sold the watches to authorized distributors overseas. Unidentified third parties eventually purchased the watches and sold them to ENE Limited, a New York company, which in turn sold them to Costco. Costco then sold the watches to consumers in California. Although Omega authorized the initial foreign sale of the watches, it did not authorize their importation into the United States or the sales made by Costco.

The Supreme Court vote was 4-4 (Kagan recused). A tie affirms the lower court; however, the ruling only becomes binding upon the 9th Circuit. So it seems obvious that the Court would take another similar case to establish a final rule on these apparently conflicting provisions.

From a textual perspective, there are three canons that immediately come to mind when considering this question:

• Harmonious-Reading Canon. The provisions of a text should be interpreted in a way that renders them compatible, not contradictory (p. 180).
• General/Specific Canon. If there is a conflict between a general provision and a specific provision, the specific provision prevails (generalia specialibus non derogant, p. 183).
• Irreconcilability Canon. If a text contains truly irreconcilable provisions at the same level of generality, and they have been simultaneously adopted, neither provision should be given effect (p. 189).

There is another canon at play here--the Extraterritoriality Canon. A statute presumptively has no extraterritorial application (statuta suo clauduntur territorio, nec ultra territorium disponunt, p. 268). Let's start with this one.

In Morrison v. National Australia Bank Ltd., 130 S. Ct. 2869, Justice Scalia, writing for the Court, wrote that "[i]t is a longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States." (quotation marks omitted) This is a restatement of the Extraterritoriality Canon.

Returning to the contextual canons, it is not immediately obvious that either one of the provisions here are more or less general or specific than the other. So for the purposes of this post, we'll pass by the General/Specific Canon for another day. And among these canons, the Irreconcilability Canon is a last resort. So we ought to look specifically at the Harmonious-Reading Canon.

The Second Circuit undertook a textual analysis of § 109(a):

In arriving at a satisfactory textual interpretation of the statutory language at issue, we focus primarily on the words "made" and "under," but this task is complicated by two factors: (1) the word "made" is not a term of art in the Copyright Act, and (2) "[t]he word `under' is [a] chameleon" and courts "must draw its meaning from its context." Wiley contends that we must interpret "lawfully made under this title" to mean "lawfully made in the United States." This view of the law — which was also adopted by the United States in its amicus brief before the Supreme Court in Costco — is certainly consistent with the text of § 109(a).

In other words lawfully made under this title in § 109(a) should read to mean lawfully made in the United States. But wait! You might wonder (rightfully so) how a textualist reading of the statute could simply change the meaning of the words!

In fact, it is the logical application of the Extraterritoriality Canon together with the Harmonious-Reading Canon. Here, these canons work together to help us understand how the law ought to be interpreted. Because the Copyright Act is presumed not to have extraterritorial application, the words lawfully made under this title really do mean lawfully made under the Copyright Act which is only applicable within the United States. Because the books in question were manufactured in Thailand, United States copyright law does not apply. And these reasons are precisely why the Second Circuit affirmed the District Court in favor of Wiley.

The EFF considers this a "dubious interpretation" that would "further undermine the 'first sale doctrine.'" I would argue that applying these two canons, the interpretation is rather straightforward. Also note that (whether you agree with it or not), the textualist interpretation does not consider any policy considerations. If you think "fair use" and "first sale doctrine" are good ideas, you are likely to find ways interpret those provisions to suit your policy outcome. In fact, from a policy perspective, I agree with the EFF and believe that the first sale doctrine ought to apply outside of the United States. But from a judicial perspective, the text of the relevant statutory provisions do not support that interpretation. Rather, should the Court decide in favor of Wiley, it is up to Congress to change the law to expand the first sale doctrine to extraterritorial works.

From a textualist perspective, I would expect Justice Scalia to affirm the Second Circuit on these grounds. Whether or not this view will prevail among the Court as a whole remains to be seen. My best guess is that this will be a 5-4 decision with Justice Kagan providing the swing to either side (because Omega S.A. v. Costco Wholesale Corp. was a per curiam decision, the positions of the justices on either side of the case were not published).

The DC Metro...and textualism?

This is one of a series of posts about Justice Antonin Scalia and Bryan Garner's Reading Law: The Interpretation of Legal Texts. For similar posts, click here.

I wrote a previous blog post about the ejusdem generis canon. To recap: where general words follow an enumeration of two or more things, they apply only to persons or things of the same general class specifically mentioned.

I was riding the Metro the other day and came across an example of where we might be able to use ejusdem generis in practice:

For the sake of this example, let's focus on the last bullet. So, "[i]n any Metro Station or train it is unlawful to...Carry any animals, flammable liquids or other dangerous articles." (Sorry, no Oxford comma...)

First: what does Carry and any modify? Presumably, it modifies all of the items. In other words, It is unlawful to carry any animals, carry any flammable liquids, or carry any other dangerous articles. It would be odd to suggest that you could bring have flammable liquids or other dangerous articles if you weren't carrying them. Even then, what does it mean to carry? If I have a (non-service) dog on a leash, am I really carrying an animal?

Animals: Without any other guidance, this would seem to mean all animals (but probably not service animals, who are already exempt). It's also a very general term in a list.

Flammable liquids: On the other hand, "flammable liquids" is a rather specific term that refers to items such as diesel, gasoline, and kerosene. The text suggests that the purpose here is to reduce the fire hazard. But what about that vegetable oil you bought at the store on the way home? It is flammable. What about lighter fluid? In a bottle? In a lighter?

Other dangerous articles: The ejusdem generis canon suggests that "other dangerous articles" should be  of the same general class specifically mentioned. But the classes specifically mentioned aren't necessarily very helpful. All animals and flammable liquids do not necessarily lend themselves to understanding what is meant by "other dangerous articles." Presumably, though, this means firearms (although it seems odd, especially in Washington, D.C., that they don't explicitly mention this), knives or other hand-held weapons. What about nunchuks? Brass knuckles? A baseball bat?

You can see here how a rather simple sounding regulation could be potentially very confusing. The Metrorail Rules and Manners page makes some reference to these rules, but does not provide clarification.

Sue who, me? Why you wanna sue me?

This is one of a series of posts about Justice Antonin Scalia and Bryan Garner's Reading Law: The Interpretation of Legal Texts. For similar posts, click here.

46. Presumption Against Waiver of Sovereign Immunity. A statute does not waive sovereign immunity--and a federal statute does not eliminate state sovereign immunity--unless that disposition is unequivocally clear (p. 281). An important corollary to this presumption (and especially in the Millbrook case discussed below) is that such waivers of sovereign immunity should be strictly construed. Soriano v. United States, 352 U.S. 270, 276.

Sovereign immunity provides that the government (whether that be the federal, state, or local government) cannot be sued unless that immunity has been waived, or if the government consents.

Here's one example: in an earlier post, I discussed under what conditions might a lawsuit against the Washington Metropolitan Area Transit Authority (WMATA) succeed. That discussion hinged on Section 80 of the WMATA Compact, which reads in part:

80. Liability for Contracts and Torts

The Authority shall be liable for its contracts and for its torts and those of its Directors, officers, employees and agent committed in the conduct of any proprietary function, in accordance with the law of the applicable Signatory (including rules on conflict of laws), but shall not be liable for any torts occurring in the performance of a governmental function...

 This is a partial waiver of WMATA's sovereign immunity--and limited only to "proprietary" functions (see the original post for further discussion on what that is). Without this section, the presumption would be that WMATA does not waive its sovereign immunity. So the key here is that the waiver must be clear. Ambiguous is simply not enough.

The primary example of the federal government's (limited) waiver of sovereign immunity is the Federal Tort Claims Act (and is raised in the issue below, as we will see).

The Supreme Court will be presented with an opportunity to test this presumption in the case of Millbrook v. United States. Via SCOTUSblog, the issue is

[w]hether 28 U.S.C. §§ 1346(b) and 2680(h) [FTCA] waive the sovereign immunity of the United States for the intentional torts of prison guards when they are acting within the scope of their employment but are not exercising authority to "execute searches, to seize evidence, or to make arrests for violations of Federal law."

28 U.S.C. § 1346(b)(1) provides, in part, that the federal government waives sovereign immunity:

...for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 2680(h) provides exceptions to the waiver, but also includes a proviso[1] which is an exception to the exception:

Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights: Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346 (b) of this title shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For the purpose of this subsection, “investigative or law enforcement officer” means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.

The bold emphasis is mine, and is key to the outcome of this case. Is your head hurting yet? This is an Inception-quality statute right here. Let's recap:

1. The federal government has sovereign immunity.
2. § 1346(b)(1) waives that immunity for certain claims.
3. § 2680(h) lists several exceptions to the waiver; in other words, for those exceptions sovereign immunity is restored.
4. The proviso within § 2680(h) re-waives sovereign immunity for six of the eleven exceptions, provided that the acts or omissions in question are by investigative or law enforcement officers empowered to a) execute searches; b) seize evidence; or c) making arrests for violations of federal law.

Now, the facts of the case. Mr. Millbrook claims he was sexually assaulted by several prison guards. Whether or not those prison guards are "investigative or law enforcement officers" under the specific conditions as set forth in the proviso will ultimately determine whether or not his case is successful. In other words, the prison guards are most definitely investigative or law enforcement officers in general, but if the alleged assault did not take place while executing a search, seizing evidence, or making an arrest, then perhaps (if the Third Circuit was correct) the government's sovereign immunity remains intact. See Pooler v. United States, 787 F.2d 868, 872 (3d Cir.1986).

The Third Circuit affirmed the District Court for the government. Mr. Millbrook filed a pro se writ of certiorari, which the government opposed. Since then, the government switched positions and decided it wanted the case overturned, arguing that § 2680(h) is not limited by the three empowerment options (executing a search, seizing evidence, or making an arrest). As a result of the government's switch, the Court appointed Jeffrey Bucholtz, Washington, D. C. to defend the Third Circuit's ruling as amicus curiae.

In summary: does the proviso apply to (1) all "investigative or law enforcement officers" regardless of whether they are actually executing a search, seizing evidence, or making an arrest; or (2) is it necessary that the assault (or other tortious conduct) took place while executing a search, seizing evidence, or making an arrest. From a practical sense: in the first case, Mr. Millbrook's claim would go forward; in the second, it would not.

Unlike some of the other canons I've covered, this case has not yet been decided so there is no answer (yet). If I had to take a guess at the result of this case solely on the presumption against waiver of sovereign immunity (and especially in light of its corollary that waivers of sovereign immunity should be strictly construed), I would say the second option is more likely. That outcome would be odd, too; the government would win despite the fact that the government had argued against its original position. I guess it's safe to say the government will win, no matter what.

When the case is decided, I'll update this post with information from the opinion that is relevant to this presumption.

[1] The proviso itself is the subject of a canon (#21, p. 154) which states that "[a] proviso conditions the principle matter that it qualifies--almost always the matter immediately preceding." Here, it is common sense to read it that way.

Should the Tellico Dam have been completed, the Endangered Species Act be damned?

This is one of a series of posts about Justice Antonin Scalia and Bryan Garner's Reading Law: The Interpretation of Legal Texts. For similar posts, click here.

10. Negative-Implication Canon. The expression of one thing implies the exclusion of others (expressio unius est exclusio alterius, p. 107).

The Tennessee Valley Authority (TVA) started building of the Tellico Dam in 1967. During construction, an endangered fish species was found upstream. In 1973, Congress passed the Endangered Species Act (after construction of the dam had commenced. The reservoir created by the dam was thought to be harmful to the species of fish in question; action was taken to halt construction (which by then was nearly complete).

The Supreme Court considered whether the ESA required a court to enjoin the operation of the Tellico Dam (which had been authorized prior to 1973) when the Secretary of the Interior had determined that operation of the dam would eradicate an endangered species. TVA v. Hill, 437 U.S. 153 (1978).

Section 10 of the ESA (codified as 16 USC § 1539) provided a number of "hardship exemptions" to the ESA. However, none of these "hardship exemptions" applied to the Tellico Dam project. Furthermore, Congress had explicitly provided appropriations for the Tellico Dam even after the ESA was passed in 1973 (an implied repeal argument that was ultimately unsuccessful, but is outside the scope of this discussion).

Relying in part on expressio unius est exclusio alterius, the Court concluded that the Section 10 "hardship cases" were the express intent of Congress; and the exclusion of other situations meant Congress did not intend any further exemptions. If Congress had intended for Tellico Dam to be completed, the Endangered Species Act be damned (so to speak), they could have said so expressly. Indeed, Congress later explicitly authorized completion of the dam despite the ESA's provisions. This doesn't make what the Court did wrong; in fact, it validates it.