Do American criminal laws apply to conduct abroad?

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." This is known as the Extraterritoriality Canon. A statute presumptively has no extraterritorial application (statuta suo clauduntur territorio, nec ultra territorium disponunt, p. 268 of Justice Scalia and Bryan Garner's Reading Law: The Interpretation of Legal Texts).

I previously wrote about this canon here and here.

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.

Morrison was about civil laws--but what about criminal violations? Late last month, the Second Circuit ruled that he presumption against extraterritoriality applies:

Section 10(b) and its implementing regulation, Rule 10b-5 [of the Securities Exchange Act of 1934], do not apply to extraterritorial conduct, regardless of whether liability is sought criminally or civilly. Accordingly, a defendant may be convicted of securities fraud under Section 10(b) and Rule 10b-5 only if he has engaged in fraud in connection with (1) a security listed on a U.S. exchange, or (2) a security purchased or sold in the United States.

For more on this case, see here.

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.

Fixing a statute: when the legislature fails

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 about whether fixing a statute was the role of judges or the legislature. I used the example of a Maryland statute enacted last year to provide licensing for moped drivers:

Judges in Anne Arundel County were faced with cases where police had stopped drivers on scooters who had licenses (or permits), but those licenses or permits had been suspended.

How should a judge decide the case? The text of the statute requires a driver's license or a moped operator's permit. The text does not say anything about the license or permit being valid. So what about a suspended license or permit?  If the intent of the legislature was to require a valid license or permit, that intent was not made explicit in the text of the statute.

As a result, this statute appears to be problematic. Whose job is it to fix it? Judges, or the legislature?

The legislature tried; House Bill 3 was introduced to ensure that only valid licenses were acceptable. However, on March 11, the bill received an unfavorable report and didn't make it out of committee (there isn't anything in the legislative record that indicates why). The legislature will have to try again next term. In the meantime, judges will continue to encounter moped drivers with suspended licenses and try to figure out what to do.

To repeal, or not to repeal: How clear must you be?

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.

33. Presumption Against Implied Repeal. Repeals by implication are disfavored--"very much disfavored." But a provision that flatly contradicts an earlier-enacted provision repeals it  The expression of one thing implies the exclusion of others (p. 327).

Scalia and Garner open with a quote from Justice Thomas's opinion in J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int'l, Inc., 534 U.S. 124, 142 (2001):

The rarity with which [the Court has] discovered implied repeals is due to the relatively stringent standard for such findings, namely, that there be an irreconcilable conflict between the two federal statutes at issue.

Statutes should be repealed explicitly, but when it is clear that they conflict, the later repeals the former implicitly.

Without citing this canon, a recent Supreme Court decision demonstrated an example of a statutory repeal. In Levin, the case involved the interplay between the Federal Tort Claims Act (enacted in 1946) and the Gonzalez Act (enacted in 1976). As I wrote in my blog post:

...The Federal Tort Claims Act waives the government's sovereign immunity in certain circumstances, primarily when someone acting in their capacity on behalf of the United States causes damage. However, certain torts, such as battery, are exempted from this waiver. So under the FTCA, someone cannot sue the government for battery by someone acting on behalf of the United States. On the other hand, The Gonzalez Act provides that this particular exemption doesn't apply to "any cause of action arising out of a negligent or wrongful act or omission in the performance of medical...functions." The question in this case was whether Levin's lawsuit could be brought against the United States for battery by his military doctor acting within the scope of his employment. In a unanimous decision, the Supreme Court ruled that the Gonzalez Act effectively repealed the exemption in the FTCA for these particular circumstances. As a result, Levin's claim can go forward...

The relevant portion of the Gonzalez Act reads as follows (emphasis is mine):

(e) For purposes of this section, the provisions of section 2680 (h) of title 28 [the FTCA] shall not apply to any cause of action arising out of a negligent or wrongful act or omission in the performance of medical, dental, or related health care functions (including clinical studies and investigations).

The Court found that this was an easy choice (emphasis is mine):

Section §1089(e)’s operative clause states, in no uncertain terms, that the intentional tort exception to the FTCA, §2680(h), “shall not apply...”

Justice Ginsburg concludes the Supreme Court's opinion as follows:

For the reasons stated, we hold that the Gonzalez Act direction in 10 U. S. C. §1089(e) abrogates the FTCA’s intentional tort exception...

It's at least somewhat interesting that the Court doesn't explicitly use the word repeal, but that's what abrogate means.

The last question is whether this is an implicit repeal, or an explicit (or express) repeal:

The phrase is hereby repealed is not necessary. Any language expressly stating that the prior provision is no longer operative will suffice--for example, a statement that a certain provision "is amended to read as follows," or a statement that a certain disposition is "adopted in lieu of" a prior statutory disposition. (p. 332-33)

Given the Court's certainty about the Gonzalez Act provision ("The choice between these alternative readings of §1089(e) is not difficult to make..."), I'd lean toward considering this an explicit repeal.

Fixing a statute: judges or legislature?

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.

Last year, the Maryland legislature made changes to state law that required registration, helmets and insurance for mopeds and their drivers. The licensing requirement is set out in Md. TRANSPORTATION Code Ann. § 16-101(b), which provides that:

[e]ach individual operating on any highway in this State a moped, as defined in § 11-134.1 of this article or a motor scooter, as defined in § 11-134.5 of this article, shall have with the individual:
   (1) A driver's license issued to the individual under this title, which license may be of any class issued by the Administration;
   (2) If the individual is a nonresident of this State, a license to drive issued to the individual by the state or country of the individual's residence, which license may be for any class of vehicle; or
   (3) A moped operator's permit issued to the individual under this subtitle.

Judges in Anne Arundel County were faced with cases where police had stopped drivers on scooters who had licenses (or permits), but those licenses or permits had been suspended.

How should a judge decide the case? The text of the statute requires a driver's license or a moped operator's permit. The text does not say anything about the license or permit being valid. So what about a suspended license or permit?  If the intent of the legislature was to require a valid license or permit, that intent was not made explicit in the text of the statute.

As a result, this statute appears to be problematic. Whose job is it to fix it? Judges, or the legislature?

On one hand, a judge might say: clearly, the purpose of this statute is to limit the driving of mopeds to those with valid licenses or permits. Those people on a suspended license can't drive a car, so why should they be allowed to drive a moped (or anything else)? By this method, the judge would effectively be reading the statute as requiring a valid license or permit, even though the word valid isn't in the text itself. This is a problem: 58. The false notion that the spirit of a statute should prevail over its letter, p. 341.

Additionally, when a statute isn't clear about the situations to which it applies (does it require a valid license, or just a license, even if it is suspended?), the rule of lenity may be considered. 49. Rule of Lenity. Ambiguity in a statute defining a crime or imposing a penalty should be resolved in the defendant's favor (p. 296).

At least in some cases, judges have dismissed cases involving such drivers because they had licenses or permits, albeit suspended, because the statute's text does not require validity of the license or permit. By this method, judges are simply interpreting the text without trying to import the intent of the legislator (as if that were even possible). In other words, if the statute is a problem, legislators ought to take note and change the law. Do not rely on the courts to fix it.

That appears to be precisely what legislators in Maryland want to do. House Bill 3 would change the text of § 16-101(b) to read (additions in BOLD CAPS):

[e]ach individual operating on any highway in this State a moped, as defined in § 11-134.1 of this article or a motor scooter, as defined in § 11-134.5 of this article, shall have with the individual:
   (1) A VALID driver's license issued to the individual under this title, which license may be of any class issued by the Administration;
   (2) If the individual is a nonresident of this State, a VALID DRIVER'S license to drive issued to the individual by the state or country of the individual's residence, which license may be for any class of vehicle; or
   (3) A VALID moped operator's permit issued to the individual under this subtitle.

Having the legislature "fix" the law is preferable to judges reading a non-textual purpose into the law because it encourages the legislature to write better laws in the future. If  judges do read non-textual purposes into the law, legislatures will become lazy knowing that the courts will "fix" their problems. This is a problem--the legislature did not vote (and the Governor did not sign) on "intent" or "purpose," but only on the text as it is currently written (67. The false notion that the purpose of interpretation is to discover intent, p. 391).

A final, related issue is one contained within the article cited above:

[Cycle World owner] Riehl doesn’t support changing the [moped] law, saying a change that took effect Oct. 1 left him with a warehouse full of scooters. That law, sponsored by [Delegate] Beidle, requires operators of scooters to register their vehicles with the state and insure them. “(In 2011) we sold 25 between November and January for the holiday season,” he said. “You know what we sold since October? Zero.”

In other words, the moped licensing law is bad for business. Is there any role for the legislature in disposing of "bad" (but otherwise valid) laws? No. In his dissent in Griswold v. Connecticut, Justice Stewart wrote that Connecticut's contraceptives law was "uncommonly silly," yet it did not violate the Constitution. Justice Thomas echoed Justice Stewart's concerns in Lawrence v. Texas. The courts may be sympathetic to bad laws, but this is not a reason to dispose of them.

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.

When is a railway siding considered an area?

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.

32. Ejusdem Generis canon. 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 (ejusdem generis, Latin for "of the same kind," p. 199).

Section 4 of the Vagrancy Act 1824 (see also here) provided that any person found in "any dwelling-house, warehouse, coach-house, stable or outhouse, or in any enclosed yard, garden or area" for unlawful purposes were to be considered "rogues and vagabonds." The question here was how to determine what was meant by the word "area" as it applied to railway sidings.

In yesterday's post, we learned that when a definition is not provided, the courts should provide the ordinary meaning, often by looking to dictionaries contemporary to the time the statute was written. Do we need to consult the dictionary here? More specifically, do we need to examine an early 19th century English dictionary?

It turns out that we don't have to (which is good for us; even contemporary definitions of area are so vague as to mean almost anywhere). By using the ordinary meaning of area, such as "a level piece of ground," or "a particular extent of space or surface or one serving a special function...as...a geographic region," we could extend this law to cover just about everywhere.

So how do we know when to pass by the ordinary meaning and find something different? The key here is the context in which area is used. In the context of "...any enclosed yard, garden or area," area is a general word that follows the enumeration of two things; area only applies to the things of the same class as enclosed yard or garden. Thus, ejusdem generis applies and the ordinary meaning of area is limited by the context of the words before it. Here, area was limited to the spaces in the immediate vicinity of yards and gardens. As a result, railway sidings were not areas in the context of the Vagrancy Act. Knott v. Blackburn (1944 K.B. 77).

The interpretation principle, or, when is a taco considered a sandwich?

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 recently received Justice Antonin Scalia and Bryan Garner's Reading Law: The Interpretation of Legal Texts. The book is about textualism, and identifies 70 principles, canons of construction, and falsities regarding statutory interpretation.

As a part of reading and reviewing the book, I'm planning to write a series of blog posts covering at least some of the more common canons to include a brief explanation and some examples. Hopefully the process will allow me (and you) to better understand how judges interpret the law. In some cases I'll use the examples that Scalia and Garner did; when circumstances permit, I'll use examples I found on my own. To begin, we'll start with one of the most fundamental principles, which on one hand might seem obvious, but on the other hand, requires a little bit of understanding.

1. Interpretation Principle: Every application of a text to particular circumstances entails interpretation (p. 53). This is best described by Frederick Pollock, as quoted by Scalia and Garner:

Given a rule of law that [those] conditions generically described as A produce a certain legal liability or other consequence X, does the specific fact or group of facts n fall within the genus A?

Law students will recognize this as a form of IRAC: Issue, Rule of law, Application, Conclusion.

Panera Bread signed a lease with a shopping mall that included a clause that prohibited the mall from leasing  space to other restaurants that sold "sandwiches." The mall later leased space to Qdoba, who sold  burritos, tacos, and quesadillas. The question here is whether the shopping mall violated the lease, and turned on the meaning of "sandwich" which was not defined in the lease.

Here's what the court said:

Given that the term "sandwiches" is not ambiguous and the Lease does not provide a definition of it, this court applies the ordinary meaning of the word. 3 New Webster Third International Dictionary describes a "sandwich" as "two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them." Merriam-Webster, 2002. Under this definition and as dictated by common sense, this court finds that the term "sandwich" is not commonly understood to include burritos, tacos, and quesadillas, which are typically made with a single tortilla and stuffed with a choice filling of meat, rice, and beans. As such, there is no viable legal basis for barring [the mall] from leasing to [Qdoba].

White City Shopping Ctr., LP v. PR Rests., LLC, 2006 Mass. Super. LEXIS 544, at *8 (2006). The key principle here is that when a definition is not provided, courts should provide the ordinary meaning. Typically, the courts will look to dictionaries (and often, dictionaries that are contemporary to when the text was written).

You might wonder: Is it fair that Panera Bread can contract with a mall to exclude other restaurants from selling sandwiches? To a textualist, whether or not it is fair is not part of the equation in deciding the legal issue. The case hinges on the ordinary meaning of sandwich, period.

What do you think? Do you consider burritos, tacos, or quesadillas to be sandwiches?