Patterico's Pontifications


On The Good Professor’s Errors

Filed under: Constitutional Law,Court Decisions,Judiciary,Law — Angry Clam @ 8:44 pm

[Posted by The Angry Clam]

Professor Bainbridge has been the subject of several disagreements with Patterico, my host here. I figured that now would be as good a time as any to pile on him, because, in recent days, he’s made two errors, involving two different kinds of judgment.

Issue One: Statutory Interpretation or Judicial Tyranny?

The first is his insistence in this post that the trial judge should have disregarded the letter of the law (in this case, a sex offender registration statute) in order “to avoid the absurdity,” in the eyes of the judge.

The Professor characterizes this as an exercise of “basic statutory construction.” For those of you who don’t know, statutory interpretation doctrines, sometimes referred to as the “canons of statutory interpretation,” have developed organically in the common law, and lay down a series of prescriptions, such as “eiusdem generis,” which instructs that hen a general word or phrase follows a list of specific ones, the general word will be interpreted to include only things of the same type as listed.

The problem is that even the most settled and noncontroversial canons are problematic. Various scholars (and judges, such as Alex Kozinski, in his article “Should Reading Legislative History Be an Impeachable Offense?” 31 Suffolk U. L. Rev. 807 (1998)) have attacked them as self-contradictory and imposing no real restraint upon the judges called upon to examine statutes.

What’s worse, Professor Bainbridge doesn’t rely upon one of these non-controversial ones, but rather one introduced in Holy Trinity Church v. United States. This case purports to be about discovering “legislative intent” behind the enactment of a statute. However, as Justice Scalia rightly notes in his book A Matter of Interpretation, legislative intent is simply “a handy cover for judicial intent.”

Allow me to explain. The law at issue in that case made it a crime to encourage aliens to immigrate to the United States through job contracts signed prior to the actual migration of the immigrant. Think of it as the polar opposite to the modern H1-B visa. The church, however, had contracted with an Englishman to be it’s minister, and was fined by the United States. The Supreme Court reversed the fine, and, despite acknowledging that the church’s act fell within the language of the statute, proceeded to hold that the statute cannot apply to the minister, because the U.S. is a Christian nation and, as such, it would be absurd to think that Congress intended such a result. Lovely.

This case provides a good illustration of the observation that “hard cases make bad law.” Yes, it sucks for the man discussed in Bainbridge’s post, but that does not mean that the judge should assume on the role as archon of society, imposing whatever he alone thinks is just, without regard for the laws duly enacted by the legislature.

There are broader jurisprudential currents at work. Professor Bainbridge’s urging is simply a milder form of Alberto Gonzales’ haughty statement that “the Constitution is what the Supreme Court says it is.” On the other side are Justices like Scalia, who noted in his own discussion of the case, “[t]he text is the law, and it is the text that must be observed.” Such a belief in adherence to the statutory text, regardless of outcome, is why Justice Thomas (joined by Justice Scalia) voted in favor of stricter gun control this last term. The case was Small v. United States, and involved facts somewhat similar to those of Professor Bainbridge’s sympathetic criminal.

This rigid adherence to statutory text (absent, of course, conflicting Constitutional provisions) is why we must hold President Bush to his word, and demand that all future nominees to the Supreme Court be in the mold of Justices Scalia and Thomas, and not more judicial supremacists like O’Connor was, and Gonzales appears to be.

For those interested in an overview of the muddled law in this field, and a suggested solution to the problem, I’d take a look at Restatement (First) of Statutory Interpretation by Gary O’Connor, which is (apparently, since the journal is missing the issue it was supposed to appear in… this is why minor journals are far inferior to the Law Review) forthcoming in the NYU Journal of Legislation & Public Policy.

For the record, I’m partial to O’Connor’s first suggestion: that Congress enact Federal Rules of Statutory Interpretation, as it has enacted evidentiary and procedural rules. This would place Congress back in control of its own statutes, both textually and interpretationally.

Issue Two: If You Thought Dell Quality Control Was Bad…

Professor Bainbridge’s second major lapse of judgment came about as a result of his complaints about the shoddy customer service he received from Dell Computers. He wonders why this is, and I would simply like to observe that computers, even laptops, have become little more than commodities these days, whose repair costs often exceed their replacement cost. Given such circumstances, why should a company invest in customer service? Most consumers will simply purchase a replacement.

Anyway, so what did the Professor do? He purchased a Sony Vaio laptop. That is sheer insanity for anyone that’s looking for better reliablity and service than a Dell. Sony Vaios, while very, very nice computers while they’re working (I own one myself, an older model R505), are pieces of junk with a horrible repair record. It’s not a matter of if but when that sucker will break, and the answer is usually “within the first year and a half.” There’s a reason that Sony, for a long time, only offered a 90 day warranty, while even most low-end computer manufacturers provide a one year warranty.

Sony Vaio: The Alfa Romeo of Computers. They look good, but boy do they fall apart.

Bonus Issue: Wine Snobbery!

As a final aside, I would like to note that the Professor’s Wine Notes blog cannot be taken seriously in any respect. How do I know this? The man uses Spiegelau wine glasses for chrissakes! Everyone knows that the only truly acceptable crystal is the product of Riedel.

(yes, this last one was a joke, and not only because Riedel owns Spiegelau)

3 Responses to “On The Good Professor’s Errors”

  1. Regarding issue 1, if this is a recent decision by the Appellate Court of Illiniois, why isn’t it liste at

    Don Singleton (71b93f)

  2. Man grabs girl’s arm – now he’s a sex offender

    My question is, if this is a recent decision by the Appellate Court of Illiniois, why isn’t it listed at

    Don Singleton (59ce3a)

  3. I don’t know how “recent” it is, but from looking at the Illinois court opinions, there seems to be about a two week lag between decision and posting.

    Additionally, I’m unfamiliar with how the intermediate appellate courts in Illinois work, but it is possible that not all their decisions are published, or even result in a written opinion. If so, then perhaps we shall never see it on that site.

    Angry Clam (f05866)

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