SUMMARY OF OPINIONS ISSUED DECEMBER 16-31, 2002

QUOTATIONS OF THE WEEK:

"The court may consider the fact that the legislators are not necessarily trained philologists."

EARL CRAWFORD, THE CONSTRUCTION OF STATUTES 318 (1940)

"Construction is unavoidable. Men who use words, even with the best intent and great care as well as skill, cannot foresee all possible complex cases, and if they could, they would be unable to provide for them, for each complex case would require its own provision and rule . . ."

FRANCIS LIEBER, LEGAL AND POLITICAL HERMENEUTICS 121 (1839)

CASE SUMMARIES:

D.C. Circuit

Southern Company Services v. FCC (D.C. Cir. Dec. 20, 2002) (Edwards)

Statutes/regulations construed: The Pole Attachments Act, under which “the owners of poles and conduits have an obligation to lease space to companies that wish to ‘attach’ cables or wires.” Under agency rules, “the maximum rate for any single attacher decreases as the total number of attaching entities grows.”

Conclusion: The court agreed with agency rule which meant that municipalities and utility owners themselves could be “attaching entities” and rejected argument that “the statute only allows telecommunications and cable companies to be counted as attaching entities.”

Statutory construction tool: Specific Term: “The FCC's decision to count utilities among 'attaching entities' is an eminently reasonable interpretation of the statute . . .Congress chose not to use a more specific term like ‘telecommunications carrier’ or ‘provider of telecommunications services,’ which would have evidenced an intent to distribute the unusable space costs more narrowly.”

Federal Circuit

Cook v. Principi (Fed. Cir. Dec. 20, 2002) (Schall)

Statutes/regulations construed: Statutes regarding finality of benefits decisions of the U.S. Department of Veterans Affairs.

Conclusion: The court overruled a judicially-created exception to the rule of finality applicable to agency decisions.

Statutory construction tool: Exceptions/Expressio: “Congress knew how to create exceptions to the finality of VA decisions, and it explicitly did so in two circumstances . . .Applying the familiar canon of expressio unius est exclusio alterius, we conclude that Congress did not intend to allow exceptions to the rule of finality in addition to the two that it expressly created . . . If additional exceptions to the rule of finality . . . are to be created, if is for Congress, not this court, to provide them. ”

Second Circuit

Stoltz v. Brattleboro Housing Authority (2d Cir. Dec. 20, 2002) (Parker)

Statutes/regulations construed: Provisions of the Bankruptcy Code: the antidiscrimination provision, which “provides that a governmental unit may not discriminate against a person with respect to certain grants solely because that person, has had a debt discharged under the Bankruptcy Act” and the executory contracts provision, which “requires a debtor to cure prepetition defaults as a precondition of assuming an executory contract.”

Conclusion: To the extent that the antidiscrimination provision and the executory contracts section conflicted, the antidiscrimination provision “should control on the basis of specificity.” Thus, the antidiscrimination provision protects debtor-tenants from eviction from public housing on the basis of nonpayment of discharged prepetition rent.

Statutory construction tools:
• General/specific: "It is a ‘basic principle of statutory construction that a specific statute . . . controls over a general provision,’ . . . Based on the text alone” neither provision had a “claim to greater speficifity,” but “[f]ocusing on the meaning of [the two sections] in the housing context, however, makes plain that [the antidiscrimination provision] is the more specific provision.”
• Dr. Seuss/conflicts: “We are therefore faced with a conflict between Bankruptcy Code sections . . .reminiscent of Dr. Seuss’s intractable North-Going and South-Going Zax. ‘And it happened that both of them came to a place. Where they bumped. There they stood. Foot to foot. Face to face.’” (quoting DR. SEUSS, THE SNEETCHES AND OTHER STORIES 26 (1961, renewed 1989)).

Fourth Circuit

United States v. Worrell (4th Cir. Dec. 17, 2002) (Traxler)

Statutes/regulations construed: Sentencing Guidelines sections that set a base offense level for “threatening communications” and provide further that "[i]f the offense involved any conduct evidencing an intent to carry out such threat," the sentencing court must "increase [the base offense level] by 6 levels."

Conclusion: District court may use prior conduct for purposes of the six-level enhancement as long as the prior conduct is "substantially and directly connected" to the offense.

Statutory construction tool: Sentencing Guidelines Manual: “‘[C]ommentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it . . . is inconsistent with, or a plainly erroneous reading of, that guideline.’ Perceiving no such inconsistency here, we conclude that Application Note 2 to § 2A6.1(b)(1) clarifies the meaning of the guideline . . .” (citation omitted).

Seventh Circuit

Krzalic v. Republic Title Co. (7th Cir. Dec. 26, 2002) (Posner—Easterbrook concurred in part and in the judgment)

Statutes/regulations construed: Real Estate Settlement Procedures Act.

Conclusion: Rejected policy statement by the Department of Housing and Urban Development regarding the Act. The court concluded that the Act was not violated where the closing agent in the purchase of a home charged $ 50 for recording the mortgage yet paid the county recorder only $ 36.

Statutory construction tools:
• Unreasonable result: "Usually when a statutory provision is clear on its face the court stops there, in order to preserve language as an effective medium of communication from legislatures to courts. If judges won't defer to clear statutory language, legislators will have difficulty imparting a stable meaning to the statutes they enact. But if the clear language, when read in the context of the statute as a whole or of the commercial or other real-world (as opposed to law-world or word-world) activity that the statute is regulating, points to an unreasonable result, courts do not consider themselves bound by ‘plain meaning,’ but have recourse to other interpretive tools in an effort to make sense of the statute. They do not want to insult the legislature by attributing absurdities to it." (citations omitted).
• Deference—precondition: “A precondition to deference under Chevron is a congressional delegation of administrative authority . . . . No such delegation regarding AWPA’s enforcement provisions is evident in the statute.”
• Deference—factors: “The more technical the issue is, the less guidance the statute provides to its correct resolution, the more sensible-seeming the agency’s decision, and the more deliberative and empirical the procedures employed in arriving at that decision, the greater the deference that a reviewing court will give it.”
• Deference—agency announcement: “If an agency is to assume the judicial prerogative of statutory interpretation that Chevron bestowed upon it, it must use, not necessarily formal adjudicative procedures or its closest nonadjudicative counterpart, which is notice and comment rule-making . . .but, still, something more formal, more deliberate, than a simple announcement . . .A simple announcement is too far removed from the process by which courts interpret statutes to earn deference. A simple announcement is all we have here. One fine day the policy statement simply appeared in the Federal Register. No public process preceded it -- or at least the part of it that concerns section 8(b), for the policy statement deals with other matters as well.” (citations omitted).

NOTE: Includes interesting discussions of Chevron by Posner, who wrote the opinion, and Easterbrook, who concurred in part and concurred in the judgment.


CALLED, BUT NOT CHOSEN:
United States v. Dinero Express (2d Cir. Dec. 19, 2002) (Under international money laundering statute, a "transfer" of funds "from a place in the United States to . . .a place outside the United States," as prohibited by the statute, is "a course of conduct that begins with a sum of money located in one country and ends with a related sum of money located in another county . . . This is true whether or not the particular transactional vehicle for effecting the 'transfer' is comprised of a single step or a series, and whether or not the funds move directly between an account in the United States and one abroad.")
United States v. McCoy (D.C. Cir. Dec. 20, 2002) (“Although the phrase ‘good cause’ [in a Federal Rule of Criminal Procedure] might suggest that the inquiry concerns only the grounds for the defaulting party's omission, in practice ‘good cause’ inquiries typically range more broadly, addressing (for instance) adverse effects--direct or systemic--on opposing parties or the judiciary.”)
Friedman v. Salomon/Smith Barney (2d Cir. Dec. 20, 2002) (agreeing with district court’s conclusion that the Securities Exchange Act of 1934 “allows price stabilization practices that the SEC does not prohibit” and rejecting plaintiffs’ argument that “the statute prohibits all price stabilization practices that the SEC does not specifically allow”)
Taylor v. Vermont Department of Education (2d Cir. Dec. 20, 2002) (whether a person is a “parent” within the meaning of the Individuals with Disabilities Education Act must be determined with reference to state law)
Jasper v. Bovina Music (2d Cir. Dec. 20, 2002) (disputed contract was a “writing” within the meaning of the Copyright Act)
Fashion Boutique v. Fendi USA (2d Cir. Dec. 23, 2002) (allegedly disparaging statements by salespersons at the Fendi Fifth Avenue store did not constitute “commercial advertising or promotion” within the meaning of the Lanham Act. The statute did not define the phrase, and the legislative history was not helpful. The court concluded that “the touchstone of whether a defendant’s actions may be considered ‘commercial advertising or promotion’ under the Lanham Act is that the contested representations are part of an organized campaign to penetrate the relevant market. Proof of widespread dissemination within the relevant industry is a normal concomitant of meeting this requirement. Thus, businesses harmed by isolated disparaging statements do not have redress under the Lanham Act; they must seek redress under state-law causes of action.”)
United States v. Simpson (2d Cir. Dec. 24, 2002) (holding that the rule of lenity applies to the Sentencing Guidelines)
Newport News Shipbuilding v. Director, Office of Workers’ Compensation Compensation Programs (4th Cir. Dec. 27, 2002) (under Longshore and Harbor Workers’ Compensation Act, “a disabled claimant should be entitled to demonstrate that, in appropriate circumstances, suitable alternative employment is reasonably unavailable due to his participation in an approved rehabilitation program.”)
Nwaokolo v. INS (7th Cir. Dec. 27, 2002) (Immigration statute entitled “Venue and forms,” which provides that a “petition for review shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings,” is a “venue and not a jurisdictional provision.”)
Steel Partners v. Bell Industries (2d Cir. Dec. 30, 2002) (Profit: Under “short swing” sale provision of Securities and Exchange Act of 1934, a dividend did not fall within the definition of “profit” and was not subject to disgorgement. The court reasoned that whether or not a “borderline transaction” falls within the parameters of the statute turns on “whether the transaction may serve as a vehicle for the evil which Congress sought to prevent – the realization of short-swing profits based upon access to inside information” and the court concluded that the party “had neither access to nor an opportunity to abuse material non-public information” and thus was not required to disgorge the dividend.)
United States v. Aska (2d Cir. Dec. 30, 2002) (under Sentencing Guidelines, “double counting” to increase criminal history points for “failing to surrender while failing to surrender” was not “impermissible double counting” based on “the unmistakable language of the Guidelines, . . .the Sentencing Commission’s statement in its response to FAQs . . . [and] the Guidelines’ explanation in [the Guidelines and commentary] that failure to report for sentence is to be treated as an escape from that sentence.”)
United States v. Kavoukian (2d Cir. Dec. 31, 2002) (federal statute barring the possession of firearms by a person who has previously been convicted of a misdemeanor crime of domestic violence does not require that “such a domestic relationship between the assailant and the victim be included as an element of the predicate state offense” and the rule of lenity was not applicable)
Global Relief Foundation v. O’Neill (7th Cir. Dec. 31, 2002) (“Interest”: Under the International Emergency Economic Powers Act, which applies to “any property in which any foreign country or a national thereof has any interest,” in construing the term “interest,” the court noted that the function of the statute “strongly suggests that beneficial rather than legal interests matter . . . Thus the focus must be on how assets could be controlled and used, not on bare legal ownership.”)

LAW REVIEW ARTICLE RECOMMENDATION: Hon. John M. Walker, Jr., Judicial Tendencies In Statutory Construction: Differing Views On The Role Of The Judge, 58 N.Y.U. Annual Survey of American Law 203 (2001) (I would like to thank Franco Castalone of “The Litigator” for suggesting this article)

ENGLISH COMMON-LAW TRIVIA QUESTION:
[Name of first person to answer correctly will be posted on this weblog. Please e-mail answers to statconzone@yahoo.com. Please note: there are several unanswered trivia questions on earlier posts, so feel free to check out the archives for October and November.]

Complete and translate the following sentence: "Quod Rex non debet esse sub homine, sed _________."

For extra credit, identify the source (hint: think 13th century) and one very famous time that it was used (hint: think 17th century).

Kudos to Brian Elliott, of Atlanta, Georgia, who gave the following correct answer, and got extra credit (answer in bold):

"Quod Rex non debet esse sub homine, sed sub Deo et Lege" (That the King should not be under man but under God and the law). Henry of Bracton

Famously - Sir Edward Coke, Lord Chief Justice of the Common Pleas, to King James I.

Bracton wrote the famous 13th century treatise “De Legibus et Consuetudinibus Angliae” (“On the Laws and Customs of England”), which the U.S. Supreme Court still cites on occasion (last time was 1999). See Alden v. Maine, 527 U.S. 706, 765 n.3 (1999) (Souter, J., dissenting) (describing Bracton as “the earliest source for the common-law immunity of the King”).

Justice Jackson described the Coke-King exchange in his concurrence in the Steel Seizure Case:

“We follow the judicial tradition instituted on a memorable Sunday in 1612, when King James took offense at the independence of his judges and, in rage, declared: ‘Then I am to be under the law -- which it is treason to affirm.’ Chief Justice Coke replied to his King: ‘Thus wrote Bracton, 'The King ought not to be under any man, but he is under God and the Law.'’” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 655 n.27 (1952) (Jackson, J., concurring).

For a depiction of this famous scene, see the bronze doors at the entrance of the U.S. Supreme Court (scroll down, right side, second panel from top). The Supreme Court's web site describes it as "England’s Lord Chief Justice Coke bars King James I from the 'King’s Court,' making the court, by law, independent of the executive branch of government."

(P.S. "Thank you"s of the week: to Res Judicata for calling this weblog “a fascinating new blawg” that is “a true gem in the blogosphere.” It also suggests "inclusion of 11th and 7th Circuit decisions” in this weblog. This suggestion is under consideration. Thanks to Supreme Court Blog for saying "Be sure to check out Statutory Construction Zone, a new blog dedicated to statutory construction in appellate decisions, including the Supreme Court," to The Virtual Chase for saying that this weblog “joins a growing list of useful law-related blogs,” and to the Stark County Law Library Association in Canton, Ohio, for noting "For those of you who enjoy statutory construction, I found a blawg that is just for you -- the Statutory Construction Zone." Thanks also to The Fourteenth Circuit, Unbillable Hours, and Legal Ramblings for listing this weblog. Thanks to Lex Communis, "the most respected blog in all of north-central Fresno County," for saying "Check out the Statutory Construction Zone, which seems to have a focus on cases pertaining to statutory interpretation. Statutory interpretation is certainly a profitable area to contemplate if you want to undermine your belief in the capacity of humans to achieve clarity in communication.")

SUMMARY OF OPINIONS ISSUED DECEMBER 1-15, 2002

QUOTATIONS OF THE WEEK:

“Statutory interpretation, then, is best understood as a matter of dialogue. It is a conversation between Congress and the courts. And the creativity required—and contemplated—in this exercise renders what many observers dismiss or ignore: one of the most lively areas of the Court’s work, affecting the lives and liberties of the American people.”

KENNETH W. STARR, FIRST AMONG EQUALS: THE SUPREME COURT IN AMERICAN LIFE 227 (2002)

“Among all civilized nations, we have always seen, formed by the side of the sanctuary of the laws, and under the controlling guidance of judicial and legislative wisdom, a fund of maxims, rules, and decisions of doctrine, which have been sifted by the constant practice, and the collision, consequent upon judicial debates. These rules and maxims have been incessantly increasing the store of wisdom and knowledge thus acquired, until they have become the supplement of legislation in the establishment of law, and are regarded as the highest attainment towards the perfection of human reason, in the exposition of law. The judicial power established to declare and apply the laws, needs, and is greatly aided, by such a fund of rules and maxims.”

FORTUNATUS DWARRIS, A GENERAL TREATISE ON STATUTES AND THEIR RULES OF CONSTRUCTION 121 (Platt Potter, J. ed., 1885)

CASE SUMMARIES:

Supreme Court

Sprietsma v. Mercury Marine (Dec. 3, 2002) (Stevens)

Statutes/regulations construed: Federal Boat Safety Act of 1971. That Act contained an express pre-emption clause that applied to "a [state or local] law or regulation."

Conclusion: State common-law tort action was not pre-empted by Federal Boat Safety Act or by the decision of the Coast Guard in 1990 not to promulgate a regulation requiring propeller guards on motorboats.

Statutory construction tools:
• Indefinite article: “We think that this language [of the express pre-emption clause] is most naturally read as not encompassing common-law claims for two reasons. First, the article ‘a’ before ‘law or regulation’ implies a discreteness -- which is embodied in statutes and regulations -- that is not present in the common law.”
• Noscitur a sociis: “Second, because ‘a word is known by the company it keeps,’ the terms ‘law’ and ‘regulation’ used together in the pre-emption clause indicate that Congress pre-empted only positive enactments. If ‘law’ were read broadly so as to include the common law, it might also be interpreted to include regulations, which would render the express reference to ‘regulation’ in the pre-emption clause superfluous.” (citation omitted)
• General/specific: “The saving clause is also relevant for an independent reason. The contrast between its general reference to ‘liability at common law’ and the more specific and detailed description of what is pre-empted by § 10 -- including the exception for state regulations addressing ‘uniquely hazardous conditions’ -- indicates that § 10 was drafted to pre-empt performance standards and equipment requirements imposed by statute or regulation.”
• Regulatory inaction: “We first consider, and reject, respondent's reliance on the Coast Guard's decision not to adopt a regulation requiring propeller guards on motorboats. It is quite wrong to view that decision as the functional equivalent of a regulation prohibiting all States and their political subdivisions from adopting such a regulation.”

United States v. Bean (Dec. 10, 2002) (Thomas)

Statutes/regulations construed: 18 U.S.C. § 925(c), which provides that “[a] person who is prohibited from possessing, shipping, transporting, or receiving firearms or ammunition may make application to the Secretary for relief from the disabilities imposed by Federal laws . . . Any person whose application for relief from disabilities is denied by the Secretary may file a petition with the United States district court for the district in which he resides for a judicial review of such denial.”

Conclusion: “Inaction by ATF does not amount to a ‘denial’ within the meaning of § 925(c). The text of § 925(c) and the procedure it lays out for seeking relief make clear that an actual decision by ATF on an application is a prerequisite for judicial review, and that mere inaction by ATF does not invest a district court with independent jurisdiction to act on an application.”

Statutory construction tools:
• Different words: While the Administrative Procedure Act draws a distinction between a “denial” and a “failure to act,” an applicant “may obtain judicial review under § 925(c) only if an application is denied.” In support of this, the Court quoted SUTHERLAND STATUTORY CONSTRUCTION for the proposition that “The use of different words within related statutes generally implies that different meanings were intended.”
• Statutory standard: “[B]oth parts of the standard for granting relief point to ATF as the primary decisionmaker. Whether an applicant is ‘likely to act in a manner dangerous to public safety’ presupposes an inquiry into that applicant's background -- a function best performed by the Executive, which, unlike courts, is institutionally equipped for conducting a neutral, wide-ranging investigation. Similarly, the ‘public interest’ standard calls for an inherently policy-based decision best left in the hands of an agency.”

D.C. Circuit

Norwest Bank Minnesota National Association v. FDIC (D.C. Cir. Dec. 10, 2002) (Randolph)

Statutes/regulations construed: The six-year statute of limitations under 28 U.S.C. § 2401(a), which is “a general, catchall provision for civil actions against the United States” and the five-year statute of limitations under 12 U.S.C. § 1817(g), which applies to an action for "the recovery of any amount paid to the [FDIC] in excess of the amount due to it."

Conclusion: The five-year statute of limitations applied and thus the complaint was filed after the expiration of the statute of limitations.

Statutory construction tool: Specific/general: “When both specific and general provisions cover the same subject, the specific provision will control, especially if applying the general provision would render the specific provision superfluous, as it would here.”

Idaho Power Company v. FERC (D.C. Cir. Dec. 13, 2002) (Edwards)

Statutes/regulations construed: “Right of first refusal provision” of pro forma tariff.

Conclusion: Agency interpretation of “right of first refusal” as precluding “a competitor from coming forward with a better offer than the incumbent's present deal” was arbitrary and capricious. The court stated that the agency’s interpretation “defies reason,” was “a nonsensical construction,” and that it would be “a great challenge indeed to devise a more backward interpretation of the tariff than that which FERC urges on the court.”

Statutory construction tool: Deference: “If the tariff's language is unambiguous, this court need not defer to FERC's interpretation. After all, ‘a court need not accept 'an agency interpretation that black means white. However, if the choice lies between dark grey and light grey, the conclusion of the agency . . .will have great weight.'’”

Federal Circuit

Liesegang v. Secretary of Veterans Affairs (Fed. Cir. Dec. 10, 2002) (Clevenger)

Statutes/regulations construed: Agent Orange Act, which was enacted in 1991 and indicates that relevant regulations “shall be effective on the date of issuance” and the Congressional Review Act (CRA), which was enacted in 1996 and provides that a “major rule” is to “take effect on the latest of" (1) 60 days from the date Congress receives the report or the date on which the rule is published in the Federal Register, or (2) "the date the rule would have otherwise taken effect . . ."

Conclusion: The CRA only affected “the operative date of the regulation, not its effective date.” Thus, the effective date of the regulation was the date of issuance and the court declined to adopt an earlier effective date as a consequence for noncompliance with a statutory timing provision.

Statutory construction tools:

• Implied repeals: “[A]s this court has previously recognized, ‘[r]epeals by implication are not favored and can only be justified when the earlier and later statutes are irreconcilable.’ . . . ‘[W]hen two statutes are capable of co-existence, it is the clear duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.’” (citations omitted).
• Undefined term: “When the statute does not define a term, as it is the case here, the agency and the reviewing court must give the undefined term its ordinary meaning.”
• Timing provisions: “It is well settled that ‘if a statute does not specify a consequence for noncompliance with statutory timing provisions, the federal courts will not in the ordinary course impose their own coercive sanction.’ . . . Although section 1116 in this case lays out certain statutory deadlines for the agency to follow, the statute does not provide any consequences for the agency's failure to comply with those timing requirements. In the absence of any consequences for noncompliance, those timing provisions are at best precatory rather than mandatory.” (citations omitted).
• Retroactivity: “In general, ‘congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result.’ . . . 'the standard for finding such unambiguous direction is a demanding one.'" (citation omitted).

Second Circuit

In re Maddigan (2d Cir. Dec. 10, 2002) (Sotomayor)

Statutes/regulations construed: Section of Bankruptcy Code defining an exception to the general grant of discharge for a debt “in the nature of . . . support.”

Conclusion: Legal fees imposed by family court during a custody proceeding were a debt “in the nature of . . . support.”

Statutory construction tool: Exceptions: “In order to promote the general goal of the Bankruptcy Code -- that of providing bankrupt debtors a fresh start -- the Supreme Court has cautioned that "exceptions to discharge 'should be confined to those plainly expressed.’’ Courts have held, however, that when due regard is given for the other policy priorities with which Congress was concerned in drafting the Bankruptcy Code, there is ample justification for construing certain statutory terms broadly, albeit within the confines of the narrow construction rule. We have clearly stated that among the concepts to be given broad interpretation is the meaning of ‘in the nature of support.’” (citations omitted).

Fourth Circuit

Flue-Cured Tobacco Cooperative Stabilization Corporation v. EPA (Dec. 11, 2002) (Widener)

Statutes/regulations construed: Radon Gas and Indoor Air Quality Research Act (Radon Act), which provides that it "shall not be construed to authorize the [EPA] to carry out any regulatory program or any activity other than research, development, and related reporting, information dissemination, and coordination activities."

Conclusion: EPA report that classified secondhand smoke as a known human carcinogen, which was issued pursuant to the Radon Act, was not final agency action because, inter alia, “the statute forbids that the EPA carry out any regulatory program or any activity other than research, development and related reporting, information dissemination, and coordination activities specified in the Title” and thus the report “carries no legally binding authority.”

Statutory construction tools:
• “Any”: The court defined “any” as “to any extent: in any degree: at all” and quoted a case that stated "More comprehensive terms cannot be found in the English language than the words ‘nothing,’ ‘any,’ and ‘every.’" The court quoted another case that stated "There are perhaps few words in the English language as unambiguous as the word ‘any.’ It is not ‘susceptible of two different and reasonable interpretations’."
• Congressionally-mandated action: “Congress has spoken on the EPA’s ability under the statute to create legal rights, obligations, or consequences. As a court charged with interpreting Congress’s intent, we are not at liberty to ignore Congress’s directive that the Report is not regulatory and Congress’s labeling of the Report as a research publication.”

CALLED, BUT NOT CHOSEN:
United States v. Tomasi (2d Cir. Dec. 3, 2002) (under U.S. Sentencing Guidelines, “an indefinite term of probation would be ‘a term of probation of at least one year’ if the sentencing court continued the probation for at least one year.")
Spearman v. Tom Wood Pontiac-GMC (7th Cir. Dec. 3, 2002) (Staff Commentary: The Federal Reserve Board’s official staff commentary to regulations implementing the Truth in Lending Act is “dispositive” unless “the commentary is demonstrably irrational.”)
Bechhoefer v. U.S. Department of Justice (2d Cir. Dec. 6, 2002) (a letter--which was sent by plaintiff to a branch office of the DEA and was not filed in a manner that would permit retrieval by an identifying name, number or symbol, but was merely left in a desk drawer--was not "contained in a system of records" within the meaning of the Privacy Act)
Capitol Indemnity Corporation v. Superior Management Services (4th Cir. Dec. 12, 2002) (under the facts of the case, the issuance of surety bonds did not constitute a “credit transaction” as defined under the Federal Equal Credit Opportunity Act and its Virginia analogue)
Freilich v. Upper Chesapeake Health (4th Cir. Dec. 13, 2002) (“[G]eneralized references to association with disabled persons or to advocacy for a group of disabled persons are not sufficient to state a claim for associational discrimination under” the Americans with Disabilities Act)
United States v. Chavin (7th Cir. Dec. 13, 2002) (under Sentencing Guidelines provision relating to tax evasion, which provide that “tax loss is the total amount of loss that was the object of the offense,” the court concluded that “the object of the offense” means that “the attempted or intended loss, rather than the actual loss to the government, is the proper basis of the tax-loss figure.”)

LAW REVIEW ARTICLE RECOMMENDATION: Adrian Vermeule, The Cycles of Statutory Interpretation, 68 U. Chicago L. Rev. 149 (2001).

ENGLISH COMMON-LAW TRIVIA QUESTION:
[Name of first person to answer correctly will be posted on this weblog. Please e-mail answers to statconzone@yahoo.com.]

What was the highest appellate court at common law (i.e. the equivalent of the U.S. Supreme Court)?

Answer: The House of Lords (first correct answer--Nancy Page, appellate attorney for the CFTC in Washington, DC). For more information on appeals at common law, read Blackstone's chapter "Of Proceedings, In the Nature of Appeals."

(P.S. "Thank you"s of the week: to Howard Bashman of "How Appealing," who was the first to add a link to "Statutory Construction Zone" to his blog; and to "Ernie the Attorney," who was the first to mention "Statutory Construction Zone" in a post on his blog--on December 12, 2002--saying that it "looks like a great site"; to Howard Bashman again for mentioning this blog in a post on December 13th; to JURIST for listing this blog in its "law blogs" section; to Votelaw for listing this blog; to "Inter Alia" for a December 14th post saying that this blog is "yet another terrific use of the weblog mechanism"; to "TalkLeft: the Politics of Crime" for a December 14th post calling this blog a “valuable addition to the legal blogosphere”; and to "Bag and Baggage"; and to Lawsites, which called this an "innovative blog").