On March 20th, the Supreme Court issued its
opinion in the case of Cyan, Inc. vs.
Beaver County Employees Retirement Fund, wherein it interpreted the
Securities Litigation Uniform Standards Act of 1998. [1] The
case presented two issues: (1) whether state courts have been stripped by the
Act of jurisdiction over class actions against companies which fail to make “full
and fair” disclosure when offering securities to the public, and (2) even if
state courts still have jurisdiction in such cases, whether the Act gives defendants
the option of removing those cases to federal court. The court answered “no” to
both questions.
But your humble servant does not intend to discuss
securities law in this post. Instead, he would like to talk about the oral
argument in this case that took place before the Court on November 28th
of last year as described by Ronald Mann, who writes for SCOTUSblog [2],
regarding which he wrote that the “key word” in the argument “was ‘gibberish’ –
the characterization by several of the justices of the text Congress provided
in the Securities Litigation Uniform Standards Act of 1998. The argument
revealed the justices’ frustration at the statute’s sloppy craftsmanship.”
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| The U.S. Supreme Court |
Justice Samuel Alito expressed his dismay this way:
“Our late colleague [Antonin Scalia] wrote a book called
Reading Law, which provides guidance about how you read statutes. And I looked
through that to see what we are supposed to do when Congress writes gibberish.
And that’s what we have here. You said it’s obtuse. That’s flattering. And we
have very smart lawyers here who have come up with creative interpretations,
but this is gibberish. It’s … just gibberish.”
Justice Neil Gorsuch shared that perspective, describing the
legislation as “’gibberish all the way down here.’” For his part, Justice Alito
wondered if the Court could really do anything with the legislation. As Ronald
Mann wrote,
“For Alito, the drafting went far beyond the normal range of
ambiguity or lack of clarity. Indeed, he suggested at one point that the
statute in this case was so poorly crafted as to make the judicial task
impossible: ‘I mean, all the readings that everybody has given to all of these
provisions are a stretch. I’m serious. Is there a certain point at which we say
this means nothing, we can’t figure out what it means, and, therefore, it has
no effect, it means nothing?’”
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| James Madison |
These sentiments might be behind the Court’s opinion that
was issued this week. Ronald Mann man says that “a plain-language summary of
this opinion would simply state that ‘if Congress wants to make any important
changes to litigation of federal-law securities cases in state courts, it is
going to have to be a lot more specific than it has been to date.’” [3]
But, really, this is a problem that extends beyond this case
and the legislation at hand. Legislation on both the state and federal level is
too often obscured by legislative drafting. Constant referring back to other
legislation makes reading statutes an exercise in puzzle solving. The
complexity of the language used too often makes a statute susceptible of more
than one interpretation. The length of bills is often such that it is evident
that legislators are voting on laws that they have never read.
A good example of this last problem is the Affordable Care
Act, which turns out to be full of surprises; this, even though the aspects of
the legislation that people really cared about—e.g., the subsidies, guaranteed
issue, and community rating—could have been dealt with in about five pages. And
the entire Act was drafted with apparently little or no regard for whether any
of it would pass constitutional muster. The Supreme Court struck down the
Medicaid expansion, and there were sound arguments for tossing the entirety of
the legislation. That it was upheld at all was transparently a political act
rather than a strictly legal decision. And that is how Congress elected to deal
with America’s health coverage crisis!
In Federalist No. 62,
James Madison pointed out, “It will be of little avail to the people, that the
laws are made by men of their own choice, if the laws be so voluminous that
they cannot be read, or so incoherent that they cannot be understood….” [4]
And Sir William Blackstone described the law, in part, as “’a rule prescribed.’
Because a bare resolution, confined in the breast of the legislator, without
manifesting itself by some external sign, can never be properly a law. It is
requisite that this resolution be notified to the people who are to obey it….
not like Caligula, who (according to Dio Cassius) wrote his laws in a very
small character, and hung them up upon high pillars, the more effectually to
ensnare the people.” [5]
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| Sir William Blackstone |
Perhaps it is not far off to describe much of our own law as
no law at all, as Caligulan in its volume and incoherence as it is. Not only is
a great deal of our law out of reach of the comprehension of the average person,
even the justices of the highest Court in the land have difficulty with it. How
much difference between this and placing the law in small characters on high
pillars?
Something should be done, clearly. But your humble servant
must concede that the only remedy he can conceive of has the aura of the
preposterous around it, though that view may only be a symptom of an ingrained
aversion to the new and unusual. That remedy is to require every sponsor of a
bill to write his or her proposed legislation completely by hand, and then read
the entirety aloud on the floor of the legislature. Whatever could be said
against this idea, it would ensure that at least one member of the legislature
had read the legislation they are voting on.
But there may be other ideas.
