Thursday, March 22, 2018

The Law on High Pillars

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.”

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?’”

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]

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.