Holloway/Personal Experience as a Guide to Statutory Interpre ...

[Patrick J. Schiltz]

By the way, the incident to which Justice Scalia refers *was* well
publicized.  Justice Scalia is referring to the 1994 murder of John Luttig,
the father of Judge J. Michael Luttig.  Not only was the murder well
publicized at the time, and well publicized again when the murderer was
tried, convicted, and sentenced to death, but it was well publicized last
year when Judge Luttig refused to recuse himself in a case involving a
similar crime.

Pat Schiltz
Notre Dame


At 09:45 PM 3/2/99 -0800, you wrote:
>        OK, here's the paragraph:
>
>                        Is it implausible that Congress intended to
>define such a narrow federal crime?  Not at all.  The era when this
>statute was passed contained well publicized instances of not only
>carjackings, and not only carjackings involving violence or the threat
>of violence (as of course most of them do); but also of carjackings in
>which the perpetrators senselessly harmed the car owners when that was
>entirely unnecessary to the crime.  I have a friend whose father was
>killed, and whose mother was nearly killed, in just such an
>incident--after the car had already been handed over.  It is not at all
>implausible that Congress should direct its attention to this
>particularly savage sort of carjacking--where killing the driver is part
>of the intended crime.
>
>        *If* Scalia is really claiming that "I have a friend whose
>father was killed" is evidence that "the era contained well publicized
>instances," then of course this is blatantly illogical, simply because
>(unless he's not telling us something) the killing isn't a
>well-publicized incident.  But the very fact that B doesn't really link
>up to A suggests to me that Scalia, a pretty smart guy, *isn't* claiming
>that the friend whose father was killed is evidence of well-publicized
>instances.  Rather, it seems to me that he's saying:
>
>        1.  There were well-publicized incidents, and I don't even feel
>the need to cite to particular ones, because this is a pretty well-known
>point that most readers will be familiar with.  (After all, this isn't a
>law review article!)
>
>        2.  As a concrete illustration of an incident of "senselessly
>harm[ing] the car owners when that was entirely unnecessary to the

>crime" -- which on its own is a fairly abstract phrase -- let me mention
>a particular incident I myself am familiar.  Obviously, this one
>incident isn't proof of anything, but it's a useful way of making the
>point concrete.
>
>        Seems to me to be not just a charitable, but a plausible
>interpretation.
>
>        As to what Congress might have plausibly enacted, that's a very
>different question; but I'd say that the answer is indeed yes.

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Patrick J. Schiltz
Associate Professor of Law
Notre Dame Law School
Notre Dame, IN 46556

Phone: (219) 631-8654
Fax: (219) 631-4197
E-Mail: schiltz.2 at nd.edu
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