Statutory interpretation and strategy

[Frank Cross]

Ok, it's a conlaw list, not one of statutory interpretation.  But the
Florida Supreme Court decision is not making it up as they go alone.  The
7-day "shall" deadline for certification was in the original law, passed in
1951, I think.  A 1989 amendment said that the Secy of State "may" accept
late counts in her discretion.  I think the only way to read the statute is
to say that the latter conditions the prior.  The 19-day deadline was "made
up" but this aspect of the decision is actually pro-Bush, as the
straightforward reading would be that there is no absolute deadline for
late submissions at all.  I'm not saying that a court couldn't have written
an opinion ruling for the Republicans, just that there is a very strong
argument for the Democrats on this particular issue.  As Greg Sisk notes,
close issues like this permit the court to exercise their preferences, at
least subconsciously.

I think the Republicans made a serious legal mistake here, relying on the
7-day deadline.  They should have relied the discretion of the Secy of
State.  And while they made that argument, the discretionary standards that
she put forward were all presented as legal interpretations, which are of
course readily reviewable by the court as erroneous.  She could, with
better lawyering, have put forth a bunch of criteria that look like
discretionary exercises of the executive power of the sort that are
boilerplate for federal agencies (e.g., using her judgment about the
limited resources of her office, the time available, the reliability of
various counting schemes, even the need for internal consistency of
procedures) and this would have been much harder for the court to reverse.



At 03:58 PM 11/22/2000 -0600, you wrote:
>My objection to the Florida Supreme Court's decision is not based on
>the purported partisanship of that court (although the lack of
>partisan diversity on that court lends itself perhaps that
>appearance).  Nor do I recall James Baker's comments -- reaction to
>which initiated this thread -- as making that point (if he did, then
>I think that would be unfortunate).  Thus, in my critique at least, I
>had not intended to argue that the Florida Supreme Court's decision
>is an example of the behavioral or social background model of judging
>in action (a model, subject to empirical testing, that background
>factors, including political party, influence judging).  To be sure,
>that is an important issue, and I have both conducted empirical
>research on the influence of such factors on judicial decision-making
>and published commentary on such studies arguing that, while there is
>indeed some evidence for the behavioral model (and for that matter,
>the attitudinal model), the influence of legal factors has been
>neglected in empirical research and there remains appeal, both
>aspirationally and experientially, in the legal or neutral model of
>judging.
>
>But I didn't make my comments from that perspective.  Rather, my
>objection is to the unfortunate and disturbing trend among many
>courts to "make it up as they go along" and ignore statutory mandates
>when they find it inconvenient.  The problem is not partisanship but
>judicial arrogance -- the "black robe" disease.  By my reading of the
>opinion, the Florida Supreme Court reached the conclusion that the
>one-week statutory deadline for certifying county votes was not a
>realistic or prudent one.  That point may have merit -- for
>legislators deciding upon a scheme.  But the Court instead
>substituted a new 19-day deadline for the statutory seven-day one.
>And they did so based merely upon their own policy (not necessarily
>partisan) preferences.  Thus, I don't think that the Florida justices
>(or at least not all of them) ruled as they did with the intent of
>giving the election to Al Gore.  They ruled as they did because they
>find statutory rules with which they disagree to be an inconvenience
>which can easily be set aside in favor of ad hoc (or here, post hoc)
>judicial creations.  That judicial behavior deserves condemnation,
>whatever the result may be in a particular case and whoever's ox is
>gored (pardon the pun).
>
>>What surprises me is that the traditional party of authority (which is not
>>to describe the Republican Party as "authoritarian") is increasingly
>>willing to attack a primary symbol of authority--the judiciary and "rule of
>>law"--and to adopt the kind of vulgar realist analysis that academic
>>Republicans (such as Charles Fried and others) have been quick to denounce
>>when engaged in by persons of the left.  The obvious fact is that the
>>Florida Supreme Court is not self-evidently more "partisan" than is the
>>current United States Supreme Court.  Either we accept the proposition that
>>judges are basically politicians in robes or we try to cling to a view that
>>they are really, in some perceptible sense, servants of the law.  My own
>>writing has been more the former, but, then, I've been criticized as a
>>"nihilist" (among other things).  But it now appears that the leading
>>proponent of (one form of) Critical Legal Studies is none other than James
>>Baker, who is teaching millions of Americans to have "contempt for courts"
>>(or is it only courts that include judges who were/are Democrats who write
>>decisions that the Bush people disagree with).  A final quote, from Stephen
>>A. Douglas:  "Mr. Lincoln cannot conscientiously submit, he thinks, to the
>>decision of a court composed of a majority of Democrats.  If he cannot, how
>>can he expect us to have confidence in a court composed of majority of
>>Republican, selected for the purpose of deciding against the Democrats and
>>in favor of the Republicans?"  I think that this remains an extremely
>>troubling question, and that the Bushies might reflect on it with regard to
>>the willingness of those of us who don't share their views to treat the
>>future decisions of an even more Republican Supreme Court with respect.
>--
>Gregory Sisk
>Richard M. & Anita Calkins
>   Distinguished Professor
>Drake University Law School
>2507 University Avenue
>Des Moines, Iowa  50311-4505
>515-271-4184
>greg.sisk at drake.edu
>
Frank Cross
Herbert D. Kelleher Centennial Professor of Business Law
CBA 5.202
University of Texas at Austin
Austin, TX 78712