Interpreting, accurately, what isn’t there — the Redactor’s Dilemma

Any lawyer knows that “non-facts” — what people don’t do, things that don’t happen, words that aren’t said — are as telling as what we typically think of as “facts.” Julian Sanchez, in a post entitled The Redactor’s Dilemma, gives a brilliant demonstration of this truth. Sanchez has been “poring over the FOIA documents on cell phone lojacking obtained by the ACLU.” Like many stacks of documents lawyers are accustomed to examining, the ones Sanchez examined are heavily redacted. As he explains:

[O]ver time, you start developing little heuristics for trying to put the puzzle pieces together, to at least limit the domain of what might be in those black boxes. What can context tell you? What can you infer from the length of the redacted material? Looking at these sets of documents, I think I may have picked up on an interesting variation on Mike Masnick’s “Streisand Effect”—that now-familiar phenomenon where efforts to suppress information end up drawing all the more attention to it.

It was pretty easy for Sanchez to figure out that one of the redactions was the statutory definition of “basic subscriber information” found in the U.S. Code, and his first reaction was to wonder [w]hat sort of jackass . . . had concluded that the contents of American public laws were some kind of operational secret?” But then, of course, he realized “the investigative technique [the redactors were] taking pains to conceal . . . involved exploiting that part of the statute in some crucial way.” The post is worth reading in its entirety for the truth it uncovers: prosecutors are seeking cell tower information from telcoms, rather than GPS info, because doing so requiring the prosecutors to satisfy a lower legal standard and they can easily get enough from that information to determine where a person is.

But what I find most interesting is what Sanchez calls the Redactor’s Dilemma — the huge risk that redactions themselves will reveal to informed readers what it is that’s been redacted:

Imagine you’re given the task of censoring documents like these for public release. There are some bits that you just obviously cut out—whole paragraphs describing operational details that, for good reasons or bad, you want to keep secret. But that won’t be quite enough. Because you’re probably going to have folks reading the documents who know a little something about the law, a little something about the relevant technology, and a little something about surveillance tactics generally. Folks who might piece together one of those facts you’ve excised, not from an explicit statement, but from individually innocuous clues that would nevertheless reveal something if an attentive reader pus them together in the right way.

This is where the dilemma arises. Because if anyone does happen to determine, by other means, what lies behind one or two of those black boxes, you’ve actually given them a much bigger clue. You’ve pointed them to the precise facts that, assembled in the proper order and with the right background knowledge, hint at what you were trying to hide—facts they might otherwise skimmed over without a second glance. But it’s worse than that, even. Because the facts really are more or less innocuous in isolation, a lot of that information won’t be secret per se. The choice of just which lines to redact involves a fair amount of imaginative guesswork—which bits might a reader combine in a chain of inference? That means if similar documents are being censored by different redactors, you’re apt to get the worst of both worlds—many pieces of the puzzle left exposed in one document or another, sufficiently parallel in structure to make them mutually completing, with the potential significance of each one highlighted by its absence from the others.

How does legal innovation occur? Slowly, by looking to the laws of other countries, and by disguising innovation as interpretation.

In “Inventing Invention: A Case Study of Legal Innovation,” Professor John F. Duffy recognizes that change and evolution in law are taken for granted but rarely studied in depth: “Legal change is treated as if it is something that just happens-that follows inexorably from the emergence of social needs and changed social conditions.” Duffy’s article is an antidote to these truisms, studying in depth the development of the requirement that in order to be patentable an invention must be “non-obvious.”  Duffy identifies in the development of this major legal innovation several characteristics he believes could be generalized to a lot of legal innovation:

(1) “Nation-states do not seem to create new legal conceptions independently nearly as frequently as they borrow them from other nation-states.”

(2) “Nations with similar legal cultures and industrial capabilities, such as the United States and England, sometimes maintain significant differences in their law for periods of decades. The speed of convergence on a single ‘common’ law seems extraordinarily slow.” This deliberate pace seems to be the product of a wait and see attitude: “because [one country does] not know whether the innovation is a pathbreaking and salutary development, like obviousness, or a disastrous experiment that will eventually be discarded,” it will wait and see the results.

(3) Courts are wary of the criticism often directed at them for “making policy” rather than merely applying existing law. As Chief Justice John Roberts puts it, his role is merely to be an umpire, not to determine what is a ball and what is a strike. Of course, Roberts ignores the fact that a strike zone is rather well defined, whereas law is full of open-ended standards (the requirement of “due process,” for example), gaps that do not fit cases that courts must decide, and outright ambiguities. But, as Duffy points out, the attitude Roberts exemplifies forces courts to engage in innovation under the guise of mere intepretation: “even when courts are trying to change the law, they often deny that they are doing so by creating clever reconstructions of the language that previously defined the relevant doctrine.”

Liberally construing potato chips.

Britain’s Supreme Court of Judicature has concluded that Proctor & Gamble owes $160 million in taxes becase Pringles are either “potato chips” or “similar products made from the potato, or from potato flour.” The court reached its conclusion because its “overall impression” of Pringles was that they are sufficiently similar to potato chips to be considered a “similar product.”  As the New York Times explains.

Conservatives like to insist that their judges are strict constructionists, giving the Constitution and statutes their precise meaning and no more, while judges like Ms. Sotomayor are activists. But there is no magic right way to interpret terms like “free speech” or “due process” – or potato chip. Nor is either ideological camp wholly strict or wholly activist. Liberal judges tend to be expansive about things like equal protection, while conservatives read more into ones like “the right to bear arms.”

Again, let’s give more attention to individual justice and less devotion to abstract rules

The hope for the Obama administration I expressed in my post last Thursday was that it would promote a legal culture in which courts would begin to pay more attention to the justice required in individual cases rather than, as has been increasingly true over the last thirty years, feel increasingly bound to abstract interpretations of language that lead to plainly unjust results. My focus in that post was on statutory interpretation, but the same sentiment applies to the interpretation of contract language, as Ralph James Mooney made clear in The New Conceptualism in Contract Law, 74 Or. L.Rev. 1131, 1170-1171 (1995). Mooney also noted, as I implied in last Thursday’s post, that the new focus on abstract rules and language at the expense of just results in individual cases invariably favors moneyed corporate interests:

Just as they have in contract formation disputes, American courts recently have embraced far more conceptualist approaches to contract interpretation issues. They [exalt] the written word over the parties’ actual . . . agreement. They exercise their pre-modern faith in the objectivity of language, and overturn jury verdicts, by applying classical interpretive rules like ”plain meaning,” ”four corners,” and interpretation as a ”matter of law.” In general, American courts the past dozen years have moved noticeably away from the most fundamental theorem of contract interpretation, that the law should enforce the parties’ intention, toward a more abstract, disembodied inquiry, resembling, what should the parties have meant when they signed this form contract? In addition, this intellectual regression once again has had important political consequences. . . . Notice that, as in formation cases, it is almost invariably a seller, a bank, an employer, or . . . an insurer that benefits from the New Conceptualism in contract interpretation. This judicial tilt away from underdogs, back toward the privileged beneficiaries of classical contract law, is, of course, the New Conceptualism’s most troubling feature of all.

Let us regain the understanding that law is to do Justice.

There are many, many changes I’d like to see the Obama administration implement and encourage in the law, and today’s collective effort to comment on our hopes for the new administration in each of our respective areas of expertise will spur me to address many of these specific matters in the coming days and weeks.  But for today, I would like to address a topic particularly dear to my heart: the art of legal interpretation.

Over the last 30 years or so, there has been a relentless drumbeat from the right attacking judges deemed too liberal for being too “activist,” for “making” law, not merely applying it.  The judges we need, it’s been said, are “strict constructionists” who apply the law “as it is written,” not as the particular judge might wish it to be.

This rhetoric has obscured what judging is.  It is not a controversial proposition to state that interpretation of legal language is not merely a matter of applying words to facts.  Words are too ambiguous, and the world is so complex that the legislators who write the words of statutes cannot possibly foresee every possible situation to which the statutes will apply.  Judges, thus, must make judgments.  Judgments require weighing different possible interpretations and different possible implications and different possible intentions.

Worst of all, however, I fear we’ve lost sight of the fact that judges are part of a justice system.  Their efforts to properly interpret and apply the law should always be guided by the effort to achieve justice.

We’ve lost sight of the fact that judges are people whose judment we must trust to do justice.  As Euripides put it, you must “judge a tree from its fruit, not from its leaves.”

The infamous Lily Ledbetter case is a perfect example of what has gone wrong.  As Gail Collins recently summed up the facts of the case:

Ledbetter, now 70, spent years working as a plant supervisor at a tire factory in Alabama. How, when she neared retirement, someone slipped her a pay schedule that showed her male colleagues were making much more money than she was. A jury found her employer, the Goodyear Tire and Rubber Company, to be really, really guilty of pay discrimination. But the Supreme Court, in a 5-to-4 decision led by the Bush appointees, threw out Ledbetter’s case, ruling that she should have filed her suit within 180 days of the first time Goodyear paid her less than her peers. (Let us pause briefly to contemplate the chances of figuring out your co-workers’ salaries within the first six months on the job.) Until the Supreme Court stepped in, courts generally presumed that the 180-day time limit began the last time an employee got a discriminatory pay check, not the first.

The operative language of the statute provided that “A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred.”  Interpretation of a statute is typcially described as an effort to determine the intent of the legislature that passed the statute.  Could Congress have intended to outlaw discrimination in employment on the basis of sex and yet have provided that someone who could not have found out about a discriminatory decision until long after it had intitially been made could not recover.  Such an interpretation seems absurd.  Thus, it is no surprise that prior to the Supreme Court’s decision courts had typically held that each new paycheck for an amount less than it would have been in the absence of the discrimination constituted an “alleged unlawful employment practice.”  Thus, the employee could sue for disrimination within 180 days after the most recent pay check that resulted from the discrimination.

These decisions made perfect sense.  As I said, it would be absurd to believe Congress intended people like Lily Ledbetter, who had no knowledge until she neared retirement that her pay was lower than that of her male colleagues merely because she is a woman, should not have an opportunity to sue over that unlawful discrimination.

Yet, “Justice” Alito held that that absurdity was precisely what the statute required the Court to find.  As Justice Ginsburg explained , joined by Justices Stevens, Souter, and Breyer in her dissenting opinion, Alito’s reading was a “cramped” one that flew in the face of what Congress plainly had intended:

[U]nder the Court’s decision, the discrimination Ledbetter proved is not redressable under Title VII. Each and every pay decision she did not immediately challenge wiped the slate clean. Consideration may not be given to the cumulative effect of a series of decisions that, together, set her pay well below that of every male area manager. Knowingly carrying past pay discrimination forward must be treated as lawful conduct. Ledbetter may not be compensated for the lower pay she was in fact receiving when she complained to the EEOC. Nor, were she still employed by Goodyear, could she gain, on the proof she presented at trial, injunctive relief requiring, prospectively, her receipt of the same compensation men receive for substantially similar work. The Court’s approbation of these consequences is totally at odds with the robust protection against workplace discrimination Congress intended Title VII to secure. See, e.g., Teamsters v. United States, 431 U. S., at 348 (“The primary purpose of Title VII was to assure equality of employment opportunities and to eliminate … discriminatory practices and devices … .” (internal quotation marks omitted)); Albemarle Paper Co. v. Moody, 422 U. S. 405, 418 (1975) (“It is … the purpose of Title VII to make persons whole for injuries suffered on account of unlawful employment discrimination.”).

This is not the first time the Court has ordered a cramped interpretation of Title VII, incompatible with the statute’s broad remedial purpose. See . . . 1 B. Lindemann & P. Grossman, Employment Discrimination Law 2 (3d ed. 1996) (“A spate of Court decisions in the late 1980s drew congressional fire and resulted in demands for legislative change[,]” culminating in the 1991 Civil Rights Act (footnote omitted)). Once again, the ball is in Congress’ court. As in 1991, the Legislature may act to correct this Court’s parsimonious reading of Title VII.

Congress did fix the Court’s wrong, and on January 29 of this year President Obama signed into law the Lilly Ledbetter Fair Pay Act.  But it should never have gotten to that point.  Judges should judge, should bear the fruit of justice.  To say so is not to argue that judges should ignore what the law says.  But it is to say that judges should be open to what the law does as well, and that what the law ultimately is supposed to do is justice.

Thus, I would like the Obama administration to appoint judges whose judgement we can respect and trust, and to push hard to re-educate the public about what law and justice are — to, in other words, begin to redress the cultural tide of the last 30 years that has learned to fear critical judgment and to ignore justice.

Piecing together coherence

“Life is made up of a series of judgments on insufficient data, and if we waited to run down all our doubts, it would flow past us.”

– Learned Hand, On Receiving an Honorary Degree 137 (1939).

We all always want to know more. The worst discussions I have in class are those that begin with a suggestion from a student along the lines of, “Well, the plaintiff might have done X,” when there is no more reason to believe X happened than to believe the laptops of every student in the class were being used to take notes. In fact, the plaintiff might have done X, but the mere possibility is not enough on which to base a judgment or decision. If, on the other hand, there are facts or reasoning within the case that support a reasonable inference the plaintiff might have done X then perhaps X is worthy of being taken into account.

Juries never have all the facts. Wouldn’t it be nice if God could provide us his videotape, with all the angles the networks apply to sporting events.

But we make judgments, and we make decisions, and without our capacity to decide reasonably well based on a minimum of knowledge we’d be utterly lost. Life would flow right past us. The other day, writing about the reassignment of the Plain Dealer’s well-respected music critic, I wrote that “[a]s far as I know, such a reassignment breaches no duties, contractual or otherwise.” Do I know that for a fact? Of course not. I am not privy to the thoughts, discussions, or plans of any of the parties to the lawsuit. I don’t have a copy of the relevant contracts.  But what do I know? If there had been a breach of a contract or any other legal duty, Rosenberg’s lawyer would have alleged that breach.

In short, non-facts — things that don’t happen — are often as telling or even more telling than the things that happen. Will Girl Talk be sued for copyright infringement? I have no special insight. Some people are certain Girl Talk will be sued. Others believe Girl talk is protected by the doctrine of fair use.

Me? No one has sued Girl Talk yet. That speaks volumes. What else persuades me?  Girl Talk’s recordings use the samples they weave together to create works that can in no way be substituted for the sampled works. In short, as aural collages go, Girl Talk and Negativeland are as good as they get, and if I were interested in vindicating my right to charge for any sample of a recording I owned the copyright to, I’d stay as far away as I could from a lawsuit against those two acts.

But no doubt there is data out there I am unaware of that sooner or later will make me look like a fool.  That’s simply the nature of human existence.

Roberto Bolaño made a somewhat similar point in explaining the transmutation of life’s chaos into the order of stories:

Let’s say the story and the plot arise by chance, that they belong to the realm of chance, that is, chaos, disorder, or to a realm that’s in constant turmoil (some call it apocalyptic). Form, on the other hand, is a choice made through intelligence, cunning and silence, all the weapons used by Ulysses in his battle against death. Form seeks an artifice; the story seeks a precipice.

The wars are over! The wars are over!

Interpretation, of course, is a creative endeavor, whether it’s Biblical hermeneutics or statutory interpretation. Last week, the United States District Court for the District of Massachusetts in U.S. v. Prosperi (pdf) needed to determine whether the term “war” in a federal statute includes the conflicts in Iraq and Afghanistan. Interestingly, the court found that they are not now “wars,” though they “were.” The defendant was arguing that they never were “wars,” that Congress intended the statute (which stops the running of the statute of limitations applicable to the crime the defendants were being tried for) to apply only to conflicts in which Congress had declared war. Congress has authorized the President to use force in Afghanistan and Iraq but never declared war.

The court determined, essentially, that the conflicts in Afghanistan and Iraq were “wars” because they constituted armed conflicts of sufficient size and scope. In essence, they were wars because they looked like wars, talked like wars, and walked like wars.

The court also determined, however, that the wars have ended. The court had to do so because under the statute the applicable statute of limitations begins to run again “three years after the termination of hostilities as proclaimed by the President . . . .” The court noted that it is very unclear when these wars ended or will end: “Traditionally, the end of a war is marked by the signing of a formal peace treaty. However, formal surrenders like those of Germany and Japan at the end of World War II, like formal declarations of war, are the modern exceptions.” The court also admitted that “a strong case can be made, given the continuing expenditures and loss of life in Iraq and Afghanistan, that the United States remains at war.” Nevertheless, the court finally decided the wars ended, respectively, with the recognition of the government of Hamid Karzai in Afghanistan and with Bush’s “Mission Accomplished” speech in Iraq:

On December 22, 2001, the United States formally recognized and extended full diplomatic relations to the new government of Hamid Karzai.37 That recognition signaled the cessation of a state of war with Afghanistan. Accordingly, the statute of limitations with respect to the Afghan conflict, expired on December 22, 2004. Similarly, on May 1, 2003, President Bush, while aboard the USS Abraham Lincoln, proclaimed that “[m]ajor combat operations in Iraq have ended. In the Battle of Iraq, the United States and our allies have prevailed. And now our coalition is engaged in securing and reconstructing that country.” Consequently, with regards to the Iraq conflict, the statute of limitations expired on May 1, 2006. (footnotes omitted)

I thought you’d like the good news.

p.s. The government apparently argued, but not very strenuously, that the ongoing “war on terror” constitutes a war as well. Of course, that would mean we’ll forever be at war. It’s not the first time the Bush Administration has made this argument; it has done so continuously since 2001. The court, like any body I’ve heard of presented with the argument, didn’t take it seriously:

At the hearing on the motion, there was also discussion of a global “war” on terrorism, waged principally against Osama bin Laden and al Qaeda. The use of the metaphor of war to describe the struggle against terrorism has been criticized. See Sir Adam Roberts, The ‘War on Terror’ in Historical Perspective, 47 SURVIVAL 101-130 (Summer 2005). I do not understand the government to be pressing the argument that the United States is “at war” with al Qaeda, at least in any traditional legal sense.

Creativity and Civilization Require Constraints

Creativity, paradoxically, requires constraint. As the poet George Szirtes put it in a piece in the February 2006 issue of Poetry, “I would contend that the constraints of form are spurs to the imagination: that they are in fact the chief producers of imagination.”

Szirtes, whose family fled Hungary as refugees in 1956, clearly is not concerned only with aesthetics. He makes clear that negotiating the tension between form and anarchy not only underlies the poetic “triumph of meaning and structure over chaos and meaninglessness,” but also “the triumph of civilized values over barbarity.”

Legal reasoning, if it is in fact reasoning, also requires respect for constraints. Though there is of course considerable debate about the proper nature of the constraints to be applied, there is little debate that without any constraints legal interpretation is nothing but the assertion of raw power. Thus, as the Stanford Encyclopedia of Philosophy’s article on “Interpretation and Coherence in Legal Reasoning” puts it,”[m]uch jurisprudential writing on interpretation in legal reasoning is concerned with how to strike the right balance between the conserving and creative elements in interpretation, and with the constraints which are and/or should be operative upon judges as they undertake this balancing act.

Thus, on the one hand, Owen Fiss argues that “judges are constrained both by the need to be faithful to the original legal text which they are interpreting, and by supplementary norms of interpretation which are constitutive of the judicial role.” Stanley Fish, on the other hand, would argue that the texts Fiss identifies as constraints upon interpretation cannnot serve that purpose because those texts themselves “do not have meanings in advance of particular interpretations of them.” Nevertheless, as the Stanford Encyclopedia article makes clear, Fish is not arguing for a radical, unconstrained indeterminacy in legal interpretation:

This seemingly radical indeterminacy is deceptive, however, for although Fish removes the constraints on interpretation provided by legal texts or supplementary norms of the judicial profession, he replaces them with the conditioning and training processes of ‘interpretive communities’, which ensure that, ‘…readers are already and always thinking within the norms, standards, criteria of evidence, purposes and goals of a shared enterprise’, such that, ‘the meanings available to them have been preselected by their professional training.’ (Fish 1989, 133).

In short, there must be some intellectually sound justification for a legal interpretation; else it ceases to be an interpretation and is reduced to mere edict.

Lying about the law removes all constraint, and there is no milder way to characterize the 2002 Department of Justice memorandum (the “Torture Memo”)(pdf), drafted by John Yoo and signed by Jay Bybee. The Torture Memo limited the definition of “torture” to treatment causing pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” (Torture Memo at 1) Thus, treatment that did not cause that high intensity of pain and suffering was, according to Yoo and Bybee, perfectly legal.

In drafting the memo, Yoo genuinely was constrained by existing law that prohibited subjecting prisoners to “severe pain.” But how did he come to define “severe pain” as “the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death”?

He did two things: he tried to derive a definition of “severe pain” from a federal statute that had nothing to do with the subject matter or the purposes of his analysis, and he lied about what that federal statute actually stated.

The statute from which he sought guidance governed benefits under the “Medicare + Choice” plan. (Torture Memo at 5-6) In other words, in trying to determine the proper treatment of prisoners under U.S. law, he looked to law that sought to ration payouts from an insurance fund in order to maintain the solvency and effectiveness of that fund. One would expect Congress to define the benefits it grants and the circumstances under which it grants them narrowly; U.S. taxpayers would demand it.

But Yoo did not merely seek a definition of “severe pain” from an absurdly inappropriate place. He made his definition up out of whole cloth. The statute does not define the term “severe pain.” Rather, it defines the circumstances that constitute an “emergency medical condition” requiring coverage under the Medicare + Plan:

The term “emergency medical condition” means a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent layperson, who possesses an average knowledge of health and medicine, could reasonably expect the absence of immediate medical attention to result in-

(i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy,

(ii) serious impairment to bodily functions, or

(iii) serious dysfunction of any bodily organ or part.

Somehow a justice department lawyer who is now a tenured professor at Boalt Hall Law School at U.C. Berkeley, along with his boss, who is now a judge on the U.S. Court of Appeals for the Ninth Circuit, thought they could get away with this utterly fictional definition of “severe pain.” And they did. Plainly, though, Yoo does not believe in constraints. In December 2005 he stated in a Chicago debate that there is no law that could prevent the President from theoretically ordering the torture of a child of a suspect in custody – including by crushing that child’s testicles.”

Unconstrained, and thus without any scintilla of creative imagination, law is merely barbarity. I hate to start writing about creativity in law from this dark abyss, but it is going to take creativity and imagination to overcome the barbarity the Yoos and Bybees (and the long line of banal technocrats from whom they intellectually descend) have loosed upon the world.