Friday, June 23, 2017

A Response to Justice Alito's Hypotheticals in Maslenjak

Yesterday the Supreme Court decided what it means to "knowingly procure, contrary to law, the naturalization of any person"—a federal crime for which the penalty, if the person whose naturalization the defendant procured contrary to law is himself, is revocation of citizenship.  The parties litigated two ways of reading this language.  The first is merely that the acts by which one procured naturalization must be contrary to law, regardless of whether the illegality itself was a but-for cause of, or a contributing factor to, procuring naturalization.  That is to say, if one has to do a series of things to procure naturalization, including filling out an application with several hundred statements, one has procured naturalization in a manner contrary to law so long as any one of those acts was, in some respect, illegal, e.g., if one of the applications was false.  This was the government's theory.  The second way, the defendant's way, to read the language is that the naturalization must be procured by a means contrary to law, i.e., that some illegal act must at least materially contribute to obtaining naturalization.

Eight Justices joined Justice Kagan's opinion to the extent it held that the correct reading of the language is causal.  Justice Kagan claims that this follows from "the way language naturally works"; we wouldn't say, she reasons, that someone obtained a painting illegally unless he did something illegal that caused him to obtain the painting.  She tries to illustrate this with a couple hypotheticals that I don't think work. For example, she says we wouldn't say that someone illegally obtained a painting if he drove illegally on the way to the auction house.  That may only show that traveling to the place where one obtains a painting has nothing to do with obtaining the painting causally or otherwise, just as you wouldn't say that "I bought clothes quickly" because you drove quickly to the store.  However, I think she's right; to take a perhaps better hypothetical, if you pay for something expensive in cash and knowingly pass the cashier a Canadian penny, plus an amount well in excess of the item's price, to make the change even out, we probably wouldn't say that you bought the item illegally (though I'm not quite sure of this), though we definitely would say it if you paid the whole purchase price in rolls of Canadian pennies.

Before turning to how Justice Alito attempts to rebut this reading of "knowingly procure, contrary to law," I want to say a little about what sort of claim Kagan is making when she says that "language naturally works" so as to connote (or denote) that an illegal act caused the procurement when we say that someone procured something contrary to law.  (It isn't at all clear from the opinion.)  In the first place, it seems to have nothing to do with the meaning of words and phrases like "contrary to law" or "illegally" generally.  When we say that someone "drove illegally," we do not mean that some illegal act was a cause of the driving.  If we say that someone shot a deer contrary to law, we probably simply mean that their shooting the deer was illegal, not that they used an illegal gun that caused the deer's death.  On the other hand, it also seems to have little to do with the meaning of words like "procure" or "obtain" generally.  If we say that someone "barely procured naturalization" or "slowly procured naturalization," we obviously don't mean that the slowness of the procurement, or its being barely procured, was the procurement's cause; quite the opposite, in fact.  So why is it that Kagan's gloss of "procure, contrary to law" or "illegally obtain" seems so intuitively correct?  Is "illegally obtain/procure" just idiomatic for obtaining/procuring because of some illegality, even though "illegally" doesn't necessarily modify verbs in a causal way, and procure and obtain aren't always modified causally either?

Idiom might explain it, but that seems an easy way out.  What I want to tentatively suggest is that when an adverb modifies "obtain" or "procure," it must at least materially qualify the whole of the obtaining or procurement.  We wouldn't say, for example, that someone obtained something adroitly if what they did was only adroit in one small respect.  More broadly, when any adverb modifies any verb, it probably has to at least materially describe that verb.  For example, we wouldn't say that someone "drove from New York to California illegally" because he briefly sped in Montana, or that he drove from New York to California at a slow speed because he drove at a slow speed for an hour in Indiana.  So to say that someone procured naturalization contrary to law, it seems insufficient that one immaterial statement in the process of procuring naturalization was false and illegal; the procurement must be materially illegal in order to sensibly talk about an illegal procurement.  

Now, here is where I think obtaining or procuring might differ from other verbs.  If you agree that to say that someone drove from New York to California illegally the drive must have been materially illegal, all we are saying is that some substantial percentage of the drive, in terms of duration, must have violated some law.  But when we talk about materiality in the context of obtaining something, I am inclined to think we mean material to obtaining that thing, not just that some substantial number of the acts one took towards obtaining it were illegal.  (Of course, some adverbs just don't have this kind of material relationship to obtain or procure; see note.**)  So if every page of an application for naturalization contained some question that was immaterial to the result, misstatements as to each such irrelevant question, though they may make up a substantial portion of the application, don't seem to amount to an illegal procurement of naturalization.  For misstatements to be material to procurement, and thereby amount to a procurement contrary to law, I believe they have to materially contribute to causing the procurement.

Interestingly, this is just where Justice Alito disagrees with Justice Kagan.  He agrees with me, or rather I agree with him, that in order to procure naturalization contrary to law, you have to do something illegal that's material to procuring naturalization.  But unlike me, he thinks that that materiality need not be causal; the illegal act, he says, need only have a natural tendency to influence whether one obtains naturalization, regardless of whether it does.  He attempts to demonstrate this through two hypotheticals.  As Justice Kagan offers no response to them, I offer mine.

First, he supposes that eight co-workers buy two season tickets for their favorite football team.  They then agree to each write their names on one slip of paper and put the slip in a hat, from which a slip is then drawn to see who gets the two tickets (for themselves and a guest) for a given game.  One of the eight puts his name in twice, and wins the drawing.  Alito concludes that "he 'procured' the tickets 'contrary to' the rules of the drawing even though he might have won if he had put his name in only once."

This hypothetical, it strikes me, hardly proves that "procures contrary to law" doesn't connote or denote causality, because the relationship between the second slip and winning the drawing is causal, at least in the sense the law understands causality.  Suppose, for instance, Person A knows Person B is considering committing suicide and has put one poisoned chocolate truffle into a box of eight chocolate truffles with the intention of randomly selecting one from the box and eating it.  If Person A secretly puts a second poisoned truffle in the box in hopes of increasing the chance that Person B will kill himself, and Person B does take one of the two poisoned truffles and die—assume the police can't tell whether it was Person A's truffle or notI'm pretty sure that Person A will be found liable, at least in tort, for causally contributing to Person B's death (unless Person B's act is deemed an intervening cause, which is irrelevant to the point I'm making), even though Person B might have died from eating the original poisoned truffle.  If there's a 50% chance that an illegal act caused some outcome, and we can't tell whether or not it did, we call that act the outcome's legal cause.

On the other hand, suppose that one member of the group fills out the slips of paper for everyone.  The cheater in this modified version of Alito's hypothetical writes his own name on a second slip of paper, which he puts in the hat.  If the original slip in the hat with his name on it is drawn, which can be ascertained simply by comparing the handwriting on that piece to the handwriting on all the others, and he thereby wins the drawing, would we say that he procured the tickets contrary to the rules of the drawing?  I think not, even though what he did had a natural tendency to affect the drawing's outcome.  We certainly would say that his participation in the drawing was contrary to its rules, but not that he procured the tickets contrary to the drawing's rules, or "illegally," which shows, I think, that when it comes to procurement materiality is causal.

Alito's second hypothetical is rather stronger.  He supposes that an Olympic runner wins a race while using a performance-enhancing drug; she's found out and is disqualified.  Because the second-place time was slow, it's speculated that she would have won without the drug.  Nevertheless, Alito says, "it would be entirely consistent with standard English usage for the race officials to say that she 'procured' her first-place finish 'contrary to' the governing rules."

I think this example simply trades on a particular feature of what's deemed material in Olympic running.  In running, as I understand it, any cheating, whether material to the outcome of any particular contest or not, often results in disqualification.  Had the runner in Alito's hypothetical worn a banned running shoe, her results would have been disqualified as well, even if the shoes made very little difference and the second-place finisher wasn't close.  Here, when we say that someone procured a first-place finish contrary to rules, all we mean is that they violated a rule during the race.  To violate a rule is to be ipso facto ineligible; therefore, any procurement of a first-place finish in a race where one violated a rule is contrary to the rules.

Suppose a sport, though, that doesn't view every infraction as quite so material.  For example, it is discovered two games into the NBA Finals that a minor role player is using a performance-enhancing drug, his team down 0-2; he is then suspended from the series, but his team is not disqualified from playing on, and that team wins the next four games and the series.  Would we say that the team procured its championship contrary to the rules of basketball?  Pretty obviously not.  What if the team won its first two games before the player got suspended, then won only two of the five thereafter en route to winning the Finals in seven games?  The answer is probably still no, especially absent reason to think the drug made the player materially better and the player made the team materially better.  Or, what if several players on the team wear an illegal basketball shoe, or get away with wearing illegal elbow guards, and are fined a nominal sum for it?  Now we really won't say they procured their championship illegally, though we would have in the case of the runner with the illegal shoes.  

On the other hand, what if the San Francisco Giants had won the 2002 World Series in seven games, a series in which the then-possibly-steroid-using Barry Bonds hit .471 with a .700 on-base percentage, a 1.294 slugging percentage, and 4 home runs in 17 at-bats?  We likely would say that the Giants procured the championship contrary to the rules of baseball, given that Bonds' contributions were necessary to the outcome, and given the huge statistical gap between Bonds in his pre-steroid years and Bonds in his allegedly steroid-using years, such that his steroid use likely made a material causal contribution to the outcome.  So again I conclude that absent an unusual context-specific theory of materiality, to procure something illegally means that illegality materially contributed to the procurement, and that to say that illegality materially contributed to the procurement is just to say that it materially causally contributed to the procurement.

** Of course, this won't be the case of every adverb that modifies obtain or procure.  To obtain quickly just means that the whole process was quick, but even here note that quickly must modify the whole process or not at all—there is no carving up the process into parts and saying that someone obtained something quickly because a material part of the process was quick.  On the other hand, more durational verbs, the sorts of verbs, like drive, where it makes sense to say "he (verb) for two hours" (which isn't the case of obtain or procure), can be sensibly modified where one is really only describing a material part of the relevant duration.  The contrast is a subtle one, but to be precise, to say that someone obtained something quickly just means that the whole length of time it took them to obtain it is a relatively short span of time in which to obtain it; to say that someone drove from Point A to Point B slowly or quickly may not necessarily describe the whole length of the drive so much as the speed at which they were driving most of the time.

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