tag:blogger.com,1999:blog-7420543479422278886.post5831057920942574015..comments2023-09-30T06:44:56.203-07:00Comments on The Narrowest Grounds: The Government Jumps off a Cliff in Lockhart v. U.S., and Why All Textualism is (Constructive) IntentionalismAsher Steinberghttp://www.blogger.com/profile/13081594205660019619noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-7420543479422278886.post-87121874104431478692016-02-12T13:51:45.890-08:002016-02-12T13:51:45.890-08:00Dear Professor Hills,
Thanks so much for those ki...Dear Professor Hills,<br /><br />Thanks so much for those kind words. It's an honor to have my post assigned in your class. I think that very few judges, especially lower-court judges, have any aspirations (at least conscious ones) to discipline Congress into writing more precise statutes. I think your two other ideas jointly explain the canon's popularity. Courts and practitioners don't know much about Congress, and I think many sincerely imagine that Congress doesn't use words superfluously. Ease of application and definitive results also work in anti-surplusage's favor. There's also a kind of pseudo-respectful quality about anti-surplusage; we pretend to believe that Congress doesn't carelessly draft and that all of its words have meaning. It's of a piece with all sorts of anti-realist judicial etiquette that you see in opinions; for example, the Court's rhetoric about the states, which you would know much more about than me. Finally, what is there to cause courts to stop using anti-surplusage? The Gluck/Bressman study says it's an inaccurate measure of intent, but my sense is that courts would rather ignore that information, as they don't know what to do with it. Gluck and Bressman don't say that all superfluities are intentional, just that some are, and courts have little way of knowing which are which. Asher Steinberghttps://www.blogger.com/profile/13081594205660019619noreply@blogger.comtag:blogger.com,1999:blog-7420543479422278886.post-28316366847643117052016-02-12T01:47:59.435-08:002016-02-12T01:47:59.435-08:00Hi Mr. Steinberg,
I'm teaching Lockhart in my...Hi Mr. Steinberg,<br /><br />I'm teaching Lockhart in my 1L statutory interpretation course, and your post is so well-written and substantively thoughtful that I plan to use it as optional reading. Here's a question: Do you have any theories about why the SCOTUS and many other lower courts dig in on anti-redundancy norms, when there is plenty of evidence that lawmakers will never cease and desist from surplusage in their rules and regulations? Is this judicial itch to reduce redundancy a flawed effort to capture likely legislative intent? Is it driven by a desire to discipline Congress into writing more precise statutes with a sort of penalty default rule? (If so, as Abbe Gluck and Victoria Nourse note, Copngress is not getting the message). Or is the canon popular simply because it seems easy to apply and yields definitive results? Its durability is a bit of a mystery. <br /><br />Rick Hills (NYU Law Prof)<br /><br /><br />Rick Hillshttps://www.blogger.com/profile/03430990906591773042noreply@blogger.comtag:blogger.com,1999:blog-7420543479422278886.post-82259047194462965982015-11-07T12:20:16.369-08:002015-11-07T12:20:16.369-08:00Abusive sexual conduct would include not just acts...Abusive sexual conduct would include not just acts of sexual abuse, but any act that would condone the engaging in or affirmation of a sexual act that abuses the intention of the sexual act and would thus make one complicit in promoting abusive sexual conduct. Not all abusive sexual conduct is illegal. While the desire to engage in a demeaning sexual act does not change the nature of the act, the use of force, coercion, or manipulation is always a criminal offense. <br />While it is possible for an adult to consent to engage in a form of abusive sexual conduct, a child does not have the ability to consent, thus every act of abusive sexual conduct that involves a child, is sexual abuse that involves the use of force, coercion or manipulation, with statutory rape being the most heinous.N.D.https://www.blogger.com/profile/14319122125249787860noreply@blogger.com