George Mason Law Review

Carcieri, the Word “Now,” and Fortune Cookies in the George Mason Law Review

Matthew L.M. Fletcher

Jeremy Graboyes has published, “Now, Voyager: Deixis and the Temporal Pragmatics of Statutes,” in the George Mason Law Review.

An excerpt:

You come across a fortune cookie. The fortune inside reads: “The plans you now have are going to succeed.” Unsure when now is, you are left wondering which of your goals will be successful. There are three possibilities. First, now references some fixed point in the past—be it the moment the fortune was first conceived, printed, enclosed in its cookie, or shipped from the factory. All goals you had at that moment will be successful, but you have no guarantees as to goals made later in time, including goals at the time of reading the fortune. Second, now references the moment you first read your fortune. All goals you have at that moment will be successful, but you have no guarantees as to goals you may make later in time. Third, now references any moment you read your fortune. Whenever you read the fortune, no matter how many times you read it, you are guaranteed that all goals you have at that moment will be successful.

A legal journal would be a strange place, indeed, for an article discussing the hermeneutics of fortune cookies. But this interpretive problem has reared its head in the context of statutory interpretation, most recently in Carcieri v. Salazar, decided by the Supreme Court in 2009. This Comment analyzes the interpretive problem now presents in statutory language and gauges methods to resolve the ambiguity. After beginning with the word’s ordinary meaning and finding it to offer no real guidance, this Comment concludes that, absent clear indication of the word’s meaning from legislative history, only a purposive or pragmatic determination can provide a solution. What is significant about now—and what forms the crux of this Comment—is that the resolution of the signification of now relies on what we think a statute really is.

New Article on the Mystery of CFRs and CVSGs

Matthew L.M. Fletcher

The article, “An Empirical Analysis of Supreme Court Certiorari Petition Procedures: The Call for Response and the Call for the Views of the Solicitor General”, appears in the George Mason Law Review. Here is Marcia Coyle’s coverage (thanks to Mike McBride for this):

Study shows influence of SG in high court cases granted cert

Marcia Coyle (article here, subscription required)
06-16-2009

So you’ve taken your client’s case all the way to the Supreme Court and the justices have asked the solicitor general of the United States whether they should grant review. What are your chances of a nod in your favor?

Not bad, according to an unusual study of two of the high court’s most important “information-gathering” tools — a call for the views of the solicitor general, known as a CVSG, and a call for a response, or CFR, to a petition for certiorari. The Court granted briefing on the merits in 34 percent of cases in which it called for the views of the solicitor general, a 37-time increase above the grant rate for all petitions. And, the justices follow the recommendation of the solicitor general to grant or deny a case roughly 80 percent of the time, according to the study.

David Thompson, currently a clerk to Justice Antonin Scalia, and Melanie Wachtell, policy director for the nonprofit Tobin Project, are both Stanford Law graduates who participated in the law school’s Supreme Court clinic. “We decided we were interested in writing a paper, and we felt if we were going to embark on a long paper to be published in a legal journal, we wanted it to be something that really contributed,” recalled Wachtell.

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Kate Fort on “The New Laches” in the George Mason Law Review

Matthew L.M. Fletcher1 Comment

Kathryn E. Fort (MSU) has published “The New Laches: Creating Title Where None Existed” in the George Mason Law Review.  From the introduction:

Recent legal decisions dealing with Indian land claims have been cre-ating title for private property owners where no title previously existed. As has been explored by others, various areas of property law have been turned upside down in order to defeat tribes in court. However, one area, equity, has received special attention from the courts. Specifically, the equitable defenses of laches, acquiescence, and impossibility were used by the United States Supreme Court in City of Sherrill v. Oneida Indian Nation to hand defeat to the Oneida Indian Nation on a tax issue. Since then, lower courts in the Second Circuit have used this precedent to deny Indian land claims altogether. But is the use of these three defenses based on precedent them-selves? A careful examination of City of Sherrill and its progeny reveals that these defenses have in fact been combined to create a new defense, what I will call the “new laches” defense.