DOCSLIB.ORG

Of Lenity, Chevron, and KPMG

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Of Lenity, Chevron, and KPMG Scholarship Repository University of Minnesota Law School Articles Faculty Scholarship 2007 Of Lenity, Chevron, and KPMG Kristin Hickman University of Minnesota Law School, [email protected] Follow this and additional works at: https://scholarship.law.umn.edu/faculty_articles Part of the Law Commons Recommended Citation Kristin Hickman, Of Lenity, Chevron, and KPMG, 26 VA. TAX REV. 905 (2007), available at https://scholarship.law.umn.edu/faculty_articles/64. This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in the Faculty Scholarship collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. OF LENITY, CHEVRON, AND KPMG Kristin E. Hickman* I. INTRODU CTION ............................................................................. 906 II. T H E PRO BLEM ............................................................................... 911 A. Competing Doctrines: Lenity Versus Deference ................ 912 B. Case Law at the Crossroads................................................. 918 C. KPMG: A Case in Point....................................................... 924 1. B LIP S ............................................................................... 925 2. FLIPS and O PIS ............................................................. 929 D . Im p lications ........................................................................... 932 III. POTENTIAL RESOLUTIONS .......................................................... 933 A. Supreme Court Signals: Lenity Trumps .............................. 933 B. Academic Theory: Lenity as a Third Step .......................... 936 C. A Willfulness Exception ....................................................... 938 IV. THE ROLE OF PROSECUTORIAL DISCRETION .......................... 940 V . C ON CLU SIO N ................................................................................. 942 Associate Professor of Law, University of Minnesota Law School. Thanks to Brad Clary, Richard Frase, Cal Johnson, Heidi Kitrosser, Kevin Reitz, Ted Sampsell- Jones, Larry Solan, David Stras, and participants in the Squaretable series at the University of Minnesota Law School for their helpful comments and suggestions in connection with this essay. Thanks to Lindsey Tonsager for her research assistance. Thanks also to the Federalist Society for Law & Public Policy Studies and to Deloitte & Touche for their generous support in making possible the symposium that inspired this essay. Virginia Tax Review [Vol. 26:905 I. INTRODUCTION Despite a mixed track record in challenging tax shelters in civil enforcement actions, the federal government has started prosecuting tax shelter cases criminally. One of the top accounting firms, KPMG, and several of its partners and managers have come under scrutiny for developing and promoting certain tax shelters known colloquially as BLIPS, FLIP, OPIS, and SOS.' Under threat of criminal indictment, KPMG decided to save itself. KPMG admitted criminal culpability, paid a fine, and agreed to implement a compliance and ethics program and submit to several years of government monitoring in exchange for deferred prosecution. Meanwhile, the government's criminal prosecution of several former KPMG tax professionals continues to work its way through the federal district courts.4 Yet some believe that the tax shelters promoted by KPMG were not clearly abusive, or at least not criminally so.' One federal district court has decided that a key statutory element of the BLIPS structure was consistent with then-existing interpretations of the Internal Revenue Code (Code).6 1 See, e.g., Sheryl Stratton, Criminal Tax Enforcement of Legal-Source Income Cases Is Up, 113 TAx NOTES 392 (Oct. 30, 2006) (noting DOJ Tax Division's current emphasis on tax shelter prosecutions); Armando Gomez & Brian Duncan, Detection & Dissection: How the IRS Identifies and Combats Tax Shelters and Regulates Those Who Advise On Aggressive Transactions, 736 PLI/TAx 951, 1009-10 (2006) (noting a shift in criminal prosecutions from nonfilers, drug dealers, and tax protesters to more mainstream tax matters). 2 BLIPS, FLIP, OPIS, and SOS are acronyms for Bond Linked Issue Premium Structures, Foreign Leveraged Investment Program, Offshore Portfolio Investment Strategy, and Short Option Strategy, respectively. See discussion infra notes 94-127 and accompanying text (discussing the BLIPS, FLIP, and OPIS transactions). 3 See KPMG Deferred ProsecutionAgreement Dated August 26, 2005, reprinted in 1571 PLI/CoRP. 659 (2006). 4 See, e.g., United States v. Stein, 463 F. Supp. 2d. 459 (S.D.N.Y. 2006) (holding that defendant's conversations with firm counsel were not privileged); United States v. Stein, 461 F. Supp. 2d 459 (S.D.N.Y. 2006) (adjourning trial sine die due to late production of discovery and pending resolution of legal fee issues); United States v. Stein, 435 F. Supp. 2d 330 (S.D.N.Y. 2006) (holding that government violated defendants' right to counsel); Superseding Indictment, United States v. Stein, N. S1 05 Crim. 0888(LAK), 2005 WL 4168176 (Oct. 17, 2005). 5 See, e.g., Robert Weisberg & David Mills, A Very Strange Indictment, WALL ST. J., Oct. 12, 2005 at A16 (criticizing the government's case against KPMG). 6 See Klamath Strategic Inv. Fund, LLC v. United States, 440 F. Supp. 2d 608, 615-19, 625-26 (E.D. Tex. 2006) (ruling for the taxpayer on the BLIPS structure's interpretation of the term "liabilities" under Internal Revenue Code (Code) section 752). The Klamath opinion arose in a civil action, not a criminal prosecution, and did not conclusively resolve the case in favor of the taxpayer. See discussion infra notes 2007] Of Lenity, Chevron, and KPMG Many who are more skeptical of the KPMG shelters nevertheless are concerned about distinguishing the actions of the defendant tax professionals from those of ordinary tax planners under the specter of criminal enforcement. Tax shelters have a bad reputation, for good and obvious reasons. Among other things, abusive tax shelters illegitimately deprive the government of much-needed revenue and generally breed disrespect for the tax system. Note that in that last sentence I added the word "abusive." Not all tax shelters fall into that category, at least in the eyes of the law.8 While most tax experts agree that abusive tax 107-10 (discussing the Klamath opinion further). The Klamath court has since decided the case in favor of the government on economic substance grounds, though the court also found various civil penalties assessed by the government to be inapplicable. See Klamath Strategic Inv. Fund, LLC v. United States, __ F. Supp. 2d __ 2007 WL 283790 (E.D. Tex. 2007). ' See, e.g., Lee A. Sheppard, KPMG: Has the Prosecution Overcharged the Crime?, 112 TAx NOTES 405 (July 31, 2006) (noting concerns of many practitioners, analyzing the government's case in United States v. Stein, and suggesting that the government may have overreached); Editorial, KPMG In Wonderland, WALL ST. J. Oct. 6, 2005, at A14 (describing prosecutions as "troubling"); John Klotsche, Text of Klotsche Remarks at Tax Controversy Seminar, 2006 TNT 30-31 (Feb. 14, 2006) (attempting to justify tax shelter prosecutions and distinguish actions prosecuted from permissible tax planning from Internal Revenue Service (Service) perspective); see also Daniel N. Shaviro, Economic Substance, Corporate Tax Shelters, and the Compaq Case, 88 TAX NOTES 221, 230 (July 10, 2000) (noting the general discomfort of many leading tax practitioners with the government's emphasis on penalties and case-by- case discretion to define tax abuse and combat tax shelters). Not everyone is dismayed by the government's aggressive posture. See, e.g., Darryll K. Jones, CriminalizingTax Shelters and the "Damn-Well" Reflex, 110 TAx NOTEs 285 (Jan. 16, 2006) (defending criminal prosecutions of tax shelter promoters generally). 8 Code section 6662 defines a "tax shelter" as "a partnership or other entity, an investment plan or arrangement, or any other plan or arrangement, if a significant purpose of such partnership, entity, plan, or arrangement is the avoidance or evasion of Federal income tax." I.R.C. § 6662(d)(2)(C)(ii). Other provisions of the Code offer definitions of the same term. See, e.g., I.R.C. § 461(i)(3) (adopting a broader definition inclusive of that of Code § 6662); I.R.C. § 4965(e) (defining "prohibited tax shelter transaction" by cross reference to other terms defined in Code section 6707A). None of these definitions has proven particularly useful in combating abusing tax shelters; and some transactions that the government labels as tax shelters have "worked," meaning at the very least that the courts recognized their consistency with existing law, even if Congress subsequently amends the tax laws to alter the consequences of such transactions. See infra note 12 and related text. Hence, Treas. Reg. § 1.6011-4 more broadly identifies several categories of transactions that participating taxpayers must report to assist the Service in ferreting out abusive tax shelters, only one of which is listed transactions. See Treas. Reg. § 1.6011-4(a), (b) (2006). Yet while the reportable transaction regulations are targeted at tax shelter 908 Virginia Tax Review [Vol. 26:905 shelters are a big problem, 9 they disagree over precisely how to distinguish ordinary non-shelter tax planning from tax shelters, and legitimate from abusive tax shelters. ° The federal tax laws are
Load more

Recommended publications
  • A Clash of Canons: Lenity, Chevron, and the One- Statute, One-Interpretation Rule
    A Clash of Canons: Lenity, Chevron, and the One- Statute, One-Interpretation Rule JUSTIN LEVINE* TABLE OF CONTENTS INTRODUCTION ..................................................... 1424 I. THE RULE OF LENITY AND THE CHEVRON DOCTRINE . 1427 A. THE RULE OF LENITY ...................................... 1427 1. Types of Canons ............................... 1427 2. Rule of Lenity Examined......................... 1429 B. THE CHEVRON DOCTRINE ................................... 1430 1. Pre-Chevron Jurisprudence ....................... 1430 2. Chevron's Two-Step Doctrine ..................... 1431 3. Chevron's Rationales ........................... 1432 4. Mead's Emphasis on Congressional Intent. 1433 C. LENITY AND CHEVRON IN CONFLICT .......................... 1434 1. Overview .................................... 1434 2. Possible Resolutions ............................ 1435 a. Lenity Over Chevron (Lenity in Step One). 1435 b. Chevron Limited by Lenity (Lenity in Step Two) . 1436 c. Chevron Over Lenity ........................ 1436 d. Path Dependence ........................... 1438 II. ONE-STATUTE, ONE-INTERPRETATION RULE REJECTED . 1438 A. OVERVIEW .............................................. 1438 B. SUPREME COURT PRECEDENT RE-EXAMINED .................... 1440 1. Leocal v. Ashcroft .............................. 1441 * Georgetown Law, J.D. expected 2019; Dartmouth College, A.B. 2016. © 2019, Justin Levine. I would like to extend my sincere appreciation to Professors Bernick and Westmoreland for their insights on administrative law and
    [Show full text]
  • Whither the Rule of Lenity by Dan Levin & Nathaniel Stewart*
    Whither the Rule of Lenity by Dan Levin & Nathaniel Stewart* he “rule of lenity” “requires ambiguous criminal laws to manner based on strict statutory construction, it is perhaps be interpreted in favor of the defendants subjected to not surprising that at times it results in interesting coalitions them.”1 Although long a favorite of defense attorneys, that cross the Court’s traditional conservative-liberal lines. As T 10 actual applications of the rule, at least at the Supreme Court noted, Justice Scalia’s plurality opinion in Santos was joined level,2 have been relatively rare. Th is is perhaps somewhat by Justices Th omas, Ginsburg, and Souter; Justice Stevens surprising as the rule’s roots in due process principles, and concurred in the judgment and wrote separately, also endorsing potential application where a strict construction of a statute application of the rule. Justice Alito fi led a dissenting opinion results in an ambiguity, could lead both traditionally liberal joined by Chief Justice Roberts, Justices Kennedy and Breyer. and traditionally conservative Justices to favor its use. In 2008, Other discussions of the rule of lenity in the most recent in United States v. Santos, the Supreme Court issued a plurality three terms have included the following: Justice Ginsburg opinion holding that a key term in a federal money laundering acknowledging that the statutory defi nition in question was statute was ambiguous and applied the rule of lenity to resolve “not a model of the careful drafter’s art” and yet declining to the ambiguity
    [Show full text]
  • Law, Language and Lenity Lawrence Solan
    Brooklyn Law School BrooklynWorks Faculty Scholarship 1998 Law, Language and Lenity Lawrence Solan Follow this and additional works at: https://brooklynworks.brooklaw.edu/faculty Part of the Criminal Law Commons, and the Other Law Commons Recommended Citation 40 Wm. & Mary L. Rev. 57 (1998) This Article is brought to you for free and open access by BrooklynWorks. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of BrooklynWorks. LAW, LANGUAGE, AND LENITY LAWRENCE M. SOLAN ° TABLE OF CONTENTS INTRODUCTION ................................ 58 I. A LINGUISTIC APPROACH TO PROBLEMS IN STATUTORY INTERPRETATION ................................ 62 A. Ambiguity ............................... 62 B. Conceptual Problems ....................... 65 1. The Psychology of Conceptualization ....... 65 2. What is a Security?: A Legal Example ...... 75 3. Conceptual Problems in Statutory Construction .......................... 78 a. Vagueness and Overinclusion ......... 79 b. Underinclusionand the Linguistic Wall . 83 C. Summary ............................... 86 II. THREE APPROACHES TO INTERPRETING CRIMINAL STATUTES: A COGNITIVELY DRIVEN HISTORY ......... 86 A. Naked Lenity ............................. 87 B. The American Tradition of Strict Construction ... 89 1. Chief Justice Marshalland Legislative Primacy ............................. 89 2. Justice Story and the Meaning of Words ..... 94 C. Narrowing the Rule of Lenity ................ 97 1. A Shift in the Interpretive Culture ......... 97 * Associate Professor of Law, Brooklyn Law School. This work was supported in part by a summer research stipend from Brooklyn Law School. I wish to thank my research assistants, Nicholas Moyne, Harold Olsen, and Robyn Schneider, for their extremely valuable contributions to this project. I also am grateful to Ursula Bentele, Susan Herman, Roberta Karmel, Gary Minda, Tony Sebok, Steve Siegel, Peter Tiersma, Spencer Waller, and Steve Winter for their discussion of many of the issues that I address in this article.
    [Show full text]
  • Norms, Empiricism, and Canons in Statutory Interpretation William N
    Norms, Empiricism, and Canons in Statutory Interpretation William N. Eskridge, Jr.t In the abstract, there should be little quarrel with the propo- sition that theories of statutory interpretation should be sub- jected to empirical testing.' Pragmatic thinkers and practitioners ought to be open to any theory that has a "cash-value," as phi- losopher William James put it.' If an uncompromising application of statutory plain meaning, what I have called the "new textual- ism," produces more predictable results than eclectic theories now deployed by pragmatic judges and scholars, then theory and prac- tice ought to move toward textualism, even more than they al- ready have.' If studies deploying a variety of rigorous techniques show that following a textualist approach generates more consis- tent and uniform interpretations by a variety of different judges than other approaches to statutory interpretation (original in- tent, purpose), pragmatists ought to consider those findings as a significant reason to support and adopt a more strictly textual approach to statutory interpretation. Many formalists appreciate the Jamesian insight. Text-based theories of statutory interpretation areusually justified in part by factual claims. For instance, Justice Antonin Scalia argues that judges should not consult legislative history because such materials (1) are an illegitimate source of statutory meaning un- der Article I, Section 7 of the Constitution, which renders the text the only source of law and augurs against crediting the views of congressional subgroups; (2) are unreliable and often misleading evidence of legislative deals, and hence are not worth the re- t John A. Garver Professor of Jurisprudence, Yale Law School.
    [Show full text]
  • How Congress Is Eroding the Criminal Intent
    2011] 717 THE BETTER PART OF LENITY Marie Gryphon In her thoughtful evaluation of the report titled, Without Intent: How Congress is Eroding the Criminal Intent Requirement in Federal Law ,1 Geraldine Moohr explores the contribution of the federal criminal law’s diminished mens rea requirements to the problem of “overcriminalization.” Overcriminalization is a neologism that defies uncontroversial definition, but that generally refers to the unjustified use of the criminal law to punish conduct that is not blameworthy in any traditional sense. 2 This comment expands on Professor Moohr’s response to Without Intent’s recommenda- tion that Congress pass legislation codifying the rule of lenity, 3 a judicial canon of construction applicable specifically to criminal laws, which holds that ambiguous criminal laws should always be construed narrowly, in the manner most favorable to the criminal defendant. 4 Like Professor Moohr, I am concerned that a codified rule of lenity may be interpreted and applied by the courts in a way that could “undermine the goal of the recommenda- tion.” 5 The following analysis summarizes the current state of the law and makes some predictions about the likely effect of a codified lenity in order to help those battling the phenomenon of overcriminalization to evaluate the perils and rewards of this particular strategy. Lenity has been a part of the English common law for several centu- ries, and was in use long before the ratification of the United States Consti- tution. 6 The Supreme Court recognized the rule of lenity as a principle of U.S. law as early as 1820 in United States v.
    [Show full text]
  • Substantive Canons and Faithful Agency
    SUBSTANTIVE CANONS AND FAITHFUL AGENCY AMY CONEY BARRETT∗ INTRODUCTION ............................................................................................... 109 I. FAITHFUL AGENCY AND SUBSTANTIVE CANONS ................................ 112 A. The Norm of Faithful Agency ...................................................... 112 B. The Canons .................................................................................. 117 C. The Tension Between Substantive Canons and Faithful Agency ......................................................................................... 121 II. SUBSTANTIVE CANONS IN HISTORY .................................................... 125 A. Stories of Well-Known Substantive Canons ................................ 128 1. Lenity..................................................................................... 128 2. Charming Betsy ..................................................................... 134 3. Avoidance .............................................................................. 138 4. The Presumption Against Retroactivity ................................ 143 5. The Sovereign Immunity Clear Statement Rules .................. 145 6. The Indian Canon .................................................................. 151 7. Other Canons ......................................................................... 153 B. The Implications of History for Textualism ................................. 155 III. BACKGROUND ASSUMPTIONS IN A MATURE LEGAL SYSTEM ............. 159 IV. THE JUDICIAL
    [Show full text]
  • Restoring the Historical Rule of Lenity As a Canon
    Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2020 Restoring the Historical Rule of Lenity as a Canon Shon Hopwood Georgetown University Law Center, [email protected] This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/2320 New York University Law Review, Vol. 95, No. 4, Pp. 918-951. This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Criminal Law Commons, and the Jurisprudence Commons 42594-nyu_95-4 Sheet No. 23 Side B 10/08/2020 07:57:54 \\jciprod01\productn\N\NYU\95-4\NYU403.txt unknown Seq: 1 5-OCT-20 8:23 RESTORING THE HISTORICAL RULE OF LENITY AS A CANON SHON HOPWOOD* In criminal law, the venerated rule of lenity has been frequently, if not consistently, invoked as a canon of interpretation. Where criminal statutes are ambiguous, the rule of lenity generally posits that courts should interpret them narrowly, in favor of the defendant. But the rule is not always reliably used, and questions remain about its application. In this article, I will try to determine how the rule of lenity should apply and whether it should be given the status of a canon. First, I argue that federal courts should apply the historical rule of lenity (also known as the rule of strict construction of penal statutes) that applied prior to the 1970s, when the Supreme Court significantly weakened the rule. The historical rule requires a judge to consult the text, linguistic canons, and the structure of the statute and then, if reasonable doubts remain, interpret the statute in the defendant’s favor.
    [Show full text]
  • Reconstructing the Rule of Lenity
    Romantz.40.2.2 (Do Not Delete) 1/17/2019 6:23 PM RECONSTRUCTING THE RULE OF LENITY David S. Romantz† “If [lenity] is no longer the presupposition of our law, the Court should say so, and reduce the rule of lenity to an historical curiosity.” —Holloway v. United States, 526 U.S. 1, 21 (1999) (Scalia, J., dissenting) TABLE OF CONTENTS INTRODUCTION .................................................................................................................524 I. A SHORT HISTORY OF LENITY ..................................................................................526 II. THE MODERN APPROACH .........................................................................................534 A. Universal C.I.T. and the Decline of Lenity ................................................534 B. The Rule of Lenity After Universal C.I.T. ..................................................538 C. The Rise of Ultimate Ambiguity ..................................................................547 D. The Pull of Lenity ..........................................................................................557 E. Textualism and the Rule of Lenity ..............................................................561 F. When is an Ambiguous Statute Ambiguous? .............................................565 III. A WAY FORWARD .....................................................................................................567 CONCLUSION......................................................................................................................576
    [Show full text]
  • Justice Scalia's Originalism and Formalism
    University of Pennsylvania Carey Law School Penn Law: Legal Scholarship Repository Faculty Scholarship at Penn Law 8-30-2016 Justice Scalia’s Originalism and Formalism: The Rule of Criminal Law as a Law of Rules Stephanos Bibas University of Pennsylvania Carey Law School Follow this and additional works at: https://scholarship.law.upenn.edu/faculty_scholarship Part of the Constitutional Law Commons, Criminal Law Commons, Criminal Procedure Commons, Fourth Amendment Commons, Judges Commons, Jurisprudence Commons, Law and Politics Commons, Law and Society Commons, Law Enforcement and Corrections Commons, Legal History Commons, Public Law and Legal Theory Commons, Rule of Law Commons, and the Supreme Court of the United States Commons Repository Citation Bibas, Stephanos, "Justice Scalia’s Originalism and Formalism: The Rule of Criminal Law as a Law of Rules" (2016). Faculty Scholarship at Penn Law. 1664. https://scholarship.law.upenn.edu/faculty_scholarship/1664 This Article is brought to you for free and open access by Penn Law: Legal Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship at Penn Law by an authorized administrator of Penn Law: Legal Scholarship Repository. For more information, please contact [email protected]. SPECIAL REPORT | NO. 187 AUGUST 30, 2016 Justice Scalia’s Originalism and Formalism: The Rule of Criminal Law as a Law of Rules Stephanos Bibas originalists seemed to focus on the Framers’ sub- jective intent, a hazardous inquiry given the paucity ar too many reporters and pundits collapse law of sources and the difficulty of separating sincerity Finto politics, assuming that the left–right divide from propaganda. between Democratic and Republican appointees Rather than plumbing the Framers’ minds, Jus- neatly explains politically liberal versus politically tice Scalia took an objective approach.
    [Show full text]
  • Common-Law Courts in a Civil-Law System: the Role of United Stat-Es Federal Courts in Interpreting the Constitution and Laws
    Common-Law Courts in a Civil-Law System: The Role of United Stat-es Federal Courts in Interpreting the Constitution and Laws. ANTONIN SCALIA THE FOLLOWING essay attempts to explain the current. ne-. glected state of the science of construing legal texts, and offers a few suggestions for improvement. It is addressed not just to· lawyers but to all thoughtful Americans who share our national obsession with the law. THE COMMON LAW The first year of law school makes an enormous impact upon the mind. Many students remark upon the phenomenon. They exp~rience a sort of intellectual rebirth, the acquisition of a whole new mode of perceiving and thinking. Thereafter, even if they do not yet know much law, they do-as the expression goe~"think like a lawyer." The overwhelming majority of the courses taught in that first year, and surely the ones that have the most profound effect, teach the substance, and the methodology, of the common law-torts, for example; contracts; property; criminal law. I am grateful for technical and research assistance by Matthew P. Previn, and for substantive suggestions by Eugene Scalia. 3 ' ANTONIN SCALIA COMMON-LAW COURTS IN A CIVIL-LAW SYSTEM American lawyers cut their teeth upon the common law. To un- pioneered by Harvard Law School in the last century,. and . derstand what an effect that must have, you must appreciate brought to movies and TV by the redoubtable Professor Kings­ that the common law is not really common law, except insofar field of Love Story and The Paper Chase. The student is directed to as judges can be regarded as common.
    [Show full text]
  • How to Interpret Statutes - Or Not: Plain Meaning and Other Phantoms
    The Journal of Appellate Practice and Process Volume 10 Issue 2 Article 5 2009 How to Interpret Statutes - Or Not: Plain Meaning and Other Phantoms Steven Wisotsky Follow this and additional works at: https://lawrepository.ualr.edu/appellatepracticeprocess Part of the Legislation Commons Recommended Citation Steven Wisotsky, How to Interpret Statutes - Or Not: Plain Meaning and Other Phantoms, 10 J. APP. PRAC. & PROCESS 321 (2009). Available at: https://lawrepository.ualr.edu/appellatepracticeprocess/vol10/iss2/5 This document is brought to you for free and open access by Bowen Law Repository: Scholarship & Archives. It has been accepted for inclusion in The Journal of Appellate Practice and Process by an authorized administrator of Bowen Law Repository: Scholarship & Archives. For more information, please contact [email protected]. HOW TO INTERPRET STATUTES - OR NOT: PLAIN MEANING AND OTHER PHANTOMS* Steven Wisotsky** I. INTRODUCTION In 1926 the Government alleged that Timothy McBoyle hired a pilot to steal an airplane and fly it from Illinois to Oklahoma. Although McBoyle denied the charge, the jury convicted him of interstate transportation of a stolen motor vehicle in violation of a federal statute. The operative language of the National Motor Vehicle Theft Act of 1919 defined "motor vehicle" to include "an automobile, automobile truck, automobile wagon, motor cycle, or any other self-propelled vehicle not designed for running on rails."I On appeal, the Tenth Circuit affirmed the conviction, rejecting McBoyle's contentions that the word "vehicle" includes only conveyances that travel on the ground; that an airplane is not a vehicle but a ship; and that, under the doctrine of ejusdem generis, the phrase "any other self-propelled vehicle" cannot be construed to include an airplane.
    [Show full text]
  • Should Lenity Play a Role?
    RUTGERS BUSINESS LAW JOURNAL MARK S. POPOFSKY The Section 2 Debate: Should Lenity Play a Role? ABSTRACT. The Supreme Court‟s recent decision in Illinois Tool Works, by invoking the Rule of Lenity in construing the Sherman Act in a civil setting, raises a fundamental question concerning that statute: Should the theoretical possibility of criminal sanctions for monopolization offenses (Section 2 of the Sherman Act) narrow the Sherman Act in civil actions? Commentators have suggested that the answer might be yes. This Essay disagrees, and argues that lenity properly plays no role in judicial elaboration of the Sherman Act. Although the Supreme Court‟s insistence that a statute with both civil and criminal applications must mean the same thing regardless of enforcement setting appears to preclude different constructions of the Sherman Act depending on the selected enforcement tool, that merely raises the more fundamental issue of whether the Sherman Act is ambiguous in a lenity- triggering sense. The Essay demonstrates both that the Sherman Act‟s underlying Rule of Reason standard does not trigger the Rule of Lenity and that applying lenity to narrow the Sherman Act would not serve any of the Rule of Lenity‟s asserted purposes. AUTHOR. Adjunct Professor of Advanced Antitrust Law and Economics, Georgetown University Law Center; Partner, Ropes & Gray LLP; Member, California and District of Columbia Bars. The Author would like to thank Einer Elhauge, Jon Jacobson, M. Laurence Popofsky, and Steven Salop for their helpful comments, and Rebecca Schendel Norris for her assistance. 1 THE SECTION 2 DEBATE: SHOULD LENITY PLAY A ROLE? ESSAY CONTENTS INTRODUCTION 3 I.
    [Show full text]