Protean Statutory Interpretation in the Courts of Appeals

This Article is the first in-depth empirical and doctrinal analysis of differences in statutory interpretation between the courts of appeals and the Supreme Court. It is also among the first to anticipate how the Supreme Court’s interpretive approach may shift with the passing of Justice Scalia. We begin by identifying factors that may contribute to interpretive divergence between the two judicial levels, based on their different institutional structures and operational realities. In doing so, we discuss normative implications that may follow from the prospect of such interpretive divergence. We then examine how three circuit courts have used dictionaries and legislative history in three subject matter areas over the past decade and compare these findings in detail to the interpretive approach taken by the Roberts Court in the same three fields. We determine that the appeals courts have followed a protean approach, adapting their usage patterns in ways that differ substantially from patterns in the Supreme Court. Court of appeals judges use dictionaries far less relative to legislative history than do the Justices; we found no semblance of the distinctive dictionary culture that is prevalent on the Roberts Court. In addition, the relative frequency of dictionary usage between the two court levels varies considerably depending on the subject area and the type of dictionary (general or legal). With respect to relative frequency for legislative history, the Supreme Court, far more than the circuit courts, invokes the record of changes in statutory text—either modified over multiple Congresses (statutory history) or developed in successive preenactment versions of a bill (drafting history). This “vertical history” is apparently more attractive, or less unattractive, to textualist Justices than is traditional legislative history commentary such as committee reports. More broadly, circuit courts regularly use legislative history to resolve ambiguities, confirm apparent meaning, or simply explicate legislative intent, all without characterizing its legitimacy or systemic value. For both dictionaries and legislative history, the eclectic approach of the appeals courts differs markedly from the Supreme Court’s more self-consciously articulated methodological path. We suggest how certain sources of interpretive divergence contribute to these differences, notably the Justices’ interaction with their colleagues in every case and their experience as objects of continuing media and congressional attention, some of which reflects attention that carries over from the judicial confirmation process. We conclude that the eclecticism of the appeals courts is likely to limit judicial discretion more effectively than the Supreme Court’s current approach, which favors clear interpretive rules or priorities that are applied on a presumptively consistent basis

Oasis or Mirage: The Supreme Court\u27s Thirst for Dictionaries in the Rehnquist and Roberts Eras

The Supreme Court’s use of dictionaries, virtually non-existent before 1987, has dramatically increased during the Rehnquist and Roberts Court eras to the point where as many as one-third of statutory decisions invoke dictionary definitions. The increase is linked to the rise of textualism and its intense focus on ordinary meaning. This Article explores the Court’s new dictionary culture in depth from empirical and doctrinal perspectives. We find that while textualist justices are heavy dictionary users, purposivist justices invoke dictionary definitions with comparable frequency. Further, dictionary use overall is strikingly ad hoc and subjective. We demonstrate how the Court’s patterns of dictionary usage reflect a casual form of opportunistic conduct: the justices almost always invoke one or at most two dictionaries, they have varied individual brand preferences from which they often depart, they seem to use general and legal dictionaries interchangeably, and they lack a coherent position on citing to editions from the time of statutory enactment versus the time the instant case was filed. The Article then presents an innovative functional analysis of how the justices use dictionaries: as way stations when dictionary meanings are indeterminate or otherwise unhelpful; as ornaments when definitions are helpful but of marginal weight compared with more traditional resources like the canons, precedent, legislative history, or agency deference; and as barriers that preclude inquiry into or reliance on other contextual resources, especially legislative history and agency guidance. Ornamental opinions (the largest category) typically locate dictionary analysis at the start of the Court’s reasoning, subtly conveying that the lexicographic method should matter more than other interpretive resources. Barrier opinions would have been inconceivable prior to 1987 but now occur with disturbing frequency: they elevate the justices’ reliance on definitions in a radically acontextual manner, ignoring interpretive evidence from the enactment process and from agency experience. Finally, the Article analyzes whether the Court’s patterns of inconsistent dictionary usage, and its tendency to cherry-pick definitions that support results reached on other grounds, distinguish dictionaries from high-profile interpretive resources such as canons and legislative history that have been criticized on a similar basis. We contend that dictionaries are different from a normative vantage point, essentially because of how both wings of the Court have promoted them by featuring definitions frequently and prominently in opinions, and also how dictionaries are effectively celebrated as an independently constituted source of objective meaning (unlike the canons as judicial branch creations and legislative history as a congressional product). Yet our findings demonstrate that the image of dictionary usage as authoritative is a mirage. This contrast between the exalted status ascribed to dictionary definitions and the highly subjective way the Court uses them in practice reflects insufficient attention to the inherent limitations of dictionaries, limitations that have been identified by other scholars and by some appellate judges. The Article concludes by offering a three-step plan for the Court to develop a healthier approach to its dictionary habit

A study of cloud motions on Mars, part B Final report

Photographic plates used to map cloud motions on Mar

The Consistent Newtonian Limit of Einstein's Gravity with a Cosmological Constant

We derive the `exact' Newtonian limit of general relativity with a positive cosmological constant $\Lambda$. We point out that in contrast to the case with $\Lambda = 0$, the presence of a positive $\Lambda$ in Einsteins's equations enforces, via the condition $| \Phi | \ll 1$, on the potential $\Phi$, a range ${\cal R}_{max}(\Lambda) \gg r \gg {\cal R}_{min} (\Lambda)$, within which the Newtonian limit is valid. It also leads to the existence of a maximum mass, ${\cal M}_{max}(\Lambda)$. As a consequence we cannot put the boundary condition for the solution of the Poisson equation at infinity. A boundary condition suitably chosen now at a finite range will then get reflected in the solution of $\Phi$ provided the mass distribution is not spherically symmetric.Comment: Latex, 15 pages, no figures, errors correcte

Age, Socioeconomic Status and Obesity Growth

The rapid growth in obesity represents a major public concern. Although body weight tends to increase with age, the evolution of obesity over the lifecycle is not well understood. We use longitudinal data from the National Longitudinal Survey of Youth to examine how body weight changes with age for a cohort moving through early adulthood. We further investigate how the age-obesity gradient differs with socioeconomic status (SES) and begin to examine channels for these SES disparities. Our analysis uncovers three main findings. First, weight rises with age but is inversely related to SES at given ages. Second, the SES-obesity gradient widens over the lifecycle, a result consistent with research examining other health outcomes such as overall status or specific medical conditions. Third, a substantial portion of the SES "effect" is transmitted through race/ethnicity and the translation of advantaged family backgrounds during childhood into high levels of subsequent education. Conversely, little of the SES difference appears to be propagated through family income, marital status, number of children, or the set of health behaviors we control for. However, approximately half of the SES-weight correlation persists after the inclusion of controls, illustrating the need for further study of mechanisms for the gradient.

Mechanisms of femtosecond laser-induced refractive index modification of poly(methyl methacrylate)

The mechanisms of refractive index change in poly(methyl methacrylate) by frequency doubled femtosecond laser pulses are investigated. It is demonstrated that positive refractive index modificaton can be caused by a combination of depolymerization and crosslinking