Severability as Conditionality

The Supreme Court currently operates under the premise that if it finds one part of a law unconstitutional, it can strike down other parts as well. But it is not clear where the Court finds this power to declare laws inseverable. And that lack of clarity has created a doctrinal muddle wherein the Court applies several inconsistent tests. Three such theories are implicit in the current judicial doctrine and academic debate about severability: (1) that it is an equitable remedial power, akin to the power to issue a civil injunction; (2) that it is a variant of intentionalist statutory interpretation, wherein courts strike down further provisions of a partially unconstitutional law so as to preserve the legislators¿ hypothetical intentions; and (3) that it is a judicial contract remedy applied to legislative deals. This Article explores these three theories, teasing out their respective logics and showing that they are implausibly broad and inconsistent with Article III of the Constitution. This Article then develops and defends a fourth, narrower theory: that a court can declare a statute inseverable only where the legislature has made one part of the statute conditional on the continued validity of another

Constitutional Avoidance as Interpretation and as Remedy

In a number of recent landmark decisions, the Supreme Court has used the canon of constitutional avoidance to essentially rewrite laws. Formally, the avoidance canon is understood as a method for resolving interpretive ambiguities: if there are two equally plausible readings of a statute, and one of them raises constitutional concerns, judges are instructed to choose the other one. Yet in challenges to the Affordable Care Act, the Voting Rights Act, the Chemical Weapons Convention, and other major statutes, the Supreme Court has used this canon to adopt interpretations that are not plausible. Jurists, scholars, and legal commentators have criticized these decisions, claiming that they amount to unaccountable judicial lawmaking. These criticisms highlight a basic contradiction in contemporary avoidance doctrine. On the one hand, the avoidance canon is described as an interpretive rule of thumb that guides courts in discerning congressional intent. Yet on the other, the Supreme Court commonly uses the avoidance canon to create statutory meanings that conflict with Congress’s intent, and does so in the name of new constitutional rules that Congress did not foresee. This is not “interpretation” in the conventional sense; it is rewriting in the service of constitutional norm enforcement. This Article mounts a new defense of such rewriting-as-interpretation. It does so by reframing the avoidance canon as two different judicial tools: (1) a canon of interpretation, and (2) a constitutional remedy. The latter of these— avoidance as a constitutional remedy—makes sense of courts’ power to effectively rewrite statutes. A court that finds a statute unconstitutional can creatively reinterpret that statute in a way that changes its meaning in order to fix the constitutional violation, just as it can invalidate statutory language, strike down applications, and impose other kinds of remedies that change the statute’s meaning. This idea is not as unusual as it may seem. Many other countries currently treat avoidance as a constitutional remedy. In the United Kingdom and New Zealand, for example, judges cannot invalidate laws, and so creative reinterpretation of statutes is the only judicial mechanism for remedying violations of constitutional rights. And in Canada, constitutional avoidance doctrine has been divided into an interpretive canon and a remedy, exactly as this Article advocates. Further, the Supreme Court of the United States has effectively treated avoidance as a remedy in two major recent decisions— United States v. Booker and National Federation of Independent Business v. Sebelius—though it did not acknowledge that it was doing so. Bifurcating avoidance into a canon and a remedy resolves the contradiction between avoidance as an interpretive tool and avoidance as a means of changing the law. It does so by separating out these two functions. The interpretive avoidance canon can be used to resolve true ambiguities through the presumption that Congress does not intend to pass statutes that conflict with preexisting constitutional rules. The reinterpretation remedy, in turn, can be used to change a statute’s meaning after it has been held unconstitutional, and to do so even where the court is announcing a new constitutional rule

Rare Complications of Cervical Spine Surgery: Pseudomeningocoele.

STUDY DESIGN: This study was a retrospective, multicenter cohort study. OBJECTIVES: Rare complications of cervical spine surgery are inherently difficult to investigate. Pseudomeningocoele (PMC), an abnormal collection of cerebrospinal fluid that communicates with the subarachnoid space, is one such complication. In order to evaluate and better understand the incidence, presentation, treatment, and outcome of PMC following cervical spine surgery, we conducted a multicenter study to pool our collective experience. METHODS: This study was a retrospective, multicenter cohort study of patients who underwent cervical spine surgery at any level(s) from C2 to C7, inclusive; were over 18 years of age; and experienced a postoperative PMC. RESULTS: Thirteen patients (0.08%) developed a postoperative PMC, 6 (46.2%) of whom were female. They had an average age of 48.2 years and stayed in hospital a mean of 11.2 days. Three patients were current smokers, 3 previous smokers, 5 had never smoked, and 2 had unknown smoking status. The majority, 10 (76.9%), were associated with posterior surgery, whereas 3 (23.1%) occurred after an anterior procedure. Myelopathy was the most common indication for operations that were complicated by PMC (46%). Seven patients (53%) required a surgical procedure to address the PMC, whereas the remaining 6 were treated conservatively. All PMCs ultimately resolved or were successfully treated with no residual effects. CONCLUSIONS: PMC is a rare complication of cervical surgery with an incidence of less than 0.1%. They prolong hospital stay. PMCs occurred more frequently in association with posterior approaches. Approximately half of PMCs required surgery and all ultimately resolved without residual neurologic or other long-term effects

Climate change threatens polar bear populations : a stochastic demographic analysis

Author Posting. © Ecological Society of America, 2010. This article is posted here by permission of Ecological Society of America for personal use, not for redistribution. The definitive version was published in Ecology 91 (2010): 2883–2897, doi:10.1890/09-1641.1.The polar bear (Ursus maritimus) depends on sea ice for feeding, breeding, and movement. Significant reductions in Arctic sea ice are forecast to continue because of climate warming. We evaluated the impacts of climate change on polar bears in the southern Beaufort Sea by means of a demographic analysis, combining deterministic, stochastic, environment-dependent matrix population models with forecasts of future sea ice conditions from IPCC general circulation models (GCMs). The matrix population models classified individuals by age and breeding status; mothers and dependent cubs were treated as units. Parameter estimates were obtained from a capture–recapture study conducted from 2001 to 2006. Candidate statistical models allowed vital rates to vary with time and as functions of a sea ice covariate. Model averaging was used to produce the vital rate estimates, and a parametric bootstrap procedure was used to quantify model selection and parameter estimation uncertainty. Deterministic models projected population growth in years with more extensive ice coverage (2001–2003) and population decline in years with less ice coverage (2004–2005). LTRE (life table response experiment) analysis showed that the reduction in λ in years with low sea ice was due primarily to reduced adult female survival, and secondarily to reduced breeding. A stochastic model with two environmental states, good and poor sea ice conditions, projected a declining stochastic growth rate, log λs, as the frequency of poor ice years increased. The observed frequency of poor ice years since 1979 would imply log λs ≈ − 0.01, which agrees with available (albeit crude) observations of population size. The stochastic model was linked to a set of 10 GCMs compiled by the IPCC; the models were chosen for their ability to reproduce historical observations of sea ice and were forced with “business as usual” (A1B) greenhouse gas emissions. The resulting stochastic population projections showed drastic declines in the polar bear population by the end of the 21st century. These projections were instrumental in the decision to list the polar bear as a threatened species under the U.S. Endangered Species Act.We acknowledge primary funding for model development and analysis from the U.S. Geological Survey and additional funding from the National Science Foundation (DEB-0343820 and DEB-0816514), NOAA, the Ocean Life Institute and the Arctic Research Initiative at WHOI, and the Institute of Arctic Biology at the University of Alaska–Fairbanks. Funding for the capture–recapture effort in 2001–2006 was provided by the U.S. Geological Survey, the Canadian Wildlife Service, the Department of Environment and Natural Resources of the Government of the Northwest Territories, and the Polar Continental Shelf Project, Ottawa, Canada

Muscle Loss Is Associated with Overall Survival in Patients with Metastatic Colorectal Cancer Independent of Tumor Mutational Status and Weight Loss

Background: Survival in patients with metastatic colorectal cancer (mCRC) has been associated with tumor mutational status, muscle loss, and weight loss. We sought to explore the combined effects of these variables on overall survival. Materials and methods: We performed an observational cohort study, prospectively enrolling patients receiving chemotherapy for mCRC. We retrospectively assessed changes in muscle (using computed tomography) and weight, each dichotomized as >5% or ≤5% loss, at 3, 6, and 12 months after diagnosis of mCRC. We used regression models to assess relationships between tumor mutational status, muscle loss, weight loss, and overall survival. Additionally, we evaluated associations between muscle loss, weight loss, and tumor mutational status. Results: We included 226 patients (mean age 59 ± 13 years, 53% male). Tumor mutational status included 44% wild type, 42% RAS-mutant, and 14% BRAF-mutant. Patients with >5% muscle loss at 3 and 12 months experienced worse survival controlling for mutational status and weight (3 months hazard ratio, 2.66; p 5% muscle loss with BRAF-mutational status at 6 and 12 months. Weight loss was not associated with survival nor mutational status. Conclusion: Increased muscle loss at 3 and 12 months may identify patients with mCRC at risk for decreased overall survival, independent of tumor mutational status. Specifically, >5% muscle loss identifies patients within each category of tumor mutational status with decreased overall survival in our sample. Our findings suggest that quantifying muscle loss on serial computed tomography scans may refine survival estimates in patients with mCRC. Implications for practice: In this study of 226 patients with metastatic colorectal cancer, it was found that losing >5% skeletal muscle at 3 and 12 months after the diagnosis of metastatic disease was associated with worse overall survival, independent of tumor mutational status and weight loss. Interestingly, results did not show a significant association between weight loss and overall survival. These findings suggest that muscle quantification on serial computed tomography may refine survival estimates in patients with metastatic colorectal cancer beyond mutational status

C5 Palsy After Cervical Spine Surgery: A Multicenter Retrospective Review of 59 Cases.

STUDY DESIGN: A multicenter, retrospective review of C5 palsy after cervical spine surgery. OBJECTIVE: Postoperative C5 palsy is a known complication of cervical decompressive spinal surgery. The goal of this study was to review the incidence, patient characteristics, and outcome of C5 palsy in patients undergoing cervical spine surgery. METHODS: We conducted a multicenter, retrospective review of 13 946 patients across 21 centers who received cervical spine surgery (levels C2 to C7) between January 1, 2005, and December 31, 2011, inclusive. P values were calculated using 2-sample t test for continuous variables and χ(2) tests or Fisher exact tests for categorical variables. RESULTS: Of the 13 946 cases reviewed, 59 patients experienced a postoperative C5 palsy. The incidence rate across the 21 sites ranged from 0% to 2.5%. At most recent follow-up, 32 patients reported complete resolution of symptoms (54.2%), 15 had symptoms resolve with residual effects (25.4%), 10 patients did not recover (17.0%), and 2 were lost to follow-up (3.4%). CONCLUSION: C5 palsy occurred in all surgical approaches and across a variety of diagnoses. The majority of patients had full recovery or recovery with residual effects. This study represents the largest series of North American patients reviewed to date