Thursday, July 07, 2005

Rashi and the Reading of Statutes

Observant young Jewish children learning Chumash (the first five books of the Bible) also read Rashi's commentary to those books. Rashi was Rabbi Shlomo Yitzhaki, born in Troyes, France. He was the greatest Biblical scholar of the Middle Ages, one of the great ages of Jewish scholarship. Rashi is used as a learning device for children not because he is simple (he isn't) but because of the unusual nature of his commentary. His commentary consists of very terse conclusions, but without the questions that prompted the conclusions. Children are left with the task of asking "What's Bothering Rashi?" That is, what was it in the text that bothered Rashi so much that he felt compelled to comment on it? (Dr. Avigdor Bonchek's recent and delightful series, of five books of course, "What's Bothering Rashi?," helps students work through what was in fact bothering Rashi in a few select examples. For the vast majority of the rest, students are on their own, and that's the idea).

The "What's Bothering Rashi?" approach to learning text is useful in analyzing statutes because it teaches one to ask the why of things, rather than as we almost always do, just read the literal words divorced from what the law would be like in their absence. Since at least the 1584 opinion in Heydon's Case, 76 Eng. Rep. 637, courts have looked to the "mischief" the legislature sought to solve, that is, they have sought to discover the purpose of the statute as a guide to understanding how to interpret it. This may support, but does not require, examination of legislative history, and even textualists follow Heydon's Case. In some ways, the exercise is even more important for textualists because they usually won't look to external explanations of purpose like committee reports or floor statements.

Israeli Supreme Court President Aharon Barak has written a 6 volume book (in Hebrew) on statutory interpretation ("Parshanut ba-mishpat"), the last volume of which has just been translated into English as Purposive Interpretation in Law. It is an invaluable look at the subject, with quite alot on U.S. law. Felix Frankfurter's famous 1947 lecture "Some Reflections on the Reading of Statutes," 47 Columbia Law Review 527 is also a wonderful read, but what prompted this posting was my study, yesterday, of the late, great Second Circuit Judge Henry Friendly's review of Frankfurter's lecture "Mr. Justice Frankfurter and the Reading of Statutes." Friendly's essay may be found in a 1967 collection of his lectures called Benchmarks. (He has another essay in the same volume that is quite critical of Congress, entitled "The Gap in Lawmaking - Judges Who Can't and Legislators Who Won't." Friendly was particularly critical of the drafting of the 1909 Copyright Act. In his Gap essay he wrote: "Anyone who has had to deal with the Copyright Act of 1909 must stand in awe of the ability of the framers to toss off a sentence that can have any number of meanings." And in Rohauer v. Killiam Shows, Inc., 551 F.2d 484, 486 (2d Cir. 1977), he wrote: "As has been so often true in cases arising under the Copyright Act of 1909, neither an affirmative nor a negative answer is completely satisfactory. A court must grope to ascertain what would have been the thought of the 1909 Congress on an issue about which it almost certainly never thought at all." Obviously, I am not trying to overstate in this posting Congress's drafting skills).

What Friendly points out is that for various reasons, none of Frankfurter's predecessors, not Holmes, not Cardozo, not Brandeis, nor even Learned Hand had anything approaching Frankfurter's interest in the challenges posed by intepreting statutes. Frankfurter had pioneered their study as an academic topic at Harvard Law School and came to the bar (as they said in those days) during the FDR I era of new legislation. As Friendly put it, "His whole legal life had been lived with statutes."

What I learned from writing provisions of the Copyright Act on the Hill was invaluable to me, and I think it would be to others. First, in trying to amend an existing statute, one comes to appreciate text as nothing more than what one group of people did at a discrete point in time to solve a discrete problem. Maybe they did a bad job and maybe you can do a better job, and the proof of that is in the trying. Sometimes I found I could do a better job, and sometimes I found I couldn't. I learned more from the times I couldn't because it taught me that the words were there for a reason I had never really grasped.

Sometimes things change so much the words have to change, and that is a real challenge because you have to struggle not only to find the right words for your problem but to also try and be somewhat clairvoyant so you didn't have to do it over again next year. Not easy, because we're not clairvoyant. But at the same time, Congress won't legislate over and over again for every new technology. For example, the definition of "fixed" in the 1976 Act was deliberately drafted broadly and encompassed without any problems compact discs when they later came along. Yet, that same definition has caused major problems when it was construed (technically correctly) to include RAM copying. Licensing problems from buffering on the Internet are a direct result.

The next time you are faced with interpreting a provision of the Copyright Act, at least if you are baffled by it, try to figure out the question that was bothering Rashi. It may help. It is, if you do it honestly and diligently, at least a good learning experience. One way to do that is to imagine how the law would be different if the provision wasn't there at all.


Anonymous said...

Speaking of statutes, this one has had me baffled for the past few months (it is the IL non-economic practices act):

No person, firm or corporation engaged in any business enterprise in this state shall, by any method or procedure, directly or indirectly, by itself or through a subsidiary agency owned or controlled in whole or in part by such person, firm or corporation, sell or procure for sale or have in its possession or under its control for sale to its employees or any person, any article, material, product or merchandise of whatsoever nature not of his or its own production or not handled in his or its regular course of trade, excepting meals, cigarettes and tobacco, and excepting such specialized appliances and paraphernalia as may be required in said business enterprise for the safety or health of its employees. The provisions of this section shall not apply to associations organized under "An Act to provide for the incorporation of cooperative associations for pecuniary profit," filed July 8, 1915, as amended, or to associations organized under "An Act in relation to Agricultural Cooperative Associations and Societies," approved June 21, 1923, as amended.

I can't figure out what's bothering Rashi.

Anonymous said...

Ignoring judicial pronouncments on the issue Prof. Patry, would you care to take a position on the interpretation of section 512 of title 17, and whether inconsistincies in the drafting indicate that Congress must not have meant for the subpoena provision to apply to ISPs offering "Transitory Digital Network Communications" under section (a)? Isn't there sometimes a difference between what's bothering Congress and what's bothering the Courts?

William Patry said...

Dear Anonymous:

Textualists say that they don't look to what Congress meant to say but what it did say, as expressed in the statute. And despite my earlier snarky criticisms of Justice Scalia, I wholeheartedly agree with this. If Congress makes a mistake in the statute, too bad, Congress should fix it.

I would describe myself as a "strict intentionalist," meaning while I think one may always look to legislative history, you can't do so to vary the plain meaning of a statute.

As to the subpoena question, my recollection of Judge D.H. Ginsburg's approach in the Verizon case was to look to the plain language in Section 512(h)and the structure of Section 512. He agreed with Verizon that 512(h) does not by its terms authorize subpoenas that don't meet the notice requirements of 512(c)(3)(A)(iii). He rejected RIAA's references to congressional testimony and news articles available to Congress because he found the plain language and structure clear.

The what's bothering Rashi part of it came into play because P2P wasn't in existence then and so couldn't have been an issue for Congress. So if it is a problem now, Judge Ginsburg was saying go to Congress.

Ditto the above for Judge Bye's opinion for the 8th Circuit in Charter Communications, although there was a vigorous dissent by Judge Murphy. I think he found the word "or" ambiguous and so felt free to delve into legislative history which he seems to have interpreted according to a broader purpose than the other judges of either court. I guess Rashi was bothered by P2P according to him

Anonymous said...

An alumni of Mesivta Haïm Berlin in Brooklyn, I’m now doing a Masters in Internet Law at Panthéon-Sorbonne, Paris I. I am familiar with Rabbi Bonchek's articles and enjoyed your post a great deal, especially reading it from France where no Professor at Law would dare to bring in the realm of his reasoning (not to mention publishing) any kind of Jewish element for fear that his peers would question his professionalism.

Best regards,