Vol. 99: Spring

This Essay advocates that the question of whether, under the Affordable Care Act, individuals who purchase insurance on federally created exchanges are eligible for tax credits should be interpreted using a recently proposed method of reading statutes – the “legislative process failure theory of statutory interpretation.” Under this theory, courts should not rely on traditional judicial methods of interpreting statutory provisions, especially technical application of Textualist tools of interpretation, when those methods lead to a “best meaning” that likely was not the meaning that most legislators ascribed to the provision.  In such instances, courts should pay more attention to contextual clues to legislators’ likely understanding of the statutory provision, including legislative history. With respect to tax credits for purchasers on federally created exchanges, this Essay concludes that the fact that virtually no one seemed to be aware, when the ACA was passed, that it could be read to preclude such subsidies strongly supports reading the statute to authorize them. Full essay here.

In a prior piece in this journal, I noted some disturbing developments in the law of accomplice liability. By definition, complicity law attaches guilt to the accomplice for the criminal acts of others.  Thus, no matter how trivial the assistance or commitment, she is as guilty as the actual criminal actor.  The notion of guilt for subsequent crimes committed by confederates magnifies this injustice, resulting in the conviction of the innocent through the deployment of some version of the “natural and probable consequences doctrine.” The application of that doctrine results in her conviction for all subsequent offenses, provided they meet the criteria for natural and probable. Unfortunately, since no functional criteria exist, it provides a form of absolute, vicarious liability, dispensing with any requirement for personal conduct or culpability.

That prior piece noted the strengthening, even expansion, of that doctrine through recent case law. Worse, it is now enshrined in the statutes of Illinois, capturing it as the doctrine of “common design.”  Though in utter conflict with other relevant statutory provisions, its robust survival attests to its traction, and its codification appears to forestall future attacks.   So, too, for the dozens of versions of that doctrine existing among the states, usually parading under that rubric of natural and probable.

However, relief may come from a two-pronged Due Process challenge.  First, Due Process clearly requires proof of guilt beyond a reasonable doubt.  Worse than conclusive presumptions of guilt, “common design” and its siblings attach guilt without any proof at all.  It’s automatic, once satisfied.  Moreover, these notions also fail because void for vagueness. There’s nothing meaningful to satisfy.  Not reducible to any workable decisional rules, they provide unfettered discretion throughout the system for standardless, arbitrary accusations and convictions. Full essay here.

My colleagues and friends, Mark Seidenfeld and Murat Mungan, have made an interesting attempt to reduce the doctrine of duress in contract law to an inquiry about “rent-seeking,” by which they mean attempts to redistribute rather than to produce wealth. There is much truth in their argument, and they are admirably sensitive to many factors that should be, and are, important in contract-modification cases.  I do not think they have shown, however, that duress can workably be reduced to a simple formulation in the way they intend—or that even if it could, it would serve the functional or even simply the instrumental goals of contract law to do so. Full essay here.