Saturday, March 7, 2015

When a fish is not a "tangible object" and why this matters

A brief note on the intriguing case of Yates v. United States, decided by the U.S. Supreme Court on February 25, 2015: This case asked whether a fish is a "tangible object," and answered: no. (By a 5 - 4 majority, with the deciding vote cast by Justice Alito, who agreed with the result but did not concur in the reasoning of the plurality opinion by Justice Ginsburg.)

How could a fish not be a tangible object? Obviously the dictionary would confirm that a fish is a tangible object -- it can, in fact, be touched. But "tangible object" in this statute, the Supreme Court concluded, did not mean all objects encompassed in the dictionary meaning of the words. Instead, to make a long story short, the Court concluded that in this particular statute -- part of the Sarbanes-Oxley law, enacted after the Enron bankruptcy and aimed, at least most directly, at preventing future massive financial frauds -- and as part of the statutory phrase "knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object," the words "tangible object" referred to objects "used to record or preserve information." (Plurality opinion at 20.) What Mr. Yates had done was to throw undersize fish overboard, to avoid federal fish & wildlife penalties.

That's all interesting. I'm not sure that Justice Ginsburg has the better of the argument in terms of the various tools of statutory interpretation she and Justice Kagan, who wrote the dissent, employ. (This case is a wonderful one for teachers of statutory interpretation, like me; in three quite short opinions it runs through many of the rules that currently play an important part in how statutes are read.) But the case certainly stands for one proposition: dictionary meaning, inconsistent with context, doesn't always control. And that might be a good sign for the Affordable Care Act, which poses a similar problem: does the statute, which permits tax credits only to people who buy their insurance from a health care exchange created by a state, actually, in context, also permit tax credits to people who buy their insurance from a health care exchange created by the federal government in a state that chose not to create its own? The fate of the Affordable Care Act rests, to a very large extent, on this precise question of statutory interpretation. 

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