July 08, 2004

Milbarge: Email Interpretation, Blog Post Interpretation, Statutory Interpretation, and the Presidential Election

by Guest Contributor

I'll admit I was a little confused by our first Survivor challenge. I know it sounds so simple, but it isn't. We got an email directing us to "write a post that discusses a legal issue as it relates to Bush or the presidential election generally." As you can see here, PG relayed this command as a directive to "discuss the law or a legal issue as it relates to President Bush or to the presidential election generally." Notice the subtle difference? PG's post has an extra "to" in it. When I read the email, I took it to mean that we should discuss a legal issue relating to the President or something about the election generally, but not necessarily "legal." When I saw the post, however, I realized that we were supposed to discuss either a legal issue about Bush or a legal issue about the election generally. But either way, the law had to show up.

I'm not mentioning this to chide PG for the ambiguity. I'm sure the fault was mine for misinterpreting something that I'm sure was perfectly obvious to everyone else. But the result was that I spent all day wracking my brain for something to write about. And this was what was maddening about the enterprise. At first, I thought this was a very easy challenge, because there are so many possibilities. And then I realized the genius behind it: There are so many possibilities. How to pick something that I can discuss knowledgeably that hasn't been written to death?

Well, I'll have you know that I came up with a few things, but they were all in the "presidential election generally" category, and not specifically legal in nature. My front-runner was whether John and Elizabeth Edwards would ask the Bush twins to babysit Jack and Emma Claire. But that will just have to wait for some other time. Once I saw PG's post, I had to quickly switch gears and try to find a "legal issue." It was sort of an Emily Letilla moment. (I am, of course, assuming that PG's post is merely an example for us challengers, rather than a selection of the topic for us to discuss, given that it wasn't mentioned in the email but instead it seemed we were to pick our own topics.)

So, given my close parsing of the text of PG's email and post, perhaps it's not surprising that I choose the controversy over the Class Action Fairness Bill, currently being debated in the Senate, conveniently timed to coincide with John Kerry's selection of John Edwards as his running mate. No doubt that if this bill becomes a law, countless hours will be spent looking for extra "to's" and other loopholes and quirks.

What interests me about the bill, aside from the main thrust of it to send more class action lawsuits to federal court, is the goody-bag it is likely to turn into before it's done. The President has pledged to sign it in its current form, but the Democrats want to include amendments extending the "assault weapons" ban and raising the minimum wage. Look for plenty of posturing about nefarious "trial lawyers," gun rights, "working families," and whatever else gets shoehorned into this thing. It wouldn't surprise me to see ANWR stage a comeback. My bet is that both candidates end up finding something they like and something they don't in the act. But it should make for interesting legislative machinations as we near the election. If I had to go out on a limb, I see this scenario playing out: Bush announces he opposes the minimum wage increase, but if it gets included in the final version, he'll sign it and take credit for it as a measure he championed to help middle-class Americans. And, the Democrats who threaten to, or actually engage in, filibuster if the assault weapons ban is not included will be accused of voting against poor people.

As for the merits of the bill, I haven't studied it closely enough to have a firm opinion. But I have great respect for one its primary sponsors, a Democrat whom I'd rather not name. In the end, it doesn't look like it will be the panacea its sponsors suggest, or the poison pill its opponents warn. If a President Kerry ends up appointing a bunch of federal judges who are as friendly to class actions as Bush accuses so many state judges of being, maybe it will all even out anyway. At the very least, this bill bears watching, because it might be the most significant piece of legislation Congress will take up before the election.

July 8, 2004 05:02 PM | TrackBack

For my follow-up, please see this post on my regular blog. Thanks.

Posted by: Milbarge at July 9, 2004 03:09 PM
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