Monday, November 25, 2002

THE KING'S ENGLISH (originally posted 6/11/01)

The Court handed down the Don King RICO case today, unanimously holding that the plaintiff has made adequate "enterprise"-related allegations. Cedric Kushner Promotions, Ltd. v. King, No. 00-549.

For some reason, Justice Breyer feels the need to explain repeatedly that he is construing the RICO statute as an English-language document. See slip op. at 3 (twice); cf. also id. at 4 (evaluating the statutory language "linguistically speaking," which is always a good way to do so), 5 (same). Thus, for example, Justice Breyer notes that "[t]he statute's language, read as ordinary English, suggests th[e] principle [that the RICO 'enterprise' must be distinct from the RICO 'person']." Id. at 3. He might have gone on to add that the statute's language, read as German, is a string of unintelligible gibberish.

Acutally, however, these seemingly gratuitous references to the English language might go a long way toward explaining many of Justice Breyer's other statutory interpretation opinions. Our harsh judgments of some of those opinions were premised upon the now-questionable assumption that Justice Breyer had been reading the statutes at hand as English texts. See, to take an arbitrary recent example, Egelhoff v. Egelhoff, No. 99-1529 (Mar. 21, 2001) (Breyer, J., dissenting) (arguably construing the ERISA preemption provision according to the rules of some foreign language). We resolve to be more sensitive in the future to the possibility that Justice Breyer is construing statutes and constitutional provisions in a perfectly reasonable, non-results-driven way in some private language of Breyer's own creation. There is good reason to believe, incidentally, that such language does not permit the use of footnotes.

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