The Fish Case aka Grouper-Gate aka Yates v. U.S., No. 13-7451, appeared here on December 1, 2014. The case posed for the Supreme Court this question: Whether Mr. Yates was deprived of fair notice that the destruction of fish violated provisions in the Sarbanes-Oxley Act, which makes criminal “knowingly alter[ing], destroy[ing], mutilat[ing], conceal[ing], cover[ing] up, falsif[ying], or mak[ing] a false entry in any record, document, or tangible object,” intending to impede or obstruct an investigation.

The case involved claims by the government that commercial fisherman John Yates destroyed under-sized fish to avoid prosecution. (I’m not going to dwell on the facts, as I heard from fisherwife after the first post, and it was clear after reading her comment that everything I know about fish I have learned from grocery stores and restaurants.) About Sarbanes-Oxley I do not know lots more, except that it was the law passed by Congress and signed by President George W. Bush in the aftermath of the Enron scandal circa the first year or so of the century. In no one’s mind did Congress pass Sarbanes-Oxley to deal with fish.

The Court issued its written decision on February 25, 2015. For Lyle Denniston fans, here’s A Fisherman Slips Through Federal Prosecutors’ Net from SCOTUSblog.com, which explains things well. For non-clickers, whether fish are tangible objects was the question. Not for Sarbanes-Oxley purposes, said Justices Ginsburg (main opinion author), Breyer, Sotomayor, and Chief Justice Roberts. Justice Alito concurred, while Justices Kagan (writing the dissenting opinion), Kennedy, Scalia, and Thomas believe tangible means tangible, thank you very much!

As an aside, the three opinions are dense with Latin-titled rules about construing language in statutes. Still, the three justices who write managed to not lose track of the fish story theme. For clarity and brevity, though, Justice Alito wins the prize with his four-page concurrence.

I don’t litigate very often with the federal government. On a few occasions, however, I have been in cases in which a statute gets mangled beyond recognition for the purpose of winning. I do appreciate the textualist argument which Justice Scalia advocates for—although I think he abandons it from time to time to get to an outcome—but in tacking that way following that tack I think courts often get close the law is an ass territory. Frankly, as a sentient being who has met legislators at the state and federal level, who deals with statutes every day, and who follows the law-making process, I wonder how wise we are if we hold ourselves to the written word in every statute, with no accounting for context, conflicting interpretations, drafting errors, etc.? Really?

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Another follow-up matter has a closer connection for yours truly. Spiderman Goes to the Supreme Court, posted at MRW on December 22, 2014, reported on the patent royalties fight between Marvel Enterprises and friends/Tucson attorneys Bob Grabb and Steve Kimble. Oral argument is set for March 30. Here’s an excellent preview by Columbia Law Professor Ronald Mann for SCOTUSblog.com. Later in the week or next Tuesday I’ll provide a follow-up on the argument.