Sunday, March 1, 2015


Fish is usually both the singular and plural form of the word. The word "fishes", however, has acceptable uses. Some biblical translations refer to "loaves and fishes." Ichthyologists refer to multiple species as fishes.

And then, of course, there's The Godfather's Luca Brasi  who "sleeps with the fishes."

The Supreme Court examined the word "fish" last week in Yates v. United StatesWe first posted about Yates here. A fisherman was suspected of catching undersized fish, but before his school was seized, he converted his commercial enterprise into a catch-and-release program. He was prosecuted for destruction of evidence.

The issue was whether the fish were 'tangible objects' within the meaning of the Sarbanes-Oxley Act (affectionately known as SOX), the law that followed from Enron's mass document shredding.

Yes, fish are tangible objects. No, fish are not tangible objects as contemplated by SOX. This is a case about statutory interpretation, or of "matching construction" and fish did not match the statute's document destruction construct. Tangible objects "can be used to record or preserve information, not all physical objects in the world." The plurality reviews classic, Latin-laden principles of statutory construction, and ends with a nod to the rule of lenity.

Yates has an odd cast of votes. RBG wrote the plurality opinion, with Roberts, Breyer, and Sotomayor. That's four. Alito concurs by aggregating nouns, verbs, and titles. He has a point -- the title is "Destruction, alteration, or falsification of records in Federal investigations or bankruptcy." But Justice Kagan leads a rather sharp dissent, joined by Scalia, Kennedy, and Thomas.

And this is where we get back to fish plurals. Justice Kagan cites to "see generally, Dr. Suess, One Fish Two Fish Red Fish Blue Fish." Two Fish, not Two Fishes. (Dr. Suess's PhD was apparently not in ichthyology).

Not that this explains why she dissents. Justice Kagan cleaves to the simplest construct -- tangible object means just that, and the statute was intended to be encompassing rather than restrictive. The oral argument was soaked in questions about prosecutorial discretion in expending resources for this case, but that  reproach barely seeped though the written opinions. All criticism was directed at the opposing camps. Kagan, sounding more like Justice Scalia, shot that the statute's "meaning should not hinge on the odd game of Mad Libs the concurrence proposes."

But the dissent does finally hit on the real matter at hand: the "overcriminalization and excessive punishment in the U.S. Code." Justice Kagan finds her own voice again, admitting this is a bad law, "too broad and undifferentiated, with too-high maximum penalties, which give prosecutors too much leverage and sentencers too much discretion. And I'd go further: In those ways, [the statute] is unfortunately not an outlier, but an emblem of a deeper pathology in the criminal code." Then the ball -- or the fish -- is tossed back to Congress.  In the end, Justice Alito's dry, grammatical allegiance saves Yates.  

The Government's size obsession was on full display in this case. The Fish Police were on board and inspected the fish before they (the fish) were returned to their natural habitat. By law, the fish had to be at least 20 inches in length. (That was later lowered to 18 inches, but only after Yates' indictment). The Fish Police discovered 72 fish were shorter than 20 inches -- 69 were between 19 and 20 inches, and three were 18.75 inches. For that 1.25 inches, we get to the United States Supreme Court.

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