A Challenging But Educational Moot Court Problem Idea

During my third year of law school, I had the opportunity to help develop the problem for the UCLA Cyber Crimes moot court competition. It was a fascinating experience, and seeing the problem come to life as I watched various teams from across the country was very rewarding. For those who are interested, I blogged about the details of the competition here.

In moot court competitions, problem developers write out a lower court opinion and give competitors a list of potential cases, statutes, articles, and other resources that they may use in arguing the appeal of the opinion before the Supreme Court. These problems are often based on actual cases that are currently being reviewed -- or that will soon be reviewed -- by the Supreme Court. 

In my experience, problem developers lean toward creating problems that involve questions of constitutional law. This is understandable, since constitutional law cases often involve interesting fact patterns and closely related policy concerns. In my experience as a moot court competitor and a member of the moot court board, I saw that problems concerning statutory interpretation were less-popular among the competitors, and problem developers tended to shy away from these cases.

Even if competitors might not enjoy the prospect of a problem based on an issue of statutory interpretation, a moot court problem based on statutory interpretation can be extremely useful for students. While statutory interpretation is often neglected by law school courses, it is an important skill for the practicing attorney to have, and its usefulness cuts across a wide range of legal subjects.

The difficult part for the moot court problem developer who wants to write a problem centered around statutory interpretation is finding a case going before the Supreme Court that can tie into wider questions of policy (so that the interests of students -- and judges -- are piqued).

This term, the Supreme Court is hearing such a case: Yates v. United States.

I blogged about Yates here in April. SCOTUSBlog's file on the case is here. The issue presented is:

Whether Mr. Yates was deprived of fair notice that destruction of fish would fall within the purview of 18 U.S.C. § 1519, which makes it a crime for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with the intent to impede or obstruct an investigation, where the term “tangible object” is ambiguous and undefined in the statute, and unlike the nouns accompanying “tangible object” in section 1519, possesses no record-keeping, documentary, or informational content or purpose.

The case has gotten the attention of several amici: the Cato institute has filed this amicus brief in the case, and 18 law professors have filed this brief. Both of those briefs are filed in support of the petitioner.

As the issue presented above indicates, the question concerns the scope of 18 U.S.C. § 1519 and the meaning of the term "tangible object." This case raises larger questions about the permissible scope of federal criminal law, with critics of the government's position in this case arguing that classifying a fish as a destroyed record is an example of federal overcriminalization of typical activities.

Beyond the lower court opinion in Yates, what would an ideal moot court universe for this case include? I would make sure that it included cases representing the various canons of statutory interpretation that come into conflict in this case. The requirement that words be given their ordinary meaning and the ejusdem generis canon strike me as two such opposing canons, and many more could certainly be added.

One could easily search a text like Antonin Scalia's and Bryan Garner's Reading Law and find these and other canons involved in Yates, and citations to cases where the Supreme Court enunciated and applied the rules of statutory interpretation. The adventurous problem developer might even consider making Reading Law (or selections from it) one of the resources available to competitors. Add in some citations to articles on overcriminalization (e.g., this and this) and you have a convenient avenue for policy debate.

Yates might not make as "sexy" a problem as constitutional law cases, but because it involves a clear dispute over statutory meaning, and because it ties into broader concerns about overcriminalization, I think that competitors and judges can get involved and interested even if this is not the most traditional moot court case. Moreover, giving students an opportunity to brief and argue a statutory interpretation case would be a valuable educational experience, since statutory interpretation is often overlooked or under-emphasized in traditional law school teaching.