All copying is not created equal: borrowed language in Supreme Court opinions.

• Author: Feldman, Adam
• Position: Continuation of III. Measuring Language Overlap F. Lifted Relationships (High Percentage Overlap and High Word Overlap

To enable the Commission to make informed decisions at each stage of the enforcement process, [section] 2000e-8(a) confers a broad right of access to relevant evidence: "[T]he Commission or its designated representative shall at all reasonable times have access to, for the purposes of examination, and the right to copy any evidence of any person being investigated ... that relates to unlawful employment practices covered by [the Act] and is relevant to the charge under investigation." If an employer refuses to provide this information voluntarily, the Act authorizes the Commission to issue a subpoena and to seek an order enforcing it. [section] 2000e-9 (incorporating 29 U.S.C. [section] 161). (201)

Petitioner argues, nevertheless, that Title VII leaves courts with discretion to provide additional protection for tenure review documents. Although petitioner recognizes that Title VII gives the Commission broad "power to seek access to all evidence that may be 'relevant to the charge under investigation'" (Pet. Br. 38), it nevertheless contends that Title VII's subpoena enforcement provisions do not give the Commission an unqualified right to acquire such evidence. See Pet. Br. 38-41. That interpretation is untenable. First, the plain language of Section 709(a) of Title VII, 42 U.S.C.2000e-8(a), states that the Commission "shall ... have access" to relevant evidence; this can only be read as giving the Commission a right to that evidence, not a mere "power to seek" it. (202)

Petitioner argues, nevertheless, that Title VII affirmatively grants courts the discretion to require more than relevance in order to protect tenure-review documents. Although petitioner recognizes that Title VII gives the Commission broad "power to seek access to all evidence that may be 'relevant to the charge under investigation,'" Brief for Petitioner 38 (emphasis added), it contends that Title VII's subpoena enforcement provisions do not give the Commission an unqualified right to acquire such evidence. Id., at 38-41. This interpretation simply cannot be reconciled with the plain language of the text of [section] 2000e8(a), which states that the Commission "shall ... have access" to "relevant" evidence (emphasis added). The provision can be read only as giving the Commission a right to obtain that evidence, not a mere license to seek it. (203)

Title VII anticipates and addresses situations in which an employer may have an interest in the confidentiality of its records. The same Section that gives the Commission access to any evidence relevant to its investigations also makes it "unlawful for any officer or employee of the Commission to make public in any manner whatever any information obtained by the Commission pursuant to its authority under this section prior to the institution of any proceeding" under the Act. .... Any violation of this provision subjects the Commission's employees to criminal penalties. Ibid. (204)

Congress did address situations in which an employer may have an interest in the confidentiality of its records. The same [section] 2000e-8 which gives the Commission access to any evidence relevant to its investigation also makes it "unlawful for any officer or employee of the Commission to make public in any manner whatever any information obtained by the Commission pursuant to its authority under this section prior to the institution of any proceeding" under the Act. A violation of this provision subjects the employee to criminal penalties. Ibid. (205)

This deference to the SG's interpretation of the statutory scheme is also evident in C.I.R. v. Keystone Consolidated Industries, Inc. (206) The Keystone opinion uses some of the SG's language, and some similar to it, in interpreting the tax code, and uses the same canons of interpretation. A few examples include:

But even if "sale or exchange" had not had a settled meaning under the ... Code, it would be clear that Section 4975(c)(1)(A) prohibits the transfer of property in satisfaction of a debt. Congress did not merely prohibit a "sale or exchange," it barred "any direct or indirect.... sale or exchange" between employers and the pension plans they sponsor. At the least, the contribution of property in satisfaction of a funding obligation is a type of sale of the property. It is equally surely a form of exchange, since the property is exchanged for diminution of the employer's funding obligation. (207)

Even if this phrase had not possessed a settled meaning, it still would be clear that [section] 4975(c)(1)(A) prohibits the transfer of property in satisfaction of a debt. Congress barred not merely a "sale or exchange." It prohibited something more, namely, "any direct or indirect ... sale or exchange." The contribution of property in satisfaction of a funding obligation is at least both an indirect type of sale and a form of exchange, since the property is exchanged for diminution of the employer's funding obligation. (208)

Congress's goal ... was to bar categorically transactions ... likely to injure pension plans.... The transfer of property to a pension plan in satisfaction of a funding obligation can jeopardize the ability of the plan to pay promised benefits. (209)

Congress' goal was to bar categorically a transaction that was likely to injure the pension plan..... The transfer of encumbered property may jeopardize the ability of the plan to pay promised benefits. (210)

The statutory text at issue--providing that a transfer of encumbered property "shall be treated as" a sale or exchange--supports the ... view that Congress intended Section 4975(f)(3) to expand the scope of the prohibited transaction provision.... Thus, Section 4975(f)(3) amplifies and extends the reach of "sale or exchange" in Section 4975(c)(1) (A) to include contributions of encumbered property that do not satisfy funding obligations. The legislative history confirms that Congress understood Section 4975(f)(3) to enlarge, rather than restrict, the reach of the prohibited transaction provision ... thus, Congress intended Section 4975(f)(3) to provide additional protection, not to limit the protection provided by Section 4975(c)(1)(A) (211)

We feel that by this language Congress intended [section] 4975(f)(3) to expand, not limit, the scope of the prohibited-transaction provision. It extends the reach of "sale or exchange" in [section] 4975(c)(1)(A) to include contributions of encumbered property that do not satisfy funding obligations. See H.R. Conf. Rep. No. 93-1280, p. 307 (1974). Congress intended by [section] 4975(f)(3) to provide additional protection, not to limit the protection already provided by [section] 4975(c)(1)(A). (212)

Also as in Doe Agency, the Keystone Court adopts the SG's language to reject the rationale for the lower court's decision:

The court of appeals interpreted "sale or exchange" in Section 4975(c)(1)(A) contrary to its ordinary, settled meaning ... as a result of its erroneous construction of Section 4975(f)(3). That provision states ... that "[a] transfer [of] real or personal property by a disqualified person to a plan shall be treated as a sale or exchange if the property is subject to a mortgage or similar lien." The court of

appeals ... read it as "implying that unless [property] is encumbered by a mortgage or lien, a transfer of property is not to be treated as if it were a sale or exchange." (213)

We do not agree with the Court of Appeals' conclusion that [section] 4975(f)(3) limits the meaning of "sale or exchange," as that phrase appears in [section] 4975(c)(l)(A). Section 4975(f)(3) states that a transfer of property "by a disqualified person to a plan shall be treated as a sale or exchange if the property is subject to a mortgage or similar lien." The Court of Appeals read this language as implying that unless property "is encumbered by a mortgage or lien, a transfer of property is not to be treated as if it were a sale or exchange." 951 F.2d at 78. (214)

Justice Blackmun's opinion for the Court in Posters N' Things v. United States (215) follows a similar form. The opinion adopts an abundance of language from the SG's brief regarding Congressional intent, the Court's precedent, and the opposing parties' arguments. The SG's brief and the Court's opinion look at Congressional intent similarly:

Congress omitted a factor that would have borne ... directly on the question of subjective intent--the defendant's own statements about his intent. That omission is particularly striking when Section 857 is compared to the Model Drug Paraphernalia Act. The Model Act includes among the relevant factors "[statements by an owner ... concerning [the] use" of the object and "direct or circumstantial evidence of the intent of an owner ... to deliver it to persons whom he knows, or should reasonably know, intend to use the object to facilitate a violation of this Act." 8 App., infra, 6a-7a. Congress's omission of both factors in Section 857 indicates that it did not intend to define drug paraphernalia in terms of the subjective intent of the defendant. (216)

Congress did not include among the listed factors a defendant's statements about his intent or other factors directly establishing subjective intent. This omission is significant in light of the fact that the parallel list contained in the ... Model Drug Paraphernalia Act, on which [section] 857 was based, includes among the relevant factors "statements by an owner ... concerning [the object's] use" and "direct or circumstantial evidence of the intent of an owner ... to deliver it to persons whom he knows, or should reasonably know, intend to use the object to facilitate a violation of this Act." An objective construction of the definitional provision also finds support in [section] 857(f), which establishes an exemption for items "traditionally intended for use with tobacco products." An item's "traditional" use is not based on the subjective intent of a particular defendant. (217)

In 1988, Congress...