Judges Lash Out at ‘Tortuous Text’

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Written By admin at Friday, March 9th, 2012

James Madison

Lots of people have strong feelings about Medicare. But some of the most passionate outbursts have come from judges trying to sort through its language.

In this front-page WSJ story, our own Joe Palazzolo writes:

James Madison warned in the Federalist Papers about laws “so voluminous that they cannot be read, or so incoherent that they cannot be understood.”

If only he had lived to see the Medicare and Medicaid programs.

“Picture a law written by James Joyce and edited by e.e. cummings,” wrote Chief Judge Royce Lamberth of the U.S. District Court for the District of Columbia, in a January ruling in a Medicare case. Last September, Judge Gilbert S. Merritt Jr. of the Sixth Circuit lamented Medicare’s “tortuous text.”

“An aggravated assault on the English language,” is how the Supreme Court characterized the Medicaid statute in a 1981 opinion, quoting a federal judge in New York.

The Medicare and Medicaid laws – passed in 1965 as amendments to the Social Security Act – have not only become a part of a distinguished history of judicial disdain, but appear to be among the most put-upon laws in recent history, he reports.

A search of court records turned up nearly 100 cases in which judges cited the complaints of other judges or found some new way to express pique at the laws’ complexity.

Maryland’s highest court, for example, said in a 1996 opinion that Medicaid reflected “Congress’s indifference to the simplicity and clarity of the Elizabethan language.”

Connecticut’s Supreme Court once likened the federal and state laws that make up the Medicaid system to a “Serbonian bog”—a reference to John Milton’s “Paradise Lost.”

Indeed, a typical provision of Medicare reads like this:

“In the case of a plan for which there are average per capita monthly savings described in section 1395w–24 (b)(3)(C) or 1395w–24 (b)(4)(C) of this title, as the case may be, the amount specified in this subparagraph is the amount of the monthly rebate computed under section 1395w–24 (b)(1)(C)(i) of this title for that plan and year (as reduced by the amount of any credit provided under section 1395w–24 (b)(1)(C)(iv) [2] of this title).”

Some judges say the laws are difficult for good reason.

“They are trying to achieve complex ends. The more fair way to look at it is they have a lot of considerations they try to balance,” says Chief Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit. “You can’t get away from complexity. We live in a complex world.”

Michael McConnell, a former federal appellate judge, says he mainly takes exceptions to the exceptions.

“What I find difficult are all the cross-references and exceptions,” says Mr. McConnell, now a professor at Stanford Law School. “I think it’s a sign that Congress is trying to micromanage things.”

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