Ante, at 1 (Alito, J., concurring in judgment). Yates argues that the Court has to look beyond the term “tangible object” to understand its meaning because the term is “chameleon-like” and must be understood in its context. See ante, at 13–16; see also ante, at 1–2 (opinion of Alito, J.).

Section 1519’s language often applies more broadly than §1512(c)(1)’s, as the plurality notes. A hard drive, however, is tangible and can contain files that are precisely akin to even these narrow definitions.

. 321, 375 (1990) (“Typically, the failure of the Court to acknowledge the force of evolutive factors is simply a failure of candor, since it is apparent that the Court or at least some of the Justices have considered those factors seriously.”). 2012) (“Where .

The Court has held that “due process does not require actual notice.” Jones v. Flowers, 547 U.S. 220, 225 (2006).

Gluck & Posner, supra note 1, at 1331–32 (“Lenity and Avoidance Are Special.”).

Accordingly, there were two instances of narrow construction that do not count as applications of lenity, because the Court explicitly dismissed the rule but narrowly construed the statute.

Second, the canon of ejusdem generis, under which a general term is read to encompass only items similar to the more specific words that precede it, supports a narrow reading of “tangible object.”32×32.

See, e.g., State v. Majors, 318 S. W. 3d 850, 859–861 (Tenn. 2010) (cocaine); Puckett v. State, 328 Ark. United States v. Santos, 553 U.S. 507 (2008) (plurality opinion). Indeed, as noted above, supra note 41, the Court has long grappled with whether lenity or vagueness applies to challenges of “violent felony” convictions from the residual clause of the Armed Career Criminal Act of 1984 (ACCA). That's already a sign something is amiss. Ibid. Justice Ginsburg then argued that § 1519’s placement in a portion of the U.S. Code narrowly aimed at obstructive acts in financial contexts hinted at its limited scope.25×25. Ibid. . KAGAN, J., filed a dissenting opinion, in which SCALIA, KENNEDY, and THOMAS, JJ., joined. . Lenity last works more like a tiebreaker when judges invoke it only “at the back end of that process” to adopt a narrow construction only when there is no other means of resolving the meaning of a disputed provision of a criminal statute.67×67. In one way, Justice Stevens had simply made a robust argument for a lenity-last approach to criminal law. 2084, 85 L.Ed.2d 434 (1985) ("Application of the rule of lenity ensures that criminal statutes will provide fair warning concerning conduct rendered illegal and strikes the appropriate balance between the legislature, the prosecutor, and the court in defining criminal liability."). A possible exception is Reynolds, but in that case the Court narrowly construed the statute, and lenity only appears in a quotation cited from an earlier case, United States v. Lanier, 520 U.S. 259 (1997). Lawson v. FMR LLC, 571 U.S. ___, ___, 134 S.Ct. Yates contends that the Court should not divorce “tangible object” from “makes a false entry in” and that the Court would not have to if the court defines “tangible object” as he suggests. . See ante, at 1087. Courts may stop the inquiry there and, at Step Two, apply what they deem to be the most plausible or fair reading — including broad constructions based on a purpose gleaned from the overall policy or legislative history that they read as informing the text.53×53.

See ante, at 18. For a chart of administrative law cases and citations, see Chris Walker, Most Cited Supreme Court Administrative Law Decisions, Yale J. on Reg.

By shedding light on past precedent and constitutional mandates for lenity, the aim here is to highlight the imperative for that reconsideration of lenity, with respect to the liberty and defendants’ rights rationale that first animated the rule.

For descriptions of exceptions to this rule, including an article by one author of the piece on which this Response comments, see, for example, Abbe R. Gluck, The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism, 119 Yale L.J. S. Rep. No.

President Eisenhower evaded questions about the decisions at a press conference, but wrote a letter to the Chief Justice after reports that he was "mad as hell" about them.

107-146, at 14 (2002).

Id.

After a series of catastrophic corporate and accounting frauds in the early 2000s,1×1. L. Rev.

Still more, “tangible object” appears as part of a three-noun phrase (including also “records” and “documents”) common to evidence-tampering laws and always understood to embrace things of all kinds. A concern rooted in proportionality can also be seen in the plurality’s focus on the disconnect between Yates’s potentially severe sentence and his relatively innocuous conduct. A fisherman, like John Yates, who dumps undersized fish to avoid a fine is no less blameworthy than one who shreds his vessel’s catch logfor the same reason.

at 1085. That brings to the surface the real issue: overcriminalization and excessive punishment in the U.S. Code. Four days later, after the Miss Katie had returned to shore, Jones reviewed the offending fish and noticed that many were now longer than those he had previously measured.10×10. It further shows, I argue, that the rationales for the rule have changed over time in response to prevalent structures and practices in the criminal justice system that push courts to emphasize certain constitutional values at different times.

2001). The same holds true when the evidence in question is not a "record" but something else whose destruction, alteration, etc., is intended to obstruct justice. The government counters Yates’ title assertion, arguing that the meaning of “tangible objects” is not bound by the section titles, as they are merely shorthand references and not completely inclusive.

Some appellate judges responding to Professor Gluck and Judge Posner’s survey deemed lenity to be a binding rule justified on the basis of legislative supremacy alone.78×78.

The use of notice in Yates is distinct from how it has been relied upon in the past. Trainmen v. Baltimore & Ohio R. Co., 331 U.S. 519, 528-529, 67 S.Ct. Having used traditional tools of statutory interpretation to examine markers of congressional intent within the Sarbanes-Oxley Act and § 1519 itself, we are persuaded that an aggressive interpretation of "tangible object" must be rejected. 1823, 1868 n.208 (2015) (describing the rule of lenity as a “due-process based canon”); Paul H. Robinson, Fair Notice and Fair Adjudication: Two Kinds of Legality, 154 U. Pa. L. Rev.

at 514. Finally, 1519 s title Destruction, alteration, or falsification of records in Federal investigations and bankruptcy also points toward filekeeping rather than fish. See, e.g., United States v. Turkette, 632 F.2d 896, 906 (1st Cir. Id. L. Rev. .

The plurality’s analysis starts with §1519’s title: “Destruction, alteration, or falsification of records in Federal investigations and bankruptcy.” See ante, at 10; see also ante, at 3–4 (opinion of Alito, J.).

The problem is that the Justices do not always agree on the point at which the lenity rule should trigger narrow construction, nor do they always rely on the same constitutional rationales behind lenity when considering its early application (lenity first) against countervailing canons or other constitutional considerations (lenity last). This reading, of course, has its shortcomings.

Essentially, the main approaches to lenity — lenity first versus lenity last — map onto the general distinction between presumptions and tiebreakers.

. The plurality doesn't — really, can't — explain why it instead interprets the same words used in two provisions of the same Act addressing the same basic problem to mean fundamentally different things.

The new section also expanded prior law by including within the provision's reach "any matter within the jurisdiction of any department or agency of the United States." Applying these canons to §1519’s list of nouns, the term “tangible object” should refer to something similar to records or documents. U. L. Rev. See, e.g., Gustafson v. Alloyd Co., 513 U.S. 561, 576, 115 S.Ct. But that declaration came only after judgments about individual applications of the term to particular prior convictions resulted in a series of 5–4 split decisions that illustrated the Court’s apparent inability to clarify the term with a lenity-last approach. [7], Yates did not rule the Smith Act unconstitutional, but limited its application to such a degree that it became nearly unenforceable. 1750 (2010); Emmett S. Collazo, Applying the Rule of Law Subjectively: How Appellate Courts Adjudicate, 4 Seton Hall Cir.

See Richard M. Re, Stuntz’s Presence in Yates, PrawfsBlawg (Mar. 2008))). He would, and did, also consult legislative history. In their view, § 1519 would turn minor offenses, such as disposing a baseball bat used to destroy mailboxes, into a felony with a possible sentence of twenty years. at 1079 (plurality opinion). The Government acknowledges that §1519 was intended to prohibit, in particular, corporate document-shredding to hide evidence of financial wrong-doing.