Monday, May 28, 2007

A Devil in the Details, but Not the Constitution

Supreme Court Memo

Published: May 28, 2007
WASHINGTON, May 27 — When people think, if they ever do, about a Supreme Court justice’s daily routine, many undoubtedly envision a life spent contemplating the great issues: due process, equal protection and other resonant constitutional concepts.

What they probably do not imagine is time spent puzzling over whether the phrase “within 75 miles” in a 1993 federal statute means miles as the crow flies — in a straight line that disregards hill and dale — or miles as a car must actually navigate on the ground: around curves, doubling back to avoid geographic barriers, traveling real roads that rarely mark the shortest distance between two points.

The difference between the two possible definitions of “within 75 miles” usually does not matter much. But when it matters, it matters a lot, as it does to a former insurance executive from Oklahoma, Kelly Hackworth.

If the distance between two of her former employer’s offices is measured by “radius miles,” a straight line on the map, Ms. Hackworth was entitled to the protections of the Family and Medical Leave Act when she lost her job after taking time off to take care of her hospitalized mother. The law applies to companies that employ at least 50 people within 75 miles of the complaining employee’s workplace. If the distance between Ms. Hackworth’s office in Norman, Okla., and a satellite office in Lawton is measured by driving the route along existing roads, she is out of luck by six-tenths of a mile, which is what the federal appeals court in Denver ruled a few months ago.

Her appeal, now awaiting word on whether the justices will accept it for decision, would not appear to be the stuff of a Supreme Court case. But in fact, it is quite typical, more so than people realize. It therefore offers a window on the court’s ordinary life as the 2006-2007 term enters its final, and atypically frantic, month.

More than half the cases the court agrees to hear are not constitutional, but statutory, presenting questions much like the one posed by Hackworth v. Progressive Casualty Insurance Company, No. 06-1300. To whom does a statute apply? Precisely what behavior does it prohibit? How does it fit with another law on the books that seems to suggest something quite different?

The immigration bill now being fitfully knit together in Congress is a reminder that any major piece of legislation is a result of dozens of big and small compromises. Compromises often leave gaps, and as often as not, the gap itself is part of the compromise.

Many compromises went into the Family and Medical Leave Act, the product of years of Congressional consideration and debate. By the time the final bill passed, there was such a generous exemption for small business that the law covers only about 5 percent of all companies, employing about 40 percent of the work force. Companies with fewer than 50 employees are exempt altogether.

The requirement for 50 employees “within 75 miles” was intended to ensure that an employer would not be too inconvenienced by the need to reassign a worker to cover the duties of one who was out on family or medical leave.

During debates on the bill, as reflected in The Congressional Record, there were several references to a “75-mile radius,” suggesting a straight line. But the word “radius” does not appear in the final text of the statute. Ms. Hackworth’s lawyers argue that Congress should be understood as having had radius in mind nonetheless.

But the United States Court of Appeals for the 10th Circuit refused to make that leap. Congress simply “did not define a method of measuring,” the appeals court said, and “therefore left an implicit statutory gap” that the Department of Labor was authorized to fill by regulation. The department adopted a regulation in 1995 providing that the distance should be measured as “surface miles using surface transportation.” That definition was entitled to deference, the 10th Circuit concluded.

The 73 cases the court selected for argument during the current term included 41 statutory cases, 27 that raised chiefly constitutional issues and 5 other kinds that raised issues of retroactivity and jurisdiction. (These calculations are subject to interpretation; at the margins, the categories can easily overlap, as when the court is asked to interpret a statute in such a way as to avoid a potential constitutional problem.)

Statutory cases are not necessarily less challenging for the justices or less important to the country than constitutional cases; whether the Clean Air Act applies to global warming, to recall one statutory case from the current term, is a question with more impact than whether a certain type of appeal in patent cases meets the jurisdictional requirements of Article III of the Constitution, to recall another case, this time a constitutional one.

The court will probably not accept Ms. Hackworth’s case, a safe prediction when the justices accept only about 1 percent of the appeals that reach them. But on any inventory of recent statutory cases, it does not rank noticeably lower than many, including one the court decided in its last term on whether the “negligent transmission” of mail by the Postal Service includes the careless deposit of a package where someone might predictably trip over it. (It does not.)

But the mail delivery case, in which the court ruled that the Postal Service, statutorily immune from suit for “negligent transmission,” could be sued for careless delivery, had a feature that Ms. Hackworth’s case lacks. The lower courts had disagreed on whether “negligent transmission” included careless delivery, and the Supreme Court felt obliged to step in.

But no such lower-court conflict has developed over how to measure the 75 miles, although the regulation has been on the books for 12 years. Fascinating as the justices may find the issue, they are likely to take a pass.

The Educated Giant

Published: May 28, 2007
Taishan, China

With China’s trade surplus with the United States soaring, the tendency in the U.S. will be to react with tariffs and other barriers. But instead we should take a page from the Chinese book and respond by boosting education.

One reason China is likely to overtake the U.S. as the world’s most important country in this century is that China puts more effort into building human capital than we do.

This area in southern Guangdong Province is my wife’s ancestral hometown. Sheryl’s grandparents left villages here because they thought they could find better opportunities for their children in “Meiguo” — “Beautiful Country,” as the U.S. is called in Chinese. And they did. At Sheryl’s family reunions, you feel inadequate without a doctorate.

But that educational gap between China and America is shrinking rapidly. I visited several elementary and middle schools accompanied by two of my children. And in general, the level of math taught even in peasant schools is similar to that in my kids’ own excellent schools in the New York area.

My kids’ school system doesn’t offer foreign languages until the seventh grade. These Chinese peasants begin English studies in either first grade or third grade, depending on the school.

Frankly, my daughter got tired of being dragged around schools and having teachers look patronizingly at her schoolbooks and say, “Oh, we do that two grades younger.”

There are, I think, four reasons why Chinese students do so well.

First, Chinese students are hungry for education and advancement and work harder. In contrast, U.S. children average 900 hours a year in class and 1,023 hours in front of a television.

Here in Sheryl’s ancestral village, the students show up at school at about 6:30 a.m. to get extra tutoring before classes start at 7:30. They go home for a lunch break at 11:20 and then are back at school from 2 p.m. until 5. They do homework every night and weekend, and an hour or two of homework each day during their eight-week summer vacation.

The second reason is that China has an enormous cultural respect for education, part of its Confucian legacy, so governments and families alike pour resources into education. Teachers are respected and compensated far better, financially and emotionally, in China than in America.

In my last column, I wrote about the boomtown of Dongguan, which had no colleges when I first visited it 20 years ago. The town devotes 21 percent of its budget to education, and it now has four universities. An astonishing 58 percent of the residents age 18 to 22 are enrolled in a university.

A third reason is that Chinese believe that those who get the best grades are the hardest workers. In contrast, Americans say in polls that the best students are the ones who are innately the smartest. The upshot is that Chinese kids never have an excuse for mediocrity.

Chinese education has its own problems, including bribes and fees to get into good schools, huge classes of 50 or 60 students, second-rate equipment and lousy universities. But the progress in the last quarter-century is breathtaking.

It’s also encouraging that so many Chinese will shake their heads over this column and say it really isn’t so. They will complain that Chinese schools teach rote memorization but not creativity or love of learning. That kind of debate is good for the schools and has already led to improvements in English instruction, so that urban Chinese students can communicate better in English than Japanese or South Koreans.

After I visited Sheryl’s ancestral village, I posted a video of it on the Times Web site. Soon I was astonished to see an excited posting on my blog from a woman who used to live in that village.

Litao Mai, probably one of my distant in-laws, grew up in a house she could see on my video. Her parents had only a third grade education, but she became the first person in the village to go to college. She now works for Merrill Lynch in New York and describes herself as “a little peasant girl” transformed into “a capitalist on Wall Street.”

That is the magic of education, and there are 1.3 billion more behind Ms. Mai.

So let’s not respond to China’s surpluses by putting up trade barriers. Rather, let’s do as we did after the Soviet Union’s launch of Sputnik in 1957: raise our own education standards to meet the competition.

You are invited to comment on this column at Mr. Kristof’s blog,