Another Scalia Mistake: Fun With Jill and Jane

June 23rd, 2014

In Justice Scalia’s concurring opinion Loughrin v. United States, within the span of one paragraph, a fictional character named “Jane” becomes “Jill.”

The Court’s chief illustration of its “by means of ” gloss seems to me contrived. If “Jane traded in her car for money to take a bike trip cross-country, no one would say she ‘crossed the Rockies by means of a car.’” Ante, at 12. Of course. By using two vehicles of conveyance, and de- scribing the end in question as “crossing the Rockies,” the statement that the car was the “means” of achieving that end invites one to think that Jill traveled by automobile. But the proper question—the one parallel to the question whether the fraudster obtained bank funds by means of fraudulently selling the counterfeit—is not whether Jill crossed the Rockies by means of the car, but whether she funded her trip by means of selling the car. Which she assuredly did. Just as the handbag swindler, in the Louis Vuitton example, obtained money by means of his false representation.

At least Eve didn’t become Steve.

Paging @SCOTUS_servo.


H/T Steve R.