Federal Judge Finds FACTA Unconstitutional
And while he's at it, uses the word "haruspex" in his memo opinion (which you can access in pdf here).
FACTA was a legislative mistake, and most people acknowledge this. A district court judge in Alabama found the statute unconstitutional on two grounds, neither of which unfortunately is particularly convincing.
Vagueness? First, he finds that the statute is vague ("How Vague Can a Statute be and Still Pass Constitutional Muster?") seemingly on the basis that it includes a statutory damage range. He's also troubled by the fact that plaintiffs can up the amount of damages by going back and obtaining multiple receipts (in this instance I suppose the damage figure would in the judge's eyes bear no relationship to the wrongdoing). I'm not particularly sold. The statute is not vague as to what conduct it restricts - so not vague that lawyers and non-lawyers alike can easily tell when a violation occurs. His real qualm seems to be the inclusion of a statutory damage range (without additional guiding factors?) but this exists in many statutes. Copyright, for example has a range - I think courts have held that defendants have the right to have a jury and not a judge determine the amount within that range. Finding the statute unconstitutional on the basis of a range would undermine many statutes out there in a way that is likely untenable.
Due Process: The second basis is that the damage awards under the statute would (could?) be excessive in light of the conduct and harm suffered, and would thus be confiscatory. The US (intervening to argue the constitutionality of the statute) urges the judge to wait until an actual award is rendered before determining whether the award violates due process. "Chilled" at the prospect of "certain annihilation" of the various defendants, the court declines to do so.
My take: I don't think the order is likely to be affirmed on the two grounds relied on by the trial judge. The order is a fun read, particularly from the legal writing standpoint. Some would say it has plenty of examples of what not to do in a brief: 1. use the words "obvious" or "simple"; 2. provide random and excessive emphasis; 3. in bold; and 4. use lots of hyperbole. It also contains this gem of a line:
Without undertaking to write a law review article, or to write briefs for the anticipated appellees, this court, with some hesitation, but with little doubt, has reached the conclusion that the above-quoted provisions of FACTA, as applied to these defendants, are unconstitutional.
Something tells me the appellants will be quoting liberally from the order . . . .
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