Legislation Frickey 2003spr

8/2/2019 Legislation Frickey 2003spr

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LEGISLATION OUTLINE

Theories of LegislationI. Pluralist Theories (the role of interest groups in policy making)

A. descriptive1. citizens organize into groups for political action (factions)2. interest group politics results in pluralismthe spreading of politicalpower across many political actors.3. politics can be conceptualized as the process by which conflicting interestgroup desires are resolved.

B. Interest Group Liberalism: Pluralism as a positive political force.1. Rather than fear factions, we now rely on large, organized groups to playa large role in the political process.

a. Political parties provide a structure for governance andinformation for voters

b. churchs, unions, may become involved in politics as a secondarymatter to improve their members lives.2. Theodore Lowi see the prevalence, strength, and diversity of interestgroups as a sign of political health. The groups act as checks against eachother. Constituents may use interest groups to signal the intensity of theirpreferences is a way not possible by voting.3. Main benefits of Pluralism:

a. Interest groups may protect us from a strong and tyrannical govtb. the result of a robustly pluralist system will be moderate and well-considered policies.c. Interest groups represent the most meaningful possibility of

participation by individual citizens.C. Public Choice Theory: Interest Groups as Pernicious Political Influences1. Their may be disparate access to the political process; business voices areoverrepresented and the broad public interest and the less advantaged areunderrepresented.

Taxonomy of Demand for Legislation Based on Benefits/Costs

I. Distributed benefits/distributed costs(majoritarian politics)little groupactivity

II. Distributed benefits/concentrated costs(entrepreneurial politics)opposition willtend to be well organized

III. Concentrated benefits/distributed costs

(client politics)strong interest groupsupport but weak opposition b/c of thetransaction problem.

IV. Concentrated benefits/concentrated costs

(interest group politics)continuousorganized conflict over distribution ofbenefits/costs.

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Taxonomy of Supply of Legislation Based on Benefits/Costs

I. Distributed benefits/distributed costslegislature will favor no bill or symbolicaction; sometimes delegations to agencyregulation.

II. Distributed benefits/concentrated coststhe best legislative solution is to draft anambiguous bill and delegate to agencyregulation, so all sides can claim victory.

Regulatory capture could result.III. Concentrated benefits/distributed costsdistribution of subsidies and power to theorganized beneficiaries

IV. Concentrated benefits/concentrated costsb/c any policy choice will incur the wrathof opposing groups, legislators will favor nobill or delegation to agency regulation.

If you see III on exam you can argue the statute should be interpreted narrowly to protectthe public interest IF the text is ambiguous. Pg 11 notes.

D. Interest Group Theories: Explanation and Critique1. Public choice theory explains the success of distributive policies that

pass out goodies to many interests at the same time: such as tax bills thatoffer loopholes to many groups, defense appropriation bills that send $ tomany districts, etc. Here, the losers may not even be alive, if deficit-spending is used to put the burden on future generations.2. Regulatory Policiesthese cause groups to fight over a single prize(EX: winning a television channel permit)3. Redistributive Policiessimilar to Redistributive policies, but theclasses are much bigger (e.g., rich v. poor)4. CRITIQUE

a. Not all legislators are rent-seekers looking for financial rewardsfrom special interest groups; they have independent beliefs and

legislative goals.b. Interest group $ may be more effective at electing members whoshare their beliefs than changing lawmakers mindsc. Interest groups are better at blocking legislation than passing it,and are more effective w/ legislation that has low visibility thanwhen legislation is well known.

II. Proceduralist Theories (emphasizing the many obstacles a bill must pass to becomelaw)

A. Vetogatesdetermined minorities can kill or maim legislation. Whoevercontrols these choke points has the power to kill legislation.

1. EX: committees, conference committees, rules2. Theories of a committees purposea. Informational role: committees are part of an efficientcongressional organization. Monitoring by the general body toensure that the committee is acting as a faithful agent of the whole isless costly than developing expertise on every issue.b. Rent-Seeking: the committees distribute unjustified benefits tointerest groups. Members are extremist outliers that have strong ties

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to the area (EX: rural members on the Agriculture Committee) socommittees are more extreme than the whole body, and they seek topass legislation that benefits small and active groups at the expenseof the public good.c. Tools of the Majority Party: the committee organization

provides an organization that enables most majority-party membersto be reelected and permits the majority party to remain in Congress.(EX: the majority party allows rural Senators to be on the Agcommittee, so their constituents are pleased and re-elect them; thosemember then return the favor.)

3. Generally, it is easier to block legislation in the Senate than in the House,b/c the Senate has less rules (EX: filibuster).4. Vetogates are critical b/c the cts often rule that the statements that aremade by gatekeepers (e.g., committee members) as reflective of the intentof the body b/c their support is critical to passage.

a. But are these statements true, or are speakers shading the truth?

i. Montana Wilderness Association v. U.S. Forest Servicethis bill changed the rules for access to all nonfederallyowned land within the boundaries of the National ForestSystem; the question is whether it applied nationwide or justin AK. Cong. Udall (a key controller of several vetogates)said in the record that it applied only to AK. However, itclearly was the intent of Congress to have it appliednationally, and Udalls amendment to limit the scope to AKwas never adopted. Thus, Udalls statement was an attemptto trick the judiciary, and it worked (for a while).

B. Liberal theory disfavoring govt interventionstatutes should be hard toenact.

a. Hamilton, in Federalist Papers #73, said that proceduralism is anadditional security against the [enactment] of improper laws.b. BUT, some say that this is simply a preference for the status quoregulatory regime (common law) vs. a legislative change (statue); this is nota neutral preference.C. BUT, this proceduralism will slow good laws as well as bad ones (e.g.,the Civil Rights Act)

C. The Deliberative Value of Processproceduralism is a tool to encouragepublic deliberation about legislative proposals.

a. Proceduralism slows bills down and offers the opportunity fordeliberation, but does not necessarily guarantee it.

III. Institutional Theories (These theories focus on the institutions (instead of the players)that shape the structure of the interactions).

A. The Effect of Institutions on Decision-making1. majority vote cyclingmajority rule sometimes cannot resolve thechoice among three or more mutually exclusive alternatives that are votedon in pairs.

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a. This is solved by structure-induced equilibria, aka how thefinite votes are set up.

2. The way that the voting is set up can change outcomes, and the ctsinterpretation.

a. Powell v. McCormackthe Sup. Ct. declined to equate a 2/3

vote to exclude Rep. Powell w/ a 2/3 vote to expel, b/c differentvoting rules applied to each choice.b. Cts may be wary to trust committee reports which have not beenthrough the required procedures that a bill passed into law was; thissupports textualism.

B. Positive Political Theory: Institutionalism and Game TheoryPPT recognizesthat other political actors will influence the content and timing of policy. The coreassumption is that all relevant actors (such as politicians and judges) act rationallyto bring policy as close as possible to their own preferred outcome. Thus, when thechair of a committee drafts a bill, he is anticipating how the other players will act.

1. EX: Udall in Montana Wilderness.

United Steel Workers v. Weber 86 pg 7 notes - Kaiser Steel set up an affirmativeaction program to integrate its workforce. Previously, they only hired craft workers w/previous craft experience; now, they set up a program to train new craft workers, w/ 50%of the slots for blacks. A white guy sued under Title VII of the Civil Rights Act of 1964that prohibited racial discrimination in employment.

Brennan majority institutional (historical) argument - cites Holy Trinity and cites thelegislative history to show that ORIGINAL Congress did not intend to ban affirmativeaction plans.

Blackmun dissent contextual argument - says that the current situation must be taken

into account, not just that of the time when the bill was passed. Arguable violationtheory (J. Wisdom)private entities should be allowed to use affirmative action to remedya past arguable violation of Title VII.

Rehnquist dissent instituational (historical) argument - in his dissent says that youshould look at the legislative intent of a statute, which he says is for Weber.

TEXTUAL BATTLE: Kaiser wants to use 703(a)1 or 703(d) b/c the worddiscriminate is used and thus it provides some wiggle room, b/c it is not defined. Weberwants to use 703(a)2 b/c discriminate is not used and thus the language must beinterpreted more strictly.

Dictionary Useageif you are arguing about how the word was used at the time the lawwas passed, you want a dictionary of those times; if you are arguing about how the word isused today, you want a modern dictionary. Problem ofDictionary Shopping.

1. Scalia uses contemporary dictionaries; he doesnt use a descriptive dictionarylike Websters Third b/c he says it is too casual.

Kaisers Precarious PositionMcDonald held that a white worker could sue fordiscrimination under disparate treatment. Thus, an employer could feel like it had to have

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an affirmative action program under Griggs (saying Title VII includes disparate impacttheory of discrimination), but that it would be illegal under McDonald although allowed byWeber.

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Theories of Statutory InterpretationI. Three different norms for interpretation:

A. the rule of law idea that statutory meaning should be relatively predictableand accessible to the citizenry and should be neutrally applied to everyone

B. the democratic legitimacy idea that interpreters ought to defer to decisionsmade by the popularly elected legislators who enact statutes (as opposed to life-tenured judges)C. the pragmatic idea that interpreters have an obligation to contributeproductively to the statutory scheme and, perhaps ultimately, to the common good(i.e., justice)

I. Eclectic ApproachA. Holy Trinity Church - 673 pg 12 notes the immigration act says that youcant bring foreigners to the U.S. to labor. The ct says the D, a minister, istechnically covered by the words of this statute but a thing may be within the letter

of the statute and yet not w/in the statute, b/c not within its spirit, nor w/in theintention of its makers. This case used an eclectic approach. Here, the spirittrumped plain meaning.

1. Brewers ecletic approach; he looked to the:a. title, evil to be redressed,chosen remedy, leg history, spiritb. two main arguments

a. Mischief Rule (purpose)i. Protect labor

ii. Discourage poor from immigratingb. Spirit (purpose) trumps plain meaning/avoid absurd

result which was a Christian nation would never pass astatute meant to prohibit ministers

2. Canons supporting/opposing the majoritya. supporting: avoid constitutional questions, interpret criminalstatutes narrowly, avoid absurd resultsb. opposing: exclusio unius [why werent ministers included in theexceptions?], noscitur a sociis [unlike actor, other people covered, aminister is a permenant employee]

II. Intentionalism pg 14-15 notes identifying legislative intent is the goal of statutoryinterpretation

A. Specific Intenthow the legislators actually decided a particular issue ofstatutory scope or application

1. Roscoe Pound in Spurious Interpretation. Pound says that the point ofgenuine interpretation is to discover the rule which the lawmaker intendedto establish; to discover the intention which the lawmaker made the rule.On the other hand, spurious interpretation is to make, unmake, or remake,

and not merely to discover. NOTE he assumes that the words have noplain meaning, but must be interpreted to get any meaning.

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2. BUT, Max Radin. That the intention of the legislature isUNDISCOVERABLE in any real sense is almost an immediate inferencefrom a statement of the proposition. What can we know of the intent of agroup of hundreds? Legislatures exist to pass statutes, not to impose their

will on the citizenry.3. Critics of Holy Trinity and Weber argue that those decisions werecontrary to the specific intent of the Congresses that enacted the AlienContract Law of 1885 and the Civil Rights Act of 1964, respectively.

a. Holy Trinityan opponent of the bill derided it for arbitrarilyapplying to professionals like lawyers, sculptors, etc., and arbitrarilyexempting artists and lecturers; a supporter countered that perhapsthe bill should be amended, but it never was. This shows thespecific legislative intent of Congress that importing ANY alien wasillegal (unless there was a specific exemption).b. WeberRehnquist, in his dissent, cited speeches from supporters

of the bill assuring opponents that that there could be no hiring orfiring based on race whatsoever (thus barring affirmative actionprograms)

4.Negative consequences of violating specific intenta. it is undemocratic and lawless for cts not to follow thelegislatures intentb. If this happened often, Congress might be reluctant to cut thedeals needed to pass needed legislation, b/c the deals would not bereliably enforcedc. Disrespect for the rule of law might allow people to believe thatthey can get away w/ shirking their legal responsibilities.

5. Problems w/ specific intenta. Problem ofAttribution. Whose intent do we use? Is theproponent who gave a speech in Weber a reliable indicator of theintent of both houses of Congress and the Pres?b. Problem ofAggregation did majority actually formulate thesame intent across both houses? Pg 216 supp.c. Thus, committee reports are used, which might be manipulated.d. Positive political theorists say that we should look towards theintent of pivotal legislators, but it may be hard to figure out whothese are.e. There might be different interpretations of specific intent; in HolyTrinity, the opponent promised to make exceptions to the law, butdid not actually get around to doing that.f. In Weber, the ct explicitly allows cts to make affirmative actionplans; it is unclear whether the legislators actually consideredaffirmative action for people like Weber.g. maybe a whole legislature has no intenth. a legislature is there to pass laws, not impose its will on thepeople

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B. Imaginative Reconstructionput yourself in the position of the legislature surroundings and what mischief did they want to cure and ask what was hisintention with respect to the particular controversy. Pg 218 supp.

1. Weber dissentthe sponsors (eastern liberals) and the pivotal voters(Midwest conservatives) agreed to prohibit racial quotas to enact the Civil

Rights Act over southern opposition, and their consensus included at leastan implicit concession to the conservatives that quotas would neither beallowed or required.2. Concerns

a. Whose intent should be reconstructed? The pivotal voter? Is thisthe 51 vote for passage or the 67th vote to stop a veto?b. maybe more imaginative than Reconstructivec. Framing the question can bias the answer.

i. Rehnquist would ask the Midwest conservatives in Weberif you want to allow voluntary quotas in hiring? {Theydsay No.}

ii. Brennan would ask Would you allow voluntarypreferences if it could be shown that after ten years anemployer had less than 2% blacks in its craft force, and thatthe disparity was likely the result of the continuing effects ofpast discrimination? {Theyd say Yes}iii. Alternatively, maybe the conservatives would have askeddo you think that businesses ought to have flexibility tocomply with the law in various practical ways, includinghiring blacks in order to avoid possible liability? {Theydsay Yes}

d. Still have Problems of Aggregation and Attribution.C. General Intent, or Purposewhat the aim of the legislation was (the majorityopinion in Weber, and also Holy Trinity; Blackmun dissent in Bock Laundry). Thisis the Legal Process Theory that the Supreme Court followed for decades.

1. Purposivism attempts to achieve the democratic legitimacy of otherintentionalist theories while rendering statutory interpretation adaptable tonew circumstances.2. However, what is the purpose of a complex bill?

a. The majority in Weber would say the goal was workforceintegration, while the dissent would say that that the central purposewas to make employment decisions colorblind (thus, equality ofopportunity, not equality of result).b. but even if you accept one of these purposes, you could argueeither way in Weber (one could argue that there is no equality ofopportunity if there are structural impediments preventing minoritiesfrom working; or, even if workforce integration in the goal maybeaffirmative action is not a good way to get it, b/c companies willavoid black areas where they are compelled to have such aprogram).

3. Under this theory, it is okay to correct the legislatures mistakes

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Shine v. Shine 700 This has a made-up canon [unless Congress is clear, familyobligations should not be dischargeable]. The couple is married, they separate in 73, a ctorders support of $250/month for the wife, in 75 they divorce and the ct does not mentionsupport. The guy goes to bankruptcy ct; can his obligation to his wife be discharged? Thect says yes.

1. in 1978 they amended the statute, and deleted (accidentally?) the section thatexempted such property settlements from bankruptcy ct. In 84 they corrected themistake, the ct cites this to show that it was a mistake, although the amendmenttechnically is not binding b/c it happened after this case started.2. long standing policy that such a debt could not be discharged3. here, the purposive argument wins, but there are ways to make this look moremainstream (EX: the ct clearly has the rt to fix statutory omissions as draftingmistakes)4. Typo issue on * 705 go back to 703 or under a property settlement thesewords are in the original but not when reported out! So you could have argued thatthis was a mistake and as a typo error it shouldnt be enforced. There is no proof

that it is butAs a judge you can say I dont have to enforce this and its totallysensible that this is what happened. This is a narrower theory and its much morelikely a court would be willing to grab this ball and run with it rather than the onethat the court used in Shine.

BUT, Locke 705 difficult textual problem in Fs mind Holders of certain miningpermits must file certain documents prior to Dec. 31; the guy did it on Dec. 31 and hisland was taken away, even though officials had told him it would be okay. They ct ruledthat there is a special status for deadlines, and that the ct did not have the authority tochange them. Marshall said that there is a difference between filling a gap left byCongresss silence and rewriting rules that Congress specifically enacted. In the dissent,Brennan/Stevens said that this was a drafting error, and that there was no purpose to have

the date on Dec 30 instead of Dec 31. Practice guide F would go and find cases that arepro-plaintiff here and say aha cannon! To help get the court to change its view. Pg19 notes.

Pontiac Trans Am 722 Here the ct declining to apply a forfeiture law against a carthat was driven by a son, and used to commit a crime. Even though the statute is prettyclear so the judge flees to a avoiding constitutional issues cannon - The ct said thatsuch seizure would be unconstitutional, and thus the purpose of Congress must have beenfor the law not to apply. Note: 1. cannot use evolutive interpretation because society hasntchanged; 2. cant use plain meaning because the statutory text is pretty clear; 3. purpose isiffy because its goal would be to increase supervision but the law is so harsh due to strict

liability.

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Purpose and Social Change

Institutional (historical) Argument - Original Context v. Current Context Issue pg 11 notes1. Original Context (specific intent or imaginative reconstruction) - what wasCongressional Intent when statute was passed.

a. legislative historyb. purpose/spirit

2. Current Context interpret the statute in light of subsequent eventsa. later legal documents

i. statutes: Fair Housing Act, Voting Rights Act, 1972 Amendmentsto Civil Rights Actii. case law (Griggs, McDonalds)

b. later contextual developmentsi. inefficacy of colorblind methods?

A. Jacob 704 2 Couples: a cohabitating unmarried hetro couple, and a

cohabitating lesbian couple, both trying to adopt. For a hetro couple: law saysthat if the man adopts, the woman will lose her parental rights. lesbians: thetext is gendered. the ct say that gay adoptions are allowed. there is no purposethat is served by these rules, so the ct chooses the interpretation which is morejust. purpose of adoption legislation is vague: put kids in good homes.

a. Concept vs. Conception Enacting legislature had no conception oflesbians adopting so this isnt helpful. Current society deeply dividedon issue so you cant use it either to argue current conception works

b. No scriviners error or legislative intent to support lesbians either.c. The court must find a conflict between different sources of law so it can

resolve them in the way it wants! Otherwise the case would be a naked

power grab.d. So the court argues:i. long standing policy that family law is designed to support the

best interest of the child (pro lesbian adoption)ii. does the text support this policy no use cannon to trump:

iii. avoid constitutional problem cannon also use of the cannonallows the court to give statute language a reading it will notbear.

iv. therefore, second parent adoptions are ok.B. Li 714 great concept vs. conception case This case changed the law fromcontributory to comparative negligence. The CA legislature codified the common

law in 1872, which at the time had a contributory negl rule. Can the cts nowchange by common law techniques what is now a statute? The ct says yes; languageis ambiguous and open to both interpretations, that conception of the codificationshould not stifle the evolution of the law. pg 715

1. evolutive or dynamic statutory interpretation

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Lon Fuller, The Case of the Speluncean Explorers. People are trapped in a cave, andthey kill one of themselves in order to save themselves from starvation. Are they guilty ofmurder? The statute says that whoever shall willfully take the life of another shall bepunished by death.

A. Keen (convict) [this is Holmes] - positivist

1. plain meaning; questions of right or wrong are irrelevant. Objective lawv. subjective morality.2. Supremacy of the legislative branch3. worries about the long-term effect of non-objectivity

a. floodgates of casesb. takes the legislature off the hook

4. statutes have multiple purposesB. Truepenny (convict) - positivist

1. plain meaning approach; dont want to impair the letter/spirit of thestatute.2. he argues for executive clemency to mitigate the rigors of the law.

C. Tatting (resigns)1. he cant resolve the doubts he has about the caseD. Foster (aquit) purposivist

1. if the ct declares that these men have commited a crime, then it is the lawitself which is the convicted in the tribunal of common sense2. you can break the letter of the law w/out breaking the law itself3. the correction of legislative errors/oversight is not to supplant thelegislative will, but to make that will effective.

E. Handy (aquit) - nonpositivist1. legal realist approach2. men are ruled by other men, not abstract principles.

3. public opinon is important in making the decision (law = politics)F. Lon Fuller arguments1. there are times when our legal system does not work, and when we areback in a state of nature (ex: nazi germany, men in a cave)2. every proposition is to be interpreted reasonably in light of its purpose.EX: drop what you are doing and come here (this doesnt mean drop thebaby).

Hart and Sacks (purposive approach/legal process theory)A. A ct should do the following in interpreting a statute:

1. decide what purpose should be attributed to the statute, and then

2. interpret the words of the statute so as to carry out the purpose as best aspossible, but:a. dont give the words either a meaning they will not bear, orb. a meaning which would violate any established policy of clearstatement.

3. Approach:a. textb. purpose

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c. policyd. leg intent

4. STEPS:a. Plausible meaning from text; only a meaning that the words canbear, and must be in step w/ public policy

b. make a textual conclusionc. look to the leg history for a little extra help, but dont let it createmeaning

B. The meaning the words will bear: okay to narrow what the legislators did, butnot to expand. EX: finding a clever tax loophole is okay.C. Policies of clear statement: occasionally a clear statement will defeat the actual,conscious intentions of particular legislators.

1. words that mark the boundary between criminal and non-criminalconduct should speak w/ more than ordinary clearness.2. the ct cannot understand the legislature from departing from a generallyprevailing policy or principle unless it does so clearly.

D. Purposethe cts should assume that the legislature is made up of reasonablepersons acting reasonably.

Critique of Legal Process Theory1. it is unrealistic to think that a legislature has a discernible purpose when itpasses a bill.

a. But, Hart/Sacks would say their theory is prescriptive, not descriptive.2. purpose can be so indeterminant as in Weber, so picking the purpose by a judgecan lead to judicial activism.3. The Hart/Sacks approach suppresses useful substantive discussion. Isnt it moreimportant for the judge to have a solid understanding of the real worldconsequences of different interpretations, as opposed to trying to tease out thelegislatures purpose from a statute.4. Formalism (textualism) is better

a. it is more consistent w/ the structure of the Constitution, which createsformal barriers to lawmaking that are disregarded when cts make new law.b. applying plain meaning may be more within judicial competence thanmaking policy or finding out what the purpose of a bill is.c. the ordinary meaning of statutory language is the common understandingof what the rule of law isd. Policy is better left to the legislature

III. Textualismthe actual text is either the best evidence of legislative intent or the onlyauthoritative basis for interpretation.

A. The soft plain meaning rulethe text is the best (but not necessarily sole)evidence of legislative intent; the text creates a strong presumption of meaningthat can be overcome by legislative history [orabsurd result]. Goal of the Inquiryis still intentionalism with text being the best evidence.

Lord Blackburns golden rulefollow the plain meaning of a statue unlessthere is an inconsistency or an absurdity.

1. Justifications

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a. Purposive absurd results are excludable b/c all law is supposedto be functional. Absurd result just dont make sense becauseyou never get there.

b. Intentionalist one shouldnt attribute an intent to create anabsurd result to Congress

c. Scalia its been around for a long time and its well grounded soits a well accepted cannon. He uses it in bock laundry. And itincreases predictability to use it. small number of rules willallow use to do what needs to be done but in a predicablemanner.

2. Benefitsa. Descriptively, the plain meaning rule will solve most statutoryquestions.b. Prescripitvely, relying on plain meaning is logical b/c it is themost likely reading that the average citizen will have and thus itsupports the rule of law; it is also probably what the legislature

meant, and it is likely to provide an acceptable resolution tocontroversy.3. Disadvantage

a. it is unlikely to be helpful in the hard cases like Weber and HolyTrinity.b. Plain meaning is a tacit admission that legislative intent is thegoal, b/c anybody who shouts drop everything and come heredoes not want you to drop a baby and go running over.

B. Plain meaning is the presumptive answer, but it can be overriddenby strongcontrary legislative intent. Thus, Rehnquist in Weber consults the legislativehistory to show how it supports his plain meaning argument. The simpleadherence to the statutory text may be incompatible w/ the interpretersfaithfulness to the lawgiver and to the enterprise of governing a complexsociety.

C. AnAbsurd Resultcan be used to avoid plain meaning also.D. Weber Rehnquist interprets the word discriminate to have the plain

meaning of differentiate, but many would argue that in Weber it really meansan invidious differentiation.

E. TVA v. Hil 730 the ct ruled that the plain meaning (supports intent ofCongress) of the Endangered Species Act mandated the halting of theconstruction of a $100 million dam to save an endangered snail. Congressimmediately passed an exemption for this dam. [This DOES look at committeereports, though, as does Griffin.]

F. Griffin 733 Here, a ship delayed paying approx. $400 wages to a seaman;when he sues later, he demands the two days wages for every day the wageswere late, as the statute requires. The ct agrees, saying that this is the plainmeaning of the statute, and that only Congress can change it. here there is noabusurd result and legislative history doesnt really help either side too much.Rehnquist majority legislative history does show a pattern of continualdecrease in judicial discretion on awarding damages so that supports his plain

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meaning argument. Dissent the outcome of the case is absurd and we need away to avoid the outcome. Amendments might have taken out the 10 day limitsand what not but they didnt take out judicial discretion. Use Dog Didnt Barkshows how the statute can have two differing meanings depending on how youlook at it one that represents an unremarkable change and one that is drastic

and dramatic. Unremarkable removal of 10 day limit, but judge gets to fixamount of damages; crazy result no judicial discretion. The fact that nobodyin congress got upset about the issue means its more likely the firstunremarkable result.

B. The New Textualismthe only object of statutory interpretation is to determinethe meaning of the text and the only legitimate sources for this inquiry are text-based or text-linked sources.

1. Sources besides the text may be consulted, such as dictionaries, otherprovisions of the statute, and how similar provisions in related/borrowedstatutes have been interpreted.2. BenefitsIt may be

a. Limits Judicial Discretion the methodology most consistent w/the rule of law and the separation of judicial and legislativepowers and it avoids the corruption of the judiciary, wherewillful judges substitute their political preferences for thoselegitimately adopted by the legislature

b. Predictability Increases the rule of law requires a set of rulesthat are predictably applied to everybody.

c. Efficiency a lot of time and $ could be saved by abandoningthe consultation on legislative history

d. it avoids the corrupt use of legislative history which can be usedto look over the heads of the crowd and pick out your friends.Judge A. Raymond Randolph Footnote O 771.

3. Disadvantagesa. one could argue that if the ct must consider legislative history, aswell as the text, canons of construction, and statutory precedent, thect actually has less judicial freedom.b. In Holy Trinity, the text is not as clear as Scalia says it is.Labor may have meant only bodily exertion, not the braintoiling of a minister (1st definition of a contemporaneousdictionary); service may have meant the occupation of a servant(1st defn. of contemporaneous dictionary). Thus, maybe the ministeris not performing labor or service of any kind.c. Canons in Holy Trinity go both ways.

i. rule of lenity says to let the D go, b/c the statute isambiguous.ii. inclusio unius est exclusion alterious suggests that thelist of exemptions is complete.

d. it may sever the connection between democracy and the rule oflaw; the law was passed by willful legislators, not a drunken mob.e. law w/out mind

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f. dictionary shopping can lead to lots of leeway also.4. Alternativeif you dont like legislative history too much, you could useit only to choose between several possible purposes or to ensure that youdidnt miss a plausible purpose (Hart and Sacks suggestion)5. Casey 767 issue does 1988 on recovery of attorneys fees include

recovery of expert witness fees also. Scalia majority starts with text but itsnot too helpful so he turns to other statutes that have language about expertfees. S argues they explicitly have language that applies to expert fees andsince 1988 doesnt then including it in reasonable attorneys fees wouldmake the other language explicitly regarding expert fees superfulous(cannon avoid redundancy). Stevens dissent purpose of 1988 isdefeated if expert fees are not included.7. ChisomThe Voting Rights Act covers representatives; is an electedjudge a representative for the purposes of this act? Stevens majorityopinion says yes b/c it serves the purpose of the statute (to rid the country ofracial discrimination in voting).

a. Scalias dissent says that the ordinary meaning of the wordjudge does not include representative. This ordinary meaning(60%-40%) is less strong than a plain meaning (90%-10%).

8. MarshallIn the majority, Easterbrook textualist argues that LSDsaturated in paper is a mixture under the relevant statute, and thus theweight of the carrier must be included in deciding what the sentence shouldbe. Argues that PCP is excluded from the statute and since LSD isnt in thelist of exclusions it must have been included (used exclusio unias)

a. Benefits of this approach:i. textualist approach is consistent w/ rule of law, separationof powers, and the prohibition on delegation to legislativesubgroups (committees) in Article 1, Section 7ii. Cts will enhance democracy and legislativeaccountability; the legislature should change the law if itdoesnt like it

c. BUT, 1. if you look at the actual defn. for mixture and substancethey arent really very helpful in resolving the issue. 2. sweatytowel that dries 775 we dont call this a mixture so ordinaryusage probably wouldnt really see the blotter and LSD as amixture.

d. Posner dissent says that a purposivist approach is more here, b/cotherwise the sentence would be too harsh (almost absurd). Hesays that by applying the literal meaning of Congress thatCongress is actually embarrassed, not honored. He is worriedthat legislation will be deterred b/c the legislature will lose faithin the cts ability to interpret laws fairly.

9. Perez v. Wyeth Labs 786, 36 notes Norplant case. issue shouldplaintiff have been warned by the drug companies directly. State statutesays an adequate warning needs to be giving and refers one to the legislativehistory. The legislative history says that only the doctor needs to be given

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the warning and then the statute says the statute must be construed in lightof the legislative history. From a textualist and rule of law standpoint thiscase is cut and dry against plaintiff. Majority just refuses to follow thisbecause they see a concentrated benefit (to drug companies) but adistributed cost (consumers)so they just ignore the direct command to

look at legislative history. Practice guide F would go and find cases thathave conbene/distcost that the courts have ruled for the for and argueprecedent for these cases.9. Sweet Home or MCIScalia.

10. BUT, PROBLEM FOR NEW TEXTUALISTSFDA v. Brown &Williamson Tobacco 791, 35 F this is an excellent law as equilibriumcase. Here, the plain meaning of the statute seems to allow the FDA toregulate tobacco as a drug, b/c it intends to affect[the bodys]structure[and] function. However, OConnors majority deniesregulatory authority to the FDA.

a. The Majority (including Scalia) reasoned that there was a

longstanding equilibrium:a. public understanding, agency interpretation, private

reliance, congressional acquiesanceb. O sets up an absurd result if we read the statute

literally itd cover enormous amounts of productssothats obviously not what congress wanted.

c. Then she looks at legislative history and finds nothingabout tobacco and then she pulls out dog didnt bark tosay that if such a major industry was to be regulated itwould have barked.

e. The Dissent (Stevens/Breyer/Ginsburg/Souter) argued for the

plain meaning approach. This is supported by the purposiveand legislative inaction approaches.

PRACTICE GUIDE - Imagine youre at a firm and you are given a statutory case beforethe CO. sup ct? dont just walk out the door and go to the library and hope to findinfo.ask questions!!!!! Whats the center of gravity on the court? is leg. History usedand liked?, are they big on text?Do you have a model brief (used in the past few years)on a statutory case so I can see how this firm thinks about the courts center of gravity oncases like these? Etc.

EXAM - Start with text somewhat in a vacuum and look at cases on those issues and

dictionaries and stuff that way you got an idea for the strongest part of what the Sup. Ct.will hold on. Get a feel for that segment of your brief. Then move to the other issues leg.History, purpose, policyto see how it works into your argument.

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IV. Dynamic Theoriesthese theories are normative; when interpreters apply statutes,they are making value judgments. Maybe all theories are normative, and these theories arejust honest about the choices being made.

A. Best Answer Theories1. Natural Law Theorizingstuatutory texts should be read to reflect the

underlying moral reality inherent in those words or in the evolving statutorypolicy.a. Professor Hurd says a statute should be construed so as to producean optimal state of affairs.b. BUT, there can be a lot of disagreement about the meaning ofwords that satisfy this test.

2. Theories based on coherencea. Legal process theories (such as Hart and Sacks)b. Statutory text should be construed no only in light of statutorypurpose, but also statutory precedents and the priniciples andpolicies followed by the polity.

c. BUT, does this approach tell citizens what the law demands ofthem? Is it predictable?i. If the decisions are in line with citizens expectations, thenyes. This is the equilibrium of a policy. People dontknow the law by looking it up, they know it by observinghow thing are done and occasionally asking experts. Thus,citizens were not shocked by the decision in Holy Trinity b/cit conformed w/ their ideas about Christian ministers.2. This equilibrium theory does not work as well forBrennan in Weber b/c there was no political consensus aboutaffirmative action, a controversial topic.

B. Pragmatic theoryour intellectual framework is not single-minded, but consistsof a web of beliefs, interconnected but reflecting different values. We generallyconsider several values, and the strength of each in the context at hand, beforereaching a decision. Reasoning is more often a cable than a chain.

1. Eskridge/Frickey Funnel

MostAbstractInquiry

MostConcreteInquiry

Current ValuesEvolution of Statute

Legislative PurposeImaginative ReconstructionSpecific Legislative IntentStatutory Text

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Here, concrete considerations (like text) outweigh more abstract ones (likebest answer).

a. Holy TrinityBrewer structured his opinion on these lines.While he conceded that the text was for the prosecution, he foundthat it was outweighed by specific legislative intent, the purpose of

the goal to prevent a flood of cheap imported labor, and the nationsvalues of being a Christian Nation.b. Weber (Blackmun concurrence)he conceded that the text andthe imaginative reconstruction was on Rehnquists side, but hethought that the integrative purpose of Title VII, the evolution of thestatute, and the best answer (in light of the nations historicalracism) pointed towards the majority.

C. Critical Theoriesthis is typically deconstructive, but can be reconstructive aswell. This shows how particular readings are often ideologically based, instead ofobjectively based.

1. Desconstuction opens up interpretive possibilities in statutory texts, the

opposite agenda of textualist theories.a. WeberWhy should a provision put in to placate whiteconservatives not be read from the perspective of blacks?Moreover, one can note that Weber would not have even beeneligible for the craft program if it had not been set up by affirmativeaction.b. The common idea that law is a set of rules is false; the perspectiveof the interpreter often matters more than what the text says, andthus his ideology controls the text.

2. Recontructioncritical theory can suggest positive moves thatinterpreters can make in the face of pervasive indeterminacy.

a. Weberask whether it was discrimination to help blacks, andwhether their lack of qualification was the result of previous race-based policies.b. Holy Trinitythis interpretation effectively created an exceptionfor wealthy, upper-class individuals (ministers), and thus squashedpolitical resistance to a xenophophic/racist law.b. BUT

i. this undermines the rule of lawii. this undermines the democratic processiii. there is a normative arrogance here

D. Ex Ante Economic Approach

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TEXTUAL AND PRECEDENTIAL CANONS

Policy Concerns regarding Textual Canons1) How accurately do they identify ordinary textual meaning?

2) Does the legislature draft statutes w/ these canons in mind?3) Should they be given rule-like quality or merely serve as a checklist of potential textualmeanings that might otherwise be overlooked?

How can cannons be used:1. basis for strict or liberal construction example rule of lenity means ambiguous criminal statutes should be construednarrowly. This shows how the particular cannon is used to narrow. But some could alsobe used to expand.2. tiebreaker do everything first that you usuallydo in statutory analysis and then if its even at the end, use the cannon to tip the other

way. Rule of lenity can be used in this way also.3. presumption at the beginning example withthe rule of lenity prosecution at the onset has burden of proof to overcome in regardsto statute.4. clear statement rule congressional intent mustbe clear in some respect. One example, if congressional intent on the subject is clearthen you lop off the analysis there and the agency must follow (Chevron). Or Indiantribal treaties there is a presumption that congress will not abrogate. If congress wantsto abrogate, then congress must make a clear statement that they know what they aredoing and they want to do it.

Practice guide cannons change strength over time and across jurisdictions so you have tocheck to see how the particular cannon is used in the jurisdiction (state court vs. fed court,cir to cir) you are arguing in at the CURRENT time.

Practice guide you can find cannons that are worded differently that will change theirmeaningsee rule of lenity and how it has different formulations.

Practice guide never write a brief that pulls out a cannon and say its a rule and thereforemust be followed. ALWAYS, include language about the policy of the cannon and why weuse it and how that works in the case. for example, under the rule of lenity - So we shouldthink about these issues and see where they fit in our case when writing our brief and usethe justifications that work best. You can use your imagination and find cases that havelanguage discussing these issues, or law reviews, etc. for example, on certain facts youcould even say that we shouldnt condemn people to being a criminal with all the moralharm that comes without a clear statute even if you cant find a case that says soyou aretrying to get the judge to bite. Me - This might be a good argument for the brief in McNally where these are politicians and a conviction will end their political career but the statuteis vague and expansive.

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I. Sources for Discerning Plain MeaningA. Ordinary Meaning Cannons

1. Nix v. Heddonthe Sup Ct ruled that it in the common usage of thepeople tomatoes are a vegetable that was covered by a tariff on vegetables,even though they are technically a fruit.

a. BUT, is there any substantive reason for treating tomatoes asvegetables and not fruits?2. DictionariesCts often use these, as in Nix, as aids to the memory andunderstanding of the court.

a. BUT, which dictionary should be used? Casual v. formal,contemporaneous v. modern

3. Grammar books, surveys of linguistic practice, judges own ideaB. Cannons of Word Association [based on the idea that we should not interpret

broad categories w/out clear indication from the legislature]1. Noscitur a Sociisa thing shall be known by its associates. - interpretwords in light of the surrounding words. When two or more words are

grouped together, and ordinarily have a similar meaning, but are not equallycomprehensive, the general word will be limited and qualified by the specialword.

a. Sweet Home 836 dueling cannons. Stevens Majority - use ofnocitur a sociis reads harm out of the statute. So dont use it. ScaliaDissent used this to restrict the word harm all the other wordsaround it have an element of direct contact so harm should beinterpreted the same way.b. POLICY

i. this probably reflects our intuition about legislatorslinguistic decisions, b/c people use lists to link similarconcepts and to illustrate coherent patterns.ii. broad regulatory duties or deregulatory exemptionsshould not be inferred w/out a relatively clear indicationfrom the legislature

2. Ejusdem Generisof the same kind. specific informs general -Where general words follow specific words in a statutory enumeration, thegeneral words are construed to embrace only objects similar in nature tothose objects enumerated by the preceding specific words. EXAMPLE: if inSweet Home the last term would have been to otherwise harm. Specific,specific, general.

C. Canons of Negative Implication1. Sweet HomeScalia argues in his dissent that since Congressspecifically [7(a)(2)] prohibits federal programs that result in thedestruction or adverse modification of habitat, the lack of such aprohibition in 9 on private individuals shows that Congress implicitlyallowed such destruction.2. Inclusio (expressio) Unius (est exclusio alterius)the inclusion(expression) of one thing suggest the exclusion of all others.

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a. BUT, people dont necessarily allow their lists of prohibitedactivities to be inclusive (dont hit Tommy doesnt mean you cankick him)

D. Grammar and Punctuation RulesCourts presume that the legislature expectsits statutes to be read according to the ordinary rules of grammar and punctuation.

1. BankAmerica Corp. v. U.S.the Clayton Act prohibits anyone fromserving as a director in any two or more corporations.other than banks.Can you be a director of a bank, and a director of an insurance company thatcompetes w/ banks? Burger majority - yes easy matter of grammar.Dissent statutory language is ambiguous os we turn to statutes structureand purpose2. Rule of the Last Antecedentreferential and qualifying words referonly to the last antecedent, unless contrary to the statutes punctuation orpolicy.

a. Commonwealth v. Kellythe law prohibited the sale of alcoholbetween 11 at night and six in the morning; or during the Lords

day, except that [an innholder] may supply such liquor to guests.The innholder argued that he could sell alcohol at night as well as onSunday, but the ct disagreed. The proviso only modified during theLords day.

3. De Morgans Rulea. NOT (A andB) means Not A orNot Bb. NOT (A orB) means Not A andNot B

E. Exceptions to Ordinary Grammar Rules (Man includes Woman, Singularincludes Plural). These exceptions are often codified.F. Avoiding Absurd Results and Scriveners Errorscts will read--or even rewritestatutes to avoid absurd results or correct scriveners errors

1. Holy TrinityBrewer thought that a law that would have intended toexclude Christian ministers from this country would have been absurd;Scalia disagrees w/ this application of the cannon.2. Green v. Bock Laundry Machine Co.Federal Rule of Evidence609(a)(1) allowed a witness credibility to be attacked by a prior criminalconviction, but only if the crime was a serious one AND the ctdetermines that the probative value of admitting this evidence outweighs itsprejudicial effect to the defendant. This is fine in criminal cases, where theD has lots of special protections, but not in civil cases b/c it would be toobiased against the P. ALL the justices agreed that this was absurd, and themajority rewrote the rule to apply only when a criminal Ds credibility isattacked and to admit prior convictions of other witnesses. [Stevensintentionalist approach, using imaginitve reconstruction.]

a. not only was this absurd, but it was probably unconstitutional anda scriveners error. The probability that it was a scriveners errormade the judiciarys rewrite much more defensible.b. Blackmun advocates a Hart/Sacks purposivist approach and saysthe purpose is to prevent predjudice against a party b/c of prior

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convictions, so you should apply the rule to all parties. He wouldrather expand the protection of this rule than constrict it.c. Scalia, concurring in the judgment, argued that you should rewrite

the statute in a way that does least violence to the text. BUTi. why should a textualist ever rewrite a statute? If it is

unconstitutional, then it should be struck down on thosegrounds.ii. if the text is contaminated, why should we do the leastviolence to it?iii. this is a vague question, and undermines predictabilityand certainty.

3. BUT, in Public Citizen, Kennedy in his concurrence warns aboutoveruse of the absurd result canon.

II. Whole Act Rule and Holistic Textual Sourcesa provision that might seem ambiguousin isolation is often clarified by the remainder of the scheme. This is a whole act rule

[policy reasonsconsistency, rule against surplusage] BUT, the assumption of a single-minded and omniscent legislature is at odds w/ reality, so this rule has less normativejustification than the plain meaning cannons. Thus, intentionalism provides littlejustification for this cannon (but rule of law values do provide justification). Rule oflaw justification tend to work better for intratextual arguments (within a statute) thanintertextual arguments (between statutes in a whole code).

A. Presumption of Statutory Consistency1. Sweet HomeScalia showed how the use of the word take in otherparts of the statute was inconsistent w/ harm. He also cited how the wordwas used in other statutes and treaties.2. West Virginia University Hospitals v. Casey the question was

whether a P who can recover a reasonable attorneys fee under a statutemay recover expert fees. Scalia, WHOLE CODE TEXTUALISM - in themajority, denied recovery b/c fee-shifting provisions in other statutesspecifically include expert fees.

B. The Rule Against Surplusagethe presumption that every statutory term addssomething to a laws regulatory impact.

1. Sweet HomeStevens argued that unless harm included indirect aswell as direct harms than it would have been merely duplicative in meaningto the other words.

a. Scalia disagrees, saying that feeding an animal poison is anexample of a harm that was not covered by the other words.

2. BUT, legislators might want to be redundant; this is seen as aDISFAVORED CANON by Frickey (along w/ expresio unius)C. Statutory Amendment and Evolution

1. Sweet Home--The Interior Dept. had broadly construed the term harmsince 1975, and landowner complained. Thus, in 1982 Congress allowedlandowner to apply for a waiver if the taking was incidental to a lawfulactivity. Stevens said that this amendment was a confirmation byCongress of the broad definition by the dept.

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a. Scalia argues that this amendment was consistent w/ a narrowinterpretation of taking, such as a waiver to take protected fishwhile fishing for legal fish.

D. Statutory Structurethe classic holistic argument is that one interpretationbetter fits the structure of the statute than another.

1. WeberRehnquist dissent ould have (but didnt) argued that his positionwas more consistent w/ the overall statute. His broad construction of TitleVII to ban discrimination b/c of race is consistent w/ the statute, b/c clearexceptions are made under the law but not for private sector affirmativeaction for blacks (EX: an exception for employers near Indian reservationsto prefer hiring Indians)2. Sweet HomeScalia vigorously argues that 9 was to prohibit peoplefrom taking animals, and that 5 deals with protecting habitat by allowingCongress to buy it.

E. Other Parts of the Statute: Preambles, Titles, Provisos1. Preambles--Generally, the preamble cannot control the enacting part of

the statute in cases where the enacting part is unambiguously clear, but itmay be resorted to to help discover discover the intention of the law maker.a. EX: Sutton, ADEA preamble mentioned 43 million people aredisabled, so the statute must not cover people w/ glasses b/c thereare 80 million such people.

2. Titles--Similarly, the Title can be consulted to resolve uncertainty in thebody or correct obvious errors.3. ProvisosThese are authoritative commands, typically restricting orcreating exceptions to primary commands. They should be given legaleffect, but they are generally narrowly construed.

F. Statutory Conflicts1. No Repeals By Implicationgenerally, the cts want the legislature to be explicit if

it wants to repeal a statute. However, the cts sometimes use the cannon of theprimacy of the last enacted statute to overrule that. Morton v. Mancari 1054 Indian preference statute 1053 see notes on 65 Key logic for a case. Cannon isstated on 1059 repeals by implication are not favored. Note he states it as acardinal rule Note Georgia v. Penn RR what to do when statutes just cannotbe reconciled? Irreconcilable conflict where one has to be preferred over the other.1. specific trumps general. This can be true even within the same statute. 2. if #1doesnt help then courts generally say, the later in time statute controls. Is thecannon against implied repeals defenseable? Why not have the opposite? 1.stability, continuity, reliance really good reasons. 2. avoid unintendedconsequences much might get repealed that the legislature never intended to getrepealed. Notice how the specific trumps general here is very helpful narrowstatutes survive but general ones that might bring up issues under one and two getbeaten back. How often does congress even think of any consequences under Indianlaw? not very oftenso this cannon helps avoid weird consequences. 3. avoidconsequences that only a minority might have noticed (and wanted) but are notoutcomes widely shared. What makes Mancari an easy case for F once we get tothe implied repeals then he says that does title 7 repeals make any since within the

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context of Indian law; and did congress even think about Indian law when theywere passing title 7. its probably likely that congres didnt even notice the issuesand consider them during deliberations on title 7. moreover, congress can changeany preferences that are left intact after title 7.

2. Primacy of Last Enacted statute pg 274 of supp where partial ortotal repeal of an earlier statute is clear form the plain meaning of thesubsequent statute, the Sup Ct. will invoke this cannon.3. Specific Over Generalgenerally, cts will give more power to aspecific statute that it thinks pondered a specific issue more closely than ageneral statute.

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FUNNEL OF TEXTUAL READING

III. Precedent and Statutory MeaningA. Super-Strong Presumption of Correctness for Statutory Precedentsoncethe Sup Ct has authoritatively construed a federal statute, the precedent is supposedto have a heightened stare decisis effect. The Ct generally thinks that thelegislature is the more appropriate place to change an interpretation.

1. Based on deal oflegislative acquiesance; if the legislature really didntlike an interpretation, it could have changed it.

B. The Reenactment Rulethe reenactment by Congress, w/out change, of astatute, which had previously received long continued executive [or juidicial]construction, is an adoption by Congress of such construction. This isNARROWER than heightened stare decisis, b/c at least Congress has to reenact thelaw, and it is BROADER b/c it does not apply only to Supreme Ct decisions butalso to agency or lower ct interpretations.

C. Judicial Construction of Similar Statutesjudicial interpretations of onestatute can be informed by interpretations of similar statutes.

1. Sweet HomeScalia used this in his dissent.2. in pari materia, modeled statutes, the rule against applied repeals (p.30)

IV. Interpretation in light of other statutesA. Similar Statutes (the In Pari Materia Rule)

1. Cartledge v. Miller 1039 ERISA case, ERISA which prohibits theassignment of an employees pension benefits. Is there an exception forspousal/child support? The ct looks at other statutes, such as the SocialSecurity Act, the Veterans Benefit Act, etc., and says that since they all had

exceptions that shows congress wants an exception here. Easy case purpose is clear and so are other statutes.2. Lorillard v. Pons 1043 Is there a right to a jury trial for private civilactions under the Age Discrimination in Employment Act (ADEA)? The ctlooks at the Fair Labor Standard Act (FLSA), b/c the ADEA is supposed tobe enforces in accordance w/ the procedures of the FLSA. Since there isa jury trial in the FLSA, there is a jury trial for the ADEA. If Scalia was on

Whole codeStatutes in pari Materia

Whole statuteThe title (e.g, Title VII) or statute portionSurrounding sections in pari materiaSection and titleSection (e.g., 1323(a))

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the court and we wanted to make a more textual argument wed say Model or Borrowed Statute Rule

B. The Modeled orBorrowed Statute Rule - when congress legislates against thebackdrop of other statutes, congress is on notice that courts will use their priorholdings to interpret the new statute.

1. Zerbe v. State 1049 Here, a guy wants to sue the AL govt fornegligence in falsely arresting him. Under the Alaska Statute he isprevented for suing the govt in an action for false imprisonment, but is notprevented from suing in an action for negligence. Which is this? The ctlooks at the Federal Tort Claims Act, which the AL statute was borrowedfrom, and looks at how cts have interpreted it. It thus chooses to allow thesuit.

C. Statutory ClashesThe Rule Against Implied Repeals1. Morton v. MancariHere, the ct is deciding whether preferences forIndians under the Indian Reorganization Act of 1934 were repealed by theEqual Employment Opportunity Act of 1972. The ct says no, b/c repeals by

implication are not favored. It says that the intent to repeal must be clearand manifest.a. This is a very broad rule; maybe it should be narrowed to readthat repeals of longstanding policies are disfavored, especiallywhere there is no collateral evidence that the longstanding policyhas been repudiated.

SUBSTANTIVE CANONS OF STATUTORY INTERPRETATION

I. Overview of the Substantive CanonsThese canons are more controversial than thetextual ones b/c they are rooted in broader policy or value judgments. They seek toharmonize statutory meaning w/ policies rooted in the common law, other statutes, or theConstitution. They often mandate that a statute be read liberally or strictly, oroperate as presumptions/default rules, or even amount to clear statement rules thatmandate an interpretive conclusion unless clear statutory text dictates that oppositeinterpretation. Decide which way to use: (1) clear statement, (2) rebuttable presumption,and (3) tie breaker.

A. Liberal v. Strict ConstructionChange v. Continuity in Legal Regimes. Theoldest such canons are (1) remedial statutes are to be broadly construed and (2)statutes in derogation of the common law are to be narrowly construed. Bothcannons are not used very often anymore because so many statutes change thecommon law.If youre going to use, come up with a strong policy reason thatinforms why the cannon is applicable.

1. Broad/Narrow construction often turns on the extent of reliable politicalsupport for a change in the status quo and the extent that the judiciary intuitsthat a shift in societal values has rendered common law principles obsolete.Thus, the tension between continuity/change in law can be resolved only incontext, not by global rules.

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a. Weber (Liberal Construction)In this case, the judges mighthave understood the Herculean efforts required to pass the CivilRights Act, and also recognized that the legislative branch was nowworking in harmony with the judiciarys attempts at integrationshown in Brown v. Board of Education. Thus, the ct could throw

out the old common law presumption of employer autonomy as nolonger consistent w/ contemporary values, and apply the lawbroadly.b. Medical Malpractice Reform (Strict Construction)The judge

might think that a small, powerful group (doctors) passed thislaw at the expense of the uninformed, diffuse public (PublicChoice Theory). Also, the judge might think this legislation anexcessively dramatic departure from the common law. Thus, thejudge might decide to construe it strictly.

c. Smith v. Wade - 1983 allows for recovery for violations offederal civil rights. What damages are included? Its not spelled

out in the statute or legislative history. 1983 had a commonlaw background unlike Title VII and other strictly legislativestatutes so there are more gaps that its trying to fill from theCL. Baseline would be common law tort damages in 1871 orshould we use damages available today.

2. Public Grants are construed strictly. However, if a statute/grant istailored to a private interest, but it clearly promotes a public value, theCourt may refuse to apply a strict construction.3. Sovereign Immunity Canonstatutes waiving sovereign immunity areread strictly.

a. United States v. Nordic VillageScalias majority opinion saidthat the traditional principle [is that the] Governments consent tobe sued must be construed strictly in favor of the sovereign, and noenlargedbeyond what the language requires. This is a veryrighteous use of the canon.

B. Presumption or Clear Statement Rules. These Presumption canons embodypresumptions of policies that the legislature intends to promote through its statutes.The difference between at strict/liberal construction canon and a presumption isoften more form than substance. Here are the three different Procedural Effects ofCanons:

1) TiebreakersThese are the weakest kind of substantive canon. Itoperates merely as a tiebreaker at the end of the interpretive process.2) Rebuttable PresumptionsThese effect interpretation at the outset, asopposed to merely at the end of analysis. A court following this approachbegins by presuming that the legislature intended a certain meaning (e.g.,not to waive sovereign immunity) and places the burden of overcoming thispresumption on the other side.3) Clear statement rulesUnless a statute says X, we will conclude not-X.This is essentially a rule of law, telling judges that they must interpret a

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statute a certain way unless there is clear statutory text for an alternativemeaning.

a. EX: Nordic Village. Scalias majority opinion demanded a clearstatement to overcome sovereign immunity.

C. Policies Served by Substantive Canons

1. Efficiencythese rules may provide a predictable interpretive regimethat embodies gap-filling rules accessible to the legislature and the bar.a. BUT, this justification is undermined when the canons evolve(e.g., when the sovereign immunity canon switched from apresumption to a clear statement canon).b. ALSO, the legislature might not draft its bills carefully enough toconsider these canons, and thus the Ct is allowed to impose its ownvalues on the law in the guise of interpretation.

2. Valuesthe values in the canons are normatively attractive, b/c theyhave been around a long while; they are not just the judges values. Also,they may reflect the basic values in our Constitution, the common law, or

longstanding public policies.a. BUT, it is unlikely that Congress/ the public would support therule of lenity, in order to give criminals a break In some sense,the canons are couter majoritarian.

3. They correct legislative failure and promote legislative deliberationthe court might narrow the law in order to avoid throwing it out asunconstitutional. (E.g., the rule of lenity allows the cts to narrow a law sothat it comports w/ due process as opposed to throwing it out).

II. Important Substantive CanonsA. Avoiding Serious Constitutional IssuesCourts should decide constitutionalissues only when necessary. Brandeis wrote that the Court would decide aconstitutional question only if there was no other way to decide the case.

1. Prosa. The legislature is free to return to the issue.b. The legislature might more carefully consider the constitutionalimplications of the bill upon reconsideration.c. This narrowing interpretation puts up legislative vetogates forthose who might try to trammel Constitutional values.

2. Consa. When the canon is invoked, the best interpretation is jettisoned infavor of any alternative that is fairly possible; this might allowwillful judges to give a statute an implausible meaning.b. You must actually do some preliminary determination of whetherthe statute is constitutional in order to apply this canon.c. The ct might do a slipshod job of interpreting the Constitutionalissues b/c it is supposed to be avoiding them.d. Posnersome constitutional questions will be avoided eventhough there is no constitutional problem.e. This will result in suboptimal interpretations.

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3. NLRB v. Catholic Bishops of Chicago[Are teachers at a parochialschool employees under the NLRA] NLRB argued plain meaning andexclusio unias because none of the exceptions listed in the statute includedparochial schools. Majority formulation of cannon first, are thereserious constitutional questions. Secondly, if there are, then is there a

affirmative intention of congress clearly expressed that the problematicformulation of the statute be given. (so you need magic words bycongresscant use imaginative reconstruction. In this case there wereserious issues (unexplored), so the court looked for congressional intent.None in text itself so then they went to legislative history and other statutes.Since these didnt clearly show that religious was supposed to be included.So Majority said avoid the question and dont include it. Thisconceptualization of the cannon is actually determinative in this casebecause from the briefs Burger knows there is no leg. history to support thestatute and the text of the NLRB has a good argument. So by formulatingthe cannon in this way, he reaches the outcome he wants. Brennan Dissent

formulates cannon as first, is there a serious issue of constitutionality, ifso, then avoid it if there is a construction of a statute isfairly possible bywhich the question may be avoided. With this formulation, you have to dothe hard work first on the constitutional issue to make sure the question isserious. If it is, then you do the funnel to see if there is an alternativeplausible reading to save the statute.4. Kent v. Dulles (1950)Congress had given almost limitless power tomark somebody as a subversive and reject their passport. The Sup Ct saidthat b/c of the serious Constitutional questions involved, the Ct wouldassume that the Congress did not intend to assign so much power to theState Department. Thus, the inertia falls on Congress to make explicit itsintention to delegate so much power to the State Dept.; b/c of vetogates, itnever does.

B. The Federalism Canons1. Liability of States--Congress may abrogate the States constitutionalitysecured immunity from suit in federal ct only by making its intentionunmistakably clear in the language of the statute.2. Core State Functions pg 49-50 notes Congress must express itselfclearly if it wishes to impose regulations on states regarding their core statefunctions.

a. Gregory v. Ashcroft[super strong clear statement rule] Can astate require its judges to retire at age seventy? The question iswhether they are covered by the Age Discrimination in EmploymentAct. It is ambiguous whether judges were appointees on thepolicymaking level exempted by the act. The Court says yet, andthat any federal law that intrudes on state governmental functionswould be subjected to this canon. This is a very broad use, andanother part of the opinion has a better, more limiting use that itapplies only to decisions of the most fundamental sort for asovereign entity.

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i. BUT, in BFP v. Resolution Trust Corp, Scalias majorityopinion cites Gregory in support of the position that a clearstatement was needed in order for federal law to trump statelaw concerning private rights (not just core statefunctions).

b. 4 formulations of this cannoni. If Congress intends to alter the usual Const balance, thenthe intent to do so must be unmistakably clear in thelanguage of the statuteii. If state governmental functions are intruded on, the intentto do so must be unambiguous.iii. If a law intrudes on traditional state authority, then thereis a presumption against finding it constitutionaliv. If it is one of the most fundamental decisions of asovereign, then it must be plain to anyone reading the actthat it counts judges.

c. AtascaderoYou can violate state tort immunity only w/ superstrong statement3. Three Characteristics of the Federalism Canons

a. Gregory shows that canonical evolution can amount to a bait andswitch; Congress might have legislated under one legislativescheme, and then realize that it has to pass new legislation to affectthe same result b/c the of canonical evolution.b. Federalism canons are driven in large part by the Justices ownvalues that Congress can intrude upon Congress only if it deliberatescarefully and is clear about it.c. The evolution of a set of canons can have a gravitational pull,altering other canons that come in contact with it.

C. The Rule of Lenityambiguities in criminal statutes should be construed to thebenefit of the defendant. Criminals are less likely to benefit from this canon whentheir crimes are malum prohibitum as opposed to when they are malum in se.However, this canon can be unpredictable. Today, it is most often used as atiebreaker. Statutes try to abolish this, but judges often say it is a due processissue.

1. Purposea. Provides cts a way to limit prosecutorial discretion by

thwarting arbitrary or discriminatory applications of a criminalstatute.

b. It promotes fair notice to the citizenry over what is criminalc. Libertarian bias offreedom v. regulationd. Seperation of powersthe legislature alone has the authority to

define crimes, so the cts should not define them beyond the clearmeaning given by the legislature.

2. Consa. Why give the criminals a break?

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b. unpredictable and erratic in application3. Smith v. United States If someone trades a gun for drugs, has he

violated a federal statute that gives a sentence enhancement for theuse of a weapons during a drug crime? O majority - Yes; no rule oflenity concerns here. Scalia dissent says this is not the ordinary

meaning of the word use. use gun as a weapon this is a good caseabout how New Textualism is not plain meaning but ordinary meaning.4. Bailey gun in a trunk. Is that use? O says no, its not active and use

requires activity.5. Muscarello v. United StatesSame law as Smith and Bailey; the

criminal was just carrying the gun and used it as part of the paymentin a transaction. So the issue is is that carry under the statute?

a. Tiebreaker--Breyers majority using whimpy rule of lenitysaying that the rule of lenity can be used only if the ct concludes thatthere is a grievous ambiguity or uncertainty in the statute so in thiscase it doesnt play much of a role for the majority. They start with a

textual analysis and conclude carry can mean as convey so carryingin the trunk fits within the statute. They argue technical vs.ordinary meaning cannon in essence. They argue that ordinarymeaning is convey and technical meaning is carry on ones person so under ordinary meaning they are ok and the statute is clear.b. Presumption--Ginsburg minority argues for a strongpresumption rule of lenity saying that the rule of lenity should beused if there is some doubt in the proper reading of the statute. Gshows how the majority useage is actually technical and leads toredundancy elsewhere in the statute.c. Clear Statement Rule[White, in another decision, said the ruleof lenity ought to be viewed as a clear statement rule]

5. McNally v. United States 865, 43 State officers created a scheme ofbuying insurance for the state and receiving kickbacks. However, there wasno proof that the state had suffered any economic loss, so it was ambiguousif the statute had applied. State argued the citizens of the state weredefrauded out of their right to good state government. Majority federalismwas a big deal the mail fraud statute is broad and vague and they didntwant to expand fed authority into what was traditionally a state area andtheir actions were not illegal under state law. The Rule of Lenity wasinvoked by the majority; this makes since when combined w/ federalismvalues. Limit prosecutorial discretion The majority also wanted to keepthe US atty from expanding the reach of the statute to a new area.

D. Create your own Canon1. Shine v. Shine-- unless Congress is clear, family obligations should notbe dischargeable2. Bock LaundryStevens (in cf. cite)

III. Conclusions About the CanonsA. Application of canons must depend on context.

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B. Be wary for Judges that hide their normative positions in the rule-like faade ofthe cannons.C. Textualists (Scalia) worry that these canons are trouble b/c they increase theunpredictability of judicial decisions.

1. BUT, Scalia also said that the goal of interpretation should be:

a. First, find ordinary meaningb. Then, use the established canons to ask whether there is any clearindication that some permissible meaning other than the ordinaryone applies.c. If not, apply the ordinary meaning.

D. Canon Concerns1. Do the canons contribute to greater legal certainty?2. If so, does the value of certainty justify using the canons even whentextual integrity is sacrificed.3. If not, do the canons contribute some other, quasi-constitutional valueworth preserving in our system? (EX: rule of lenity w/ due process;

federalism canons)4. Can they be defended as part of a judicially constructed and enforceddue-process-of-lawmaking principle5. Or, are the canons based on debateable values and too erratically appliedto subserve any noncontroversial value?

E. LLewelyns critique that you can use canons to say anything1. BUT, they still might be useful to structure the debate betweenadversaries, using a handy checklist

EXTRINSIC SOURCES FOR STATUTORY INTERPRETATION

Reasoning from Extrinsic Sources asks what the statutory command means, in light ofsources of legal understandings found outside of the four corners of the statute andconventions of linguistics. Such extrinsic sources include the common law, legislativehistory, and agency interpretations.

I. Justifications for using extrinsic sourcesa. Rule of Lawextrinsic sources make statutory law more determinate,transparent, and objective for the citizenry. If everyone knows what sources will beconsulted to fill gaps in the law, then the law is clearer for everybody.b. Democratic LegitimacyIf the legislators are aware how the statutes will beinterpreted, they can better predict how the statutes will be applied. If these sourcesare accurate and not abused, then the intent of legislators can be more faithfullyenacted.c. Practical Efficacyextrinsic sources may help the citizenry understand how thestatute is supposed to operate.d. Efficiency Perspectiveextrinsic sources are good if they decrease error costsmore than they increase decision costs.

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II. The Common LawThe importance of the common law to statutory interpretation hasdeclined, but it remains highly relevant to the interpretation of statutes regulatingtraditional common law areas (torts, contracts, property, etc.), especially where thelegislature has adopted or merely codified common law terms/principles.

A. Statutes in derogation of the common law are to be narrowly construed

[which invade the common law.are to be read w/ a presumption favoring theretention of long-established and familiar principles, except when a statutorypurpose to the contrary is evident].

1. EX: Civil Rights Act of 1871 says that any person acting under colorof law is liable if that person deprives another of his Constitutional rights.B/c this law does not give much direction as to this liability, the Court hasused the common law to carve out various exceptions to this law (e.g.,witnesses, judges, etc.).2. Bob Jones University v. United StatesThe IRS provides an exemptionto religious/nonprofit groups. It revoked exempt status to Bob JonesUniversity b/c it discriminated in admissions on race. The Ct said the

statutory provision codified the common law exemption that charitable trustbe given special privileges, and since those common law trusts were notpermitted to act against public policy, neither should the new statutoryexempt organizations. Main objections 1. text grants a clear, withoutlimit, exemption to educational institutions, 2. otherewise qualifiedorganizations are not within the section so the congressional list ofexemptions is exhaustive inclusio unias, 3. negative implication argument when congress amended in 1976 to exclude social clubs that discriminatebased on race, they could have also prohibited the others but did not,

a. After the IRS amends its interpretation, Congress has no incentiveto make a legislative change.b. BUT, expresio uniusc. REASONS THIS WAS RIGHT DECISION:

i. involves all branches of govtii. involves agency deferenceiii. congress had clear oppty to change back (legacquiesacne)iv. 10 yrs of equilibriumv. public/private reliancevi. failed proposals to modifyvii. whole code (civil rights act, other statutes are againstdiscrimination)

III. Legislative Historythe record of deliberations surrounding, and generally prior to, thelaws enactment. Most legislative history is created at one of the chief vetogates throughwhich bills must pass to become law.

A. Criteria for using Legislative HistoryIt should only be used if (1) if it isreadily available to the average lawyer, (2) relevantto the precise interpretivequestion, and (3) reliable evidence of consensus within the legislature that can beroutinely discerned by interpreters (4) at reasonable cost.

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1. The statutory text is readily available to citizens and their lawyers, andthe rule of law would require that useable legislative history be similarlyavailable. Legislative history that is not widely available is generally notadmitted to courts, although there are some exceptions.

a. Kosak v. United StatesHere, the Court ruled that the U.S.

could not be sued under the Federal Torts Act for allowing valuableart to be damages at Customs. The Ct cited an ambiguous exceptionthat was unclear as to whether is applied only for wrongfullydetention at Customs or all events at Customs. Marshall cited andunpublished memo in support of the bill written 15 years before thebill was enacted! This is a rare exception to the accessibility rule.

2. In Re: Sinclair 957 [whether farmers can get a certain type ofbankruptcy protection prospectively or for debts already had] HereEasterbrook says that leg history can only confirm an objective meaningthat one could get by looking at the statute. Thus, here, when the statutesays one thing and the leg history says another, he goes w/ the leg history.

a. BUT, in this case it looks like the statute was a drafting error andthose the leg history was right.3. Montana Wilderness Act (I/II) 1003 Does the RR have access overpublic lands in AL, or nationwide? 1st, Judge Norris says that the textualmeaning of it being only in AL is more natural, b/c of the title of the act andthe in pari material rule that 2 subsections be read the same way.However, he checks the leg history and finds nothing especially persuasiveto the contrary. In the retrial, subsequent leg history that shows that theCongress relied on the nationwide interpretation causes the judge tooverrule. Prof thinks all of this conversation should have been avoided, andthe judge should have stayed w/ the 1st interpretation on the grounds thatgrants of public rights to private interests will be construed narrowly.

a. Also, the due process of lawmaking argues for this result, b/cgranting nationwide access has nothing to do w/ the bill.

B. What must the legislative history be relevant to: specific intent v. general intent(purpose)

1. Holy TrinityBrewer cited committee reports that showed both thepurpose of the bill (keep out cheap labor) and the specific intent ofCongress. He cited a Senate committee that said it would amend the bill toexclude only manuallabor and service if it had the time left in thesession.

a. BUT, the bill was actually passed in different session than the onein which the word manual was considered, and nobody offeredsuch an amendment. Thus, this legislative history is bogus.

C. Reliability of Legislative History1. Some Leg History is unreliable b/c it is generate early in the legislativeprocess, before the deals are made.2. Some Leg History is unreliable b/c it reflects the views of legislativeoutliers, and not the whole body.

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3. After Holy Trinity, some Member might try to use Legislative History toskew a bill.4. There may be a tradeoff between reliability and usefulness; reports thatconfirm the plain meaning of the text are the most reliable, but they are theleast useful b/c they only confirm the obvious.

5. Leg History is more likely to yield reliable evidence ofstatutory purpose[general intent] b/c purpose is at a higher level of generality than specificintent and there is likely to be agreement within the enacting coalition.

D. Hierarchy of Legislative History Sources pg 307 supp1. Committee reports are the most useful legislative history, for they talkof the purpose of a statute and analysis of all the provisions (specific intent).

a. They may not always be reliable, b/c committee members maybe outliers, or rent seeking. BUT, they are closely monitored bythe whole chamber and as repeat players they have an incentiveto be honest.

b. Holy Trinity used Committee Reports

2. Sponsors Explanatory Statements or floor managers are also veryuseful b/c overstatements will be objected to by opponents or allies, andas repeat players they will be honest. Rehnquists Weberdissent madeeffective use of Senate and House Sponsors. InNorth Haven, themajority used sponsors statements as persuasive proof.

3. Colloquy on floor or in hearings statements by supporters notgiven much weight because supports do not have the institution role ofsponsor to control their statements nor do they have a leadership role inthe enacting coalition. Opponents Explanatory Statements are rarelyused b/c they are seen as having every incentive to misstate the billseffect. However, both majority and dissent in Weberused minorsupporters statements.

4. rejected proposals (drafting and deliberation history) changes to abill based on prior presidential veto or evidence that proposedamendments where rejected (and are now being advanced as themeaning of the statute) have been important to the court in showingwhat was.Landgraf

5. statements by non-legislative drafters - not usually given muchweight due to the high chance of exaggeration or misrepresentation,inaccessibility, and its not necessarily reflective of the views of theenacting coalition.

6. Subsequent legislative history disfavored under rule of law andpolicy reasons. Prone to insincerity and misleading.MontanaWilderness Judge Norris reverses because subsequent legislativehistory on another statute showed that Congress had a paticular meaningin mind on the issue the Judge was faced with (Alaska act) accordingly he relied on the history because it showed Congress had built on acertain construction of federal law when enacting a subsequent statute.

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In this case,promotion of coherence and reconcilation of the twostatutes overcame presumption against subsequent leg. history.

7. Presidential Signing Statements are usually considered to besubsequent legislative history also they are seen has having incentives tomisrepresent without congressional ability to respond. However,

president is a repeat player. Statements should be treated with caution.

Hierarchy of Legislative History

E. The Relationship Between Legislative History and Plain Meaning1. Generally, legislative history is only examined if t

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