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LEGISLATION – OUTLINE
(C. Nelson, Spring 2005) (ESKRIDGE ET AL., CASES AND MATERIALS ON LEGISLATION (3d ed. 2001))
(Also: ESKRIDGE ET AL., LEGISLATION AND STATUTORY INTERPRETATION (2000))
INTRODUCTION .......................................................................................................................................................2
I. CASE STUDY: THE CIVIL RIGHTS ACT OF 1964 ............................................................................................2
Case study: Legislative process and passage of the CRA .........................................................................2
A.
Title VII of the Civil Rights Act.................................................................................................................2
B.
II. EXERCISE OF FEDERAL LEGISLATIVE POWER ...............................................................................................2
A. Constitutional procedure in exercise of the legislative power ..................................................................2
B. Bicameralism, presentment, and the legislative veto ................................................................................3
GOALS AND METHODS OF STATUTORY INTERPRETATION .....................................................................3
I. INTERPLAY BETWEEN STATUTORY PURPOSE AND STATUTORY TEXT ...........................................................3
A. The legal process era, 1940-1973 ..............................................................................................................3
B. Rules versus standards in the choice between legislative directives.........................................................4
C. Some famous old theories, treatises, and cases ........................................................................................4
D. Purposivism and statutory interpretation ..................................................................................................5
E. Imaginative reconstruction as a method of statutory interpretation ........................................................6
Frank H. Easterbrook, Statutes’ Domains (1983).............................................................................................................. 7
Lon Fuller, The Case of the Speluncean Explorers (1949)................................................................................................ 7
Are courts bound by legislators’ expectations? ........................................................................................8
F.
II. THE CONCEPT OF LEGISLATIVE MISTAKES ....................................................................................................9
A. Identifying legislative mistakes .................................................................................................................9
B. Cases identifying different perspectives on mistake identification......................................................... 10
C. Fixing identified legislative mistakes ...................................................................................................... 11
III. DISPUTES ABOUT THE EVIDENCE JUDGES CAN USE TO DETERMINE STATUTORY MEANING .................. 12
A. Justice Scalia’s arguments against the use of legislative history ........................................................... 12
B. Breyer, On the Uses of Legislative History in Interpreting Statutes (1992) .......................................... 13
C. Committee reports: Is the “best” even good enough? ............................................................................ 13
D. Statements by individual witnesses or members of Congress ................................................................. 14
E. Presidential signing statements (or veto statements) .............................................................................. 14
F. Post-enactment legislative history ........................................................................................................... 15
G. Legislative inaction .................................................................................................................................. 16
III. DYNAMIC STATUTORY INTERPRETATION ............................................................................................... 17
A. Case studies: Griggs and Weber .............................................................................................................. 17
B. Dynamic statutory interpretation ............................................................................................................ 18
CANONS, PRESUMPTIONS, AND CLEAR-STATEMENT RULES ................................................................. 19
I. SOME GENERAL RULES OF THUMB FOR INTERPRETATION .......................................................................... 19
Classification ........................................................................................................................................... 19
A.
Textual canons: maxims of word meanings and associations ............................................................... 19
B.
Textual canons: grammatical rules ........................................................................................................ 20
C.
Textual canon: whole act rule ................................................................................................................. 20
D.
II. SUBSTANTIVE CANONS.................................................................................................................................. 21
A. Introduction and substantive canons generally ...................................................................................... 21
B. The rule of lenity...................................................................................................................................... 21
C. Interpretation to avoid constitutional questions/problems ..................................................................... 22
D. Presumption against retroactivity ........................................................................................................... 22
E. Clear statement rules protecting states from federal legislation ............................................................ 23
F. Interpreting statutes in light of the common law .................................................................................... 24
G. Interpreting statutes in light of other statutes ......................................................................................... 24
III. DEBATE OVER THE CANONS..................................................................................................................... 26
A. Generally .................................................................................................................................................. 26
Legislation – Outline 1
B. Severability clauses (and general severability doctrine) ......................................................................... 27
C. A possible application: the Line Item Veto Case .................................................................................... 27
LAW IN THE INTERSTICES OF FEDERAL STATUTES ................................................................................. 28
I. THE NON-DELEGATION DOCTRINE ............................................................................................................... 28
A.General contours of non-delegation doctrine ......................................................................................... 28
B.Nondelegation doctrine as canon of statutory interpretation ................................................................. 28
II. AMBIGUOUS STATUTES AS DELEGATIONS OF AUTHORITY .......................................................................... 28
A. The Chevron doctrine .............................................................................................................................. 28
B. Implicit delegations of some “gap filling” authority to courts ............................................................... 30
III. INTERACTION BETWEEN STATUTORY PURPOSE, STATE LAW, AND GENERAL COMMON LAW ............... 31
A. The meaning of particular terms in federal statutes .............................................................................. 31
B. Incorporation of background doctrines into federal statutes ................................................................. 32
C. Implied federal causes of actions ............................................................................................................ 33
D. Federal law, state law, and preemption................................................................................................... 34
INTRODUCTION
I. Case Study: The Civil Rights Act of 1964
A. Case study: Legislative process and passage of the CRA
1. Disproportionate influence of some members esp. party leaders and committee chairs
2. Individual efforts to avoid accountability and position-taking
3. Rules of procedure of each chamber (e.g. filibuster in Senate, 5-minute rule in House)
4. Importance of particular personalities and persons to dynamics of statutory enactment
B. Title VII of the Civil Rights Act – forbidding race and sex discrim. in employment
1. Race was part of initial act, but opponents of CRA added sex hoping it would
discourage passage of the entire act b/c enough would be opposed to sex provisions
2. In light of history, should courts give lesser effect to sex discrimination in Title VII –
probably not b/c:
i. That provision was full exercise of legislative power, same as other provisions
ii. Slippery slope fears for future re: what legislation will deserve less deference
iii. There are compromises over almost all controversial parts of legislation (race)
3. What about scrivener’s errors – an extra “not” in the legislation – we should care
about semantic intention (per Ronald Dworkin), but no problem here b/c Congress
did intend to pass the sex discrimination provision of Title VII
II. Exercise of federal legislative power
A. Constitutional procedure in exercise of the legislative power
1. Art. I, sec. 1: All legislative power vested in Congress: House and the Senate
2. Art. I, sec. 2: Qualifications and constituting the House; three-fifths clause in cl. 3
3. Art. I, sec. 3: Qualifications and constituting the Senate; power to try impeachments
4. Art. I, sec. 5, cl. 2: Each house has control over its internal procedures, including
ability to expel a member by a 2/3 vote
Legislation – Outline 2
5. Art. I, sec. 7: procedure for bill to become a law – Bicameralism and Presentment
Clauses – bill becomes law only when both houses approve and presented to
president where he signs it or vetoes it and Congress re-passes over his veto
B. Bicameralism, presentment, and the legislative veto [HB 208-10]
1. INS v. Chadha (U.S. 1983) [2 CB 1141]: Chadha was ordered deported by INS.
Attorney General exercised power to suspend his deportation under Immigration and
Nationality Act. Under Act, single house of Congress could override AG’s
suspension of deportation (the “legislative veto”). Congress did so. Rule: Legislative
veto is unconstitutional b/c it fails to satisfy the Bicameralism and Presentment
Clauses, which are required for exercise of federal legislative power.
i. Bicameralism and presentment exist to require deliberation and protection from
improvidently passed law
ii. Other provisions of Constitution outlining when either house may act unilaterally
and w/o presidential approval work to limit when this power can be exercised
iii. Powell concurrence in judgment: Separation of power b/c Congress is assessing
statutory criteria and making a judicial assessment in whether to continue deport
iv. White dissent: Congress and prez have already passed on the power of Congress
to exercise the legislative veto – veto was delegation of authority to the House
2. Most accept that legislative power exercisable only as per Art. I, but many disagree
over whether legislative veto is exercise of legislative power – Court argues that it is
b/c legislature is acting (formalist) and b/c legislative veto alters the “legal rights,
duties, and relations of persons” (Chadha would remain but for congressional act)
3. Majority response to White: AG is diff than Congress b/c AG exercises executive
power which is not constrained by bicameralism and presentment
4. Cleaner formalistic approach that Court could’ve taken: if this is executive act, then
Congress is violating separation of powers; if it’s legislative act, then Congress
violating B&P Clauses – either way, congressional action here is unconstitutional
5. Action/infaction inference from Chadha: in typical Art. I situation, law doesn’t
change but for affirmative act of Congress, where as under legislative veto, the law
changes but for affirmative act of Congress
6. Informed policy and intent to take act not sufficient – must follow formal procedures
– informed deliberation is neither sufficient nor necessary (for not necessary, consider
Arrow’s paradox)
GOALS AND METHODS OF STATUTORY INTERPRETATION
I. Interplay between statutory purpose and statutory text
A. The legal process era, 1940-1973
1. Largely associated w/New Deal and post-ND era, but has roots as far back as Holy
Trinity, where goal as to construe statutes in light of their “spirit”
2. Most complete elaboration is Hart & Sacks, The Legal Process [CB 696]
Legislation – Outline 3
i. Two steps: determine what purpose ought to be attributed to statute and then
interpret words to enact this purpose, but to avoid meaning words can’t bear or
violation of some established policy of clear statement
a. Court has authority to correct scrivener’s errors to effect purpose
b. Goal is to create consistent pattern of application consistent w/statute purpose
ii. Focus is not on specific intent w/statute, but rather in vindicating the general
intent of Congress in passing the statute, i.e in enforcing the statute’s purpose
iii. Looks to statute’s intent at a higher level of generality – questions about which
there may be greater consensus in the legislative process, thus possibly
reconciling democratic ideals w/rule of law and practical efficacy
iv. Procedure is vitally important b/c establishes means by which legislation is
legitimated: public access, controls discretion, legal legitimacy via process
v. Problems: complexity of idea of statutory purpose, competing and possibly
inconsistent purposes of a single statute, even where purpose determinable it’s
often too broad to be applicable on a case-basis
3. Modern debates about identifying statutory purpose
i. Sometimes easy to identify purpose if enacted w/rich public history – i.e.
drugstore closing law in light of recent increased crimes after 10:00 p.m.
ii. But oftentimes unclear – consider statute prohibiting leases by parsons, vicars for
terms other than 21 years: possible multiple conflicting purposes – prevent vicars
from benefiting self through LT leases, not to encumber property for extra long
terms
4. Criticisms of the legal process school – it ignores the benefits of formalism
i. Plain meaning is more consistent with structural Constitution that vests political
power in the legislative and executive branch
ii. Applying plain meaning is more w/in judicial institutional competence as opposed
to policy-making
iii. Legal process demeans the role of law b/c law won’t be understandable to the
common person w/o understanding of purpose, collective intents, etc.
B. Rules versus standards in the choice between legislative directives
1. Rules entrench policy generalizations and directives to achieve a goal, even if other
courses of actions might further underlying purposes of the rule on a case basis
i. Benefits: low costs to apply; consistency across cases; limits discretionary
application; clear notice even if the rule is arbitrary
2. Standards might provide goals and then leave it to judges to implement on case basis
3. Statutory interpretation along the same dichotomy – purposiveness analysis as a
standards-type means of interpretation; textualism and plain meaning as well as
canons of construction as a rules-type means of interpretation
C. Some famous old theories, treatises, and cases
1. Early American history of stat interpretation is grab-bag variety of approaches:
central theme was legislative intent, but courts looked to text, canons, common law,
circumstances of enactment, etc.
i. Ex parte Bollman (U.S. 1807) [CB 672]: C.J. Marshall relies on statutory text,
purpose of the statute, and inferences from prior precedents to interpret statute
Legislation – Outline 4
2. General theoretical approaches in the early period
i. Mischief rule and Heydon’s Case (Ex. 1584) [CB 673]: Four step process in
statutory interpretation: common law b/f statute, what mischief or defect did the
common law fail to correct, what remedy legislature has made to cure this,
interpret statute in order to effect the legislative cure of this mischief
ii. “Golden” rule: Construe the statute as a coherent whole giving words their
ordinary meaning unless this produces an inconsistency or absurd outcome that
court believes legislature could not have intended/meant, at which point court can
put some other signification to words that words will bear
iii. Literal rule: If language is plain and unambiguous, legislature is taken to mean
what it has expressed – there is no room for absurdity doctrine b/c what seems
absurd to one man may not be to another – leave it to legis to fix if it’s absurd
3. Blackstone’s general rules of statutory interpretation [PM 1]
i. Declaratory laws fix and clarify as statutes the common law of land, while
remedial laws remedy a defect or superfluity in the common law
ii. List of proposed canons: mischief rule; strict construction of penal statutes; liberal
construction of statutes against fraud; whole act rule; statute trumps common law;
impossible acts required by legislature are void, but not unreasonable ones
D. Purposivism and statutory interpretation
1. General outline of purposivism
i. Relies on idea of finding general intent or purpose in enacting a statute
ii. Sets the originalist inquiry at a higher level of generality by asking for the
statute’s goal instead of what the legislators specifically intended
2. Critiques of statutory interpretation through purposivism
i. Statutory purpose can be quite complex and it’s unreasonable to think Congress
would have wanted to achieve that purpose at any price
ii. Even if agreement as to statutory purpose, purpose may be too broad or general or
malleable that it may not be determinate as to how to decide a certain case
3. Rector, Holy Trinity Church v. United States (U.S. 1892) [CB 675; PM 4]: Church
entered into contract to bring over English alien to serve as rector and pastor. US
claims contract violates Act of 2/26/1885, which prohibits importation of aliens for
labor purposes. Rule: “A thing may be within the letter of the statute and yet not
within the statute, because not within its spirit, nor within the intention of its
makers.”
i. Applies mischief rule: purpose of statute was to prevent importation of cheap,
unskilled labor so excluding skilled religious persons not w/in cure of mischief
a. Has no problems looking to both public history of Act as well as internal
legislative history to determine the particular mischief Act dealt with
b. Holy Trinity is one of first 19th century cases to use LH
c. Looks to committee reports to determine that act meant to deal with cheap
labor, not skilled Christian religious “labor” – interprets this as mischief
ii. Looks to LH history that shows that there was suggestion to change to “manual”
labor and “manual” services but that change not made b/c committee thought that
such construction would be given and didn’t want to keep legislation bottled up
Legislation – Outline 5
iii. Textualists (Scalia) oppose the approach of Holy Trinity Church as anti-ethical to
idea of searching for objective legislative intent (what it said) as opposed to trying
to determine subjective legislative intent (what it meant) – true distinction is what
kind of sources one can use to determine legislative intent (text only or more)
iv. Can try to argue that “labor” or “services” doesn’t include skilled labor but hard
b/c exceptions of section 5 include exception crafted for some skilled labor
(Scalia approves of this type of analysis b/c although it seeks to determine
intention from the four corners of the statute)
v. Absurdity doctrine: court also falls back upon absurdity doctrine in that we are a
religious country, Congress wouldn’t seriously try to outlaw importing rectors
E. Imaginative reconstruction as a method of statutory interpretation
1. Riggs v. Palmer (N.Y. 1899) [13 PM 5]: Palmer made will leaving the residuary of his
estate to his grandson. Grandson murders Palmer to prevent him from revoking the
will, which Palmer had some intent to do. NY statute provides strict and exclusive
rules to revoke will under which grandson argues Palmer will was not revoked. Rule:
Thing within the letter of statute is not within statute unless also within the
intent of the statute. Common law still not permit one to profit by his own fraud
or his own wrong-doing, and legislature acted in context of this background.
i. Dissent: Grandson’s already been criminally punished, will sets out strict rules for
revocation, which aren’t satisfied here so will shouldn’t be treated as revoked
ii. Literal interpretation of statute – could not deprive grandson of property in will
iii. Majority applies mischief rule and then engages in imaginative reconstruction –
determine what legis would have done if it were faced by problem confronted by
the judge
2. Max Radin, Statutory Interpretation [15 CB 686]
i. Critique of intentionalism: legislative intent is undiscoverable b/c unlikely several
hundred men will have same intent w/r/t any given statutory issue
ii. Even if they all had same intent, how do we determine this intent objectively
through their manifested acts
iii. Legislatures don’t impose intent, but rather pass statutes – statutes control
iv. Radin might be OK w/imaginative recreation of will b/c focus is just on testator
3. Roscoe Pound, Spurious Interpretation (1907) [CB 682]
i. Genuine interpretation attempts to discover statutory intent through language of
the statute, or if unclear or lead to spurious result, then resort to reason and spirit
of the rule (purposivism through imaginative reconstruction b/c put self in
position of enacting legislature and determine what they’d do)
ii. One form of genuine interpretation attempts to reach legislative intent directly,
latter tries to reach it through indirect methods – textual language and legislative
intent are not different for Pound for former is means of conveying latter
iii. Spurious interpretation attempts to rewrite, not just to discover – effectively a
legislative process; allows cases to be resolved consistently w/moral sense of
community but turns judges into legislators, subjects courts to political pressure
and puts the law into disrepute
iv. Not necessarily say spurious interpretation is bad, just call it what it really is
Legislation – Outline 6
v. Fishgold v. Sullivan Drydock and Repair Corp. (2d Cir. 1946) [CB 685]: Fishgold
returned from WWII and went back to his old job. He was laid off within a year,
while more senior non-veterans were not. Selective Service statute prohibited
discharge of servicemen w/o cause for one year. Rule: (Learned Hand) Layoff is
legal b/c discharge in statute meant permanent termination of employment,
not temporary layoff. Congress passed Act thinking men would be gone
short period, not a long time so not want to force employers to discharge
older workers w/families as opposed to generally unmarried men. Court’s
job is to reconstruct what Congress meant when it used words – and it’s
improbable Congress meant anything broader than as court interprets here.
4. Frank H. Easterbrook, Statutes’ Domains (1983) [15 PM 12]
i. Domain: set of issues the statute addresses or empowers courts to address
ii. Easterbrook’s idea of statutory construction: process court engages in when
statutes fails to provide for particular case and have to determine what legislature
would have though of on that point of issue
iii. Central point is that statutes aren’t as applicable as courts make them out to be –
greater focus needs to be on whether situation falls within statute’s domain
(determination of applicability must necessarily precede interpretation)
iv. Thesis: Unless statute plainly hands court power to create and reform common
law, domain of statute should be restricted to cases anticipated by its framers and
expressly resolved in the legislative process
v. Court is either empowered to make law (not interpreting) or it is not empowered
to do so in which case court’s role is extremely limited (not a gap-filler)
vi. Easterbrook and Fishgold: Easterbrook would approve of Hand b/c he thinks case
falls within statute’s domain, and if it’s in domain, then court can engage in IR
vii. Easterbrook’s concept of statutory domains tied to his understanding of legislative
process (system of compromises and hard fought legislative process w/interest
groups) and his general objections to IR arise from constraints of this process:
a. IR is not accurate b/c if situation not within statutory domain, can’t figure out
all legislator’s preferences or how they’d play out in legislative process
b. There are deliberate costs to legislating and these play role in what kind of
legislation emerges from legislature: structural check on legislative process
violated if courts engage in IR as if Congress had unlimited time
viii. Easterbrook supports statutory canons as time-saving effort and default rules
against which legislature operates – they’re reconcilable w/limited IR b/c they
serve a limiting function while full IR permits courts to do too much w/legislature
5. Lon Fuller, The Case of the Speluncean Explorers (1949) [17 CB 690]
i. Outline: Explorers get stuck in cave. They learned they would die if they didn’t
cannibalize one of their own b/c rescuers couldn’t get to them in time. They do
so. They are subsequently charged with murder, the statute for which not provide
a necessity or self-defense excuse. Lower court applies statute literally, but
recommends that the executive commute their sentences.
ii. Truepenny opinion: not very thoughtful, basically a plain meaning approach that
would say statute is unambiguous, can’t read our own exceptions into it
iii. Keen’s opinion: more thoughtful approach to plain meaning – plain meaning is
difficult to swallow here, but that’s the role of judiciary in light of clear cut
Legislation – Outline 7
principle of legislative supremacy; this is better in long run b/c if courts had never
recognized self-defense, legislatures would have written it into statute
iv. Foster opinion: main idea is that man may violate letter of law w/o violating law
b/c every positive law must be interpreted in light of its evident purpose
a. This is approach w/which Fuller is most in agreement – purposiveness
b. Argues that one purpose of criminal law is to deter and even if we refuse to
allow self-defense, for future people in explorers’ position, murder will not be
deterred b/c their decisions won’t be incentivized by the criminal code
c. Idea that correcting blatant legislative errors effectuates the legislative will
v. Tatting opinion: designed to point out some problems with purposivism – in
particular says Foster is right that that’s one purpose, but other purposes?
vi. Handy opinion: caricatured to point out what truly legal realist approach would be
– have to let them off b/c that preserves authority of the court
vii. Follow-up to the Speluncean Explorers (1999) [PM 27]
a. Easterbrook opinion: focuses on idea that statute’s text does not foreclose
justification defense given background default rule that judiciary can create
justification defenses unless expressly prohibited by legislature
b. Kozinski opinion: plain language is ambiguous so apply it; argues that justice
is too hard for courts and that these questions should be legislatively resolved
F. Are courts bound by legislators’ expectations?
1. Semantic intention and the Scalia/Dworkin debate [19 PM 28]
i. Scalia: goal of court in interpretation is to determine objective legislative intent
that reasonable person could read from statute placed alongside our body of law
a. Arguments advanced in support of this proposition: notice of the law; need to
restrain judges; practicality b/c in 99.99% of cases there is no legislative intent
to fall back upon b/c legislature never thought of this issue
ii. Dworkin: Scalia does believe in some kind of intent – “semantic intention”
a. Semantic intention: what legislators/other officials intended to say in enacting
the language that they use
b. Expectations as to consequences: what legislatures expected or hoped would
be the consequence of their saying what they said
iii. Both agree that central goal of statutory interpretation = semantic intent (though
Scalia would call it “import” – reasonable import of language, though admits
intent and import chase one another b/c import depends on context = intent)
2. The Female Juror Cases [CB 718-20]
i. Issue: most states draw juries from lists of eligible voters; after Amend. XIX, are
women eligible to serve on juries as a result of their enfranchisement?
ii. Commonwealth v. Maxwell (Pa. 1921) [CB 718]: Yes, statutes framed in general
terms have prospective effect and apply to new situations that come within its
scope and policy.
iii. People ex rel. Fyfe v. Barnett (Ill. 1925) [CB 719]: No, look to what words mean to
enacting legislatures, and here, voters meant only “males” to the enactors.
iv. Meaning of statute has not changed, but its applicable possibly has changed
v. Semantic intent vs. expectations as to consequences: we prefer semantic intent b/c
it provides means to privilege the statutory text and thus easier to get to semantic
Legislation – Outline 8
intent – here, “frozen” voters might have been expectation as to consequences, but
the semantic intent derived from language comports with “dynamic” voters
vi. Also very hard to determine expectations as to consequences: just as consistent to
say no women jurors as voting is sole prerequisite to jury service
vii. Expectation as to consequences might help us with conflicting semantic intentions
3. Boutilier v. INS (U.S. 1967) [21 PM 30]: INS ordered Boutilier deported on theory that
his homosexuality qualified under clause excluding aliens “afflicted w/psychopathic
personality.” Rule: Despite clinical medical meaning of “psychopathic
personality,” LH shows w/o a doubt that Congress intended and used phrase to
extend to gays. Central meaning is what Congress intended w/language.
i. Cancer analogy: “dangerous contagious disease” included cancer at one point, but
then medical science show cancer not contagious; objectified semantic intent
excludes cancer but expectation as to consequences includes cancer
4. In re Erickson (7th Cir. 1987) [22 PM 23]: Bankruptcy permits exclusion of some items
based on state law. Wisconsin statute allows exclusion of “hay loader” and “mower.”
Debtor seeks to exclude his baler and haybine, which do much more than those
original implements but also serves those functions. Rule: (Easterbrook) These
implements are included b/c the word of statute aren’t limited to just some
designated item, but rather to a class of things that share that feature. Function
of law is to allow debtor to keep implements akin to a mower.
i. “Mower” is an open textured term in the statute – a latent ambiguity that arises
only when circumstances in the world change the way in which you read the term
ii. “Mower” lacks an unambiguous meaning (could include anything that mows or
things that only mow)
iii. Easterbrook treats the latent ambiguity as an implicit invite for court to engage in
limited IR – looks to purpose of statute and its “fresh start” component (it’s within
domain of statute and Congress has delegated to court right to develop it)
II. The concept of legislative mistakes
A. Identifying legislative mistakes
1. Semantic mistakes: scrivener’s errors and idiosyncratic usage
i. Scrivener’s errors: Members enact bill w/misconception of what words the bill
contain, e.g. word “not” is in some key place, but that it’s actually been dropped
ii. Idiosyncratic usage: Members know what words are in statute but understand
those words in some idiosyncratic way that conventional users of English would
treat as mistaken
2. Policy-oriented mistakes: Non-semantic mistake where we think legislature would’ve
dealt with a certain thing if they’d thought about it
3. Theoretic problems in identifying legislative mistakes
i. Congress is institution – when is a mistake one attributable to the entire institution
as opposed to a particular member w/in the institution – just b/c some members
are misinformed doesn’t mean all of Congress made a mistake
ii. Even where there are clear mistakes (scrivener’s errors), we have problem of
courts being able to properly identify them w/o making too many false positives
(identifying mistake when there isn’t one) or false negatives
Legislation – Outline 9
iii. Unclear at what level of confidence courts should attain b/f correcting “mistakes”
iv. Over-correcting is bad too b/c then Congress will depend on courts to correct
rather than to pay attention to language it uses and what it means to say
B. Cases identifying different perspectives on mistake identification
1. Shine v. Shine (1st Cir. 1986) [23 CB 700]: Court granted wife separate maintenance
support for $250. This was not mentioned in the divorce decree, which made no
provision for alimony and support. Bankrupt husband argues that bankruptcy
exempts only support obligations within divorce decree. Rule: Courts have always
treated alimony and support as nondischargeable duties rather than
dischargeable debts. Amendment to Bankruptcy Code in 1978 not change this
(passed in a harried and hurried atmosphere) traditional non-dischargeability.
i. Literal language supports husband, but court bypasses language in favor of what
Congress meant: 1978 Commission report intended to clarify that property
settlements made a part of divorce decree were also non-dischargeable
ii. Uses state of prior law and LH to determine that there was a mistake – not treat it
as a scrivener’s error, but more as a policy-oriented mistake
iii. Note: 1984 amendment prospectively fixed this – unclear whether this shows that
Congress can fix the mistake or that court properly fixed the mistake
2. United States v. Locke (U.S. 1985) [27 CB 705]: Statute required filing of papers “prior
to December 31.” Locke, upon notice from local government office that he had to
file “by December 31,” filed on that date, but then papers were rejected. Rule: We
have to construe deadlines strictly, which although may be an arbitrary rule, all
deadlines are at heart arbitrary.
i. Stevens/Rehnquist dissent: Legislative mistake b/c statute had other obvious
drafting errors; implementing agency not use that language (but rather “on or
before 12/30”; language is not plain b/c implementing agency had once screwed it
up to (and said “on or before 12/31”)
ii. Could argue that “12/31” means end of calendar year so that “prior to 12/31”
means “prior to end of the calendar year” – is Congress idiosyncratic here
iii. Seems more like a case of idiosyncratic usage type of mistake
3. Public Citizen v. United States Dept. of Justice (U.S. 1989) [28 CB 720]: President
seeks ABA committee’s advice on judicial nominations. Disclosure statute requires
that any committee that the president “utilizes” for advisory purposes be disclosed
and open. Rule: Invokes Holy Trinity for proposition that “utilizes” only serves to
clarify that the disclosure statute applies to quasi-governmental entities, not the
ABA. (Utilize here as an idiosyncratic usage.)
i. Kennedy concurrence in judgment: Holy Trinity is good, but only if courts use it
limitedly so that it doesn’t transform legal will into judgment – absurdity doctrine
not triggered in this case, even if court thinks committee shouldn’t be w/in ambit
of statute
ii. Kennedy admonishes majority – plain language when applied and is not absurd
(though produces uncomfortable results) not grounds for invoking Holy Trinity
4. TVA v. Hill (U.S. 1978) [28 CB 730]: Section 7 of Endangered Species Act requires
federal agencies to ensure their actions don’t jeopardize continued existence of an
identified endangered species. Snail darter was an endangered species that would be
Legislation – Outline 10
injured by TVA’s continued building of $100 million dam. Rule: Plain language of
the statute is clear and applies to even to programs that have been funded –
supported by later amendment of section 7 that includes “practicability”
component. TVA’s argument that continued funding was implicit authorization
to ignore section 7 – but repeals by implication are disfavored.
i. Powell dissent: Invokes Holy Trinity, says § 7 only applies for agency actions and
programs coming into existence after date of that statute – provides means to
reconcile both Endangered Species Act and other congressional policies like dam
ii. Approach is much more indicative of current SCT than is Public Citizen
5. Griffin v. Oceanic Contractors, Inc. (U.S. 1982) [30 CB 733]: Admiralty employer
wrongly withheld money from discharged employee. Jones Act provides damages
from time of wrongful withholding. TC granted it to date of judgment, but appellate
court grants only until date of reemployment. Rule: Court’s task is to effect will of
Congress, and where language is reasonably plain, it must be treated as
conclusive – language plainly not meant to cap damages upon reemployment.
i. Old statute let court have discretion but limited court to 10 day cap; statute
amended in 1898 to remove this limitation but also to remove court discretion –
Rehnquist says no indication Congress was doing anything other than what the
text indicated, i.e. strengthening deterrent function of Jones Act
ii. Stevens dissent: 1898 amendment can be read as dramatic (as majority reads it) or
limited (as dissent would read it to only eliminate 10 day cap but still vest court
with discretion)
iii. Majority won’t use absurd results b/c that doctrine is not applicable where
Congress intended court to apply language as it is drafted
6. United States v. Marshall (7th Cir. 1990) [32 CB 773]: Fed statute sets 5 year
mandatory minimum for selling mixture containing certain amount of LSD. LSD b/c
so light almost always put on a carrier. Question is whether carrier weight included
in determining sentencing minimum. Rule: (Easerbrook) Carrier weight included on
3 theories: (1) statute specifically mentions weight of “mixture”; (2) PCP
provision distinguished between pure and mixed weights for sentencing while
LSD provisions only capture latter; and (3) statute’s treatment of heroin also
shows similar treatment as LSD.
i. Easterbrook acknowledges inconsistency where you can sell lots of pure LSD and
get short sentence or small amount of LSD on heavy carrier and get huge sentence
ii. Posner dissent: Legislative mistake b/c while weight works well for most drugs,
not so for LSD which can’t really be taken on a dosage basis (Marshall gets 20-
year term for selling 12,000 dosages of LSD, while to you’d have to sell 1 million
doses of heroin to get as long a term b/c heroin can be taken in pure form)
C. Fixing identified legislative mistakes
1. Green v. Bock Laundry Machine Co. (U.S. 1989) [33 CB 743]: Green, a convicted
felon, brought personal injury suit. ∆ used those convictions to impeach his
credibility under FRE 609(a), which by its term requires judge to allow impeachment
of any witness w/prior felonies so long as probativeness if greater than prejudice to ∆.
Impeaching Π would thus always be allowed. Rule: R. 609(a) can’t mean what it
says b/c would place greater burden on civil Π than civil ∆. Language here is
Legislation – Outline 11
clearly mistaken b/c LH shows only criminal ∆ supposed to get this weighing of
evidence.
i. Corrects mistake by limiting 609(a) to criminal context, so that in all other
contexts, court need not do weighing but always let in impeaching convictions
ii. Scalia concurring judgment: Literal interpretation produces absurd and possibly
unconstitutional result. Rejects court’s analysis of evolution of 609(a) that only
few congressmen would understand. Says can be resolved on basis of text and
what meaning the text can bear.
iii. Blackmun dissent: Would apply 609(a) to all parties, not just criminal ∆ b/c
purpose of statute is to court discretion to exclude evidence where there is chance
that any party will be denied justice due to prior convictions of witness that may
have no direct bearing on witness’ truthfulness
iv. Scalia and majority would re-write “∆” to mean “criminal ∆” in 609(a), while
Blackmun would re-write “∆” to mean “all ∆s”
v. Blackmun argues no need to adhere to Scalia’s doing least violence to the text
argument b/c once text is found to be mistaken, goal is to reconcile w/purpose
2. Once you identify mistake in text or an absurd result – unclear how much you should
still be bound by the text
i. If you think text is now irrelevant, you could take Blackmun’s perspective
ii. If you think text is still controlling, you would take Scalia’s perspective
III. Disputes about the evidence judges can use to determine statutory meaning
A. Justice Scalia’s arguments against the use of legislative history
1. LH is inconsistent w/goals of statutory interpretation: LH tries to determine what
legislature intended (subjective intent), while goal of interpretation is to determine the
objective meaning of statutory language
i. Mass of intent not enough to be the law
ii. Probably not a good argument b/c we can still look to LH for guidance as to not
for intent purposes but for purposes of trying to make an interpretation
2. Unconstitutional delegation argument: Congress can’t delegate the job of filling in the
gaps of the law to a committee or other subgroup of Congress
i. Main objection: violates bicameralism and presentment as per Chadha
ii. Giving force to LH has effect of transforming LH into law – if Congress can’t
empower one house to act, it certainly can’t empower a unitary committee to act
iii. Problem with argument is one of timing – might be case if Congress actually
delegate to committee power to fill in gaps or if one house votes and then other’s
committee creates subsequent LH, but most LH arises before votes are taken so
that Congress is taking vote on bill cognizant of the LH (idea that the vote ratifies
the gloss put on the statute by the committee)
3. Wrongly permits courts to stray from text of statute and rely on LH: allows courts to
enforce stuff found in LH that is contrary to or inconsistent with the statutory text
i. This is a matter of empirical evidence
ii. Response: textualism might still leave us with competing interpretations, so why
not look to LH for guidance re: what to think about, purpose of statute, etc.
Legislation – Outline 12
4. Reliability of LH (primary argument): courts don’t know enough re: LH to make use
of it so just as often will be mislead as they’ll be helped by the LH
i. Perverse incentives for Congress b/c if it knows courts will look to LH it’ll pack
the LH and losing parties might pack it intentionally to mislead or misdirect
ii. Imposes extra costs b/c legis will have to pay attention to LH in addition to text
iii. Scalia not disagree w/Breyer that sometimes LH is correct – his problem is that
it’s just as likely to be incorrect as it is to be correct (Breyer would advocate use
of LH w/more standard-like approach where court does gate-keeping)
iv. Problem of empirical truth – how do we know if more or less reliable?
5. Too expensive to use LH: using LH increases costs b/c marginal benefits gained from
LH greatly exceed its costs in creating it and courts need to look at it
i. Response: depends on whether you think LH can help us get to true meaning
ii. Not just litigation costs, but real world too b/c have to look at LH to under statute
B. Breyer, On the Uses of Legislative History in Interpreting Statutes (1992) [PM 845]
1. Agrees that courts sometimes go to far in use of LH, but says if we can restrain
abuses of LH, right thing is not to abandon use of LH altogether
2. Uncontroversial to use LH to establish absurdity of literal reading (Bock Laundry)
3. Even if not absurd, LH can shed light on when there are drafting errors in statutes
4. LH may shed light on specialized words that a statute uses
5. LH may shed light on context of statutory phrases to determine whether certain
circumstances fall within the scope of these statutory phrases
6. LH may shed light on picking between reasonable interpretations of a politically
controversial statute
7. Can overcome problem of institutional “intent” by understanding intent to mean
purpose and not motive – groups often have institutional purposes (despite conflicting
internal motives)
C. Committee reports: Is the “best” even good enough?
1. Most agree that reports are the best source of LH b/c legislation is largely written in
committees and statements of this subgroup will be the best-informed re: what the
proposed legislation is doing
2. Objections to the use of committee reports
i. Many statutes produce no reports
ii. Reports are often as ambiguous as the statute and may even be misleading
iii. Bias of reports especially given role of lobbying and maneuver to generate them
3. Blanchard v. Bergeron (U.S. 1989) [37 CB 949]: Π awarded $10K in § 1983 action.
TC awarded attorneys’ fees under § 1988 of $7.5K. Appellate court said fee shifting
limited to Π’s contingency fee agreement w/his lawyer of 40% -- so $4K. Rule: CA5
relies on Johnson case that says awards limited by private arrangements. But §
1988’s LH shows that Congress looked to other cases where this is but one
element of a multi-element analysis so that private arrangements are not
dispositive.
i. Scalia concurring in part: Majority looks to lower court cases as guiding b/c LH
indicates that Congress looked to those cases – unreality that use of LH has
become: Court treats as dispositive 3 district court cases that single House
Legislation – Outline 13
committee looked at; argues that few if any congressmen looked to the report, that
those that did probably didn’t read the cases, and that nobody made judgment that
the three district court cases would trump Johnson
i. Does § 1988 apply only to prevailing Πs? LH indicates allowing fees to
prevailing ∆ might create disincentives for civil rights actions, but intended to get
fees if Π acted vexaciously. This seems to be deal w/expectations as to
consequences as opposed to semantic intention.
4. In re Sinclair (7th Cir. 1989) [38 CB 957]: Sinclairs asked bankruptcy court to convert
their Chapter 11 to new Chapter 12. Statute expressly prohibits such conversions in
pending cases, but LH committee report says courts expected to exercise sound
discretion in motions to convert and to do so only when equitable. Rule: (Easterbrook)
In a conflict between statutory text and LH, statutory text must prevail.
However, even in face of plain meaning, courts may look to LH not to see what
was in legislators’ heads, but to understand context and the rules of language
they used. LH may help court discover, but not change original textual
meaning.
5. Conference committee reports are more persuasive than reports of committee of a
single chamber b/c come later in time, represents views from both chambers
D. Statements by individual witnesses or members of Congress
1. Hearings and floor debates
i. Committee hearings less respected b/c they are typically very adversarial w/o
elementary safeguards for striking balance that the judiciary ensures
ii. Floor debates are not very reliable, esp. b/c they can be amended or supplemented
in the Congressional record after the time of the debate
2. Statements by sponsors or drafters
i. Court tends to give more weight to supporters b/c opponents have incentives to
exaggerate problems w/bill, and even if supporters are biased, their views are
more reflective of compromises and interpretation of final language
ii. Sponsors of bills are preferred to other supporters b/c sponsor is most
knowledgeable b/c he leads bill through Congress, others in legis defer to him
(though Stevens says sponsor knows too much, hard to separate his individual
intent from what successfully was conveyed in the bill)
iii. Kosak v. United States (U.S. 1984) [CB 998]: Court looks to report by non-
congressman drafter on meaning of statute in order to confirm its interpretation.
a. Stevens dissent: Espouses textual reading of statute; denies use of non-
member statement on grounds that no evidence any member of Congress
knew it existed much less referred to it
b. Could be significant that drafter’s report not public as opposed to rest of
internal LH which is typically publicly available
c. Note: court not look to statement as most probative or only meaning of statute
E. Presidential signing statements (or veto statements)
Legislation – Outline 14
1. If contrary to text of bill, tend not to give weight b/c since prez is at end of process,
giving it credence would allow him to alter meaning of statute
2. Some say ambiguities empower prez to put spin on bills – like Chevron deference
3. Typically, prez don’t try to put gloss on legislation b/c can’t help to look to it
4. Academics have not taken to process that prez signing statements have much weight,
and courts have been hesitant to give great deference to prez signing statements
5. Courts do rely on prez veto statements if Congress overrides the veto as a statement
that Congress rejected the views espoused in the veto statement
F. Post-enactment legislative history
1. Central issue is what weight do we give to comments of later Congress that attempt to
put a particular gloss on an already enacted statute – any deference to this?
2. Leo Sheep Co. v. United States (U.S. 1979) [CB 939]: Arises from checkerboard grant
of land in West. Successors to railroad plots complain that they can’t reach reservoir
b/c of checkerboard-scheme touching up to private lands. Rule: Act granting lands
did not specifically reserve these rights of way to the government, and court
refuses to grant rights of way not consistent with the land grants made more
than 100 years ago.
i. Court engages in imaginative reconstruction and says although Congress not
thought of it, it might not have reserved rights of way b/c of considerations of
negotiation, reciprocity, and the power of eminent domain if necessary
3. Montana Wilderness Ass’n v. U.S. Forest Serv. (9th Cir. 1981) [39 CB 1003]: Ass’n
sought to block railroad from building over national forest in Montana. ∆ argues that
1980 act also granted railroad access. However, Ass’n contends scope of that
provision like the rest of the Act applies only to Alaska. One senator made remarks 8
days after Act’s passage that it has nationwide effect. Rule: Looking to context of
provision w/in Act applying only to Alaska, provision has no nationwide effect.
Senator’s comments to the contrary were made after enactment and were just
the views of one senator.
i. Court also finds unpersuasive that such a major change would occur to give fed
govt national rights of way w/o some more debate in the LH
ii. Senator’s post-enactment comments were first echoed in a pre-enactment private
letter sent to all congressmen – but probably shouldn’t put much weight in this b/c
of its private nature and thus not part of internal LH (also who read it?)
4. Montana Wilderness Ass’n v. U.S. Forest Serv. (9th Cir. 1981) (en banc) [CB 1013]:
Colorado Wilderness Act conference committee three weeks after the Alaska Lands
Act was passed determined that it was unnecessary to give similar legislation in
Colorado national scope b/c such had already been done in the Alaska Act. Rule:
Overrules panel decision; Although subsequent conference report is not as
controlling as subsequent legislation, the remarks of the subsequent report is
still entitled to great weight particularly where it’s clear the conference carefully
considered issue.
i. SCT has generally been hesitant to rely on subsequent LH, although Court has
issued conflicting statements of the weight it’ll give to subsequent LH
Legislation – Outline 15
ii. SCT will more readily give weight where subsequent Congress relies on
interpretation it gives to earlier legislation (i.e. what happens here in the Colorado
Act): Gozlon-Peretz v. United States (U.S. 1991) [CB 1019]
iii. Important that this is same Congress and subsequent LH came close in time to
first act – may shed light on what the Alaska Act legislature thought it did
iv. Give post-enactment conference report more deference than single senator’s
statement b/c former is more indicative of legislative intent of whole Congress
5. Textualists even more averse to subsequent LH b/c even more potential for
unreliability and opportunities for legislature to cook up language for specific purpose
G. Legislative inaction
1. “Dog didn’t bark canon”: When no one in legislature says something re: a change in
major policy, then presumption is that there is no big change
2. Three major kinds of arguments than can be read from congressional inaction:
i. Acquiescence rule: If Congress aware of an agency or court interpretation of a
statute and does not amend the statute, Congress is presumed to have acquiesced
in the interpretation’s correctness (also can support implicit congressional
ratification of a uniform line of federal appellate interpretations or longstanding
agency interpretation)
ii. Reenactment rule: If Congress reenacts statute w/o making material changes to its
wording, presumption is that Congress adopts and incorporates authoritative
agency and court interpretations of the statute
iii. Rejected (or neglected) proposal rule: If conference committee or one chamber
rejects specific statutory language, Court reluctant to interpret statute along lines
of the rejected language
3. Why legislative inaction may not signal endorsement of judicial interpretation
i. Unclear how much time has to pass before legislature has acquiesced
ii. Even when Congress decides to act in light of an judicial interpretation, Congress
often responds to policy consequences rather than interpretive issues
iii. Problematic b/c how can we equate legislative inaction to affirmative legis action
iv. Chadha issue: inaction not exercise of legis power under bicameralism/present.
and thus has no value as an exercise of legislative power
3. Flood v. Kuhn (U.S. 1972) [42 CB 601]: In Fed. Baseball (1922), Court says baseball
exempt from Clayton/Sherman Acts b/c they’re purely local affairs. In 1953, Court
affirms on stare decisis grounds and on grounds that Congress had ample time to
reconsider that case but had not taken action. In 1955, Court applied antitrust laws to
most other professional sports, and indicated it would overturn Fed. Baseball if it
were reconsidered, but said so long as there’s continued legislative acquiescence,
Court would stand by that ruling, though would limit it only to pro baseball. Rule:
Congress’ positive inaction has effectively acquiesced to Fed. Baseball and
allowed it to stand for so long and beyond mere inference and implication had
indicated a desire not to disapprove of them legislatively.
i. Blackmun distinguishes between silence and positive inaction b/c in latter case,
Congress has tried to do something, but has not managed to overcome precedent
Legislation – Outline 16
ii. Note: Court extends the inaction thesis only to the result of Fed. Baseball rather
than the reasoning of that case b/c then would spillover to other pro sports – result
that is inconsistent w/statute b/c why is baseball different than other sports?
iii. Unclear why scope of acquiescence is understood in this way
4. Bob Jones University v. United States (U.S. 1983) [43 CB 1022]: In 1970, IRS granted
501(c)(3) status to private schools w/o regards to their racial policies. On Court
pressure, IRS promulgated new regulations limiting 501(c)(3) status to certain
common law “charitable” organizations, including definition that organization must
serve a public purpose and not be contrary to established public policy. Congress has
not reversed this regulation in dozen years. Rule: Although Congress can correct
agency and judicial interpretations, its inaction in doing so, especially here
dealing w/racial segregation in education (a topic of much legislative discussion)
is ratification of the IRS’ ruling.
i. More than just mere legislative acquiescence b/c within month of new regulations,
Congress held hearings and has introduced 13 bills within last dozen years but
none have emerged from committee (though other amends to § 501 been made)
ii. Acquiescence further supported by fact that in § 501(i), Congress extended the
non-discrimination policy to tax exempt status for social clubs
iii. Rehnquist dissent: Congress has failed to take action on this issue and Court can’t
act on its behalf; no textual support for IRS ruling; Congress set forth clear and
exacting list of requirements for 501(c)(3) status; 501(i) shows Congress knows
how to add non-discrim. if it wants to; hesitant to attribute value to inaction
iv. Inconsistency: why isn’t Congress’ inaction to the original IRS interpretation of §
501(c)(3) given weight as legislative inaction
III. Dynamic statutory interpretation
A. Case studies: Griggs and Weber
1. Griggs v. Duke Power Co. (4th Cir. 1970) [50 CB 42]: Duke had policy that to be
promoted out of labor, one had to have HS diploma or equivalency test. Employees
in other departments could be promoted w/o such. Prior to 1955, blacks were only
assigned to labor department. Law is facially neutral, but has disparate impact.
Challenge brought under Title VII. Rule: Title VII only forbids intentional
discrimination, not facially neutral policies that result in disparate impact on
minorities.
i. Partial dissent: Whites do much better than blacks on the tests; reading statute to
require discriminatory intent provides discriminatory employers way to exercise
their discrimination by enacting facially neutral statutes
ii. Tradeoffs between enactment of statute and requirement of discriminatory intent
and the burdensome administrative apparatus of Title VII were all part of the
compromise to get Title VII enacted – wrinkle is that after enactment, activists
wanted to achieve equality as a fact and a result as well
2. EEOC legal staff issued regulations, despite the statute’s coverage only of intent
claims, to bar employer practices that have a demonstrable racial effect
3. Griggs v. Duke Power Co. (U.S. 1971) [CB 82]: Reversed the 4th Cir. Facially
neutral employment practice that was not discriminatory in purpose is
Legislation – Outline 17
nonetheless unlawful if it has the effect of excluding a group on the basis of race
and does so w/o a strict showing of business necessity and relation to job
performance.
i. Clearly inconsistent w/textual requirements and compromises achieved in statute,
but majority argues that its holding is consistent with purpose behind statute
(despite fact that LH shows disparate impact probably not w/in legis intent)
ii. Also engages in IR to determine what 1964 Congress would have done had it
known about the lingering effects of discrimination w/o discriminatory intent
iii. One way to explain: translation of the statute moving it away from its textual
mandates on ground that new approaches needed to fulfill statute objectives
iv. Criticism of dynamic statutory interpretation: places great deal of discretionary
power in the hands of unelected judges, but does require judges to be faithful and
careful agents of legislators and modifying only when necessary to avoid
undermining legislative purpose and intent
4. United Steelworkers of Am. v. Weber (U.S. 1979) [51 CB 86]: Union & Kaiser created
training program to eliminate racial imbalances. Selections based on seniority but
half of job slots were reserved for AA workers until % of black skilled craftsmen = %
of blacks in the workforce (regardless of seniority). Issue is whether Title VII
prohibits discrimination against whites. Rule: Title VII not encompass
discrimination against whites, though it’s within the letter of the statute b/c not
within the spirit of the statute. Focuses on meaning of invidious discrimination:
closing opportunities to certain members of groups historically subject to
discrimination; and therefore finds statute inapplicable to affirmative action.
i. Looks to LH/purpose: purpose of CRA ’64 was to help groups who had
historically been discriminated against – not include whites; and also to open
employment opportunities for blacks
ii. Dissent: Plain language of Title VII prohibits all racial discrimination
iii. Problems arising from the majority’s interpretation of Title VII:
a. Race-blind hiring practices might have disparate impact on blacks – could run
afoul of the rule in Griggs
b. Race-based AA to dispel disparate impact may itself violate Title VII
c. Might exacerbate race-based prejudice or encourage stereotyping: is this
consistent with the statute’s purpose?
B. Dynamic statutory interpretation
1. Idea is that meaning of statute can (and should) change over time
i. This is idea that the same language can have different meaning over time, that
they are not tied in meaning to their enacting legislature and evolves over time
ii. Not referring to idea that same statute can have diff meaning in diff circumstances
iii. Proponents argue that it is normative – that although statute might have been
understood to mean one thing, when understanding of statute no longer consistent
with congressional goals, then understanding can be changed to conform to the
ultimate arbiter – the purpose of Congress in enacting the statute
2. Title VII situation – unanticipated consequences might be reason to engage in
dynamic statutory interpretation and translate statute to new approaches in order to
fulfill the statutory purpose
Legislation – Outline 18
3. United States v. Marshall – Congress picks weights for drug offenses based on street
weights – but as purity changes, so do those weights – perhaps Court can intervene to
update statute to enact the goals of Congress
CANONS, PRESUMPTIONS, AND CLEAR-STATEMENT RULES
I. Some general rules of thumb for interpretation
A. Classification
1. Textual canons: Set forth inferences that are usually drawn from drafter’s choice of
words, their grammatical placement in sentences, and relationship to rest of statute
2. Substantive canons: Presumptions about statutory meaning based on substantive
policies or principles drawn from common law, other statutes, and Constitution
3. Reference canons: Extrinsic aids telling us what other materials might be consulted to
figure out what a statute means
4. Descriptive canons vs. normative canons: goes to underlying purpose of canon
i. Descriptive canons go to trying to figure out what underlying legislature intended
(tool for discerning enacting legislature intended)
ii. Normative canons try to push law in a particular attention w/o attention to intent
iii. Descriptive canons trump normative canons
5. Only use substantive canons when statute is in equipoise – i.e. after application of all
rules of construction and descriptive canons and there’s still a remaining ambiguity
B. Textual canons: maxims of word meanings and associations
1. Ordinary meaning of words: assumption that legis use words in their ordinary sense,
i.e. meaning words would convey to ordinary/reasonable reader at time of statute
i. Distinguish from strict construction/literality these concepts imply a narrow
meaning to words while ordinary meaning implies their everyday use
ii. Often begins with prototypical meaning of word – core idea associated w/word
iii. For old statutes, courts often look to dictionaries from that time period
2. Technical meaning of words: exception to above maxim – when statute deals with
technical or specialized subject, courts often adopt technical/specialized meaning of
words used in statute unless absurd result
i. Terms of art: interpret words given their specialized meaning in particular fields
or other fields of law (legal terms of art)
3. Words w/settled meanings: when legis uses terms that have accumulated settled
meaning under common law, courts infer (unless statute establishes otherwise) that
legislature meant to incorporate established meaning of those terms into statute
4. Noscitur a sociis: words known by the company that they keep – ambiguous words
draw meaning from the words associated with it
5. Ejusdem generis: where general follows specific enumeration, the general is limited
to those similar in nature to those that are enumerated (form of noscitur)
i. Not apply when enumerated not so similar as to belong to same identifiable class
Legislation – Outline 19
6. Expressio unius est exclusio alterius: notion of negative implication – enumeration of
certain things in statute suggest legislature had no intent of including things not listed
or embraced by the enumeration
i. Context must determine its applicability – you can’t apply expressio unius unless
you know the baseline with which you’re working and you can’t use it to get
below baseline (“Don’t hit or punch your sister” is not authorization to pinch)
C. Textual canons: grammatical rules
1. Punctuation rules: legislatures use punctuation and courts will respect this except
where punctuation read literally might lead to absurd results
2. Last antecedent rule: referential and qualifying words or phrases refer only to the last
antecedent unless contrary to apparent legislative intent derived from sense of entire
enactment
i. Likewise, proviso applies only to the provision, clause, or word last preceding it
ii. Last antecedent rule can be trumped by the punctuation rule
3. Conjunctive versus disjunctive connectors (and vs. or) rule:
i. Terms connected by disjunctive “or” are often read to have separate meanings
ii. Complicated b/c in ordinary language, “and” and “or” are usually conflated
4. Mandatory versus discretionary language (may vs. shall) rule:
i. Use of mandatory language usually means lack of discretion to take account of
equitable or policy factors
ii. However, ordinary usage does sometime consider “may” and “shall” conflated
5. Singular and plural numbers, males and female pronouns: Generally treated as same
6. Golden rule: words given their ordinary meaning and ordinary grammatical
construction unless leads to absurdity, in which case can be varied or modified so as
to avoid such inconvenience
D. Textual canon: whole act rule
1. Statutory interpretation as a holistic endeavor
2. Provision read as ambiguous in isolation often clarified by remainder of statutory
scheme – b/c of same terminology used elsewhere or b/c one interpretation gels
w/remainder of statute
3. Underlying assumption is coherence –legislatures drafted statute as coherent whole
4. Titles: does not control plain meaning, but can be used to aid interpreting ambiguity
(Holy Trinity Church looks to title as means of helping to resolve ambiguity)
5. Preamble and purpose clauses: clauses given as much weight as rest of statute
6. Provisos: restrict effect of statutory provisions or create exceptions to general rules
7. Rule to avoid surplusage: presumption that every word and phrase adds something to
the statutory command so that no provision should be construed to be redundant
i. Choose interpretation that doesn’t create superfluity in the statute
8. Presumption of consistent usage: presumption that same expression is intended to
have same meaning throughout statute
i. Further presumption that change of wording denotes a change in meaning
ii. Variation in terminology given less effect when statutes adopted at different times
iii. Gustafson v, Alloyd Co. (U.S. 1995) [55 PM 90]: Sales contract for sale of Alloyd
Co. contained fraudulent statements. Issue was whether contract was a prospectus
Legislation – Outline 20
under § 12(2) of the Securities Act of 1933 to trigger liability. Rule: § 10 says
prospectus to mean those documents that must contain certain information
(which does not include the sales contract), so that b/c of presumption of
consistent usage, the sales contract is not a prospectus under § 12.
a. Applies noscitur to understand Act’s definition of “communication” to be
limited by “notice, circular, advertisement, and letter” and that to define
communication broadly would render those terms superfluous
b. Thomas dissent: § 2(10) defines prospectus and that definition must control,
despite ordinary or technical usage of word “prospectus”; presumption of
consistent usage is overcome when Congress indicates intent to do so
9. Rule against interpretation in derogation of other provisions: to extent possible, one
provision should not be interpreted in such way as to derogate from other provisions
II. Substantive canons
A. Introduction and substantive canons generally
1. Canons typically turn on idea of whether to interpret strictly or liberally
2. Canons can also be formulated to cut across types of statutes and statutory schemes
3. Canons as clear statement rules: presumptions overcome only by clear language in the
text of the statute
4. Substantive canons can be descriptive if Congress has relied on values underlying
canon and they are widespread in our society, e.g. non-extraterritoriality
5. Judges taking diff positions on what’s needed to overcome a substantive canon –
probably turns on type of judge (Scalia will probably treat all substantive canons as
clear statement rules, while others may resort to LH)
B. The rule of lenity
1. Laws designed to punish must be construed strictly, i.e. if punitive statute does not
clearly outlaw private conduct, then private actor can’t be penalized
i. Applies wholly to penal statutes, has been applied limitedly to civil statutes
ii. Scalia dissent in Babbitt also argues that if there are enough other penalties like
damages and attorneys’, rule of lenity can push over and say no need for punitives
2. Justifications for the rule of lenity
i. Descriptive – fair notice b/c state can’t impose punishment unless citizenry knows
criminal nature of conduct plus consequences, applies esp. to malum prohibitum
ii. Mens rea – presumption that ∆ must know of criminality to form criminal intent
iii. Normative – separation of powers: legislature is only body that creates crimes so
that judges shouldn’t interpret crimes beyond what legislature’s clearly created
iv. By construing narrowly, more likely to get Congress to respond to construction
3. Muscarello v. United States (U.S. 1998) [58 CB 854]: Statute imposes five year
mandatory additional sentence for “carr[ying]” a firearm during crime of violence or
drug trafficking, as opposed to having gun taken into consideration by USSG. ∆ sold
marijuana from his car and kept a gun in his trunk. Rule: Dictionary definitions of
“carry” encompass conduct of “carrying” gun in car, and there is no indication
Congress intended carry to be understood narrowly.
Legislation – Outline 21
i. Uses presumption of consistent usage to explain why in other places US Code
uses “transport” w/r/t firearms – “transport” implies bulk shipment of goods
ii. Rejects rule of lenity b/c mere ambiguity is not sufficient to trigger rule, b/c
comes in only if court can make no more than a guess as to what Congress intends
iii. Ginsburg dissent: Vigorously contests court’s interpretation of carry; given sharp
division, should invoke rule of lenity to resolve the statutory ambiguity
4. McNally v. United States (U.S. 1987) [57 CB 865]: State officials had kickback scheme
where they got commissions for business sent to an insurance company. Prosecuted
under federal mail fraud statute, but no showing that state lost any money. Rule:
Given 2 rational readings of statute (unclear whether statute requires fraud on
the public or fraud generally), invokes rule of lenity in favor of narrow interp.
i. Stevens dissent: invokes plain meaning to show that one provision only talks re:
using mails to conduct scheme or artifice to defraud – interpret it facially
C. Interpretation to avoid constitutional questions/problems
1. Savings canon: ambiguities in a statute should not ordinarily be resolved in such a
way as to render the statute unconstitutional (Congress knows constitutional limits
and not try to breach them)
2. Avoidance canon: ambiguities in a statute shouldn’t ordinarily be resolved to even
raise a constitutional question
i. Less persuasive than savings canon b/c clearly Congress not intend to violate
Constitution (savings canon), but it might be trying to push law to limits of Const.
ii. Avoidance doctrine can prevent Congress from going as far as it intends
3. NLRB v. Catholic Bishop of Chicago (U.S. 1979) [60 CB 874]: Issue of whether
NLRA confers NLRB jurisdiction over parochial schools as “employers,” which
could raise a First Amendment problem. Language clearly can encompass lay
employees of church-operated schools. Rule: Congress gave no consideration to
church schools in LH. Given First Amendment guarantees may be implicated
by one interpretation, Court chooses not to extend NLRB jurisdiction.
i. Brennan dissent: act’s language, LH, and Court’s precedents show that church-
operated schools fell under NLRA; only thing saving majority is avoidance
canon; can’t invoke that canon b/c majority’s interpretation is not fairly possible
ii. At time of enactment, major constitutional question was extent of NLRA under
the Commerce Clause – should avoidance doctrine deal w/problems at time of
enactment or problems at time of interpretation
4. Unclear how canon applies when constitutional law changes after statute’s enactment
D. Presumption against retroactivity
1. Traditional rule is that statutes apply prospectively only
i. Jawish v. Morlet (D.C. 1952) [CB 635]: DC minimum wage law struck down in
Adkins. Adkins overruled by West Coast Hotel. Woman sues under minimum
wage law. Rule: Law once declared unconstitutional and later held to be
constitutional does not require reenactment in order to restore its operative
force.
Legislation – Outline 22
2. Given New Deal and public/private interest balance, retroactive statutes are more
permissible now than before, but still presumption that they should be clear on face
and judges will not retroactive w/o such facial clarity
3. Landgraf v. USI Film Products (U.S. 1994) [61 CB 642]: Judgment entered and Π
appealed. Then CRA of 1991 enacted to expand scope of discrimination and in
particular remedies. Π sought remand and new jury trial under CRA. Rule: In the
absence of clear congressional intent, prospectivity remains the default rule in
statutory interpretation.
i. Majority treats as retroactive any law that takes away or impairs vested rights
acquired under existing law or creates new obligation, imposes new duty, or
attaches new disability to conduct occurring in the past
ii. Blackmun dissent: should not apply retroactivity principle to conduct to situations
where retroactivity does not prohibit any conduct that was previously legal
iii. Scalia concurring in judgment: only a clear state can trump the presumption
iv. {You need clear statement on substantive law change; but you only need clear
intent for procedural change in law to apply retroactively}
4. Rivers v. Roadway Express, Inc. (U.S. 1994) [63 CB 655]: Patterson case refused to
apply CRA 1866 to discrimination during employment contract. § 101 of CRA
overruled Patterson. Rule: Restorative statute not an exception to the Landgraf
clear intent standard. Restorative statute does not indicate Congress’
disagreement w/Court’s interpretation, for Court could have correctly
interpreted and Congress just wants to change the outcome.
i. Court decided this way notwithstanding fact that § 101 restored the pre-existing
state of law prior to the Court’s decision in Patterson, the existing law at the time
that Π filed suit
5. Lindh v. Murphy (U.S. 1997) [64 CB 658]: Lindh had filed a petition for federal habeas
appeal of his noncapital conviction. During pendency, Congress passed AEDPA
making it harder for prisoners to get habeas relief. Rule: Landgraf presumption is
not invoked by itself, but rather in context with other rules of interpretation.
Construction of AEDPA indicates that the statute impliedly does not apply
retroactively (there’s another provision that indicates retroactive application, so
expressio unius), so there’s no need to apply Landgraf default rule.
i. Analysis after Lindh: if applying a statute in a particular case would create
Landgraf retroactivity, then retroactivity only upon a clear finding of
congressional intent
ii. Even if statute wouldn’t create Landgraf retroactivity, still need to use necessary
tools of statutory interpretation to determine whether case w/in scope of statute
E. Clear statement rules protecting states from federal legislation
1. Atascadero State Hosp. v. Scanlon: although Congress may abrogate state sovereign
immunity, presumption should be against such except w/super-clear statement
2. Gregory v. Ashcroft (U.S. 1991) [65 CB 889]: ADEA prohibits employers from
instituting mandatory retirement for persons over 40 if they are w/in reach of act.
Missouri Constitution requires mandatory state judge retirement at 70. Trial court
found that judges were exception to ADEA under appointees on the policymaking
level. Rule: Given the federalism balance state and federal government, statute
Legislation – Outline 23
shouldn’t be read to alter this balance unless Congress has made a clear
statement of its intent that states are to be regulated under the federal scheme.
i. Congress can constitutionally regulate these judges, but Court resolves on
statutory grounds not to affect federalism unless clear statement of intent to do so
ii. Canon is descriptive in sense that Congress generally does not intend to vary the
federal-state relation unless it clearly does so; it’s normative insofar as we
generally don’t want to upset the bounds federalism
F. Interpreting statutes in light of the common law
1. Statutes in derogation of the common law should be interpreted narrowly
2. Rule has eroded in regulatory state where common law is rare and statutes abound –
though common law still serves as a gap-filler in older statutes where holes in the
statute may indicate intent to have the common law apply
3. Morissette v. United States (U.S. 1952) [67 PM 99]: ∆ took government property
thought to be abandoned (no intent to commit crime). Prosecuted under theory that
b/c conversion statute lacked intent element, no such proof needed to convict. Rule:
State courts have uniformly recognized that despite specific intent element,
intent needed to prove larceny-type thefts. Congress’ silence in statute merely
adopts into federal law concept of crime already so well defined in common law
and through statutory interpretation.
i. Case would be different for new laws where Congress is not legislating w/rich
backdrop of common law development (e.g., regulatory crimes)
ii. Court treats larceny-type offenses as legal terms of art w/common law baggage
4. Court’s willingness to liberally construe statute often depends on how far the statutes
strays from common law ideals fundamental to Anglo-American law
G. Interpreting statutes in light of other statutes
1. Presumption against implied repeals
i. Congress has Article I power to repeal prior legislation, but later statutes may
impliedly repeal prior ones – preference is to read statutes consistently
ii. If can’t be done, presumption that implied repeals of prior statutes are disfavored
iii. Morton v. Mancari (U.S. 1974) [68 CB 1054]: Indian Reorganization Act of 1934
gives Indians employment preference in the Bureau of Indian Affairs. Non-Indian
applicants challenge this as violating the anti-discrimination rule of the Equal
Employment Opportunity Act of 1972. Rule: Congress didn’t intend to
impliedly repeal ’34 Act: (1) parts of the ’72 Act indicate that they didn’t
apply to tribal employment on or near reservations; (2) after it enacted the
’72 Act, Congress enacted two more Indian preferences; (3) long-standing
practice of exempting Indian preferences from executive orders re: anti-
discrimination; (4) repeals by implication are disfavored.
a. No need to read repeal by implication where statutes can be read consistently:
unless there’s clear intention otherwise, a specific statute (Indian preference)
will not be overruled by general statute (anti-discrimination), notwithstanding
the temporal state of their passage
Legislation – Outline 24
b. Can also argue that ’72 Act prohibits invidious discrimination, while ’34 Act
is benign discrimination (AA) not within the scope of the ’72 Act
c. Blackmun aggressively applies the canon b/c textually, it’s possible to find no
conflicts and even if you find conflict, no other interpretation to choose btw.
iv. Radzanower v. Touche Ross & Co. (U.S. 1976) [70]: Nat’l Bank Act of ’63 says
national banks can only be sued in judicial district where their home office is. ’34
Securities Act says securities violations can be brought anywhere. Rule: ’34 Act
venue provisions not apply to national banks b/c earlier ’63 was more specific,
while later ’34 Act cuts across industries and does not deal specifically w/banks.
v. If Statute #1 can be interpreted A or B, and Statute #2 indicates that preferred
interpretation is Not A: courts will usually read these statutes consistently so as
not to effect implied repeal of Statute #1 by Statute #2
2. Relevance of other statutes in determining terms of art
i. W. Va. Univ. Hosps. v. Casey (U.S. 1991) [70 CB 767]: Issue was whether § 1988
fee shifting included fees for experts retained by the prevailing party’s attorneys.
Rule: (Scalia) Textualist basis is no b/c other statues explicitly permit both
expert fees and attorneys fees. In opposition to imaginative reconstruction
arguments, Scalia says court’s job is to reconcile statutes consistently with
the whole corpus of American law – i.e. find the meaning that fits most
comfortably with previously and subsequently enacted law.
ii. Borrowed language rule: In using the same language across two statutes, the first
of which has been given a particular gloss by the court, the legislature intends the
second language to mirror the first, including the gloss put on it by courts
a. Presumption is most powerful when intervening gloss is by the SCT
b. Presumption can be rebutted where it’s clear that legislature did not intend the
second statute to borrow from the first
c. Presumption is that the gloss put on it by court is correct b/c Congress did not
change and included it in future statute
d. Linguistic coherence: want same phrase to have same meaning through Code
e. Congress intends to solidify the meaning by incorporating and borrowing
f. If later court overrules that earlier gloss, proceeding under intent, you’d still
say the gloss applies to the second statute, but under ideas of linguistic
coherence, you’d want to limit the now-overruled gloss throughout the Code
3. Relevance of judicial interpretation of similar statutes
i. Preenactment interpretations
a. In pari materia rule: consider other statutes b/c they might use the same
terminology or address the same issue as the statute being interpreted
1. Cartledge v. Miller (S.D.N.Y. 1978) [CB 1039]: ERISA read similarly to
Social Security Act, Railway Retirement Act, etc. that although benefits
are not alienable as to creditors, they are alienable as to claims for spousal
support. Statutes should be read consistently.
2. Lorillard v. Pons (U.S. 1978) [72 CB 1043]: Issue is whether there’s right to
jury trial in ADEA lost wages civil action. ADEA contains no express
Legislation – Outline 25
right to jury trial. Rule: Congress adopted ADEA’s provisions largely
from FLSA, where it is well established that there is a right to jury
trial. Where Congress bases one law on another with a known
interpretation, Congress is presumed to have incorporated this
interpretation into new law.
3. Objections include idea that new statute may borrow, but may also include
compromises that make it different than the original statute
b. Modeled or borrowed statute rule: borrowed statutes come from other
jurisdictions (whereas in pari materia are statutes in the same jurisdiction)
1. Zerbe v. State (Alas. 1978) [CB 1049]: Prisoner sues for negligence in
faulty arrest. Court finds, based on similarity between Alaska statue and
Federal Tort Claims Act, that cause of action is actually false arrest and
not negligence.
2. Only turn to when there’s no controlling case law and we only look at the
decisions of other jurisdictions’ highest courts (Zerbe on reconsideration)
ii. Postenactment interpretations [PM 110]: Trans-statute stare decisis – If we have a
faulty statutory precedent, stare decisis may argue against overruling that
precedent, but not necessary to be bound by stare decisis to extend faulty
reasoning to similar statutory provisions in other areas
a. If you care about congressional intent, you’d enforce differing interpretations
of similar statutes (think about Flood v. Kuhn)
b. If you care about linguistic coherence, you’d enforce same interp throughout
III. Debate over the canons
A. Karl Llewylln’s, legal realist, argues that canons are internally inconsistent b/c each can
be squarely dealt away by another one [CB 909]
B. Scalia argues against Llewllyn’s basic objections on the grounds that some of
Llewellyn’s canons aren’t real canons at all and in any event, his “parries” just
demonstrate that the canons are absolute, rather than contradictory canons
C. Law and economics attacks the canons as just wrong, esp. Rich Posner – they don’t
reflect how legislature makes law, they aren’t even common-sense guide to
interpretation, they don’t operate to restrain judicial discretion, and they don’t force
legislatures to draft legislation with care
IV. Statutory directions about how to interpret statutes
A. Generally
1. Might be objection that statutory instructions violate separation of powers principles
b/c constrains power of court to say what the law is
2. 1 U.S.C. §§ 1-5 [PM 112] provide rules re: interpretation throughout the U.S. Code
3. If Act A is repealed by Act B, and Act B is subsequently repealed, 1 U.S.C. § 108
provides that Act does not automatically come back into operation unless expressly
provided for in the statute repealing Act B
Legislation – Outline 26
i. Traditional common law rule is that Act A “springs” back automatically
ii. Is § 108 binding upon future Congresses – probably not b/c current Congresses
are the ones with Art. I legislative power so we can give effect to their efforts to
effect an implied revival of Act A in Act C
iii. § 108 can make courts wary to effect automatic revivals of repealed statutes
iv. If court thinks later Congress not intend to comply with earlier rule, court can
ignore the rule and effect will of later Congress b/c early congress rule not bind
4. Congress can define certain terms (e.g. 1 U.S.C. § 6) and this will bind prior
legislation (akin to modification of existing legislation), but can’t legally bind future
legislation but courts will often treat it as very dispositive that future Congresses will
want to adhere to this general principle
B. Severability clauses (and general severability doctrine)
1. Severability refers to striking down one portion of statute found to be unconstitutional
while keeping remaining constitutional part of statute in tact
i. Usually a matter of statutory interpretation b/c we’re looking to see what legis
intent is w/r/t what happens one part of statute held unconstitutional
2. Inseverability clauses can be added to say that if any provision found not to be
constitutional, whole act will be nullified (can be a means to ensure a compromise or
can be a way to strategically get court to strike down entire act)
3. Courts will generally give effect to severability/inseverability clauses unless doing so
would seem inconsistent w/congressional intent re: that particular severability issue
4. Alaska Airlines, Inc. v. Brock (U.S. 1987) [76 PM 114]: Airline deregulation bill
included employee assistance programs with legislative veto, which Chadha ruled is
unconstitutional. Issue is whether legislative veto is severable from the rest of the
employee assistance provisions. Rule: Unconstitutional provision must be severed
unless the statute created in its absence is legislation that Congress would not
have enacted.
i. Severability provision creates presumption that Congress intends for any
unconstitutional provisions to be severed and remainder to be enforced – can’t be
fully binding b/c Congress usually can’t foretell what Court will strike down
ii. Scalia argues for literally enforcing severability provisions rather than doing the
analysis w/r/t intent that the traditional doctrine favors
iii. W/o severability clause, silence does not create presumption against severance
5. If after severance, remainder of statute is unenforceable or inoperative, court will
usually render it all a nullity – not w/in judicial power to rewrite statutes
C. A possible application: the Line Item Veto Case
1. Clinton v. City of New York (U.S. 1998) [77 CB 342]: Line Item Veto Act permitted
president to “cancel” portions of bills presented to him relating to spending programs
or certain limited tax expenditures. Line item veto challenged as unconstitutional.
Rule: Veto is unconstitutional as permitting president to repeal or amend
legislation, power not given under Articles I or II.
i. At heart, this case is re: statutory interpretation, esp. how one statute (Line Item
Veto Act) can bind another statute (the spending statutes prez vetoed)
Legislation – Outline 27
LAW IN THE INTERSTICES OF FEDERAL STATUTES
I. The non-delegation doctrine
A. General contours of non-delegation doctrine
1. Legislature may not delegate its lawmaking power to agencies w/o providing
“intelligible principle” (specific standards) to which administrators must conform
2. During New Deal and afterward, doctrine was rarely invoked b/c interpreted very
narrowly so that there was a non-delegation only when there was an absence of
standards for guidance of the administrator’s actions
3. No statutes have been overturned by the Courts since 1930 on nondelegation grounds,
although Justice Rehnquist has urged revival of doctrine on three grounds:
i. Ensures policy decisions are made by Congress, democratically accountable
ii. Guarantees delegated authority exercised within bounds of intelligible principles
iii. Ensures courts assessing agency exercise of authority have some standard against
which to check the exercise of that authority
B. Nondelegation doctrine as canon of statutory interpretation
1. In recent years, SCT shown more interest in turning to nondelegation doctrine as a
canon of statutory interpretation rather than as an enforceable constitutional doctrine
– faced w/a very broad delegation of authority implicating constitutional concerns,
Court uses canon to adopt narrow interpretation that would restrain agency discretion
2. Touby v. United States (U.S. 1991) [PM 123]: Controlled Substances Act permits A.G.
to add and remove substances from the list within certain procedural bounds.
Because of need to deal w/designer drugs quickly, A.G. has expedited method where
it can temporarily list drugs w/o following all the procedures. ∆ charged with
possession of these temporarily listed drugs challenges on nondelegation grounds the
AG’s power to list these drugs. Rule: All that’s required to overcome
nondelegation doctrine is an intelligible principle, which exists in the procedural
mechanisms here. Any heightened intelligible principle analysis for imposing
criminal sanctions based upon delegated authority is satisfied here, despite the
lesser procedural safeguards of the expedited process.
II. Ambiguous statutes as delegations of authority
A. The Chevron doctrine
1. Congress often creates technical legislation and delegates to agencies – Udall v.
Tallman (U.S. 1965), C.J. Warren says Court shows great deference to agency
charged w/administering statute and need only conclude the agency’s choice is a
reasonable interpretation of the statute (even if Court wouldn’t choose it)
2. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council (U.S. 1984) [79 CB 1064]: Congress
empowered EPA to set standards for state to regulate “stationary sources” of
pollution. EPA issued regulation based on “bubble” theory of stationary source.
Rule: First step is to determine whether Congress has spoken on the issue, and if
so, then must follow the intent of Congress. However, in absence thereof, there
is an express delegation of authority to the administering agency to fill this gap.
Legislation – Outline 28
If agency interpretation is not arbitrary, capricious, or manifestly contrary to
the statute, court must uphold it and may not substitute its own interpretation.
i. Interpretation need not be the only permissible one or even one that Court chooses
ii. Two step: (1) Has Congress specifically addressed this issue; and if not (2) is the
agency’s interpretation reasonable, if so, Court must defer to it
iii. Normative arguments for agency deference include political accountability and
expertise in field; descriptive argument includes Congress intended to permit
agency charged w/administering statute to interpret the meaning of statute
3. Judge Silberman’s comments on Chevron [PM 127]
i. In light of statutory ambiguity, somebody has to pick between reasonable
interpretations, and agencies have structural comparative advantage b/c they’re in
executive branch which is empowered to make policy choices
ii. If Congress not like this, it can use specific language or opt out of Chevron
iii. Scalia indicates he almost always stops at step one, while Silberman almost
always proceeds to step 2 and defers to policy w/which disagrees
iv. Silberman’s approach to step 1 tends to be more deferential to agency –
effectively asks whether the statute leaves room for differing good faith
interpretations
a. Even if court thinks its interpretation better than agency’s, there’s ambiguity
and no objective way to prove court’s > agency’s
b. Silberman’s approach not make sense from accountability b/c if court really
thinks Congress would have chosen another interpretation, then b/c Congress
more accountable than agency, Court should choose that interpretation
c. If choice is policy choice, then good reason to defer to agency, but if Court
thinks it’s based on using interpretative constructs, not clear why defer
4. Babbitt v. Sweet Home Chap. Of Communities for a Greater Ore. (U.S. 1995) [83 CB
836]: Endangered Species Act prohibits “taking” of any endangered species. Interior
Secretary has promulgated regulation defining “taking” to include significant habitat
modification leading to killing or injuring of protected wildlife. Rule: Court finds
Congress did not unambiguously manifest its intent to adopt respondent’s view
and that Secretary’s interpretation is reasonable, thus sufficient to decide case.
i. Secretary’s interpretation is reasonable: comports with dictionary definition,
extends protection against activities that cause harms Congress enacted ESA to
stop, textual basis suggesting that “take” encompasses indirect takings
ii. Scalia dissent: invokes noscitur a sociis and exclusio unius to show the
unreasonableness of the Secretary’s interpretation
5. Scalia presses that only text and structure are appropriate sources to consult in
resolving Step 1 of Chevron; Stevens would permit recourse to LH
i. Scalia tends to rely more on text and believes text resolves more often so can
often stop at Step 1 of Chevron w/o triggering situation where deference needed
a. Scalia would probably not allow agencies to use LH in Step 2 – agencies
plagued with same problems that court is in using LH
b. However, non-textualists would permit use of LH by agencies in Step 2
ii. Some non-textualists fear that textualism will destroy basis of Chevron deference
Legislation – Outline 29
iii. Milder conclusion is that new textualists more likely to stop at Step 1, but if they
get to Step 2, they still have to defer to reasonable interpretations they would not
have independently chosen
6. FDA v. Brown & Williamson Tobacco Corp. (U.S. 2000) [Supp.]: FDA instituted
regulations regarding cigarettes. Tobacco companies argued that regulations outside
of FDA’s jurisdiction. Rule: Congress considered and rejected bills to expand
FDA’s jurisdiction to include cigarettes, and have instead passed its own scheme
for regulating cigarettes. These statutes have effectively ratified FDA’s prior
position that cigarettes are not within its jurisdiction. Thus, there was no
delegation to FDA of jurisdiction and FDA regulations not permissible and not
entitled to Chevron deference.
i. Chevron fails at step one b/c no delegation to agency to administer/interpret
ii. In other cases, D.C. Circuit has said agencies interpretation of their jurisdiction
under statute are entitled to Chevron deference
7. Deference and stare decisis: If court has first interpreted a statute and then agency
takes on a differing interpretation, what is the result of this? Possibilities
i. Court controls b/c once interpreted, no more ambiguity for agency to resolve
ii. Agency controls b/c Congress intended agency to have last word in interpretation
B. Implicit delegations of some “gap filling” authority to courts
1. Some statutes are inherently open ended or contain gaps that can be interpreted as
implicit delegations to courts to fill in gaps via common law method
i. This authority not unfettered, but constrained by intent, interests legis trying to
advance, rest of U.S. Code and how this statute fits, but ultimately the Court may
have to resort to its own ideas of public policy
2. John Manning questions why textualists refuse to sanction lawmaking by committees
and sponsors (i.e. LH), but are okay when agencies and courts step in to engage in
elaboration of the law – though all this violates bicameralism and presentment
3. Given a gap, court can fill either by looking to purposes behind statute and coming up
with statute-specific rule to enact Congress’ perceived intent (imaginative
reconstruction) or can resort to general version of broad areas of law to fill in gaps
i. Courts may also resort to state law so that result is diff state by state policy
ii. At extreme, court may just resort to policy and create what it thinks is best
4. Textile Workers Union of Am. v. Lincoln Mills of Am. (U.S. 1957) [88 PM 133]:
Collective bargaining agreement provided that last step before strike was arbitration.
Union sought arbitration, but employer refused. § 301 of LMRA of 1947 (Wagner
Act) grants fed courts jurisdiction to hear collective bargaining cases, but unclear
whether courts can fashion substantive law for these suits. Rule: Purpose of law to
permit enforcement of collective bargaining agreements. Court limits Wagner
Act if it reads § 301 as purely jurisdictional. Law to be supplied is federal law
read from the policy of national labor laws, starting with the Wagner Act.
i. Court permits resort to state law to help fashion federal law but notes that this will
subsume state law into fed law and not create alternative means of private rights
(will look to things like the Restatement as well)
Legislation – Outline 30
ii. Majority can’t really say § 301 is jurisdictional b/c would permit fed courts to
hear only state law claims between non-diverse parties – avoidance doctrine
would counsel against this interp – but no other interp so need substantive law
5. Smith v. Wade (U.S. 1983) [89 CB 924]: Wade assaulted in prison and alleged prison
officials did nothing. TC awarded him damages and punitives under 42 U.S.C. §
1983. Issue is what standard of proof needed to award punitives under § 1983. Rule:
Statute provides no guidance, so need to look to common law of torts. At
common law at that time, punitives could be awarded w/o heightened showing
actual malice as suggested by state. The same rule applies today (cite to
Restatement of Torts). In absence of guidance in § 1983, court is content to
adopt policy judgment of the common law.
i. Rehnquist dissent: modern punitives doctrine is irrelevant b/c we look to intent of
enacting legislature; says we look to common law b/c many lawyers of that time
were in Congress and they legislated against this background; disagrees with
majority over what standard required at that time for punitives
ii. O’Connor dissent: In interpreting § 1983, we look to common on belief that if
Congress was silent, it intended to adopt principles from common law with which
it was familiar; here, the principles are divergent (as shown by other decisions), so
we turn to what can fulfill underlying policies of § 1983 and would award no
punitives b/c enough deterrence through damages and attorney’s fees
6. SCT has looked to modern law to provide remedies in other cases
III. Interaction between statutory purpose, state law, and general common law
A. The meaning of particular terms in federal statutes
1. Central issue is when fed statutes used terms familiar to state laws or general common
law, does the fed statute piggyback off those varying rules of law; does meaning vary
depending on the state in which you’re in?
2. NLRB v. Hearst Publications (U.S. 1944) [92 PM 141]: Newspapers refuse to bargain
w/newsboys under collective bargaining agreement on grounds that newsboys are not
“employees” under NLRA. Act does not define the term. NLRB found the newsboys
to be employees. Rule: The mischief that the Act was designed to deal with does
not cut between state law distinctions between employees and independent
contractors. Rather than espouse definition of employee for NLRA purposes,
court defers to agency’s interpretation as it is warranted by the record and has a
reasonable basis in law.
i. Three possible ways court identifies that the word “employee” can be read:
a. State-by-state definition of employee as per state law – court rejects from fear
that states could game definitions by limiting who falls under NLRA
b. “Employee” as understood in general principles distilled from state law –
rejects b/c it is too narrow vis-à-vis purposes of the NLRA
c. Purpose of NLRA approach: Statute meant to cut down on labor strife and
strikes, strikes by groups considered ICs are just as problematic as strikes by
typical employees – so “employees” should be read broadly as per NLRB
3. Nationwide Mut. Ins. Co. v. Darden (U.S. 1992) [93 PM 148]: Definition needed of
“employee” under ERISA. Rule: Where Congress uses words w/accumulated
Legislation – Outline 31
settled meaning under common law, court must infer unless evidence
demonstrates otherwise that Congress intends to incorporate meaning of those
terms. Common-law test adopted for identifying “employee” based on the
common law of agency rather than law of any state.
i. Rejects Hearst and its progeny on grounds that after each expansive definition,
Congress struck back by amending to conform “employee” to common law def
4. Reconstruction Fin. Corp. v. Beaver County (U.S. 1946) [93 PM 152]: Issue of whether
machinery owned by RFC attached to real property constituted real property subject
to state taxation. Rule: Congress’ intent was to permit local taxation of “real
property,” which made it impossible to apply the law with uniform tax
consequences across states and localities. The definition of real property is that
which the state in which the property sits defines it as.
i. Idea that if Congress wanted uniform national taxation, it could have done so as it
did with fixed taxes in other statutes
ii. Limits this implication of adhering to state definition so long as the state
definition does not discriminate against gov’t or run counter to terms of the Act
iii. Not much worry that states will strategically minimize definition of real property
to bring more gov’t property into taxation b/c real property tax applies generally
to all of state’s real property (i.e. that of the citizenry as well)
5. Hoagland v. Sandberg, Phoenix & Von Gontard, P.C. (7th Cir. 2004) [93 PM 154]:
Whether professional corporation is treated as a corporation under the diversity
statute for citizenship purposes. Rule: Simplicity is preserved by retaining rule
that professional corporation is a corporation if the state of its incorporation
recognizes it as a corporation.
i. Posner says rule is good b/c need clear bright line rules in jurisdictional matters
ii. Easterbrook concurrence: Majority’s rule not preferable b/c permits states to
determine what is a “corporation” for federal diversity purposes and can open
diversity up further than Congress intended; nomenclature not enough to make an
entity a corporation; but no other way to do it well so resort to majority’s
formalism.
B. Incorporation of background doctrines into federal statutes
1. Meyer v. Holley (U.S. 2003) [91 PM 160]: Interracial couple tried to buy home from a
salesman of Triad real estate co., but agent allegedly prevented them from obtaining
home for racially discriminatory reasons. Couple tries to bring FHA action against
Triad’s president for act of Triad’s agent/employee. TC dismissed on basis that FHA
didn’t permit vicarious liability on part of corporate officer. Rule: The FHA does
provide for some vicarious liability. When Congress creates a tort C/A, it acts
against legal backdrop of tort-related vicarious liability and consequently
intends its legislation to incorporate those rules.
i. Under traditional vicarious liability, only corporate entity and not corporation’s
officers or directors are liable (relying on legal encyclopedia and R(2d) Agency)
ii. Congressional silence indicates fallback on this default rule
iii. Court implies unusually strict rules only where congressional intent indicates so
2. What background doctrines – typically general principles of law in a distillation like
the Restatements
Legislation – Outline 32
C. Implied federal causes of actions
1. Fed statutes often provide for private C/A explicitly (though oftentimes state law
provides C/A based on violation of fed rights)
2. Sometimes courts will recognize private C/A to enforce a law even though it’s not
explicitly allowed in the statute – answer has changed in responsive to admin state
3. Early rule: Texas & Pac. R.R. Co. v. Rigsby (U.S. 1916) – presumption is private C/A
exists whenever statute seeks to protect or benefit interests through a statute
4. In admin state, existence of agency C/A does not eliminate the Rigsby presumption
i. J.J. Case Co. v. Borak (U.S. 1964): recognizes implied fed C/A/ for violation of
Securities Exchange Act of 1934 to carry out purposes of investor protection
(imaginative reconstruction: would Congress grant if it thought about it?)
ii. Pretty simplistic rationale that more enforcement is always better – but on idea
that SEC couldn’t review all the proxies that were filed for misrepresentations
5. Cort v. Ash (U.S. 1975) [CB 1112]: Multi-part test to see if there’s implied C/A, but
unclear whether any are dispositive or weight to be given to them:
i. Is Π member of class for whose especial benefit statute was enacted (Rigsby)
ii. Is there any positive or negative legislative intent to create or deny a C/A
iii. Is it consistent w/underlying legislative scheme to allow C/A to Π
iv. Is the C/A traditionally one relegated to state law so it’s concern of state and
inappropriate to infer a C/A based solely on fed law
6. Before Cort, many implied C/A, but not so many more after (though Cort unique case
b/c involved crim statute – usually state enforced and Π was not intended beneficiary
but rather a secondary beneficiary) – just b/c statute violated, not mean C/A
7. Cannon v. Univ. of Chicago (U.S. 1979) [95 CB 1112]: Title IX not explicitly provide a
private C/A. Rule: First factor Cort is threshold factor. If all four factors
satisfied, then no need to balance – there’s an implied C/A. This case further
bolstered b/c Title IX is modeled on Title VI, which had been interpreted to
provide a C/A. Issue of implied C/A fundamentally about congressional intent.
i. First step of Cort is to assess language – if language suggests it was to benefit Π,
then that’s a point in favor of finding C/A
ii. Second step of Cort depends on LH – look to see if there’s any indication of
intent to create C/A (note that this pre-dates Scalia)
iii. Powell dissent: unless Congress creates a C/A, courts shouldn’t step in to do it
unless there’s most compelling evidence of congressional intent; Cort test is an
open invitation for courts to create fed C/A
8. Franklin v. Gwinnett County Public Schools (U.S. 1992) [CB 1120]: Given implied
fed C/A under Title IX, Court presumes availability of all appropriate remedies
unless Congress has expressly indicated otherwise.
i. Scalia dissent: when C/A implied, categorical limits on remedies can be implied
as well; makes no sense to require express remedial limits when Congress didn’t
provide for express C/A – most questionable of private rights (implied C/A) will
have broadest remedial scheme
ii. The Scalia approach of court-limitable remedies to Title IX wins out in Gepster v.
Lago Vista (U.S. 1998) – not sure if this is consistent w/Canon b/c if Congress
“intended” to create C/A, why can court limit the remedies?
Legislation – Outline 33
9. Virginia Bankshares, Inc. v. Sandberg (U.S. 1991) [CB 1121]: Under Borak C/A,
damages remedy not necessary for shareholders whose votes not required under
corporate law for transaction on idea that Congress’ failure to fill in the gap was
reason for court not to do so.
i. Kennedy dissent: once C/A has been created by court and not overridden by
Congress, court should fill in C/A with all traditional remedial precepts
10. Scalia in Thompson v. Thompson: no all implied fed C/A on idea that it would reduce
error and Congress’d be forced to put in express whenever it wanted C/A
i. Most of current court rejects Scalia’s bright line rule
ii. Most of court however agrees that intent is lodestar of implied C/A analysis
iii. For modern statutes passed after it’s handed down, Alexander v. Sandoval (U.S.
2001), opinion by Scalia is controlling: intent is the only determinative matter,
and if no intent to create fed C/A, then court can’t do it no matter how good the
policy would be (Scalia would have it apply to all)
D. Federal law, state law, and preemption
1. Preemption: displacement of state law by federal law
i. Express preemption: via express preemption clause – fed law makes clear it is
preempting state law – effective so long as Congress has authority to regulate
ii. (Implied) Field preemption: preemption implied by federal regulatory scheme so
very comprehensive, Congress tended to occupy the entire field
a. Would prohibit even state regulation that is not directly contradictory
b. Field-occupying statutes have impliedly have preemption “clauses”
iii. Conflict preemption: preemption arising from conflict btw state and fed law
a. Physical impossibility: When it is physically impossible to comply w/both
state law and federal law (i.e. fed law requires them to do something that state
law prohibits) (almost never happens)
b. Obstacle preemption: when state law stands as obstacle to the accomplishment
and execution of the full purposes and objectives of Congress
2. Gibbons v. Ogden (U.S. 1824): Fed statute required ships engaged in coasting trade to
get a federal license. NY state statute purported to grant monopoly on this. Rule: NY
statute contradicts fed statute, so NY statute is conflict preempted pro tanto.
3. Key analysis: does state law contradict some valid goal of federal law?
4. If fed statute establishes some rule and Constitution empowers Congress to do this,
rule preempts whatever state law might contradict
i. Applies to express preemption, field preemption, and much of conflict preemption
ii. Doesn’t fully encompass obstacle preemption b/c state law need not contradict fed
law, just stand as a barrier to accomplishment of fed law
5. Xerox Corp. v. County of Harris (U.S. 1982) [98 PM 166]: Imported goods stored in
customs warehouses and then subsequently exported to another foreign country are
exempt from customs taxes. County of Harris imposes across-the-board property tax
to copiers stored in warehouses. Issue is whether the state tax is preempted by the
bonded customs warehousing scheme. Rule: Property tax is obstacle preempted by
the federal customs warehouse tax exemption scheme – that such taxes create an
obstacle to the achievement of objective of federal tax law of bonded warehouses
and encouragement of using American ports.
Legislation – Outline 34
i. Court not speak of congressional intent so court engaging in imaginative
reconstruction to determine what Congress would have wanted w/r/t state taxing
ii. Problem with this type of broad obstacle preemption is that it requires court to
follow the purpose/objective of statute to its ends at all costs, though Congress
may not have intended its statute to go so far, esp. if tramples on states
iii. Subsequent cases have been more careful to narrowly read purpose and to be
sensitive to seeking a clear basis for any reading of congressional purpose
6. Geier v. Am. Honda Motor Co. (U.S. 2000) [100 PM 171]: Π collided with tree and
suffered injuries b/c car lacked driver’s side airbag. Π sued on state negligence
claims, but ∆ sought dismissal based on preemption with National Traffic and Motor
Vehicle Safety Act of 1966. Secretary promulgated Standard 208 permitting phase-in
of passive restraints. Rule: Express preemption clause in the Act didn’t preclude
state tort claim b/c common law duties are not “safety standards” w/in meaning
of Act. State tort claim for no airbags is obstacle preempted by Standard 208 b/c
tort arises from state requirement of airbags while Standard sought a variety
and mix of passive restraint devices.
i. Preemption clause interpreted narrowly b/c under whole act rule have to give
meaning to Act’s savings clause (saying that compliance w/regulations under Act
not exempt from common law liability)
ii. The Standard implies a federal right to choose what kind of passive restraints to
put in cars, and the state law requiring airbags impedes and conflicts w/this choice
Legislation – Outline 35
