Legislation - UVA Law

Flusche 1 of 14 Legislation – Outline I. Theoretical (questions to think about) A. Different Views 1. CL – judges ―discovered‖ law – statutes against CL construed narrowly 2. Modern – statutes are continuous enterprise to solve problems of society B. Mischief R – CL coverage, CL answer, remedy from leg., remedy’s true reason C. Rule v. Standard – over & under inclusive VS hard to apply, more discretion, invites bias D. Intent 1. Subjective – actual intent of enacting members of Congress (i.e. what did you mean?) 2. Objective – what reasonable reader would think leg. wanted to convey 3. Semantic – what do you intend the words to mean? 4. Results – what did you think would be the effect of the words you wrote? E. Absurdity – statute shouldn’t be construed if conclusion is absurd F. IR – for ambiguity or hole in statute – put yourself in position of leg. – two ways: in minds OR purpose G. Domain – before interpret, ask if statute applies at all H. L. Process – purposive approach (optimistic re process) – specific inst. roles for diff. members of govt. I. Mistakes – wording/semantic OR policy; How to identify? What to do about it? II. Data (arguments to make or refute) A. Leg. History 1. Pro – all: education; textualists: resolve ambiguity, absurdity on face 2. Con – subj. intent incoherent, unconst., encourages policy preferences, not accurate, expensive, fair notice 3. Comm. Reports – authoritative, esp. Conf. Comm. 4. Hearings – more for show than learning, but good to educate lawyers 5. Floor Stmt – sponsors: more authoritative; opponents: not very accurate; non-leg. drafters: little weight 6. Pres. Stmt – not much weight; no problem w/ intent; but he’s just one person; if law delegates, ↑ weight 7. Post-Enact. History - ↑ weight, if same Congress B. Stare Decisis & Statutory Precedents 1. Pro – minimize jud. lawmaking, avoids divining intent based on what not done, passes job to best factfinder, keep political heat on political branches, makes Congress face controversial issues 2. Con – unrealistic that Congress is monitoring, unfriendly to lawmaking, frustrates intent of enacting Con. C. Canons Textual Substantive Coherence technical v. ordinary lenity for criminal cases common law meaning inter. to avoid const. problems rule against implied repeals noscitur a sociis retroactivity in pari materia ejusdem generis federalism expressio unius punctuation and v. or, may v. shall whole act rule 1. Good or bad? – really a rules v. standard question D. Congressional Directions – problem = one Congress trying to bind future Congress E. Severability – test = whether Congress would’ve enacted remainder of statute w/out unconst. part Flusche 2 of 14 I. Introduction A. Three goals: 1. Learn to read and interpret statutes – go to STATUTE FIRST 2. Evaluate kind of arguments that are made (and identify what is not argued) 3. Think through relationship btw view of leg. process and its implications on leg. interpretation a. Two views: interest group, deliberative B. Civil Rights Act of 1964 1. Bipartisan split 2. People voted against the bill simply b/c their ego wasn’t stroked 3. Title VII, ―sex‖ added in an attempt to destroy the bill – but it still passed – should it matter? – maybe read narrowly C. Purpose, intent, and text 1. Purpose – what is the purpose of the statute? 2. Intent – what did Congress intend? – semantic intent v. intent as to consequences 3. Text – what does the text say? II. Statutory Interpretation A. Goals: 1. How to interpret statutes: correlation btw leg. intent & how ct applies, interpret against background of common polity, need fair notice, enforcement matters 2. Problems: what kinds of intent matters, means v. ends, no interpreter can carry out goals perfectly B. History – CL – judicial task = law discovery – statutes in derogation of CL are construed narrowly C. Modernity – statutes are continuous enterprise to solve problems of societal living D. Mischief Rule 1. Questions to ask: a. What’s the CL that would’ve covered the statute in Q? b. What is the answer from CL? c. What remedy did the leg. intend to fix the problem? d. What is the remedy’s true reason? 2. Ex: all drug shops shall be closed at 10pm – what does ―closed at 10pm‖ mean? 3. Blackstone a. Any leases for land ―other than for the term of 21 years‖ shall be void b. Bishop Jones leases land for 50 years, tries to get out of it c. Mischief = destruction of land interests for successors d. Bishop can’t get out of the lease E. Rules v. Standards 1. Policy choice – both get at same purpose 2. Rule: a. Over and under inclusive b. Seems more fair in some ways (as long as rule fits situation) 3. Standard: a. Much harder and more complicated to apply b. Ask interpreter to use more discretion c. Invite bias – consider policies and values that leg. might not want considered d. Not as good w/ notice and predictability F. Holy Trinity (p. 675) 1. F – Episcopalian minister from England, contracted to be pastor in NY – violates statute 2. This is w/in letter of § 1, but Congress didn’t intend this case 3. Start w/ prohibition, and try to show minister isn’t covered – minister is intellectual, not ―labor or service‖ 4. See if minister fits in exception (§ 5) – could be a ―lecturer‖ 5. Exceptions let us draw inferences about general rule 6. Mischief rule – capitalists were bringing in large #’s of foreign labor, not ―brain toilers‖ Flusche 3 of 14 7. Intent used two ways: a. Subjective = actual intent of enacting members of Congress – ―what did you mean?‖ b. Objective = what would reasonable reader think leg. wanted to convey 8. Ct applies subjective view of intent a. Senate Committee report – wanted to use ―manual labor or manual service,‖ but in a hurry b. Senator Blair – Morgan worried that professionals would be included – Blair agreed, so should amend bill further – but never done 9. Absurdity argument – statute shouldn’t be construed if conclusion is absurd a. Only applies if statute isn’t clear b. Blackstone – wouldn’t give man power to judge his own case – if statute seems to do that, it can’t be construed that way – but if statute is clear, can enforce it G. Imaginative Reconstruction 1. Riggs v. Palmer (s p. 5) a. F – grandson was remainderman in g-father’s will, g-father remarried, g-son killed g-father b. Held – money goes to 2 daughters – if NY leg. had thought about it, they would’ve added slayer statute c. Dissent – leg. told us how to make wills & murder statute satisfies public policy d. Which statute are we interpreting here i. Will or murder? – is will valid, should g-son be punished more ii. Slayer was only heir apparent, so we’re not taking anything away from him e. For: i. Makes sense for judiciary to fill gaps – leg. doesn’t have time to fix all the chinks ii. W/out gap filling, legislation itself would be huge iii. Unreasonable for leg. to restate background principles – impute knowledge of these to leg. iv. Going to daughters is better than going to slayer f. Against: i. Don’t know for certain what T wanted at all 2. IR might violate distinction btw legislators and judges – judge might be asking ―what should law say?‖ 3. Limit use of IR – only for ambiguity or a hole in the statute 4. Ct tries to put itself in imagination in the position of leg. which enacted the measure 5. But what would reasonable men do? 6. Two kinds of IR – which of these chosen comes from notion of leg. process a. Go back and figure out what was in minds of legislators b. Don’t look at subjective intentions, but purpose of statute (Hart and Sacks) H. Statutes’ Domains (Easterbrook) 1. First Q – does the statute apply at all to this situation? 2. If issue isn’t w/in domain of statute, issue of interpretation doesn’t come in 3. Domain – identify range of issues that statute explicitly addresses or gives authority to ct to address 4. Theory – unless leg. delegates CL authority to ct, domain of statute is restricted to cases anticipated by framers & resolved in leg. process 5. IR – might be needed to figure out what type of statute you have – delegation or not 6. Benefits of narrow view of statutes’ domains: a. Judges aren’t very good at IR – they’re even less good at trying to unravel leg. process b. Leg. takes a long time & it’s amazing we get things done – time is a check on leg. I. Fishgold (p. 685) 1. F – F was welder, drafted into army, rehired as welder, but laid off after 1 year 2. Statute – veterans could return to place of employment & get credit for time in military 3. F laid off on rotating basis – 9 days during certain period – seniors worked 4. Q – does layoff = discharge? – no 5. Hand – statute thought troops would only be away for a year 6. In 1940, Congress wouldn’t have intended this result – they didn’t want such favorable treatment 7. But in 1946, Congress might have wanted to treat veterans better – we’re thankful for what you did Flusche 4 of 14 8. Easterbrook’s view: a. Statute is about veterans who come back to their jobs b. Ambiguity for ct to decipher c. It’s clear that leg. did something, but question is what w/ respect to unanticipated events d. Wants to limit domain to actual category of issues that leg. was actually thinking about at the time e. Follows the interest group (compromise) model of leg. III. Legal Process Theories A. Historical Lead-Up 1. Used at many law schools to educate students 2. Legal realists – CL reasoning is silly – precedents don’t compel one particular result 3. Deconstructive – law is just a policy choice – best we can do is predict what courts will do 4. Constructive – law is policy, but we can identify the policies that govern particular subject area of law 5. Turn of century – more statutes, what did Congress intent in subjective way? 6. Legal process – response to all this – retain way to think about rule of law & role of democracy a. Specific institutional roles for different members of govt. b. Main feature = purposive approach – law is trying to solve problems c. Optimistic about leg. process 7. Critiques a. Too optimistic about legislators – legislation is just compromise of competing interests i. Response – disagree w/ this view – even if it’s true, judge must make something of what comes out b. There is no neutral response from statute & leg. history c. New textualists (reject leg. history) – better to just look at language and apply it (judges better at semantic intent, fits Const. plan better) B. Case of Speluncean Explorers (Fuller) 1. F – explorers trapped, kill one & eat him 2. Statute – anyone who willfully takes life of another is sentenced to death a. Exception for self-defense b. Chief executive can commute sentences 3. Trial Ct – guilty, but urged executive to exercise leniency 4. Foster – purposive a. Multiple purposes for prosecuting murder – but these people didn’t ―murder‖ b. Utilitarian calculus sort-of makes it ok – benefits > costs c. Fidelity to a sensible interpretation 5. Keane – textualist – maybe we prosecute murder b/c we think it’s bad OR retribution 6. Kozinski – textualist a. Maybe they weren’t morally wrong, but leg. should fix the problem b. Leg. better represents the conscience of the community c. But what would leg. think about someone needing to eat someone else? 7. Easterbrook – textualist a. Seems to be reading statute as CL b. Leg. knows that courts entertain claims of justification c. Not in favor of background principles in context of statutes that seem to represent compromises C. Meanings of Intent 1. Scalia & Dworkin a. Both agree that courts care about some kind of intent b. Semantic intent v. results intent i. What do you intend the word to mean? ii. What did you think would be the effect of the words you wrote? 2. Female Juror Cases – Maxwell (p. 718) a. Statute – links jury service w/ qualified ―electors‖ – passed in 1867 when only males were ―electors‖ b. Women later become ―electors‖ by 19th A Flusche 5 of 14 c. Does change in electorate change jury qualification? d. Two different meanings for ―qualified electors‖: i. People who are qualified to vote at present time (1921) – includes women (a) Updates w/ time (b) Jury pool and voting are political rights (c) Voter pool is good place to look for qualified people (d) Could’ve spelled out qualifications, but chose shorthand ii. People qualified to vote at statute’s passage (1867) – only men e. Choice here = semantic intention 3. Comparison Female Juror Blackstone Holy Trinity •Legislature would’ve been •Statute – Lord can judge ―all •Q – does labor/service include horrified of women serving on cases‖ minister? juries •But can’t judge your own case •Principle – religion is •Supposing legislators would’ve Semantics? – must be important, legislature would’ve used the term ―male electors‖ something else never excluded ministers •Voters  jurors •We’re so confidant in •Either ―labor/service‖ excludes •Jurors != women background principle that leg. ministers OR ―lecturer‖ includes •Best expectation – would want would never even consider ministers women to be jurors putting it in •Both options torture the •Not the same kind-of background language principle 4. Boutilier (s p. 30) a. Statute – listed 6 categories of people who were deportable – includes psychopathic or mental defect b. Govt. – Congress expected this to include gays, APA DSM characterized it as mental disorder c. Boutilier – but since that time, APA removed homosexuality from DSM d. Another category = contagious diseases – we would definitely update this to include new diseases e. It can’t be right to only expand categories, but not contract them 5. Erickson (s p. 23) a. Statute – debtors can keep basic farm equipment upon bankruptcy b. Q – do the new tools count under the old name? c. Purpose – give debtor a new chance, but don’t take away everything, but don’t want to leave too much d. Held – must have enough characteristics to be like the old mower, but not so many new characteristics that it swamps the old definitions IV. Legislative Mistakes A. Intro 1. Two different kinds of mistakes: a. Wording / semantic i. Pure semantic error ii. Meaning of words b. Policy 2. How does ct identify mistake in the first place? 3. Once mistake identified, what should ct do about it? (where is burden of inertia) B. Shine, p. 700 1. Statute – bankruptcy … does not discharge: a. Any liability to a spouse or child i. For maintenance / support OR ii. For alimony due b. In connection w/ a separation agreement or divorce decree 2. F – Mr. S has debt to ex-wife, but NOT in connection w/ separation agreement or divorce decree 3. Ct – this is a mistake Flusche 6 of 14 a. Congress didn’t think through what final result would be b. Congress was trying to broaden the law, in terms of what was not dischargeable c. This reading would broaden property settlement, but narrow support – reverse of what Congress wanted d. This looks just like a case where they dropped a ―not‖ out e. DDB – that is a big change – if Congress intended it, we would’ve known – shifts burden to Congress 4. Are we sure this is semantic mistake? – they added a phrase, then dropped a piece of the phrase 5. Do we think ct should fix this? – paternalistic, Congress might get more sloppy 6. How does it affect courts if we allow this? C. Locke, p. 705 1. Statute – federal mining claimants must file papers ―prior to Dec 31‖ 2. Ct – filer is out of luck – enforce it as it is – deadline is, by nature, arbitrary 3. What did Congress intend date of filing to be? (consequences) – but only purpose is to have a deadline a. Lots of things happen at year’s end b. ―prior‖ to means ―before‖ = Dec 30 c. But trap for the unweary 4. There was ambiguity on part of agency itself, and employees D. Public Citizen, p. 720 1. Federal Advisory Committee Act – any committee ―established or utilized‖ by President 2. Q – whether ABA committee had been ―utilized‖ by the President – majority = no 3. Majority (Brennan) – committee isn’t under FACA – utilize != make use of – utilize was late addition 4. Concur (Kennedy) – utilize = make use of – but, applying FACA here would raise Const. concerns 5. Semantic intent OR intent as to consequences? a. If ―utilized‖ construed broadly, any private group consulted by President is drawn in b. Maybe ―utilized‖ is a term of art c. Kennedy is willing to find an unconstitutional absurdity, but not policy absurdity 6. Ct goes to semantic intent to get at intent as to consequences E. TVA v. Hill (p. 730) 1. ESA – no federal agency can jeopardize endangered species or their critical habitats 2. Tellico Dam – spent $100m – environmentalists found rare fish in area 3. Majority (Burger) – plain intent of Congress = reverse trend of extinction, regardless of cost 4. Dissent (Powell) – literalist construction not required – ESA doesn’t apply to actions already in progress 5. Real question – should there be some balancing? F. Griffin, p. 733 1. If seaman left work w/ unpaid wages, master required to pay wages w/in specified time – or else 2X wages 2. G worked as welder, had to leave - $400 of wages in dispute – got another job in 30 days 3. Majority (Rehnquist) – DC lacked discretion to stop penalty – awarded $300k to G a. Agrees w/ absurdity argument b. Congress removed barriers for stopping punitive damages clock c. Congress seems to be saying, settle small debts, even if in a little dispute 4. Dissent (Stevens) – shouldn’t take away ct’s discretion + DDB (remarkable reading shouldn’t be assumed) G. U.S. v. Marshall (p. 773) 1. Fed statute – 5 year min for selling 1g of ―mixture or substance containing detectable amt‖ of LSD 2. Majority (Easterbrook) a. Weighing carrier + drug creates oddities (retailers v. wholesalers, different carries, different drugs) b. By definition, statute suggests drug isn’t pure c. Congress knew how to make distinction that D wants (did so for PCP) d. Congress treats LSD like other drugs – sold by dose, governed by mixture e. Substance / mixture w/ detectable amt applies to LSD f. LSD on blotter paper is a substance / mixture 3. Dissent (Posner) a. Congress didn’t think about how LSD is distributed (by dose, not by weight) Flusche 7 of 14 b. Congress understood distribution of PCP, so they distinguished it c. Factual error leads to unequal treatment – Congress would NOT intend this 4. Which is best opinion? – Easterbrook: closer to language, not sure this is error, ct not right body to fix it 5. All drugs are treated in manner that punishes distributor more heavily than wholesaler 6. Maybe same # of doses of LSD is more dangerous – should not punish drugs equally H. Bock Laundry (p. 743) 1. FRE 609 – convictions that can be admitted to impeach W (balance PV against DUP, if not honesty crime) 2. Did Congress mean to treat civil Ds specially? 3. Majority (Scalia) – focus on criminal D, he gets favored a. ―prejudice to the D‖ doesn’t apply at all in civil context b. ―criminal D‖ does ―less violence‖ to the meaning 4. Blackmun – focus on prosecutor, he gets favored a. Qualifying phrase should matter in civil cases – should read to be ―party‖ in civil cases b. Purpose – to prevent outcomes from being affected by prejudicial EE V. Sources of Interpretation – WHAT IS MY INTERPRETIVE MODEL? A. Legislative History 1. Intro a. Scalia’s objections i. Idea of intent – subjective intent is incoherent – can’t know intent of many legislators (a) But this depends upon what we mean by intent (b) Rephrase: not able to discover what was in their heads, but could find out what the words mean (c) Scalia does embrace other contexts: words in statutes, public history, dictionary, other statutes ii. Unconstitutional – law is what was voted on by House and Senate, presented to President to sign (a) But this depends upon what you’re using it for (b) If using it to add something that language won’t bear, maybe that’s treating it as law (c) But if trying to discover semantic intent or choose btw 2 interpretations, that is different iii. Encourages judge’s ―policy preferences‖ iv. Not accurate – people are strategic, can’t trust courts to sift through, one floor statement isn’t law v. Expensive vi. Compromises fair notice – nobody would’ve assumed leg. history incorporated from language b. Easterbrook embraces a broader use than Scalia does c. Two uses of leg. history that many textualists would embrace i. Resolve ambiguity, particularly where there are 2 choices, both of which statute will bear ii. Where face of statute contains an absurdity d. Education – provides useful background on statute, helps to learn what it means e. Breyer’s use: i. Opposes ―new textualism‖ – don’t assume something about leg. process that isn’t true ii. Institutional realities: particular issues divided out among staff, no legislator reads every part 2. Committee Reports a. Authoritative: lots of leg. hammered out in committee, leg.’s most likely familiar w/ reports b. Good educational tool – section by section analysis of statute – but doesn’t always cover every section c. Conference committee reports – attempt to resolve differences btw House & Senate d. Blanchard (p. 949) i. § 1988 – fee-shifting statute for civil rights suits under § 1983 ii. Majority (White) – attorney’s fee award not limited to contingency fee contract (a) Committee reports referred approvingly to Johnson, involving different fee-shifting statute (b) But Johnson isn’t about a contingency fee – ct just came up w/ $ amt – cite how you get it (c) But Senate Report also said that fee should never be greater than P’s contractual obligation (1) Also cited three DC cases that said fee arrangement was only a factor (d) Argument: Johnson + 3 other cases = can’t restrict fee award to contract iii. Concur (Scalia) – really want to know the purpose – given purpose, how do we construe it? Flusche 8 of 14 iv. Purpose = encourage socially beneficial civil rights litigation (a) P is private attorney general – vindicating rights that are important to ALL (b) Attorney’s fee statutes make sure attorneys take cases (c) If P can get an attorney on contingency fee, it shouldn’t matter what lodestar comes out to be (d) P will always be able to pay the attorney, no matter where contingency fee falls e. Sinclair (p. 957) i. F – S has family farm, files bankruptcy under Ch 11 – Congress added Ch 12, specifically for farms ii. Statute’s language is clear – amendments don’t apply to pending cases iii. Committee Report – conversion is possible, but should be rare iv. Ruling (Easterbrook) – can’t use leg. history to show ―intent‖ at odds w/ text v. Should use leg. history (a) § 302 – retroactivity provision – nothing in this new § applies to cases already pending (b) § 256 – ct can convert a case only if – doesn’t distinguish pending cases (c) Congress created Ch 12 as emergency relief for farmers – ―bail out‖ should help people now (d) What’s the purpose of § 302, if § 256 allows conversion of pending cases? vi. Don’t use (a) Clear, not absurd – could’ve had purpose for not allowing conversions (b) Both provisions have their own scope (c) Farming emergency – if it was clear that Congress messed up, they would’ve fixed it 3. Hearings a. Problem – nobody is listening b. They really aren’t about learning anything c. They are good for educating lawyers about law’s background – but not about educating legislators 4. Floor Statements a. Mixed review b. Sponsors – more authoritative i. Likely submitted or drafted language ii. People who vote on bill presumably rely on Sponsors iii. BUT – Kosak, Stevens (dissenting) – sponsors know too much – they know the result they want c. Opponents – not very accurate i. Will try to paint the bill in worst light possible – trying to defeat it d. Non-legislative drafters – don’t get much weight – who knows if anyone read his report e. Kosak (p. 998) i. F – art collection seized by Customs, damaged – P sued under Federal Tort Claims Act ii. Provision – exception to waiver of immunity – can’t sue for ―claim arising in respect of‖ detention iii. Waiver of sovereign immunity construed narrowly, so exception to waiver construed broadly iv. P wants to distinguish btw physical harm v. economic harm, so statute only means economic harm v. Held – claim barred 5. Introduction and Consideration of Legislation – Leo Sheep (p. 939) a. F – RR land-grant scheme in checkerboard – some of govt. land is landlocked b. Q – can people who want to use landlocked recreational area get to it? – did govt. retain easement? c. Held – no implied easement i. Easement by necessity wouldn’t be for 24 hour road for public ii. Govt. doesn’t need an easement – it has eminent domain iii. Congressional intent – Congress knew how to make exclusions, but didn’t – expressio unias d. Purpose – get the land developed – would have to think about easements in both directions e. Govt. would’ve allowed easements across its own land (to encourage development) 6. Presidential Signing or Veto Statements a. Reagan began using them extensively b. Seems pretty obvious that this doesn’t get much weight – leg. history isn’t allowed to create ambiguity c. No problem of intent, since President is one person Flusche 9 of 14 d. Objections: he is just one person in process, he isn’t good at making policy decisions e. If law delegates authority to Executive, his view on statute could matter 7. Post-Enactment History – Montana Wilderness (p. 1003, p. 1013) a. F – environmentalists sued to prevent RR from constructing roads in National Forests b. Three arguments: i. Implied easement (like Leo Sheep) ii. Alaska Lands Act explicitly granted access iii. Colorado Wilderness Act grants access (supports interpretation that ALA grants access) c. Alaska Lands Act i. Two sections are in pari materia – suggests they are about 2 different kinds of Alaskan land ii. Textualist arguments (a) National Forest System – defined in 16 USC 1609 (b) § 1323(a) is superfluous unless it applies to nation  but 1323(b) is already superfluous then iii. Leg. history – Senate Energy Committee – cited UT case, saying they want to remove any lingering doubts about access to lands d. Colorado Wilderness Act i. Conference Committee Report – deleted § b/c they thought it was covered by ALA ii. Same Congress passed both statutes, close together iii. Theoretically doesn’t matter whether statute got passed or not iv. Private access is sort-of background principle now – they are legislating based on it v. Judge discounts Sponsor’s after-passage statement – nobody can contradict him vi. BUT if you’re against access – remove CWA access §, and hope ALA is limited to Alaska B. Stare Decisis and Statutory Precedents 1. Introduction a. Why have strong rule of SD? – stability, legitimacy of courts, separation of powers (vertical coherence) b. Why might we object to SD? – justice in individual case, need to get decision right (horiz. coherence) c. Why is rule stronger in statutory cases? i. Congress can easily correct statutory errors ii. Error cost of Const. precedent being wrong is more than a statutory precedent d. Where should burden of inertia be? – make Congress reverse ct’s correction OR Congress must fix it e. What rule does Congress want? i. Strong – limit court’s power, Congress can change OR lay blame on ct, interpretations must be stable ii. Weak – empowers current Congress, assumes ct sticks w/ original interpretation, Congress might want ct to take political heat in changing things 2. Flood (p. 601) a. Federal Baseball – baseball not involved in commerce, not covered by anti-trust acts b. Lots of later cases where ct declined to overrule RB, and extended to other sports c. Congress did nothing (congressional acquiescence) i. Congress may not have even known about the case ii. Congress might have known, but not acted – busy, many places legislation can be halted iii. Q is really about Congress that passed statute, not what later Congress didn’t do iv. Taking Congress’ meaning from inaction bypasses Const. procedures – inaction = no agreement d. Majority (Blackmun) i. History denotes something more than Congress’ passivity – more than 50 bills introduced ii. Reliance argument – FB is embedded in America e. What Congress actually did – activity looks like it was trying to extend the exemption 3. Summary a. For: i. Minimizes judicial lawmaking – rule of law, SoP argument ii. Avoids big problem of divining what current Congress wants based on what they haven’t done iii. Passes job to the branch that can do the fact finding Flusche 10 of 14 iv. Keeps political heat focused on political branches v. Keeps Congress from avoiding controversial issues – if Ct gets it wrong, they won’t fix it b. Against: i. Unrealistic to think Congress is monitoring this, and can fix everything it doesn’t agree w/ ii. Almost unfriendly to lawmaking process – Ct made a mistake & should be obligated to fix it iii. Frustrates intent of enacting Congress by not enacting intent of leg. deal iv. Often based on Congressional inaction arguments that are themselves erroneous c. Major reasons why Ct overrules itself i. Time has produced horizontal incoherence ii. Changes in landscape have made reading of statute appear unfair or unjust iii. Reading Ct came up w/ has created pragmatic or practical problems in administering statute d. Two implications: Congress might prefer weak rule (Ct could fix things), must decide if it’s good for Ct to fix horizontal coherence 4. Bob Jones University (p. 1022) a. IRS – private schools not covered under 501(c)(3) if they racially discriminate – violates public policy b. SC, ok – import CL meaning of charitable trust c. Textual hook i. 501(c)(3) – lists purposes, which includes ―charitable‖ and ―educational‖ ii. 170(a) – deductions for ―charitable contributions‖ iii. 170(c)(2)(B) – defines ―charitable contributions,‖ which includes list = 501 d. Both sides use exactly same data to come to their conclusion, difference: i. Majority – horizontal coherence (post-enactment leg. history, acquiescence) ii. Dissent – vertical coherence (enacting Congress) 5. Griggs (p. 42) a. F – Duke Power used testing for promotion b. Ps – test is subterfuge – fit btw test & job, timing of when adopted, statements made by company c. Ct comes to different conclusions, but use reaction to Motorola as justification – also different visions of racial justice i. Boreman – general intelligence tests ok — focuses on narrow legal issues (a) M = can’t use general intelligence test (b) Congress – of course you can use general tests ii. Sobeloff – test should be job-specific — looks at broader history of discrimination (a) M = can’t do any testing (b) Congress – at least job related tests allowed 6. Weber (p. 86) a. Kaiser had affirmative action plan b. P (white employee) sues under Title VII c. Ct rejects ―literal‖ interpretation of ―discriminate‖ in training & employment decisions i. Look at leg. history & context w/in which Act arose ii. Purpose – eliminate economic problems for blacks, create employment opportunities iii. Congress didn’t mean to prohibit voluntary steps to accomplish this purpose d. Definition of ―discriminate‖: i. Could be term of art, meaning only bad discrimination (a) But this raises questions w/ respect to rest of statute (1) Not all sections say ―discriminate‖ – 703(a)(2) – ―limit, segregate, or classify‖ (2) Wouldn’t need certain exceptions (Indian preferences, benign reasons, testing) (b) This would be in tension w/ Griggs, since prohibits disparate impact even w/out invidious intent ii. Broader rule – color blindness (a) Congress might’ve had 2 goals – be color blind, help employment for blacks (b) ’64 – purposes push in same direction (c) ’70 – purposes seem to go opposite ways Flusche 11 of 14 (d) If judge took this view, could try to harmonize the goals – 703(j) doesn’t require preferences (1) BUT (j) addressed concern that agencies & courts would require affirmative action e. Blackmun i. Employer is on tight rope – can’t presently discriminate, but must remedy past discrimination ii. If just neutral, past discrimination maintained – Griggs allows disparate impact suit iii. But if you give preferences, Weber could allow whites to sue C. Canons 1. Textual a. Technical v. Ordinary Meaning i. Usually, read word in ordinary meaning ii. Unless there is technical meaning of word AND statute is about that very subject iii. Ex: Under Equal Pay Act, is night v. day different ―working conditions‖? – no, it has specialized meaning under statute (Corning Glass Works, s p. 88) b. Noscitur a Sociis i. It is known by its associates ii. Often comes up w/ a list iii. Need to be able to say that things in the list actually make a class iv. Ex: Tax statute covers ―exploration, discovery, or prospecting‖ – doesn’t include drug manufacturers, really talking about mineral & oil (Jarecki, p. 822) c. Ejusdem Generis i. If you have specific things that apply to class, then general catch-all term ii. Ex: ―dirt, rubbish, wood, timber, or other material‖ – doesn’t include car (Hodgerney, p. 824) d. Expressio Unius i. Expression of one thing = exclusion of something else ii. Works best if kind of exception being urged is just like the listed ones iii. Ex: statute poses general rule, then exceptions – unlisted exception doesn’t fit in iv. Counter – logic might not work w/ listed exceptions (too dissimilar), too mechanical e. Punctuation – courts care a lot about this f. And v. Or, May v. Shall i. Look for context ii. There is some confusion (Boolean logic issues) iii. Congress doesn’t always use constructions in way they really mean g. Whole Act Rule i. Interpret provision in context (phrase, sentence, statute, code) ii. Questions: (a) What is statute about (subject)? (b) What was purpose of statute? iii. Words in same Act will be used in same way iv. Objection – Congress isn’t really this precise – end up w/ exceptions that really aren’t needed v. Descriptive – Congress isn’t careful, so we can’t text parse this closely vi. Normative – Congress is stuck w/ language – we’ll interpret it the way you wrote it vii. Intermediate – hold their feet to the fire, but not too mechanically viii. Sweet Home (p. 836) (a) Secretary defines ―harm‖ under ESA to include habitat destruction – is this ok? (b) Majority (Stevens) – yes (1) Definition (i) Harm = to cause hurt or damage (ii) Can harm a species indirectly (iii) If harm is only direct harm, you wouldn’t need the word (surplusage) (iv) Must include some notion of indirect harm to have ―harm‖ mean anything (2) Purpose – save endangered species at any cost Flusche 12 of 14 (3) Surplusage – permitting process only makes sense if harm includes habitat destruction (4) Leg. history – committee reports = broadest possible reading of ―take‖ (c) Dissent – no (1) Definition (i) Harm must make sense in light of ―take‖ = reducing to human control (ii) Noscitur a sociis – list of words are a class (action directed against animal) (iii) Harm can mean other things – cut down tree of animal, shave it, etc (iv) Whole Act – prohibitions in 1538 are different stages of reducing animal to control (2) Surplusage – other ways to incidentally ―take‖ animals (fishing) (3) Expressio unius (i) 1536 applies to agencies only – explicitly references habitat (ii) 1538 – private parties – habitat is inferential (4) Penalty (i) $500 per instance is extreme for habitat (ii) No forfeiture for land developing equipment 2. Substantive (background values in the law) a. Lenity for Criminal Cases i. When 2 possible interpretations of penal statute, choose most lenient, unless otherwise directed ii. Justifications: (a) Requirement of notice (b) Avoid giving too much discretion to prosecutors (c) Might want to counteract Congress’ temptation to over criminalize (d) Commitment on part of courts against interstitial CL making (e) Ct wants to err on side of lenity – easier for Congress to make law harsher iii. Last ditch effort in cases of ambiguity iv. (Muscarello, p. 854 – tougher sentence if gun ―used or carried‖ during drug deal) b. Interpretation to Avoid Constitutional Problems i. Saving Canon – avoid unconstitutionality of statute (a) About congressional intent – X is clearly unconstitutional, so Congress meant Y (b) Given choice of statute being struck down or reinterpreted in a different way, Congress would want it to have some effect (c) (Lowe, p. 884 – newsletter publishers fall under exception of publishers, since otherwise would make law unconstitutional now, but wouldn’t have been at passage) ii. Avoidance Canon – avoid even a question of unconstitutionality (a) Can the Ct legitimately avoid the edges of Const. questions? (1) Maybe Ct should avoid Const. questions – Separation of Powers (2) Of course, Ct should handle Const. questions that come squarely before it (b) Congress has opportunity for correction – but it’s busy! (c) (Catholic Bishop, p. 874 – can’t include religious schools as ―employer‖ w/out being entangled in religious issues) (d) Criticisms (1) Ct is creating quasi-Const. law – making Const. law by avoiding questions (2) Ct is abrogating responsibility by avoiding Const. rulings (3) Quasi-Const. rulings may increase tension btw branches, instead of smoothing (4) Potentially aggrandizes the power of the Ct (5) Ruling has more to do w/ preferred statutory interpretation than it does Const. issues c. Retroactivity of Statutes i. Framework (a) Judicial rulings – generally retroactive (b) Statutes – presumptively prospective (1) Limits on retroactivity: ex post facto, contract, takings, DP Flusche 13 of 14 ii. Landgraf (p. 642) (a) Does § 102 apply to actions before Act was passed? (b) § 402(a) – except as otherwise provided, Act takes effect upon enactment (1) This just says statute is raised to life on X date (2) P argues – this tells us something more (i) 402(b) – Act doesn’t apply to particular pending cases  Surplusage – must mean that the rest of the act does apply to pending cases  BUT really just need some sections of statute to apply to pending cases (ii) 109(c) – amendments don’t apply w/ respect to conduct before Act  Expressio unius – these are the only exceptions  This implies something about broad meaning of statute – retroactive (c) Court’s response – Congress couldn’t agree, left it to Ct to figure out retroactivity (d) Presumption – against retroactivity, unless Congress is clear in intention to be retroactive (1) Test to trigger presumption – whether new legal consequences to events already completed (i) Primary rules – govern conduct in the world (ii) Secondary rules – govern how we treat conduct in the world (procedural) (2) What kind of canon? (i) Descriptive – background notion that people should be able to depend upon stable law (ii) Substantive – we think Congress cares about having stable law (e) Scalia’s rule – look to activity being regulated – has it happened before/after Act? iii. Rivers (p. 655) (a) Ct overruled precedent, then Congress passed Act reversing that (b) Question is whether Act is restoring the old law OR creating a new policy iv. Lindh (p. 658) (a) Q – Do changes in habeas corpus procedures apply to pending cases? (b) Ct’s test – ―expressly‖, but allows canons to prove this – then applies Landgraf presumption (c) Not consistent w/ Landgraf v. TEST (from 10th Cir) (a) Is there express intention for retroactivity on face of statute? (b) Using ordinary tools of construction, do we have better idea of what Congress intended? (c) Presumption against retroactivity – look for clear stmt (1) Primary v. secondary (2) OR when relevant conduct occurred d. Federalism i. Where provision, if applied, will infringe upon fed & state relationship, be sure Congress really meant that ii. Descriptive – we think Congress would be very careful about upsetting federalism balance iii. Normative – if Congress didn’t think about it, they should’ve (avoidance, encourage deliberation) iv. If concerned whether Congress thought about it, be concerned about leg. history v. (Gregory, p. 889 – MO Const. required state judges to retire at 70 – ADEA has exception to protect federalism) 3. Canons to Protect Coherence of Law a. Common Law i. If statute has CL background, can either be codifying or changing CL (a) Changing – read statute as broadly as intended to be (b) Codifying – statute should displace as little of CL as possible ii. When Congress borrows exact CL term of art, Ct reads in cluster of ideas, but if language is only similar, Ct won’t import CL ideas iii. (Morissette, s p. 99 – knowingly convert – CL required mens rea – Congress is trying to close all loopholes) iv. Look at what legislature thinks it’s doing by codifying: freezing law OR saying what law is now Flusche 14 of 14 b. Rule Against Implied Repeals i. New statute abrogates old one – implied repeal – but this assumes the laws conflict ii. Repeals by implication are disfavored – ct shouldn’t be too quick to assume that statutes conflict (a) If old rule is established & important, don’t change merely by inadvertent use of broad reasons (b) But if reason for old rule is unclear or unknown, make new statute mean what it means iii. Criticism: (a) Current statutes represent current policy (b) Nobody remembers the old statutes (c) New statute now looks like Swiss cheese – holes from old statutes (d) Conflicts w/ another canon – latest statute trumps (but specific trumps general) iv. (Morton, p. 1054 – Congress didn’t intend EEO Act to repeal 1934 Act: original Title VII exempted Indian preferences, Congress enacted two new Indian preference laws) v. Real choice = policy coherence v. language coherence (a) (Casey, p. 767 – do attorney’s fees include expert Ws under § 1988? – Congress sometimes explicitly listed expert W fees, and it didn’t here, so not included) c. Similar Statute – In Pari Materia i. Borrowed language statutes – should statute be construed as if Congress borrowed judicial interpretation as well as language? ii. (Lorillard, p. 1043 – ADEA enforced in accordance w/ sections of FLSA, which had been interpreted to say no jury trial, but then reversed) D. Debunking & Defending Canons 1. The canons matter – look for one that will be the tiebreaker, anticipate opposite canon, explain it away 2. Llewellyn – canons are internally contradictory – each one has an opposite a. BUT judicial opinions are always apologetic 3. What do we think about this? a. Some parries are kind-of exceptions to canons (Scalia) b. Canons depend on context, which varies, so of course you have point, counter-point (Hart & Sacks) c. They assume legislative omniscience, but it’s really sausage making (Posner) 4. Really rules v. standards question a. Could say, just decide what is reasonable; OR, have rules to govern decisions b. Posner – prefers standards over rules, rejects rigidity c. If you buy the thrust / parry, context, etc, arguments – might be better to have rules d. Canon can be a way of holding judiciary to the fire E. Congressional Directions for Interpretation 1. Problem – one Congress trying to bind future Congress 2. Default rule – statute 1 DOES come back to life (2 repeals 1, 3 repeals 2 – 1 revived) 3. USC § 108 – says that statute 1 does NOT come back to life a. Seems ok as a default rule b. But what if statute 3 implies enough that tools of construction would lead ct to revive statute 1? 4. Issue – later law always trumps earlier law F. Severability 1. If ct finds one § unconst., should it excise that §, or strike down entire statute? 2. Congress can direct what to do – severability clause OR anti-severability clause 3. Severability clause creates presumption that Congress wanted rest of statute to stand 4. Rule – ask whether Congress would’ve enacted remainder of statute, if it hadn’t done unconst. part 5. Test – unconst. provision must be severed, unless statute created in its absence is leg. that Congress wouldn’t have enacted 6. BUT whatever is left over has to be fully operational 7. Ex: leg. veto provision in EPP – ct looked at purpose, found it to be Congressional oversight, which wasn’t mentioned in leg. history – § severed (Brock, s p. 114)