Legislation
(Fall 2013 / Textbook: Eskridge, Cases and Materials on Legislation (4 th ed. 2007))
I. INTRODUCTION; MODELS OF THE LEGISLATIVE PROCESS
How a bill really becomes a law
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Introduction of bills. Only legislators can introduce bills, but the president is often the person who proposes or drafts
much of the legislation considered by the legislature. Private groups also present draft bills to members of the legislature
or advise them about amendments to bills proposed by the executive.
Committee consideration. Bills are then referred to standing committees having jurisdiction over its subject matter. The
vast majority of bills referred to committees never emerge for consideration by the full body. If the chair refuses to
schedule hearings for a bill or refer the bill to subcommittee, or refers the bill to a hostile subcommittee, the bill will
usually die. For those bills that are considered, the committee can iron out difficulties and build a consensus in favor of the
bill. Once a committee marks up the bill to its satisfaction and votes to send it to the full body, the committee staff drafts a
report on the bill that will be circulated to the other legislators. Committee reports set forth the procedural and
substantive background of the reported bill, the exact language of the bill, and a section-by-section analysis of the bill.
Committee reports are frequently the only documents that most legislators and their staffs read before a vote is taken on
the bill.
Scheduling legislative consideration. Bills reported by committee are placed on a calendar of the legislative chamber.
Floor consideration: Debate, Amendment, Voting. Once a bill has been advanced for consideration by the full legislative
chamber, the legislators routinely vote “yes,” and the bill is passed. Floor debates don’t often alter votes; members use it to
demonstrate their competence in a certain area of policy, to gain publicity for their positions, and to attempt to pack the
legislative history. This is also the time when amendments are proposed and considered. There are:
a. perfecting amendments (changing the text of the bill by striking language, inserting language, or both);
b. saving amendments (a perfecting amendment that attracts more support for the bill);
c. riders (amendments seeking to add irrelevant matter to the bill);
d. hostile amendments;
e. killer amendments (amendments designed to antagonize the bill’s more moderate supporters);
f. amendments in the nature of a substitute (amendments that seek to replace the entire bill, striking all after the
enacting clause and inserting entirely new text); and
g. substitute amendment (offered when another amendment is pending, and it changes part of the proposed
amendment)
Voting may be done by voice vote, division of the house, tellers, and rolls calls.
The Reconciliation Process: Conference Committee. If the version of the bill passed by the US House differs from that
passed by the US Senate, then a conference committee is formed to come to an agreement. The conference committee
members come from both chambers.
Presentment for the presidential or gubernatoral signature. Once an enrolled bill is presented to the President, he has ten
days to sign it or veto it. If the President vetoes the bill, it is returned to Congress, where the veto can be overridden by
two-thirds of those voting in each chamber. If no action is taken within the constitutional ten-day period, the bill also
becomes law w/o the President’s signature.
Griggs v. Duke Power Company (4th Cir. 1970), p 42
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Facts:
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The Duke Power Company’s electrical generating plant at Dan River Stream Station in Draper, North Carolina had
95 employees in 1966, including 14 African Americans. Employees were divided into five departments: (1)
operations, (2) maintenance, (3) laboratory and testing, (4) coal handling, and (5) labor (janitorial services). The
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Labor Department was the lowest paid. Prior to 1955, the company’s policy was to limit African American
workers to the Labor Department.
In 1955, the company began requiring that every employee, except those in the Labor Department, had to have a
high school diploma. The company also made the diploma a prerequisite for promotion of workers from the Labor
Department into any of the others.
In 1965, Title VII of the Civil Rights Act went into effect. Under § 703(a), it is unlawful to “discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of employment” or to “limit,
segregate, or classify his employees . . . in any way which would deprive . . . any individual of employment
opportunities” because of the individual’s race, color, religion, sex, or national origin.
In 1965, the company instituted a new policy where employees could be promoted out of the Labor Department
by passing one of two high school equivalency tests – either the Wonderlic general intelligence test or the Bennett
Mechanical AA general mechanical test.
The plaintiffs are African American workers at Duke Power Company. Six of the plaintiffs had no high school
diploma and were hired in Labor before 1955. Four plaintiffs had no high school diplomas but were hired after
the company instituted the diploma requirement in 1955. The plaintiffs sought an injunction requiring Duke to
discontinue its diploma and testing requirements for promotion.
Duke’s defenses: (1) the high school education requirement would give it some reasonable assurance that its
employees could advance into supervisory positions, so it’s not discrimination on the basis of race; and (2) the
educational and testing requirements had a legitimate business purpose and were professional developed ability
test, as sanctioned under § 703(h) of the Act.
Plaintiff’s argument: the tests must be job-related to be valid under § 703(h).
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Statute:
o Under § 703(a) of the Civil Rights Act, it was illegal to discriminate on the basis of race.
o Under § 703(e), employers can discriminate on the basis of religion, sex, or national origin where that
characteristic is a “bona fide occupational qualification.” Discrimination on the basis of race can never be a bona
fide occupational qualification.
o Under § 703(h), employers can “apply different standards of compensation, or different terms, conditions, or
privileges of employment pursuant to a bona fide seniority or merit system” provided that such differences are
not the result of an intention to discriminate because of “race, color, religion, sex or national origin.” The
provision also allows for employers to act upon any “professionally developed ability test provided that such test,
its administration or action upon the results is not designed, intended, or used to discriminate because of race,
color, religion, sex or national origin.”
Held: Judge Boreman held that Duke’s diploma and testing requirements were not discriminatory within the meaning of
Title VII. Diploma requirement is acceptable because it gave company reasonable assurance that its employees could
advance into supervisory positions. The testing requirement was acceptable because professionally developed ability tests
can be used as long they’re professionally developed, they do not have to be job-related.
o Language of the statute
 The legislation must be specifically geared toward racial discrimination, as the statute disallows race to
ever be a “bona fide occupational qualification” under § 703(e)
 “Professionally developed” seems to be the equivalent of “bona fide”
 The plaintiffs should have seized on the difference in safe harbor provisions in § 703(h). Should have
pointed out that the tests were being “used” to discriminate, and that “used” meant something different
than “designed” and “intended.”
o Legislative history
 The plaintiffs’ interpretation that the tests have to be job-related is “clearly contrary to compelling
legislative history”
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In the Congressional record, Senator Tower, who proposed the original amendment, stated that the
amendment was meant to protect the system “whereby employers give general ability and intelligence
tests to determine the trainability of prospective employees.” The statement was made in response to an
Illinois Fair Employment Practices Commission case where the hearing examiner found that a general
intelligence test had denied the applicant an equal employment opportunity because African Americans
were a culturally disadvantaged group.
Fallacy of Salience
 The tendency to think things are relevant to the case but that aren’t really focused on that issue at all
 The fallacy of salience is relevant to the Griggs case in that Senator Tower’s comments are arguably not on point. The
comments could be read to support Judge Boreman’s interpretation but it could also be the case Senator Tower assumes
the tests are going to be job-related. Indeed, he doesn’t mention whether the tests should be job-related one way or the
other.
Pluralism and Its Critics
Descriptive vs. normative theories
 Descriptive – theory that purports to describe how the legislative process does in fact work
 Normative – one that makes judgments about what’s good and what’s bad.
Elitism
 C. Wright Mills = the ultimate describer of elitism. Wrote a book called The Power Elite.
 Describes the elites as having more than their fair share of power
 Rich people and business had influence in our political process disproportionate to their numbers in the electorate and
this was a bad thing
Pluralism
 Robert Dahl = captain of the pluralists
 Pluralists observe that political power is evenly distributed. It’s not excessively concentrated in the hands of the upper
classes, and the balance of group pressure is the existing state of society. Pluralist theory was in part a response to a
criticism set forth by communists that affluent people control political power. Pluralists rejected that critique. Pluralists
see the role of legislature as ratifying agreements and adjustments worked out among competing groups.
 Some pluralists thought the fact that power was evenly distributed was normatively positive and should be celebrated.
 Other pluralists viewed the even distribution of power as normatively negative, and those people came to be known as
public choice theorists.
 Critique of the pluralist model is posed by the elitist model and its argument that certain interest groups are overrepresented.
Public Choice (legislation is a balance of supply and demand; rent-seekers demand legislation, and legislators supply it)
 Public choice grew out of the pluralism model. Public choice theorists portray legislative action as the mechanical
operation of organized interest groups. Interest groups demand legislation, and legislators supply it to get re-elected. As a
result, political leadership makes very little difference in the outcome of legislation. Under public choice theory, legislative
outcomes don’t advance the public interest or alternatively there is no such thing as the public interest. Public choice
theory also suggests that there is very little opportunity for deliberation in a legislative process to play a meaningful role
in the shaping of legislation or the reaching of public values. In effect, the legislative process is a microeconomic system in
which actual political choices are determined by the efforts and individuals and groups to further their own interests,
efforts that have been labeled “rent-seeking.” The basic assumption is that taxes, subsidies, regulations, and other political
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instruments are used to raise the welfare of more influential pressure groups. In effect, concentrated interests (such as
auto makers’ interest in defeating the Clean Air Act) defeat diffuse interests (such as the public’s interest in having clean
air).
o Public choice theorists are not going to be in favor of clear statement rules. They would say that what often gets a
deal enacted is opaqueness (“We can get a majority if we don’t spell out what we’re doing.”).
o Public choice theorists don’t necessarily think direct democracy is a better alternative to legislatures.
When it comes to omissions in a statute, a public choice theorist would discourage a judge from seeking out legislative
purpose or intent to fill in the omission, because there is no such thing as legislative purpose or intent. As a result, courts
should not fill in gaps in a statute.
When it comes to mistakes in a statute, a public choice theorist would argue that it would be impossible to recognize that
there even was a mistake. The legislation was simply the product of a deal struck between competing interest groups.
Thus, mistakes cannot be fixed.
Proper role for a judge under a public choice view:
o 1) Passive version: Job of judge is to identify outlines of deal made between competing groups, and enforce the
deal. This is the more passive version.
o 2) Active version: interest groups are seeking benefits for themselves, not for overall benefit of society. So judge
ought to have a bias in favor of interpreting statutes narrowly to look for the rent seeking provisions and construe
them as narrowly as possible. If we’re not sure if it’s bad, narrow it.
o 3) Extreme active version: courts ought to refuse to enforce statutes that legislate in the interest of interests
groups. Find a way to strike it down.
Critique of public choice model:
o The public choice model tends to ignore the presidency. The president has an incentive to try to represent a
majority view or at least a view that can command a majority of the electoral college.
o The public choice model doesn’t account for the enactment of certain types of legislation. For example, under the
public choice model, one would anticipate civil rights and environmental legislation would have a hard time
getting enacted, but they do get enacted from time to time. Sometimes ideologies do influence legislation, which is
something that public choice theorists don’t account for.
o It also doesn’t account for the role of fortuity; sometimes legislation gets enacted for reasons other than interest
groups. For example, if John F. Kennedy had not been assassinated, it’s unlikely the Civil Rights Act of 1964 would
have been enacted. Lyndon B. Johnson was talented at the legislative process, but he would not have had the
opportunity to use those skills had JFK not been assassinated.
o The public choice model (and also the interest group model of pluralism) better explains the status quo than
changes in legislation. People are more easily organized to oppose a change in legislation and maintain the status
quo than they are organized to enact change.
o The public choice model is simplistic in that it assumes people fall into only one interest group. In fact, people
exist in multiple communities.
Civic Republicanism
 Civic republicans believe that the public interest can be identified and that deliberation is capable of producing legislation
that serves the public interest. It emphasizes that legislative politics can and should seek to foster a deliberative process
that seeks to slow down and improve legislation. Pushes legislators to argue and deliberate before making law, b/c such
would tend to create better laws that will help the public. In contrast, public choice theorists hypothesize that people’s
interests are fixed and they push those interests on legislators.
 Civic republicans are going to like clear statement rules or any judicial rule that requires particular clarity b/c that’s going
to force lawmakers to deliberate.
 They hate direct democracy.
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Ways a CR judge might interpret a statute:
o (1) Judge might assume the best b/c he assumes that legislators did their job and deliberated and served public
interest. More passive.
o (2) Maybe would say it is his job to figure out if Congress did good and, based on this answer, choose to interpret
statute narrowly or broadly depending on answer. These judges see themselves as fixing the process (if, wasn’t
done well at first). Of course, question arises as to whether judges are competent to do this. More active role.
o (3) Middle of the road view. Clear statement rule. Unless the legislative deliberations show either in the statutory
language or in the legislative history, I’m not going there unless it’s clear.
Alternative Perspectives
Arrow’s Theorem
 Arrow’s work suggests that perhaps, rather than viewing the outcomes of legislative process as a deal that is dictated by
the structure of interest groups, one should view the outcomes of legislative processes as essentially arbitrary or random.
 When there are multiple issues that the legislature is considering and multiple members, and people have different
priorities, then the outcome of the process is actually likely to depend not on who has majority control, but the order in
which issues are presented for consideration and control of the agenda that structures that sequencing. In sum, agenda
control may yield results in a legislative process that are non-majoritarian.
 Under Arrow’s Theorem, a judge would be less concerned with hewing the line of the deal that was struck by interest
groups. Instead, he might take one of two approaches:
o (1) Make an independent determination of whether statute is product of rent seeking. If so, construe statutes as
narrowly as possible.
o (2) Determine whether the outcome was dictated by arbitrary agenda control factors as opposed to majoritarian
preferences
Institutionalist Theories
 Institutional theorists emphasize the importance of institutional structures to constrain and shape behavior. It sees laws
as the product of interaction among various institutions and as a reflection of the desires of House, Senate, President, and
agency. Institutionalism assumes that political outcomes are dependent on the actions of several decisionmakers, who
sometimes act simultaneously and sometimes consecutively. It also assumes that legislators anticipate the judicial
response as they draft and produce committee reports and floor debates.
 Under the institutionalist view, what constrains a court is what they can get away with without having decisions
overridden. So where a present Congress is more liberal or more progressive than an enacting Congress, the court may
take a “dynamic” approach to statutory interpretation and conclude that the meaning of a statute can change over time. If
the present Congress is perhaps more conservative than the enacting Congress, the court may choose to take a “static”
approach to avoid being overridden by Congress. Under the “static” approach, a court will say that a statute has one
meaning and that meaning does not change over time.
Vetogates
 The congressional process creates “gates” that a bill must pass through and where it can be killed rather than moved along
to the next stage of the process. The existence of vetogates means that determined minorities can often kill legislation or,
in the alternative, maim legislation they cannot kill. Normatively, the existence of vetogates may tell statutory interpreters
(courts, administrative agencies, lawyers advising clients) to whom they should pay attention if they consult legislative
history. Legislative statements are most important when they reflect assurances by the enacting coalition, especially
promises to or by gatekeepers, to enable the bill to pass through a vetogate. Thus committee reports are conventionally
referred to, both because they reflect the understanding of the key gatekeepers (the committee), but also because they are
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important representations by the floor managers of the bill (usually members of the committee) to attract votes on the
floor.
In Griggs, the court suggested that the Tower amendment was a key vetogate juncture. Absent the Tower amendment, the
statute might not have passed because of concern over the Motorola decision.
Examples of vetogates:
o Constitutional prohibitions:
 Art. I, Sec. 7: bicameralism and presentment
 Need 2/3 vote to override presidential veto and to expel a member from House.
o Formal rules in each house:
 Some rules impose supermajority voting requirements on certain congressional actions.
o Informal norms and practices (folkways of Congress)
 Seniority norms.
 Committee structure
United Steel Workers of America v. Weber (US 1979), p 88
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Facts:
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In a bargaining agreement between the labor union United Steelworkers of America and Kaiser Aluminum &
Chemical Corp., Kaiser agreed to instate an affirmative action plan designed to eliminate conspicuous racial
imbalances in Kaiser’s then almost exclusively white craft-work forces. Black craft-hiring goals were set for each
Kaiser plant equal to the percentage of blacks in the respective local labor forces. To enable plants to meet these
goals, on-the-job training programs were established to teach unskilled production workers, black and white, the
skills necessary to become craftworkers. Selection of craft trainees was made on the basis of seniority, with the
proviso that at least 50% of the new trainees were to be black until the percentage of black skilled craftworkers at
the plant approximated the percentage of blacks in the local labor force. Plaintiffs are white production workers
whose bids for admission were rejected in favor of black workers who had less seniority. Plaintiffs claim the
affirmative action program violates §§ 703(a) and (d) of Title VII of the Civil Rights Act of 1964.
Statute:
o § 703(a) makes it unlawful for an employer to fail or refuse to hire, or otherwise to discriminate against any
individual with respect to compensation, terms, conditions, or privileges of employment, because of such
individual’s race.
o § 703(d) makes it unlawful for any employer, labor organization, or on-the-job training programs to discriminate
against any individual because of his race.
o § 703(i) allows businesses on or near Indian reservations to ignore the rest of § 703 with respect to hiring or
promoting Native Americans.
o § 703(j) says that the statute should not be interpreted to require any employer to grant preferential treatment to
any individual because of race.
o § 706(g) says that to remedy an unlawful employment practice, a court may enjoin the practice and order “such
affirmative action as may be appropriate, which may include reinstatement or hiring of employees, with or
without back pay.” By affirmative action, Congress meant injunctive relief.
Held: Voluntary, race-conscious affirmative action plans are legal. Congress can’t force you to implement a plan, but if you
do it voluntarily, then that’s fine.
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Justice Brennan (majority):
o Touchstone = spirit/purpose of the statute.
 Justice Brennan starts by saying that “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.” Literal language favors
the plaintiff, but the goal here is to find out what’s within the spirit of the statute.
o Tool = legislative history. no preliminary inquiry as to whether text is ambiguous.
 By looking at legislative history, Brennan concludes that Congress’ primary concern was integrating
African Americans into mainstream American society by creating employment opportunities. So
affirmative action plans are one way to accomplish that goal.
o Based on § 703(j), employers are permitted but not required to impose affirmative action plans. Congress didn’t
say anything about prohibiting affirmative action if that’s what the employer chose to do.
 Counter factual text argument  if Congress had meant to prohibit voluntary affirmative action plans, it
would have said “permit” instead of “require” in § 703(j).
 Expressio unio argument  so when it says that the court shall not “require” an employer to grant
preferential treatment, it’s implicitly excluding the alternative (that courts shall not permit the
preferential treatment).
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Justice Rehnquist (dissenting):
o Touchstone = intent (in this case, general intent/imaginative reconstruction). Tool = statutory text and legislative
history (but only when text is ambiguous).
 You only look to spirit of the statute if the text is ambiguous. According to Rehnquist, the text is not
ambiguous. § 703(a) makes it unlawful to discriminate.
o Even when you look at the spirit of the statute, the intent of Congress was to achieve equality. This is a higher
level of generality than the level of generality that Rehnquist looks at.
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Justice Blackmun (concurring):
o Touchstone = best answer
 Judicial activism approach -- if we can’t find the solution plainly, then we have to resort to pragmatic
considerations
o His approach  if employer or union has committed “arguable violation” of Title VII they should be free to make
reasonable response to that violation
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Public choice approach: There’s no underlying purpose to the legislation, so don’t even bother seeking it out.
Textualist approach: Even if there is an underlying purpose, it should not dictate the interpretation.
Civic republicans: Statute doesn’t allow you to conclude that Congress deliberated on and reached a conclusion about this.
What should judge do then?
o Active approach  Do the deliberation yourself. Find a way to compromise competing values.
o Passive approach  adopt the most outrageous approach to rub it in Congress’ face and make them consider the
issue
Johnson v Transportation Agency, Santa Clara County (US 1987) p 104
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Facts: The Transportation Agency of Santa Clara County, California promulgated an affirmative action plan to remedy
historic patterns of discrimination against women and minorities in some job categories. The plan provided that, in
making promotions to positions within a traditionally segregated job classification in which women had been significantly
underrepresented, the Agency was authorized to consider as one factor the sex of the qualified applicant. Pursuant to the
Plan, the Agency promoted Diane Joyce to the position of road dispatcher in the Agency’s Roads Division. One of the
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applicants passed over was Paul Johnson, who had a slightly higher score than Joyce based upon his paper credentials and
an oral interview. Johnson sued, alleging a violation of Title VII of the Civil Rights Act of 1964.
o Differences from Weber  sex discrimination as opposed to racial discrimination, defendant is public employer
(so suit could have been brought alternatively under the Equal Protection Clause)
Held: Court finds for the defendant. The affirmative action plan is fine.
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Justice Brennan (majority):
o Inaction = approval. If Congress did not like the outcome in Weber, it could have amended the statute. Because
Congress acquiesced in Weber, it is then most reasonable to conclude that the affirmative action plan in this
instance is lawful.
 The Weber decision was widely-publicized, so surely Congress was aware of the decision. Not one
legislator even proposed a bill to overrule Weber. When Congress disagreed with the Court’s ruling in
General Electric v. Gilbert, it made that clear by enacting the Pregnancy Discrimination Act of 1978.
o Brennan considers the relationship b/w the Court and Congress to be a dynamic one, in which they are
communicating back and forth with each other through decisions and legislation.
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Justice Stevens (concurring):
o Justice Stevens concludes that stare decisis compels him to adhere to the construction of the legislation that the
court adopted in Weber because there is an undoubted public interest in “stability and orderly development of
the law”
 In the context where people plan based around the court’s interpretation of the statute, reliance interests
are very important. However, the court need not be so strongly persuaded by stare decisis where reliance
is less of an issue, e.g. torts
o Strength of stare decisis (most strong to least strong):
 Statutory interpretation
 Common law
 Constitutional law (process of amending the Constitution is so hard that Congressional acquiescence does
not tell you very much)
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Justice Scalia (dissenting):
o Congressional acquiescence does not indicate approval. Congress makes law through bicameralism and
presentment, and that’s it. Plus, the framers intended to make it hard to enact legislation, so inaction doesn’t
necessarily mean approval.
 There are multiple reasons why Congress might not have overruled a case besides to indicate its
approval, such as (1) it might not be aware of the case, and (2) Congress is indifferent to the status quo
o The goal should be to give effect to the intent of the enacting Congress, not the present Congress. Acquiescence by
the present Congress does not mean the enacting Congress would have approved. This is the static approach to
statutory interpretation.
o Unbundling argument: when the enacting Congress considered this provision on affirmative action, people who
might object might have let it slide to get other provisions that they were in favor of approved. It’s a different
question altogether then to ask whether the current Congress approves of the affirmative action provision in
isolation.
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Justice O’Connor (concurring):
o Justice O’Connor advocates horizontal consistency, and argues that legality should be assessed in the same way
that it would be under the Equal Protection Clause.
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II. LEGISPRUDENCE: THE ROLE OF STATUTES IN THE LAW
Stare decisis in statutory interpretation
Evolution of the schools of thought on the relationship b/w courts and legislatures:
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Common law formalism. Under common law formalism, the belief was that judges “find” law; they don’t make it. Law
exists, just like scientific principles of nature. Common law formalists were very strongly in favor of stare decisis. The idea
was that if you figured out how God meant the universe to be ordered, then it would be very arrogant to go against the
wishes of God. Common law formalists did not believe in the legislative supremacy. If anything, statutes were arbitrary
interferences with the divine plan, as figured out by common law judges. Thus, the tendency would be to construe statutes
narrowly and read statutes as controlling only those things within the four corners of the statute and nothing else.
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Realism. Realists rejected the idea that law was made by God. Law is not a brooding omnipresence in the sky. Rather, men
made law. This undermined the argument in favor of stare decisis; if God does not make law, then it’s not going against
God to change law. What is more important than being consistent is being right. So legal realists favored horizontal
consistency. They also said that there’s no reason for construing statutes narrowly.
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Legal process. The legal process school of thought was championed by Hart & Sachs. Began in 1940s, but reached its
pinnacle in 1950s and 1960s. Found value in both vertical consistency and horizontal consistency. Vertical consistency is
important to protect reliance interests while horizontal consistency is important to get things right. Legal process thinkers
thought there were many virtues to legislatures, including their ability to change the law prospectively and give people
fair warning. Legal process theorists advocated “super strong stare decisis” in the case of statutory interpretation because
they thought legislatures were the best body to change the law.
Flood v. Kuhn (US 1972), p 632
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Facts: Curt Flood was a star center fielder with the St. Louis Cardinals. Under the “reserve caluse” in his contract he was
required to play for the Cardinals, the Cardinals could unilaterally assign his contract to another team, and the Cardinals
could annual renew that contract so long as the minimum salary was provided. In October 1969, the Cardinals traded
Flood to the Philadelphia Phillies. Flood refuses to report to the Phillies and asked to be allowed to negotiate a contract
with the team of his choice. Bowie Kuhn, Commissioner of Baseball, refused. Flood then sued claiming that the reserve
clause violated the antitrust laws b/c it prevented him from contracting with the team of his choice. A previous decision,
Federal Baseball Club v. National League (US 1922), the court held that baseball was not subject to the federal antitrust
laws. Federal Baseball Club was affirmed in Toolson v. New York Yankees Inc. Other professional sports, including football,
boxing, basketball, hockey, and golf were not exempt from the antitrust laws.
Held: the Court is bound by stare decisis and concludes that professional baseball is exempt from the antitrust laws and
thus the reserve clause stands.
Justice Blackmun (majority): Stare decisis should be extra strong in the case of statutory interpretation, because if
Congress disagreed with the conclusion reached by the Court previously, it would have overruled the case with
legislation.
o Ratification by inaction. Federal Baseball Club was decided 50 years before this case, and Congress has not
overruled it.
o A reluctance to overrule Federal Baseball with consequent retroactive effect. If the court overruled Federal
Baseball, for every contract that had been in effect, the reserve clause would be rendered illegal.
o If the law needs to change, Congress should be the one to change it.
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Justice Douglas (dissent):
o The majority is reading too much into congressional inaction. If congressional inaction is to be the guide, then
court should observe that Congress has refused to enact bills broadly exempting professional sports from
antitrust regulation.
o In 1922, the Court had a narrow, parochial view of commerce, and that’s why it decided baseball was not an
instrument of interstate commerce. But since that time, the whole concept of commerce has changed.
o There’s no reason to distinguish baseball from other professional sports, and there would even be a different
outcome under the Equal Protection Clause had Congress written a statute exempting baseball from the antitrust
laws. Because there’s no principle the court would be adhering to, the court should value horizontal consistency
over vertical consistency.
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Justice Marshall (dissent):
o Baseball players have been singled out. It’s hard for such a small interest group to band together and lobby for
change.
Patterson v. McLean Credit Union (US 1989), p 646
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Court underplays the extent to which it is backing off Flood. Under the Patterson test, the court would have overruled
Federal Baseball in Flood.
Facts: Brenda Patterson brought a lawsuit against her former employer for workplace racial harassment. She based her
claim on 42 USC § 1981, which prohibits discrimination on the basis of race in making and enforcement of contracts.
Runyon v. McCrary had interpreted the statute to afford a remedy against private schools excluding children on the basis of
race, so the question became whether Runyon should be overruled.
Held: the Court declined to overrule Runyon, but also declined to extend it to workplace harassment claims. The majority
opinion adopted the position that statutory precedents are subject to normal (but not super strong) stare decisis rules
(although more strong than stare decisis as applied to constitutional precedents). A statutory precedent will be
overruled when there is a special justification, such as (1) an intervening inconsistent change in the law; (2) the
precedent created inherent confusion created by an unworkable decision; and (3) the precedent is outdated and
inconsistent with the sense of justice or with social welfare.
Arguments for stare decisis
 Value of stability in the law – vertical consistency/coherence
 Protection of reliance interests, especially against retroactive change
 Ratification by legislative inaction, which suggests approval
 Procedural and substantive superiority of legislative change in law over judicial overruling; possibility of compromise and
transitional provisions in a legislative change (legislature is better at changing law)
Arguments against stare decisis
 Value of correctness
 Value of horizontal consistency/coherence – treating similar things similarly (e.g. football and baseball in Flood)
 A lack of reliance in some instances or lack of justifiable reliance
 Court’s ability to cushion against betrayal of reliance by limiting retroactivity of overruling (using selective [apply only to
the present case] or pure prospectivity)
 Critique of ratification by inaction argument
o System has predisposition to inaction (Madison’s argument)
10
Meaning of inaction indeterminate (Scalia’s argument in Johnson)
Inaction doesn’t measure intent of enacting Congress (as it arguably should)
Judicial decision unbundles issues that were considered together by the enacting Congress – thus, Congress’s
inaction responds to a different situation (or prospective deal) than the original legislation did
o Public choice theory explains that inaction in many cases does not reflect majority approval of the court’s
decision. There’s a bias towards inaction.
Inability to assure that Congress will address the need for change in the law
o
o
o

Pre-legal process approaches



Common law formalism. See above.
Civil law formalism. The idea was that the statutory code was supposed to be a comprehensive embodiment of distilled
rationality and that basically the code told you all you needed to know about the law and if it didn’t do so explicitly it told
you implicitly. Look for analogies and inferences and extrapolate from the language of the code to find a principal that
governs the case. This idea that codes are supremely rational and judicial judgments are secondary there are a few places
in American law where we see this approach. This is what Karl Llewellyn was thinking when he drafted UCC. The other
example of this in the Internal Revenue Code. Courts try to find comprehensiveness in the Tax Code.
Legal realism. See above.
Legal process approach, 1940 - 1973




See above.
Favored the idea that legislative law should be the outcome of a deliberative process.
In terms of judicial law making, judge could look to a statute for guidance about the controlling policies. If the legislature
decides to deal with a social problem through specific rules, it is expressing confidence that it has sufficient information to
solve the social problem. If the legislature is unsure of how to proceed, it will adopt a standard, essentially delegating
rulemaking responsibilities to courts, agencies, or private institutions. Even when a statute simply sets forth a policy or
objective, official discretion is usually limited by more specific statements of a policy or by an underlying “principle.”
Legal process was big on horizontal consistency in the law
Moragne v. States Marine Lines, Inc. (US 1970), p 601
 Crowning jewel of the legal process school of thought. Statutes can prescribe policy that is outside of their four
corners.
o But the policy to be drawn from the statute often involves a judgment call. The policy could be more
expansive than that expressed in the four corners of the statute (here, towards allowing wrongful death
damages), or could be seen as the deal that was struck and encompassing nothing more (here, towards
disallowing wrongful death damages for the tort of unseaworthiness in FL territorial waters).
 Also an example of favoring horizontal consistency in the law. The federal maritime law that governs in the
territorial waters of FL should be the same across occupational categories.
 Facts: Edward Moragne, a longshoreman, was killed while working aboard the vessel Palmetto State in Florida’s navigable
waters. His surviving spouse is suing the owner of the vessel for wrongful death, relying on theories of negligence and unseaworthiness. Unseaworthiness imposes strict liability. The controlling precedent, The Harrisburg, said that federal
maritime law does not afford a cause of action for wrongful death.
11
Florida wrongful
death statute
Negligence/territorial
seas
Moragne makes this
claim, but it is not the
one at issue in
Supreme Court
Jones Act
Covers only seamen,
not longshoremen
Death on the High
Seas Act
Federal maritime
common law
Doesn’t apply in
territorial waters
Florida wrongful
death statute covers
and that statute could
be applied by
admiralty court
Negligence/high seas
State law can’t
directly apply on the
high seas, but a
federal court, sitting
in admiralty would
“borrow” and apply
the state wrongful
death statute 
Covers only seamen,
not longshoremen
Allows wrongful
death action
DOHSA covers and
would be applied by
admiralty court
Unseaworthiness/territorial
seas
Wrongful death liability for
unseaworthiness is not
recognized in Florida, unlike
most states
No liability for
unseaworthiness; also
applies only to seamen
Doesn’t apply in territorial
waters
The Harrisburg  no.
Moragne  yes. Overruling
The Harrisburg.
Unseaworthiness/high
seas
Florida law can’t
directly apply on high
seas; if the admiralty
court borrows the
state wrongful death
statute, it creates no
unseaworthiness
liability
No liability for
unseaworthiness; also
applies only to seamen
Allows wrongful death
action
DOHSA covers and
would be applied by
admiralty court


Issue: should the Supreme Court overrule The Harrisburg?
Answer: Yes, the court decides to overrule The Harrisburg and hold that an action does lie under general maritime law for
death caused by violation of maritime duties.

Justice Harlan (majority):
o There’s no American justification for the rule. It’s an outdated principle of English common law that doesn’t have
an American justification. The particulars are that the English rule was based on felony-merger doctrine, which
had never applied in this country.
o Legislative developments that have occurred since The Harrisburg reflect a general principle that the country is in
favor of allowing recovery for wrongful death. In the United States, every state has enacted a wrongful death
statute. Congress has created actions for wrongful deaths of railroad employees, merchant seamen (Jones act),
and of persons on the high seas (Death on the High Seas Act). Congress has also, in the Federal Tort Claims Act,
made the United States subject to liability in certain circumstances for negligently caused wrongful death to the
same extent as a private person.
o Justice Harlan thinks the court should generalize from what the federal and state legislatures did do rather than
what they didn’t do (create wrongful death liability for the tort of unseaworthiness in Florida territorial waters)
because those legislatures were seeking to fix the problems they saw in front of them. He came to this conclusion
based on legislative history, which emphasized that the legislatures were focused on filling voids.
o The rationale behind stare decisis doesn’t apply here. The main point of stare decisis is to protect reliance
interests. In this case, ship owners already have a duty to provide a seaworthy vessel because of all the various
other laws that would impose liability should they not. So owners were not relying on The Harrisburg in a way
that deserved to be protected.
Law & Economics approach to Moragne
 A law and economics critic would say that the statute is just a deal. It covers what it covers and tells us nothing about what
it doesn’t cover.
12


Alternatively, maybe the deal was to enact the Death on the High Seas Act and go no further. So if that was the deal, the
court should respect the deal and not go beyond it.
Another version would be to view the statute as a rent-seeking change, and in response construe it as narrowly as
possible. Because strict liability is inefficient in most contexts, it should not be expanded to this context.
Critical legal studies approach to Moragne
 Would be critical of Moragne. Would see that the law is fundamentally incoherent and that there are no neutral principles
that would allow a judge to resolve the contradictions. There’s something that’s damaging about Moragne b/c it fools
people into thinking it’s an exercise in neutrality as opposed to exercise in raw judicial power.
New Legal Process theory approach to Moragne
 The values of the legal process school commit to reasoning, deliberation, adequate and fair procedure, skepticism about
retroactivity, belief in the values of institutional sentiment (protecting reliance interests). You want to try to come up with
interpretations that maximize as many of the values as you can.
Post-legal process approach
Guido Calabresi: A Common Law for the Age of Statutes, p 618



Argues that statutes ought to be treated more like judicial decisions like common law courts in considering whether they
should continue to command adherence when time passes and conditions change
So he advocates weakening stare decisis in the case of statutory interpretation but also retaining the ability to overrule
statutes that have become obsolete
Factors to consider in deciding whether to strike down statute as obsolete:
o Has the common law surrounding the statute so changed the statute no longer makes sense, or fits in? has the
constitutional terrain relevant to the statute changed?
o Have other statutes been passed within the state which indicate a shifting approach to the same, or a similar,
problem? Within other states?
o Has there been a sufficient accretion of scholarly criticism of the bases of the rule? Empirical studies
demonstrating the invalidity of its assumptions? Indications that the public values implicit in the statute have
changed?
o Age of the statute. The older the statute, the less likely the presumption of majoritarian support.
o Specifically oriented laws. If a statute was enacted in response to a crisis or some specific problem, it will age
more rapidly. The retentionist bias applies less strongly here. On the other hand, a systematic codification or
complex statutory scheme worked out over a period of years deserves greater deference.
o Constitutional doubts. Constitutional doubts about the statute create a revisionist bias. To the extent that a law
trenches on fundamental concerns and rights, there should be greater willingness to abandon it as its policies
fade.
Introducing retroactivity issues
Three approaches to retroactivity/prospectivity:
 Fully retroactive. A fully retroactive judicial decision establishes/changes the case law with respect to all cases that are
going to be decided thereafter no matter when the conduct that gave rise to the lawsuit occurred. All cases henceforth are
subject to this new rule even though the conduct that gave rise to the case occurred under the old precedent, if there was
one. A certain amount of retroactivity is always present in judicial law making.
o Creates due process concerns, as people might have relied on the old precedent
 Fully prospective. Only applies to cases where conduct occurs after this decision.
o Creates problems with case & controversy requirement. To simply say that the rule would be different in the
future, that’s dictum on which the parties don’t have concretely adverse interests.
13

Selective retroactivity. Plaintiff gets benefit of this new rule but everyone else doesn’t. We want to protect everyone else’s
reliance interests.
o Creates equal protection problems
Jawish v. Morlet (Municipal Court of Appeals for the District of Columbia 1952), p 663




When a statute strikes a statute is unconstitutional, and then overrules that decision, the statute does not have to
be re-enacted to take effect. In facts, the original case deeming the statute unconstitutional was never the law.
Facts: In 1918 Congress enacted a law fixing minimum wages for women and children in the District of Columbia. In 1923
the Supreme Court held the law unconstitutional in Adkins v. Children’s Hospital. In 1937 the Supreme Court in West Coast
Hotel Co. v. Parrish held a similar law of the State of Washington to be constitutional and expressly overruled the Adkins
case (reviving the minimum wage law). Congress never re-enacted the law but did enact amendments to it in 1938, 1941,
and 1944. Plaintiff is a female employee suing her employer to recover the difference b/w the wages she had been paid
and the minimum wage fixed under the minimum wage law for such employment.
Issue: What was the effect of Adkins and West Coast Hotel? Did Congress have to re-enact the statute before it enacted the
amendments or was it considered to be re-enacted simultaneously with West Coast Hotel?
Answer: West Coast Hotel revived the statute. It never disappeared off the statute books requiring Congress to re-enact it.
o The Adkins case was never the law. Note that if Adkins was never the law, then West Coast Hotel is being applied
retroactively.
o The statute didn’t disappear; the court was just barred from enforcing it for the period b/w Adkins and West
Coast Hotel.
Retroactivity and statutes
Limits on retroactive statutes
 Ex post facto clause; bill of attainder clause: apply to state and federal legislation; ex post facto applies only to criminal
penalties
 Contract clause (No law shall be made respecting an impairment of contracts): applies only to the state; some of its effects
have been at some times applied to the fed gov’t under the due process clause; whether those decisions are good law is
very questionable
 Takings clause: does impose some limits on state and federal retroactive statutes; but depends on showing that vested
property interest is affected, and excessively so – clearly a retroactive federal statute increasing minimum wage is not a
taking of employer’s factory
o A majority of the Supreme Court in Eastern Enterprises (p 671) says that pure monetary imposition is not a
taking
Due process challenges
 Modern cases have upheld at least limited retroactive application of tax and pension laws; also some social and economic
reform legislation – in general the Supreme Court decisions in this area have upheld statutory retroactivity when it has
been challenged
 Black lung and superfund/CERCLA statutes are examples
 Eastern Enterprises (Kennedy opinion) suggests that there are due process limits to retroactivity
Bottom line: there is neither an absolute prohibition on civil retroactive statutes for the federal government, nor are they
entirely free from constitutional limitations
 A sharp deprivation of settled expectations may well be unconstitutional
 Instead of outright prohibitions on statutory retroactivity, especially with respect to federal statutes, most of the focus has
been on issues of statutory interpretation
14
Landgraf v. USI Film Products (US 1994), p 672





Presumption against retroactivity.
o Scalia (dissent) says the presumption can be rebutted by a clear statement by Congress. No exceptions.
o Stevens (majority) says the presumption can be rebutted by any evidence which suggests Congress
intended the statute to be retroactive, which doesn’t necessarily have to be in the text of the statute. Also,
there’s an exception for procedural rules.
Facts: from 1984 to 1986, Barbara Landgraf was employed in the USI Film Products plant in Texas. She worked the 11 pm
to 7 am shift operating a machine that produced plastic bags. A fellow employee named John Williams repeatedly harassed
her with inappropriate remarks and physical contact. The plaintiff’s complaints to her immediate supervisor brought her
no relief, but when she reported the incidents to the personnel manager, he conducted an investigtation, reprimanded
Williams, and transferred him to another department. Four days later Landgraf quit her job. She filed a complaint with the
EEOC, which found that USI had created a “hostile work environment,” in violation of Title VII but also that the employer
had adequately remedied the violation. Landgraf brought a lawsuit, which was dismissed. On November 21, 1991, while
the plaintiff’s appeal was pending, the President signed into law the Civil Rights Act of 1991.
Issue: should the case be remanded for jury trial on damages pursuant to the 1991 Act? The 1991 Act would grant plaintiff
compensatory damages, punitive damages, and a jury trial. She would not have these rights under the prior statute.
Statutory text:
o Civil Rights Act of 1991, § 402(a): “except as otherwise specifically provided, this Act and the amendments made
by this Act shall take effect upon enactment”
o § 402(b) says that “nothing in this act shall apply to any disparate impact case for which a complaint was filed
before March 1, 1975, and for which an initial decision was rendered after October 30, 1983”
o § 109(c) says that “the amendments made by this section shall not apply with respect to conduct occurring before
the date of the enactment of this act.”
 Plaintiff claims that § 402(b) and § 109(c) create a strong negative inference that all sections of the Act
not specifically declared prospective apply to pending cases that arose before November 21, 1991.
Exclusio unio argument.
Held: Civil Rights Act of 1991 does not apply to cases arising before its enactment.

Justice Stevens (majority):
o Stevens first looks to legislative history to determine why the retroactivity provision was not included in the 1991
version of the statute but was included in the previous version. The legislative history doesn’t clarify.
o He makes a presumption that retroactivity is not very fair.
o In certain contexts, retroactivity is unconstitutional (p 679), though this is not one of those contexts.
o Exception to the general presumption against retroactivity:
 Changes in procedural rules may often be applied in suits arising before their enactment without raising
concerns about retroactivity
 Example: 28 U.S.C. § 1404(a) governed the transfer of an action instituted prior to the statute’s
enactment
 Why? Diminished reliance on matters of procedures

Stevens (continued):
o Counter factual text argument
 In this case the counter factual text argument is stronger than usual b/c we have a 1990 version of the
statute to point to and note that Congress could have been just as clear as it was in the 1990 version had
it wanted to make clear that the 1991 version was retroactive
15

Justice Scalia (concurring):
o Scalia wants a clear statement rule. A clear statement rule is a presumption that a statute should be interpreted a
particular way unless the text of the statute explicitly says otherwise.
o Scalia disagrees with Stevens’ approach to inquire whether Congress intended statute to be retroactive by
comparing 1990 and 1991 versions as well as comparing language within the 1991 version
Rivers v. Roadway Express, Inc. (US 1994), p 685
 Court continues to apply presumption against retroactivity. Court rejects a theory that would have made one
more exception to the presumption of non-retroactivity, which is the theory that “restorative statutes” (statutes
that overrule a case and restore law to the understanding it had before the case) should be retroactive.
 Facts: Congress enacted the Civil Rights Act of 1866, § 1981, to make it illegal to discriminate in the “making and
enforcing” of contracts. In Patterson v. McLean Credit Union (US 1989), the Court held the 1866 Act inapplicable to
discrimination during an employment contract period. In the Civil Rights Act of 1991, § 101, Congress overrules Patterson
and defines the term “making and enforcing” contracts to include the “making, performance, modification, and
termination of contracts.” The plaintiff argues that because § 101 was restorative of the understanding of § 1981 that
prevailed before the Patterson decision, § 101 should be retroactive.
 Held: Court applied the Landgraf presumption to hold section 101 to be prospective only. There will be no exception to
the presumption against retroactivity for restorative statutes.
III. THE ROLE OF JUDICIAL REVIEW WITH RESPECT TO STATUTES; DIRECT DEMOCRACY AND JUDICIAL REVIEW
Due Process of Lawmaking
Background issue – should governmental bodies (Congress, agencies) be required to make reasoned deliberations that
support the validity of their rules? Or is it enough that the rule have a conceivable rational basis to it, whether or not that was
the basis the rule-making body was thinking of when they drafted the rule?
Hampton v. Mow Sun Wong (US 1976), p 421



Rule must be (1) made by entity of government with competent jurisdiction and (2) reasoned or explained to
some degree.
Facts: Five permanent resident aliens had been denied employment by the General Services Administration; the
Department of Health, Education and Welfare; and the Postal Department based on the Civil Service Commission’s rule
barring non-citizens, including lawfully admitted resident aliens, from employment on the federal civil service. The
plaintiffs sued, alleging that the rule violated the equal protection component of the Due Process Clause of the Fifth
Amendment.
Held: the Civil Service Commission rule deprived the respondents of liberty w/o due process and is therefore invalid. The
only potential justifications for the rule (as set forth by the defendants in this case) are: (1) the broad exclusion may
facilitate the President’s negotiation of treaties with foreign powers by enabling him to offer employment opportunities to
citizens of a given foreign country in exchange for reciprocal concessions; (2) reserving the federal service for citizens
incentivizes aliens to qualify for naturalization and participate more effectively in our society; and (3) certain positions
require undivided loyalty, and it’s administratively convenient to have one broad rule than to identify those certain
positions. As to the first two reasons, they have nothing to do with the role of the Civil Service Commission, which is to
promote an efficient federal service. As for the third reason, there’s nothing in the record which shows that the
Commission actually made any considered evaluation of the relative desirability of a simple exclusionary rule on the one
hand, or the value to the service of enlarging the pool of eligible employees on the other.
16
Kent v. Dulles (US 1958), p 426




Two lessons:
o Even when pressed to deliberate, Congress might not take advantage of that opportunity.
o When agency actions infringe on constitutional rights – here, first amendment rights – then the agency or
Congress needs to be very clear that’s what they intended. See also Landgraf.
Facts: Secretary of State denied a passport to Kent b/c he was allegedly a Communist or Communist sympathizer.
Held: Congress has made no such provision of authority to the Secretary to withhold passports to citizens because of their
beliefs in explicit terms; absent one, the Secretary may not employ that standard to restrict the citizens’ right of free
movement.
Despite pressure from the President and support by many members of Congress, Congress did not enact even a limited
form of the legislation the President sought to deny passports to Communist sympathizers. Apparently the Senate
leadership killed all such proposals. So even where Congress has an opportunity to address particular issues with focused
deliberation and thoughtful legislation, it does not guarantee that Congress will take advantage of that opportunity.
Paul Brest: “The Conscientious Legislator’s Guide to Constitutional Interpretation


Legislators have a duty to independently assess the constitutionality of bills proposed for enactment
Why?
o It’s required by the Constitution. Some provisions of the Constitution are explicitly address to legislators and
others are addressed by clear implication.
o In The Federalist Papers, one can see that the framers of the Constitution and members of the early Congresses
expressed and acted upon the belief that Congress should assess the constitutionality of pending legislation,
whether or not it might later be subject to judicial review.
o Article VI requires that all legislators and officials be bound by oath or affirmation to support the Constitution.
This suggests that upholding the Constitution is a personal duty.
o Marbury v. Madison does not preclude congressional responsibility for ensuring statutes are constitutional. Just
gives that power to courts.
o Courts often give a deferential standard of review when it comes to assessing the constitutionality of a statute;
there is a presumption of constitutionality based on the assumption that the legislature has previously passed
upon the constitutional questions raised in litigation. This deference presupposes that legislators are the main
defender of the constitution, and the courts are the safety net.
o Black letter constitutional law says that legislators have an obligation to ensure constitutionality of statutes, e.g.
Tenth Amendment law, Guarantee Clause of the Constitution.
o Delay argument. Even if courts are able to enforce the constitution in certain areas, there will be quite a gap in
time b/w time statute gets enacted and time when court will make ruling on constitutionality. People risk living
time with unconstitutional statutes if we just rely on courts.
o Ashwander Doctrine says that if a statute is open to multiple interpretations, the court should avoid the
interpretation that would doubt its constitutionality. So if the courts are going to interpret statutes as if congress
was looking out for the constitution, then it’s better that congress actually look out for the constitution.
Otherwise, the court is falsifying what congress is doing.
What about ethical responsibilities of POTUS? Does POTUS need to follow SCOTUS guidance?
 Andrew Jackson vetoed a bill to renew the Bank of the United States because he thought it was unconstitutional, despite
the fact that SCOTUS had previously declared it constitutional.
 Professor thinks there’s an even stronger argument that President has to be mindful of the Constitution in that there’s
only one President.
17
Legislative drafting

Causes of statutory ambiguity
o Failure to foresee issue
o Inability to agree on issue
o Deliberately crafted compromises
o Desire to punt difficult political issues
o Desire for expertise of administrative agency on technical issues
o Failure to recognize imprecision in the provision believed controlling
o Nature of legislative process: multiple power centers

Problems that arise with legislative drafting that often make statutory interpretation difficult:
o The issue of severability. If certain statutory provisions are struck down, does that mean whole statute goes
down?
o The effective date and related provisions like retroactivities and savings clauses.
o Statute should clarify its effect on other pre-existing statutes. What is it repealing and what is it not repealing.
o Federal preemption. Does this federal statute preempt this or that state law.
o Does the statute regulate state and local government. See Gregory v Ashcroft.
o Specify when Congress is enforcing its Fourteenth Amendment power
o Whether federal gov’t is subject to enforcement of the statute. Is there a waiver of sovereign immunity?
o Does the statute mean to create a private right of action so that one private party can sue another when there is
allegedly a violation of the statute
o The applicable statute of limitations for any cause of action created under a statute
o Whether they mean to create a right to a jury trial
o Whether they mean to give you a right to attorney’s fees
o Is it delegating rule-making authority
o Some indication of interpretive philosophy
o Judicial jurisdiction over disputes
o Definitions
Introduction to direct democracy


Direct democracy is defined as class of devices by which voters, without the intermediation of a legislature, have a lawmaking role
o Referendum: Classically people think of it as voting up or down on a law that was enacted by a legislature. Usually
a proposed repeal.
o Initiatives: Making a new law by petitioning and getting something on the ballot. Creating law where there hasn’t
been law.
o Recall: people petition and force the continued service of an elected official to be put to a vote. Recall is most
frequently used on the local level to target school board members, city councilmembers, and other local officials.
Originate from the 20th century Progressive Party. Not found in the Constitution.
St. Paul Citizens for Human Rights v. City Council of the City of St. Paul (Supreme Court of Minnesota 1979), p 536

Facts: The St. Paul City Charter permits voters to use initiatives as a way to propose an ordinance. The St. Paul voters used
the initiative tool to (1) strike “affectional or sexual preference” from the ordinance prohibiting discrimination in
employment, education, housing, public accommodations and public services, and (2) broaden the exemption given to
religiously-affiliated schools to discriminate on the grounds of religious denomination.
o Plaintiffs contend that the voters cannot use the initiative process to repeal an ordinance and that only council
action or a referendum can be used to repeal an ordinance.
o Plaintiffs also contend that the ballot question was improperly drawn because it violated the single subject rule.
The ballot question actually contained two different questions – one dealing with the reference to “affectional or
sexual preference” from the St. Paul Human Rights Ordinance and another dealing with deleting the clause
18
“provided such requirement is placed upon all applicants” from the provision which permits a religious
institution to require membership in its denomination as a condition of enrollment.

Held:
o
o
On the first issue, it’s okay that the voters used an initiative instead of a referendum. Voters have the power to
repeal an existing ordinance by initiative. Majority rule.
 Dissent  there’s a provision in the City Charter that says if you want to initiate a referendum, the
petition must be filed within 45 das after publication of the ordinance. If the majority allows people to
repeal ordinances by initiatives at any time, then what is the point of the 45 day limit on referendums?
On the second issue, the ballot question did not violate the single subject rule. An initiative violates the single
subject rule only when it contains subjects which are so dissimilar as to have no legitimate connection. In this
case, both questions involved the same subject matter – the St. Paul Human Rights Ordinance. In general, courts
have taken a pretty lax view on what a single subject is.
 Dissent  concerns about voter confusion or the possibility of logrolling (people feel passionate about
one of the issues, so they come out to vote for that one, and so the other one just gets passed because of
people’s interest in the other issue)
Direct democracy and equal protection

Arthur v. City of Toledo (6th Cir. 1986), p 544
o Rule: a court cannot set aside a referendum based on an equal protection clause claim unless the
referendum is one that facially discriminates racially or one where, although facially neutral, the only
possible rationale is racially motivated.
o Facts: Toledo’s voters repealed by referendum two city ordinances authorizing the local housing authority to
construct sewer extensions to two proposed public housing sites outside the inner city. The effect was basically to
block construction of public housing and keep low-income, predominantly African American residents from
having affordable housing. The plaintiffs, a class of persons seeking low-income housing and a subclass of that
group consisting of racial minorities, contended that the referendums violated their rights under the Equal
Protection Clause.
o Held: the plaintiffs have not presented sufficient evidence to justify a finding that the referendum electorate
intended to racially discriminate. In Village of Arlington Heights v. Metropolitan Housing Development Corp. (US
1977), the Court held that in order to prove an equal protection violation, the plaintiffs would have to
demonstrate discriminatory intent. Here, the referendums at issue are racially neutral because they are voters on
sewer lines.

Precedent cited in Arthur v. City of Toledo
o Hunter v. Erickson (US 1969): an amendment to the Akron, Ohio city charter which prevented the city council
from implementing any ordinance dealing with racial, religious, or ancestral discrimination in housing without
the approval of the majority of the city’s voters violated the equal protection clause.
o James v. Valtierra (US 1971): the Supreme Court upheld an article of the California Constitution which amended
the California Constitution to bring public housing decisions under California’s referendum provisions, against an
equal protection challenge. Because the article did not rest on distinctions based on race, the procedure was okay.
It gave people a voice in decisions that will affect the future development of their own community.
o Washington v. Seattle School District No. 1 (US 1982): the Supreme Court held that Initiative 350, a statewide
voter initiative designed to terminate the use of mandatory busing for purposes of racial integration in the public
schools in the State of Washington, violated the equal protection clause. Although Initiative 350 was facially
neutral because the initiative did not mention “race” or “integration,” the Court did not doubt that the initiative
was for racial purposes.
19

Romer v. Evans (US 1996), p 549
o Facts: Aspen, Boulder, and Denver, Colorado adopted ordinances prohibiting private as well as public workplace,
housing, and public accommodations discrimination on the basis of sexual orientation. Responding to these
ordinances, in 1992 Colorado voters adopted a ballot proposal adding an amendment to the state constitution
which prohibited the state of Colorado (or any municipality) from enacting any statute whereby sexual
orientation shall entitle any person to claim protected status. The Colorado Supreme Court interpreted the
amendment as repealing local protections for gay people and preventing further protections from being adopted
unless the state constitution was first amended.
o
Justice Kennedy (majority): the provision of the Colorado Constitution is invalid. First, the amendment has the
peculiar property of imposing a broad and undifferentiated disability on a single named group, which is an invalid
form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the
amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational
relationship to legitimate state interests.
o
Justice Scalia (dissent): the amendment prohibits special treatment of homosexuals, and nothing more. Just
because a class cannot as readily as others obtain preferential treatment under the laws does not mean there’s
been an equal protection violation.
Hunter
James
Seattle School District
Arthur
Romer
Effect/coverage
Classification
An amendment to the
city charter would
require a referendum
with respect to
Amendment to
California Constitution
would require
referendum with
respect to
Statewide voter
initiative to
Laws regulating race
and religion
discrimination in
housing
All public housing
decisions
Voters repealed by
referendum an
ordinance
Voters adopted
initiative adding
amendment to the
constitution
prohibiting legislature
from
Degree of process
burden
Moderate
Result
Moderate
Upheld
Terminate use of
mandatory busing for
racial integration
To extend sewer to
serve public housing
Moderate
Struck down
Mild
Upheld
Enacting protections
against sexual
orientation
discrimination
Substantial/high
Struck down
Struck down.
Take away points
 If the new law alters the decision-making process when it comes to a certain topic area, it’s probably going to be struck
down.
o It’s easier to successfully challenge a re-arrangement of the lawmaking process with respect to a particular topic
area than any single exercise of referendum authority. Compare Hunter (striking down an amendment that would
require referendums on laws regulating race and religion discrimination in housing); Seattle School District
(striking down a statewide law that would terminate mandatory busing and would remove decision making
20


power on the matter from local school boards); Romer (striking down an amendment to the constitution that
would prohibit the legislature from enacting protections against sexual orientation discrimination), with Arthur
(upholding the repeal by referendum of an ordinance that would extend sewer lines to serve public housing).
If the new law is about racial discrimination or the rearranging lawmaking authority on matters of racial discrimination,
then it’s probably going to be struck down.
o Challenges to racial classifications or to rearrangements of lawmaking authority with respect to matters that
affect racial discrimination are more successful than challenges to classifications about other matters. Compare
Hunter (striking down an amendment that would require referendums on laws regulating race and religion
discrimination in housing) and Seattle School District (striking down a statewide law that would terminate
mandatory busing and would remove decision making power on the matter from local school boards), with James
(upholding an amendment to the state constitution that would require referendums on all public housing
decisions) and Arthur (upholding the repeal by referendum of an ordinance that would extend sewer lines to
serve public housing).
When the new law imposes a high burden on those who wish to enact legislation on a specific topic, then it’s probably
going to be struck down.
o Challenges to rearrangements of the lawmaking process imposing a high burden on those who wish to enact
legislation on the “topic” singled out for special treatment are more likely to succeed than others. Compare Romer
(striking down an amendment to the constitution that would prohibit the legislature from enacting protections
against sexual orientation discrimination), with Arthur (upholding the repeal by referendum of an ordinance that
would extend sewer lines to serve public housing).
Direct democracy and due process  there are no due process problems with direct democracy.

City of Eastlake v. Forest City Enterprises, Inc. (US 1976), p 559
o Referendums do not violate the due process clause.
o Facts: A city charter provision required proposed land use changes to be ratified by 55% of the votes cast. A real
estate developer would like to get the zoning changed on some property he owns from “light industrial” to
“residential” so that he can build an apartment complex. The City Council approved the reclassification of the
plaintiff’s property to permit the proposed project. Before the referendum takes place, the plaintiff developer
sued seeking a judgment declaring the charter provision invalid as an unconstitutional delegation of legislative
power to the people.
o Held: for the City of Eastlake (defendants). The referendum does not constitute a delegation of legislative power.
 In establishing legislative bodies, people can reserve to themselves power to deal directly with matters
that might otherwise by assigned to the legislature.
 Individual has remedies after the fact. Individual can sue in state court over the substance of the decision.
 It would be more problematic if the decision was delegated to an interested group of voters. Here, the
decision is open to all city voters.

Philly's v. Byrne (7th Cir. 1984), p 568
o Referenda on legislative issue rather than on individual issue are fine. Due process might be violated it
voters could shut down a targeted establishment, rather than all establishments in a precinct.
o Facts: The Illinois local-option liquor law allows the voters of a precinct to vote the precinct “dry.” Two Chicago
restaurant owners sued, contending that they were deprived of property without due process of law when, in one
instance, the owner lost a license as the result of such referendum and, in the other instance, the owner was
unable to obtain a license, which had been earlier approved, because of such a referendum.
o Held (Judge Posner): there was no deprivation of due process.
 This is a legislative decision rather than an administrative one (deciding the fate of a single individual).
 Referenda on individual issues should be impermissible particularly when it’s a big entity
 Referenda on legislative issue should be permissible but not if it’s a very small entity
21

Plus, states have a little more authority over alcohol sales than other subjects b/c of repeal of prohibition
amendment. If the issue was something other than alcohol, Posner would probably have a problem with
this referendum.
Direct democracy okay
When it’s applied to truly generic decisions
(e.g. all gas stations should sell unleaded)
City of Eastlake majority & Judge Posner
say this is okay
Generic decisions in a small polity
City of Eastlake majority okay & Posner
bad
Individualized decisions
City of Eastlake majority okay & Posner
bad
Individualized decisions in a large polity
City of Eastlake majority might
say this is bad & Posner bad
Direct democracy not okay
22
IV. STATUTORY INTERPRETATION: THEORIES, TECHNIQUES AND DOCTRINE
A. Theories of Interpretation (Touchstones)
Tools
Touchstones
Best answer
Constitutional values
Purpose
Legislative history
Imaginative
reconstruction/general intent
Context
Text
Stare decisis/agency
deference
Specific intent
Meaning of text
Pre-Legal Process Theories



Prior to the modern era, court was eclectic about touchstones
Three rules:
o The Mischief Rule (Heydon’s Case)
 Four things to be considered:
 What was the common law before the making of the act
 What was the mischief and defect for which the common law did not provide
 What remedy the Parliament hath resolved and appointed to cure the disease of the common
wealth
 The true reason of the remedy; and then the office of all the judges is always to make such
construction as shall suppress the mischief, and advance the remedy, and to suppress subtle
inventions and evasions for continuance of the mischief, and pro privato commodo, and to add
force and life to the cure and remedy, according to the true intent of the makers of the Act
o The Golden Rule
 You should focus on the express intention of the statute unless it leads to absurd results. Express
intention might come from text or it might come from legislative history.
o The Literal Rule:
 Go with the plain language even if it leads to absurd results
Lieber: Legal and Political Hermeneutics
o It is impossible to achieve total clarity and total foreseeability
o Language is always capable of being insufficiently precise and comprehensive to govern something
o So we must trust “at last to common sense and good faith”
23
Rector, Holy Trinity Church v. United States (US 1892), p 695

Example of eclecticism in statutory interpretation
Statute: Act of February 26, 1885, said that “It shall be unlawful for any person or corporation to prepay the transportation, or
in any way assist or encourage the importation or migration of any foreigner into the United States to perform labor or service
of any kind in the United States”
 Exceptions: professional actors, artists, lecturers, singers and domestic servants
Facts: Holy Trinity Church made a contract with E. Walpole Warren, who was an alien residing in England, to hire him as a
rector and pastor in New York. In pursuance to the contract, Warren moved to New York and began his new employment. The
United States claims that the contract violates the statute.
Held: the contract does not violate the statute.
 “It is a familiar rule, that 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.”
 How to figure out the spirit of the statute?
o Title of Act – “An Act to prohibit the importation and migration of foreigners and aliens under contract or
agreement to perform labor in the US.” Court takes labor to mean manual labor.
o The evil the act was intended to remedy (based on committee reports and the circumstances surrounding the
appeal to Congress) – the statute was designed to remedy the problem of large capitalists paying for foreigners to
come to this country who would work for really cheap, which “broke down the labor market”
 Plus, if we read the language literally, it would lead to absurd result. We are a Christian nation, so it simply could not have
been the case that Congress intended to bar this pastor from employment in the country. This could also be read as an
imaginative reconstruction approach.
Fishgold v. Sullivan Drydock and Repair Corp. (2d Cir. 1946), p 707

Example of imaginative reconstruction
Statute: The Selective Training & Service Act of 1940, Section 8(b)(B), as amended in 1944, provided that the private employer
of a person who had left employment for US military service and then sought to return to the same position after discharge
from the service “shall restore such person to such position or to a position of like seniority, status, and pay unless the
employer’s circumstances have so changed as to make it impossible or unreasonable to do so.” Section 8(c) said that any
person who is restored to a position “shall not be discharged from such position without cause within one year after such
restoration.”
Facts: Plaintiff Fishgold returned from service in the army during WWII and then was laid off within a year, while non-veteran
employees who had more seniority were not laid off. He was laid off because of an economic downturn.
Held: the layoff was legal. According to the dictionary, layoff is temporary while discharge is permanent. But court doesn’t
really focus on words of statute. Its touchstone is imaginative reconstruction. If Congress in 1940 had considered the issue,
Judge Hand thinks it wouldn’t have meant to make people lay-off proof.
Legal Process Theories

The Case of the Speluncean Explorers
o This is a legal process classic
o Statute: “whoever shall willfully take the life of another shall be punished by death”
24
o
o
o
o
o

Facts: Party is trapped in a cave. When they’re informed it’s going to take 10 more days to be rescued and the
doctor tells them they will die before that time if they don’t get sustenance, they agree to cannibalize one of the
party. Whetmore gets chosen.
Judge Truepenny
 He looks at the text. Plain reading of the statute. The court should convict. His touchstone is meaning of
the text. He would like for the executive to grant clemency.
 Judge Truepenny is demonstrating the legal process approach by thinking about the roles of the
governmental branches
Judge Foster
 Purpose. Laws must be construed in light of their purposes.
 He identified the purpose of the statute as deterrence.
 If the purpose of the law doesn’t apply, then the statute should not apply.
 In this situation, the action was undeterrable. So the statute doesn’t apply to this situation.
Judge Tatting
 Withdraws from the decision but responds to the arguments raised by Judge Foster
 Deterrence is not the only purpose of criminalizing murder. There’s also retribution and rehabilitation.
 The act of deciding what the purpose is of the statute involves a heavy dose of judicial subjectivity.
Judge Keen
 We should use common sense
 It doesn’t matter that the statute sweeps broadly and creates a general rule
 His touchstone = best answer. The answer that seems right in this case.
Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law
o The legal process view, associated with Hart & Sacks, says that purpose should be the primary touchstone for
statutory interpretation. More precisely, what a court should do is to interpret the statute to advance the purpose
of the statute, but subject to a caveat – you may not assign the words a meaning they won’t bear. Interpretation is
also subject to existing rules of clear statement.
o In interpreting a statute, a court should:
 Decide what purpose ought to be attributed to the statute
 Interpret the words of the statute immediately in question so as to carry out the purpose as best it can
making sure not to give the words a meaning they will not bear or a meaning which would violate any
established policy of clear statement
Correcting Legislative Mistakes

Shine v. Shine (1st Cir. 1986), p 723
o Court uses legislative history and public policy to correct legislative mistake.
o Statute: 11 U.S.C. § 523(a)(5) excepts from discharge in a bankruptcy proceeding any debt “to a spouse, former
spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection
with a separation agreement, divorce decree, or property settlement agreement.”
o Facts: Plaintiff (ex-wife) has a freestanding support order for maintenance payments, which is not within one of
the exceptions to dischargeability.
o Held: the debt is not dischargeable. Congress made a mistake. To reach this conclusion, court looks to
congressional intent and public policy.
 Public policy. Paying for your family is not the type of debt that should be discharged. That would be
unjust.
 Congressional intent. The idea that family support obligations are special and therefore cannot be
discharged like other debts comes from Whetmore v. Markoe (US 1904). Congress was actually trying to
broaden the scope of Whetmore, but through a legislative drafting mistake, it ended up narrowing the
holding. No one mentioned wanting to narrow the scope of Whetmore, so Congress could not have
25
intended to (Silver Blaze). Plus, when you look at the language of the House bill and the language in the
original Senate bill, both would have allowed for the plaintiff to prevail here. So holding for the defendant
in this case would be an outcome no one would have intended.

United States v. Locke (US 1985), p 728
o Example where court concludes statutory language is not a mistake
o Statute: the Federal Land Policy and Management Act provided that holders of certain mining claims to federal
land must, “prior to December 31st” of every year, file certain documents with state officials ands the federal
Bureau of Land Management or lose their claims. The Lockes filed on December 31, and the Bureau of Land
Management rejected their papers on the ground they were too late.
o Held: The Lockes are out of luck. Justice Marshall for the majority says his touchstone is intent of the drafters, and
the best way to figure out their intent is to look at the language of the statute. Justice Stevens for the dissent uses
imaginative reconstruction to conclude that Congress must have meant to allow people to file through the end of
the year.
Dynamic Statutory Interpretation & the problem of “updating” statutes

Female juror cases, classic example of judicial updating
o State statutes provided that juries are to be selected from a list of the qualified voters of the jurisdiction. Both of
the legislatures of Pennsylvania and Illinois adopted such statutes at a time when women were not allowed to
vote in either state. After the ratification of the Nineteenth Amendment, were women eligible to serve as jurors?
o Commonwealth v. Maxwell (Pa. 1921): the Supreme Court of Pennsylvania held that women were qualified to
serve on juries. Statutes framed in general terms apply to new cases that arise, and to new subjects that are
created from time to time, and which come within their general scope and policy.
o People ex rel. Fyfe v. Barnett (Ill. 1925): the Supreme Court of Illinois held that women were not qualified. The
legislative intent that controls in the construction of a statute has reference to the legislature which passed the
given act. When the legislature enacted the law in question, the words “voters” and “electors” were not ambiguous
terms. They preserve that meaning today.

In the Matter of Jacob (New York Court of Appeals 1995), p 732
o Statute:
 Domestic Relations Law, Section 110 – “Who May Adopt”: an adult unmarried person or an adult husband
and his adult wife together may adopt another person.
 Domestic Relations Law, Section 117 – “Effect of Adoption”: After the making of an order of adoption the
natural parents of the adoptive child shall be relieved of all parental duties toward and of all
responsibilities for and shall have no rights over such adoptive child or to his property by descent or
succession
o Facts: in the Jacob case, the cohabiting boyfriend of the child’s biological mother moved to adopt Jacob. In the
Dana case, the cohabiting female partner of the child’s biological mother petitioned to adopt Dana.
o Majority: Although previously the unmarried partners of the biological mother would not have been permitted to
adopt, the court decides that now that’s okay. Section 110 by its language does not preclude the adoption. Plus,
the purpose of the statute is to achieve family situations that are in the best interest of the children and create the
broadest possible pool of appropriate adoptive parents. So the purpose of section 110 would be promoted here
and the purpose of section 117 would not be contravened.
o Dissent: court is engaged in judicial activism.

Li v. Yellow Cab (Cal. 1975), p 737
o Statute: Section 1714 of the California Civil Code (1872) said that everyone is responsible, not only for the result
of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the
26
o
o
management of his property or person, except so far as the latter has, willfully or by want of ordinary care,
brought the injury upon himself.
Issue: the statute had traditionally been seen to embody a contributory negligence regime. Could it be read to
codify a comparative negligence regime?
Answer: Yes. The interpretation at least arguably serves the purpose of the statute and is coincidentally a
meaning the text will bear.
In the Matter of Jacob & Li v. Yellow Cab: in both cases, the court supports its conclusion by pointing to the fact that it is not
contradicting the language of the statute. They may be contradicting the original legislature’s intention, but they’re not
contradicting the language.
Absurd Results Problem (Coherence with Public Norms & the problem of judicial “surgery”)

Public Citizen v. U.S. DOJ (US 1989), p 743
o Majority employs absurd results doctrine. Dissent argues that absurd results doctrine should be used in
limited circumstances (where it is quite impossible that Congress could have intended the result, and
where the alleged absurdity is so clear as to be obvious to most anyone).
o Facts: The question was whether the Standing Committee on the Federal Judiciary of the American Bar
Association was subject to the Federal Advisory Committee Act, which imposes disclosure and open meeting
requirements on a federal “advisory committee.” The statute defines “advisory committee” as, among other
things, any committee “established or utilized by the President [or] by one or more agencies, in the interest of
obtaining advice or recommendations for the President.” The President, through the Justice Department,
routinely seeks the advice of the ABA committee concerning the qualifications of potential federal judicial
nominees.
o
Justice Brennan (majority): the ABA committee is not within the statute’s scope. The majority cites to Holy Trinity
and uses the doctrine of absurd results to reach the conclusion that “utilize” does not mean what it apparently
means.
o
Justice Kennedy (concurring in the judgment): Kennedy thinks the absurd results exception should be limited to
the context where it is quite impossible that Congress could have intended the result, and where the alleged
absurdity is so clear as to be obvious to most anyone. Here, the majority is only “fairly confident” that FACA does
not apply to the ABA Committee. The absurd results doctrine is susceptible of leading to judicial activism.
Ashwander Doctrine

State of New Jersey v. 1979 Pontiac Trans Am. (NJ Supreme Court 1985), p 744
o Example of judicial surgery to avoid interpreting the statute in a way that would make it unconstitutional.
o Facts: In July 1982, Orlando Figueroa and a companion were driving home from the shore in his father’s Pontiac.
On the drive, they engaged in some criminal activity (stealing the roof of a Corvette). Pursuant to New Jersey
statute, the county moved to confiscate the father’s Pontiac. Under New Jersey statute, two types of property were
subject to forfeiture: (1) prima facie contraband, and (2) other kinds of property, such as conveyances “utilized in
furtherance of an unlawful activity.” Before 1981, the forfeiture statute applied only to the defendant’s interest in
the forfeited property. In 1981, it was expanded to cover “any interest” in the property. There was an exception
however: “No forfeiture shall affect the rights of any lessor or any person holding a perfected security interest in
property subject to seizure unless it shall appear that such person had knowledge of or consented to any act or
omission upon which the right of forfeiture is based.”
o Held: Because forfeitures are not generally favored in the law, the court construes the exemption provision to
exempt not only lessors and lienholders but also innocent owners who can prove that they were “uninvolved in
and unaware of the wrongful activity, and that they had done all that reasonably could be expected to prevent the
27
proscribed use of their property.” If the court were to read the statute to permit takings of property from innocent
owners, this would open the statute up to constitutional attack that it constitutes an unlawful taking of property
without just compensation. Essentially the court does “judicial surgery” to save the statute from constitutional
attack.
Concerns about Legal Process Theories  revival of the plain meaning rule (at least to an extent)




Public choice scholars criticize that legal process theorists have a way too rosy view of how the legislative process works
(that there will always be deliberation that leads to better outcome). Legislators are not entirely reasonable and are often
acting to extract rents for their constituents and supportive interest groups. Even reasonable legislators will disagree, and
the resulting statutes may be compromises more than easily understood purposive enactments.
The legal process theory suppresses useful substantive discussion. Legal process judges are making unarticulated value
choices under the auspices of neutral craft. It would be better if they were just upfront about the values they are
implementing.
Formalism has advantages that legal process doesn’t have. The plain meaning rule is very attractive. It’s more consistent
with the structure of the US constitution, which vests lawmaking power in the legislative branch. It’s also more within the
judicial competence to apply statutory plain meaning than make policy judgments or determine what the legislature
“really meant.” Lastly, the ordinary meaning of statutory language is the common understanding of what the rule of law is;
citizens ought to be able to read a statute and know what it requires of them.
TVA v. Hill (US 1978), p 752
o Statute: The Endangered Species Act of 1973 authorizes the Secretary of the Interior to declare species of wild life
“endangered.” When the species is declared endangered, “federal departments and agencies shall, with the
assistance of the Secretary, utilize their authorities in furtherance of the purposes of the Act by carrying out
programs for the conservation of endangered species and by taking such action necessary to insure that actions
authorized, funded, or carried out by them do not jeopardize the continued existence of such endangered species
and threatened species or result in the destruction or modification of habitat of such species which is determined
by the Secretary to be critical.”
o Facts: the Secretary of the Interior declared the snail darter an endangered species and designated a portion of
the Little Tennessee River as the only remaining natural habitat of the snail darter. The part of the river was to be
flooded by the completion of the Tellico Dam however. The Tellico Dam was underway when the statute was
enacted and was nearly complete when environmentalists brought suit to enjoin completion of the dam. The
defendants argued that the Act could not reasonably be interpreted as applying to a federal project which was
well under way when Congress passed the Act.
o
Majority (Burger): the completion of the dam is enjoined. Burger employs a weaker version of the plain meaning
rule (“soft textualism”). Burger says the text could not be any clearer. His touchstone seems to be meaning of the
text but at the same time general intent. The tools he uses includes the text but also legislative history to find
intent. That intent shows the Act was supposed to be mandatory and not discretionary.
o
Dissent (Powell):
 This result will lead to an absurd result: the shutting down of a project that has cost over $100m.
Congress has continued to fund the dam, even after passage of the Act, which suggests that Congress
intended to create an exception for the dam. When looking at the text, the statute does not take away the
court’s remedial discretion, so it’s really up to the court as to whether the remedy should be granted or
not. Plus, it would be applying the Act retroactively to enjoin the completion of the dam because the dam
was started before enactment.
28

Griffin v. Oceanic Contractors, Inc. (US 1982), p 755
o Statute: 46 U.S.C. § 596 obligates the master or owner of any vessel making coasting or foreign voyages to pay
every seaman the balance of his unpaid wages within specified periods after his discharge. The statute then
provides: “Every master or owner who refuses or neglects to make payments in the manner hereinbefore
mentioned without sufficient cause shall pay to the seaman a sum equal to two days’ pay for each and every day
during which payment is delayed beyond the respective periods.”
o Facts: In February 1976, the plaintiff began work as a senior pipeline welder for the defendant on a vessel in the
North Sea. The contract said that he would be employed until December 15, 1976. The contract said that if he
quite the job prior to its termination date, or if his services were terminated for cause, he would be charged for his
transportation back to the US. So the defendant withheld some payments from each paycheck in the event that he
should need to pay for his transportation back to the US. In April 1976, the plaintiff suffered an injury. Defendant
refused to take responsibility for the injury or to furnish transportation back to the US. They also kept the money
that they had retained from his paycheck that was supposed to pay for his transportation back to the US. In 1978,
the plaintiff sued, seeking penalty wages under 46 U.S.C. § 596 for D’s failure to pay over the wages they retained.
The district court concluded that the “the period during which the penalty runs is to be determined by the sound
discretion of the district court and depends on the equities of the case.”
o Issue: does the court have discretion to determine the period during which the penalty should run?
o
Answer (Rehnquist): no.
 When the express language of the statute is plain, then we have to follow it. The language says that the
defendant has to pay an amount equal to two days’ pay for each day the payment is delayed. This literal
interpretation effectuates the purpose of the statute, which is to protect seaman from having their wages
withheld. The means by which Congress has intended to accomplish this end is by imposing damages that
will deter employers from withholding those wages.
 When you look at legislative history, Congress removed caps on damages, so literally the language
requires multiplying the damages by all the days the wages were withheld. If they didn’t mean what they
said, then you would expect legislative history to say something, but it doesn’t. So statutory text should
receive its ordinary meaning.
o
Dissent (Stevens): the purpose of the statute is compensatory, not deterrent. Plus, if Congress was imposing this
incredibly onerous requirement, we would expect Congress to have expounded on it in the legislative history, but
it didn’t.
New Textualism


Over the last couple of decades, statutory interpretation has moved in a textual direction
Difference with soft textualism: While the soft textualists (espoused in cases like Hill and Griffin), looked at tools of intent
and purpose to find touchstone of meaning of text, this “new textualism” (espoused in the cases below) warn against
looking at legislative intent or purpose and focus only on text.

Scalia’s approach
o Touchstone = meaning of the text as understood by the ordinary listener
o Tool = statutory text unless there’s some specialized and narrow exception such as the appearance of absurd
results in which case one can look at legislative history
o Use of legislative history is a modern trend. Traditionally judges would just look to words of statute. But see
Pepper v. Hart.
o Legislative intent does not exist. It’s often fabricated by a committee, which does not represent the views of all
legislators.
29
o
o
o
o

When discovering legislative intent, judges often look at committee reports. However it’s not clear that committee
reports are even created or read by legislators. Committee reports and statements made in a floor debate are
often drafted by lobbyists.
The traditional function of courts is to fill the gap that Congress didn’t recognize when it was drafting the statute.
Fallacy of salience: If you can find one small statement that seems to speak directly to the issue that’s before the
court, it’s tempting to give that way too much weight.
Two things Scalia believes that are surprising:
 (1) Dynamic interpretation. The meaning of a statute can change over time. It’s a somewhat limited
version of dynamic interpretation –if you enact subsequent statute, it can change meaning of prior
statute. It can give it a meaning it might not have had before enactment of second statute, and that’s okay.
 (2) He wants the body of law to make sense as a whole. That’s a more judicially activist role for the court
than you would think he would promote.
Green v. Bock Laundry Machine Co. (US 1989), p 766
o Facts: Green, a county prisoner on work-release at a car wash, reached inside a large dryer to stop it and had his
arm torn off. At trial in his product liability action against the machine’s manufacturer, he testified that he had
been inadequately instructed about the machine’s operation and dangerousness. Green admitted that he had been
convicted of burglary and of conspiracy to commit burglary, both felonies, and those convictions were used by
defendant to impeach his credibility. The jury returned a verdict for the defendant. The Court of Appeals affirmed,
rejecting Green’s argument that the district court erred by denying his pretrial motion to exclude the impeaching
evidence.
o Statute: Federal rule of evidence 609(a) says that for the “purpose of attacking the credibility of a witness,
evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness . . . but only
if the crime (1) was punishable by death or imprisonment in excess of one year . . ., and the court determines that
the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved
dishonesty or false statement . . . .”
o
Stevens (majority): the evidence can be admitted. The majority looks to legislative history to find out what
Congress really meant by “defendant.” The Court determines that the Congress really only meant for the balancing
test to come into play with respect to criminal defendants.
o
Scalia (concurrence):
 Does “defendant” in the statute mean anything other than the word defendant? It has to, because it
produces an absurd result – that civil defendants get a protection that civil plaintiffs don’t get.
 Scalia would make an exception to his rule never to look at legislative history in the case of
absurd results. It’s okay to look at legislative history in the case of absurd results to confirm
whether or not Congress meant to produce the absurd result.
 However, faults the majority in looking at legislative history to determine what they really meant, for as
he says, he doubts that the full Congress really considered the documents that the majority looks at,
including the ABA Advisory Committee’s drafts, the House Judiciary Committee’s drafts, and the Senate’s
bill.
 The meaning of terms on the statute books ought to be determined on the basis of which meaning is:
 (1) most in accord with context and ordinary usage, and thus most likely to have been
understood by the whole Congress which voted on the words of the statute (not to mention the
citizens subject to it), and
 (2) most compatible with the surrounding body of law into which the provision must be
integrated – a compatibility which we assume Congress always has in mind.
 He thinks reading “defendant” to mean “criminal defendant” does the least violence to the text of the
statute. Plus, it’s reasonable to think that Congress inadvertently omitted the “criminal” because the term
30
“defendant” is commonly used to refer to a criminal defendant. Including the term “plaintiff” within the
term “defendant” gives the text a meaning it will not bear.

Chisom v. Roemer (US 1991), p 781
o Statute: Section 2 of the Voting Rights Act – “No voting qualification or prerequisite to voting, or standard,
practice, or procedure shall be imposed or applied by any state or political subdivision in a manner which results
in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color . . . .”
The act goes on to say “A violation [of the statute] is established if . . . it is shown that the political processes
leading to a nomination or election . . . are not equally open to participation by members of a class of citizens . . . in
that its members have less opportunity than other members of the electorate to participate in the political
process and to elect representatives of their choice.”
o Issue: are judicial elections covered by the voting rights act?
o
Majority (Stevens):
 “Representatives” are winners of representative elections. Because Louisiana judges are elected by
popular vote, the statute covers judicial elections.
 Stevens’ touchstone is the purpose of Section 2 insofar as it concerned ridding the country of voting
discrimination
 Counter-factual text argument: On the textualism side of things, if Congress had wanted to exclude
judicial elections, it would have said “legislators” instead of “representatives.” Congress deliberately
changed the word from “legislator” to “representative,” so they must have meant it to be broader.
 Silver Blaze: statute originally covered judicial elections, so it would be surprising if that ceased, and it
would be particularly surprising if it did that w/o comment in the legislative history.
o
Dissent (Scalia): Judicial elections are not covered. Section 2 refers to electing “representatives;” it covers
representative elections. We don’t think of judges ordinarily as representatives. Therefore, those elections must
not be covered.
 In response to Stevens’ Silver Blaze argument, he thinks that if the statute were to apply to judicial
elections, then that is what he thinks would have been mentioned by Congress.
 Counter-factual text argument: if Congress had meant to cover judicial elections, it would have used the
word “candidate” rather than “representative”

West Virginia University Hospitals v. Casey (US 1991), p 790
o Majority (Scalia): 42 U.S.C. § 1988, which permits the award of a “reasonable attorney’s fee” to prevailing
plaintiffs in civil rights cases does not authorize the award to prevailing plaintiffs of fees for services rendered to
their attorneys by experts. The record of statutory usage demonstrates convincingly that attorney’s fees and
expert fees are regarded as separate elements of litigation costs. While some fee-shifting provisions (like this one)
refer only to “attorney’s fees,” many others explicitly shift expert witness fees as well as attorney’s fees, such as
the Toxic Substances Control Act.
 In responding to the argument that attorney’s fees under the statute should include expert fees b/c had
Congress thought about the issue it surely would have included them as recoverable, Justice Scalia
responded that the argument profoundly mistakes the court’s role. The court’s role is to make sense out
of the corpus juris. The court’s role is not say that the Congress forgot because that would be saying that
the judge thinks the statute contains a better disposition. That is not for judges to prescribe.

Zuni Public School District No. 89 v. Department of Education (US 2007), p 795
o Zuni is a reminder that Scalia has not won the day. Breyer looks to both text and purpose of the statute.
Appropriateness of legislative history is going to be determined on a case-by-case basis.
o Facts: The Federal Impact Aid Program provides funds to certain school districts. States are in turn prohibited
from reducing their aid to those schools unless the Secretary of Education determines that state expenditures to
31
o
o
o
the local school districts are "equalized,” which the statute defines as having a disparity of no more than twentyfive percent between the districts with the highest and lowest per-pupil expenditures. At issue in Zuni was the
statute's "disregard” instruction, which requires the Secretary to "disregard local educational agencies with perpupil expenditures or revenues above the 95th percentile or below the 5th percentile of such expenditures or
revenues in the State." To calculate whether expenditures are indeed "equalized," the Secretary (pursuant to
regulations in effect for more than thirty years) ranks school districts according to per-pupil expenditures and
then eliminates the school districts that account for five percent of the state's student population at each end of
the spectrum. Petitioner Zuni, by contrast, contends that the plain language of the statute requires the Secretary
to rank the school districts in order of per-pupil expenditures, and then to "disregard" the top and bottom five
percent of school districts based solely on the number of school districts.
Majority (Breyer): the Department’s method was permissible. (1) It was consistent with the evolution of the
statute. Congress first enacted an equalization law in 1974, which explicitly delegated to the Department
authority to define the conditions under which equalization funds would be allowed. The Department issued
regulations in 1976, essentially the same as those challenged. No one in Congress objected to those regulations,
and Congress adopted the language without comment or clarification in a subsequent statute in 1994. (2) the
Department’s approach was consistent with the purpose of the disregard clause, which was to exclude “outlier”
districts from the calculation. In states with a small number of large districts, exclusion based on percentage of
school districts would exclude a substantial percentage of the pupil population while in states with a large
number of small districts, the approach would exclude only an insignificant fraction of the pupil population. (3)
the Department’s approach was not inconsistent with the statutory language. There’s no one way to calculate a
“percentile.” When Congress has wanted to limit agency discretion in making such percentile rankings, it has
phrased statutory language more precisely.
Scalia (dissent): First of all, we need to start with the statutory text and not with the history and evolution of the
statute. Second of all, this statute is not ambiguous. It has a plain meaning. The statute requires the Secretary to
create a list of school districts based on their per-pupil expenditures, and use that list to determine the top and
bottom five percent to be disregarded.
Stevens (concurrence with the majority): He would agree with the majority’s interpretation even if it were
inconsistent with statutory plain meaning because the legislative history provides better evidence of
congressional intent here. This happens to be a case where the legislative history is “pellucidly clear” and the
statutory text is difficult to fathom.
Economic Theories
 Economic theory of interpretation: In statutory interpretation, economic theory would valorize an ex ante perspective:
evaluate a theory based on whether it sets up a rule that will be good for the average case and provides proper incentives
for the citizenry – and not because you like its result in a particular case. Scalia makes an ex ante argument for his new
textualism: even when it reaches harsh results, it is the best method for the long haul because it reassures citizens that
statutory texts will be predictably applied to their situations.
 This approach typically translates into a refusal to read exceptions into a statute
 There are rent seeking statutes vs. public regarding statutes
o It’s the more activist version that says that judges should and can make this distinction
o The more passive version questions whether courts are competent to do this

United States v. Marshall (7th Cir. 1990), p 801
o Judge Easterbrook’s opinion is an excellent example of the distinctive features of the new textualism: (1)
focus on the text of the statute, including not just the plain meaning of the provision at issue, but also how
that provision fits into the “whole statute,” (2) a rejection of, and some contempt for, legislative history as
a context for interpreting the statute, and (3) a relatively black and white vision of what words mean
o Example of ex ante approach: a textualism that yields harsh results sends a signal to judges that they
should be careful not to make policy and to Congress that its statutes will be interpreted “as written,” and
that any updating or fixing will have to be done by the legislators themselves
32
o
Example of public interest statute, that should be construed broadly.
o
Statute: 21 U.S.C. § 841 sets a mandatory minimum of five years of imprisonment for selling more than one gram
of a “mixture or substance containing a detectable amount” of LSD and ten years for more than ten grams.
Issue: does the “mixture or substance containing a detectable amount” of LSD include the carrier medium?
o

o
Answer (Easterbrook): Yes. The medium carrying the LSD (such as paper) is a “mixture or substance containing a
detectable amount” of LSD and must be counted when calculating the amount of LSD for the sentencing
guidelines.
 Easterbrook first looks to statutory text
 Looking at the phrase of the statute – “mixture or substance containing a detectable amount” –
there’s just no way to make the penalty turn on the net weight of the drug rather than the gross
weight of the carrier and the drug

Structure of the statute reinforces this conclusion  consistent usage vs. meaningful variation.
 In the statutory provision right above the sentencing guideline for LCD, there’s the sentencing
guideline for PCP. In the sentencing guideline for PCP, Congress clearly distinguished between
the pure drug from a “mixture or substance” containing PCP
 So if Congress had meant for the court to not count the carrier when determining the weight of
the LSD for the purpose of the sentencing guidelines, it would have written the LSD provision in
the same way it had written the PCP provision
o
Dissent (Posner):
 Flexible, contextual interpretation of the statute. Assumes that Congress was acting rationally.
 Two approaches judges can take: (1) Positivistic view that content of the law is clear and explicit. (2)
Pragmatic view. Interpret and apply the law that comes to a good outcome in the case.
 Tools Posner uses = whole text of the statute. He compares the dosage for LSD to the dosage for other
drugs and shows how, if you look at the statute in its whole context, you can see that the legislative intent
could not have been to reach this result.
 Absurd results
 You end up punishing someone more who sells fewer doses of diluted LSD than you do someone
who would sell more doses of undiluted LSD
 The legislative history is silent and even DOJ can’t explain this result, so the only plausible inference is
that Congress simply did not realize how LSD is sold. If it HAD realized, it would have treated it the same
as PCP.
 We should assume that Congress was acting rationally and intended the statute to have fair and equal
treatment. “I’m doing Congress a favor. If I knew that it meant what Easterbrook says it meant, I would
have to strike it down as unconstitutional. But I know they didn’t mean that.”
Perez v. Wyeth Labs., Inc. (NJ Supreme Court 1999), p 814
o Contrast to Marshall. Statute here is a rent-seeking statute, as opposed to public regarding statute in
Marshall. The statute is therefore construed narrowly.
o Example of purposive approach and judicial activism when statute is outdated.
o The New Jersey Products Liability Act addresses the specific issue of failure to warn. The normal rule is that an
adequate product warning is one that a reasonably prudent person would find to communicate adequate
information on dangers and safeties taking into account (1) the ordinary common knowledge by the target users
of the product or (2) in the case of prescription drugs, the characteristics and ordinary knowledge common to the
prescribing physician (“learned intermediary doctrine” -- as long as you give adequate warning to prescriber of
prescription drug, then duty to advise the patient is on the prescriber and drug co has done what it needs to do).
33
o
o
o
Issue: should the learned intermediary doctrine still apply when the prescription drugs are marketed directly to
the public?
Answer: No. The learned intermediary doctrine – deference to physicians and the integrity of the doctor-patient
relationship – did not apply when the drug company marketed directly to patients. The purpose of the learned
intermediary rule doesn’t fit the circumstances of the way the drug was being marketed. Purposive approach.
Dissent: The legislature chose to write this rule and it may be outdated, but it still exists. You can’t just choose to
make it go away.
Institutional Cost-Benefit Analysis

FDA v. Brown & Williamson Tobacco Corp. (US 2000), p 820
o Transition from economic analysis to pragmatic analysis. Using a pragmatic approach, a judge may
employ many touchstones – basically an eclectic or “whatever works” approach.
o Facts: Food, Drug, and Cosmetic Act grants the FDA the authority to regulate “drugs” and “devices.” It also grants
the FDA the authority to regulate “articles (other than food) intended to affect the structure or any function of the
body.” The FDA has decided after many years that they have the authority to regulate tobacco even though for
many years they said they didn’t.
o Held (O’Connor): FDA does not have authority to regulate tobacco.
 (1) The FDCA requires that any product regulated by the FDA – but not banned – must be safe for its
intended use. If the FDA were to apply to the FDCA to tobacco, it would be forced to ban cigarettes b/c
they would have determined that tobacco is unsafe and that would require the FDA to prohibit the sale of
cigarettes. But a ban would contradict Congress’ clear intent as expressed in its more recent, tobaccospecific legislation that do not ban the sale of tobacco.
 (2) If the FDCA were to cover tobacco, we would have expected Congress to make that clear. Silver Blaze.
 (3) Evolution of surrounding laws. Congress had a lot of time to put tobacco under the FDA’s authority
but actually put it under the Federal Cigarette Labeling and Advertising Act (FCLAA) which is not
administered by an agency. That shows that Congress considered and rejected any attempts to put it
under the FDA’s authority. They came up with a separate scheme. She’s saying that FCLAA changes what
the FDCA meant.
o Dissent (Breyer): Touchstone is language and purpose. The purpose of the statute is to protect public health, and
tobacco has a negative effect on health.
 In response to O’Connor’s (3) argument, Breyer says that all of the statutes are collectively ambiguous as
to whether they ratify the idea that FDA doesn’t have this jurisdiction or just leave the jurisdiction as
Congress found it. So they don’t actually make clear whether FDA has this jurisdiction or not.
 While Congress didn’t pass proposals to give the FDA authority, it also didn’t enact proposals to strip the
FDA of authority.
Pragmatic and Critical Theories
Critical legal studies tend to be more useful as critiques of other people’s approaches than articulation of their own approach,
p 835

The Case of the Speluncean Explorers: Contemporary Proceedings
o A couple of things we might want to generalize.
o Critical perspectives tend to emphasize ex post perspectives. Lets look at results of a particular interpretation on
the actual consequences for actual people. It’s the exact opposite approach of the law & economics approach.
o Critical legal studies approaches and its variants tend to look at consequences.
o They also tend to suggest that more mainstream approaches actually pretend to emphasize universal values but
don’t always do so. They emphasize that sometimes exceptions get made to rules but usually in a way that
disfavor the interests of less powerful groups in society. Critical legal studies theorists criticize more mainstream
34
approaches for failing to adhere to a broad and consistent application of the law across the board.
B. Intrinsic Devices
Intrinsic
(“look at the text this way”)
Extrinsic
(there’s some value outside the statute that you should bear
in mind)
Textual canons
Grammatical canons
Rule of lenity (construe crim statutes narrowly)
Ashwander doctrine
Federalism canon (when in doubt, interpret a statute so that
it doesn’t create federalism problems)
Textual canons
 Ordinary meaning rule. Unless the context tells you otherwise, a word is to be understood in its ordinary sense. See Nix v.
Hedden (classifying tomatoes as a vegetable rather than a fruit because that categorization conforms with common usage).
 Technical meaning rule. We use the ordinary meaning unless the context suggests a specialized, technical meaning.
 Noscitur a sociis: light may be shed on the meaning of an ambiguous word by reference to words associated with it.
Interpret a word in a list to make it consistent with the meaning of the other words in the list. Preserve similarity.
o This one is in tension with the anti-surplusage rule.
 Esjudem generis: when you have a list of specific terms and a residual term at the end, the residual term is to be
interpreted to mean something like the other terms in the list.
 Expressio unius: the enumeration of certain things in a statute suggests that the legislature had no intent of including
things not listed or embraced.
o Potential problem: it assumes that Congress thinks through statutory language carefully, considering all other
variations. Because of this, a skeptic would say that this should never decide a case.
The whole act rule. See Chisom v. Roemer.
(a) Titles: example, in Holy Trinity, court considered the title to be consistent with purpose.
(b) Preambles and purpose clauses: May be resorted to help find intent of lawmaker where there is ambiguous language.
(c) Provisos: if there is doubt about interpretation of a proviso it is to be narrowly construed b/c it is creating an exception.
(d) The rule to avoid redundancy/surplusage: Presumption is that every word and phrase adds something to the statutory
command, and thus, no provision should be construed to be entirely redundant. No 2 sections should say the exact same
thing.
(e) Presumption of Consistent Usage – and of meaningful variation:
 Consistent usage. When you use the same word or phrase different places in the statute, they’re presumed to have the
same meaning.
 Meaningful variation. When you don’t use the same words, that’s presumed to tell you that the meaning has been changed.
 Posner’s problems with these: all of these assume a kind of care by the legislators.
 Best counter to Posner’s argument: is it a bad thing to act like Congress really is careful? Fine, maybe they are not careful,
but let’s just pretend.
Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (US 1995), p 868
 Statute: Section 9 of the Endangered Species Act forbids the “taking” of any endangered species. The statute defines “take”
to include “harm.” In its regulations, the Department of Interior defines “harm” to include “serious adverse habitat
modification.” A group of small landowners, logging companies, and families dependent on the forest products industries
and organizations that represent their interests brought an action to challenge the Secretary’s definition of “harm” to
include habitat modification and degradation.

Held (Stevens): Secretary’s interpretation is reasonable.
o Ordinary meaning. The statute has defined “take” to include “harm” and adverse habitat modification is within the
plain meaning of “harm.”
o Noscitur a sociis. Unless the statutory term “harm” encompasses indirect as well as direct injuries, the word has
no meaning that does not duplicate the meaning of the other words that define “take.” To read “harm” to connote
35
o

application of force directed at a particular animal, as do the words surrounding “harm,” would be to effectively
write “harm” out of the statute entirely. Reluctance to treat statutory terms as surplusage.
Purpose. The statute has a broad purpose to extend protection against activities that cause the precise harms
Congress enacted the statute to avoid.
Dissent (Scalia):
o Ordinary meaning. Adverse habitat modification is not within the plain meaning of “take;” it doesn’t matter
whether “adverse habitat modification” is within the plain meaning of “harm”
o Noscitur a sociis. Harm should be limited to make it like the other words in the definition of “take.” The other
words defining “take” – such as harass, pursue, hunt, shoot, wound, kill, trap, capture, or collect – are all
affirmative acts which are directed immediately and intentionally against a particular animal. They’re not acts or
omissions that indirectly and accidentally cause injury to a population of animals.
o Purpose. We should not look to purpose b/c the statute is telling us what means were authorized to fulfill that
end.
o Criminal liability. Any person who “knowingly” violates the statute is subject to criminal and civil penalties. Any
person who unknowingly violates the takings prohibition may be assessed a civil penalty. So if you read “take” to
include habitat modification, it would have this bizarre result of subjecting the transgressor to criminal liability.
The penalty seems outsize for the action.
o Whole Act Rule.
 Section 9 of the Act, which applies to everyone, says it’s unlawful for any person to “take” any endangered
or threatened species. Section 7, which applies just to the federal government, requires federal agencies
to ensure that none of their activities, including the granting of licenses and permits, will jeopardize the
continued existence of endangered species “or result in the destruction or adverse modification of habitat
of such species which is determined by the Secretary to be critical.” Why would Congress have specified
that the federal government in section 7 is required to ensure it avoids habitat modification if that was
already made clear in Section 9?
 Scalia also pointed to the fact that Congress had devoted funds to habitat acquisition. So endangerment
by habitat erosion was meant to be solved by habitat acquisition by the federal government.
Introducing Substantive Canons (rule of lenity, Ashwander doctrine, and the federalism principle)
There are 3 ways in which a court may use such a substantive canon:
a) As a tiebreaker: using at end to try and get to outcome. This is how the rule of lenity is applied.
b) As a presumption used at the beginning and can be rebutted.
c) As a clear statement rule, which compel a particular interpretation, unless there is a clear statement to the contrary.

The Rule of Lenity: laws whose purpose is to punish must be construed strictly. If the punitive statute doesn’t clearly
outlaw private conduct, the private actor cannot be penalized.
o
o
o
Purpose of rule of lenity:
 Fair Warning: there are due process roots to this notion. If statute doesn’t tell person, it would be a
violation of the due process clause.
 Libertarian values: things that haven’t been proscribed, should be lawful b/c we favor liberty.
 Separation of powers value: the agent that must be responsible for making things illegal must be the
elected body, not the court.
If you have multiple of these purposes in a case, then rule of lenity is likely to be strong.
Muscarello v. United States (US 1998), p 888
 Facts: defendants sell drugs from their cars. In one case, the defendant has gun in a locked glove
compartment. In the companion case, the defendant has a gun in his locked trunk. 18 U.S.C. § 924(c)(1)
36




says that “whoever, during and in relation to any crime of violence of drug trafficking crime uses or
carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug
trafficking crime, be sentenced to imprisonment for five years.”
Issue: does “carry” include bringing the gun along in the car?
Held (Breyer): Yes, “carry” includes bringing the gun in the car. Rule of lenity should only be applied
where there’s a grievous ambiguity; not just when we’re a little uncertain.
Dissent (Ginsburg): the provision is not decisively clear one way or another. Where there is ambiguity in
a criminal statute, doubts are resolved in favor of the defendant. RULE OF LENITY.
The Ashwander doctrine–interpretation to avoid constitutional problems
o
Evolution of the Ashwander doctrine
 In the case called the Murray v. The Schooner Charming Betsy (1804), the Court says: don’t interpret a
statute in a way that would make it unconstitutional if there’s another way you could interpret it
 Over time that principle gets loosened. Now, if the statute might be unconstitutional (constitutional
doubt) if interpreted in a certain way, don’t interpret it that way.
o
Few variables that make Ashwander doctrine more or less strong:
 (1) Whether it’s being used to avoid an actual constitutional problem, or just a potential constitutional
problem. In Catholic Bishop, the court was avoiding a potential constitutionality problem. In United States
v. Marshall, Judge Posner in his dissent would construe the statute to discount the weight of the carrier
medium because that would present an actual constitutional problem.
 (2) Whether the alternative reading is textually plausible or not. Ashwander Doctrine is weaker when
there isn’t a textually available alternative reading.
 (3) Some constitutional provisions are more likely to warrant avoidance than others. For example, the
First Amendment seems to be one that evokes that sort of protection. See National Labor Relations Board
v. Catholic Bishop.
o
United States v. Witkovich (US 1957), p 907  Ashwander doctrine used by the majority.

Facts: Under the Immigration and Nationality Act, § 242(d), any alien who has been ordered to deport is
subject to supervision by the Attorney General. This includes a requirement “to give information under
oath as to his nationality, circumstances, habits, associations, and activities, and other such information,
whether or not related to the foregoing, as the Attorney General may deem fit and proper.” § 242(d)(3).
Defendant Witkovich was indicted under § 242(d) on the charge that he had willfully failed to give
information to the Immigration and Naturalization Service (INS). The questions pertained to Defendant’s
political activities, his association with the Slovene National Benefit Society and other groups, and his
social activities. Defendant moved to dismiss the indictment on the grounds that it failed to state an
offense within the statute and in the alternative, if it did so, the statute was unconstitutional.

Held (Frankfurter): The Court concluded that the statute did not authorize the Attorney General to ask
such questions of the Defendant. Giving the Attorney General unbounded authority to require whatever
information in this situation would pose constitutional concerns. The Court cited the Ashwander Doctrine
in its conclusion that the better interpretation of the statute was one that would limit the Attorney
General’s authority to inquire and avoid constitutional concerns.

Dissent (Clark): the statute gives the Attorney General broad authority because Congress felt that
deportable aliens were more likely to engage in subversive activities and therefore required more
particularized supervision. Moreover, if you look to clause (4) of the provision at issue, which says that
the alien can be required to “conform to such reasonable written restrictions on his conduct or activities
37
as are prescribed by the Attorney General,” it demonstrates that Congress knew how to put a
reasonableness limitation on the AG’s actions. Lastly, there are no constitutional problems because
Congress has plenary authority over aliens according to the Constitution.
o
National Labor Relations Board v. Catholic Bishop of Chicago (US 1979), p 911  Ashwander doctrine used by
majority
 Facts: The NLRB exercised jurisdiction lay faculty members at two groups of Roman Catholic high
schools, certified unions as bargaining agents for the teachers, and ordered the schools to cease and
desist their refusals to bargain with these unions. The NLRB asserted jurisdiction based on its policy of
declining jurisdiction only when schools are “completely religious,” not “religiously associated.” The
NLRB said the schools were only “religiously associated” because secular as well as religious topics were
taught in the schools. The schools objected, claiming that the Free Exercise and Establishment Clauses of
the First Amendment precluded NLRB jurisdiction.

Statute: The NLRB has jurisdiction over “employers.” “Employer” is “any person acting as an agent of an
employer, direct or indirectly.” Then there are eight exceptions, none of which is a religiously-affiliated
organization.

Held (Burger): In the absence of a clear expression of Congress’ intent to bring teachers in churchoperated schools within the jurisdiction of the Board, we decline to construe the Act in a manner that
could in turn call upon the court to resolve difficult and sensitive questions arising out of the guarantees
of the First Amendment Religion Clauses.
 Was there clear expression of Congress’ intent? Let’s look at text and legislative history.
 An examination of the statute and its legislative history indicates that Congress simply gave no
consideration to church-operated schools. Burger bases this conclusion on statements made
surround the bill that was enacted as well as subsequent amendments to the statute.
Rather than looking at the text on its own, it looks to legislative history to manufacture an ambiguity. In
contrast, the dissent would rather just stick to the text.


o
Dissent (Brennan):
 Rejected proposal argument.
o The Hartley bill, which passed the House of Representatives in 1947, would have
provided the exception the Court writes into the statute (excluding any “corporation
organized and operated exclusively for religious, charitable, . . . or educational purposes”
from the definition of “employer”), but the proposed exception was not enacted.
o The Hartley bill did contain an exception limited to nonprofit hospitals which was
enacted, but even that limited exception was ultimately repealed in 1974.
o So there never was a general non-profit exemption, and that’s further underscored by
the repeal of the non-profit hospital exemption.
 Ashwander doctrine. The court may construe a statute in a way to avoid “serious” constitutional
doubts, but the construction that the court does adopt must be “fairly possible” given the Act’s
wording, its legislative history, and the Court’s own precedents.
o The majority’s interpretation is not fairly possible. The majority has written a clause into
the statute.
Note: today, the court is much more sensitive to judicial activism. It would probably be less likely to use the
Ashwander Doctrine so liberally.
38

Federalism canons
o
Clear statement rule: requires that a statute be interpreted a certain way unless the contrary interpretation is
clearly required by statutory text. Clear statement = clear statement in the statutory text (not legislative history).
 Criticisms of the clear statement rule:
 Every rule of clear statement operates unfairly ex post. In Gregory, Congress might have said:
how is it that we were supposed to know we had to be exceptionally clear about this thing?
Congress will always be caught by surprise. Trade off between unfairness ex post (surprise to
Congress ex post) vs. clarity ex ante.
 This assumes that Congress is paying attention to Supreme Court’s statutory interpretation
precedence in a way that isn’t realistic. The dialogue model of the relationship b/w Court and
Congress doesn’t always work.
 There’s a certain ambiguity. Is Court trying to tell Congress what to do (be clear) or does
Congress actually try to be clear? If Congress is actually trying to be clear, then the clear
statement rule is less unfair to Congress ex post.
o
Gregory v. Ashcroft (US 1991), p 923
 States retain substantial sovereign powers over matters essential to the states’ independence,
including the power to decide for itself the character of those who exercise government authority.
If Congress intends to regulate on matters of state sovereignty, it must make its intention to do so
unmistakably clear in the language of the statute.
 Facts: The federal Age Discrimination in Employment Act (ADEA) forbids an “employer” to specify a
mandatory retirement age for “employees.” State governments are “employers” covered by the ADEA.
The ADEA says that “employee” means any individual employed by any employer except: (1) any person
elected to public office, (2) any person chosen by such officer to be on such officer’s personal staff, (3) an
appointee on the policymaking level, (4) an immediate adviser with respect to the exercise of the
constitutional or legal powers of the office. The Missouri Constitution provided a mandatory retirement
age of 70 for most state judges. The MO state judged sued, seeking to obtain a declaration that the
mandatory retirement age violates the ADEA.

Held (O’Connor): Ruling for the plaintiffs. State judges are not covered by the ADEA. Congress has not
made it clear that judges are included.
 Judges are not “appointees on the policymaking level.” Applying noscitur a sociis, the personal
staff and immediate adviser exceptions refer to people with close working relationships to
elected official. We should infer that appointees on the policymaking level are also supposed to
have that close working relationship. Because judges don’t have that relationship, judges are to
be excluded.
o Justice White’s response (concurring in part, dissenting in part): another common
thread is that they’re all appointed by an elected official. So the common thread is
subjective.
 Because it’s ambiguous, O’Connor is going to infer that Congress did not intend to impede on
state rights.
 If Congress were invoking is Fourteenth Amendment power to regulate the states, they would
have also had to make that clear – i.e. clear that they’re invoking the Fourteenth Amendment and
then also clear how they are effecting the state.

Justice White (concurring in part, dissenting in part, concurring in the judgment):
 Congress has expressly extended the coverage of the ADEA to the states and their employees.
That was upheld in EEOC v. Wyoming. We can’t expect Congress to go even further and say
specifically “state judges.” That’s getting to a whole new level of clear statement.
39
o
BFP v. Resolution Trust Corp. (US 1994), p 936
 Court uses the Gregory principle to interpret a statute where there’s no regulation of the state. It’s just a
state property law matter.
 In no other case has the federalism doctrine been applied in the context where there’s no regulation of
the state.

Facts: Bankruptcy Code sets forth the powers of a trustee in bankruptcy to avoid “fraudulent transfers”
made within a year of the debtor’s bankruptcy. The statute permits avoidance is the trustee can establish
that the debtor received less than a “reasonably equivalent value” in exchange for such transfer. The
debtor in this case moved to set aside the sale of his house after the lender foreclosed on it on the
grounds that the sale price did not represent the home’s reasonably equivalent value.

Held (Scalia): “Reasonably equivalent value” means whatever price the property fetched, however low.
There’s an essential state interest at stake here: the state’s interest in the security of titles to real estate,
so if Congress meant to displace traditional state regulation, the federal statutory purpose must be “clear
and manifest.”
Llewellyn and the debate about canons and rules of clear statement




Llewellyn’s basic claim is that canons don’t make any useful contribution to the decision of cases because on each point for
which there is a canon, there is an equal and opposite canon
They’re bad because people actually think canons help contribute to the interpretation of a statute, but they’re actually
just a cover up for the exercise of judicial power
If canons are simply one tool to use in trying to persuade your point, then why not use them. Schwartz suggests that we
should. It seems to Schwartz that Llewelyn is exaggerating. Canons, in fact, do tend to be one tool that can help. It’s just
one tool of many.
Schwartz’s critique of Llewellyn:
o Some of the canons can be read as exceptions to the rule, not as counter-canons.
o Some can also be read as suggestion not to go too much in one direction, and not too much in the other direction
either. Choose a middle-of-the-road approach.
C. Extrinsic Devices
Common law






The traditional rule was that statutes in derogation of the common law should be narrowly construed. Common law is the
foundation, and any deviation from the common law rules needed special justification.
Over time, the traditional rule has eroded. Statutes are now the rule and common law is the exception.
However, common law remains an important extrinsic source for interpreting statutes. Two ways it’s used:
o When the legislature deploys words with established common law meanings, courts will presume that those
meanings are adopted by Congress.
o For older, more general statutes, the common law services a “gap filling” role. See Smith, Sherman Act.
Why look at common law? Reasons vary. May be because statute tells you to (e.g. the statute authorizes plaintiff to bring
an “action at law”) or because it gives you an understanding of what Congress had in mind at the time of drafting.
What common law? Common law at time of enactment or current common law? Brennan says current common law,
Rehnquist says common law at time of enactment.
Smith v Wade (US 1983), p 959  Everyone agrees on using the common law. But dispute arises over which common law.
o Facts: Wade, an inmate of a Missouri state prison, brought a § 1983 suit against Smith and four guards and
correction officials.
o Statute: Every person who under color of any statute subjects or causes someone else to deprive them of rights
40
o
o
shall be liable to the party injured in an action at law, or suit in equity. § 1983 is derived from the Civil Rights Act
of 1871.
Issue: Whether punitive damages may be awarded in a § 1983 action based upon a finding of reckless disregard
of, or indifference to, a plaintiff’s rights, or only upon a finding that the defendant acted with “actual malicious
intent”
Held (Brennan): Actual malice not required to get punitive damages.
 Tort common law around 1871 was that punitive damages could be awarded without a showing of actual
ill will, spite, or intent to injure. The same rule applies today in 1983. See Restatement (Second) of Torts
(1977).
 Characterizes the dissent’s position as “frozen”
o
Dissent (Rehnquist): Actual malice is required.
 Common law argument. The proper role of the court in interpreting § 1983 is determining that Congress
intended in 1871. Nineteenth century thinks reserved punitive awards for those who subjectively visited
evil on their fellows, not those whose conduct failed a recklessness standard.
 Textual argument. Choice of words – specifically “injury” and “redress” -- exclude punitive damages.
Punitive damages are not meant to be compensation.
o
Dissent (O’Connor): The common law does not give a clue one way or the other, so the focus should be on the
purpose of the statute. The purpose of the statute is to compensate victims and deter violations. Punitive damages
don’t compensate victims but they do deter. With respect to the purpose of deterrence, you have to balance the
pros and cons of having punitive damages.
o
Gloss:



Some statutes Congress obviously intends to evolve common law style. Classic examples = § 1983,
Sherman Act.
“Action at law” cries out for court to look at common law
Contrast Smith with Moragne
o Moragne looks at how statutes influence the common law. In Smith, the court is concerned with how common law
influences statutes
o In Moragne we reach the conclusion that statutes can and should influence the common law even when they’re
outside the four corners of what the statute covers. That is because legislatures are superior when it comes to
making the law. They are equipped to make policy judgments. So if you take this principle and apply it to the
context where we’re trying to decide whether to incorporate common law into a statute, one would conclude that
we should not do that.
o The counter argument to that is that neither statutory law nor common law is better than the other. They should
inform each other as a way to make the corpus juris cohesive.
Surrounding circumstances/history/context

Leo Sheep Co. v. United States (US 1979), p 973
o Facts: The Union Pacific Railroad Act of 1862 granted public land to the Union Pacific Railroad for each mile of
track that it laid. Land surrounding the railway right-of-way was divided into “checkboard” blocks. Oddnumbered lots were granted to the Union Pacific; even-numbered lots were reserved by the Government. The
government built access roads across the checkerboard land to access the Seminoe Reservoir. The government’s
position is that when they granted the squares to the railroad, they implicitly reserved a right of way across the
corners of the railroad’s squares so they could get from one square to another. The Leo Sheep Co., successors to
the Union Pacific Railroad, brought suit to quiet title against the United States.
o Held: government did not implicitly reserve an easement to pass over the odd-numbered sections to reach the
41
even-numbered sections. Held for the plaintiffs.
 When the government did this land grant system, they were trying to incentivize development. They had
no idea at the time they were going to want to access any of it for recreational purposes. The idea of
recreation and preservation were just not things that were in vogue in the 19 th Century. Congress just
could not have intended that.
 Also expressio unio argument. There were other exceptions made in the statute.
Legislative History--Committee Reports

Conventional hierarchy of legislative history, p 972, from most strong to most weak
o Conference committee reports
o One-house reports
o Floor statements from sponsors or drafters
o Other floor statements
o Committee hearings. Non-Congress people testify. So the only claim you can make is that members of Congress
heard this testimony. Scalia would say it’s probably only the Subcomm chair and his/her aide.
o Subsequent legislative history
o Silver Blaze (silence in the legislative history)

Blanchard v. Bergeron (US 1989), p 983
o Facts: A jury awarded Blanchard $5000 in compensatory damages and $5000 in punitive damages on his civil
rights claim, under 42 U.S.C. § 1983, that he had been beaten by a sheriff’s deputy. He sought attorney’s fees under
the 1976 Civil Rights Attorney’s Fee Award Act, codified at 42 U.S.C. § 1988. The district court awarded $7500 in
fees. The fifth Circuit however held that under its decision in Johnson v. Georgia Highway Express Inc., the 40%
contingency fee agreement Blanchard had entered into his attorney set a ceiling on recoverable fees. Thus the
Fifth Circuit limited the fee award to $4000 (40% of the $10,000 damages awarded).
o Issue: Whether 42 U.S.C. § 1988 precludes awarding attorneys’ fees above the amount that was contracted for
between the attorney and the client
o Held (Justice White): No, attorneys’ fees can be awarded for an amount over and above that which was contracted
for.
 Justice White relies on a Senate Report, which said: “In computing the fee, counsel for prevailing parties
should be paid, as is traditional with attorneys compensated by a fee-paying client, ‘for all time
reasonably expended on a matter.’”
 Both the House and Senate Reports refer to the 12 factors set forth in Johnson v. Georgia Highway Express
for assessing the reasonableness of an attorney’s fee award
 The Senate Report, in particular, refers to three District Court decisions that “correctly applied” the 12
factors laid out in Johnson
 Those district court cases clarify that the fee arrangement is but a single factor and not determinative; the
presence of a pre-existing fee agreement ma aid in determining reasonableness
o Scalia (concurring in part and concurring in the judgment):
 Scalia thinks this is a particularly egregious use of legislative history
 He finds it doubtful that more than only a small proportion of the members of Congress read either one of
the Committee Reports in question, even if the Reports happened to have been published before the vote
 It’s also doubtful that those who did read the Report checked out what the four cases at issue actually
said and that no member of congress came to the judgment that the district court cases would trump
Johnson on the point at issue here because the latter was dictum
 The references were inserted b a committee staff member on his own initiative or by a committee staff
member at the suggestion of a lawyer-lobbyist
 The purpose of the references was to influence judicial construction
42
Legislative History continued

In re Sinclair (7th Cir. 1989), p 991  Where the statutory language and the legislative history are contradictory, the
statute must prevail. Legislative history should only be used for explanation and understanding, not contradiction.
o Facts: The Sinclairs, who have a family farm, filed a bankruptcy petition in April 1985 under Chapter 11 of the
Bankruptcy Act of 1978. In October 1986 Congress added Chapter 12, providing benefits for farmers, and the
Sinclairs asked the bankruptcy court to convert their case from a Chapter 11 to Chapter 12. The bankruptcy judge
declined, and the district court affirmed. Each relied on § 302(c)(1): “The amendments made by . . . shall not apply
with respect to cases commenced under title 11 of the United States Code before the effective date of this Act.”
The Sinclairs rely on the report of the Conference Committee, which inserted § 302(c)(1) into the bill: “It is not
intended that there be routine conversion of Chapter 11 cases, pending at the time of enactment, to Chapter 12.
Instead, it is expected that courts will exercise their sound discretion in each case, in allowing conversions only
where it is equitable to do so.” The Conference Committee report then lists factors to consider in deciding on the
conversion. Thus, there is a conflict between the statute (which says conversion is impossible) and the report
(which says that conversion is possible and describes the circumstances under which it should occur).
o Held (Judge Easterbrook): the statute must prevail. Touchstone is the meaning of the text. The statute was
enacted, the report just the staff’s explanation. Congress votes on the text of the bill, and the President signed that
text. Committee reports help the courts understand the law, but where the report is contradictory rather than
explanatory, the statute must prevail.
 Legislative history can be used to provide context for the time in which the statute was passed and to
understand the language at the time it was passed, but not to contradict the words of the statute. If you
used the legislative history to contradict the meaning of the statute, then your touchstone would be
legislative intent.

Pepper v. Hart (House of Lords for the United Kingdom 1992), p 1001
o Facts: Malvern College allowed employees to send their children to the school for 20% of the fees paid by other
parents.
o Issue: What amount should the employees count as taxable income as a result of the benefit? Should it be the
balance of the tuition paid by other families or should it be the cost to the school of enrolling the students?
o Held: the employees should count as income the marginal cost to the school of enrolling the children (which was
basically $0). House of Lords found the statutory explication by the Financial Secretary to the Treasury to be
decisive evidence.
 Reference to legislative history should only be made where:
 Legislation is ambiguous or obscure, or leads to an absurdity
 The material relied on consists of one or more statements by a minister or other promoters of
the Bill together if necessary with such other Parliamentary material as is necessary to
understand such statements and their effect
 The statements relied on are clear
o Gloss:
 It would be difficult to apply this framework in the US. The idea of a minister doesn’t work in the US
because we don’t have people who sit in both the legislative and the executive branch.
 Two ways you could respond to this difficulty:
 (1) Because you can’t satisfy the conditions that the law lords laid out in the US, you shouldn’t
use legislative history. That would make Scalia happy.
 (2) Although we don’t have ministers, we do have bill sponsors. We could rely on sponsor
statements in the same way the British system relies on minister’s statements.
43
Legislative History: Drafter’s statements
 1980s was a time when SCOTUS was at its most open-minded or non-critical about the kinds of legislative history you
could use. You could use non-drafter, non-member statements.

Kosak v. United States (US 1984), p 1014
o Facts: While a serviceman stationed in Guam, Kosak assembled a large collection of art. When he was transferred
from Guam to Philadelphia, he brought his art collection with him. He was subsequently charged with smuggling
the collection into the county, but he was acquitted by a jury. The Customs Service then notified Kosak that the
seized objects were subject to civil forfeiture, which at the time permitted confiscation of goods brought into the
United States “by means of any false statement.” Although the Customs Service returned the art, Kosak claimed
that some of the objects were damaged and filed suit pursuant to the Federal Tort Claims Act. The Federal Tort
Claims Act provides that the United States shall be liable “for injury or loss of property . . . caused by the negligent
or wrongful act or omissions of any employee of the Government . . . .” The United States argued that it should not
be liable because the damage to the art falls into one of the exceptions under the Federal Tort Claims Act. Section
2680(c) exempts from coverage of the statute “any claim arising in respect of the detention of any goods or
merchandise by any officer of customs.” Kosak argued that the exception does not cover negligence.
o Held (Justice Marshall):
 Government is not liable.
 (1) Marshall starts with the language of § 2680(c). Marshall concludes that the fairest interpretation is
the one that first springs to mind: “any claim arising in respect of” the detention of goods means any
claim “arising out of” the detention of goods, and includes a claim resulting from the negligent handling
or storage of detained property.
 (2) Marshall also relies on report written by Alexander Holtzoff, who was the person “who almost
certainly drafted the language under consideration.” In the report, Holtzoff says the exception in question
was intended to expand immunity from liability for injury during detention. Holtzoff modeled the
language in the bill after the language in another bill that specifically said the government should be
exempt “for anything done or omitted to be done by any officer of customs and excise.”
 Schwartz counterpoints:
o At the time he wrote the Report, Holtzoff was serving as Special Assistant to the
Attorney General. There was a 15 year time gap in between the time Holtzoff wrote this
report and the time the statute was enacted.
o The language of the bill on which Holtzoff modeled his bill was never actually quoted in
his report. So it’s not that clear Congress was aware of his point.
 (3) Congress committee reports reference the exemptions covering “claims arising out of” to paraphrase
the “arising in respect of” language that is in the statute. Undercuts Stevens’ deliberate variation
argument.
o Dissent (Justice Stevens):
 (1) Deliberate variation argument. The exemption in § 2680(c) exempts claims “arising in respect of” the
government’s behavior. Three other exemptions use the language “arising out of.” So the § 2680(c)
exemption cannot mean the same thing as the other exemptions.
 Schwartz: The difference in the words is just not striking enough to say that the difference is
meaningful.
 (2) Committee reports are just an introduction. They sacrifice specificity for the sake of brevity.
 (3) Holtzoff report. “In construing a statute, the worst person to construe it is the person who is
responsible for its drafting. He is very much disposed to confuse what he intended to do with the effect of
the language which in fact has been employed.” Stevens is playing the textualist here.
 Plus, there is no indication that any Congressman ever heard of the document or knew that it
even existed.
44
Hearings and floor debates; rejected proposals

Rejected proposal rule = interpreters should be reluctant to read statutes broadly when a committee, a chamber, or a
conference committee rejected language explicitly encoding that broad policy

FDA v. Brown & Williamson Tobacco (US 2000), p 1022  rejected proposals are persuasive
o Facts: The Food, Drug & Cosmetic Act grants the FDA the authority to regulate, among other items, “drugs” and
“devices.” In 1966, the FDA asserted jurisdiction to regulate tobacco products, concluding that, under the FDCA,
nicotine is a “drug” and cigarettes and smokeless tobacco are “devices” that deliver nicotine to the body. Pursuant
to this authority, the FDA promulgated regulations governing tobacco products; promotion, labeling, and
accessibility to children and adolescents A group of tobacco manufacturers, retailers, and advertisers, filed this
suit challenged the FDA’s regulations.
o Held (O’Connor): Congress has not granted the FDA jurisdiction to regulate tobacco products.
 O’Connor does a good job at pulling together pieces of weak supporting material to make a strong case.
So on their own, hearings, floor debates, and rejected proposals don’t do much. But collectively they can
make a good point.
 Rejected proposals
 “On several occasions . . . and after the health consequences of tobacco use and nictone’s
pharmacological effects had become well known, Congress considered and rejected bills that
would have granted the FDA such jurisdiction. Under these circumstances, it is evident that
Congress’ tobacco-specific statutes have effectively ratified the FDA’s long-held position that it
lacks jurisdiction under the FDCA to regulate tobacco products.”
 Before enacting the FCLAA in 1965, Congress considered and rejected several proposals to give
the FDA authority to regulate tobacco.
 Hearings
 In 1964 congressional hearings responding to the Surgeon General’s opinion that cigarette
smoking is hazardous to one’s health, FDA representatives testified that the agency did not have
authority to regulate cigarettes or smoking under the FDCA. So given the economic and political
significance of the tobacco industry at the time, it is unlikely Congress could have intended to
place tobacco in FDA’s jurisdiction without discussion of the matter.
o Dissent (Breyer):
 Rejected proposals do not necessarily mean that Congress did not intend to grant authority to FDA. “In
fact, Congress both failed to grant express authority to the FDA when the FDA denied it had jurisdiction
over tobacco and failed to take that authority expressly away when the agency later asserted
jurisdiction.”
 Only shows that Congress could not muster the votes necessary either to grant or to deny the FDA the
relevant authority

Rapanos v. United States (US 2006), p 1022  rejected proposal was not persuasive to the court majority
o Facts: The Federal Water Pollution Control Act Amendments of 1972 prohibit the discharge of pollutants into the
nation’s waters, excepting only discharged allowed by the Act. Section 404 allows only administratively permitted
discharge of dredge or fill into “navigable waters,” which the statute defines as “waters of the United States,
including the territorial seas.” The Conference Committee had rejected including the term “navigable” into the
definition of Section 404 because they wanted the term “navigable waters” to be given the broadest possible
interpretation. In 1975, the Army Corps of Engineers adopted regulations defining “navigable waters” to include
“wetlands” that are “adjacent” to (1) navigable waters as traditionally defined, (2) tributaries of navigable waters,
and (3) interstate waters, whether or not navigable, and their tributaries. In addition, isolated wetlands are
included if their degradation could affect interstate commerce.
 The regulations were the subject of extensive committee hearings in both the House and Senate. The
House bill as reported out of committee proposed limiting the term “navigable waters” to waters
45
o
o

navigable in fact and their adjacent wetlands. The Senate bill as reported out of committee contained no
redefinition of the scope of the “navigable waters” and dealt with the perceived problem of overregulation by exempting certain activities from the permit requirement (such as agriculture) and by
providing for the assumption of some of the Corps’s regulatory duties by federally approved state
programs.
 On the floor of the Senate, Senator Bentsen proposed an amendment to limit the scope of
“navigable waters” along the lines set forth in the House bill. After extensive debate, the Senate
rejected the amendment.
Issue: does “navigable waters” include wetlands which are 11 to 20 miles away from the nearest body of
traditionally navigable waters?
Justice Scalia (plurality): No.
 Justice Scalia dismissed the Corps’s argument that the rejected proposals in 1977 constituted legislative
adoption of the Corps’s broad definition
 “We have no idea whether the Members’ failure to act in 1977 was attributable to their belief that the
Corps’ regulations were correct, or rather to their belief that the courts would eliminate any excesses, or
indeed simply to their unwillingness to confront the environmental lobby.”
 Scalia is skeptical of attributing weight to the fact that Congress rejected a proposal that would have
clarified the law one way. Just because Congress rejected the proposal doesn’t mean the law means the
opposite of what the rejected proposal said it means.
Rejected proposals on which the law is mixed
o Ratification by acquiescence. If court says something, and Congress does nothing, then Congress has acquiesced.
 Bob Jones (relying on congressional acquiescence to validate IRS rulings denying tax-exempt status to
racially discriminatory schools)
 Johnson (assuming that the Court’s interpretation of Title VII in Weber was correct because Congress did
not amend the statute to reject the Court’s construction)
o Ratification by re-enactment. When a statute is given a particular interpretation and then it’s re-enacted by
Congress w/o material change, that does ratify the judicial interpretation.
 This doctrine has been approved by a consensus
Legislative History: “Silver Blaze”: “the dog that didn’t bark”

Silver Blaze = an inference made from silence in the legislative history

Montana Wilderness Association v. United States Forest Service (9th Cir. 1981), p 1027  court found absence of
legislative history persuasive
o Facts: Defendant Burlington Northern owns timberland located within the Gallatin National Forest southwest of
Bozeman, Montana. This land was originally acquired by its predecessor under the Northern Pacific Land Grant
Act of 1864. To harvest its timber, the defendant acquired a permit from the United States Forest Service, allowing
it to construct an access road the Gallatin National Forest. Environmentalists and a neighboring property owner
seek to block the construction of roads. Defendants contend that the Alaska National Interest Lands Conservation
Act, § 1323(a) requires the Secretary of Agriculture to grant it access because it mandates: “the Secretary shall
provide access to nonfederally owned land surrounded by public lands managed by the Secretary as the Secretary
deems adequate to secure to the owner the responsible use and enjoyment thereof.” The plaintiffs argue that the
Alaska National Interest Lands Conservation Act does not apply to land outside the state of Alaska. The
defendants contend that the law applies to national lands.
o Held: The plaintiffs are right – the Alaska National Interest Lands Conservation Act does not apply to lands
outside of Alaska.
 The Whole Act Rule argument. § 1323(a) and § 1323(b) use parallel language. So the natural reading is
that they are meant to cover the same issue with respect to lands managed by the Secretary of
46


Agriculture and the Secretary of Interior. Section 1323(b) is limited to lands in Alaska, so it would be
reasonable to infer that § 1323(a) is limited in the same way.
Senate Committee Report. Court says it does not find the plaintiff’s interpretation of the Committee
report persuasive. While the Committee’s intent to guarantee access is clear, it is less than clear whether
this provision was meant to guarantee access outside of Alaska.
Silver Blaze argument. If the law means what the defendants say it means, then one would expect a
change in the current laws of access of the this magnitude to be discussed, mentioned, or at least alluded
to. In Senator Tsongas’ long, detailed comparison of his substitute bill with the Energy Committee bill, §
1323 is not mentioned. In his discussion about the adequacy of the substitute bill’s access provisions, no
mention is made of a change in the law of access for the rest of the county.
Post-enactment legislative history


Post-enactment legislative history is viewed with more skepticism than pre-enactment legislative history, but it was
persuasive to the court in Montana Wilderness below
Where post-enactment legislative history is persuasive, it’s because subsequent legislative action relies or depends on the
truth of what the subsequent legislative history says about the earlier legislation

Montana Wilderness Ass’n v. United States Forest Service (9th Cir. 1981), p 1036
o Facts: Three weeks after Congress passed the Alaska National Interest Lands Conservation Act, a House-Senate
Conference Committee considering the Colorado Wilderness Act interpreted § 1323 of the Alaska National
Interest Lands Conservation Act as applying nation-wide. So Burlington Northern now point to this fact as
support for their position that it can build its access roads over the national forest in Montana as long as it gets
approval from the Secretary of Agriculture.
o Held: This tips the balance in favor of Burlington Northern’s reading of Alaska National Interest Lands
Conservation Act, § 1323.

Bob Jones University v. United States (US 1983), p 1050
o Majority (p. 1056): Congress enacted section 501(i) in 1976 which said private clubs can’t be tax exempt if they
discriminate on the basis of race. Section 501(i) doesn’t explicitly ban exemptions for schools that discriminate, it
only bans tax exemptions for clubs that discriminate. But the accompanying legislative history said Congress
thought it was already banned from schools based on lower court decisions, such as Green v. Connally.

Presidential signing statements
o In the Reagan administration in the 1980s, the DOJ became interested in playing up the role of Presidential
signing statements as part of legislative history. That was a time that Republicans controlled White House and
Democrats held the power in both houses of Congress, so it was fighting fire with fire.
o Presidential signing statements are most persuasive when they’re used to illuminate a point that wasn’t in
controversy, e.g. way words were used, background in understanding. They’re not going to be used to change the
meaning of the statute.
Legislative inaction & Ratification

Bob Jones University v. United States (US 1983), p 1050
o Facts: Starting in the early 1970s, IRS had begun to interpret 501(c)(3) to deny tax-exempt status to schools that
discriminated on the basis of race in their admissions. Bob Jones prohibited interracial dating.
o Held (Burger): Upheld IRS’ ruling.
 The court’s theory is that there’s common law understanding of what it means to be charitable, and that
includes the idea that you can’t contravene public policy. Court has to get around the fact that 501(c)(3)
lists certain exemptions, and racially discriminatory schools is not one of them.
47
Touchstone = purpose of the Internal Revenue Code. “It’s a well-established canon of statutory
construction that a court should go beyond the literal language of a statute if reliance on that language
would defeat the plain purpose of the statute.”
 Has to take a dynamic approach to statutory interpretation. If he didn’t, he would run into the problem of
looking at the legislative intent of the legislature when Internal Revenue Code was enacted (1894). No
one would have had a problem with racial discrimination then. Dynamic statutory interpretation. See also
Smith v. Wade; FDA v. Brown & Williamson Tobacco.
 Legislative inaction and ratification:
 Ratification by acquiescence. Congress was aware of SCOTUS’ ruling in Green v. Connally and did
nothing to change. Green v. Connally established that discrimination on account of race is
inconsistent with an educational institution’s tax-exempt status.
 Ratification by reenactment. Congress enacted section 501(i), which denied tax-exempt status
for private clubs that discriminate. It’s a subsequent enactment of a parallel provision.
 Rejected proposal rule. Proposals were introduced to overrule the IRS’ interpretation
disallowing the tax exemption to schools that discriminated and Congress declined to do that.
Dissent (Rehnquist):
 Majority says that 501(c)(3) should be read in pari materia with section 170 (when individual TP should
get a charitable deduction). Dissent points out that section 501(c)(3) was enacted 20+ years before
section 170. 501(c)(3) enacted in 1894. Section 170 enacted in 1917. How could Congress have meant for
501(c)(3) to be read in light of 170? If any inference should be made, it’s that section 170 should be read
in light of section 501(c)(3).

o
Interpretation in light of other statutes

Road map:
1. Whole Act Rule. Strongest doctrine.
2. In pari materia doctrine. See Cartledge; Lorillard. You are interpreting one statute in light of an interpretation of
another statute from the same jurisdiction.
3. Borrowed statute rule. See Zerbe. You have a source statute which comes from one jurisdiction and then a borrowed
statute from another jurisdiction. This is a principle that says interpret the borrowed statute in light of the
interpretation given to the source statute -- but not always. This is a weaker doctrine than the in pari materia
doctrine.
4. Conflicting statutes in the same jurisdiction. How do we reconcile them? That’s Morton v. Mancari. When statutes
conflict irreconcilably, the more recent statute trumps the older statute. But courts will find a way to reconcile the
statutes before that happens.

Cartledge v. Miller (SDNY 1978), p 1066
o Facts: ERISA prohibits the assignment of employees’ pension benefits and thereby exempts such benefits from
attachment or garnishment by creditors. George Cozart was ordered in 1958 to make support payments to his
estranged wife. In 1977 the assignee of Vivian’s support rights sought attachment of his pension.
o Issue: whether there exists an implied exception to the ERISA anti-assignment or alienation provisions with
respect to orders for the support of a wife and dependent children issued by a state court?
o Held (Weinfeld): yes.
 Clear statement rule. Unless positively required by direct enactment the courts should not presume a
design upon the part of Congress in relieving the unfortunate debtor to make the law a means of avoiding
enforcement of the obligation, moral and legal, devolved upon the husband to support his wife and to
maintain and educate his children.
 Touchstone = purpose of ERISA. We’re not going to read the language literally where it would frustrate
the purpose. Holy Trinity idea.
 The purpose of the anti-garnishment provision is not to allow diversion of funds that are
essential to your personal and family needs
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
Tools =
 Silver Blaze. Nothing suggests the proscription against assignment was meant to include family
support obligations.
 In pari materia. An overall congressional purpose not to interfere with state’s power may be
gleaned from judicial interpretation of exemption provisions in other federal statutes. In a wide
variety of circumstances, courts have taken the view that anti-garnishment language should not
be applied to family support obligations. Judge Weinfeld says he should interpret ERISA in light
of the ongoing conversation b/w courts and Congress.

Lorillard v. Pons (US 1978), p 1070
o When Congress borrows language from one statute and uses it another, it should be presumed that it’s
also accepting the way the source statute language has been interpreted
o Facts: The Age Discrimination in Employment Act contains no provision expressly granting a right to a jury trial.
But, rights created by the ADEA are to be enforced in accordance with the powers, remedies, and procedures of
the Fair Labor Standards Act. Long before Congress enacted the ADEA, it was well established that there was a
right to a jury trial in private actions pursuant to the FLSA.
o Issue: whether there is a right to a jury trial in private civil actions for lost wages under the Age Discrimination in
Employment Act of 1967?
o Held (Marshall):
 Yes. Plaintiff gets a jury trial.
 It was interpreted by lower courts that FLSA provides a jury trial right. Congress is presumed to be aware
of judicial interpretations of provisions that it reenacts or borrows.
 Congress adopted the procedural provisions of FLSA and moreover in certain instances Congress
changed them. So basically the argument is that Congress adopted the FLSA provisions and made changes
when they wanted to. Since they didn’t make a change on this subject, it’s assumed they meant to follow
the approach that had been taken under FLSA.
o Note:
 Scalia approves of this idea that we ought to make various statutes fit together. It would be a good idea if
our law was made to fit together rationally this way.

Zerbe v State (Alaska 1978), p 1077
o When one jurisdiction models its law on the law of another jurisdiction, it does not always adopt the
interpretation of the law in that other jurisdiction. It only adopts the interpretations of the law by the
highest court in that jurisdiction.
o Facts: Alaska modeled its tort claims act on the Federal Tort Claims Act. The FTCA has exception to waiver of
sovereign immunity. One of the exceptions is for claims of false imprisonment. The plaintiff claims that his
complaint is one of negligence – that the State of Alaska negligently maintained its records and as a result the
State failed to see that his charge for driving an overweight truck had been dismissed. As a result, he was held in
custody for nine hours before he was able to post bail. In some federal cases, courts have concluded that
complaints under the same situation have been interpreted as claims of false imprisonment rather than negligent
record-keeping.
o Held: This is a claim of negligence, not one of false imprisonment. The court held this way in spite of the fact that
some federal case law came out the opposite way. There are a number of federal courts that have held for the
plaintiff in situations similar to the plaintiff here. Regardless, when a statute is adopted from another jurisdiction,
it is not the interpretative decisions of all courts of that jurisdiction which are presumed to be adopted with the
statute. It is only the settled interpretations of the highest court of the other jurisdiction which are presumptively
intended by the lawmaker to be adopted with the statute.

Morton v. Mancari (US 1974), p 1082
o Facts: The Indian Reorganization Act of 1934 accords an employment preference for qualified Indians in the
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o
o
o
Bureau of Indian Affairs. Plaintiffs are challenging this preference as contrary to the anti-discrimination
provisions of the Equal Employment Opportunity Act of 1972.
Issue: what to do when two statutes conflict? Was the Indian preference repealed by the 1972 Act?
Held (Blackmun): No, the preference remains intact.
 When statutes conflict irreconcilably, the more recent statute trumps the older statute.
 But, the court finds a way to read the statutes so that they are not irreconcilable. One way to do that is by
reference to the principle that more specific statutes trump more general statutes. Here, the older
statute is more specific and the newer statute is more general. So the older statute remains intact.
Gloss:
 This is a doctrine that favors vertical consistency over horizontal consistency.
Deference to administrative interpretation

Chevron
o Step 0, part 1: is the agency entitled to deference? Is it the right agency? Agencies do not get deference where they
are interpretation a statute that applies agency-wide.
 No  agency does not get deference
 Yes  move to next step
o Step 0, part 2: is the proceeding by which agency interpreted the statute one that is entitled to Chevron
deference?
 No. The agency interpretation was not arrived at legislative rulemaking (formal or informal), or a formal
adjudication.  agency gets Skidmore deference.
 Yes. The agency interpretation was arrived at legislative rulemaking (formal or informal), or a formal
adjudication.  move to next step
o Step 1: Does the statute answer the precise question agency had to answer? If the intent of Congress is clear, then
the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. Scalia would
usually stop here and say the statute answers the question.
 Yes. The statute answers the question  did the agency get it right?
 No.  move to next step
o Step 2: is the agency interpretation reasonable? Reasonable is meant to be a paraphrase of “not arbitrary and
capricious.”
 No  agency action was arbitrary and capricious
 Yes  agency interpretation is upheld

Chevron FAQs
o Why are you supposed to defer to the agency’s interpretation if they are the right agency, it’s the right proceeding,
and their interpretation is reasonable?
 When Congress leaves a gap, implicitly they are delegating.
 Political responsibility justification. Although the heads of agencies are not elected, they answer in some
sense b/c they can be fired by POTUS, so they are answerable at least indirectly to political authority. It’s
better to defer to agencies than for courts to be aggressive in interpreting the statute in a way they think
is right.
o In answering this step one question, what tools are you allowed to use to decide whether the statute answers the
question that the agency had to answer?
 FN 9, p 1198: use the traditional tools of statutory interpretation. But the case doesn’t tell you what the
traditional tools are. Court looks to legislative history quite closely, so that is apparently one option.
We’re wondering whether Congress had a clear intent, and you can use whatever tools will get you there.
o What happens when agency’s interpretation changes over time?
 At Step 1, changes of position may undermine the agency’s likelihood of winning. Particularly if the
agency’s argument is: “Our position is the one right position. It’s clearly right.”
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
At Step 2, agency changes of position don’t matter. Agency interpretations can be totally reasonable even
if they used to say the opposite.
State Statutory Interpretation in a Controversial Context

Palm Beach County Canvassing Board v. Harris (Florida Supreme Court 2000), p 1247
o Facts: On November 8, 2000, Florida Division of Elections reported that Bush had received 2.9m votes for
President in that state, narrowly winning Florida over Gore. On November 9, the Florida Democratic Party
Executive Committee requested that manual recounts be conducted in Broward, Palm Beach, and Volusia
counties. The Florida Division of Elections determined that returns from all counties must be received by
November 14 in order to comply with Fla. Stat. § 101.111(1). She would ignore returns submitted after that cutoff time. Volusia and Palm Beach counties sued for an injunction barring the Secretary from ignoring returns after
that time.
o
Issues:
 (1) Whether the ballots that didn’t get counted constituted an “error in the vote tabulation” within the
meaning of the statute that governs your right to get a manual recount. Fla. Sec of State said that only if
the vote counting system was technically defective would you be entitled to a manual recount. Court
rejects that.
 (2) Whether, if there is a recount, the amended returns may or must be accepted by the state electoral
commission in the face of language that seems to set a 7 day deadline after the election for accepting
returns.
o
Held: (1) “error in vote tabulation” is not limited to technical defects. It can include any miscount of the ballots.
(2) the amended returns may be accepted by the state electoral commission despite the apparent 7 day deadline
 Court starts off by saying that the state and federal constitutions dictate a strong preference for making
every vote count and counting every vote that’s countable
 Why did Florida administrative agency not get deference? Florida court says normally we defer, except
when we think they’re wrong, and we think they’re wrong here.
 Touchstone = intent of the legislature
 Anti-surplasage canon. There’s a penalty for turning in late ballots after the 7 day deadline. This penalty
provision suggests that the votes will still be counted though. No county would submit late and get
penalized if they weren’t going to be counted anyways.
 One part of the statute said that you shall ignore late returns and the other said you may ignore late
returns. Court makes an argument that the “may” statute trumps the “shall” statute b/c it’s the more
specific statute.
o
Gloss:




o
A lot of the things that Fla. Supreme Court did would have seemed perfectly orthodox to SCOTUS in 1960s
or 1970s, but not in 2000s because of a shift in a textualist direction.
This seems to be a less than rigorous application of purposive interpretation
This is kind of a mix. There is no touchstone and no tool that is mentioned in this opinion that is unheard
of in the federal statutory interpretation case law. But the way it’s put together seems sort of out of
harmony with the trends in statutory interpretation case law.
You could say that Fla. Supreme Court was creating a clear statement rule -- we should count all votes
unless legislature says otherwise
Subsequent history: the US Supreme Court unanimously vacated the foregoing opinion, on the ground that the
Florida court’s interpretation of the statutes may have been influenced by their view of the state constitution. The
court’s role was to determine what procedures the legislature has actually chosen, not what the procedures the
state constitution would require the legislature to choose in state elections.
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