LIME LION—LEGISLATION OUTLINE
DEP—Jones (Fall 2011)
OVERVIEW OF THE CIVIL RIGHTS ACT OF 1964
1. IMPORTANT LESSONS FROM CIVIL RIGHTS ACT
a. (1) Power of Key Players
i. Ex: President, VP, chairpersons of important committees, etc.
1. Many Sellers- House judiciary chair; advocate of civil rights; deeply committed to civil
rights; savvy strategist
2. Judge Smith- House chair of rules committee; hater of civil rights
3. Senator Eastland- Chair of judiciary committee in the senate; hater of civil rights;
notorious for destroying civil rights bills
ii. Strange coalitions between power players can be created to effect change
iii. Need to know about key players b/c if there is ambiguity in a statute, the statements of key
players can play a great weight
1. Characterizations: use terms to help your cause
a. “Broad dramatic terms”—Sellers
b. “Moderate in application”—McCulloch
iv. Reasons to send out a version of the bill stronger than the one proposed:
1. Ask for more and you may get less (the amount you actually wanted)
2. Allows room for compromise—good image for the person and the party
3. More publicity
4. Demonstrates moral courage regarding the issue
v. Difficult to know real reason behind a vote: Examples—
1. McCulloch voted against the bill (even though he supported civil rights) b/c he thought it
was too strong and wouldn’t pass
2. Southerner’s were trading votes with westerner’s on water projects
vi. Committee Chair
1. Person w/most power
2. Appoints persons that go to the conference comm. to iron out details
3. Acts as the floor manager
b. (2) Critical Roles of Committees
i. Substantive Committees
1. Most influential component of the leg. process
2. Assignment:
a. Politicians work to frame bills to the jxnlly ambiguous areas
b. Precedent determines what bills go to which comm.
ii. Power of negation
1. Ability of a comm. or chair not to consider a bill
2. Chairman can kill a bill by choosing not to consider it (80-90% die in comm.)
iii. Why Congress would give so much power to a tiny group:
1. Pros:
a. Specialization
b. Efficiency—allows people w/experience to get through bills quickly
2. Cons:
a. Politicians can more easily advance their agenda
b. Political tool for preservation—appoint a congressman to an effective committee
to help them in the polls/reelection
iv. Reasons Comm. Report is Important:
1. After a bill makes it out of comm, congressmen look strongly to the chair for guidance
2. Sometimes bill is gibberish (merely says strike line 4)—needs an explanation
3. Report provides section by section analysis
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4. House/Senate have a rule that they will not consider a bill until they have a comm. report
5. Reliance: Good indicator of intent b/c congressman rely on them when making their vote
v. Conference Comm.
1. Parties can only comment/work on portions of bill that are in conflict
2. Combine all major provision of two houses, w/history, that can be used later
3. Allows parties to wash their hands if there is no result
c. (3) Importance of Presidential Involvement
i. President sets the tone of the legislation
ii. President can call in favors to get it passed (Ex: Johnson)
iii. Has control starting the bill, but loses control after it starts
iv. Has the biggest bully pulpit—able to sway opinion
v. Considered the #1 legislator
d. (4) Variety of Procedural Deathtraps (Easier to Kill a Bill than Pass It)
i. House is all about the rules
1. Concerned about whether bill is expedited, etc.
2. Rules comm. for house sets all the rules
ii. Senate is a gentleman’s club
1. No limitations on relevancy, length, or content
2. “We pour legislation into the senate to cool it”
3. Filibuster can be used
iii. Methods
1. Killed in substantive or rules comm.
2. Stuck in calendar
3. Talked to death (filibuster)
4. Gutted by floor amendments
5. Vetoed
6. Destroyed in conf. comm.
2. OVERVIEW OF THE LEGISLATIVE PROCESS
a. Bill introduced Comm. consideration (mark up; many die)  Calendar scheduling legislative
consideration Floor consideration (debate; amendment; vote)  Conference comm. Presidential
signature
3. LEGISLATIVE HISTORY MANIPULATION: INSERTION OF “SEX”
a. Rep. Smith tries to insert “sex” in the text to kill it
b. Celler: tries to defeat the floor amendment
i. Uses the parade of horrible –tactic of listing all the terrible things that could occur b/c of the
amendment (ex: alimony for men, women in military, etc)
c. Fewer than half of those at the amendment stage were people really in favor of it (rest were trying to kill
the bill)
i. Does not make this lesser of a law—hard to interpret
THEORETICAL MODELS OF THE LEGISLATIVE PROCESS
1. PROCEDURALIST MODELS
a. Generally: Legislative process has procedural hurdles to prevent groups from taking control and that
ensures deliberative decision making
b. Madisononian/Federalist Papers
i. Thesis: Factions (evil) exist and must be controlled by a representative and deliberative gov’t
1. Factions: groups of people w/a singular idea that unite for adverse goals (they will
temporarily command a majority b/c of inflamed passions, deception, etc.)
ii. This model favors procedures that ensure or encourage representative and deliberative govt’
1. Constitutionally Mandated Hurdles
a. Checks and balances between branches—favored
b. Bicameralism and presentment—favored
i. Encourages deliberation btwn branches and slows things down
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2. Vetogates—Series of non-constitutional hurdles that give bodies the ability to effectively
veto the legislation
a. Can be used to foster deliberation b/c instead of killing the bill, parties can
extract compromise/concessions and debate the issues
b. Examples:
i. Custom
ii. Scheduling and agenda control
iii. Kill bill in committees
iv. Stop bill before full chamber consideration
v. Filibuster in Senate, amend the bill to death, or defeat on chamber floor
vi. Use other chambers veto provisions to defeat the bill
vii. Conferences committee deliberation to kill bill
viii. Presidential veto
c. Vetogates are helpful b/c they may inform us on the value of LH (if a bill passes
a particular gate we can see its value)
i. If you take the procedural model seriously, promises made/extracted by
gatekeepers that enable a bill to pass through gate should be particularly
important b/c it represents the real deal/intent that allowed the bill to pass
iii. Madison’s View on Vetogates
1. Generally: Supports vetogates b/ they are able to slow down the process and encourages
deliberation (creates more opportunities for coalitions)
2. Critique: Madison supported temporary hurdles—not permanent—and some vetogates
don’t enlarge and expand the debate; rather, they stop legislation
a. Filibuster doesn’t just slow down the bill—it kills it (anti-Madisonian)
b. Scheduling isn’t democratic and no deliberation (anti-Madisonian)
iv. Criticism of Proceduralism:
1. Procedures stop important legislation, dilute bills, and enable special interest groups to
influence legislation
2. The power of preventing bad laws includes the power of preventing good law – Hamilton
3. Procedures cannot guarantee that deliberation will occur at all or that any deliberation
will be positive and enlightened—they merely provide rules and structure for an
opportunity to discuss the issue
2. PLURALIST MODELS
a. Generally: Legislative process is a transaction btwn those demanding statutes (interest groups) and those
supplying statutes (legislators)
b. (1) Interest Group Theory
i. General Theory: Outcomes are reached bwtn two groups and legislators are there to ensure that
the deals goes through after it has been reached by the groups
1. Legislators are simply rubber stamps (stamp deals that interest groups make in the mkt)
ii. Optimistic View
1. Theory: Differences in opinion lead to group formation, this formation leads to dispersal
of power, and mechanisms (political process) are used to resolve conflicts
a. Political process resolves conflicts by enabling those with ideas/interest push
their ideas—AND the best idea will win in the mkt place of ideas
b. Power is proportional to the number in factions—which is determined by the
strength of the idea
c. Gov’t then takes the best idea (agreed upon in the mkt) and codify it
2. Anti-Madison: Instead of fearing factions, this theory believes that factions create
stability and satisfaction and present the best ideas
iii. Pessimistic View
1. Theory: The best view is not the one that always wins out b/c the mkt place is flawed;
rather, interest groups give us their preferred ideas/outcomes in the mkt place
a. Interest groups focus on small numbers of people with large stakes in an issue
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2. Criticism of Optimistic View (used by pessimists):
a. Free Rider Problem: People receive benefits w/o paying for them (assume that
others will take care of the problem)
i. Ex: Individuals don’t care as much about clean air as manufacturers care
about regulation
b. Disproportionate Resources: Those that push their ideas tend to have more
resources than the majority who are affected by the law
i. Depends on all views being represented
c. Ideas May not Compete: Sometimes groups will trade benefits among themselves
at the expense of the general public
i. Ex: Back scratching—exchanging civil rights votes for water law votes
d. Punting Congress: Congress is not keen on declaring winners and losers—they
prefer to compromise and
i. Congress punts hard issues to agencies and bureaucracies
1. This is problematic b/c agencies and bureaucracies are more
prone to interest group control
c. (2) Public Choice Theory
i. General Theory: Every person is a rational utility maximizer and we will engage in efforts to
further our own interest
1. Ex: The goal of all legislators is to stay in office and the goal of interest groups is to get
the most good for themselves
ii. Arrows Paradox: There is incoherence in majority voting scheme
1. Theory: In some circumstances, majority rule will not resolve the choice among three or
more mutually exclusive alternatives; thus, b/c of the voting, the alternative that is
selected has no better claim to the majority then the ones that were rejected
2. Ex: A piece of legislation has several amendments, but original view did not say when
amendments were to take effect
a. Three options: all cases pending, cases filed before passage, after passage
b. Encourages legislators to fight hard not to have their preference voted on in the
first round OR vote against their preference to get their second best option
i. Paradox: once you engage in this voting the rules of the game change
c. Strategic voting is expected b/c we all do this (when we can’t win, we go for our
second best option)
3. Takeaways:
a. Legislative votes are suspect more often than we’d like to think and they are
often not merit based
b. Shows a snapshot view on how one vote does not show how people really feel
about the matter at hand (there are many reasons why people vote)
c. Judges evoke the arrow paradox and say that we should not even use the LH at
all b/c it is too complicated and judges never really know who is voting for what
for what reason
iii. Wilson-Hayes Model
1. Theory: Political markets are analogous to economic markets—people seek to maximize
their utility when they make decisions
a. Adopts a pure supply and demand notion
2. Identifies/Highlights:
a. Free riders—robs people of their incentive to get involved
b. Reasons why it is really difficult to form large, diffused groups and much easier
to form small, focused groups
3. Real World Examples:
a. Model 1: Statutes w/generalized benefits and generalized costs
i. Ex: Criminal laws and tax laws
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ii. End product of this legislation is purely symbolic b/c there is no group
that goes to the mat on details (no strong anti-crim lobby)
iii. Written in vague contours and sent to agencies to hammer out details
b. Model 2: Statutes w/broad benefits and concentrated costs
i. Ex: all consumer protection and environmental protection
ii. End product will likely be opposed by the minority (manufactures, credit
card companies, etc), but not much support from the maj. b/c the benefit
is spread out among a lot of people
iii. Bill will be vague and sent to agency for specific details
iv. CA: Doesn’t explain people who do fight (e.g., environmental groups)
c. Model 3: Statutes w/concentrated benefits and broadly distributed costs
i. Ex: Farm subsidies, tariffs, business favors
ii. See strong organized groups supporting it, but not a lot of opposition b/c
the benefit to the individual is immaterial (e.g., peanut butter is $.20
more expensive)
d. Model 4: Statutes w/concentrated costs and concentrated benefits
i. Ex: Labor v. management
ii. This has the most warfare btwn interest groups—leads to gridlock
4. Academics like this model b/c it is a coherent model that explains every possible law
iv. Criticisms of Public Choice Models:
1. Legislators don’t just care about being reelected—they do have values and concerns
a. Ex: Status in chamber, public image, ideological values, public policy motives
b. Seen in committee assignments (some comm. bring home the pork, but others are
there just for specific concerns)
2. Voters act for more than just getting favors
a. Voters vote for more than just favors—they vote for warm fuzzies too
b. Ex: want a good economy, care about moral issues, etc.
3. People are sometimes not rational (in economic terms)
4. Legislative process as a whole is not as static as the theory implies
a. The process is very fragmented and complex—not just buy and sell
5. Congress is an organized anarchy (garbage can model of public choice)
a. “There are streams of behavior that are coming together and they happen to
merge in moments of clarity”
b. Coincidence triggers events
6. Ignores the president in this theory—huge gap in the theory
3. CASE APPLICATION
a. Griggs v. Duke Power Company—Duke Co. began requiring employees to have high school diploma to
be advances; Griggs (black) sued b/c he had no diploma
i. Holding: Blacks have no claim under Title VII
ii. Analysis:
1. Purpose: What is the purpose of Title VII
a. Maj: Purpose of Title VII is to stop intentional discrimination on race
b. Min: Purpose looks beyond intentional discrimination—want things to be fair
(concerned w/ “fair in form, but discriminatory in substance”)
2. Text:
a. Maj: The word “because” is a motive word that has an intention connotation
3. Structural Analysis:
a. Must assume that congress is rational and will not engage in redundant
drafting—there always has to be a reason for two provisions
4. LH:
a. Maj: Sen. Tower’s amen. controls in this case—look to his comments which
support the maj’s holding
i. Would it matter if chamber was empty?
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1. No—congressman would still look to the record to see what he
said; remarks are published for all
ii. A “bullet” denotes when something is added to LH after the fact
b. Min: Sen. Tower’s comments do not apply here b/c they were given for a
different amen. that was not passed (not current amen.)
c. Takeaway: The who and when are important for LH
5. Policy:
a. Need to show the back story illustrating that congress was trying to solve a broad
problem
b. United Steel Workers of America v. Weber—Kaiser created a quota for # of blacks in training program;
Weber (white) was passed over by a lesser qualified minority worker; question about “discriminate”
i. Issue: Does Title VII prohibit private employers from voluntarily adopting affirmative action
programs?
1. Discriminate can mean two things:
a. Simply preferring one over another
b. Differentiation against minorities (denotes an invidious intent)
2. Should we use dictionary definition for the year it was decided?
a. Due Process—use the definition in the year it is decided for DP reasons
ii. Brennan (Maj): Originalism
1. Purpose/Spirit:
a. Argues that he can look behind the literal language (which prohibits
discrimination against whites) and focus on the spirit of the statute
b. Doesn’t state meaning is unclear—just evokes spirit
c. Reasons one can evoke the spirit of the statute:
i. Text is inconclusive
ii. Literal reading results in absurd, unanticipated results
2. Purpose: Equality for previously disadvantaged racial groups—help the “plight” of the
negroes/help them secure jobs
a. Means/End Argument: This argument looks at the problem identified by
congress and the interpreter is there to fix that problem and fixing the problem is
more important than adhering to the text
3. Text: Ignores initial text, but adheres strictly to the text w/Sec. 7
a. Used “permit”—not require—so we have a negative inference
b. Outcome oriented—only uses text when needed to support his desired outcome
4. Tenor of Times: Meant to help the plight of the blacks
5. Imaginative Reconstruction: When passed, section meant to allay fears about the Gov’t
interfering w/private businesses
iii. Rehnquist (Dissent): Originalism
1. Text: Cong would have been hard pressed to draft language better tailored saying that
affirmative action is prohibited
a. Must start w/the assumption that the text is perfect (for a textualist approach)
2. LH: LH and purpose are consistent w/a strict textualist reading
a. Sponsor of legislation (Cellars) responded to criticism that this would prompt
discriminatory hiring to balance the races by denying it would have this effect
i. CA: Kaiser is not required—Cellar’s statement doesn’t apply
b. Floor manager (Humphrey) assured colleagues in the senate that the title would
not permit the use of racial quotas
i. CA: This does not deal w/voluntary action (not applicable)
c. Clark-Case memo states that discrimination is just general discrimination
i. CA: Stated at a different time—house didn’t have the memo when it
voted
d. Dirksen Amendment talks about equality and inability to reverse discriminate
i. CA: Still refers to requiring—this is voluntary
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3. Best Answer: Racial quotas creates castes, a two-edge swore that must demean one to
prefer another
4. How do Brennan and Rehnquist agree?
a. Both agree that the task is to determine the original intent
iv. Blackmun (Concurring): Dynamic Interpretation
1. Dynamic Interpretation: The court is a partner in the ongoing interpretation of statutes
and should help the statutes grow over time to cover complex problems not perceived by
the legislature
a. Enacting cong only partially perceived or didn’t even consider these problems at
all so their text and intent are not helpful—we should seek the best answer
b. Essentially, just ask what is fair today when the LH and text indicate that the
congress did not foresee this question in our society
2. Justifications for dynamic interpretation:
a. Workability: need something workable b/c punting back to Cong. is too difficult
b. Changes in fact
c. Changes in law
i. The civil rights act the ct interprets now is much different than the one
originally enacted b/c of subsequent ct decisions
d. Meta-legislative intent: the legislature wants its work product to evolve and
change over time
i. If our goal is to enact the intent of congress, we should make it so their
legislation is able to survive for decades to come
c. Johnson v. Transportation Agency, Santa Clara—Govt. transportation agency implemented affirmative
action plan that considered sex as one factor for promotions; woman was selected for a position always
had for men; man who was slightly more qualified for road dispatcher sued; prior to this there were no
women dispatchers and significant disparities in other areas
i. Tension #1: Substantive Tension (How the text should apply in this context)
1. O’Connor: Need sufficient statistical info to show a constitutional concern/conflict
2. Scalia: Statute explicitly states that sex is not to be a factor, but now it is
3. White: Spirit is too strong—ignore the text
4. Brennan: Done need an imbalance sufficient for Title VII violation; rather, you just need
a manifest imbalance
a. Manifest imbalance can be w/in the world—not just w/in the agency
b. Goal of the Act is to open up jobs and that is what we are doing here
ii. Tension #2: Spirit of the Act
1. Maj.: Spirit of the Act is to open up jobs and protect against discrimination of minorities
2. CA: LH here indicates sex was inserted to kill the bill—not enhance its purpose
a. Not fatal b/c the statute recognized there was a huge problem w/discrimination
against minorities in the economy and when they addressed that problem they
added sex into the statute on the same level as race—the text of the statute
indicates “sex” is on the same level as race
iii. Tension #3: Application of Stare Decisis
1. Stevens: Although this is not the correct holding, he goes w/maj. in respect to stare
decisis of Weber since it is an important part of the American culture
a. Weber is part of the fabric of our law—significant reliance interest
b. Reasons Stare Decisis is Important:
i. Reliance (public reliance on case law)
ii. Legitimacy (ct can make a decision and then quickly change)
iii. Consistency
iv. Reliability
v. Notice to people of what can/cannot be done
vi. Stops the ct from reinventing the wheel each time
vii. Ct owes it to cong to do what it say it will (follow its own procedure)
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c. Stare decisis is the least activist thing a judge can do
2. Scalia: Stare decisis should not followed here
a. Reasons Not to Follow Stare Decisis:
i. Earlier decision was poor and incorrect
ii. Prior decision was itself a departure from precedent
iii. Prior decision was recently decided
iv. Stare decisis is less rigidly applied to civil rights laws
1. Reasons stare decisis is more closely followed w/statutes:
a. Text is the text—Cong. wrote the actual language
b. Cong. can change the text if they think it is stupid
c. Changes to constitution required an amendment—which
is hard so the ct. should just do it
v. Intervening changes have changed how we interpret the precedent
vi. View of constitution changes over time
iv. Tension #4: Weight to Give to Congressional Inaction
1. Brennan: Cong.’ failure to act is highly probative (“Any belief in the notion of a
dialogue between the judiciary and the legislature must acknowledge that on occasion an
invitation declined is as significant as one accepted”)
a. Cong. was not unaware—this was major decision/legislation
b. Cong. has acted when they didn’t like a decision (haven’t acted here though)
2. Scalia: Failure to act could be a number of things besides a ratification of the status quo
or approval of the statute
a. Reasons for Congressional Inaction: (Essentially there are too many hurdles
and we can’t just say that it is approval)
i. Approval of status quo
ii. Inability to agree on how to alter the status quo
iii. Unawareness of the status quo
iv. Indifference to the status quo
v. Political cowardice
b. Whole premise regarding congressional inaction is wrong b/c:
i. Irrelevant what current Cong. thinks—only concerned w/original legs
ii. Considers the legislation in isolation and ignores all the deals that
occurred to pass this legislation—looking at the current Cong. would
undermine/ignore those deals
LEGISPRUDENCE—WHAT WE DO WITH THE WORK PRODUCT (ITS RELATIVE WEIGHT)
1. GENERALLY
a. Legisprudence: jurisprudential approach to statutes—“systematic analysis of statutes w/in a given
framework”
i. Considers relation btwn statutes and CL, legislators and cts, and value of their work products
b. Timeline of Theories: CL Formalism  Legal Realism  Modern Legal Process Theory
c. Under currents: Stare decisis & Congressional inaction
2. COMMON LAW FORMALISM
a. Views of Statues:
i. Article I makes statutes seem supreme and other branches of gov’t are there to just enforce and
interpret them
ii. BUT statutes are functionally inferior b/c they do not have sound policy and reasoning
b. Theory (Blackstone):
i. CL embodies reason, analysis, pure ideas, ordered thoughts, and objective principles
ii. Statutes are willful, disorderly, subjective, contingent, changing, and an intrusion into pure law
iii. CL is found but statutory law is made—cts can find law whenever
1. Machine analogy: CL Formalist is like a machine—a judge pulls a lever and gets a
decision (he is not involved in any way and not biased)
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c. Implications:
i. Statutes should never be treated as sources for legal reasoning (but judicial decisions should be)
ii. Statutes are treated as ad hoc, but judicial are built on a pyramid of reason
iii. Judicial decisions are made retroactively, but statutes only apply prospectively (principles are
found and thus always true)
iv. Statutes are interpreted narrowly—especially when in conflict w/CL
d. Criticisms:
i. Statutes do build on each other similar to the way that CL builds on itself (language is revised and
amendments are added)
1. Ex: Civil Rights Act, Clean Air Act, NLRA—we see Cong. building on these acts over
time (it is not just a one shot thing)
2. “Stare de-statute”—something approaching precedent in a legislative way
ii. CL is not always well reasoned—judges when deciding CL case are not finding law
1. Sometimes judges just make things up—they have an obligation to find out how to decide
a case so they announce a new rule that they have made up
2. Ex: Cardozo—didn’t just “find” the foreseeable consequences test for torts
e. Support for CL Formalism:
i. Procedures in CL formation indicate neutralities and a more reasoned approach to law
1. Ex: Appellate ct decisions must be based on precedent; arguments in ct cases must be
before them (standing)(have specific facts w/in a given case)
2. Obeying these procedural norms lead to better reasoned law and neutrality
3. LEGAL REALISM
a. Theory:
i. Judges are equally biased and disordered—judicial law is just as political as legislation
ii. Judges impose their own views and preferences—they create more than they “find”
iii. NEITHER the judicial process nor the legislative process are uniform and orderly (do not believe
in any of the processes)
b. Occurred as a backlash to CL Formalism
4. MODERN LEGAL PROCESS THEORY (MLP)
a. Theory: Emphasizes the duty of gov’t institutions to operate w/in their realm of competence
i. Legitimacy of our gov’t rests on the commitment of the officials to engage in a deliberative
discussion for the common good and do what is best
ii. View ALL law in terms of reason, coherence, rationality w/o lapsing into distinctions between CL
and legislation
iii. Combination of two views (realists + proceduralists):
1. Agree w/ realists that neither the legislative or judicial process has substantive neutrality
2. Agree w/ proceduralists that legislative process and judicial process has procedural
neutrality
b. Assumptions:
i. Each branch of gov’t has a deliberative process AND that they engaged in that process with
“perfect fidelity to procedural norms”
ii. Legislation is a product of informed, efficient process
iii. Legislators are rational, reasonable, and respect the chief policy maker
1. Theory attempts to connect procedure to substance (good ideas rise to the top)
2. H&S are founders of the theory
iv. Assume that all legislation has a purpose and that the purpose is findable
c. Legislative Processes that Indicate Neutrality:
i. Legislative process is well informed
1. Legislative decisions are only made after they have the relevant info
2. Open to all views regarding the statute, have public deliberation, expert witnesses,
commissions, etc.—processes lead to neutrality regarding issue
ii. System is efficient and cautious
1. Legislative process has mechanisms to control discretion and contains safeguards
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a. Legislative safeguards: hearings, rules w/in chambers, bicameralism, findings—
ultimate check is the ballot box
b. Judicial safeguards: due process, notice, appeal, etc.
iii. Institutional settlement
1. Decisions that are duly arrived as a result of the dictated processes are accepted as
binding upon the whole society AND we consider things trustworthy so long as the
procedures have been observed
2. Cts are deferential to decisions b/c they assume that they are legitimate, reasonable, and
purposive b/c of the procedure used to produce them
d. Implications: Legislative can engage in rational law making, like the cts, and thus deserve respect
e. Criticism of MLP:
i. Process is too complex and we are unable to truly discern how bills made it through procedures,
hoops, and gates
ii. Makes unarticulated value choices—no impartial method
5. CASE APPLICATION OF THEORIES
a. Moragne v. State Marine Lines, Inc.—Woman’s husband died on Florida’s navigable waters (not on high
seas); wants to sue for wrongful death; relies on theories of negligence and “unseaworthiness” (strict
liability); she is left w/o a remedy for unseaworthiness in territorial waters—gap in the law
i. Application/Takeaway: Building CL on the basis of statutory policy—statutes have a policy
beyond their scope that can extend their coverage
ii. Issue: Should the cts fill the gap?
iii. Background/Precedent:
1. The Harrisburg case had already held that federal maritime law did not give cause of
action for wrongful death
a. Case was based on old English law (felony) and bad overall—essentially the rule
was adopted as a blessing of age
2. Cong. knew of the gap for 50-80 years
a. Blackstone: This time period is irrelevant—the Cts can find truth whenever
3. If Cong. had amended the statute six times, more likely to think that they are
intentionally excluding something from the statute
iv. Legislative Establishment of Policy:
1. Rule: We can glean from all of the state statutes and federal statutes a policy applicable
to the current case (e.g., whether there is civil recovery for wrongful death)
a. “This legislative establishment of policy carries significant beyond the individual
statutes involved” and the policy has become “itself a part of the law”
2. CA (Blackstone): Cts should not be taking their cues from legislatures—regardless of
whether every state is doing it
v. Irrational Anomalies:
1. Argument: If ct does not allow for the extension of the remedy, the CL will become
irrational and thoughtless
a. Ex: It is an anomaly that unseaworthy conduct w/in territorial waters produces a
cause of action if injured, but not killed; strict liability exists w/in three miles, but
not outside; etc.
b. Takeaway: Think of anomalies in the law that will occur if the ct does not fix the
irregularity/problem
2. CA: There may be rational explanations for the anomalies/gap in the law
vi. Scope of Statute:
1. Harlan: The scope of the statute is correlated to the scope of the problem—scope of
problem = scope of statute
a. The scope of statutes are nothing more than the dimensions of a particular
problem that came to the legislature—inviting the conclusion that the legislature
wants the cts to fix the problem w/the statute when problems are similar
b. CA: This view ignores vetogates and the compromises that occurred
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2. Other View: Scope of the statute is simply for the resolution of original conflicting
interests and should not be extended to new problems
vii. Stare Decisis:
1. Harlan: Stare decisis does not apply b/c the underlying policies are not present—
a. Reliance: Ridiculous to assume that ship owners were thinking that after three
miles they can do whatever they want to the person
b. Fairness: Not applicable b/c it actually hurts people in this situation
viii. Problems:
1. What are available damages? Who can sue? What are the contours? (Too indefinite)
b. Flood v. Kuhn—Flood was a baseball player that was traded; didn’t want to go; argued that not allowing
him to break his contract violated anti-trust laws
i. Timeline:
1. 1902: Federal Baseball—SCOTUS held that baseball is not interstate commerce and thus
not subject to the Sherman Antitrust Acts
2. 1952: Subcommittee—held that the reserve clause is necessary for baseball to continue
a. Reliance: Different than Federal Baseball b/c here they are saying it is a unique
business—not that it isn’t interstate commerce
b. Not necessarily an indication of Cong. ratifying Federal Baseball:
i. Support: Articulate why Cong. doesn’t want to change the status quo
(which is Federal Baseball)
ii. Against: Isn’t even Cong.—just a small subcommittee
3. 1953: Toolsen—SCOTUS sticks to the precedent of Federal Baseball w/o considering
the underlying issue
a. Reasoning:
i. Congress has known of Federal Baseball for three decades and still has
not acted to make a change
ii. Baseball has been left alone to develop w/the understanding that they
would not be subject to antitrust laws
iii. Potential significant retroactive effect
iv. Professed desire that any remedy should be provided by the legislature
b. Problems:
i. Intervening Events:
1. SCOTUS’s view of the commerce clause had significantly
changed since Federal Baseball was originally decided
2. Baseball had significantly changed overtime
ii. Assumes that the Cong. inaction was a result of a conscious decision
4. Intervening Cases: Other cases were subsequently passed showing that baseball was a
total anomaly in the sports landscape
a. Similar to Moragne:
i. This is like the widow in Moragne—there is an empty box
b. Dissimilar to Moragne:
i. No real statutory policy
ii. Moragne dealt w/CL (they were using own CL rules to develop the law),
but here it is merely interpretation of a statute
5. Bills Introduced: Over 50 bills were introduced dealing w/baseball and antitrust
a. All the bills would have expanded the baseball antitrust rule to other sports, BUT
they did not make it through the procedural hurdles
b. Inaction Arguments:
i. Fact that congress did not act (inaction) indicates that they were not on
board w/expanding antitrust to other sports
ii. Congress thought that Toolsen was correct and simply wanted to expand
it to other sports
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iii. **THUS, since there are conflicting reasons why congress didn’t act, this
inaction should not have any weight (Scalia)
ii. Blackmun:
1. Holding: Federal Baseball was wrongly decided, but cts are loathe to change things b/c
of congressional “positive inaction”
a. Note: This contradicts Blackmun in Weber where cts were “partners” w/congress
and ct should achieve the best answer (ignores the best answer here)
b. Holding illustrates the view cts role is limited (very formalist)
2. Problem: This isn’t really a statutory case b/c the SCOTUS caused the problem in the
first place by wrongly deciding Fed. Baseball—they have an obligation to fix the matter
c. Patterson v. McClean Credit Union—Ct interpreted a 1981 statute to remedy against private schools
excluding on the basis of race; ct asked parties to brief whether a prior case should be “reconsidered”
i. Holding: Basically undermine or weaken statutory decisis—ct held that statutory precedents are
subject to normal stare decisis
ii. Reasons to Overturn Statutory Precedent:
1. Intervening developments
a. Intervening developments in facts or laws may lead to overturning precedent
2. Inherent confusion
a. Occurs by an unworkable decision which basically acts as an obstacle for the
objective of other laws
3. Showing of outdated or inconsistent rulings in terms of our justice or social welfare
iii. Note: Stare decisis can cut both ways—overruling precedent can strengthen stare decisis for a
series of cases, but weaken it for others
INTERPRETIVE APPROACHES: METHODS OF INTERPRETING LEGISLATIVE WORK PRODUCT
1. ORIGINALISM
a. Focus on historical intent of the enacting Cong.
b. Not always confined to the text—may look at the “spirit”—See Weber for good examples of this
c. Different from Textualism:
i. Textualism only cares about the text (not the enacting Cong. intent), but Originalism may use text
as evidence of the originalist intent
ii. May be more important to adhere to the enacting Cong. intent than the actual text
2. DYNAMIC INTERPRETATION (DI)
a. DI is not tied to the enacting Cong.—it views statutes as something that grows over time and that should
be tied to the current situation
b. Metaphors:
i. Chain Novel Metaphor: Law is like a novel that is written by a bunch of people over time
writing different chapters
ii. Nautical Metaphor: If a ship sets sail on the high seas, once it gets far enough away from the
shore, they don’t check back to the short for answers to key problems
c. Versions
i. Dorbin/Wilder Version: Ct is a creative partner w/Cong. in what ct believes is the best answer
ii. Eskridge Version: If the statutory text is not specific or important assumptions for the statute
have changed, then the interpreter must consider the current policies and societal conditions to
determine the meaning of the statute
1. Text is dispositive in most cases—especially after enactment—but that can change over
time and should thus allow the ct to step in and correct the problem
iii. Preference for DI often hinges on our preferences for the different tools of the funnel
d. Justifications for DI
i. Ct is a partner, not an agent
1. Most academic—cts deserve a heavier hand b/c they are better at it
ii. Lower parts of funnel (text) are inconclusive and reliable historic information may be hard to get
iii. Changed circumstances—social, legal, constitutional—and/or resulting internal inconsistencies
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1. Statutes that made sense as a package don’t make sense over time
iv. Ameliorating exceptions (In the Matter of Jacob)—Notion that making changes to the code itself
shows that the legislature wants to soften the approach that they took previously
1. Successive expansion of categories excepted reflects legislative intent/purpose to create
exceptions for broad general classes, so court should create more exceptions
2. CA: Ameliorating argument can always cut the other way—there have been exceptions
given by Cong., but they are always done w/specificity which indicates that Cong. is
proactive and willing to make fixes where it needs to be made. Thus, Cong. has picked
up the pen numerous times to fix the situation and they could have fixed D’s problem but
they specifically chose note to
v. Legislature itself calls for DI (Li v. Yellow Cab of CA)
1. Statute and LH may explicitly state that the ct should interpret the law over time
vi. CL character of the statute (Smith v. Wade)
vii. A need to correct legislative mistakes/scriveners error (Shine v. Shine)
1. Mistake needs to be clear—often seen by an absurd result
2. Types of mistakes:
a. Mistakes in deliberation (Shine)
b. Scriveners errors (typos, wrong copy, etc.)
3. Often use the “harried and hurried” rationale to support a Cong. mistake
a. Notion that the legislature didn’t get it right—they didn’t even get it the way that
they wanted it to be—so the ct was meant to finish the job correctly
b. Infer mistake through lack of reasonable/considerate deliberation
i. Better than the barking dog—not inferring from silence; rather, infer
from hurried consideration and deliberation
c. H&S: It may be harried/hurried, but we can still presume that it was reasonable
i. CA: H&S ignores the fact that Cong. sometimes is not reasonable and
does not act reasonably, but this doctrine assumed that they never act
reasonable and are always hurried
d. CA: Nearly all statutes are enacted in such an atmosphere
e. Criticisms of DI
i. Creates a trap for the unwary
1. Citizens cannot rely on plain meaning—must rely on the current tenor of times
ii. Encourages Cong. to legislative defensively
1. “When cts turn the meaning of statutes up-side down, Cong. must legislate defensively,
not by enacting statutes in the plainest possible language, but by enacting statutes in the
language that it predicts the courts will interpret to effectuate its intentions”
iii. Gives judges too much discretion
1. Exception: Deadlines set forth by Cong. will not be corrected (Locke)
iv. Assays the current Cong. desire with respect to the particular provision in isolation, rather than
as part of the total legislative package and deal-making between parties (Johnson-Scalia)
3. CASE APPLICATION
a. In the Matter of Jacob—in both cases, a child is living w/their biological parents and their respective
partners; both partners want to adopt, but text of statute forbids adoption (Jacob- live-in boyfriend wants
to adopt/Dana- homosexual partner wants to adopt)
i. Text: §110-limits the people who may adopt/§117- after making adoption, natural parent’s rights
are terminated
ii. Sandwich Tool Analysis:
1. Bread: Purpose and Policy Considerations
a. Policies:
i. Legislative purposes should be liberally construed
ii. Adoption laws are interpreted w/the overall goal of doing what is in the
best for the interests of the child
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b. Better to have two parents over one (life insurance, social security, inherit,
medical decisions, societal considerations)
2. Middle (Meat): LH
iii. Cong. itself called for DI: it stated that adoption laws are to meet the best interest of the child
(may change over time too)
iv. Constitutional problems of discriminating against sexual orientation
v. Changed circumstances: makeup of families has changed since it was passed—should interpret
statute dynamically to take into account that change
1. Millions of households have unmarried couples
2. Homosexuals are more acceptable
vi. LH has been amended and changed dramatically overtime
1. “Irreconcilable patchwork”—hinting a Cong. mistake or lack or awareness
2. Each amendment makes “family” bigger/more inclusive
3. Ameliorating exceptions to the statute
a. Ex: step-parent adoptions; open adoptions; adoptions by minors
b. Essentially, the direction of the new code provisions indicate who can adopt and
when not to sever—thus, it is ameliorating and allows for DI
4. CA (dissent): Ameliorating argument can always cut the other way—there have been
exceptions given by Cong., but they are always done w/specificity which indicates that
Cong. is proactive and willing to make fixes where it needs to be made. Thus, Cong. has
picked up the pen numerous times to fix the situation and they could have fixed D’s
problem but they specifically chose note to
b. Li v. Yellow Cab of CA—Original code codified the rule of comparative N; Ct updated the statute so
would be comparative N; contributory N had been widely rejected by that time
i. Text: Ct (neither maj or dis) could use the text b/c the LH was so specific—thus, neither used it to
answer the question
ii. Statute had a common law character—designed to codify the CL
1. Implies that it should be interpreted dynamically to reflect current CL
iii. Cong. called for DI—stated the statute should be a continuation of the CL
1. Cong. expressly stated that the ct can develop law overtime (extremely rare)
iv. LH: Drafters intended to enact the last clear chance doctrine in a way that softened the existing
doctrine—thus, the ct jobs is to further soften it by adopting comp. N
1. CA: Argue that Cong. knew how to make exceptions to the last clear chance doctrine
(seen in admiralty law) and they didn’t do it so ct can’t do it
v. Purpose v. Best Answer:
1. They feel the same—likely will never have a purposive approach that results in
something different than the best answer
a. B/c the judge is going to attribute to the reasonable Cong. the purpose that he
thinks is the best answer b/c the judge consider himself to be reasonable
2. Difference: Identity of the policy maker
a. Best answer: Court makes the decision of what should happen
b. Purpose: Congress makes the decision of what should happen
i. Through purpose, ct can assign their actions to Cong.
ii. Criticism: Gives ct incentive to be disingenuous
c. Woman Juror Problem—State statutes require jurors to come from “qualified voters”; many statutes
enacted when women were not qualified voters
i. Plain Meaning: Women can be jurors b/c they are now “qualified voters”
ii. Purposive Approach: Tie jury duty to those that could vote and as the guidelines for voters
changed, so did the meaning of “qualified voter” in the statute
iii. Specific Intent/Imaginative Reconstruction: Women cannot vote b/c the intent and reconstruction
at the time indicate that was not intended by the enacting Cong.
1. IR is important when the record is not very clear
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iv. Takeaway: Bottom of the funnel (text) and top (best answer/purpose) can reach the same result,
but the middle tools can be different
d. Shine v. Shine— H&W separate and at the time of separation no support agreement was created; later W
filed separate action and ct ordered H to pay; H declared bankruptcy and tried to discharge the debt by
arguing it falls under the non-dischargeable debt exception for alimony, etc.
i. Competing Policies:
1. Purpose of bankruptcy is to help the debtor wipe away their debts
2. Policy of supporting spouses and children that are broken up w/divorce
ii. Purpose: CL shows it was trying to make it non-dischargeable
iii. Harried and Hurried
1. Text can’t mean what it says b/c atmosphere was harried & hurried—presumes a mistake
2. Is there obviously a mistake?
a. Not really: there are a lot of reasons that may support the text
i. Although it was not w/Cong. purpose and may not be the best, it can still
be reasonable (contrast w/Bock Laundry where it was assumed a mistake
b/c it was unconstitutional)
3. Dog that Doesn’t Bark: Given the harried and hurried atmosphere and given what was
enacted would have reversed all the prior laws in the area, such reversal would have been
noted in the LH
iv. Ct corrects the legislation, even though it is not absurd/unconstitutional, b/c it is the “best
answer” and b/c of the lack of the barking dog
v. Possibly a scriveners error: it looks as though they could have accidentally deleted a phrase and
then reinserted it in the wrong place
1. This may be better than the dog that doesn’t bark
e. US v. Locke— Ct refused to change “prior to December 31st” in text; family filed their mine claim on Dec
31st; BLM rejected the claim as being late
i. Deadline Exception: Deadlines are inherently arbitrary and to attempt to decide whether some
date other than the one set out in the statue is the date actually intended by Cong. is to set sail on
an aimless journey, for the purpose of a filing deadline would be just as well served by nearly any
date a ct might choose as by the date Cong. has set out in the statute
ii. Dissent: Trap for the Unwary
1. There is a risk that people will read it and not understand the requirements (e.g., BLM
didn’t understand it when they first drafted a brochure)
STATUTORY INTERPRETATION: THEORETICAL TOOLS (FUNNEL OF ABSTRACTION)
1. FUNNEL OF ABSTRACTION
a. Best Answer: Calls on cts to act in a CL fashion and look for the best resolution/interpretation through
policy analysis and discussion
i. Largely adhered to only be academics
ii. Would consider a myriad of factors (e.g., social justice, vertical equity, expectations, economic
efficiencies, etc.)
iii. Chain Novel Metaphor: law is like a novel that is written by a bunch of people over time writing
different chapters
iv. Strengths
1. Extreme flexibility—law can change/adapt to any circumstance
2. Allows judges to be completely candid about what they are doing
v. Weaknesses
1. No fair notice
2. Not deferential to legislature
3. No political accountability
4. Creates an incentive to litigate everything b/c might get a ct that believes in your cause
5. No constraints—judiciary can do what they want
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vi. Purpose v. Best Answer
1. They feel the same—likely will never have a purposive approach that results in
something different than the best answer
a. B/c the judge is going to attribute to the reasonable Cong. the purpose that he
thinks is the best answer b/c the judge consider himself to be reasonable
2. Difference: Identity of the policy maker
a. Best answer: Court makes the decision of what should happen
b. Purpose: Cong. makes the decision of what should happen
i. Through purpose, ct can assign their actions to Cong.
ii. Criticism: Gives ct incentive to be disingenuous
b. Purpose: Ct ascertains the problem/“mischief” of the statute and interprets it in such a way to remedy that
problem/“mischief”
i. Application: Ct only has allegiance to the fixing the problem—not the specific intent of the
enacting Cong.
1. Differences from intent: looks at general intent—not specific intent
2. H&S were strong adherents of this view—Cong. is made up of reasonable people making
reasonable judgments and thus they would have a general purpose for the legislation
3. Prof. Jones: Best if it is tied to the text somehow
ii. Assumption: Must assumed that all statutes have a purpose
iii. Benefits
1. Allows judges to give a law applicability and cogency over time
2. Makes assumptions about legislators that we think is best to make (e.g., assumes that they
are reasonable and rational)
iv. Weaknesses
1. Actual purpose is difficult to find
a. May be based on an unrealistic assumption (public choice theorists think this—
reasonable people don’t always have purposes/goals)
2. Gives a lot of discretion to judges (they can run wild with the “purpose/spirit”)
a. “Purpose can be an empty vessel into which judges poor into their own meanings
3. Cuts both ways—could sweep in too much or too little
c. Imaginative Reconstruction: If intent or text is murky, interpreter “reconstructs” the reenactment of the
Act by putting themselves in the shoes of the legislators and ct will use historical evidence to find the
tenor of the times (NY Times, WSJ, LH, etc.)
i. What Interest to Consider:
1. Ct considers all interest at the bartering table and tries to value each of those interests
2. Often undervalue certain interests
ii. Methods of Framing the Question:
1. Purely Archeological (Posner): What would the enacting Cong. have done if faced w/a
similar question?
a. Try to make an accurate reconstruction—even down to the interest group deals
that occurred
b. The more you stray from this approach, the more “imaginative” it is, but it’s
tricky b/c we aren’t sure who the enacting body was paying attention too. Plus,
there is a risk that we might undervalue the interest involved in the current
application.
2. Imputation of Modern Knowledge: Impute knowledge to Cong. by asking how it would
have reacted given the modern facts/movement since the bills enactment
a. Considered more “imaginative”
3. **Difference**: In one you’re asking w/the assumption that they would not have known
how their law would work out as opposed to asking the Cong. w/foresight that they
would have had to address the hard issue
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d. Specific Intent (legislative intent): Court uses the legislative intent to determine the answer
i. Benefits
1. Indicates deference to the elected body
2. Conforms w/the idea that cts should be the agent of the legislature
3. Uses the knowledge of the body that passed the law
ii. Weaknesses
1. Extremely difficult to ascertain intent of everyone
2. Intent isn’t binding by the constitution—text is
3. Intent found may not indicate the true intent of the larger group
4. Manipulation of LH is often use (can’t trust the source)
5. Use of LH encourages more strategic LH
6. Sometimes there is no LH regarding the issue
7. Legislatures exist to pass laws—not impose their “intent” on the people
e. Text: Use the statutory text itself to determine the answer
i. Benefits
1. Accessibility: words are accessible and everyone can read them and get them
2. Words represent the law actually enacted by Cong. through bicameralism
3. Predictability
4. Legitimacy
5. Stability
ii. Weaknesses
1. Words are inherently imprecise
a. Legislative process contributes to imprecise language b/c:
i. Compromise—must use imprecise language to pass the statute
ii. Strategic—needed to get the vote
iii. Lack of foreseeability—words are being applied much later than when
they were actually passed
2. Words in different statutes are used differently (conflicting/overlapping statutes)
3. Time pressures (no time to think about application when passed)
2. CASE APPLICATION
a. Rector, Holy Trinity Church v. US—Church in US hired English vicar; statute prohibited bringing in
aliens to work; statute had exceptions, but none applied
i. Holding: Preacher’s employment does not violate the statute
ii. Reasoning:
1. Text:
a. Ct admits it is not w/in the text of the statute
b. Title: title uses labor
i. Cong. wouldn’t have a title that conflicts w/words of the statute
ii. CA: Title doesn’t really make it into the Act— added later
c. Labor definition: not defined in Act; many different definitions
d. Exceptions in statute:
i. Shows that the manual laborer is what they were targeting
ii. Shows that Cong. though about exceptions, but didn’t want to include
clergymen or pastors
1. This is more respectful to legislature b/c it assumes that they
were careful
2. Specific Intent:
a. Comm. report shows that they wanted to say “manual labor” but they were in a
rush so they didn’t include it
b. If LH says it is a “minor change”, how does that factor?
i. If it was truly minor, they should have been able to pass it w/o any
problems
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ii. Since there is a consciousness by the comm. that it is not as clear as it
should be, it raises a flag that shows failure to fix was a significant
problem—not just minor
3. Imaginative Reconstruction:
a. Ask: what would have happened if we would have said that the statute wouldn’t
let the pastor in
i. Protestant voters would have freaked
ii. We are “Christian Nation” (kind of a best answer approach too)
4. Purpose/Spirit:
a. Purpose: Leg. was really just worried about taking away jobs and driving down
labor costs
b. LH, reports, general tenor, etc. indicate this purpose
5. Best Answer:
a. Christian Nation/absurd result
b. Griffin v. Oceanic Contractors Inc (Plain Meaning/Soft Textualism Example)—Griffin worked as
pipeline welder on a ship; contract provided if he quit then would be charged with cost of transportation;
G suffered injury and co refused to pay for transportation and retained the amount withheld; G got a job;
Co didn't pay him for 34 days; would get $300k for $412.50 withheld
i. Majority:
1. Statute is clear and plain on its text
a. “Our task is to give effect to the will of Congress, and where its will has been
expressed in reasonably plain terms, ‘that language must ordinarily be regarded
as conclusive.’”
b. Shall: “shall” makes clear that there is no discretion in deciding whether to exact
payment or in choosing the period of days by which payment is calculated
2. Why did maj engage in upper level of funnel? Shows that the plain meaning should be
followed b/c it further purpose and intent
a. Text is “ordinarily ... regarded as conclusive”—we don’t implement the text;
rather, we implement the purpose
b. Exception: “In the rare cases where the literal application of the statute will
produce results demonstrably at odds w/the intension of its drafters, those
intentions must be controlling”
3. Specific Intent: Using prior versions of the bill
a. Prior versions of the Act is considered LH to Rehnquist—it shows the “intent” of
congress to specifically exclude ct’s discretion on this
4. Absurdity: Maj— Result is not absurd because...
a. Cong. may have wanted a strong deterrent
b. Cong. has power to do absurd things (if not unconstitutional)
ii. Dissent:
1. Meaning is not so plain and there are times, as here, that the legislature’s will is not
reflected in a literal reading of their chosen words
2. Barking Dog: (Sherlock Holmes: Dogs didn’t bark, horse thieves must be from the home)
a. Rule: You can make a negative inference from silence b/c this is a big change
and if a big change were truly intended, there would be some discussion in the
LH regarding it
i. Essentially, emphasizes the lack of LH regarding the subject
b. CAs:
i. Legislative process is so complicated that silence likely has little
probative value
ii. Sometimes legislators just don’t care—(people in Idaho couldn’t care
less about what happens on the oil platforms)
iii. They did “bark”—the spoke by writing the text
iv. Legislators were “barking” about other things
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v. They were altering the statute to reflect the reality that was already
there—thus no need reason to bark
vi. Bigger fish to “bark” about—not need to use up your political capital on
something that doesn’t matter
vii. Politically not popular to “bark” against people not getting $
c. Congressional Reaction to Griffin and Holy Trinity:
i. Holy Trinity: Passed an amend. after the decision that states the exact same thing the court held
1. Vindicate or undermine?
a. Vindicate: Shows that Cong. agreed w/decision
b. Undermine:
i. H&S—Ct acted w/in its sphere of competence and there is no need for
Cong. to do anything
ii. Indicates Cong. thought decision was correct, but process or reasoning
was crappy
ii. Griffin: Cong. amended the Act but they didn’t change the language about damages that was
interpreted by the court
1. LH indicated that they left it alone b/c they thought the ct. got it right
a. Takeaway: This is positive inaction—they do nothing b/c they liked the ct’s
decision—this is the strongest kind of inaction
2. Vindicate or undermine?
a. Indicates that Cong. thought that the ct would follow its processes and adhere to
stare decisis regarding the statute
b. Also a nod that they like the tools the ct used
TEXTUALISM
1. TYPICAL TOOLS
a. Scalia (Bock Laundry): Meaning of a statute is not shown by a majority of “intent” of Cong; rather, it is
on the basis of the meaning which is (1) most in accord w/ context and ordinary usage and (2) most
compatible w/the surrounding body of law into which the provision is integrated (BF: Cong. knows of
this compatibility)
b. Text (actual language of the statute), and
c. Structure (look at the placement of words and the comparative placement of words/phrases w/in the
larger statutory scheme)
i. Ex: If Cong. made a differentiation in one part of the statute it indicates that they know how to do
it and chose not to do it here
2. KEY PRINCIPLES
a. Incentives: Textualism creates the right kind of incentives—
i. Promotes more accessible and readable statutes,
ii. More consistent w/economic principles, and
iii. Better in the long run b/c it encourages consistency, predictability, etc.
1. Ct practices “tough love” which encourages Cong. to be more precise
b. Limited Application of LH: (Hard—none/Soft—limited)
i. Legitimacy: Reliance on LH undermines the concept of bicameralism and presentment (LH is a
subview that should not be elevated over the text)
1. CA: Cong. may have voted b/c of what the LH told them the bill meant
ii. Reliability: Relying on LH creates perverse incentives (muddle the text and then smuggle your
preferred meaning into the LH; judges have more discretion); doesn’t represent the “collective”
understanding; legislators don’t always read/rely on the comm. reports
1. CAs (Support for LH):
a. Not always suspect b/c ALL people can put stuff in LH
b. Interest groups pay special attention to LH (if a report says something
inconsistent w/text they riot)
c. Parts of LH process are correct and helpful
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d. Judges can manipulate anything (text included) and all tools can be used to
increase the judge’s discretion
e. Only anecdotally abusive and not systematically abusive (only sometimes does
LH get muddled)
f. Legislators don’t always read all of the statutes either
i. CA: The claim to authority of the two sources is different: a comm.
report is based on it being evidence of intent about the law; text,
however, is the law itself, regardless of whether or not someone has read
it—Scalia
3. BENIGN FICTIONS
a. Textualist BF:
i. Words will have ordinary, discernable plain meanings
ii. Use of dictionaries will determine the meaning of words
1. CA: Never know “whose” ordinary meaning it determines
2. CA: Context always dictates plain meaning usage
iii. Congress knows and knew the plain meaning of a particular word
iv. Dictionaries actually list the “plain meanings” first
1. CAs:
a. Dictionaries don’t always list the primary definition first
b. Dictionaries are not part of the statute or text (far removed)
c. Dictionaries are conservative and reflect past use
d. Old dictionaries don’t help current criminals know the meaning of law (due
process considerations)
v. Congress is familiar with and uses dictionaries
vi. Words only have one plain meaning
vii. Congress is presumed to be consistent unless stated otherwise (e.g., Cong. will use the same
language in the code to mean the same thing)
viii. Congress is aware of context
ix. Congress is aware of language elsewhere in the code
x. Congress is not sloppy or careless
1. This is like MLP
2. CA: Look at the legislative process—this shows Cong. can be sloppy
b. Criticisms of BF:
i. Just as easy to adopt BF in favor of using the LH
ii. If Cong. understands the entire context of code, why not assume they read the comm. report,
relied on them in voting, or that they knew the background of CL or earlier law
1. LH cannot be the intent of the whole as a matter of fact but it is possible some LH is
understood and acted upon
2. Likelihood paid attention to prominent LH is at least as good as paid attention to the
things he thinks they did
4. TOUGH LOVE: Cts responsibility is to strictly interpret the text, if it results in a harsh result, Cong. will see what
happened and fix the problem
a. Reasoning:
i. More respectful not to leave the door open for judicial manipulation and allow judges to “look
over a crowd and pick out their friends”
ii. Safest and most objective thing to do is to force Cong. to be more clear/precise
b. CAs:
i. Although Cong. has power to correct mistakes, cts shouldn’t ignore evidence of actual purpose to
force Cong. to take time to re-do something that was an inadvertent error that the cts could fix
ii. Not really “cost free” since it pushes things off of the Cong. calendar/agenda
iii. Disrespectful to make Cong. look foolish
iv. Assumes that Cong. sees and knows about the problem when it is returned
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v. Possible that it is unlikely that anyone will step up to make the change (politically unpopular to
lobby for LSD users)
vi. Cong. is incapable of enacting laws w/sufficient specificity to address all situations
1. CA: If Cong. can’t do it, surely the cts can’t do it
5. ABSURDITY:
a. The plain meaning will likely be absurd if—
i. Constitutional violations—if the reading would not only be odd, but would lead to constitutional
violations/considerations (Bock Laundry)
ii. Large scale consequences to individuals that could not have been imagined
iii. Evidence that the textual oddity was a scriveners error
b. Also, even if the result is not exactly what Cong. envisioned, it is not absurd if Cong. simply intended that
the language it enacted would be applied as written (Griffin)
6. STRENGTHS/WEAKNESSES
a. Strengths
i. Simplicity—easy to administer since it is all in one place
ii. Objectivity
iii. Predictability and stability in the law
iv. Legitimacy—remains the same and is less susceptible to movements by actors
v. Strong indication of intent since this is what they voted for
vi. Notice—provides notice to people of the law
vii. Provides the right kinds of incentives
b. Weaknesses
i. Words can be imprecise
1. Many meanings for some words; some words are inherently ambiguous
ii. Legislative process itself contributes to imprecision
1. Parties compromise and use vague words to get bills passed
iii. Lack of foreseeability—words are applied much later to situations/cases not foreseen
1. Cts try to apply general legal text to specific legal problems
2. Cong. may not have realized they changed the text so dramatically
7. TYPES OF THEORIES
a. Hard/New Textualism: Bare language of the statute is determinative (plain meaning)—apply the text
even if the result is at odds w/the purpose of the statute
i. Fundamental opposition to the use of LH
1. Exceptions:
a. Can use to confirm that Cong. didn’t think about the absurd result—allows the
ct to move to best answer (Bock Laundry-Scalia)
b. Can use to reveal the setting and context in which words were originally used
and how they meant to be used (In re Sinclair-Easterbrook)
2. Criticisms of Text to BA Approach: (Used by Scalia in Bock Laundry)
a. Why should a textualists ever re-write a statute—if the law consists of text—
point is to give plain meaning
i. If statute is absurd, ct should strike statute for lacking a rational basis
instead of just amending it
ii. Not ct’s job to re-write
b. It seems odd to say the text is simultaneously contaminated by absurdity and so
judge can re-write, but yet the text is sufficiently sacrosanct that the re-writing
should do the least violence to it
i. Either the text deserves respect or it doesn't
c. How much violence to the text would be inflicted by alternative re-writes is
beyond judicial calibration-- unknowable, undercutting goals of stability and
predictability
i. Ex. Scalia saying it’s just adding one clarifying word—criminal
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ii. Least violence to the text is a loose standard—many ways to re-write—
great subjectivity to the inquiry
iii. But maybe he means this does the least violence to the meaning of the
text (not about changing words)
ii. Adherents: Easterbrook/Scalia
1. “It is the law that governs—not the intent of the lawgiver”—Scalia
iii. CA: Isn’t using the “plain meaning” just inserting the judge’s preferences at the definition stage
rather than the intent stage?
iv. Benefits of Plain Meaning:
1. More consistent w/the structure of the constitution which vests political power w/leg &
executive branches and only judicial power to courts
2. More w/in the judicial competence than scanning the LH for intent
3. It is the common understanding of law and people can readily understand it
b. Soft Textualism: Text is important and the starting point, but the harsh results are normally appropriate
only when the purpose of the statute (as evidenced by LH) supports the harsh result
i. Justifications of Soft Textualism:
1. Tacit admission that the goal of the inquiry is intentionalist (plain meaning is one source
to find the intention of the legislature)
2. Admission of the normative complexity—if you comply w/ “the letter” the cost of
“lawfulness” will be too great
a. Text is a result of imperfect tools/users, so harsh results are not always warranted
3. Meaning is not always so plain w/o using the upper level of the funnel to consider the
legislative deliberations and practical consequences
8. CASE APPLICATION
a. US v. Marshall—Men caught with LSD and convicted; received minimum 5 year sentences based on
weight of LSD and blotting paper; w/o paper it’s well below the weight
i. Easterbrook (Strict Textualist):
1. Absurd: Result is not absurd as we think—Cong. may have rationally wanted this result
2. Text:
a. Mixture- presupposes that there is something combined w/LSD
b. Substance- a substance that has a discrete existence (suggests that ingredients
lose their identity)
3. Structure:
a. Assumption: When Cong. shows that it knows how to make a particular
differentiation, but doesn’t use that differentiation in another place w/in the
statute, we know that they didn’t intend that differentiation
b. PCP: Cong. indicated w/PCP that they knew how to use a different standard if
the drug was combined/diluted
i. Cong. is not sloppy—they intended the difference between LSD and PCP
4. Uses “tough love”
ii. Cumming Dissent:
1. Some LH indicates that Cong. didn’t want to include the carrier (LH in the Air)
2. Value of LH in the Air
a. Could indicate that the current Cong. believes that carrier is included
b. Glosses things that already exists
c. Attempts to pass an amend. that was never passed by Cong.
iii. Posner Dissent:
1. Anomalies created from the decision:
a. Punishment would vary by weight of the carrier
b. Dealer gets off easier than the casual user
i. MLP: Most respectful thing to do is to make Cong. look good and not
absurd
c. LSD has a higher penalty for lower doses
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2. PCP:
a. Cong. just didn’t understand how LSD was distributed/used
b. Green v. Bock Laundry— County prisoner on work release at carwash reached inside dryer and had his
arm torn off; took witness stand; used prior conviction record to impeach his credibility
i. Text: Suggests that D in any trial gets the benefit of the balancing test, but the P in civil trial does
not get the benefit of balancing
ii. Stevens: Believes that balancing only applies to criminal Ds
1. Text is absurd (likely constitutional violations)—need to use the upper funnel
2. Uses the background/LH to show that it applied only to criminal Ds
3. Barking Dog is not applicable—
a. At some point Cong. was talking about “civil” cases, but they stopped talking
about it later b/c the people who wanted it lost
b. People who argued the opposite direction were at the table when they wrote the
report; their silence cannot mean that they won (they lost and thus stopped
barking)
iii. Scalia: Believes that balancing only applies to criminal Ds
1. Text is absurd—does NOT move up the funnel
2. Process if Text is Absurd: Use the meaning which is
a. (1) most in accord with the context and ordinary usage (and thus more likely to
have been understood by the whole Cong. which voted on the words of the
statute); and
b. (2) most compatible with the surrounding body of law into which the provision
must be integrated (benign fiction that this is what congress always has in mind)
i. CA: Could argue that Scalia’s BFs could be turned around to say that it is
possible that a reasonable Cong. could produce LH that is
useful/reasonable
3. LH: May be consulted to confirm what the text doesn’t mean as opposed to using it to
determine what the text does mean
a. If text is absurd, consult LH to make sure Cong. didn’t intend the absurdity
4. Use meaning which does the least violence to the text and is most consistent w/the policy
a. Somewhat easier for a textualist to go from the text to the best answer b/c they
hate the tools in between
b. CA: If the text is “tainted by absurdity” a textualist should have no allegiance to
repairing the text—they should just toss it out
c. CA: Least violence as compared to what? # of words? Location?
iv. Blackmun’s Dissent: Balancing should apply to ALL parties
1. Uses “best answer” (evidenced by “I” in the opinion)
2. Overall mischief was to prevent prejudice against witnesses
3. Trap for the unwary: if we don’t adopt his interpretation witnesses would think that they
are protected when they aren’t
LINGUISTIC & TEXTUAL CANONS
1. GENERALLY
a. Linguistic canons set forth inferences that are usually drawn from the drafter’s choice of words, their
grammatical placement in sentences, and their relationship to other parts of the statute
b. These canons are substantively neutral and are driven by rules of grammar
c. Often evoked by textualists b/c they are internal (instrinsic) to the statute itself (seen in the text)
d. Text based canons are not hard and fast rules; rather, they are at best presumptions and might be
considered like old adages
2. MAXIMS OF ORDINARY MEANING AND WORD ASSOCIATIONS CANONS
a. Prototypical Meaning
i. Rule: Assume that Cong. uses the prototypical meaning—the core idea associated w/a word or
phrase (the plain meaning)
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b. Ordinary and Technical Meaning of Words
i. Rules:
1. If statute deals w/a technical/specialized subject, ct will use the technical meaning unless
it leads to an absurd result
2. It statute does not deal w/a technical/specialized subject, ct will use the ordinary meaning
ii. Ex: Dispute over whether a tomato was a fruit or a vegetable. Technically it is a fruit, but you
don’t normally think of it as a fruit (put it in a vegetable salad). Although it was an agricultural
statute (thus a technical meaning could be assumed), it was aimed at the common man so the
ordinary meaning was used
iii. Criticisms:
1. Plain/ordinary meaning depends on context
2. Difficult to know for whom the plain meaning was meant
c. Absurdity (AKA Golden Rule)
i. Rules:
1. Adhere to the plain/ordinary meaning unless it leads to a manifest absurdity or
repugnance—in which case, they interpret it to do the least violence to the text (avoid the
inconvenience but go no further)
2. Scriveners Error: Cts may re-punctuate and fix the statute when they find obvious errors
in the text
a. There is a spectrum of obvious/hidden scriveners error and the book is mainly
focused on blatantly obvious errors
b. Cts are less comfortable the further it gets away from obvious errors
d. Words As Social Creatures (Determining Meaning by Looking to Surrounding Words)
i. Esjudem Generis: “Of the same kind, class, or nature”
1. Rule: Where general words follow specific words in a statutory enumeration, the general
words are construed to embrace only objects similar in nature to those objects
enumerated by the preceding words
a. Specific words indicate the class and the general words extend the provision of
the statute to everything in that class
b. Generic words/phrase is defined by the preceding specific words
c. This canon has a lot of heft
2. Ex: “Sheriff, peace officer, road officer, and other person in charge of enforcing the law”
a. Prosecutor fits w/in phrase, but constrained to only people w/badges
3. Criticism: Requires a judgment about what makes the terms similar
ii. Noscitur a sociis: “It is known from its associates”
1. Rule: When two or more words are grouped together and ordinarily have similar
meanings, but are not equally comprehensive, the general word will be limited and
qualified by the specific word
a. Difference w/ ejusdim generis: Here, the statute doesn’t have a list w/a balloon
phrase; rather, it just has three things listed and the general word is defined by its
associates
2. Ex: Tax statute: exclude when there is exploration, discovery, or prospecting
a. Even though a camera company can “discover” new things, the surrounding
words denote mineral exploration so it is confined to that context
e. Expressio Unius
i. Rule: The expression (inclusion) of one thing, indicates the exclusion of all others
1. Rule of negative implication
2. The enumeration of certain things in a statute suggests that the legislature had no intent of
including things not listed or embraced
3. Ex: Holy Trinity—exceptions listed are artist, lecturers, etc, suggests Cong. meant to
exclude preachers
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ii. Exception: This rule only applies when the list of this IS a departure from the normative
baseline (ct will not use this canon if it is used in a context when it will misconstrue something to
affirmatively do something)
1. Cong., like us, sometimes implicitly forbid
2. Ex: Can’t bite, kick, or hit your sister—normative baseline is of not hurting so you can’t
pinch her
iii. Criticisms: Assumes that Cong. thinks through the statutory language and considers every
possible variation
3. GRAMMAR CANONS
a. Punctuation Rules
i. Rule (three forms):
1. Adhering to the old strict English rule that punctuation forms no part of the statute;
2. Allowing punctuation as an aid in statutory construction; or
3. Looking on punctuation as a less than desirable last ditch alternative (majority rule)
ii. Ct will re-punctuate when there are obvious scriveners errors (typos, etc) that are not substantive
mistakes/errors
iii. Typically will apply only if there is an absurd result
b. Last Antecedent
i. Rule: Referential and qualifying words or phrases refer only to the last antecedent, unless
contrary to the apparent legislative intent derived from the sense of the entire enactment
1. Can be trumped by the punctuation—applies to all when merely separated by a comma
2. Can be negated by statutory context
ii. This is a very weak rule b/c it assumes that Cong. was careful w/punctuation
c. Conjunctive & Disjunctive
i. Rules:
1. Conjunctive: You have a choice between this and the other
a. “And” is conjunctive—both things must be satisfied
2. Disjunctive: You have a choice between this or the other
a. “Or” is disjunctive—terms connected by “or” are presumed to have different
meanings and can stand alone
ii. Negative Situation:
1. Not A and B (means not A or B)
2. Not A or B (means not A and B)
d. Mandatory & Discretionary Language
i. Rules:
1. “Shall” denotes no discretion for the ct—it is mandatory
2. “May” denotes that the ct has discretion—it is discretionary
ii. Exception: Context may dictate otherwise, BUT this is a strong canon and we assume a BF that
Cong. knew about this canon when they drafted the statute
e. Singular & Plural, Male & Female
i. Rules:
1. Words importing the singular include and apply to several persons, parties or things and
words importing the plural include the singular—unless Cong. or context indicate
otherwise
a. Ex: A man may not kill means “men” may not kill
2. Male and female pronouns are interpreted to mean both—unless Cong. or context
indicate otherwise
f. Whole Act Rule
i. Rule: Consider a piece of the statute in relation to the whole act in interpretation—interpreting in
isolation will destroy/harm intent of Cong.
ii. Criticisms:
1. Posner: Canon is stupid b/c it assumes that the statute is written as a short story and
imputes omniscience to Cong. in their drafting
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a. Ex: Omnibus Budget Act of 1981—girls phone number is now part of the act
2. Defies belief to assume that Cong. is aware of all the relevant provisions
3. Assumes coherence in statutory framework
g. Titles
i. Rule: Titles cannot control the plain words of the statute, but in the case of ambiguity, the ct may
consider the title to resolve uncertainty in the body of the act or for correcting obvious errors
ii. Criticisms:
1. Titles are not careful enunciations—they are usually catchy acronyms for clever talking
points (Ex: PATRIOT Act)
2. Titles are not codified—they are normally added later
h. Preambles & Purposes Clauses
i. Rule: Preamble cannot trump a clear enactment, but it may be considered in determining the
intention of the lawmaker (only use if there is ambiguity)
1. Not much weight at the bottom of the funnel b/c it is purpose based
ii. Ex: ADA’s preamble said it would affect 26 million, so bad eyesight couldn’t be included b/c that
number would be much too low
i. Proviso
i. Proviso: These are provisions that restrict the effect of statutory provisions or create exceptions
to general statutory rules
1. Ex: “X is the rule of law, provided that...”
ii. Rule: If there is any doubt about the interpretation of the proviso, it is narrowly construed b/c the
main body expresses the policy of the act
1. Note: there is no current citation for this rule
j. Rule Against Redundancy (AKA Surplasage)
i. Rule: Assume that every word and phrase adds something to the statutory command—nothing is
redundant or unneeded (every word has significance)
1. Exception: Not followed if common sense or context cut the other way
ii. Criticism: Assumes that Cong. is careful when drafting the statute
k. Presumption of Consistent Use (Book only)
i. Rule: Assume that the same meaning is implied by the use of the same expression in every part of
the act (where a statutory word has been used in other statutes dealing w/similar subject matter
and has a settled meaning, interpreters will follow that meaning)
ii. Note: Variations in terminology ought to have less force when one statute is adopted at a different
time than another
l. Rule Against Interpreting a Provision in Derogation of Other Provisions (Book Only)
i. Rule: One provision of a statute should not be interpreted in such a way as to derogate from
another provision of the statute (similar to whole act rule)
ii. Interpretation may derogate from other parts in one of the following ways:
1. Operational conflict
2. Philosophical conflict
3. Structural derogation
m. In Pari Materia
i. Rule: If two sections in a statute are parallel and similar, it raises a strong presumption that the
interpretation of the first provision controls the second—they are to be “construed together”
1. See Wilderness I
n. Avoid Repeals by Implication
i. Rule: Absent a clear and manifest intent from Cong., cts are reluctant to repeal a statute by mere
implication in the text or LH
SUBSTANTIVE/POLICY CANONS
1. GENERALLY
a. Substantive canons are not policy neutral—they put a thumb on the scale
i. Textual canons are policy neutral in all situations
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b. Some of the substantive canons may conflict
c. Ways A Ct Uses A Substantive Canon
i. Tiebreaker: This is a policy preference/rule that affects the outcome only if at the end of the
basic interpretive process the ct is unable to choose between two competing interpretations
1. Breaks a tie w/substantive canon when there is lack of clarity
ii. Presumption: Canon is used at the beginning of the process that sets up a presumptive outcome
1. Presumption may be overcome by persuasive reasoning
iii. Clear Statement Rule: Compels a particular outcome unless there is a perfectly clear statement
to the contrary in the text by Cong.
1. Must be in the text—it is a textual rule that is in the text itself
2. RULE OF LENITY
a. Rule: Laws designed to punish or restrain are to be strictly construed
b. Reasons for the Rule of Lenity:
i. Humanitarian: Should not cause unnecessary harm to people when it isn’t clear that the law
actually applies to them
1. Historically many penalties were death so cts observed this canon
ii. Fair Notice: All people should have fair notice as to what conduct will subject them to criminal
sanctions or penalties
1. Partakes heavily of DP
2. CA: People don’t consult law books—they just act (criminals don’t check to the law to
see how they will be affected for murdering or stealing)
a. Malum prohibitum: acts are “wrong” b/c we made it illegal
i. This is where we want the rule of lenity to apply
b. Malum in se: acts are inherently wrong (wrong on their own)
iii. Mens Rea: Must demonstrate “intent” when committing a crime and it’s hard to have intent if
you didn’t know that you were covered
iv. Separation of Powers: Criminal and moral sanctions are reserved for the democratically elected
branches of gov’t b/c they represent the people and should be left to them if ambiguous
v. Prosecutorial Discretion (EP (equal protection)/DP): Concerned about expanding the
prosecutorial discretion beyond that which was intended by the legislature
1. All other justifications are prudential in nature (ct states it applies to them), but this
partakes of heavy constitutional norms (EP/DP)
2. Note: States are abrogating the rule of lenity, but this may violate the DP/EP concerns if
the rule of lenity is supported by these justifications
vi. Federalism: Ct evokes the rule of lenity when a federal criminal code affects areas that conflict
with state criminal codes (seen clearly in McNally)
1. Failing to apply the federal criminal code protects states authority
2. Federal gov’t shouldn’t get involved when the state doesn’t regulate in a particular area
c. When to Apply Rule of Lenity:
i. Breyer (Muscarello):
1. Simple existence of ambiguity is not sufficient to warrant application of that rule, for
most statutes are ambiguous to some degree
2. Only apply if “after seizing everything from which aid can be derived, we can make no
more than a guess as to what Cong. intended”
3. There must be a grievous ambiguity or uncertainty in the statute
ii. Ginsburg (Muscarello):
1. Where there is ambiguity in a criminal statute, doubt are resolved in favor of the
defendant
2. Where text, structure, and history fail to establish that the government’s position is
unambiguously correct, we apply the rule of lenity and resolve it in D’s favor
d. Case Application
i. Muscarello v. US—M sells drugs from a car w/a gun in his locked glove compartment; federal
statute adds an additional five years if you “use or carry a firearm” in a drug deal
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1. Majority: Carry = on a person or vehicle
a. Text: Engages in textual fetishism
i. Use dictionaries, ranking in dictionaries, literature that use the word,
contemporary usage in NY Times, and epistemology of the word
b. Specific Intent: LH indicates that Cong. wanted criminals to leave gun at home
(inferring they didn’t even want it in their cars)\
c. Rule of Lenity: used as a tiebreaker
i. Isn’t enough to be broken b/c there is sufficient evidence indicating
Cong. intent
2. Dissent: Carry = on the person (packing heat)
a. Text: For every instance the majority can find of their meaning, they can find one
to support their meaning
i. Look at the full phrase: “carry a firearm”—not just carry
ii. Whole Act Analysis: carry cannot mean the same thing as “transport”
which is used later in the act
1. Redundant if carry = transport
2. Carry & transport are close in the statutory framework so Cong.
must have been aware of this & wanted different meanings
b. Specific Intent: Cong. just wanted to add an extra five years if criminal made it
more dangerous—locked glove box isn’t more dangerous
c. Rule of Lenity: used as a tiebreaker (but hints at a presumption in some parts)
i. Evokes separation of powers: punishment is the prerogative of the
legislature—not the cts—and they need to be explicit
3. Takeaway: Weird split in judges fueled by their preferences of the funnel in relation to
the rule of lenity
ii. McNally v. US—Local officials designed a scheme of kickbacks from insurance companies;
Fed’s prosecuted for mail fraud using a Fed. statute; couldn’t show how state lost money from the
kickback scheme; no state law forbidding the kickback scheme
1. Holding: Statute does not apply—must be able to prove a tangible loss to the public
2. Majority:
a. Text: Words are construed in a way that their verbs will match—the middle
phrase is a gerund relating to the first phrase (not a separate part)
b. Imaginative Reconstruction: It is crazy to think that Cong. in 1872 would have
thought they could regulate local politics b/c the commerce clause has changed
so much that they likely didn’t think they had the power to do that at the time
c. Policy: Mail fraud statute is a far cry from regulating local politics
d. Rule of Lenity:
i. Clear statement
1. Believes that Cong’s intent when passing the statute was one
thing and will only adopt the harsher option if Cong. clearly
states they want that
ii. Presumption (perhaps)
1. If it was really just a clear statement the analysis is over when
they are done w/the text (text indicates if Cong. clearly intended
something)
2. It looks like they had a presumption that further supports their
reading of the statute
iii. Basically comes down to the tools they used: if purpose had pointed
another way then the clear statement would have been overcome
3. Dissent:
a. Text: The statute is an “OR” so all three things are forbidden
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b. Imaginative Reconstruction: Definition of fraud at the time it was passed was not
limited to property or money losses—Cong. understood that it was bad to defraud
people regardless of whether they made money
c. Policy: Fraud is fraud—don’t use mail to do it
3. CONSTITUTIONAL AVOIDANCE
a. General Rule: Cts will not strike a statute as unconstitutional if ANY other possible construction
remains available unless a clear expression of intent exists
i. May use text and purpose (unlike federalism canon)
b. Minority Rule: An Act of Cong. ought not to be construed to violate the constitution if there is a
constitutional alternative that is fairly possible
c. Rationale: Reasons we have this canon:
i. Legitimacy: There is no clear constitutional authorization for judicial review (other than
Marbury), and cts want to protect their legitimacy by being deferential to other branches
1. The notion that a ct can strike the action of another branch as unconstitutional is delicate
2. Preserve their institutional capital by not disrespecting the other branches
ii. Counter-Majoritarian Reasons: Unelected judges should be wary about striking down actions
of a democratically elected branch
iii. Passive Virtue: This is the correct middle ground for the ct—not passive, but don’t invalidate
action of Cong. (better for inter branch relationship and nation as a whole)
1. Ex: Cong. passed the Smith Act (targeting anti-communism activities)
a. Read literally Act was unconstitutional b/c it violated FA, but if ct invalidated the
act it would raise a constitutional crisis; however, if they do nothing they shirk
their responsibility
b. Ct takes middle ground—applies act to only those actions designed to overthrow
the gov’t
iv. Comparative Competence (H&S Notion): Assume that Cong. is reasonable and would pass
unconstitutional statutes/acts
d. How Canon Works:
i. Historically: Purer canon—if there were two readings and one was unconstitutional, the ct would
read the statute generously to avoid the constitutionality concern
ii. Modern: Not just a reading of a constitutional reading and an unconstitutional reading; rather, it
is a question of engaging the constitutional question at all
1. Ct first reads the statute and comes to a fork in the road:
a. One road leads to an unconstitutional reading/concern, AND
b. Other road avoids an unconstitutional reading/concern
2. Ct will usually go down the unconstitutional road, note the problems, then reverse back
to the fork, and go down the constitutional road
a. CA: This avoids the rigor of a thorough constitutionality analysis altogether (they
merely note the potential constitutionality problem)
3. The aim of this process is to serve an ongoing dialogue btwn the two branches
a. By noting the constitutional problems, the ct signals potential concerns to the
legislative branch that they should consider in the future
b. If the ct struck the statute as unconstitutional, Cong. would have no recourse—
Cong. would need to either amend the constitution or wait for the ct to overrule
itself, BUT noting/hinting to the problem allows Cong. to return to the issue
4. Narrowing interpretation respects constitutional values and puts the difficulties of
overcoming vetogates on those who want unconstitutional measures
e. How Funnel Preference Relates to the Canon:
i. If there is crystal clear LH, does that impact the application of the canon?
1. Scalia (textualist): LH is irrelevant so it has no relation to our application
a. Canon is even embraced by Scalia—chides colleagues for not using it
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2. Non-textualist: If ct is essentially engaging in judicial lawmaking, it should consult the
LH to see if Cong. intended to do something unconstitutional (not doing so is bad)
ii. Changing Constitution Hypo: What if Cong. passed a law that was fine w/original commercial
speech doctrine, but that doctrine has changed radically. Does this canon apply?
1. It applies—but doesn’t show respect to enacting Cong.
2. Posner: Must use imaginative reconstruction—can’t use canon to avoid current ideas and
problems—if you’re originalist you must stay originalist (apply the canon b/c we are
trying to get to the intent of the Cong.)
3. Eskridge: Purpose of canon is to keep the ideas/statutes of Cong. reasonable over time
iii. Reality: Canon is used w/o regard to LH—this may be dishonest if constitutional doctrines
change over time
f. Criticisms of the Canon:
i. Cuts off constitutional statutory applications
1. Posner: It would be better to force the ct to go all the way down the road b/c it may get to
the end and see that the statute survives the constitutional review
2. “Case law is rife w/constitutional questions that the ct has avoided by constructions, but
later held constitutional w/other statutes”
ii. Disrespectful to Congress
1. Cong. could have done a good job, but ct doesn’t even bother trying to figure out if they
did a good job—they just assume the worse and cut if off at the pass
iii. Half-baked constitutional analysis
1. Only practicable difference of going down one road as opposed to hitting reverse is that
in the reverse situation the ct may do a crappy job b/c it isn’t a full analysis or don’t
clearly articulate their reasoning/rules for future guidance
iv. Too much power is given to the ct
1. Ct has too much power here to rewrite the statute to mean what they think it should
mean—stealth judicial activism (ct is a super-legislative agent)
2. “Any other possible construction” doesn’t leave much deference to the enacting Cong.
a. Ct can decide it however it wants as long as it is a possible construction
v. Cong. may prefer having the statute struck rather than the cts interpretation of the act
1. Cong. just wants to know if its constitutional—then they can make policy decisions
vi. Cong. doesn’t always consider constitutional problems and Constitution changes over time
1. Act may have originally been constitutional when enacted
g. Case Application:
i. NLRB v. Catholic Bishop—NLRB ordered Catholic schools to bargain w/unions; NLRB declines
jxn if schools are “completely religious”, but argue Catholic schools teach secular subjects so
they are not “completely religious”; issues are entangled together
1. Issue: Did Cong. contemplate this entanglement (NLRB and religious schools)?
2. Holding: Wholly unworkable—statute doesn’t apply to religious schools
3. Majority (Burger):
a. Statement of Canon: An Act of Cong. ought not to be construed to violate the
constitution if ANY other possible construction remains available unless a clear
expression of intent exists
i. Criticism: It is pretty easy to find any other construction—this gives ct
way too much power since its interpretation doesn’t have to be plausible
b. LH Support: Uses LH to determine if Cong. intended to include religious schools
i. No clear statement in the LH that it is to be applied to religious schools
ii. Shows a pattern of staying away from religiously affiliated schools:
1. Initially no reference to religious schools, amended to include
non-profits, removed exemption, amended for nurse in hospital
that had religious concern
2. Ct states this shows sensitivity but no affirmative intention to
require church operated schools to comply
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iii. CA: Expressio Unius Argument—Cong. accommodated constitutional
concerns some of the time and we shouldn’t assume that they did it more
broadly then in this situation (they would have stated if they wanted that)
1. To the extent that it had an approach, Cong. was merely
accommodating w/minor exceptions (no blanket exception)
4. Dissent:
a. Statement of Canon: An Act of Cong. ought not to be construed to violate the
constitution if there is a constitutional alternative that is fairly possible
i. Must be a reasonable reading—not just any reading
ii. Supposedly gives ct less discretion
4. FEDERALIST CANONS
a. Generally
i. These canons are designed to protect an outcome that supports federalist values
ii. Note: These canons have developed as an overlay to the funnel doctrines and requires Cong. to
speak very clearly in the text to protect federalism principles
b. Preemption Canon:
i. Canon: If federal law and state law are inconsistent, the ct starts w/the assumption that the
historic police powers of the state were not to be superseded by the act unless it was a “clear and
manifest purpose” of Cong. to do so
ii. Very complicated canon—mostly used as a presumption
iii. Many debates/ct fights on the meaning of “clear and manifest purpose”
c. 11th Amendment/Astacadero Canon:
i. Early Canon: Presumption—if there is a federal statute and there is ambiguity about whether a P
can pursue money damages against the state, cts start w/the presumption that Cong. did not mean
to make subject to money damages
ii. Modern Canon: Clear statement rule—Cong. may abrogate state constitutional immunity from
monetary damages only by making its intent “unmistakably clear” in the text of the statute
1. Criticism: It isn’t trying to stop Cong. from doing something unconstitutional; rather, it
is just putting an extra thumb on the scale to encourage Cong. to really deliberate before
abrogating
iii. **11th amendment immunizes states from money damages in federal ct; Cong. may abrogate that
right through § 5 of the 14th amendment (this canon tells us when)**
d. Conditional Grant/Penhurst Canon:
i. Canon: Conditions to grant money from the federal gov’t will only be applicable if they are
unambiguous and clearly expressed
e. Clear Statement Federalist Canon:
i. Canon: Cong. must make it unmistakably clear in the text of the statute when they want an Act
to infringe upon state powers inherent in federalism
1. New rule to protect state rights—not a rule; rather, a canon of interpretation
2. Only allowed to use text
a. This is different than Catholic Bishop which allows text and purpose
ii. Difference from Constitutional Avoidance Canon:
1. Concedes that if Cong. acts w/sufficient clarity it is constitutional—merely just an extra
thumb on the scale
2. Tries to ensure that Cong. deliberates carefully
iii. Possible Motivations:
1. Madisonian concerns: belief that Cong. may invade state interest only if they do so after
careful deliberation
2. Transparency: belief that Cong. needs a transparent interpretive regime
3. Ideological Values: justices promote their own ideological values judicially
iv. Criticisms:
1. Imposes on Cong. a burden of substantial exactitude, but is hardly a model of clarity
2. Not entirely sure of when this canon applies
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a. Could be if it intrudes on state authority, state gov’t functions, fundamental state
decisions, or decisions regarding constitutional officers (all are mentioned)
3. Not completely clear what Cong. has to show
a. Some indicate if it is unmistakably clear or plain to anyone reading, etc.
b. Must Cong. explicitly list everything/everyone they want covered
4. Stealth Constitutionalism: Although ct isn’t stating it is overruling Garcia and it is not
technically making a constitutional decision it does reject the assertion that state protect
themselves through the political process (effectively negating Garcia)
a. Backdoor judicial activism: effectively overruling the holding of previous 10th
amendment cases for the third time in ten years
b. CA: Garcia and Ashcroft speak to different issues:
i. Garcia: asking whether Cong. is prohibited from doing this
ii. Ashcroft: asking what rules the ct will impose upon statutes that
potentially touch federalism concerns
5. Birth of a New Canon (Bait and Switch): Cong. passed laws that it assumed applied to
states only to learn that b/c of the birth of a new canon its intent will not be honored
unless they formally amend the statute and explicitly state that they want it honored
a. Extremely difficult for Cong. to amend the statute
b. Statutes involve multiple deals over time—hard to replicate or account for
v. Case Application:
1. Gregory v. Ashcroft—Missouri had a constitutionally mandated retirement age for
judges; judges sued saying that ADEA prohibited this mandatory age
a. Holding: ADEA did not apply to the judges b/c they were “appointees on the
policy making level” and thus an exception to the ADEA
b. Text:
i. Argument they are not covered by the ADEA
1. Not part of one of the four exceptions
2. Noscitur a sociis would require us to read the other three
exceptions to limit the meaning of the policy maker exception
ii. Argument they are covered by the ADEA
1. Plain language denotes that they are connected to the elected
official in some way—judges are appointed and thus applicable
2. Surplasage: Congress would not engage in redundant drafting, to
read exception three to exclude the judges would in effect nullify
it so that it was merely restating the other exceptions listed
iii. Absurdity
1. Alternative reading would mean that elected officials are not
protected by the ADEA, but appointed judges would be
protected by the ADEA—meaning people that can be removed
from office by an election can be forced to retire, but the ones we
can’t touch b/c they were appointed can’t be forced to retire
2. This distinction (some judges have ADEA protection other
don’t) doesn’t have any rational basis—just irrational
c. Purpose
i. General Purposes:
1. Companies were forcing retirement to create a “younger” look
2. Companies were forcing retirement b/c younger workers were
willing to work for less
ii. This purpose is not supported by protecting judges b/c judges aren’t
replaced for younger judges, judges get paid the same regardless of age,
and there are a lot of barriers to entry (school, experience, etc...)
EVALUATION OF CANONS
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1. INTRINSIC CANONS
a. Justifications:
i. Predictability
1. Canon is neutral on its face (not outcome determinative)
2. Close questions of statutory interpretation should be resolved in favor of continuity and
against change—achieved by canons
ii. Applicable to all words
1. If no LH, this may be the only canon that you can rely on
iii. Support tools of the lower end of the funnel
b. Criticisms:
i. Any canon that assumes thoughtfulness in enacting legislature is resting on a faulty assumption
b/c there are often time constraints and sloppiness
ii. Imputes omniscience to Cong.
iii. Assumes statutes are written as a whole, internally coherent document
iv. Often times arrangement of phrases is the product of accident
v. Omnibus bills should be approached carefully—as a result of compromise
c. Textualist Opinions of Intrinsic Canons
i. Textualists contradict each other (and themselves) about their use
1. Scalia: Canons provide a reasonably predictive regime to fill gaps in ambiguous statutes
2. Scalia: Canons are based on debatable values that create unpredictable results
3. Scalia: Joined O’Connor in Gregory v. Ashcroft for the new canon even though he could
have joined White who had the same result, but w/more traditional reasoning
2. SUBSTANTIVE CANONS
a. Justifications:
i. Not judicial lawmaking—merely enforcing constitutionally understood norms (ex: lenity)
ii. Enforcing norms voiced by Cong. in the past
iii. Creates a handy checklist for judges not to miss thing while in their statutory analysis
1. Judges are more thoughtful in their inquiry/analysis and may help them get through
language that is not readily self-evident
iv. Provides fair notice to Cong. of how to pass statutes
1. Time supports canons—the longer a canon is around the more likely there has been
dialogue w/Cong.
v. Helpful to the extent that they are rooted in shared assumptions w/Cong.
1. This is largely dependent on context
vi. Really just folk sayings—harmless
vii. Helps us assume that the legislature is reasonable
1. Avoids political dissatisfaction
viii. Helpful to the extent they reflect institutional relationships
ix. Used when judges lack specialization or in highly technical cases to help reduce errors when
judicial knowledge and preferences are low
1. Fueled by a desire of judges to not mess up substantive law they are unfamiliar with
b. Criticisms:
i. Llewellyn: Canons are worthless b/c you always have two competing canons
1. Merely a policy decision by the judge hidden under the façade of a canon
2. Judges “pretend” to be bound by using the preferred outcome determinative canon
3. CAs:
a. Canons listed by Llewellyn aren’t really canons—some are just general rules
b. You will always have competing canons b/c canons are fact dependent
c. Some of the “parries” are stronger than the “thrust”—it is also good to know that
canons are just solitary; rather, Cong. sees the nuances in the law and responds in
reaction to those nuances
ii. Judicial Activism: Substantive canons are a form of judicial lawmaking—judges are placed in an
activist position
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iii.
iv.
v.
vi.
vii.
1. Judges lose accountability b/c they use a canon and then say—the canon made me do it
2. Judges form a legal decision under the auspices of the canon—this avoids criticism of
their potential legal analysis that they avoided
Inconsistent: Predictability and neutrality are undermined by inconsistent application
1. Absence of empirical data that Cong. actors know/respond to the “predictable regime”
Posner: Canons are rooted in a wholly unrealistic conception of Cong.
1. Can’t assume that Cong. knows about them—let alone follows them
LH is better: if assume the BF that Cong. knows about and relies on canons, it is a better BF to
assume that Cong. relies on LH b/c at least we’re sure that Cong. knows of the LH
Public Choice Theorist: Judges use canons to support their policy preference
1. Study indicates that liberal judges use canons for liberal outcomes and vice versa
Canons/Specialization: Use of canons b/c of lack of expertise merely avoids defining law
1. Judges use vague canons to avoid specific analysis of complex legal issues
3. TAKEAWAYS
a. Practical Approach:
i. If an advocate has a hunch about how a ct should go about interpreting the statute, they should
research cases to see whether the interpretation has ever been formulated as a canon
ii. Even if you can’t find a canon, frame it as a canon and cite what you can
b. Bottom Line: All depends on whether canons are known
i. A search of plain meaning would depend on whether they were known—if so, it changes the
originalist conception; OR
ii. Is this merely judicial activism?
4. CREATION/DEVELOPMENT OF NEW CANONS
a. Gravitational Pull (Eskridge): Newly formed canons affect other canons and cases outside the general
scope of the canon by either watering down or strengthening existing canons
i. Ex: The new federalist canon in Gregory had two impacts:
1. Undermined the traditional canon that deal w/Indians should be interpreted in favor of
Indians b/c the new canon gave states greater rights
2. Invigorated the rule of lenity since it aligns w/federalist concerns
b. Illustrates Judicial Activism: May argue that it shows judges merely do what they want by
“discovering” a norm/canon in a new case
c. Binds Cong.: Enacting Cong. never would have known about this canon—how is that fair?
i. Extremely difficult for Cong. to amend the statute
ii. Statutes involve multiple deals over time—hard to replicate or account for w/new canon
d. Similar to Matters of First Impression: Canons have to be developed sometime and it isn’t much
different than a matter of first impression for the court
5. LEGISLATIVE BODIES WRITING CANONS
a. Ex: RICO: Cong. stated the statute should be liberally construed or Minn. Code: Cong. stated the
different tools that could be used by the ct.
b. Does writing canons into text have problems?
i. No—
1. Ct has merely told Cong. to be very clear about their statutes, and since Cong. knows
they can’t write a perfect statute, they are merely telling the cts on what should be
considered when there is ambiguity
2. Judge still is making the decision—Cong. is just supplying them w/more rules
3. Like a definition section—merely provides more details to mitigate judicial activism
ii. Yes—
1. Separation of Powers:
a. Cong. is usurping the role of the cts by telling them how to do their job
i. CA: Doesn’t the ct do this by telling Cong. how to write a statute?
b. Takes away the rights of the people/voters b/c voters cannot remove a bad judge
for a result that was required by Cong.
c. No guidance at federal level; states, however, have passed laws against certain canons
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i. Ex: 24 states have passed laws against the rule of lenity
d. Textualist Impact:
i. Difficult to know what to do w/these canons—creates an eternal circle of textualism (text says
look at LH, but don’t want LH, so you look at text again which refers you to LH, etc.)
ii. More forceful the textual mandate, harder to stay w/in the textual sphere
EXTRINSIC SOURCE OF STATUTORY INTERPRETATION: COMMON LAW
1. GENERALLY
a. Old Cannon: Statutes in derogation of CL should be narrowly construed
i. This has eroded in the modern regulatory scheme—statutes are the rule and CL is the exception
b. Currently: CL is still an important source—can assume that Cong. intended established CL meanings—
but the rise of the modern regulatory scheme has eroded this rule
i. Serves a strong gap-filling role
ii. Use of CL is helpful if there is no or vague SI regarding the statute
2. APPLICABILITY OF CL (ENACTING CL V. CURRENT CL)
a. Enacting CL:
i. Benign Fiction: Assume that Cong. knew about the CL when drafting the statute
ii. Purposive argument requires this assumption since the enacting Cong. must have been trying to
fix some problem with a particular situation and historical background and they must surely know
about that background to pass the legislation
1. CA: Enacting CL is not reflective of reality since enacting Cong., even if completely full
of lawyers, doesn’t know the details of the substantive law going on around them
b. Current CL:
i. Current CL allows us to continually address the mischief/problem that the text sought to remedy
1. Ex: Sherman Act (written to invite ct participation); statutes pegged to “moving
standards”
ii. Cong. knew that the CL moves—implicit that it would be integrated into the CL when they are
codifying a CL
iii. Better if it is an old statute w/broad language and words that are growing words (rights, liability,
references to changing bodies of law)—must assume that Cong. intended the cts to do the moving
iv. Criticisms:
1. Later decisions are irrelevant—only assume awareness of CL at the time
2. Should just turn to policy/best answer (O’Connor approach)
3. CASE APPLICATIONS
a. Smith v. Wade (use of CL)—W was in prison and alleged that S was in reckless disregard of or
indifferent to his safety; W was assaulted by cellmates and S did nothing; W sues under CRA which
creates tort liability
i. Holding: Prisoners can get punitive damages based on reckless disregard
ii. Majority (Brennan):
1. Looks to the state CL of torts (cts often look to CL when little LH) and the past CL b/c of
the lack of LH regarding Cong. intent
2. Ct says the deterrence comes from standards of liability itself and not from punitive
damages, so rejects the arguments that don’t deter when unintentional
iii. Rehnquist Dissent:
1. CL at the time of enactment required intent—not just disregard
2. CL of state cts is irrelevant to this statute since it was enacted 100 years ago
3. LH of 1871 indicates that Cong. intended to codify the 1871 CL
4. Ended w/stating that text should be the starting point
a. Reasons to end w/the text (rather than start w/it):
i. Text isn’t very strong for your argument
ii. To suggest plain language itself leads to a dynamic interpretation
iv. O’Connor Dissent:
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1. Once we get to the point where there is no reliable info on Cong. intent, we must resort to
best answer
a. Battle of string citations has no winner—it is muddled, so we must look to the
best policy/best answer (similar to Blackmun in Weber)
b. It strains credulity to think that Cong. really intended just one thing
2. Candidly pragmatic
v. Similarity to Weber:
1. Two justices fighting over an interpretive tool (CL) (Weber—LH) and one justice is
pragmatically candid
EXTRINSIC SOURCES OF INTERPRETATION: LEGISLATIVE HISTORY
1. GENERALLY
a. LH is considered an extrinsic aid—outside the text (similar to the CL)
b. New justices on the SCOTUS have dramatically shaped our views/conceptions of LH
c. Uses:
i. Specific intent—LH is often used argue the specific intent behind a bill
ii. IR/Purpose—LH is also used for IR and Purpose arguments
d. LH can have multiple meanings:
i. Broader term: any evidence regarding the history and creation of a statute (all circumstances)
1. Leo Sheep v. US—RR Act gave out checkered plots to RR if they built a transcontinental
RR; many years past and private Co. owned a plot; gov’t needed an easement so that
people could get to a lake for recreational purposes
a. Holding: Gov’t had no implied easement
b. Reasoning: (Rehnquist)
i. Text:
1. Nothing in the text of the Act gave gov’t an easement
2. Gov’t listed exceptions, but never included this easement
ii. Originalist Inquiry:
1. CL doctrine of easement of necessity does not apply
a. Gov’t had no necessity/emergency—they could use
eminent domain
b. Gov’t only had an easement of necessity for things that
were important at the time of enactment—there was no
need for recreational access b/c there were no people
iii. Specific Intent (Originalist Bent):
1. Not likely that Cong. even considered this question—no SI
indicating they wanted the easement and nothing indicating that
they did not want the easement
2. To the extent they did give it thought, it was likely focused on
the power of eminent domain to fix the problem
3. Silence
a. Silence indicates that Cong. did not think about this
question and thus the ct can/should engage in IR
b. IR likely indicates that Cong. would not have protected a
recreational area w/easement b/c their intent was to get
the RR built—Cong. wanted land developed quickly
i. Nothing in LH indicate that Cong. was
protecting recreational areas—it was focused on
commercial dev
iv. Note: Rehnquist’s view of LH/SI would not care about the
current/modern Cong. and their views—only focused on the historical
LH and evidence
c. Jones’s CA:
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i. The overarching purpose of Cong., based on the LH, was to serve the
revolving interests of the sovereign (US gov’t)
1. RR Act is in derogation of the interests of the sovereign and thus
should be narrowly construed
2. At the time of enactment comm. dev. was the interest—now our
revolving interest is to preserve and provide access to rec. areas
3. The purpose was to meet the ongoing interests of the sovereign
ii. CA: This is tricky b/c you are saying that the SI or IR argument is that
the gov’t is always supposed to win
ii. Narrower term: the institutional process of a bill to enactment, documentary evidence of
deliberation from proposal to signing
1. Blanchard v. Bergeron—Man won civil rights claim—compensatory and punitive
damages; statute provides attorney fees; ct held the contingency fee agreement set a
ceiling on recoverable fees; App. ct reduced his attorney fee to 40% saying contingency
fee meant to be a ceiling; statute provides for “reasonable” fees
a. Holding: Doesn’t constitute a ceiling –shouldn’t be limited to K arrangement
b. Reasoning:
i. Can’t use plain language b/c reasonable—Senate report tries to describe
reasonable fees through a string citation followed by a policy statement
1. Problem: LH states to follow Johnson and its 12 factors and then
uses “see” to reference three cases that “correctly” applied
Johnson, but the three cited cases contradict Johnson
ii. Purpose/BA:
1. Allowing it to become a ceiling messes up incentives and
discourages parties from bringing civil action claims
2. Don’t want to encourage attorneys to make arguments that result
in damages, but ignore the civil rights claim
3. Ceiling would steer litigation towards individual damages and
not the civil problems
c. Scalia: Forget the stupid pincite in LH!
i. Don’t fight over cases that are not precedential to this ct—Cong. should
write laws, not point to case law
ii. A single unrestrained string cite from one body’s CR isn’t the law—
shouldn’t act like bound by lower ct cases b/c mentioned in string cite
1. Inserted at best by comm. staff member & at worst by a lobbyist
2. Not likely noticed by the Cong.
iii. Cong. didn't read these decisions after reading the report—didn't think
they were applying dicta
iv. Difference in how cts cite cases and how Cong. cites cases
1. Members of Cong. are not lawyers and likely don’t understand
case law and its application
d. CA to Scalia:
i. Scalia has a BF that he assumes Cong. knows about all of the relevant
CL—why not assume that they understand the case law when the cite?
2. TYPES OF LH
a. Floor debates, statements, comm. reports, hearing transcripts, submitted witness statements, conferences
reports, analysis from agencies, executive branch, and legislative council, presidential signing lists
b. Types of Negative Inference LH:
i. Rejected amendments
ii. Action on similar bills
iii. Prior decisions from agencies and judges
iv. Subsequent or prior legislation
c. Legislative History in the Air:
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i. Cong. makes comments about one section, but ends up amending another
1. Ex: Cong. makes comments about § 1 and § 2, but only amend § 2
ii. This is at best an indication of positive inaction—but most likely argue that the failure to change
§1 means that it was a minority view and shouldn’t have much weight (if any at all)
3. VIEWS ON LH
a. Hard/New Textualists: Only use LH to determine if statute is absurd on its face or to reveal the setting
and context in which words were originally used and how they meant to be used
i. Scalia: Only used to see whether Cong. intended the absurd result
b. Soft Textualists: Still advocate the plain meaning, but look to the LH
i. Statutes that get to the appellate level often have more than one plain meaning, so soft textualists
are willing to look at the LH to determine statutes meaning
c. Pluralist: See statutes as a series of deals and use LH to reconstruct those deals
i. Determine the intent/deals in Cong. view and use them to reconstruct the background to the Act
d. Deliberative/legal Process: Use LH to see the big picture—not the background to reconstruct deals
i. Try to determine the:
1. Mischief being remedied
2. Tenor of the times
3. Spirit of the legislation
e. Fundamental Difference: Justices differ on how clear they believe Cong. should be in their statutes
i. Partnership: Some want Cong. to be clear, but if not clear, they move up the funnel to act as
Cong.’s partner in enacting statutes
ii. Tough Love: Other want Cong. to be clear, but if not clear they require tough love (reject the act)
1. Reasoning:
a. More respectful not to leave the door open for judicial manipulation and allow
judges to “look over a crowd and pick out their friends”
b. Safest and most objective thing to do is to force Cong. to be more clear/precise
2. Criticisms:
a. Although Cong. has power to correct mistakes, cts shouldn’t needlessly ignore
evidence of actual purpose and force Cong. to take time to re-do something that
was an inadvertent error that the cts could fix
b. Not really “cost free” since it pushes things off of the Cong. calendar/agenda
c. Disrespectful to make Cong. look foolish
d. Assumes that Cong. sees and knows about the problem when it is returned
e. Possible that it is unlikely that anyone will step up to make the change
(politically unpopular to lobby for LSD users)
f. Cong. is incapable of enacting laws w/sufficient specificity to address all
situations
i. CA: If Cong. can’t do it, surely the cts can’t do it
4. CRITICISMS OF LH
a. Text is the best evidence of intent of a statute since it is the only piece that passed both houses and
underwent bicameralism and presentment
i. Using LH seems not like an interpretation of a statute, but a creation of a statute
b. Even if we can conclude the tenor of the times, hard to come to conclusions about the intent of an
individual legislator
i. Hard for a group to have a singular intent
ii. Often have coalitions that vote for radically different reasons
c. Members of Cong. often don’t read every word of a statute—not going to read every word of LH
d. LH is often written by staff and not Cong.
e. Interest groups may try to smuggle in their preferred meaning—LH is “loser’s history”
f. Unanticipated consequences—changes in law
g. Could incentivize parties to insert meanings into LH that they couldn’t get passed in the text
h. Often very little discussion of the applicable statute
i. LH may be conflicting in nature
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Crutch—one in LH we don’t need to worry about thinking too hard about the text
i. Ct can just rummage around the LH for their preferred meaning
5. RESPONSES TO CRITICISMS/VIRTUES OF LH
a. LH is not always suspect b/c ALL people can put stuff in LH
b. Interest groups pay special attention to LH (if a report says something inconsistent w/text they riot)
c. Parts of LH process are correct and helpful
d. Judges can manipulate anything (text included) and all tools can be used to increase the judge’s discretion
e. Only anecdotally abusive and not systematically abusive (only sometimes does LH get muddled)
f. Legislators don’t always read all of the statutes either
i. CA: The claim to authority of the two sources is different: a comm. report is based on it being
evidence of intent about the law; text, however, is the law itself, regardless of whether or not
someone has read it—Scalia
6. FEATURES THAT MAKE LH MORE PERSUASIVE AND RELIABLE
a. Characteristics:
i. Accessibility to the whole—people could look at it and it is likely that they looked at it—
especially members of Cong.
ii. Reliance by members of Cong.
iii. Readability
iv. Understandable—not cryptic
v. Featured prominently—easier to notice b/c of the its location and the length of the document
vi. Came at a stage in the process when other members of Cong. would notice it and rely on it
1. Manifests a collective understanding b/c of its time
b. Must Ask: What were the legislators likely to notice?
i. If it is a string cite in the middle of a footnote to a comm. report it is unlikely that anyone noticed
ii. However, if it references dissenting or minority view we assume that they read it (Cong. had a
big fight about it and the maj. won)
c. Cumulative Weight: Look at the cumulative weight of the available LH
j.
EXTRINSIC SOURCES OF INTERPRETATION: SPECIFIC TYPES OF LH (COMPARE AND CONTRAST)
1. COMMITTEE REPORTS
a. Traditional view of scholars/judges is that they are very authoritative and should be given weight
b. Reasons for their Authority:
i. Legitimacy and Reliance: committees are where the legislation is actually written
1. Statute is written in comm. and any collective statement of the members of this subgroup
is thought to be the best informed and knowledge of the bill’s effect
2. Comm. members think/deliberate a lot about the statute
ii. Accessibility
1. Easily accessible for legal research
2. Easy to comprehend once found
a. Format is orderly, systematic, and understandable to Cong., public, & ct
b. Format is uniform: list problems to be addressed, background and needs, general
solutions, and a section by section analysis
3. House/Senate have a rule that they will not consider a bill until they have a CR
c. General Criticisms:
i. May not have a CR for a particular bill or provision of a bill b/c the provision was added as a
floor amendment
ii. CR may be as ambiguous as the statute
1. CR may leave out important qualifications, may be misleading
2. Ambiguity gives judges more leeway to find for their preferred outcome
iii. Statements may be smuggled into the report
1. History has shown that members of Cong. will smuggle in their preferred meaning even
though that meaning couldn’t be put into the text
39
d.
e.
f.
g.
h.
iv. CR did not clear procedural hurdles—like a bill that passed only one house cannot become law,
we cannot have a CR become law even if from one important comm. b/c did not pass procedures
Scalia Criticisms: “Heady Young Staffer”
i. Not written by members of Cong.
1. CA: This is equally true of the statute (if a practical problem it is equally true of the text)
ii. Not read by members of Cong.
1. CA: This is equally true of the statute (if a practical problem it is equally true of the text)
iii. Cannot be amended by members of Cong.
1. CA: Although Cong. cannot formally amend the CR in comm., they can modify it when
it gets to the floor (it is amended by subsequent LH and floor criticism)
iv. Not voted upon by the members of Cong.
1. CA: Although it is not officially voted on, there is procedural evidence that it is relied
upon to a great degree (especially when the text of the statute is strike line 2, underline
page 4, etc.) (constitutionally Scalia may be correct, but practically not so much)
v. Changes system from a judicial construction to staff prescription
Comparison w/Floor Statements:
i. CR happen before bill gets to debate; FS occur during the floor debates
1. Floor statements are salesman pitches—not trying to make a substantive point
2. CR gives thought provoking commentary upon which the comm.’s reputation depends
3. CR have more people deliberating and collaborating—not just one person speaking
ii. CR are more likely to be noticed by members of Cong.
1. FS are often made in front of an empty chamber—or made after the fact
Comparison w/Conference Reports:
i. Conf. Reports are more reliable b/c:
1. CR are not always in the congressional record—but Conf. Report are always in the
congressional record
2. Conf. Report have a statement that is signed by everyone in the conference (indicating
that they agree and all have voted on it)—CR are not voted on or signed
3. People in the conference are usually very important (floor managers, sponsors, etc.)
4. Conf. Report is structured so that the text and the explanatory segment are side by side—
meaning the Conf. Report and text get equal time (Conf. Report may get more attention)
ii. May use the Conf. Report and Conf. Comm. to “wash” your hands—don’t get the result you want
and you can just blame it on the committee even though you never intended it to pass
iii. CA: Shine v. Shine indicates that Conf. Reports are drafted in a harried and hurried matter b/c it
is the end of the process (people just want to be done w/it)
Citation to Cases: There is a difference btwn how a Cong. and the ct cite cases—Cong. members aren’t
lawyers and don’t likely understand the significance and nuances of cases so we shouldn’t rely on them
when in the CR (Blanchard)
i. CA: Hard to make this argument w/Scalias’s BF that Cong. is aware and knows all of the CL and
statutory law in the area
Case Application:
i. Hirschey v. FERC—Scalia’s response to use of LH
1. Holding: Committee reports should not be relied upon
2. Dole & Armstrong Colloquy
a. Scalia uses this exchange to illustrate that Cong. is aware of CR deficiencies and
that we should not use LH
b. Ways it undercuts his argument/use:
i. Groups of staff from both parties worked on the CR—indicating it was a
bipartisan effort that was supervised (not just a heady young staffer)
ii. Dole indicated that he wanted cts to rely on the CR and use it for help
iii. Armstrong indicated that he wanted cts to use it, but not to rely on it—
CR should never trump the text, but it can be used in a varying degree
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ii. In re Sinclair—Farmer files for bankruptcy under Ch. 11; Cong. passes Ch. 12 to provide relief
for bankrupt farmers in the serious downturn; Farmer seeks to change from Ch. 11 to Ch. 12
bankruptcy; new law plainly says you can’t switch, but CR indicates that you can
1. Holding: Text prevails (cannot switch from Ch. 11 to Ch. 12)—no conversion allowed
2. Rule: One legitimate textualist use of LH is to use LH to reveal the setting and context in
which words were originally used and how they were meant to be used
a. Okay to see how words were originally used to aid in the originalist inquiry
b. Similar to a dictionary
c. Difference from Scalia: Scalia thinks there is a plain meaning that is understood
easily by the author and the end user (language is plain enough)—Easterbrook
thinks context is needed b/c plain to author is not always plain to reader
(language is creature of context)
3. Reasoning:
a. Proceduralist Concerns: we don’t care about the current views of Cong. or the
intent of some members—just care about what passed bicameralism/presentment
b. Tenor of Times: useful to help us only know of the originalist setting
c. Cong. has done nothing (Cong. Inaction)—indicating CR was wrong (not text)
i. CA: Especially tricky if you are trying to fix relatively minor portion of
the Act, b/c it is unlikely that Cong. will make a change b/c tenor of
times may have changed, deals w/a effective date provision, or Cong. has
a busy schedule and cannot get to everything they need to
4. Criticisms:
a. This isn’t a case of smuggling in LH—person smuggled meaning into text—just
as easy to smuggle into the text as the LH
b. Purpose: this was a terrible economic time and it was an emergency so Cong.
used Ch. 12 to help farmers and not allowing conversion wouldn’t make sense
b/c no one would ever choose Ch. 11 after Ch. 12 was passed, so if there is
conversion it would only apply to TP that started in Ch. 11 before Ch. 12 passed
2. FLOOR DEBATES AND HEARINGS
a. Floor Debates
i. Generally: Considered among the least reliable forms of LH
ii. Reasons to Give them Weight:
1. Rises and falls on how well the person speaking is informed of the situation/bill
iii. Reasons Not to Give them Weight:
1. Sales Talk: Most comments are for posturing and trying to get people to buy in
2. Finesse the Court: Constant references to what the statute “means” is an attempt to
finesse or bias the court
3. Biases Persist: Fewer restraints on sincerity and great deal of incentive to say things that
are not reflective of the overall intent of Cong.
4. Amending Procedures: Members of Cong. are able to go back and amend their
comments after the fact/after the vote (usually set off w/bullets, but not always the case)
5. Planned Colloquies: May abuse the system by having planned questions from others
6. Timing: May say things too late in the debate where they can’t be relied on
7. Sabotage: Opponents of bill could just be stating they have the bill to sabotage it
b. Hearings
i. Generally: Rarely credited/used by the cts (scrutinized very carefully when used to argue that
they reflect a broader intent of the whole)
ii. Reasons to Give them Weight:
1. Witnesses are members of the executive branch that is in charge of the substantive area or
are intimately involved in drafting the legislation
iii. Reasons Not to Give them Weight:
1. Stack Witnesses: Those in favor of a particular bill will stack witnesses in favor and
don’t guarantee that the other side has witnesses
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2. Agenda Control: Normally two to three times as many witnesses for the proposal than
for the opponents (don’t give much time to the minority agenda)
3. Accessibility: Not printed until after the vote and are very difficult to obtain—other
members of Cong. often cannot attend (judge may have access after the fact, but that
doesn’t meant that the legislators had access to it)
c. Prominent Persons/Sponsors
i. Next to CR, these are considered very persuasive
ii. Reasons to Give their Comments Weight:
1. Different Incentives: Don’t have to sales talk—must accurately depict the law b/c they
know others are relying on them and they are repeat players
2. Knowledgeable: They know the bill and have gained expertise in it
iii. Reasons Not to Give their Comments Weight:
1. Timing: May be too late in the process
2. It’s their Baby: Have an incentive to sweep things under the rug to get it passed
3. DEAR COLLEAGUE LETTERS
a. Not relied on very much
b. Reasons Not to Give them Weight:
i. Accessibility: Incredibly difficult to find—no one has access to them
ii. Unfair Advantage: Gives larger firms an unfair advantage b/c they could create a stockpile of
the letters and use them in their cases
4. LETTER TO ATTORNEY GENERAL
a. Not relied on very much at the federal level b/c of the accessibility problem
b. Often relied on a great deal at the state level b/c legislators are getting input from their lawyers and often
represent legislator’s desire
5. PRESIDENTIAL SIGNING STATEMENTS
a. Generally: Veto statements are very probative, but the signing statement is not very probative b/c it looks
more like a power grab
i. Became popular w/Regan and moved up from there
ii. Don’t want to include president signing statements that conflict w/text of statute
b. Support/Criticisms:
i. Reasons to Give them Weight
1. President is part of the legislative process (similar to a floor manager, sponsor, etc.) b/c
presentment is an important part of the legislative process
2. Interested in his views since he is effectively a sponsor of much of the legislation
3. May provide policy and linguistic context to aid in judicial understanding
4. Operates w/same restrains as other legislative members (e.g., repeat player, can’t negate
deal w/o a huge backlash)
5. May provide context to some of the deals that took place for its passage
ii. Reasons not to Give them Weight
1. Constitution does not give president any legislative power (Art. 1 gives Cong. “ALL”
legislative power) (some power is highly persuasive, but they are not legislative powers)
2. Signing statement is not part of an ongoing dialogue
a. When a bills is debated there is opportunity for different ideas, but w/a signing
statement there is no chance for rebuttal (no back and forth)
3. Subject to manipulation—president is able to change the text of the statute by expressing
his views of the scope
c. Agencies Use of Signing Statement:
i. Much clearer that agencies should use signing statements (president is their boss)
ii. Cong. can respond to agencies w/an oversight comm. (can’t do that w/president)
d. Presidential Veto Statements:
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i. Very helpful b/c they can give us an understanding about the new bill that emerges and the things
that are said by president that sparked the new bill
ii. If Cong. overrides the presidential veto, then ct may infer that Cong. rejected the president’s
preferences and reasons for overriding the initial bill
6. POST-ENACTMENT LEGISLATIVE HISTORY
a. Post-Enactment Legislation: Sometimes referred to as LH in the air
i. Proposed amendments w/clarifications after the fact
b. Reasons to use Post-Enactment Legislation:
i. Proposals to amend the new statute is related to old statute—statutes are related
ii. Oversight hearings—Cong. has hearings w/the agency in charge of enforcement
iii. Actually relied upon and it affected how people vote
1. Ask: what would a reasonable member of Congress have known and acted upon?
a. Well elaborated, not hidden, basis of concrete action, everyone voted on it
2. Also look at whether same actors, time frame, similar statute, participation of opponents
c. Hazardous Basis on which to Build Arguments—SCt discredits it and doesn’t like it
i. Traditional view—subsequent Cong. is not a reliable indicator (hazardous to use this) B/C:
1. Totally different players that are less reliable in expressing views of the enacting Cong;
2. Even if the same people, memories fade and are influenced by the present
circumstances;
3. LH—none of this is law
a. All of the concerns about LH generally are magnified by 100%
b. Unhelpful—just talking about what happened, not relied on for voting
c. Legislators putting a gloss on already enacted—will almost always be strategic
and is never codified
d. More suspect—subject to manipulation
4. Can’t be rebutted
5. No dialogue left to engage in
6. Using a subsequent statute where the situation is slightly different
d. What to Textualists think of Post-Enactment Legislation:
i. Hate it—every reason they hate LH is compounded her
e. Effect of Amicus Brief:
i. Textualist: Doesn’t care about it
ii. Non-Textualist: Gets some weight, but the problem is that no one relied on it—usually they just
adopt the arguments that they like and not cite to the brief
f. Case Application
i. Montana Wilderness Association v. US Forest Service (Montana I)—Company owned timber
land boxed in by gov’t; gov’t gave them an easement; environmentalist groups sued; Co. said
they had an easement b/c of the Alaska Land Act
1. Holding: Co. does not have an easement/right of way to their timber land
2. Reasoning:
a. Textual Arguments
i. Expressio Unius: Title indicates that it is “Alaska Land Act” and thus it
should apply to Alaska; Subsection (b) defines it as Alaska so by listing
it they are implicitly excluding the rest of the US
ii. In Pari Materia: Parallel structure and words indicate that it should have
the same effect and meaning between the two
iii. Whole Act Rule: Nothing indicates it is to apply to the whole US
b. Specific Intent
i. Melcher: Senator sponsor indicates that it is to apply nationwide
1. Problem is that it was said eight days after the vote
2. Dear Colleague Letter: Judge didn’t know about it, but it
indicates that he wanted everyone to know it applied nationwide
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ii. Committee Report: References Utah, but this is merely an indicate of a
“national problem” w/a “state specific solution”
iii. Dog that didn’t Bark: This would be a nationwide change to access laws,
but no one got worked up about it-must not have meant the large change
1. Note: You cannot make this argument w/o conceding that was is
occurring is a big change—you can’t have it both ways
iv. Udall: House sponsor tries to make an amendment indicating that it
applied only to Alaksa, but that fails
1. Failing statute can mean:
a. Majority agreed it already applied
b. Majority disagreed and he lost
v. Letters to Attorney General: Can be helpful, but still suffer from the
accessibility and reliance problem
c. Canon: No repeal by implication
ii. Montana Wilderness Association v. US Forest Service (Montana I)—Same facts
1. Holding: Co. does have an easement/right of way to their timber land
2. Reasoning:
a. Post-Enactment LH: Conf. report on later legislation indicates that they assumed
the Alaska Act applied nationally (not just to Alaska)
i. Reasons Cong. would talk about a previous act:
1. Proposal to enact a new and related statute
2. Original act might come up for more amendments
3. During oversight hearings of the agency interpreting the statute
4. Efforts to bend or manipulate the interpretation of a prior statute
b. Hazardous Basis: View of subsequent Cong. form a “hazardous basis” for
interpretation of a statute b/c:
i. Totally different players that are less reliable in expressing the views of
the enacting Cong;
ii. Even if the same people, memories fade and are influenced by the
present circumstances; and
iii. Using a subsequent statute where the situation is slightly different
c. Exception: Even though hazardous, you may give it credit IF:
i. Same players,
ii. Three weeks later (short period of time),
iii. Virtually same statute,
iv. There is a change in conduct in the subsequent situation that is based on
the understanding of the first situation, and
1. This wasn’t just talk—it was an affirmative action
v. Key members have to explain the reason for this change in conduct
1. Full explanation of their reasoning behind the action
CONGRESSIONAL INACTION & INTERPRETATIONS IN LIGHT OF OTHER STATUTES
1. CONGRESSIONAL INACTION GENERALLY
a. Methods of Inaction/ “Positive Inaction”—
i. Cong. reenacts statute w/o change or comment
1. Ex: Reauthorization of federal programs (e.g., medicare bill)
ii. Cong. takes no action after a case interprets a particular statute and Cong. noticed
1. Ex: Evidence may be in LH, NY Times, etc...
iii. Cong. amends statute w/o addressing the intervening case
1. Ex: CRA amendments
iv. Cong. makes statements about a particular section that is affected by a case, but Cong. only
makes changes in a different section
1. Ex: “LH in the Air”—LH about a particular § that isn’t ever really addressed or changed
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b.
c.
d.
e.
a. Suppose you have positive views on the case and they amended another
section—this would be SUPER STRONG POSITIVELY ACTION b/c they
actually got up and amended the problem
b. MLP wouldn’t recognize comments in the air b/c it didn’t pass bic/pres
Effect of Comments by Cong. in Relation Cong. Inaction—
i. Positive:
1. Good comments are arguably more telling b/c after the positive things are said, their
refusal to change was consistent (they signaled that they liked the status quo through
words and through their inaction)
2. Cong. says that they like the status quo and they then rely on the cts to support that
3. Typically a very MLP dominated thought
ii. Negative:
1. May only be in b/c a person couldn’t get their way, so they sought to taint the LH
2. More difficult to see what the negative comments really mean in relation to their inaction
Competing Views on Congressional Inaction (Johnson v. Transportation Agency)
i. Brennan: Congress’ failure to act is highly probative (“Any belief in the notion of a dialogue
between the judiciary and the legislature must acknowledge that on occasion an invitation
declined is as significant as one accepted”)
1. Cong. was not unaware—this was major decision/legislation
2. Cong. has acted when they didn’t like a decision (haven’t acted here though)
ii. Scalia: Failure to act could be a number of things besides a ratification of the status quo or
approval of the statute (It’s a CANARD!)
1. Reasons for Congressional Inaction: Constitutional hurdles create an inertia that makes
it impossible to assert with any degree of assurance that failure to act means:
a. Approval of status quo
b. Inability to agree on how to alter the status quo
c. Unawareness of the status quo
d. Indifference to the status quo
e. Political cowardice
2. Faulty Foundation: Whole premise regarding congressional inaction is wrong b/c:
a. Irrelevant what current legs think—only concerned w/original legs
b. Correctness of a statute is not based on current leg
3. Considered in Isolation: Assays the current Cong. desire w/respect to the particular
provision in isolation rather than as part of a total legislative package and w/deals
iii. General Criticism: Every time ct uses positive/negative evidence, it builds a set of incentive for
Cong. to influence the LH and actions of later cts
Problems of Giving No Weight to Cong. Inaction:
i. Cong. becomes a reactive body—must codify everything it agrees with
ii. Undermines basic notions of reliability on law
1. Cts. rethink decision—stare decisis problem
2. Disrespectful between branches—ruins the ping-pong game
a. Greater incentive to challenge statutes b/c cts are more likely to overrule
Reasons Cong. May Not Gear Up for Change
i. Time Restraints: Agenda may be crowded and controlled
ii. Procedural Hurdles: Hurdles may be too high and too costly
iii. Minor Portion: Cong. doesn’t make a change if it deals w/a minor portion of Act (In re Sinclair)
1. If it deals w/a relatively minor portion of the Act, it is unlikely that Cong. will make a
change b/c tenor of times may have changed, deals w/a effective date provision, or Cong.
has a busy schedule and cannot get to everything they need to
iv. Lack of Political Force/Capital: Consider whether the party being affect is politically impotent
(no support and not able to band together)
1. Ex: Baseball players in Flood (other athletes wouldn’t care b/c they already have the
benefit, so it is left to the 180+ baseball players to lobby for their rights)
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2. Ex: Criminals dealing and manufacturing LSD (Marshall)
v. Stream of Legitimacy: All things just happened to convene at the time of passage, but haven’t
occurred again
2. CONGRESSIONAL INACTION DOCTRINES
a. Dog that didn’t Bark (Sherlock Holmes: Dogs didn’t bark, horse thieves must be from the home)
i. Rule: Cts can make a negative inference from silence b/c this is a big change and if a big change
were truly intended, there would be some discussion in the LH regarding it
1. If inaction is to equal approval, we feel more comfortable if we can eliminate reasons for
Cong. inaction (ones listed by Scalia)
ii. Supporting Rationale:
1. Big change warrants dialogue—reasonable person would doubt a big change was actually
on the table if no one discussed it
2. Shapiro: Cong. desires continuity in the status quo b/c of constitutional biases
iii. Criticisms:
1. Legislative process is so complicated that silence likely has little probative value
2. Sometimes legislators just don’t care—(people in Idaho couldn’t care less about what
happens on the oil platforms)
3. They did “bark”—the spoke by writing the text
4. Legislators were “barking” about other things
5. They were altering the statute to reflect the reality that was already there—thus no need
reason to bark
6. Bigger fish to “bark” about—not need to use up your political capital on something that
doesn’t matter
7. Politically not popular to “bark” against people not getting $
iv. Barking Dog is not Applicable If—
1. At some point Cong. was talking about “civil” cases, but they stopped talking about it
later b/c the people who wanted it lost
2. People who argued the opposite direction were at the table when they wrote the report;
their silence cannot mean that they won (they lost and thus stopped barking)
v. Examples:
1. Bock Laundry (Majority): Barking dog doesn’t apply here b/c—
a. Cong. did talk about civil cases, but they stopped talking about it b/c the people
who wanted it lost
b. People who argued the opposite direction were at the table when they wrote the
report; their silence cant mean that they won (they lost and thus stopped barking)
2. Griffin (Dissent): A change this large regarding punitive awards would surely have been
in the LH
3. Shine (Majority): Given the harried and hurried atmosphere and given what was
enacted would have reversed all the prior laws in the area, such reversal would have been
noted in the LH
b. Congressional Acquiescence
i. Rule: Ct presumes that if Cong. is aware of a judicial/agency interpretation of a particular statute
and then Cong. returns to that statute and does not make a change, Cong. has acquiesced
1. Has multiple timelines: Cong. initially enacts bill; ct/agency interprets statute; Cong.
returns to statute and amends different section (after it is aware); ct again interprets the
statute and assumes the Cong. acquiesced
2. Ex: Johnson, Flood, etc.
ii. Considered More Positive Inaction If: Have (1) evidence that Cong. knew or (2) they should
have been aware of it
1. Large body of evidence indicating awareness of interpretation
a. Tenor of times—in newspapers, important social interest, big body of federal
appellate court cases (clear movement in one direction)
2. Cong. went in and changed the exact statute/provision
46
3.
4.
5.
6.
Well articulated hostility to change
Comm. reports states that Cong. agrees w/prior ct ruling
Cong. proposed bills contradicting the decisions, but all the bills failed
Successful efforts to change the part in other ways—constantly coming back to it—shows
a willingness to change if needed
iii. Criticisms:
1. Rooted in the BF of congressional omniscience
c. Reenactment Rule
i. Rule: If Cong. reenacts a statute w/o making any material changes in the wording, ct will assume
that Cong. adopted the previous interpretations of the cts or agency
1. Assume that in making the reenactment Cong. is really enacting all the prior
interpretations of the rule
2. Ex: Funding statutes, etc.
ii. Considered Stronger Canon If:
1. Interpretation is a foundational one or really core to the statute
2. Part of the background norm
3. Considered very settled
4. Public and private reliance on the issue
d. Rejected Proposal Rule
i. Rule: Ct is reluctant to read a statute in a particular way when a committee, chamber, or
conference considered and rejected that specific statutory language/reading
1. Sometimes if a full chamber or conf. comm. considered the amendment it will be stronger
ii. Criticisms:
1. Maybe saying no isn’t really a rejection—proposed legislation may have been rejected
for a myriad of different reasons
a. Vote against it b/c you think it already say that—spurious, unnecessary
b. Don’t have time for this and don’t want to open up a can of worms
c. May reject b/c it is too broad or too narrow (even though you support it)
2. Have to look through LH to find it (even though it is a textualist argument)
3. INTERPRETATIONS IN LIGHT OF OTHER STATUTES
a. In Pari Materia
i. Rule: Statutes from the SAME legislative body that have the same structure, terminology, or
address the same issues should be read/construed similarly
1. Does not have to be the same session of Cong., but needs to be same legislative body;
however, it is much stronger if from the same session
ii. Limitations:
1. New statutes often embody different policies/compromises, at least different political
aspects of the deal
2. Each statute is its own universe—Undermines deliberative legislative compromise to
suggest Cong. must read a statute in certain way b/c of previous deals
3. May have more than one statute considered in pari materia—no idea on what to do or
which one is more appropriate to use
b. Borrowed/Model Statutes
i. Rule: Ct assumes that another statute might be a template from which the statute at issue was
originally designed and interpret them similarly
ii. Criticism:
1. Subtle differences between jxn and statutes—dangerous to assume that policies followed
are the same between the two
a. Ex: Purpose may be different between the two
c. Rule Against Implied Repeals
i. Rule: Ct will not assume Cong. intended to repeal a statute unless there is clearly expressed
Cong. intent to the contrary and will read both statutes as co-existing
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1. Provides a background norm for giving respect to Cong. choices and forcing them to be
explicit and clear
2. Stronger presumption if the subsequent statute is ambiguous and the previous statute is
clearly, narrowly defined
ii. Extremely Disfavored If:
1. Longstanding rule
2. Important component of govt’s overarching policy in the area
3. Designed to deal w/a different policy
iii. Criticisms/Limitations:
1. Assumes Cong. omniscience
2. Assumes Cong. knew/aware of statutes since the beginning of time
d. Case Application:
i. Cartledge v. Miller—Husband is a bum and won’t pay child support; wife sues; H argues that his
pension can’t be attached too
1. Holding: Wife may attach to husbands pension
2. Reasoning:
a. Although plain text is clear that it cannot be assigned, “literal interpretation is not
the safest guide to a statute’s meaning”
i. Main purpose of ERISA is to support rights of spouses and dependents
b. In pari materia: there is a lot of other statutes dealing w/similar subject matter
and they all provide for an exceptions for this
i. Cong. would not want us to diverge from the other statutes that are
similar to this—interpret it as a cohesive whole
3. CAs:
a. Expressio Unius: to the extent Cong. put other exemptions into other statute, they
chose not to do so here so we should not read it into the statute
ii. Morton v. Mancari—BIA has employment preferences for Indians under the IR Act; Cong.
passes no discrimination act; non-Indian gov’t employees sue
1. Holding: Later act did not overrule BIA policy—may keep Indian preference
2. Reasoning:
a. Purpose behind the policy is to encourage Native Americans to be involved in the
management of their people/affairs
b. Three months after passing the second statute, Cong. passed two more statutes
preferring Native Americans
c. Rule Against Implied Repeals: Ct is hesitant to repeal a statute by implication,
unless Cong. is clear
i. This is a longstanding policy/statute
ii. Statute is an important component of gov’t overarching policy
iii. Subsequent statute is designed to deal w/a different policy
STATUTORY DECISIS/STARE DECISIS
1. RATIONALES/POLICY FOR STATUTORY DECISIS (we want our statutes to make sense)
a. Vertical Coherence: coherence over time (formalist view)
i. Statute needs to be consistent w/statutes and ideas before it
b. Horizontal Coherence: coherence “at this moment” (realist view)
i. Statute needs to be consistent w/the policy of the time
ii. Ex: Is Flood consistent w/ basketball, football, etc...?
c. Intermediate Coherence: middle ground coherence (MLP view)
i. Public interest itself may require reliance on the rules
d. **Often very difficult to be consistent w/both—there is inherent tension at times**
2. RATIONALES FOR STARE DECISIS
a. Reliance (public reliance on case law)
i. Weber—a decision can become part of the fabric of our law
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b. Legitimacy—ct is trying to preserve the institutional capital and their legitimacy in eyes of general public
i. Ct avoids making a decision and then quickly changing/overruling that decisions
ii. Bad either way—cts looks bad w/staying w/a bad decision, but look bad if they overrule a prior
decision (even if it was poor)
c. Consistency
d. Reliability
e. Notice to people of what can/cannot be done
f. Stops the ct from reinventing the wheel each time
g. Ct owes it to Cong. to do what it say it will (follow its own procedure)
h. Seen as the least activist thing a judge can do
3. REASONS FOR OVERRULING NORMAL PRECEDENT
a. Scalia’s Reasons: (Johnson)
i. Earlier decision was poor and incorrect (not principled—it is just wrong)
1. Unworkable that creates an anomalous result (principled, but all wrong)
ii. Prior decision was itself a dramatic departure from precedent
iii. Prior decision was recently decided—insufficient reliance
iv. Stare decisis is less rigidly applied to civil rights laws
b. Harlan: No need for stare decisis if underlying policies are not present
4. STATUTORY DECISIS (SUPER STRONG STARE DECISIS)
a. Statutory Decisis: treating a decision regarding a statute as presumptively correct
b. Reasoning:
i. Traditional Reasons: Exist for adhering to statutory decisis (reliability, consistency, legitimacy),
but there is one extra added layer: respect for the other branch
1. Cong. should be able to rely on ct by knowing that cts will stick to what they said
2. Statutory decisions are entitled to stare decisis b/c of institutional competence
3. If statutory decision is truly wrong, then Cong. can amend the law as opposed to a
constitutional concern which Cong. cannot readily change
a. Different from other contexts:
i. Constitution—require an amendment (extremely difficult)
ii. Statute—requires a new act passed by Cong. (much easier)
ii. Reasons to Overrule Statutory Precedent: (Patterson—weakened/eliminated the super strong
presumption for statutory decisis)
1. Intervening developments
a. Intervening developments in facts or laws may lead to overturning precedent b/c
it changes the significant underpinnings
2. Inherent confusion
a. Occurs by an unworkable decision or it acts as an obstacle for the objective of
other laws
3. Showing of outdated or inconsistent rulings in terms of our justice or social welfare
iii. MLP Reasoning:
1. Assumes all branches are rational actors and don’t randomly change their mind
2. Cong. knows the stare decisis doctrine of cts and thus will not seek to take action when
they are pleased w/the status quo
3. Ct. shows respect for the legislature by not rewriting their statutes
iv. Realist Reasoning:
1. Judges are self-interested and will follow stare decisis when it is personally beneficial—
they use it as a cover for their personal desires
2. Judges are logical: they use stare decisis in areas where they are not experts or when they
do not have a vested interest in the area of law
3. Judges are policy makers—background and predispositions play a role
AGENCY DEFERENCE
1. GENERALLY
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a. Cts are often second level interpreters—cts review the statute after the agency has interpreted it
b. It is not controversial to give agencies deference
i. Even if deference is debatable, the assumption is that deference is given
ii. Agencies usually just got to it first and use the same tools—the agency may favor a particular
tool more than the court, but they use the same interpretive method so they are given deference
2. REASONS FOR DEFERENCE
a. Got to it First and Used Same Tools: Agencies use the same tools and merely just got to it first
b. Authorization: Cong. may have implicitly or explicitly left gaps to be filled by Cong. and deferring to an
agency is a way to fulfill congressional intent
i. Explicit: If Cong. was explicit that agency had the authority to promulgate rules, agency then
acted according to their formal processes (notice/comment), and extra level of deference is given
ii. Implicit: Cong. sometimes left gaps on purpose for agencies to fill in and gave formal procedure
1. Why might a statute be ambiguous?
a. Cong. consciously wanted to strike a balance
b. Cong. couldn’t forge a coalition/consensus to get the specific act passed
c. Cong. may not have thought about the problem
d. Cong. didn’t really care about the issue
2. Chevron does not care about which of these reasons was the case
iii. Rule Making: If an agency was given a formal process to develop rules and the agency used that
process to make rules, an extra level of deference is given to them
c. Expertise: Agencies, regardless of whether they were delegated authority or engaged in the formal
processes required for rule making, still have expertise in the matter and should receive deference
i. Comparative Expertise: It isn’t just agency experience in a vacuum; rather, when court’s
experience is compared to agency experience, agencies have more experience b/c they work w/it
day to day and have boots on the ground
ii. Lack of Authority: Even if no authority has been delegated, cts are still deferential b/c of the
agency’s expertise
1. Special expertise comes when w/in the agency purview b/c agencies think about the
subject matter all of the time (Chevron)
a. This is especially true when it involves technical and complex statutes
2. Cong. also knows the key players, tensions, and deals associated w/the deal
a. Criticism: Agency Capture—basically a revolving door for agency and business
personnel (agency is made of people w/raw political power that is doing the will
of key interest groups rather than the intent of Cong.)
i. This argument was explicitly rejected by the Ct in Chevron
iii. Skidmore Factors: Look to the “power to persuade” factors to see the level of expertise, and thus
the level of persuasion
d. Democratically Legitimacy Reasoning: It is arguably better as a democratic accountability matter to
take the agency interpretation b/c of its respective position to the citizenry and its political accountability
i. Agencies, although not as close as Cong. are still far more accountable than cts and thus should
be relied upon
1. Chevron: Even if the EPA made a totally political choice, the DC was also making a
political choice, and only one of those branches should have the raw power and that
should be the agency—not the court
ii. Reasons Agencies are More Accountable:
1. Agency heads and officials can be removed, but cts aren’t as easily removable
a. Agencies officials w/in executive branch are most easily removable, but
independent agencies are still controlled by the president
2. Agencies are accountable to the elected Cong.
a. Cong. controls confirmations of agency heads, oversees agency administration,
can amend the statute, and has the power of the purse over agencies
3. WHICH DEFERENCE SCHEME APPLIES—STEP “ZERO)
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a. Arbitrary & Capricious/Procedurally Defective: Cong. explicitly leaves a gap and expressly delegates
authority to an agency to fill it
i. Ct msut allow the agency to fill the gap unless agency’s interpretation is arbitration and
capricious or procedurally defective
b. Chevron: Applicable when—
i. Cong. implicitly delegates authority to the agency to speak w/the force of law AND the agency
engaged in the formal processes required (notice & comments, formal adjudication), but it may
also apply in some other instances that are not defined...
1. By setting up a scheme where agencies can engage in formal adjudication or informal
rulemaking, it implies that the agency can use that mechanism to fill the gaps
2. Agency will implicitly have authority when they use formal procedures—when it
happens it is almost always given authority
3. If there is an expectation that an agency speaks w/a force of law, cts have no business
overruling them
c. Skidmore: Applicable when—
i. Statute shows there is a lack of delegated authority to the agency to make rules w/the effect of
law (no delegation at all—agency is just chiming in on what they think is best), OR
ii. Cong. delegates such authority, but the agency has failed to exercise the formalities required to
promulgate the rule (didn’t use notice and comment or forma adjudication; instead, agency used
manual, pamphlet, announcement, poster, etc.)
4. TYPES OF DEFERENCE
a. Skidmore Deference
i. Rule: Agency may be more knowledgeable about Cong. intent—participated in hearings, debates,
and enactment; thus, it is not binding, but it is nevertheless entitled to some respect
1. To the extent the agency’s reasoning is persuasive (consistent, well thought out, technical
area, etc.), it should be taken into account
2. We calibrate the deference based on the level of persuasiveness
3. The more technical, the more likely the ct will defer
a. If it deals w/ allocation, state rights, employer-employee situation, etc. not likely
to defer
ii. Power to Persuade: Based on the following factors—
1. Thoroughness of consideration
2. Validity of reasoning (how closely does it align w/the courts outcome)
3. Consistency w/earlier pronouncements
4. Level of expertise
a. This goes way up if it is a technical statute or area—if technical, the ct is much
more deferential
5. Additional factors
a. High profile
b. Reliance
c. Level of technicality and complexity
d. Awareness of Cong.
e. Contemporaneous (how soon was it decided after the enactment of the statute)
f. Longstanding
g. Consistent position
h. Involves a public controversy
iii. Examples:
1. General Electric v. Gilbert—GE disability plan excludes pregnancy; prior EEOC
interpretation indicated it should be included
a. Holding: No deference to the EEOC interpretation
b. Reasoning:
i. Not Chevron b/c agency didn’t have clear authority on the subject
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ii. Not contemporaneous—the EEOC interpretation came eight years after
the Act
iii. Not consistent—agency changed its position several times
iv. Not thorough and well reasoned—interpretation contradicted reasoning
given by the court in other statutes in similar situations
b. Skidmore Lite:
i. Rule: Agency may just take a small position (amicus brief, etc) and cts will afford it some weight
even if it does not cite to Skidmore
ii.
c. Chevron
i. Rule: Two(ish) part test—
1. Step 0: What type of authorization was given
a. Explicit: Arbitrary & capricious
i. Ex: Clause states that the EPA has authority to promulgate standards for
“every stationary source” through notice and comment
1. Explicit as to the provision
b. Implicit: Chevron
i. Ex: EEOC has authority to promulgate regulations for this code
ii. Ex: Creation of an agency w/in the statutory code for which the new
agency has enforcement
c. Mere Existence (None): Skidmore
2. Step 1: Look to see whether Cong. has directly spoken to the precise question at issue
a. If intent is clear, that is the end of the question
b. Type of Inquiry
i. Rule: Judges must use traditional tools of statutory construction to
determine whether Cong. has clearly spoken on the matter (this includes
all canons and all levels of the funnel)
1. Initial language seems like it is textual inquiry, but fn. 9
indicates that all levels of the funnel are applicable depending on
the preference of the judge
c. New Textualism: Some argue new Textualism is trumping Chevron deference
too often at step one
i. However, agencies generally give more weight to the top of the funnel
(more willing to bend text, etc.) and this indicates why the different
results between the two
d. No debate that the ct’s own statutory precedent must be consulted here (super
strong stare decisis)
i. When agency conflicts w/it that is the end of the matter—ct is the final
say on the matter and already signaled to Cong. their feelings
3. Step 2: If Cong. has not directly addressed the precise question at issue, the ct asks
whether the agency answer is based on a permissible construction of the statute
a. Must defer unless the construction is unreasonable (arbitrary & capricious)
b. Nothing really address how this analysis is done (it is a fluid standard)
i. The fact that an agency changes its mind doesn’t bother the ct
1. Ct is generous b/c if an agency acts totally contrary to Cong.
intent, Cong. will overrule them and correct the problem
c. Stating the agency’s interpretation is reasonable does not mean it is right—it is
just w/in the zone
i. This indicates that the ct is not the final determiner of the matter
ii. Step 2 basically compounds dynamic interpretation b/c it recognizes that
the first level of statutory interpretation will always happen at the agency
level (which is more purposive b/c of its political state) and then at step 2
ct recognizes there are many reasonable approaches
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iii. Agency interpretation may change over time—it should and will be tied
to the fluid movement of the political environment
5. US v. Mead Corp.—Agency used tariff classification letters and said they applied to others; agency didn’t go
through the formal adjudication process
a. Rule: An agency receives Chevron deference only if Cong. has delegated authority such that the agency
may promulgate the rule w/the force of law
i. This requires that there be an implicit delegation and that the agency actually used the formal
processes (notice and comment, formal adjudication, etc.), but it may apply in other situations
ii. This rises and falls on authorization
b. Holding: No Chevron deference here, and Chevron did not overrule Skidmore
c. Reasoning:
i. Nothing on the face of the statute indicates that Cong. wanted the agency to have the force of law
when it issued statements
ii. Issued letters only were binding on one party—no precedential value
iii. Agency issued 10k+ letters each year—that is not how you form law
d. Dissent (Scalia):
i. Scalia has several major concerns w/this approach:
1. Separation of Powers:
a. Chevron resolved the conflict between the branches by stating that statutory
ambiguities are resolved in favor of the agency (agency trumps the ct), but
Skidmore does not call for this (ct may trump agency since it’s just a balancing
test used by the ct)
b. This means that the politically accountable branch loses—this is not correct
2. Perverse Incentive:
a. Creates a perverse incentive for all agencies to use formal rule making
procedures b/c it will likely get Chevron deference
b. Cong. intent should be enough—if Cong. trusted the EPA to fill the gaps the EPA
should be trusted to do so as it chooses (formality is irrelevant)
3. Ossification of Law:
a. Chevron allowed for flexibility in the law that is ever evolving (agency can
change its position), but when a ct weighs in under Skidmore it becomes the law
and receives super strong stare decisis
b. Skidmore isn’t really deference at all—ct merely uses the agency interpretation
as a tool and uses it if they think it is the correct decision
4. Anachronism:
a. Historically it may have been appropriate to have the uncertainty of Skidmore,
but we live in a world where agency interpretation is pervasive and we need a
more rigid and defined structure
On its face, the plain text of STATUTE makes clear that S is a public employer/indicates this
Congressional intent, purpose, and the object of the statute support the plain meaning that X is the result
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