Hills ARS, Spring 2010, A- in the class

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Introduction to Statutory Interpretation

  1. TVA v. Hill
  2. Sources of Statutory Interpretation
  3. Plain Text/Ordinary Meaning
  4. Constitutional basis because ratified
  5. Direct lineage to the people
  6. Best empirical evidence of legislative intent
  7. Sources for interpreting text
  8. Dictionaries
  9. Previous law with similar language
  10. Ordinary meaning
  11. Court uses this
  12. Powell’s Dissent: Canon against mere surplusage
  13. Waste no words
  14. “authorized, funded, or carried out” limits to these actions, not any actions as in majority
  15. Object of the Statute
  16. Written into Act in Preamble
  17. Not operative text
  18. But, actually passed by Congress
  19. But, not haggled over like other parts of Act
  20. Deals needed to pass bill could be counter to purposes of bill
  21. Legislative History
  22. Used to respond to Powell’s absurdity argument
  23. Article I procedures
  24. Earlier versions of bill
  25. Conference records
  26. Speeches
  27. Represent view of only one person
  28. No constitutional basis
  29. Canon against retroactivity
  30. Majority position would allow for a retroactive effect
  31. Absurdity Argument
  32. Have to shut down fully functioning dam
  33. Subsequent Legislation

Purposivism

  1. Purposivism Hard
  2. Even when plain text contradicts the purpose of the act, ignore text
  3. Riggs v. Palmer
  4. Court never quotes text, go straight to purpose
  5. Plain text doesn’t allow for murdering the testator exception
  6. Court finds a purpose to enforce person’s final wishes, which would probably not be to reward their murderer
  7. How do they find purpose?
  8. Subjunctive inquiry, what legislature would have intended
  9. Absurdity – inconceivable that leg would reward murderer
  10. Anti-derogation canon – common law maxim of not allowing profit from your crime
  11. Could have found other purposes
  12. Not allowing courts to add penalties to criminal law
  13. Principle of lenity
  14. Avoiding redundancy
  15. Upholding an easily administered bright line rule
  16. *Dangers of Purpose*
  17. the purpose you find could override other, equally valid, purposes
  18. Purposivism Light
  19. Use purpose when text is ambiguous as a tie breaker
  20. Holy Trinity Church
  21. Plain text seems to cover Reverend Warren, but there could be some ambiguity
  22. Court finds a general purpose to apply to manual labor
  23. Title of Act: “labor”
  24. Circumstances:
  25. Common knowledge
  26. Private petitioners
  27. Senate and House reports
  28. Anti-Absurdity canon based on communal social norm of this being a Christian nation
  29. Is this correct purpose?
  30. What about administrative simplicity?

  1. Legislative Process
  2. Theory
  3. Cycling – because of pair-wise voting and different first and second preferences, a generally less popular option can win given the right voting rules
  4. Does not occur if you have a policy preference continuum
  5. But, reemerges if you combine policies into one bill
  6. Germaneness Rule – In House you are not allowed to have amendments on a different topic to the bill
  7. No such rule in Senate
  8. Could have strategic voting to kill off unwanted amendments
  9. Thus, voting on amendments might not reflect actual intent of congressperson, Congress
  10. Might not have any one “Intent of Congress”
  11. Fact
  12. Procedure in the House
  13. Rules Committee develops special rule for a bill
  14. Open rule – subject to Amendment Tree
  15. Closed Rule/gag rule – no floor amendments
  16. Modified closed rule – limits number and type of amendments
  17. Any rule can waive germaneness requirement
  18. Voted on, according to one hour rule, by whole house
  19. Generally majority party will automatically pass
  20. Amendment Tree  ORDER AND NUMBER matter
  21. Two degrees rule – no amendments to amendments to amendments
  22. Voted on in reverse order of offering
  23. First Degree Amendments
  24. Motions to strike/insert
  25. In the nature of a substitute
  26. Second Degree/Perfecting Amendments
  27. Strike out old language and insert new language into a first degree amendment
  28. Take aways from the Amendment Tree:
  29. Canny majority leaders can “fill the amendment tree” with unimportant amendments to block more controversial measures being proposed
  30. When and how you introduce amendment can affect its viability
  31. Senate Debate
  32. No rule on germaneness of amendments, no limit on number of amendments, or length of debate
  33. Can only limit debate with vote for cloture
  34. Unanimous consent agreement – all agree to waive cloture rule to prevent one Senator holding things up
  35. Conference Committee
  36. Can undo work of House or Senate in order to get a compromise. House must approve report, but this is an all or nothing process

  1. Textualism
  2. Casey
  3. Does attorneys fees include expert fees?
  4. Common usage – could go either way  ambiguity
  5. Statutory usage
  6. In pari materia – other statutes delineate expert fees separately. Scalia says this is unambiguous
  7. Purposes are irrelevant unless they shed light on text
  8. Scalia ignores general understanding by distinguishing and requiring Congress to be more specific
  9. Best evidence of purpose is text
  10. Unambiguous through norms of usage, so don’t look to policy
  11. Interpret usage separate from goal of statute
  12. Length as well as direction
  13. Allowing purposive interpretation of language will let you ignore the limits of length on the statute
  14. Statutes defined as much by what they leave alone as what they change
  15. Use only canons, dictionaries, evidence of how people use term in speech
  16. Goal is coherence/consistency in the law
  17. Dicta: If there is Ambiguity:
  18. Look for permissible meaning which fits most logically and comfortably into the body of both previously and subsequently enacted law
  19. Role of courts is to make sense rather than nonsense of corpus juris
  20. Arguments for Textualism
  21. Respect for legislative supremacy
  22. Respect legislative compromise: Every piece of language should be presumed to be part of a bargain
  23. Choice of words is intentional, necessary to get bill passed
  24. Details of usage trump generalities of purpose
  25. Constrain judges, limit judicial discretion
  26. Ex Ante: Encourage Congress to be clear, draft laws carefully

Ambiguity and Absurdity

  1. Ambiguities
  2. Cline
  3. 2 competing definitions of “age”, purpose used to break tie
  4. If examination of dictionaries, mainstream and technical definitions, other statutes leave it still ambiguous.  turn to LH.
  5. Cline Decision Tree
  6. Is the text Ambiguous?
  7. No  enforce plain meaning (Casey)
  8. Yes  does statutes’ purpose resolve ambiguity?
  9. Yes  enforce def from purpose
  10. No  you are SOL
  11. Does having 2 competing meanings create ambiguity?
  12. Yes  Textualism is weak, because there will almost always be a competing meaning of a term
  13. No  Textualism is strong, you use all canons and norms of usage and still meanings are evenly weighted, then, and only then, you can turn to purpose
  14. You will almost never find ambiguity, making Scalia a happy camper.
  15. **Ambiguity is a great switch that can take you to purpose**
  16. Absurdity
  17. U.S. v. Kirby
  18. Is it “Retarding the passage of the mail” to arrest a mail carrier for murder?
  19. Court held that it would be absurd to say so.
  20. Puffendorf’s example of letting blood in the streets to save a life.
  21. Why is this absurd?
  22. High costs – costly to let murderers go v. small benefit of timely mail
  23. Common law notion of law enforcement immunity
  24. Common law notion reflects common sense
  25. Easy here, could also have used violation of a social norm, as in HTC
  26. What is absurdity, in general?
  27. Plain meaning is so contrary to common sense that Congress could not have intended it.
  28. Could be a species of ambiguity. It is ambiguous what Congress intended because the result of the plain language is so absurd. Thus, you can turn to Purposivist tools, LH, CL, etc., to determine intent of Congress.
  29. How do we cure here?
  30. CL maxim + common sense
  31. Public Citizen
  32. Does the FACA apply to the ABA?
  33. Utilize is clear in terms of plain meaning, result would be absurd. How does court find absurdity?
  34. Reducio ad absurdium: other cases show absurdity – American Legion, NAACP, political parties
  35. “compels an odd result”
  36. But, these are not before the court. Issue of ripeness.
  37.  Lowers threshold for absurdity
  38. Opposing parties think the current bodies would not create absurdity.
  39. Strong Textualist case to apply FACA to ABA
  40. Kennedy, Dissent: only need to look to constitutional issue to cure.
  41. How do we cure here?
  42. Turn to LH to resurrect text.
  43. Utilized really means “funded by”.
  44. Constitutional issues of interfering with President’s Art. II powers.
  45. Avoidance Canon, not absurdity.
  46. Public Citizen Absurdity v. Marshall Absurdity – Possible absurdities v. actual absurdities
  47. Absurdity and Scrivener’s Error
  48. Scalia: Scrivener’s error is when “legislature obviously misspoke” v. Absurdity where it “obviously over-legislated”.
  49. Scrivener’s error is obvious and specific error
  50. Absurdity is blanket phrase that is too broad
  51. Less discretion from court to cure a Scrivener’s error
  52. If you can point it out, you can cure a Scrivener’s error
  53. If you can point out absurdity, you still don’t know how to cure
  54. U.S. v. Locke - Clash between text “file by Dec. 30th, and intent to file by end of year. Court goes with literal reading
  55. Deadlines inherently arbitrary, but essential to accomplish goals.
  56. Because isn’t really bad policy, results are not world ending, go with text.
  57. Marshall does not care that this might be contrary to Congressional intent.
  58. If this is too onerous, Congress can change it
  59. Ambiguity v. Absurdity v. Scrivener’s Error
  60. Ambiguity
  61. Unclear what meaning the text has
  62. How do we cure ambiguity?
  63. Resort to canons, norms of usage, other legislation, LH
  64. Cline
  65. Absurdity
  66. A meaning follows clearly from text, but Congress could not have intended
  67. How do we cure absurdity?
  68. Congress can cure by being very explicit, unless unconstitutional.
  69. Adopt an old legal tradition
  70. Kirby, Riggs v. Palmer
  71. Question constitutionality
  72. Public Citizen
  73. Not really a “cure” for absurdity, more like way to attack the issue
  74. Look to LH
  75. Either to show what they would have done if confronted with issue
  76. Public Citizen
  77. Or, that leg. actually intended this result. LH to resurrect the text.
  78. Textualists would approve.
  79. TVA v. Hill
  80. Enforce text literally, force Congress to respond
  81. Marshall
  82. Scrivener’s error
  83. Obvious and specific error, easily cured
  84. Locke

Legislative History

  1. Source of Authority
  2. Legislative history
  3. North Haven Board of Education
  4. Plain meaning: “no person”
  5. Includes employment, even janitors
  6. Majority argues that there is no ambiguity
  7. Turn to LH because this is a pre-Casey case.
  8. Legislative History sources
  9. Prior legislation included “employment”
  10. Amendment
  11. Statements of sponsor in Senate, Bayh
  12. Post-enactment
  13. Legislative inaction, did not pass bills that would have exempted employment
  14. Arguments for legislative history
  15. Expertise – sponsor, committee know more about the bill
  16. Delegation – others look to sponsor, committee to explain bill
  17. Powerful with committee because chair chosen by majority, so less likely to be an unrepresentative view
  18. Less powerful for sponsor, though you could say it comes from the unanimous consent agreement
  19. Legislature will respond to Court’s construction by clarifying intent in LH
  20. Circular argument, plus most congressmen don’t read reports, listen to speeches
  21. Normative argument
  22. Electoral Accountability
  23. Congress should take their speeches seriously
  24. Sponsor’s Statements v. Committee Reports
  25. Delegation
  26. Sponsor statements have no opportunity for dissent
  27. Committee Reports will be a more precise elocution of the power delegated to them because of the need to compromise between committee members.
  28. Expertise
  29. Sponsor will likely be more zealous re bill, so not representative
  30. Clarity
  31. Contradictory statements are likely ftom a sponsor
  32. Not clear statement – if multipart bill, may not know which part Senator is referring to
  33. Committee Reports benefit form revision, time to format and make clear
  34. Legislative inaction
  35. North Haven School Board
  36. Conference Committee deleted language
  37. Could be many reasons for this – could have been removed to prevent conflict between different parts of the bill, not to change meaning of one part.
  38. Remove redundancy and possible expressio unius argument. Could indicate that Congress thought that meaning was already in bill
  39. Kinds of Inactivity
  40. Pure silence: no action at all, no bills even proposed
  41. Presumption of acquiesence
  42. Weakest evidence
  43. Congress might have had more pressing issues, minority might have kept bill from floor
  44. Hard to get bills through Congress
  45. But, can accumulate
  46. Extra strong form stare decisis
  47. John R. Sand & Gravel – jurisdiction clause was over-ruled in every other kind of statute, but not here
  48. Protects Reliance interests
  49. Negative action - Stronger
  50. Congress rejects bill that would overturn decision
  51. Flood v. Kuhn – Congress repeatedly struck down bills to remove interstate commerce exemption for baseball, and refused to allow exemptions for other sports.
  52. Layer of consistency over a layer of inconsistency
  53. Powerful statutory stare decisis
  54. Congress rejects amendment
  55. Minority Gridlock: Minority can shut down an amendment
  56. Re-enaction - STRONGEST
  57. Congress re-enacts bill without overturning interpretation, incorporates language form judicial interpretation
  58. In pari materia – Congress presumed to use terms as construed in past decisions
  59. Argument against pure silence/strong form stare decisis
  60. Ginsburg in John R. Sand & Gravel: when circumstances have changed, policies underlying stare decisis, stability and predictability, are weakest
  61. Can ensure uniform interpretation of similar statutory language
  62. Intervening development of law has removed conceptual underpinnings of original decision
  63. Legislative Action v. Inaction
  64. Inaction is more of a collective decision, so maybe more valuable that action of sponsor, or committee
  65. Textualist critique
  66. Blanchard v. Bergeron: why Scalia hates LH
  67. “Reasonable” re Attorney’s fees is ambiguous, depends on your perspective, your side in the case
  68. Court turns to Committee Reports
  69. Clear, on point, cite judicial precedent listing explicit factors to consider
  70. What is wrong with Committee Reports?
  71. Violation of bicameralism – only Senate Reports
  72. Violation of Article I
  73. Not passed via constitutional procedures
  74. Congress is not to be trusted unless reigned in by Constitutional procedures
  75. Scalia: Congress cannot tell Court how to construe terms in statute unless such instructions are in the form of terms in the statute
  76. Issue of “role reversal”
  77. Violation of separation of powers
  78. Legislature is telling Court how to interpret statute
  79. What is wrong with LH generally?
  80. Allows too much judicial discretion
  81. Court can pick and choose with aspects of LH to use.
  82. Continental Can
  83. “Substantially all” re pension plan contributions, what does it really mean?
  84. Unambiguously does not mean majority, but need extrinsic canons to determine what it does mean
  85. Post enactment speech
  86. Especially suspect as it contradicts other sources, can have no influence of legislation so could say anything really
  87. Easterbrook argues against even modest use of LH, can only use it when consistent with customary usage
  88. Customary usage determined here from IRS Code
  89. Objective definition that transcends text
  90. Technical rule, technical definition

Debate: Purposivist v. Textualist

  1. U.S. v. Marshall
  2. Mixture or substance: does this include the paper carrying LSD?
  3. Easterbrook, Majority turns to technical definition that includes paper
  4. Expressio argument: Congress made different penalties for pure and MOSCADA PCP, so could have differentiated if they wanted
  5. Surplussage: if mixture really means pure, then there are extra words
  6. Why no absurdity: there could be at least some legislators that would want this structure, so have to respect text.
  7. Easterbrook/Marshall Absurdity = reasonable congress would never pass, or plainly unconstitutional
  8. Dissent: Posner looks to big purpose: dose + dangerousness = sentence
  9. Oversight that Congress did not rewrite text here
  10. Absurdities that flow from Easterbrook Textualism
  11. Intra-drug disparities
  12. Kingpin could get lighter sentence for selling pure form than street dealer selling LSD on a carrier
  13. Easterbrook argues that other statutes take care of this, in practice not a big deal. Prosecutorial discretion could cure this.
  14. Narrows absurdity doctrine to as applied cases
  15. There could be a rational basis, costly to figure out weight of drug v. weight of carrier
  16. Inter-drug disparities
  17. LSD dealers get stiffer sentence for fewer doses than other drugs
  18. Easterbrook has no reply
  19. V. Public Citizen
  20. Here, possible absurdities are ignored, only actual absurdities matter
  21. Goals of Statutory Interpretation
  22. Give Congress good ex ante incentives to make good laws
  23. Prevent corrupt Deals
  24. Prevent abuse of judicial discretion
  25. If you allow too much Purposivism, even if okay in one case, you can start making policy decision in future
  26. Arguments for Purposivism
  27. Can correct legislative oversight
  28. Posner Dissent in Marshall
  29. Provides a fuller picture, you can use more information
  30. More likely to yield just results
  31. Avoids irrationality, absurdity
  32. Locke, Marshall
  33. Dangers of Purpose
  34. the purpose you find could override other, equally valid, purposes
  35. Issue of not following Constitutional Procedures
  36. Bicameralism: Floor speeches not subject to ratification by both houses
  37. Presentment: must be signed by President
  38. Title is ratified, but not subject to such intense debate
  39. Common knowledge never ratified
  40. Is this accurate logic?
  41. HTC: Christian nation logic does not explain exclusion of all “toilers of the brain” argued for by others
  42. Hypothetical Bill: Makes claim of what Congress would have wanted without knowing the procedural rules, so cannot know what the outcome would have been.
  43. What Congress rejected is immaterial, interested in what Congress would have passed
  44. Too much power to outliers, who speak on the floor, but may not represent majority
  45. Anti-self-delegation Doctrine – Blanchard v. Bergeron
  46. Congress may not delegate to itself the power to interpret laws
  47. Protection of Art. III powers
  48. Ratification process purges legislation of unsavory deals that might survive in LH
  49. Too much discretion
  50. You choose your friends from among the 435 members of Congress.
  51. Gives Courts too much discretion, too much discretion to individual legislators
  52. Arguments for Textualism
  53. Respect for legislative supremacy
  54. Respect legislative compromise: Every piece of language should be presumed to be part of a bargain
  55. Choice of words is intentional, necessary to get bill passed
  56. Details of usage trump generalities of purpose
  57. Gives Congress ex ante incentive to write clear laws
  58. Constrain judges, limit judicial discretion
  59. Gives Courts right sort of discretion, cabined by legalistic norms of interpretation such as consistency, conservatism about preserving precedents, attention to meaning of words as expressed by apolitical traditional sources
  60. Problems with Textualism
  61. Canons of construction might allow just as much discretion as LH
  62. Clear language can be a value judgment
  63. Inflexible and arbitrary at times
  64. Text can be an accident
  65. Congress can’t always remedy results

Canons in General