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Legislation Outline

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Proceduralist theories??Vetogates: points at which a minority can kill or maim legislation. Liberal theory: statutes should be hard to enact. Republican theory: the deliberative value of process. Arguments against vetogates: interest groups as rentseekers; legislative gridlock; empirical evidence that deliberation produces more extreme views (preference outliers). The pluralist, rather than procedural, theory of legislative process is that the legislative process is a transaction between those demanding statutes (interest groups) and those supplying them (legislators). o Easterbrook: If we view statutes as designed to overcome market failures, then it makes sense to construe them liberally. If, however, statutes are designed to replace the outcomes of private transactions with monopolistic ones, the judges should construe them strictly. o Eskridge: construe distributed benefit/distributed cost laws liberally, developing them in the common law fashion; construe distributed benefit/concentrated cost laws and concentrated cost/distributed benefit laws in accordance with their public interest justifications; construe concentrated benefit/concentrated cost laws with restraint, and don't attempt judicial updating unless affected groups are not able to get the legislature's attention.

Griggs v Duke Power Co (4th Cir 1970)??Section 703(a) of the Civil Rights Act prohibits job discrimination on the basis of race, sex, religion, or national origin. Duke Power had only employed black workers in its labor department. In 1965, Duke allowed employees to be promoted out of labor by passing one of two high school equivalency tests. The EEOC interpreted SS 703(h) ("provided that such test . . . is not designed, intended, or used to discriminate . . .") to mean that tests are unlawful unless they are properly related to specific jobs and have been properly validated. Majority interprets the statute as prohibiting only intentional discrimination. Concur/dissent: would defer to the EEOC. A neutral superstructure built upon racial patterns that were discriminatorily erected in the past comes within the Title VII ban. o You could read the dissent as deferring to the EEOC or as reflecting the preferences of the 1970, rather than 1964, Congress. Reversed (US 1971): The EEOC's rationale for an effectsbased approach derived from the statute's purpose. "Congress directed the thrust of the Act to the consequences of employment practices."

Substantive limitations on the legislative process?

State constitutions generally impose more of these. Madison's argument in Federalist #10 was that larger geographies are less vulnerable to rentseeking, so this might explain the lack of federal limitations. Many states have generality requirements. Among these are public purpose requirements, rules against special legislation, uniformity requirements (e.g. uniform taxation), and single
subject rules.

Department of Education v Lewis (Fla 1982)


State legislators passed an education appropriations bill that denied funding to publicly funded colleges that permit the meeting of groups that advocate premarital sex. The state constitution had a singlesubject rule for appropriations bills. Majority: The proviso attempts to make substantive policy, and is not directly and rationally related to the appropriation of state funds to postsecondary institutions and students. We can understand the singlesubject rule as protecting the governor's line item veto, since he won't take heat for vetoing something popular attached to an otherwise unpopular bill.

Clinton v City of New York (US 1998)??

Majority (Stevens): In effect, the President has amended two Acts of Congress by repealing a portion of each. There are powerful reasons for construing constitutional silence on this issue as equivalent to an express prohibition. Concur/dissent (Scalia): There is no difference between Congress authorizing the President to cancel a spending item and authorizing money to be spent on a particular item at his discretion. Dissent (Breyer): Imagine that the statute allowed the President to void a provision based on certain factual determinations. In that case, he would be following the law, not repealing it. Stevens makes the formalist argument about prescribed veto procedures. Breyer makes a functionalist argument that the option not to spend is an executive function.

Statutes as principled law: the decline and fall of formalism, 1890-1940?

Common law formalism: law is an object to be discovered by neutral judges through common law, while statutes are disorderly and should be narrowly construed. o Blackstone contrasted reasoned, objective judicial decisions against disorderly, subjective legislative decisions. Statutes are ad hoc, while judicial decisions are part of a historical pyramid. Legal realism: law is a subjective, social struggle that should be viewed pragmatically. o Holmes: experience, not logic, is the life of the law; the goal of the law should be pragmatic and utilitarian rather than formal. o Cardozo: the law's legitimacy is tied in some way to reason, so the effect of statutes will be tempered by principle. (Think of Riggs v Palmer.) o Brandeis deepened Holmes' critique of the Lochner judiciary: its decisions reflect a power grabbines that was beyond the competence of the judiciary. o Frankfurter: government's aspiration depends not just on the enactment of good legislation and judicial deference to those legislative judgments, but much more upon their elaboration and application by an expert administration.

State v Warshow (Vt 1979)?

Defendants protested the safety risks of a nuclear plant and were convicted of criminal trespass after the court refused to permit the jury to hear their necessity defense. Majority (Barney): common law formalist limitations to the necessity defense. There must be an imminent, compelling emergency; no reasonable opportunity to avoid the injury without committing the criminal act; and the injury must be sufficiently serious to outmeasure the criminal wrong. Here, the hazards of lowlevel nuclear radiation are longterm and so the danger is not imminent.


Concurrence (Hill): the state has already determined, via statutes permitting nuclear energy development in the state, that the benefits of nuclear energy outweigh its dangers. We cannot allow a jury to redetermine policy questions already decided by the legislature. Dissent (Billings): statutory enactments in derogation of the common law are strictly construed, and it is clear that defendants offered to show imminent danger and exhaustion of alternatives. Hill emphasized the policy of institutional responsibility, while Billings emphasized the policy of law as reason.

The legal process era, 1940-1973??

Legal process: law as an institutional system of procedures which seek to develop the reasoned elaboration of law's purposiveness. o Premises: legislative supremacy; decide the statute's purpose; interpret the statute's words so as to carry out its purpose but do not give them an inaccurate meaning; assume that the legislature was made up of reasonable persons pursuing reasonable purposes reasonably; interpretation should be carried out by the most authoritative institution. o Justice Reed explained the legal process interpretive method in 1940: plain meaning first, and if that meaning leads to absurd or futile results, look to the Act's purpose. Hart and Sacks: law is "a continuous striving to solve the basic problems of social living." A judge interpreting common law precedents must draw from them some rule, standard, or principle, a responsibility only fulfilled if the judge reads those precedents to figure out their purposes. Procedures that facilitate good policy decisions by the legislature, for example, are openness to the views of all affected persons and groups, focus on factual information subjected to expert and critical scrutiny, and public deliberation through which the pros and cons are thoroughly discussed. Brandeis and Levi argued that statutory interpretation precedents should be stronger than common law or constitutional precedents.

Moragne v States Marine Lines, Inc (US 1970)?

Decedent was a sailor who died in Florida's territorial waters. His widow could bring negligence claims under a state statute, but no unseaworthiness claim under either state or federal law. The Court's precedent interpreted the federal Death on the High Seas Act as not overruling the common law unavailability of tort remedies for sailor's deaths. Majority (Harlan): the rule at common law was based on the archaic felonymerger doctrine. Congress intended to ensure the continued availability of a remedy, historically provided by the states, for deaths in territorial waters; its failure to extend the Death on the High Seas Act to cover such deaths reflected the lack of necessity for coverage by a federal statute, rather than an affirmative desire to insulate such deaths from the benefits of any federal remedy.

Flood v Kuhn (US 1972)The Court's precedent interpreted SS 1 of the Sherman Act as not applying to Major League Baseball.


Majority (Blackmun): Congress has the power to amend the Sherman Act to remove the baseball exemption and has not done so. Concurrence (Burger): courts are not the forum in which this web ought to be unsnarled. Dissent (Douglas): Congress's silence doesn't mean we can't fix our own mistakes. Dissent (Marshall): this Court is the reason baseball is distinguished from other sports, and this Court should correct its error. Why overturn cobwebbed precedent in Moragne but not in Flood?

Retroactive application of statutes Jawish v Morlet (DC App 1952)?

The Supreme Court struck down DC's minimum wage in 1923, then overruled that case in

1937. The Attorney General opined that this meant the statute was once again good law, and that Congress needn't reenact it. Congress didn't reenact it, but amended it several times. This suit was brought by an employee who was not paid the required minimum wage. Majority (Hood): DC's minimum wage law was never (properly viewed as) unconstitutional. Thus the law is effective without reenactment by Congress.

Landgraf v USI Film Products (US 1994)???

Until 1991, Title VII permitted only equitable remedies such as reinstatement and back pay. Plaintiff brought a Title VII suit, which was dismissed. While her appeal was pending, Congress enacted the Civil Rights Act of 1991, allowing compensatory damages and allowing the imposition of them even in cases where the employee wasn't discharged or demoted. The statute said nothing about its retroactive application. Majority (Stevens): The House bill contained explicit retroactivity provisions, but the enacted bill was the Senate version, which did not. The President vetoed the 1990 version of the bill in part because of its retroactivity provision. Because this statute created a new remedy that would impact private parties' plans, it is not the kind of provision that applies retroactively absent a clear statement by Congress. Concurrence (Scalia): why not have a clear statement rule instead of this bizarre substance/procedure distinction?
Dissent (Blackmun): the presumption against retroactivity need not apply to remedial legislation that does not proscribe any conduct that was previously legal. o This statute was meant to overrule a Court decision. Don't fairness concerns militate in favor of retroactivity in the case of "restorative" statutes like this?
The Act sends mixed messages on retroactivity: SS 402(a) basically gives a clear statement rule, but then SS 402(b) carves out an exemption from retroactive application for a particular suit and SS 109(c) carves out such an exemption for overseas employers. Thus plaintiff invoked expressio unius to say that the rest of the statute can apply retroactively. Legislative history indicates that Congress wanted to make courts figure it out. The black letter rule here is essentially to ask was this primary or secondary conduct? If primary, there's a clear statement rule; if secondary, you can rebut the presumption and make an argument that Congress intended retroactive application.

Approaches to statutory interpretationThe mischief rule (Heydon's Case, 1584): what was the mischief for which the common law did not provide? Purposivism.


The golden rule (Lord Blackburn, 1877): follow the legislature's intention; give words their ordinary signification, unless when so applied they produce an inconsistency or absurdity. Intentionalism. o The difference between intentionalism and purposivism: intentionalism is about means and purposivism about ends. Legal process tries to institutionalize ways to discover a statute's purpose, by studying the process behind a statute's enactment. The literal rule (Lord Atkinson, 1913): follow the plain meaning, even if it produces an absurdity. Textualism. A second breath of fresh air (Lieber, 1880): nothing is gained by attempting to speak with perfect clarity and endless specifications, so somewhere we must trust common sense.

Holy Trinity Church v United States (US 1892)??New York church hired an English pastor. Federal statute forbade the assistance of immigration for immigrants "to perform labor or service of any kind." Though certain professions were exempted from the definition of "labor or service," pastors were not noted. Majority (Brewer): The spirit, rather than letter, of the statute should govern. Caminetti v United States (US 1917): even though legislative history indicates that a federal statute prohibiting the interstate transportation of women for "any other immoral purpose," the Court read "immoral purpose" plainly, such that the conviction of a married man for transporting his mistress across state lines was valid. Pound (1907): genuine interpretation means to discover the rule which the lawmaker intended to establish. Spurious interpretation means to make, unmake, or remake, not merely to discover. The good side of spurious interpretation is that it provokes the popular demand for judicial amendment of constitutions under the guise of interpretation. The bad side is that it brings law into disrepute, subjecting the courts to political pressure and reintroducing the personal element into judicial administration. Radin (1930): legislative intent isn't discoverable, and even if it were, legislatures exist to pass statutes; once the words are out there, they are instrumentalities which administrators and courts must use in performing their own interpretive functions.

The Case of the Speluncean Explorers (Harv L Rev 1949)??Statute prescribes capital punishment for "whoever shall wilfully take the life of another." Trapped cave explorers decided through casting lots which one to eat. They were convicted and sentenced to death. Truepenny: affirm; the statute permits of no exception. (Literal, textualist reading.) Foster: reverse; practically speaking, this case is governed by "the law of nature," not any statute. But if we do apply the statute, let's realize that it has never been applied literally (courts have read in a selfdefense exception, for instance). Read the statute in light of its purpose to deter homicide; these defendants were undeterrable, so the statute did not contemplate them. (Purposivist approach---not intentionalist, in that it doesn't consult legislative history so much as the commonsense purpose of homicide statutes.) Tatting: deterrence is only one purpose of criminal legislation. (Never comes to a disposition, but goes through a number of "what ifs." Maybe this amounts to a sort of political question doctrine.) Keen: affirm; read the statute literally and force the legislature to revise the statute. Legislatures are more institutionally competent to revise statutes than are courts. (Some legal process, some textualism.)


Handy: reverse; 90 percent of people think we should reverse, and no layman would think that we had stretched the statute any further than our ancestors did when they created the selfdefense justification. (Hardcore legal realism.)

Shine v Shine (1st Cir 1986)?Plaintiff wife sued in bankruptcy court to have her estranged husband's support obligation declared nondischargeable under 11 USC SS 523(a)(5). This statute excepts from discharge any debt "to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree, or property settlement agreement." The bankruptcy court held that the debt was dischargeable because the support obligation arose from a DC court decision rather than from a separation agreement itself. Majority (Bownes): legislative history indicates that Congress intended to expand the traditional exception to discharge for child support and alimony to include property settlements in the nature of support but which did not take the form of periodic payments. After this suit's filing, Congress amended the statute to clearly make this kind of debt non
dischargeable. There was a drafting error in the statute. Should courts correct such errors?
o Consider a 9th Cir case in which the statute required appeal "not less than 7 days after entry of the order," and the majority read this as "not more than 7 days." o United States v Locke (US 1985): statute required holders of certain mining claims to file certain documents "prior to December 31." Plaintiffs filed on December 31.
? Majority (Marshall): with respect to filing deadlines a literal reading of Congress's words is generally the only proper reading of those words.
? Dissent (Stevens): the BLM itself had seen this text as unclear, and the Act's obvious drafting errors should give us pause about applying this literally.

In the Matter of Jacob (NY 1995)?State's adoption statute permits "an adult unmarried person or an adult husband and his adult wife together" to adopt. Another adoption statute provides that biological parents' rights terminate upon adoption. Plaintiffs were unmarried significant others of the biological mothers, who did not want their parental rights terminated. Majority (Kaye): the legislature has cautioned us not to interpret the state's adoption laws as discriminating against unwed parents. It would be contrary to New York's public policy to terminate these mothers' parental rights upon adoption. Dissent (Bellacosa): the statute does not allow unmarried couples to adopt, only married couples or unmarried persons on their own.

The new textualism Green v Bock Laundry Machine Co (US 1989)?

FRE 609(a) requires a trial judge to allow impeachment of any witness with prior convictions for felonies not involving dishonesty "only if" the probative value of the evidence outweighs its prejudice "to the defendant." Plaintiff in a tort case was impeached using evidence of his prior conviction. Majority (Stevens): a literal reading would compel an absurd result, in that civil defendants, but not civil plaintiffs, could be shielded from impeachment by conviction evidence.

?Legislative history indicates that Congress intended to limit the Rule's prejudice balance to criminal defendants, not all defendants. Concurrence (Scalia): the literal interpretation would probably be unconstitutional. Interpreting "defendant" as meaning "criminal defendant" does the least violence to the text. o Scalia departs from textualism's usual rejection of the absurdity exception. o New textualist precepts: legislative "intent" is a legal fiction; statutory text is the only object of interpretation as the only "law" that survived bicameralism and presentment; only dictionaries and statutes are legitimate interpretive sources (not legislative history). o New textualists like the Landes-Posner idea of reconstructing the original legislative bargain in interpreting statutes, but reject the idea of consulting legislative history to determine the substance of the bargain. Dissent (Blackmun): why not interpret "defendant" as meaning "either party"? Neither the majority's result nor mine is compelled by the statutory language or legislative history, so let's favor a larger class of litigants rather than a smaller one.

United States v Marshall (7th Cir 1990)??

Federal sentencing guidelines prescribe mandatory minimums based on the weight of illicit drug distributed (weight of the "mixture or substance containing a detectable amount"). Majority (Easterbrook): a plain reading of the statute indicates that carrier weight is included in the calculated weight. If we think this is unjust in the case of these defendants, let Congress rewrite the statute. o Easterbrook, as a new textualist, looks to other statutes to resolve the ambiguity. Because Congress wrote the PCP sentencing provisions in accord with the dissent's preferred interpretation for LSD sentencing, it seems likely that Congress intended a difference. Dissent (Cummings): the draconian penalty scheme for LSD was a mistake never intended by Congress. Dissent (Posner): consider whether Congress had a reason for wanting to key the severity of punishment for selling LSD to the weight of the carrier rather than to the number of doses or some reasonable proxy for dosage. The plausible inference is that Congress simply did not realize how LSD is sold. If the majority's interpretation is credited, this is a case with serious equal protection concerns. We should not make Congress's handiwork an embarrassment.

Pragmatic theories of interpretation?

Posner distinguishes between "legalistic" and "pragmatic" theories. Pragmatists openly admit that law is not entirely separate from politics and that interpretation carries with it discretion and policy choice. Eskridge and Frickey's funnel of abstraction: o (1) statutory text o (2) legislative history o (3) legislative purpose o (4) evolution of the statute, and o (5) current policy.

Portland General Electric Co v Bureau of Labor and Industries (Or App 1992)

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