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Theories Of Institutional Relationships Outline

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IV. Theories of Institutional Relationships 1) Correcting Legislative Mistakes 2) Stare Decisis of Statutory Decisions 3) Interpreting Agency Regulations in Context of Statutes 4) Evolution of Statutes

1) Correcting Legislative Mistakes Types of mistakes

1. Unintentionally combining revisions of statutesShine v. Shine

2. Scrivener's errors

3. Oversight a. Did not think of consequencesU.S. v. Locke b. Lack of knowledgeU.S. v. Marshall Cons:
* Absurdity is in eye of beholder
* Federal judiciary is an unelected body
* Rule against surplusage: do not want reading that is so broad that it eviscerates any work done by words.
* Marshall in Locke Procedure: Role of imaginative reconstruction

3. is there any rational basis for intentionally inserting what appears to be an error?

4. Are there any plausible scenarios where reasonable statute could have somehow led to an error?
* E.g. Stevens in Locke
* This may also involve using legislative history, e.g. Shine v. Shine.
* See Posner in Marshall Institutional competence
* Congress is more able to interpret than Courts?
* Agencies are more able to interpret than Congress?
Legislative precedent
* If statute was changed, what did statute previously look like?
Cases U.S. v. Locke Statute: statute of limitationscertain mining right claim must be made prior to December 31. Issue: Is claim made on December 31 precluded by statute?
Marshall (majority): if meaning is clear, legislative mistake cannot be corrected, even when plain meaning is wholly illogical, is trap for unwary, and goes against intentions of drafter.

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Institutional competencegaps are to be filled by Congress, not by judiciary. Strict reading may be explained by subject matter---deadlines---which are inherently arbitrary. Stevens (dissent): this is obvious scrivener's error.
* Imaginative reconstruction:
* There is no rational basis for this limitation
* there are any number of plausible scenarios by which drafting error could have arisen out of originally reasonable statute
* Institutional competenceagencies are better equipped to understanding meaning of deadline, and agency's pamphlet says file "on or before December 31"

Shine v. Shine (1st Cir) Facts: 1972David Shine and Marguerite Shine separate without separation agreement. 1973Court orders David Shine to pay monthly maintenance Marguerite Shine. 1975Marguerite gets divorce decree. Sues David for maintenance, but he had already gone bankrupt. Statute: Bankruptcy Code allows no discharge of 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?."
* "Dischargeable" means that husband does not have to pay, while "nondischargeable" means that husband still has to pay even if he goes bankrupt.
* Absurdity created by plain meaning: because maintenance order was issued by court before divorce decree was issued, and therefore was not in connection with divorce decree or separation agreement, debt is dischargeable. This goes against purpose of statute to protect dependent families of bankrupt breadwinners!
* Legislative history indicates that various versions of statute were amalgamated last minute but were not harmonized with one another to produce desired provision. *
Legislative precedent until 1978 was to treat such debts as nondischargeable.
* Argument from inactionbecause Congress is deliberative body, if Congress had wanted to make major change, a Congressmember would have suggested it.
* Ruger: congressional inaction could be suggested by esoteric nature of provision and its extremely concentrated benefits. Bock Laundry Stevens: Fusion of House and Senate versions of Rule of Evidence in final version of rule muddled purpose of each one. We must look to intent to rediscover what rule should have been.

2) Stare Decisis in Statutory Interpretation Decisions Stare decisis requires a court to treat prior decisions as presumptively correct. Approaches to Stare Decisis
* Super Strong
* Normalcourt holds in Patterson v. McLean Union that statutory precedents are subject to normal stare decisis. Academic literature is in favor of this school.
* Soft

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Statutory Law v. Constitutional Law

1. Court is more deferential to its statutory interpretation precedents because Congress can always overrule the Court's previous decision.

2. The Court is less deferential with respect to constitutional precedent. Since the Court is the last word on constitutional issues, only it can overturn a precedent.

Reasons to Use Stare Decisis (includes Legal Process Theorists)
* Congressional inaction (see Brennan in Johnson): if Congress truly disagreed with Court's interpretation of statute, it would overturn it via legislation or members of Congress would propose bills to do so.
* Rests on assumption of congressional competence: Congress is aware that statute will evolve as it is litigated, and therefore has prerogative to change statute upon Court's interpretation.
* NOTE Constitutional vs. statutory: this argument does not work for constitutional stare decisis, because Court is ultimate interpreter of Constitution.
* Particularly convincing if conditions of time would favor changing Court's interpretation (see Blackmun in Flood):
# Floodall other sports became subject to antitrust laws
* Congressional competenceCongress is in better position than courts to overrule precedents:
* Better access to information
* More democraticcan bring in variety of interested parties to do Congressional hearings.
* Stability/rule of law (see Stevens in Johnson):
* Settling it at all is more important than settling it right
* Protects reliance interest
* Brightline rules promote judicial economy
* Keeps down costs of legal services
* Legal process theorists support this idea: law should be predictable (formalism) +
should adapt to present needs (realism) but public interest may involve reliance on traditional rules.


Failed legislative proposals to change Court's interpretation
* Invalidates Scalia's unawareness and political cowardice arguments
* Convincing argument if bills are too extreme on each side. Formalism Indicates Purpose
* Once court defines purpose of statute in one case, that becomes precedential authority on purpose of statute
# Babbitt uses TVA to give broad purpose to Endangered Species Act
* Acquiescence

Reasons to Soften Use of Stare Decisis (includes Legal Realists)
* Congressional inaction: congressional inaction might not be motivated by approval of Court's decision. Alternative theories for congressional inaction even in face of

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