Legislation Attack Outline

Purpose vs. Text

• Implied Exceptions into Generally Worded Statutes:

  • (1) Imaginative Reconstruction: use purpose to resolve ambiguity, some do ad hoc

    • Riggs: legislature would have included slayer exception in wills statute

    • Church of the Holy Trinity: legislature couldn’t have wanted to restrict importing preachers

    • Speluncean (Foster): legislature didn’t consider this situation

  • (2) Fundamental Maxims of the Common Law: debate over whether it resolves ambiguity, or can contradict clear language of statute

    • Riggs: read nullus commodum into will statute to prevent slayers inheritance

    • Speluncean (Easterbrook): murder statute accommodates justification defenses

  • (3) Presumption Against Absurdity:

    • Church of the Holy Trinity: it would be absurd to restrict importing preachers

    • U.S. v. Kirby: mail interference statute can’t prevent arresting mailman murderer

• Drafting Errors

  • (1) How to diagnose?

    • NELSON: if plain meaning is so odd that it is idiosyncratic, absurd, or nonsensical

    • Disagreement regarding certainty:

      • Locke: Marshall & Stevens disagree over threshold (“prior to 12/31”)

      • Amalgamated Transit: majority and Bybee disagree regarding certainty of whether “less” establishing a waiting period

      • Green v. Bock Laundry: Scalia “d” = “criminal d,” otherwise text doesn’t make sense

  • (2) Should you correct them? (see CAFA)

    • Spivey: diagnosed error in “less” establishing waiting period, did not correct it because of notice

    • Amalgamated Transit: diagnosed the same error AND corrected

    • See Presumption of Consistent Usage carrying idiosyncratic meaning elsewhere

• Rules vs. Standards

  • Schauer: more rule-like means less room to use purpose in interpretation, more standard-like allows for more purpose

  • Jaskolski: (Easterbrook) courts should not change congress’ rules into standards with purpose (but see Easterbrook in Speluncean – reads background principles to change murder rule into more standard w/justification defenses)

Canons

• Conflict between canons: most start with ordinary meaning, Nelson thinks descriptive trump normative, Llewellyn says they conflict so much as to be useless

• Descriptive

  • Ordinary Meaning: common use of words, through dictionary, corpus analysis (media), etc. Whether it is used in a statute is a question of context

  • Term of Art: technical meaning in a field. Acquired through prior meaning in the law (e.g., CL and “seamen”), field, etc.

  • Noscitur a Sociis: a word is known by its companions

    • Jarecki: “discovery” in mining statute list only means for mineral resources

    • Maracich: “civil . . . proceeding” in DMV statute does not include lawyers soliciting clients for class action

    • See also Babbitt v. Sweet Home (harm endangered species), Gregory v. Ashcroft (judge retirement), Gustafson v. Alloyd Co. (prospectus), Yates v. U.S. (“tangible objects” fish)

  • Ejusdem Generis: generic catch-all at end of list is limited by items in the list

    • 1st Cir.: weaker when general comes first (NELSON disagrees)

    • Circuit City: “any other class” only covers employees in transportation industries

    • Different from Last Antecedent and Series Qualifier Rules which address modifiers w/ lists

  • Presumption of Consistent Usage: legislatures use words the same way

    • See also in pare materia, interpretative statutes

    • Gustafson v. Alloyd Co. (prospectus)

  • Presumption Against Superfluity: don’t read ambiguous term to make other superfluous

    • See also Church of Holy Trinity (statute exempting artists, etc. from “labor/service”), Yates (if Kagen dissent correct, “other documents” is superfluous)

    • NELSON: congress may put redundancies in to remove doubt, e.g., Marx (removing doubt), Texas Department of Housing (assured safe harbor)

  • Expressio Unius: if a statute expresses one exception it implies the exclusion of others

    • NELSON: weak, overcome by showing congress assumed the exception exists

    • Marx: to use, must be fair to suppose Congress considered the unnamed possibility and meant to say no

• Normative

  • NELSON: apply only when descriptive ones fail to clarify meaning, and must make ad hoc decision between 2+ permissible meanings

  • Rule of Lenity: intractable ambiguities are read to make penal law more lenient

    • Applies to interpretation of statutes that bear on civil and criminal penalties

    • Muscarello: justices disagree if “carry” is sufficiently ambiguous to trigger

    • Bailey: “uses . . . firearm” read narrowly, not explicitly lenity

  • Constitutional Canons

    • Savings Canon (Constitutional): if 1 of 2 permissible readings is unconstitutional choose the constitutional reading

      • Bidirectional over time, but see South-Eastern Underwriters (“commerce” took later more broad meaning)

    • Canon of Avoidance: either (1) narrow – avoid constitutional questions when calls statute constitutionality into question, or (2) broad – avoid constitutional questions even if statute constitutionality not in question

      • Bidirectional over time

      • NLRB v. Catholic Bishop: generally worded statute read to avoid 1A question of whether catholic school teachers must be able to collective bargain

    • Presumption of Severability: presume unconstitutional applications are severable from constitutional applications

  • Presumption Against Absurdity: see implied exceptions, drafting errors

• Implied Limitation Canons

  • Presumption Against Extraterritoriality: (RJR Nabisco) look at each element of the statute to determine. Charming Betsey is the strongest version – can’t regulate conduct in other nations

    • (1) whether the presumption is overcome, and

      • EEOC v. Aramco (employment discrimination):: (majority) text doesn’t overcome vs. (dissent) weaker form given conduct being regulated is overcome by negative implication of exception, and Charming Betsey doesn’t apply bc U.S. company and employees

      • Morrison: (bank purchase mortgage co) needs clear text to overcome, no imaginative reconstruction

    • (2) whether the application would be extraterritorial

      • New York Central Railroad: choice of law says it’s a Canadian tort (Nelson likes)

      • ...

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