Legislation Attack Outline

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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 1

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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) Morrison: no relevant contract in U.S. (Aussie bank and shares) RJR Nabisco (RICO): provisions analyzed piece-by-piece (enterprise, predicate acts, PCOA) Presumption Against Retroactivity: (1) Retroactive effects?
Landgraf (civil rights act remedies): does provision attaches new legal consequences to pre-enactment acts. Scalia concurrence - about whether regulates pre-enactment conduct Vartelas: (criminals excluded from U.S> entry) shows how Scalia's conduct regulating approach (dissent) differs from legal consequences approach (majority) (2) Presumption overcome?
Landgraf: negative inferences not sufficient to overcome Rivers: congress overriding a previous SCOTUS construction does not imply that the new construction must apply to cases before congressional override Lindh: negative inference from one section explicitly applying retroactively can mean all others don't, strengthening presumption See also Presumption Against Implied Repeals See also Specific/General Canon Last Antecedent Rule: modifiers only modify nearest list element unless evidence otherwise Evidence to overcome: purpose, nonsense reading, comma, other grammatical/contextual clues Series Qualifier Rule: modifiers before or after a "straightforward list of nouns/verbs" overcomes last antecedent rule Judson: (majority) lack of comma means the rule holds; (dissent) amendment history implies otherwise and overcomes the rule Lockhart: (majority) context confirms LAR - "minor or ward" only modifies nearest element; (dissent) legislative history
& contexts overcomes LAR Other: Reenactment Canon 2

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