Bridge legislative supremacy with constitutional avoidance
Keep note of how the purposivists view Congress as generating imperfect work product
Explain your answer to him
Grades the exams as a whole (can cross reference)
Read with extraordinary care and then organize answers
Legislation & The Regulatory State Outline
Legislation Interpretation and Beyond Methods of Interpretation
When confronted with ambiguity or a troubling outcome, the judge tries to figure out what the legislature would have specifically intended if it had confronted the particular interpretive question. Would look to transcripts before a law is enacted.
How the legislature would have responded to the precise question at issue
Congress adopts legislation for a reason and courts should read specific statutory provisions to advance the legislation’s purpose or general aims, as derived from a variety of sources, including the context of enactment.
Interpretation should strive to discern how reasonable people would understand the semantic import or usage of the precise statutory language and the structure of the statute.
Going beyond the text to further some notion of Congressional intent or purpose is both illegitimate and unworkable in practice
“No vehicles in the park” illustration
intentionalist would look to a sponsor’s assurance of a worried colleague that the bill wasn’t intended to exclude bikes
a purposivist would be more interested in what inspired enactment of the bill. If the legislature had been principally concerned with noise and pollution, a purposivist would be inclined to allow bicycles
a textualist would look to how people ordinarily use the word “vehicle”, to the dictionary and to legal parlance
Each interpretative model is grounded in the principle of legislative supremacy—acts of Congress enjoy primacy as long as they are within constitutional bounds, and that judges must act as faithful agents
Each method is concerned with “legislative intent” though they understand the phrase differently. Each is trying to enforce a decisions that they think is legitimately attributable to the legislature.
The Judge’s Role in Relation to Congress
Independent – check & balance Congress
Faithful agent – follow Congress as its faithful agent
“I believe banning strollers is a bad idea”
partnership if it furthers the public good
subordinate if the legislature gave the directive that judges decide what “vehicle” means in marginal cases
Federalist 78 combines all three
The essay is a defense of what would become Article III, Section I.
Independent: checking the limitations of the CNSTN so that the legislature does not abuse its power, deterring Congress from passing unjust laws by mitigating their effects. Tenure and salary protection to ensure degree of independence.
Partner: Not checking the power of Congress to pass the law directly but mitigating the effects of existing laws for the public good. Relies on assumption that judges can discern what is an unjust or partial law.
Faithful agent: no active resolution whatsoever. No force or will.
Marshall (The LSD Case)(7th Cir. 1990) Q: Does weight of the carrier (blotting paper) factor in the weights listed in the statute, which trigger statutory minimum sentencing?
Held: Yes, because
(1) Against using the weight of pure LSD only
“Substance or mixture” must have some meaning; “detectable amount” is the opposite of “pure”; structural argument (PCP provision would have surplus if “mixture or substance” meant pure); Congress intended that “mixture” not be converted into an equivalent amount of pure LSD
(2) For weight of LSD plus paper as a “mixture or substance”
Ordinary meaning of “substance” and “mixture” combined with specialized usage in chemistry, colloquial meaning, LH, precedent
“Odd results may occur”
Dissenting, Posner assumes more of an independent or partner role
The minima would be triggered by one dose in a glass of OJ but not by one dose in an empty glass
Disproportionate to other, more serious drugs.
Acknowledges that “substance and mixture” would have no referent under his analysis
“Well, what if anything can we judges do about this mess?”
Moderating an unjust law
Contextual argument: Congress didn’t know that LSD is sold by the dose not by weight.
Congress makes some mistakes and the judge is a partner who works with Congress to ensure that the result is not embarrassing for either Congress or the court
Doesn’t say he would disregard a congressional mandate stipulating the use of the weight of the blotting paper
A bridge between partnership model and purposivism
Just trying to carry out congress’ overall purpose despite being a little careless drafting the statute
Critique of the dissent’s reasoning
The realties of enforcement would never involve the OJ discrepancy
Perhaps this law is designed to capture the little fish and leave the big fish to be caught by another law
Maybe Congress intended to target LSD harshly
Letter Versus Spirit of the Law Creating the letter of the law—the legislative process
Article 1, Section 7: Bicameralism and Presentment
“Before a bill can become law, it must pass both the House and the Senate (bicameralism) and sent to the president to sign or veto (presentment)”
Involves different institutions with different election cycles, different constituencies and small state power
Represented by the decision to give equal weight to all states irrespective of population size
Checks and balances
Preventing either branch from abusing its power
Encouraging abuse of power in blocking legislation
Deliberation and “cooling off”
Facilitates potential for public participation
Congressional Rules of Procedure: Constitution dictates that each house can determine its own Rules of Proceeding
Introduction of bills and referral to committees
Committee consideration, conference committees
Floor debate, voting including Senate filibusters and cloture rules and amendment, adjournment
Effect: Statutes are hard to “make” status quo bias
Classic Approach—spirit over letter: Purposivism As with the LSD OJ hypothetical, troubling consequences of the law generate challenges to textualism and sometimes the challenge happens within the subordinate model, by invoking the legislature’s intent or purpose
Why might statutory text and purpose ever be at odds?
Imperfect legislation at T1
Imperfect amendment at T2
Court’s imperfect interpretation of T1 text and purpose at T2 (hindsight bias)
One way to legitimize the potential trade-offs inherent in this conundrum (cf. Riggs dissent) is to include the troubling results apparent at T2 or to simply accept an open partnership model of judiciary involvement
Riggs (NY 1889)(The Murderer Inheritance Case) Q: Can murderer inherit from the will?
The words of a statutes give the property to the murderer, but the purpose of the statute is to effect the final wishes of the testator
Held: Murderer cannot inherit. The intention of the lawmakers could not have been to grant a murderer donee beneficiary rights. “If such a case had been present to their minds…”
Intentionalist & Purposivist
Philosophy: A thing within the intention of the statute is as much contained in the law as if it were in the letter. A thing in the letter but not in the intention is not contained in the law
Dissent: Not within the power of the court to go beyond confines of statute, which does explicitly delineate when a will can be altered or revoked (fraud, duress or incapacity at the time the will was made expressio). Consistent conformity of judicial performance required for the law to be legitimate and the legislature may have intended this.
Church of the Holy Trinity (1892)(The Christian Nation Case) Q: Does the (foreign) Labor Act prohibit a contract made between an English rector and US corporation (church)?
The Court starts with the “letter” of the act, which clearly prohibits the contract: “It shall be unlawful… for any … corporation… in any way assist or encourage the importation or migration of any aliens in the US… under contract of agreement… to perform labor or service of any kind in the US”
Specific exceptions listed which do not include religious workers (expressio)
Held: the contract is not in violation of the Act as Congress did not intend to preclude this type of contract
Legal Process: judge assumes the legislature is made up of reasonable persons pursuing reasonable purposes reasonably
Rational conjecture given drafting imperfections
Relies on the title of the Act and the common understanding of “labor” to decide that “labor” applies to manual labor
Contextual argument: enacted in response to the collapse of the manual labor market, “the mischief” to be avoided
As ascertained by common knowledge, current events, LH and another judicial opinion
LH: senate committee report (unlike Riggs which did not look to LH)
Not representative to the views of the whole legislature but speaks to the issue at hand; an answer to the Legal Process inquiry
“The current language should be read as manual labor”
“this is a religious people”
Assumes judges can discern broad, deep values of American public
And that legislators do not act contrary to them
Words are instruments to convey a purpose to which the court must be loyal its interpretation
American Trucking: “Even when plain meaning id not produce absurd results but merely an unreasonable one “plainly at variance with the policy of the legislation as a whole” this Court has followed that purpose, rather than the literal words”
Faithful agent under purposivism but functionally similar to partnership model “This is not the substitution of the will of the judge” just that the words are an imperfect representation of the will of the legislator
Conceptually different from partnership model
If general purpose governs, how much guidance for judges?
What if someone murdered not the testator but primary heir?
What if there are multiple purposes at conflict with each other?
Would open partnership or reliance on formal amendment be preferable?
If judges confined interpretation to the terms of the statute it would incentivize amendment and clearer drafting
Casey (1991)(The Expert Fees Case) Q: Can expert testimony fees be shifted to the losing party pursuant to statute which permits the award of “reasonable attorney’s fees”?
Held: No. The best evidence of the legislature’s purpose is the text itself and the text is CLEAR, given statutory and judicial usage, and does not envelope expert fees in reasonable attorney’s fees.
Statutory usage: treated as distinct in other statutes—if “attorney’s fees” included both then this would create a redundancy in those statutes
While courts may have relied on equitable doctrines to shift not only attorney’s fees but also expert fees, they never did so because they saw the latter as part of the former
Other sources of evidence may be used but only when there is ambiguity in the text.
Unambiguous meaning cannot be manipulated by legislative history
Despite there being legislative history to show that this statute was enacted to reverse Alyeska and to encourage plaintiffs to bring civil rights claims, the best evidence of a statutes purpose is the text itself
Unambiguous text cannot be expanded or contracted by the statements of individual legislators of committees during the court of the enactment process
Purpose of bill is to return courts to Pre-Aleyska practice of shifting fees in civil rights cases, including expert fees
Congress is the master but we do the country a disservice when he needlessly ignore persuasive evidence of Congress’ actual purpose and require it to go back and do better whenever its work product suffers from an omission or inadvertent error
Both subscribe to legislative supremacy but disagree about how to best be a faithful agent to Congress
Different views of or focuses on the legislative process that accounts for inconsistency between plain meaning and intended purpose
Purposivist – inadvertent legislative omission or failure of foresight
Textualist – result of a process that necessarily involves compromises which must be preserved
A statute has many layers of purpose and is therefore vulnerable to abstraction
Scrivener’s Errors: Amalgamated Transit Union (9th Cir. 2006)(The Less is More Case) Mistakes in transcription: The statute created a waiting of period of 7 days before you could file an appeal without providing a maximum: “not less than 7 days”. Arguably meant to have been a deadline: “not more than 7 days”
Judges are hesitant to apply the doctrine
Legislative history indicates it was designed as a limit of within which an appeal could be filed
“No logical purpose” to have a minimum but not maximum [debateable]
Presence of other scrivener errors (or same error repeated)
“no rational basis” for omitting a single day (Stevens)
Legislative history cannot be used to directly contradict words of statute when unambiguous. It may be used to clarify ambiguous text.
Litigators and lawyers have to be able to rely on the actual text
Absurd results mitigated by FRCP
Scalia: The scrivener’s error must be “clear to the reader” and “it will usually be pretty clear that the result produced by the error could not possibly be chalked up to a compromise”, i.e. the error must result to nonsense or meaninglessness. Easterbrook did not find nonsense present in Less Is More Case.
Should it matter than Congress eventually amended to “not more than”?
Sitting legislature is not necessarily the enacting legislature
Is it disrespectful to Congress to keep holding their feet to the fire in reading scrivener’s errors literally when the cases get reserved?
Not every policy gets Congressional attention
Textualists may not care about flipping or being disrespectful—care about making the text reliable
Textualism and the Independent Model If you’re going to hold congress’ feet to the fire, are you really being a subordinate?
Textualism on the Rise
(1) Respect difficult legislative process over judicial policymaking
Normative claim that judges should be faithful agents not partners or independents
Our democratic process depends on respecting the reality of policymaking
Don’t want judges upsetting the bargaining process under the mistaken impression that the process is principled
(2) Respect statutory text over legislative history
The latter is unreliable as indicative of what the legislature really wanted
(3) Arbitrary or interest group deal making often drives the process [HOW DOES THIS FIT IN?]
Clear disconnect between 1 and 3
Why do you want article III judges enforcing an arbitrary or behind closed doors system dominated by interest groups?
Models for Politics [HOW DOES THIS FIT IN? A theory on there being or not being collective intent has to be in reference to a political model]
Trustee – member deliberation and acting on conscience (e.g., war)
Interest group – organizational power per capita (e.g., tariffs)
Organizations have more power than individuals
States, corporations, consumers, unions
Mainstream voter probably doesn’t know how tariffs will affect them but companies and unions do and if mainstream voter knew, they probably would vote against while the organizations are voting for
Median voter (e.g., flag burning)
Mainstream preferences/values to the extent that they exist
Party polarization – unified v. divide gov’t (e.g., health care)
Avalanche of legislative activity when there is unified government
When government is divided likely to see gridlock
Hasn’t been worked in to statutory interpretation
Absurdity Doctrine: Do not interpret statutes to yield absurd results.
Kirby (1868)(The Arrested Mailman Case) Sheriff and posse, pursuant to a bench warrant, arrest mailman
Q: Did said sheriff and posse, in effectuating the arrest, obstruct the mail in violation of the Act prohibiting knowing or willful obstruction of the mail or a mail carrier
Held: No, when the results would be absurd then “the reason of the law in such cases should prevail over its letter”
∆’s did not intend to obstruct the mail or its carrier within the meaning of the statute
A Textualist could arrive at the same result on a reading of “knowingly and willfully”
To hold otherwise would be absurd since the ∆’s were acting lawfully and common sense dictates that the public inconvenience resulting from delayed mail is nothing compared to the “inconvenience” that would result if we allowed mail carriers to be immune from arrest for murder while on the job
Even Textualists draw the line somewhere
Legislative compromise may result in “awkward” consequences but they don’t totally reject the absurdity doctrine, confine it to political absurdity.
How are judges supposed to test to absurdity?
Standard: Common sense, “all laws should receive a sensible construction” given context
Blood in the streets example
Under the faithful agent model, a judge has to find absurdity in a political not a normative sense. Absurd that the legislature would produce an absurd result.
How might models for politics affect the doctrine and examples?
Interest group model of politics can yield weird results, so under this model a subordinate model judge would be unlikely to find political absurdity under this model
Some weird interest group might want to protect federal servants from state prosecution while on the job
Median voter position: easy to see under this model that application of the statute as written would yield a politically absurd result
Absurd consequences are unstable over time
The barber opening the veins of a person having a fit to remove ill humors
Purposivism Survives: Textually Constrained Purposivism or “The New Purposivism”
Purposivism survives and coexists with textualism help resolve ambiguity. Purpose can be found in many sources (see General Dynamics)
Identifying Statutory Goals: General Dynamics (2004)(The Age Discrimination Case) Using an understanding of legislative purpose to defend a relatively narrow interpretation of statutory text
Facts: petitioner eliminated health benefits but made an exception for then-current workers who were 50 or older. Respondents were at least 40 (covered by Act) but under 50 (lost their benefits)
Q: Does the Age Discrimination Act forbid favoring the old over the young? Held: No.
Text: Discriminate against “any individual…because of such individual’s age”
Majority relies on purpose + text
(1) Purpose arguments for limiting “age” to “old age”
Agency report, hearings, etc. v. a floor colloquy (Latter rejected in face of rest of evidence relied on by majority)
Testimony focused on stereotypes about older people; why sometimes it might be legitimate to fire or decide not to hire an older person
Makes no sense – you will never need the defense
Leaves the defense with no application
Devastating under the consistent use canon
Majority response: age has multiple meanings and can mean different things within the statute based on surrounding words
Contrast with Holy Trinity and Casey dissent (the Old Purposivism)
HT: both rely on purpose but the courts describe what they are doing incredibly differently
Holy Trinity “spirit trumps text”
Here, locates textual ambiguity then goes in purpose
Casey dissent: Both looking for general purpose but different conceptions of why
Stevens: congress isn’t always careful and we will disrespect them if we don’t look for their general policy and tidy up inconsistencies with it
In no place does Souter imply that Congress was careless
Rather, relies on an underlying coherence in policy
Strong form of textualism can build reliance on the US Code without having to rely on other sources
On the flipside, you end with some absurd or indefensible results which serves as a check on textualism
The quandary then becomes how to determine what is an absurd or indefensible result and the resulting question of how many mistakes the judiciary is going to make and how is it going to effect the democratic process
Purposivism survives – coexisting with textualism
Purpose used to help resolve ambiguity
Purpose may be found in many sources, see General Dynamics
Judges then must decide how far to pursie these purposes…