Legislation & Regulation
Textualist approach to revising text Do the least violence to the existing text and with meaning:
Most in accord with context and ordinary usage, and thus most likely to have been understood by the whole Congress which voted on the words, and Most compatible with the surrounding body of law into which the provision must be integrated
Organic statutes (do not need to know all of these details)
Names agencies Creates offices/persons responsible for running agency Confers powers on agency
There is another semantic canon that applies when courts construe items on a list - expressio unius est exclusio alterius (often referred to as expressio unius), which means "the expression of one thing excludes others"
This canon provides that the express identification of certain items in a statute means that other items that are not mentioned are not included Ex: if a road sign says that "no trucks or buses may use this road," it is fair to assume that cars and bicycles are permitted to use the road
Whereas it is not difficult to tell when a legislature or instead a court has acted, it is not uncommon for one agency to have both
the power to issue rules and to adjudicate claims arising under the agency's organic statute
Nondelegation doctrine
"When Congress confers decision-making authority upon agencies, Congress must 'lay down by legislative act an intelligible principle to which the person or body authorized to act is directed to conform'"
What happens once the legislature decides to address a problem by enacting regulatory legislation?
(1) Interest groups with a stake in the dispute may mobilize to oppose action (2) The legislative process has many opportunities for opponents of the legislation to obstruct it being passed "At the federal level and in most states, two houses of the legislature must agree. As a consequence, opponents of legislative action usually need to frustrate progress only in one house to defeat regulation" (15)
One of the most common semantic canons are the grammar cannons Grammar canons
The ordinary rules of grammar often help us to determine the meaning of written English
When should a legislature choose to do something? Options for congress
Do nothing - leave to the existing common law (Leave the problem to the common law system) Pass a statute (Enact legislation that directly regulates the problem) Create an administrative agency (Enact legislation that directly regulates the problem)
Agencies Don't have binding authority of law Do have binding legal authority
Don't have binding authority of law Guidance Investigation / Study → facts and policy Recommend legislation to congress Do have binding legal authority Permits / licenses Regulations / rule-making authority Adjudication File in court → against actors violating rule
Legislative history canons Leg acquiescence rule
A court decides a case and interprets a statute and then congress is silent for years and the court presumes Congress is in line with their interpretation because they have not done anything Presumes congress must have liked the decision
Ones choice of interpretive touchstone is highly predictive of one's willingness to consult legislative history
A person who focuses on intent or purpose - and thus starts from the premise that statutory meaning might not be perfectly reflected in the tet - is, not surprisingly more likely to consider legislative history to inform her understanding of the statute's meaning than is a person who focuses on the ordinary meaning of the text
Courts are willing to depart from statutory text not only when the results produced by the plain meaning of the text would be absurd, but also when the statute contains a scrivener's error
A scrivener is a clerk or scribe - the person who transcribes the legislature's action into statutory text
Semantic canons of construction
A semantic canon is a generalization about how language is conventionally used and understood Ejusdem generis According to this canon of construction, a general term at the end of a list should be read to embrace items similar in nature to the more specific items on the list that precede it
Interpreting text Because language can be indeterminate and text can be susceptible to multiple meanings, we need
A set of default rules about how to break ties among multiple plausible meanings of the text
United States v. Kirby "If any person shall knowingly and willfully obstruct or retard the passage of the mail, or of any driver or carrier, or any horse or carriage carrying the same, he shall, upon conviction, for every such offense, pay a fine not exceeding one hundred dollars" - Act of March 3, 1825
Absurdity doctrine here To follow the plain text would be absurd here The question of what it means to be absurd arises
Johnson v. Transportation Agency, Santa Clara County Weber was racial based, this is sex based
An employer's voluntarily adopted affirmative-action plan does not violate Title VII of the Civil Rights Act if the plan is supported by a manifest gender imbalance in the workforce and does not unnecessarily trammel the rights of male workers. Why it is hard to interpret Title VII in the context of sex? Title VII originally had nothing to do with sex The amendment to introduce sex was intended to kill the bill rather than have it pass There is nothing in the TItle VII statute that suggests we should treat sex differently than race or any other identifier
Other federalism canons
Bass v. United States The court relied on a canon that holds that, "unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance" Under this canon, courts will narrowly construe a federal statute that does not regulate the states, but instead regulates conduct historically regulated by state law Second, courts often declare that they will not lightly find that a federal statute preempts state regulatory schemes in areas of traditional state responsibility Third, the court has applied a clear-statement rule in cases involving congressional attempts to abrogate the states' immunity from suit
Almost everything we do is a cost benefit analysis The Pinto case
Car that Ford sold that had a gas tank that often ruptured when involved in a collision They did a cost benefit analysis on how much it would cost in potential lawsuits vs how much it would cost to fix the cars Chose to abandon the moral concerns of putting something on the market in exchange for less money spent
Judges who consult legislative history usually consider committee reports to be the best evidence of statutory meaning
Committee reports usually explain both what the provisions in the bill were designed to mean and why the committee adopted them For this reason, many members of Congress are more likely to read a committee report in deciding whether to support a bill than to read the bill itself
What are the pros and cons of each? options for congress
Do nothing - It gives them a way to get out of a problem (from the legislature's position) - Case by case issue under the common law - One of the problems with relying on a privately driven common law system (requiring people to come to court) is usually under enforcement (lack of resources, very costly to file a suit, lawyers may not want to take the case, proving the damages may be difficult) As a result, not everyone can file lawsuits and therefore there is no enforcement of whatever the standard is - Common law could be less democratic because judges are appointed rather than elected by the people -Common law would not be fixing the issues until after the harm occurred - retrospective Pass a statute - Inflexibility Create an administrative agency - Inflexibility - Expensive w/ highly complicated regulations, etc - How broad of an impact can this have? Three main justifications for relying on administrative agencies: - Agencies develop expertise in their fields of regulation - Agency decision-making is less likely to be driven by crass political calculations, and more likely to be based on neutral scientific or technical principles, than legislative decision making - "Agency officials are not subject to election...and thus are more likely to base their decisions on the best evidence" (14) - Agency decision-making might be more efficient than legislative decision-making - In contrast to legislative decision making, administrative usually uses less burdensome procedures and agencies can both issues rules and implement them (where legislative cannot enforce) Drawbacks to relying on administrative agencies to regulate - Since agency officials are not directly accountable to voters, this decision making lacks democratic legitimacy of legislative decision making - Conferring power on one entity to form and implement r
"Most justifications for government regulation fall into one of two categories: economic rationales and non-economic rationales" (7)
Economic (wealth maximization) "Most economic justifications start from the premise that well-functioning markets are likely to produce an efficient allocation of resources that maximizes total social welfare" (7) "Resources tend to be deployed where they produce the most value, any government intervention that disrupts the market is likely to result in a less efficient allocation of resources. As a consequence, economic justifications for regulation generally require some reason to suspect that there has been a market failure - that is, that a market is not operating efficiently" (7) Ex: a monopoly Non economic (largely justified by moral considerations) Ex: pursuing policies that redistribute wealth from the rich to the poor Ex: taking steps to alleviate burdens on marginalized groups; prohibiting private businesses from discrimination on the basis of race in hiring Ex: decide that there is an ethical obligation to preserve the Earth's rich diversity and prohibit private actions that impair the habitats of endangered species
Legislative history canons Borrowed statute rule
If the court borrows language from another statute to put into this one, believes that it agrees with the prior court's interpretation of the text and is bringing it to this statute
Policy implications of canons POLICY QUESTIONS WILL BE ON AN EXAM Ex: policy of the relationship between congress and courts and whether the courts should be an agent etc Underlying purposes of the canons (four)
Ensure statutes are implemented objectively and predictably Counter: With every canon there is a canon that opposes it This does not lead to an objective or predictable result It depends on which canon you choose to create a certain result + subjectivity in applying a canon The canons are not required - they are merely guidelines for the judges to use Create a policy or normative backdrop against which courts interpret and Congress drafts laws Counter: Promote constitutional and other norms, entirely external to Congress' drafting Counter: Argument we are underenforcing constitutional norms and allowing judges to legislate Reflect realities of drafting process Counter: Legislators are not thinking about the canons when drafting
Absurdity v error
Error Mistakes or failures of expression, the legislature obviously misspoke Scrivener's errors are illogical - they do not make sense at all Absurdity Failure of foresight, the legislature obviously overregulated Having an absurd result may be the result of a scrivener's error
Green case Defense wanted to change defendant to party or to add all criminal before it to do the least violence to the text
Even if evidence is relevant it may not be admissible if its probative value would be outweighed by the danger of prejudice This language was introduced at the conference committee report Main point here is the notion of absurdity - notion of unconstitutionality Scalia - there is nothing in the legislative history that supports sticking with the text Bottom line with respect to absurdity: We have not figured out why this is a case of absurdity for Scalia - we don't know if there is an answer to this; but no one in this case understands why Congress would treat civil P's and civil D's differently
Smith v. United States Whether the exchange of a gun for narcotics constitutes "use" of a firearm "during and in relation to...[a] drug trafficking crime" within the meaning of 18 USC § 924(c)(1)
Even under a pure textual approach, there is ambiguity here - multiple ways of interpretation
Legislative history canons Horizontal coherence
Explanation of the whole act and whole code rule We look to the surrounding landscape of policies - public values and political legal notions and social norms
Legislative history canons Presumption to construe statutes consistent with common law
FINISH
Court's relationship to congress Faithful agent Or cooperative partner
Faithful agent The court is a faithful agent of congress - bound by what we think the drafting congress meant Or cooperative partner The court is working with congress and taking cultural norms and changing norms into account
Federalism canon Gregory v. Ashcroft Whether the ADEA applies to state judges? Argument for yes: Argument that state judges do make policy Argument for no: Argument that state judges are just resolving factual disputes and deciding questions of law but this is not policy making Also that noscitur a sociis What did the majority do in this case?
Federalism canon requires a clear statement from congress before the court will conclude the law intrudes on core aspects of state sovereignty then we should require that congress speak plainly Idea that when it is not plain it is ambiguous - has to be absolutely plain they are covered otherwise we will read it in the fashion that they are not covered
Ordinary, colloquial, or technical meaning
Giving effect to the ordinary meaning of its text
O'Connor v. Oakhurst Dairy Dispute in this case: Whether drivers fall within the exemption from the overtime law or not Delivery drivers carrying perishable products Use of the oxford comma and how to interpret a provision with or without it If you do not use one, you are unsure what the provision is because there is a rule that you can use one if you would like but that you do not have to → this creates ambiguity when one is not used Analysis The drivers contend that the words refer to the single activity of packing and whether it is for shipment or distribution They further contend that they do not pack and thus are protected by ME overtime law The drivers also point to grammar Each of the terms in exemption F is a gerund but distribution and shipment is not - thus they must be playing the same grammatical role Oakhurt explains that shipment and distribution are synonymous and states that since there is no con
How did the court try to decide this issue? The court looks to the purpose and legislative history and says that nothing shows clear purpose and then they use a default rule which construes the statute in favor of the drivers (this is a substantive canon similar to the rule of lenity) Rule If there is ambiguities in a statute that the canons of construction cannot aid in clarifying, construing the statute liberally to accomplish the remedial purpose of the statute is important Holding The exemptions scope is actually not clear; drivers do fall within the law when construing it liberally
Avoidance canon - Skilling What did skilling claim was the reason that he could not be held under the statute? Void for vagueness - the law is unconstitutional
If a court decides something is unconstitutionally vague, what should the court do? Did not actually hold the statute was unconstitutionally vague Skilling - avoidance canon If you have an ambiguous statute and you have two interpretations that are unconstitutional and constitutional pick the constitutional reading Potentially risks under enforcing constitutional norms
Griggs v. Duke Power Co.
If an employment practice that operates to exclude Blacks cannot be shown to relate to job performance, the practice is prohibited
Legislative history canons Dog that did not bark
If congress is enacting a rule and it id going to have a major impact on something (Ex TVA) and they do not mention anything about it during the legislative discussion they could not have intended for that to happen - idea that they did not intend this big event to happen
Why do textualists think there is a problem looking to legislative intent?
Incoherent - there's no way to discern the intent of such a large group of people Unknowable - cannot speak on behalf of the entire group Violates separation of powers - almost as if we are looking to the judiciary to do legislative functions
The avoidance canon (the canon of constitutional avoidance)
Is designed to avoid the disfavored result of a court invalidating a statute Under the avoidance canon, a court will choose a construction of a statute that avoids constitutional difficulties
The role of substantive canons The rule of lenity should tip the scales in the D's favor
It is a tie breaker when ordinary rules of statutory interpretation leave the interpreter in equipoise On this view, even if the best reading of a statute is that it criminalizes the conduct at issue, the court will not construe it to do so if Congress did not speak with unmistakable clarity
But people who focus on the ordinary meaning of text have gone further than arguing that legislative history is irrelevant in a proper inquiry about statutory meaning; they have argued that it is usually illegitimate for judges to rely on legislative history in determining statutory meaning Scalia's arguments:
It is unrealistic to imagine that most members of Congress would be aware of a statement made on the floor or in a committee report, let alone that such statements are representative of the views of a majority of members Contends that the more courts that have relied on legislative history, the less worthy of reliance it has become because one of the routine tasks of the washington lawyer lobbyist is to draft language that sympathetic legislators can recite in a prewritten 'floor debate' - or even better, insert into a committee report Argues that a reliance on legislative history has facilitated rather than deterred decisions that are based upon the courts policy preferences, rather than neutral principles of law Legislative history is extensive - there is something for everybody Suggests it is unconstitutional States that whatever congress has not itself prescribed is left to be resolved by the executive or (ultimately) the judicial branch
Most judges who consult legislative history believe that committee reports rank higher in the hierarchy of legislative history than do statements by individual members of the legislature
Judges often give significant weight to statements by the sponsors or authors of a bill Although judges do not put as much weight on statements by other members of congress, they do not ignore these statements Judges also sometimes cite other pieces of legislative history - such as witness testimony before a committee hearing, a colloquy between a member or a legislative aide and a witness, or statements submitted to a committee by interested groups - in seeking to determine the meaning of a statute
Absurdity doctrine and textualism
Judges should not substitute their intuitions about policy for the plain meaning of the text Adherence to plain meaning incentivizes Congress to draft carefully The text demonstrates Congressional bargaining and compromises that judges just adhere to
TVA case Facts TVA decided to build a dam in TN The construction of the dam would result in flooding of a portion of the TN river A scientist discovered a previously unknown species of fish called the snail darter - it was then determined that these fish only lived in the TN river In 1975, 8 years after the TVA started building the dam, the secretary acted under the Endangered Species Act to designate the snail darter as an endangered species Biologists who were designated to the preservation of local species filed the suit to prevent the damn being completed Endangered species act All federal agencies shall take such action necessary to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of endangered species or result in the destruction or modification of habitat of such specifies which is determined by the secretary of the interior to be critical
Majority approach Textualist / plain language approach Idea that allowing the TVA to continue would completely ignore the text of the statute Legislative history In resolving the two conflicting bills, they went with the version that capitalized on preserving endangered species Odd that Burger spends so much time on legislative history for a textualist approach Usually a textualist avoids discussing legislative history Powell opinion - dissent Intent Says that there is a ton of evidence about what Congress thought about the TVA - did not believe it violated the ESA or if it did they did not care Continued to appropriate funds Purpose Not to waste money and resources that have already been put into the project here Inferring there needs to be a balance of interest between environmental concerns and developmental concerns This is a classic example of reading the plain meaning of the text and not being willing to say something goes against the spirit/intent of the legislature
Thinking about the process we have in the US and comparing to other western democracies
Many western countries use a parliamentary system - the executive is called the prime minister rather than the president Usually the PM is also a member of the legislature (the parliament) Prime minister - parliament - The prime minister holds office usually because their party won the parliament - In most parliamentary systems there is only one parliament (one house) - Further, because the PM is in the same political party as the P, there is usually more agrement - The prime ministers assent is usually unnecessary to enact law - parliament can do so - Not many opportunities to derail legislation How is this different? President is voted in separately from the legislature President may not be from the same party as the legislature There can be more division within each of the houses The president has to assent before a bill becomes law Parliament creates a system that allows for much more laws to be enacted - Fewer obstacles - More political alignment in the system - Benefits of this Allows for issues to be addressed more rapidly and efficiently Could potentially be more democratic - would likely reflect majority societal views Our system - making it more difficult to enact legislation Tends to promote more libertarian principles - fewer laws = greater private order, more individual liberty interests Notion of having the majority having to take into account the minority views - this requires compromise which may be good or bad Creates more legitimacy - more people on board to vote for the bill
Funnel of abstraction (starts narrow then to abstract)
Most concrete/objective → most abstract/subjective Text of provision - plain meaning in light of whole act Authoritative precedent (stare decisis) Specific intent from legislative history Purpose of the text and/or legislative history Historical evolution and practice under the statute Practical implications of the decision Social, political, legal norms and coherence with current legal regime
ARGUMENTS AND COUNTERARGUMENTS Qualifying or limiting words or clauses are to be referred to the next preceding antecedent
Not when evident sense and meaning require a different construction
ARGUMENTS AND COUNTERARGUMENTS If language is plain and unambiguous it must be given effect
Not when literal interpretation would lead to absurd or mischievous consequences or thwart manifest purpose
Many defend the use of legislative history If one is persuaded that courts should seek to enforce the legislature's intent or broad purposes - and that those intentions and purposes are not always captured by the language that the legislature used - then the use of legislative history is considerably less problematic Historical defense
Nothing in the constitution indicates the method the court must follow and the practice in the eighteenth century was not to limit a court's consideration to the plain meaning of the tex Argues that it does not constrain judges Reject textualist claims that collective legislative intent is an unknowable fiction The best way to find out the purpose of an action taken by a group is to ask some of the members about it - This does not necessarily mean that the groups purposes and the members motives or purposes must be identical, but these differences do not necessarily change the proper characterization of the groups purpose - Tp refuse to ascribe a purpose to Congress in enacting statutory language simply because one cannot find 300 legislators who have claimed it as a personal purpose is like refusing to believe in the existence of Oxford University because one can find only colleges Responded to textualists claim that a single minded judicial focus on text will lead congress to be more conscientious in drafting statutes - Congressional practices have no meaningfully change since the textualist revolution reached the courts
Why something may not become law
Philosophical or ideological existence Regulation itself Even if there is support, often the legislature cannot overcome may of the obstacles that are put in place for a bill to become law
Touchstones
Plain/literal meaning Ordinary meaning Background norm/semantic context Ex: Kick or hit is not exclusive → idea that she should not have incited any physical violence Ex: history of religion in the country Intent Legislative intent: specific v. collective Issue in case Purpose/spirit and dynamic interpretation - General plan/spirit: evil designed to address; overarching concept - what was the general problem they were trying to solve and what is the overarching purpose behind enacting this law (not case specific) - Based on the overarching purpose how would this specific case fit? Precedent (prior judicial construction Canons of construction Public policy
Textualist approach
Political neutrality may be more neutral but less individualized justice Provides more predictability Notice and reliance arguments Forces congress to change a statute if they want to change it Argument that lawmaking is better done by Congress than Courts - the courts should not be adapting their interpretation - it is thus better for Congress to amend the statute This should also force Congress to be as careful as they can when drafting statutes Purposivist approach gives flexibility
ARGUMENTS AND COUNTERARGUMENTS Words are to be taken in their ordinary meaning unless they are technical terms or words of art
Popular words may bear a technical meaning and technical words may have a popular signification and they should be so construed as to agree with evident intention or to make the statute
In general, the civil right act was designed to redeem the pledge that all citizens are equal and that they should have an equal opportunity to participate Focused on four areas of concern:
Public accommodations Public education Employment Recipients of federal funds
Chisom "Representatives" Question was whether judges are representatives?
Purpose/intent Legislative history = "expand" → remedy Legislature → representatives (this is designed to be expansive) Congress was attempting to expand under the voting rights act and thus they were not intending to remove judges for it because they were part of the original act Scalia - dissent Focused on the ordinary meaning of the term and how an everyday person would not consider a judge to be a representative (as they are not elected)
Casey "Attorney's fee" - what does this mean?
Purpose/intent Stevens - dissent Error/oversight and legislative history Expert fees should be included in the notion of attorney's fee Text No - it is hard to shoehorn in expert fees into attorneys fees from a textualist approach - these are two separate things
Yates v. United States Issue Are fish are trapped within the term "tangible object," as that term is used in §1519?
Rule A tangible object under §1519 is one used to record or preserve information Holding No Analysis The Sarbanes-Oxley Act was prompted by the exposure of Enron's massive accounting fraud and revelations that the company's auditor had destroyed documents - The government contends that this statute extends to all physical items that may be relevant to any matter under federal investigation - We reject this reading In interpretive the words "tangible object" the caption of the statute and heading supply cues that Congress did not intend "tangible object" in §1519 to extend to physical objects of every kind --> This is strengthened by §1519's position within Chapter 73 of Title 18 - Furthermore, under noscitur a sociis, the words surrounding tangible object include "falsifies, or makes a false entry in any record [or] document" which cabins the contextual meaning of this term - Ejusdem generis also aids in this point, as if Congress has intended tangible object to be interpreted so generically as to capture physical objects as dissimilar as documents and fish, Congress would have had no reason to refer to "record" or "document" - Lastly, if there is any ambiguity, the rule of lenity would be invoked, which would be in favor of the D
Commonwealth v. Maxwell - Are women eligible to serve as jurors in PA?
Rule Legislative enactments in general and comprehensive terms, prospective in operation, apply alike to all persons, subjects and business within their general purview and scope coming into existence subsequent to their passage Holding Women are eligible to serve as jurors Which touchstone of interpretation did the IL court focus on? Intent - 1887 Intent was for men PA justices come out the opposite way - what is their touchstone? Plain meaning / (also a form of intent) Definition of the term electors - people eligible to vote - this includes women Both intentionalist types of approaches What was the legislature intending by the use of this word?
In the Interest of Angel Lace M - Should the circuit court have granted Annette's petition for adoption since they found the adoption to be in Angel's best interests?
Rule The court must find that the adoption is in the child's best interests before granting a petition for adoption, however, this does not authorize a court to grant the adoption A party petitioning to adopt a minor must satisfy two requirements: The party must be a resident of WI The party must fit the description from one of two sections In addition to satisfying the qualifications for a party who can adopt, the child must be eligible for adoption Must satisfy two requirements A minor is not eligible for adoption unless the rights of both her parents have been terminated Holding No Georgina's rights have not been terminated and the statute severing the ties between the birth parent and the adopted minor would get in the way, therefore Angel is ineligible for adoption
Bob Jones University v. United States Should Bob Jones University have tax exempt status under the statute?
Rule To qualify for tax exemption under § 501(c)(3), an institution must show that it falls within one of eight categories set forth in that section and its activity cannot be contrary to public policy Holding No they do not Argument that there is no additional requirement that something has to be consistent with public policy Is this implicated in the statute? Rehnquist is using plain language in the dissent
United States v. Bass Issue Is the statute ambiguous?
Rule Where there is ambiguity in a criminal statute after seizing everything from which aid can be derived, doubts are resolved in favor of the D Holding Yes, and because it is, the rule of lenity applies and the narrower phrase is applied in favor of the D Analysis - The statute's plain language can be read in favor for either of the parties - Aspects of legislative history provide support for the gov't, however, they also provide support for the D, as it seems that congressional colleagues of Senator Long did not understand the statute in the same way - Because there is still ambiguity, the rule of lenity applies --> Absent a clearer statement of intention from Congress we do not interpret §1202(a) to reach the 'mere possession' of firearms
The Case of the Speluncean Explorers
Rule Whoever shall willfully take the life of another shall be punishable by death Holding There is no exception to this rule, but sympathy should incline us to make one in this case Proposal to join in the communications addressed to the Chief executive for clemency and the sentence to be commuted Analysis If the sentence is reduced or these men are granted clemency, then justice will be accomplished without disregarding the spirit of the statute or offering encouragement for disregarding the law
Lockhart case What was the disputed question? Whether the phrase "involving a minor or ward" modifies all items in the list of predicate crimes or only the one item that immediately precedes it
Rule of the last antecedent is used by the majority Only modifies the last term - which is abusive sexual conduct, so the defendant here is not subjected to the mandatory sentencing term Rule of lenity is used here too (if there is any ambiguity and it is a criminal statute, you should think of the rule of lenity and its application) Rule against surplusage used here too
Substantive canons of construction
Substantive canons are specific to the act of statutory interpretation; they are designed to ensure that courts do not lightly reach disfavored outcomes The rule of lenity is designed to avoid a particular set of outcomes - the conviction and incarceration of a defendant without giving fair notice that his conduct ran afoul of the law
Cline "Age"? Are we just focusing on the word age or are we focusing on something else?
Text No - context of other statutes Issue Does The Age Discrimination in Employment Act of 1967 prohibit favoring the old over the young? Holding No it does not
Locke "Prior to Dec 31" Turned in on Dec 31 - is Dec 31 prior to Dec 31?
Textualist standpoint: No, prior to Dec 31 means before dec 31 Purpose/intent - dissent Dissent says there is scrivener's error
Overarching textualist arguments
Textualists argue that a 535 member legislature has no genuine collective intent with respect to matters left ambiguous by the statute itself - Even if congress did have a collective intent, courts act improperly when they equate the views of a committee or sponsor with the intent of the entire congress and the president Giving decisive weight to legislative history assigns dispositive effect to texts that never cleared the constitutionally mandated process of bicameralism and presentment
Two sources of limits on agency power that apply generally:
The Constitution's Due Process Clauses and The Administrative Procedure Act Both of these provisions impose procedural requirements on agency action As a consequence, they are trans-substantive, which means that they apply regardless of the subject matter that the agency is responsible for regulating
Summarizing the theories from a policy standpoint
The argument that when you use the text, you are making a more politically neutral approach to interpreting the statute over a purposivist /intentionalist approach The purposivist / intentionalist argument is that this is combing through legislative history You can often find something someone said to focus on and support a particular view Neither approach is politically neutral per se
Forms of avoidance Two types of avoidance canons
The classic avoidance canon Announces an interpretation is unconstitutional and goes with the other version Argument against this is that we do not like advisory opinions The modern avoidance canon Do not actually decide that an interpretation is unconstitutional - just think it might be and want to avoid that interpretation and deciding that it is unconstitutional so they go with the second option that is constitutional The more modern version of the doctrine looks more like what the Court in Skilling did: the court considers the range of plausible interpretations of a statute and if one would raise constitutional problems or doubts, chooses one that avoids the possible constitutional problem
Nix v. Hedden "Fruit: noun. The usually edible reproductive body of a seed plant; especially one having a sweet pulp associated with the seed" - Merriam-Webster's Dictionary "Vegetable: noun. A usually herbaceous plant (such as the cabbage, bean, or potato) grown for an edible part that is usually eaten as part of a meal" - Merriam-Webster's Dictionary Is a tomato a vegetable (where you would have to pay the import) or is it a fruit?
The court determined that the ordinary meaning should apply
Riggs v. Palmer Convicted of second degree murder and sent to the state reformatory NY Wills Statute All persons may devise their estate, by a will duly executed according to the provisions of this title... No will in writing shall be revoked or altered otherwise than by some other will in writing with the same formalities One exception to this If a will was executed by an unmarried woman then it shall be revoked by her subsequent marriage
The court feels that by the plain meaning of the statute that Elmer should get the property But they ruled against him - why? Intentions of the legislature - "Absurd" to allow this Intentions of the testator Judge gray - dissent This text is not ambiguous and very brightline - would have relied on the plain language What are the two sides arguing about? Rational interpretation or imaginative reconstruction The majority argues a background norm to justify not following the text - Public policy Following the test supports a different background norm - Argument that we should not depart from the text because we have no idea of telling what the intent of the legislature is Both Gray and Earl argue that they are trying to conform with the intent of the legislature - They each use different touchstones to attempt to describe what these intentions are The courts decision in Riggs was an outlier Most other states enforced the law as written if it was clear Many states enforced slayer statutes to solve the issue of murderous heirs NY did not enact a statute because the statute was enacted here bc of Riggs
The Whole Act Rule is based on a straightforward and common sense intuition: when we try to determine the meaning of one provision in a statute, we should read it in the context of the entire statute of which the provision is part
The court should consider whether the other provisions of the statute shed any light on the meaning of the words
Why would we interpret the constitution more dynamically than a statute?
The difficulty of changing the constitution vs a statute Statutes are designed to be changed by Congress Key thing to remember: whenever a court takes a case and interprets a statute and makes a decision, legislation can change or amend or repeal the statute after
ARGUMENTS AND COUNTERARGUMENTS Expression of one thing excludes another
The language may fairly comprehend many different cases where some only are expressly mentioned by way of example
Democratic accountability
The powers of each branch - the legislature are the ones who are accountable to us It seems antidemocratic for a judge to recognize that is what the legislature said and to go against it through creating an exception
The rule of lenity instructs courts to choose a construction of a criminal statute that favors the D, even though the statute could plausibly be read to favor the gov't What is the justification for this rule?
The rule is designed to ensure that the public has fair notice about what conduct can lead to criminal penalties. If a criminal statute is ambiguous, then the public cannot have confidence about what conduct is permissible and what conduct is prohibited The rule promotes the separation of powers by ensuring that elected members of the legislature, rather than unelected judges, make the moral judgments that are the basis of criminal law
Unlike semantic canons of construction, which are supposed to reflect how people ordinarily use or understand language, substantive canons of construction are default rules designed to advance certain policies or avoid certain disfavored outcomes Some substantive canons include:
The rule of lenity The avoidance canon The federalism clear-statement rule
Muscarello Tie breakers beyond the plain meaning
The rule of lenity is a canon Has to be a criminal statute and it also has to be ambiguous → deciding in favor of the D This is a substantive canon designed to aid in due process concerns Focuses mostly on the text Legislative purpose → no legislative history Other provisions of the statute = textualist argument
Consulting other provisions can aid in statutory interpretation in two ways:
The structure of the statute may reveal something about the meaning of the words in the provision at issue The words in the provision may be identical to or different from words used in other provisions of the same statute. Which can shed light on the meaning of the words in the disputed provision of the statute - The presumption of consistent meaning --> Presumption that identical words used in different parts of the same act are intended to have the same meaning - The presumption of meaningful variation --> Rejects the argument that the provision at issue had the same meaning as another provision in the statute because the other provision used much different language - These two presumptions serve as commonly cited collieries of the Whole Act Rule --> Like any other presumption, they can be overcome however by a convincing showing that Congress intended a different meaning
ARGUMENTS AND COUNTERARGUMENTS Titles do not control meaning; preambles do not expand scope; section headings do not change language
The title may be consulted as a guide when there is doubt or obscurity in the body; preambles may be consulted to determine rationale, and thus the true construction of terms; section headings may be looked upon as part of the statute itself
Purpose v spirit
There is a common approach that says even if you have a scenario where the fact pattern seems to fit clearly, it may not actually comply with the spirit of the law
Ejusdem generis is a semantic canon that means "of the same kind"
This canon instructs courts to construe catch-all, general terms at the end of a list in light of the items on the list that precede it
Noscitur a sociis is a semantic canon that means "it is known from its associates"
This canon instructs courts to interpret words in statutory lists in light of the other items on the list
The federalism clear-statement rule The court in Gregory declined to read the ADEA to protect the P's because the statute did not "plainly cover" appointed state judges
This canon is designed to advance federalism goals, and specifically to protect state prerogatives, by limiting the occasions when courts will find that Congress has regulated the states or state functions
Committee reports describe the bill that emerged from committee, which might change in meaningful ways once it is subject to debate on the floor Conference committee reports essentially never sugar from this problem: both houses' rules prevent amendments to conference reports on the floor
This may make conference committee reports even more reliable statements of legislative intent On the other hand, conference committee reports tend to address only the provisions that were sources of disagreement between the houses rather than those that were included in the bills that both houses originally passed, which can make conference committee reports less helpful as evidence of statutory meaning Hierarchy of legislative materials that courts have recognized Committee reports Speeches by sponsors and floor managers
ARGUMENTS AND COUNTERARGUMENTS The same language used repeatedly in the same connection is presumed to bear the same meaning throughout the statute
This presumption will be disregarded where it is necessary to assign different meanings to make the statute consistent
Notice
Those that are reading the statute need notice of what it means, which means that there have to be consistent interpretations
United Steelworkers of America, AFL-CIO-CLC v. Weber (1979)
Title VII's prohibition in §§ 703(a) and (d) against racial discrimination does not condemn all private, voluntary, race-conscious affirmative action plans The spirit of the bill and legislative history - This is a critique of legislative history - you can often find something that supports just about anything you want to say
The Whole Code Rule is similar to the Whole Act Rule The most commonly cited corollary of the Whole Code Rule is the maxim in pari materia, which is latin for on the same subject
Under this maxim. Statutes addressing the same subject matter should generally be read as if they were one law This is based on the assumption that a legislative body generally sues a particular word with a consistent meaning in a given context and on the premise that whenever Congress passes a new statute, it acts aware of all previous statutes on the same subject The Whole Code and its corollaries are based on the assumption that when Congress legislates, it acts with knowledge of already existing statutes and seeks to create a coherent body of statutory law
Lenity: when and how to apply? Weak Strong
Weak The rule applies only if, after seizing everything from which aid can be derived the Court, we can make no more than a guess as to what Congress intended. To invoke the rule, we must conclude there is a grievous ambiguity or uncertainty in the statue The rule of lenity should tip the scales in the D's favor Strong At the very least, it may be said that the issue is subject to some doubt. Under these circumstances, we adhere to the familiar rule that where there is ambiguity in a criminal statute, doubts are resolved in favor of the D Before choosing the harsher alternative, we require "that Congress should have spoken in language that is clear and definite" Summary of criminal cases / lenity Majority Bass Does "commerce" modify all prior verbs "received, possess, transport"? McBoyle Is an airplane a "motor vehicle?" Yates Is a fish a "tangible object?" Dissent Lockhart Does "involving a minor or ward" modify all prior terms for sexual abuse? Smith Is trading a gun for drugs "use of a firearm?" Muscarello Is having a gun in your trunk "carrying a firearm"?
Legislative history canons Reenactment rule
When congress re-enacts a statute and changes some of the provisions but does not change a provision right after it has been interpreted by the court Presumes congress liked the decision
When courts speak of legislative history, they are referring to the record of a bill's progress through the legislative process Legislative history is different from statutory history, though the two are related
When we speak of statutory history, we are usually referring to the evolution of statutory law over time
Caminetti v. United States Where the language is plain...
Where the language is plain and admits of no more than one meaning, the duty of interpretation does not arise, and the rules of which are to aid doubtful meanings need no discussion - There is no ambiguity in terms of this act The court coming out in opposite directions based on the touchstone they used
Whole Act vs Whole Code Rule
Whole Act Semantic canon, only governing in the statutory interpretation realm Idea that interpretation requires you to look at all of the provisions within the act Whole Code Look anywhere within the US Code
The rule of the last antecedent provides that
a limiting clause or phrase should ordinarily be read as modifying only the noun or phrase that it immediately follows
Another commonly invoked corollary of the Whole Act Rule is the rule against redundancy,
also sometimes called the rule against surplusage Under this maxim, courts will avoid a reading which renders some words altogether redundant
Scalia is one of the primary proponents of
textualism
McBoyle v. United States "Whoever shall transport or cause to be transported in interstate or foreign commerce a motor vehicle, knowing the same to have been stolen, shall be punished by a fine of not more than $5,000, or by imprisonment of not more than five years, or both" Is an airplane a motor vehicle? The statute designed motor vehicles as including "an automobile, automobile truck, automobile wagon, motorcycle, or any other self-propelled vehicle not designed for running on rails"
no?
Conflicts are rather rare between
the text and spirit of the law
The Whole Act Rule and the Whole Code Rule are related and are similar to substantive canons in that they are specifically designed for the task of statutory interpretation But like semantic canons,
they are designed to reflect how a conscientious legislature likely uses language when it enacts a statute
In Hill, Chief Justice Burger cited all of the main sources of legislative history:
witness statements provided in hearings before congressional committees; committee reports conference committee reports; and statements by individual legislators during floor debates
