Legislation Class Notes 2/12/04


More on Blackstone’s legisprudence


We noted yesterday that Blackstone’s view of the common law as “found” or “discovered” is at best overstated.  Doctrines that do develop are created, particularly by the best common law judges.  Think about whether there is any validity to Blackstone’s “principled” view of the common law if it’s not doctrinal.  What do courts do that’s principled?  What makes what judges do under the common law “principled”?  It might be plausibly fair, but how do they justify what they’re doing?  The judges believe that they are restating the law that’s already been there.  Been where?  They are reasoning from precedent.  Are they making rules of general application that will apply to all cases?  They reason from prior cases, and then decide just this case.  They articulate a rule that applies to this particular situation.


Judges decide cases based on precedent.  The notion is that there was a faith in legal process in the first half of the 20th century in terms of the reasonableness of the procedures used.  Those procedures could also be applied to the statutory world.  It was believed that the process by which law is made is so great that the result can’t be wrong.  Some believe that every statute is a purposeful act and that legislative procedure assures objectivity.  It’s an informed process.


When the legal process theory was in the ascendant in the middle of the 20th century, the legislatures gained more respect.  They were seen as better positioned than courts to tackle tough issues.  The lawmaking process in the United States was transformed by the New Deal.  Morange suggests that legislatures may articulate policy better than courts themselves.


This is an idealized version of both how legislatures operate and also how courts operate.


Agenda selection is an exercise in ordered chaos!


Was this case rightly decided?


Moragne v. States Marine Lines, Inc.


A longshoreman is killed by working in Florida’s navigable waters.  The widow sues for death by unseaworthiness.  It seems like an easier claim when you’re under unseaworthiness because that’s a strict liability claim.  The defendants are trying to dismiss the unseaworthiness claim before trial, and it’s on an interlocutory appeal.



Death in territorial waters

Death on the high seas

Death by negligence

Jones Act

Florida wrongful death statute

Jones Act

Death on the High Seas Act

Florida wrongful death statute

Death by unseaworthiness

Nothing before Moragne

Death on the High Seas Act


Mrs. Moragne’s claim seems to fall through the cracks in the law.  Why should the Supreme Court address this at all?  Congress has had anywhere from 50-80 years to fix the problem.  Does that Congress inaction mean that the Court should not be inventing a new remedy?  What would Blackstone say?


What if the Death on the High Seas Act had been frequently amended, but the issue that comes up in this case had not been addressed?


The Court borrowed English common law for The Harrisburg.  Why?  It’s the blessings of age.  The doctrine never had any practical validity in our country, but we’ve accepted it for centuries.  Does Harlan rely on this alone?  He says that there is no justification for this rule.


Before he speaks to the amicus brief, he talks about how a legislature enacts policy.  He talks about the fact that you must consider the scope of the sphere of the legislative enactment and whether it should be narrowly or broadly interpreted.  That is the quintessential legal process decision.


Harlan thinks that statutes should be given appropriate weight.


This is a revolutionary opinion!  It is important to weave the policies together.


What about the “anomalies”?


1.     Unseaworthiness in territorial waters produces liability if you’re injured, but not if you’re killed.  What principle would lead you to conclude that you can recover if you’re injured within territorial waters, but not if you’re killed?  The idea would be that only victims recover and not decedents.  So it’s not completely irrational.  It might be bad policy, but you can come up with an explanation.

2.     Identical breaches of duty, one inside the three mile limit and one outside, produce different results as to liability.  Is there a rational reason for that?  It’s more dangerous to be in the high seas.  It’s not irrational to suppose that we’ll have different levels of liability.

3.     A seaman is covered by the Jones Act, while a longshoreman is not.


Should we fill in these gaps with common law?


So what does the federal text say?  Does the text of the two federal laws help or hurt Justice Harlan?  How far apart were the statutes passed?  They were passed during the same Congress.  The same Congress looked at the same problem and decided to cover different jurisdictions with different standards.  This is not helpful to Justice Harlan!  A single Congress has looked at this and decided that it doesn’t look inadvertent or like an oversight.


Congress knew The Harrisburg existed when they were legislating.  Why didn’t Congress repudiate it as to territorial waters as well as the high seas?


Harlan uses the legislative history as a reason to step in now.  The language in the legislative history suggests that Congress was trying to fill a void in the law in 1920.  The void in the law in 1920 was the absence of a wrongful death remedy on the high seas.  States had been acting to fill that void in territorial waters.


Congress was not surveying the entire field and realizing that they were leaving a gap.  Congress was focused on a specific area and filling a gap.  They were worried about the high seas and not other stuff.


Legislatures could be doing one of two things: either they could be addressing a concept that’s come up before, or they could be venturing into new territory.  The thing that’s going on is either legislation is policy, an instrumentality (which can be extended by courts as common law agents according to Harlan), or else they are deals, and the scope of the statute is exactly the basis for going no further.  If there is a compromise or what looks like a compromise, we should notice what gaps legislatures have chosen not to fill in.


The Supreme Court feels authorized to extend that policy.  But then we have to deal with the problem of stare decisis.  You could die on the high seas through an accident or injury that doesn’t take the whole ship down with you.


We have an old case that has been relied upon many times.  The Court is creating a cause of action that Congress failed to create earlier.  There could be a stare decisis problem here.


Harlan goes through various considerations.  He argues that reliance is an easily deflectable interest here.  No matter how settled the rule is, no one is going to be surprised that there are big risks from unseaworthy vessels.  A change in this particular rule is probably not going to cause a radical change in behavior.


But if you create a new cause of action, complications ensue!  One problem is whether wrongful death survivors can recover for loss of consortium.  The Death on the High Seas Act is explicit in limiting damages to pecuniary losses.  How can we argue both sides of that?


Back to Class Notes